The Inescapability of Law and the Duty of the Rule of Recognition

Fernando Campos

Ludwig-Maximilians-Universität München

H.L.A. Hart’s contribution to legal theory centers on a social-practice conception of law, structured through the interplay of primary and secondary rules. A legal system governed solely by primary rules suffers from uncertainty and rigidity, necessitating secondary rules that confer powers to legislate, adjudicate, and recognize valid law. Hart’s rule of recognition, the foundational secondary rule, establishes the criteria by which valid laws are identified, modified, and applied. While Hart did not resolve whether this rule generates genuine duties, this analysis affirms that it does: legal officials are bound by a duty to use it as their exclusive standard of legal validity. This duty, though not legal in origin, arises from a collective internal perspective, whereby officials accept and apply the rule as normatively binding. The rule of recognition is unique among these in that it does not derive authority from higher norms, but from sustained official acceptance. Its normative force rests on its practical indispensability and on the criticism of deviation from its terms. Even in complex systems, most legal rules trace their validity to constitutional norms whose authority flows from recognition practices. The inescapability of law follows: once such a system is established, legal officials cannot refuse its criteria without threatening the system’s existent. As a social practice, the rule of recognition is neither imposed externally nor reducible to observable behavior. It depends on a shared internal point of view that treats legal criteria not as mere conventions, but as standards subject to interpretation, disagreement, and principled critique. Ultimately, the rule of recognition expresses a community’s duty-bound acceptance, through which the legal system is constituted and sustained. Though subject to dispute, this remains the best characterization of Hart’s account of law.

Chair: Robin Waldenburg

Time: 05 September, 14:40 – 15:10

Location: SR 1.004