Archiwum
Filozofii Prawa
i Filozofii Społecznej

Journal of the Polish Section of IVR (ISSN:2082-3304)

IVR

A Prequel to Hart’s ‘Postscript’ – the Missing Link in the Hart-Dworkin Debate

Dr hab. Andrzej Grabowski

Jagiellonian University

English abstract: In his translator’s note to the H.L.A Hart’s paper New Challenge to Legal Positivism, Andrzej Grabowski describes the historical details of Hart’s Madrid lecture and the changes of the original Spanish text, introduced in the translation. He argues that Hart’s paper can be regarded as the prequel to the ‘Postscript’ from 1994, since the lecture deals with the criticism of Dworkin against the Hartian version of legal positivism and some important parts of them (from Section II) were in extenso included in the ‘Postscript’. The translator also emphasises the importance of Hart’s lecture as a text-source of information, which can be used in the contemporary debate on the inclusive legal positivism and for the critical reconstruction of Hart’s theoretical position.

Keywords: Herbert L. A. Hart, Ronald Dworkin, legal positivism, Hart-Dworkin debate

Language: Polish

Published: Numer 2(9)/2014, pp. 21-25

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Number of downloads: 153

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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Number of downloads: 528