Study On The Theory Of The Rule Of Recognition

Herbert.Lionel.Adolphus.Hart, as one of the greatest jurists in twentieth Century, published his masterpiece-- the Concept of Law in 1961, this book’s publishment represent the born of the new analytical positivist jurisprudence. The debates of Hart and Fuller, and Dworkin, and Kelsen in the twentieth Century are so famous as the legal development can not be ignored. In these debates, Hart and his new thought of legal positivism widely spread. In the legal system of Hart, his Rule of Law take the place of Austin’s the Commands of the Sovereign, so the law compose of primary rules and secondary rules, Hart put forward the famous theory Rule of law, The importance of rule of recognition as the core and foundation of the Rule of Law rule is self-evident. As the other rules of identification and its legitimacy, the rule of recognition not only provide a test standard, but also provides a theoretical support for the maintenance of the authority of the legal system. As the representative of the new natural law, Dworkin criticized Hart’s rule of recognition, and pointed out that the rule of recognition can not identify the legal principle which plays an important role in the law; the rule of recognition allows the judge discretion; the rule of recognition is not a social rule. Dworkin tried to subvert the new analytical positivist jurisprudence fundamentally, so he choose the core of Hart’s the Rule of Law-- the rule of recognition, as the object of the attack. In the revised edition of the Concept of Law, Hart made a comprehensive response to the criticism of Dworkin. In the debate with Dworkin, Hart made a compromise, admitted that his theory is a kind of inclusive legal positivism. Based on the position of inclusive legal positivism, Hart thinks that the rule of recognition can identify the principle of law which contains moral principles and other value judgment to become an part of the legal system, but before becoming law system, moral principles and other value judgment should be through the identification of he rule of recognition firstly. In this way, Hart not only maintain the core position of rule of recognition in his legal theory, but also insist the Separation thesis of legal positivism.If we want to understand the new analytical positivist jurisprudence of Hart, grasp the rule of recognition and the development of the rule of recognition comprehensively is a starting point. However, Hart did not give a specific meaning of the rule of recognition, the discussions about the rule of recognition are also relatively dispersed, coupled with the theory of recognition of rule is abstract, it becomes more difficult to understand or grasp the theory of rule of recognition.The writing of this paper intends to make Hart’s theory of the rule of recognition as a starting point, depend on the content the rule of recognition, and make both the debate of Hart and Dworkin who criticized Hart’s rule of recognition and Coleman’s development of rules of recognition, the main representative of the inclusive legal positivism,as the main content, in this way, I tried to show what is the rule of recognition and the results of the rule of recognition after constantly revised clearly.