The Role of H. L. A. Hart’s «Rule of Recognition» in Contemporary Anglo-American Legal Positivism

The article explores the role of the theory of «rules of recognition» by Oxford professor H.L.A. Hart in the contemporary theory of Anglo-American legal positivism, introduced by him in his central work «The Concept of Law» (1961), which has a significant influence on contemporary legal theory and philosophy. The authors reveal the content and meaning of the concept of «rules of recognition» as part of the secondary rules – «rules about rules» or «procedural rules» which determine the criteria for the validity of law along with the «rules of change» and the «rules of adjudication» in H.L.A. Hart’s terminology. The authors demonstrate the correlation with the «Grundnorm» of German legal philosophter H. Kelsen, which is more common in the Ukrainian legal theory, and which justifies the existence of constitutional norms as fundamental ones which determine the recognition of law by society and its individuals. The authors analyze the main positions of H.L.A. Hart’s followers – J. Raz, M. Kramer, B. Bix, S. Shapiro and others – regarding this theory and highlights the criticism of its individual provisions. The authors highlight how H.L.A. Hart tried to explain by the «rules of recognition» how law at the fundamental level is a matter of social convention (agreement between people inside the inhabited society), defending one of the components of legal positivism – the thesis of social fact (social sources of law thesis). The authors examine the interdependence between law and coercion by the State, the role of social practice in society’s subordination to law, the role of moral norms in the formation of law, in particular, the «rule of recognition», the correlation between the concepts of «rule of recognition» and «legal validity», and the problem of law enforcement by judges and governmental officials of the «rule of recognition». The authors summarize how H.L.A. Hart eliminates morality from the content of law in motivating judges and governmental officials to apply the rules of law, clarifies the position of legal positivism on the issue of the grounds for society’s submission to law, and demonstrates how the «empirical» theory of recognition prevails over the «analytical» theory, using R. Alexy terminology.