Is the rule of recognition really a conventional rule?

Oxford Journal of Legal Studies

Volumn 27, Issue 3, 2007, Pages 373-402

  Dickson, Julie ^a  

^a SOMERVILLE COLLEGE   (United Kingdom)

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EID: 34548494876     PISSN: 01436503     EISSN: 14643820     Source Type: Journal    
DOI: 10.1093/ojls/gql032     Document Type: Article

References (115)

1. J.L. Coleman, The Practice of Principle: In Defense of a Pragmatist Approach to Legal Theory (Oxford University Press, 2001), 68 (internal footnote omitted).
2. A. Marmor, Positive Law and Objective Values (Oxford University Press, 2001), 4-5.
3. I borrow this term from Leslie Green (one of the turn's few critics) in L. Green, 'Positivism and Conventionalism' (1999) 12 Canadian Journal of Law and Jurisprudence 35, at 35-52.
4. See e.g. Marmor, Positive Law and Objective Values, above n 2, Ch. 1 and 2;
5. J.L. Coleman, 'Incorporationism, Conventionality, and the Practical Difference Thesis' (1998) 4 Legal Theory 381;
6. Coleman, The Practice of Principle, above n 1, Ch. 7 and 11;
7. G. Postema, 'Coordination and Convention at the Foundations of Law' (1982) 11 Journal of Legal Studies 165;
8. S. Shapiro, 'Law, Plans, and Practical Reason' (2002) 4 Legal Theory 387 (although n.b. Shapiro urges caution as regards the use of the term 'conventionalist' in characterizing the position he advocates, and emphasizes that the conventionalist aspects of his account do not play a central explanatory role in it).
9. Some of this work in legal philosophy may have been originally inspired by David Lewis' analysis of conventions in D. Lewis, Convention: A Philosophical Study (Harvard University Press, 1969). Lewis' account features in the discussion of Andrei Marmor's work later in this article.
10. H.L.A. Hart, The Concept of Law (Clarendon Press, 1961);
11. H.L.A. Hart, The Concept of Law (2nd edn. with a postscript ed. P.A. Bulloch and J. Raz, Clarendon Press, 1994). All page references in this article are given according to the pagination in the 2nd edition.
12. Above n 2. Although I regard Jules Coleman's work on this topic as interesting and important, I mention it here only in passing. The reason for this, in addition to the usual constraints of space, is that certain aspects of Marmor's views are especially relevant in terms of the particular issues which I wish to address here. It should also be noted that the present article is largely concerned with offering an interpretation and critical analysis of Hart and Marmor's respective positions. Addressing the work of other theorists writing on these issues, as well as developing and defending more extensively my own position on this topic, is a task for future work.
13. Hart, 'Postscript' to The Concept of Law, above n 5 at 255.
14. Marmor, Positive Law and Objective Values, above n 2 at 5 (emphasis in original).
15. Hart, The Concept of Law, above n 5, Ch. V and VI.
16. Ibid at 91.
17. Ibid at 55-7; 83-91; 102 3; 116-17.
18. Ibid at 109-10; 111.
19. Ibid at 103-5.
20. Hart at allows for possible exceptions, for example in cases where, perhaps for teaching purposes, it would be useful and meaningful to use the terminology of validity even when speaking of a legal system long since defunct, such as Roman law; see Hart, The Concept of Law, above n 5 at 104.
21. Ibid at 105.
22. Ibid at 107.
23. I refer to the English and not UK legal system in order to avoid the complications which arise from the fact that the UK is a multi-legal system state.
24. Hart, The Concept of Law, above n 5 at 107.
25. Ibid at 107.
26. Ibid at 109.
27. On this point, see also J. Raz, The Authority of Law (Clarendon Press, 1979), at 68-9.
28. Hart, The Concept of Law, above n 5 at 109-11.
29. This point, and its relevance for the issue of whether Hart should be understood as espousing a conventionalist interpretation of the rule of recognition in the 1st edn of The Concept of Law, is also discussed by L. Green, 'Positivism and Conventionalism', above n 3 at 39.
30. Hart, The Concept of Law, above n 5 at 108.
31. Ibid at 107.
32. Ibid at 108.
33. Ibid at 17.
