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The Rule of Recognition – a Remedy for the External Uncertainty of Law?

Dr Urszula Anna Kosielińska-Grabowska

Pedagogical University of Cracow

English abstract: According to H.L.A. Hart, the rule of recognition is one of secondary rules that is supposed to be a remedy for the uncertainty of primary rules. In this paper we will try to answer the question: To what extent may this rule guarantee legal certainty? After discussing important differences between the concept of the rule of recognition and Kelsenian concept of the basic norm (Grundnorm), we will examine the role of the rule of recognition in the context of the problem of the external certainty of law. When analyzing its content, meaning and effects of using the criteria of validity contained in the rule of recognition, we discovered three types of uncertainty related to the rule of recognition: the substantive, interpretive and applicative one. Our considerations have led us to the conclusion that the rule of recognition, having as its aim the function of removing the uncertainties of law, is itself one of the sources of these uncertainties. It is difficult to consider it as a genuine effective remedy to the external uncertainty of law. The construction of the rule of recognition means that the degree of certainty which we obtain as a result of its application appears to be greater than in the case of “ordinary” primary rules within the system, yet we will never obtain a total external certainty of law unless we apply another theoretical construction.

Keywords: Herbert L. A. Hart, Hans Kelsen, Grundnorm, rule of recognition, External Uncertainty of Law

Language: English

Published: Number 1(4)/2012, pp. 23-33.

DOI: https://doi.org/10.36280/AFPiFS.2012.1.23

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Filed Under: Articles Tagged With: External Uncertainty of Law, Grundnorm, Hans Kelsen, Herbert L. A. Hart, rule of recognition

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Keywords

logical derivation law and conventional social facts human nature Constitution political crisis liquid modernity interpellation The Separation Thesis justification of interpretive claim the bar Artur Kozak Mateusz Zeifert Michał Barański małgorzata król Russian jurisprudence freedom of speech legal culture contra legem gap Roscoe Pound dogmatic anthropology impartiality judicial character cognitive linguistics arbitrariness instrumentalization of law extra legem gap cooperative morality Michał Sopiński beauty religious argumentation institutionalization of collective memory Bayes' theorem justification of punishment behavioural law & economics legal doxa Republican Party of Minnesota v. White rule of recognition dialogue analytical legal theory Dawid Bunikowski financial market nullum crimen sine lege realism discretion Maciej Próchnicki qualified legal assistance Herbert Hart Tomasz Bekrycht copyright Franciszek Strzyszkowski

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