What Is the Rule of Recognition in the United States?

• Published in: University of Pennsylvania law review 2009-04, Vol.157 (4), p.1161-1197
• Main Author: Carey, Stephen V.
• Format: Article
• Language: English
• Subjects: Comments; Constitutions; Criminal justice; Criminal law; Empiricism; Evaluation; Hart, Herbert Lionel Adolphus (1907-92); Himma, Kenneth Einar; Judges; Jurisprudence; Kramer, Mathew; Laws, regulations and rules; Legal systems; Moral principles; Morality; Positivism; Recognition (International law); Rule of law; Rules; Statutory interpretation; United States constitutional law
• ISSN: 0041-9907; 1942-8537

A few theorists have attempted to formulate such a rule of recognition for the US. Here, Carey criticizes those previous accounts, ultimately building upon on them to suggest a plausible American rule of recognition. He focuses on H. L. A. Hart's theory, Ronald Dworkin's criticism, and the response to that criticism by the so-called "soft" or "inclusive" positivist. He documents and evaluates previous attempts to provide a rule of recognition in the US, beginning with the work of Kent Greenawalt and then moving to the more recent debate between Kenneth Einar Himma and Mathew Kramer. Finally, he presents his own account of rule of recognition in the US, and argues that an inclusive-positivist rule of recognition can be created for the legal system, but only if certain controversial empirical assumptions about the nature of law in the US are correct. Through the process of developing this rule, he uncovers some of the deficiencies in Hart's account of the nature of law and presents some possible solutions to the problems that these deficiencies present. Furthermore, he explores how certain theories of American constitutional law--most importantly, theories involving some form of popular constitutionalism--may prove to be in compatible with a plausible positivist theory of law for the US.