Power-Conferring Laws and the Rule of Recognition

As every reader of THE CONCEPT OF LAW is aware, H.L.A. Hart severely criticized John Austin for failing to take account of the operativeness of power-conferring laws in legal systems. Given the trenchancy of Hart’s animadversions on Austin’s disregard of power-conferring norms, it is surprising that Hart himself omitted to take account of such norms at some key junctures in his theorizing. Quite a few examples of his neglect of power-conferring norms could be adduced here, but –- to keep this paper within the prescribed word limit –- I will confine myself to one especially important instance. After doing so, I will explore how the power-conferring aspect of the Hartian Rule of Recognition has been denied or obscured by many present-day legal philosophers. Though the Rule of Recognition does impose duties, it also confers powers; it authorizes as well as obligates legal-governmental officials to ascertain the law of their jurisdiction in accordance with certain prescribed criteria. In the final few sections of this paper, I will maintain that some recent objections to Hart’s conception of the Rule of Recognition are misconceived precisely because they disregard the hybrid character of the Rule of Recognition as both duty-imposing and power-conferring. This paper has been written for an Oxford symposium on the work of John Gardner. As my citations will suggest, some of the arguments advanced in this paper align me with positions taken by Gardner, whereas other arguments herein are opposed to Gardner’s stances.Non