On Normativity Of The Rule Of Recognition

The rule of recognition is firstly claimed in Hart’s book the concept of law as the foundation of legal system, which is not only a key link to understanding Hart’s legal thoughts but also a core proposition investigated by legal positivism. It is worth noting that we should get a comprehensive understanding of the rule of recognition itself before discussing. Based on figuring out what the specific meaning of Hart’s recognition rule is, we can conclude that theoretical issues can be solved by the rule of recognition through exploring varieties of background resources. I am of opinion that the rule of recognition is not explained by Hart very clearly and completely. To a great extent, Hart’s recognition rule, which is normally perceived as a standard of validity, could not resolve the problem of normativity, resulting in a fierce criticism on the rule model by Dworkin and so on.The theoretical status of the recognition rule is crucial to the theories of Hart and legal positivism. Taking the normativity into consideration is, namely, to acquire the normative answer of the law itself. I think that the rule of recognition has several aspects, so its normativity can be present in different ways. Although the internal point of view plays an important role in the process of recognizing it by social members, it cannot be regarded as the final source of normativity; otherwise the separation thesis will not be maintained. With the analysis of various normativities, we find it necessary to fasten the theory foundation of legal positivism with recognizing its normativity. In comparison with three representative solutions, we can redefine the social and practical meanings of the recognition rule and social rules can become the foundation of achieving recognition rule’s self-justification. In the light of fact presented above, it can prove that the recognition rule manages to resolve normative issues rising from social facts to social rules. On the background of legal positivism, there is only one way to divert the recognition rule from "fact" to "should be" in other words, only by self-justification of normativity can legal positivism provide a reasonable interpretation for the rule of recognition and ensure the internal cohesion of theory of legal positivism as well.Aiming at getting a better understanding of Hart’s legal thoughts, i want to clarify various theoretical controversies surrounding with the rule of recognition by analyzing closely and discovering deeply. Another point should be mentioned is that the rule of recognition is not pure outcomes of theory construction, which has been emphasized by Hart from descriptive sociology standing, so it not only has a crucial theory meaning but a greatly practical meaning. In China, "what the NPC passes is the law" may nearly be regarded as the ultimate rule of recognition. All in all, it is no denying that getting comprehensive understanding of the rule of recognition from practical standpoint would benefit us in reflecting on the condition of today’s legal system.