34. Of course, Hart discusses far more in The Concept of Law than is mentioned above. My point is merely that there are some questions which he does not believe it is necessary to engage with in order to explain those important features of law elucidated in the book.
35. Hart, The Concept of Law, above n 5 at 203.
36. Cf J. Finnis, Natural Law and Natural Rights (Clarendon Press, 1980), Ch. 1 who takes Hart to task for failing to identify one such reason as primary and elucidate law in terms of it.
37. Hart, The Concept of Law, above n 5 at 203.
38. I am grateful to Leslie Green, Dori Kimel and Joseph Raz for comments on the above points which (I hope) have clarified my understanding of them.
39. N.b. I am not denying that Hart conceives of the rule of recognition as binding on judges, or that he views it as a duty-imposing rule (on this latter point, see Raz, The Authority of Law, above n 21 at 96-7 and 178-9). My point is rather that, in the original edition of The Concept of Law, he does not appear to explain, and does not deem it necessary to explain, what reasons judges have for accepting it as binding, beyond the brief remarks discussed above.
40. This point is also discussed in L. Green, 'Positivism and Conventionalism', above n 3 at 39.
41. Hart, The Concept of Law, above n 5 at 254-9.
42. Ibid at 263-8.
43. Ibid at 255;
44. J. Raz, Practical Reason and Norms, Norms (2nd edn., Princeton University Press, 1990), 50-8.
45. Hart, The Concept of Law, above n 5 at 255.
46. Ibid at 256.
47. Ibid at 256.
48. Ibid at 256.
49. Ibid at 256.
50. Ibid at 267.
51. It has been suggested to me by both John Gardner and Wil Waluchow that there may be ways to read these remarks such that they do not amount to a 'conventionalist turn' on Hart's part. Unfortunately, the constraints of space prevent me from discussing their valuable suggestions here. In the present section, then, I take Hart's self-proclaimed conventionalist turn - at least in the above passage - at face value, but attempt to contrast this with his views in the 1st edn of The Concept of Law, and to point to some ambiguities as regards his views on this issue in the 'Postscript'. However, one interesting possibility which may assist in interpreting such remarks is taken up in sections 7 and 8 below where I discuss the idea that common official practice identifies for each judge what they have reason to do, assuming that they have further reasons to do that. If this is the role of common official practice envisaged by Hart in the passage quoted above then in my view, as I also discuss in sections 7 and 8, there are doubts regarding whether this is best viewed as a conventionalist position.
52. Hart, The Concept of Law, above n 5 at 267 (emphasis added).
53. Other legal philosophers have also been wary of understanding the rule of recognition as a conventional rule and of attributing this view to Hart. For example, Leslie Green has expressed doubts that Hart understood the rule of recognition as a conventional rule in the original edition of The Concept of Law view (see Green, 'Positivism and Conventionalism', above n 3, 37-9),
54. and has further contended that it is possible to interpret the account of the rule of recognition offered in the 'Postscript' as not being a conventionalist view (ibid at 40-1);
55. and Joseph Raz has claimed that, contra Hart's remarks in the 'Postscript', the rule of recognition, '... cannot be sensibly regarded as a conventional rule - that is, we cannot assume it to be a necessary truth that when a judge follows the practice of, let us say, applying acts passed by the Queen in Parliament as binding, he does so because all the courts do so, or because they all hold themselves duty-bound to do so (even though they do)... The rule of recognition constitutes a normative practice, but not a conventional practice.' in J. Raz, 'On the Authority and Interpretation of Constitutions: Some Preliminaries', in L. Alexander (ed.), Constitutionalism: Philosophical Foundations (Cambridge University Press, 1998), 161-2.
56. Hart, The Concept of Law, above n 5 at 254-9.
57. For Dworkin's criticisms, see R. M. Dworkin, 'Social Rules and Legal Theory' (1972) 81 Yale Law Journal, 855, section I reprinted as 'The Model of Rules II' in R. M. Dworkin, Taking Rights Seriously (Harvard University Press, 1977) at 46.
58. Hart, The Concept of Law, above n 5 at 255.
59. See also ibid at 55-7, 86-91, 101-10 for Hart's account of the theory.
60. Ibid at 256-7.
61. See Dworkin, 'Social Rules and Legal Theory', above n 46 at 862-3.
62. Ultimately, Dworkin claims that Hart's account fails even as an account of conventional social rules, ibid 863-8.
63. Hart, The Concept of Law, above n 5 at 254-9.
64. Dworkin, 'Social Rules and Legal Theory', above n 46 at 858-9 (emphasis in original, internal footnote omitted).
65. Ibid at 859.
66. In my view, the precise extent to which Hart did accept this criticism is not entirely clear from section 3 (i) of the 'Postscript'.
67. Joseph Raz also criticizes the practice theory of rules along similar lines to Dworkin, i.e. that it does not offer an explanation of how rules can be reasons for action, in Raz, Practical Reason and Norms above n 36 at 56-8.
68. Raz, however, does not believe that Hart intended to offer a conventionalist explanation of social rules in his original account of the practice theory (ibid at 57-8),
69. and does not believe that this is a promising route to go down in terms of providing a general explanation of the normativity of rules (ibid at 57).
70. Marmor, Positive Law and Objective Values, above n 2. The following discussion focuses on the first two chapters of this book.
71. Ibid at 5.
72. Ibid at 7-14.
73. For Lewis' original account, see D. Lewis, Convention: A Philosophical Study (Harvard University Press, 1969).
74. Marmor, Positive Law and Objective Values, above n 2 at 11.
75. Ibid at 7.
76. Ibid at 9-10.
77. Ibid at 13.
78. Ibid at 11-12.
79. Jules Coleman voices similar doubts about understanding the rule of recognition as a co-ordination convention in Coleman, The Practice of Principle, above n 1 at 94-5,
80. as does Scott Shapiro in Shapiro, 'Law, Plans, and Practical Reason', above n 4 at 387, sections I-III.
81. On the general issue of whether legal positivists need or should adopt a co-ordination conventionalist account of law, see Green, 'Positivism and Conventionalism', above n 3.
82. This point is not directly relevant to my discussion of Marmor's position, but see Marmor, Positive Law and Objective Values, above n 2 at 10-12, and 21 for further discussion of it.
83. Ibid at 12.
84. Ibid at 13-14.
85. Ibid at 13.
86. Ibid at 14-15.
87. Ibid at 14.
88. Ibid at 15.
89. Ibid at 14-17.
90. Ibid at 17-18.
91. Ibid at 18.
92. Ibid at 19.
93. Ibid at 19-21.
94. Ibid at Ch. 1, passim, but see especially 5 and 24.
95. Ibid at 5 (emphasis in original).
96. Ibid at 22.
97. Ibid at 22.
98. Ibid at 22 (emphasis in original).
99. Ibid at 19-21, discussed in section 5 above.
100. Ibid at 21.
101. See the discussion in section 2A, and Hart, The Concept of Law, above n 5 at 108.
102. Marmor, Positive Law and Objective Values, above n 2 at 26 (emphasis in original).
103. Ibid at 26-33 and 47-8.
104. Ibid at 26-7.
105. Ibid at 33.
106. See also ibid at 22.
107. Ibid at 22, 32-3.
108. Ibid at 32-3.
109. Hart, The Concept of Law, above n 5, see e.g. 107-8, 202-3, 239-44. See also discussion in section 2B above
110. I cannot defend these views here, but see J. Dickson, Evaluation anf Legal Theory (Hart Publishing, 2001), passim, but especially chapters 2, 3, 6 abd 7.
111. Marmor, Positive Law and Objective Values, above n 2 at 32.
112. Ibid at 47.
113. This is not to say, however, that the difference in terminology is insignificant. I return to this point briefly in the concluding section.
114. N.b. in Marmor's view his account of rules of recognition as constitutive conventions is also valuable in explaining other aspects of the rules of recognition which I have not focussed on here, such as the fact that rules of recognition are - in a certain sense arbitrary, i.e. that in a given jurisdiction an alternative rule could have emerged gu fulfilling the same needs and functions, and that thus the content of those rules is under-determined by the needs and reasons giving rise to them. Marmor's work on the character of constitutive conventions continues in A. Marmor, 'Deep Conventions' (forthcoming in Philosophy & Phenomenological Research
115. and A. Marmor, 'How Law is Like Chess' (forthcoming in Legal Theory.