Is the Rule of Recognition a Rule?
UVA Law Faculty Affiliations
Brian Simpson’s ‘The Common Law and Legal Theory’ has long been considered one of the classics of modern legal theory. And properly so. More than virtually any other contribution to jurisprudence, it squarely raises important questions about the tension between many versions of legal positivism and the actual and messy and substantially unbounded operation of the common law. Simpson plainly remained proud of this essay throughout his life, as is apparent from the way he mentions it in his Reflections on ‘The Concept of Law’, and from the fact that he continued to subscribe to its basic message for the almost forty years between its publication and his death.
More than the overwhelming bulk of post-Hart discussions of legal positivism, ‘The Common Law and Legal Theory’ calls into question the extent to which the rule of recognition, one of the centrepieces of the Hartian account of law, is best thought of in rule-like terms at all. It is easy, forty years after Simpson was writing, to think of his essay as targeting an impoverished caricature of legal positivism, but we must not forget that Simpson wrote it some number of years before the responses to Dworkin’s attack on positivism generated the arguably more sophisticated versions that are now more familiar. In 1972, when the essay presumably was written, the Austinian picture was still pervasive even at Oxford, The Concept of Law was only eleven years in print, and the writings of Philip Soper and David Lyons, writings that presaged what is now known as inclusive positivism, were five years in the future. A charitable and non-anachronistic reading of the 1972 Simpson, therefore, will forgive him for challenging a version of legal positivism that may not hold sway forty years on and will not fault him much for his failure to anticipate theoretical advances that were still some way off in the future. More importantly, a charitable reading will recognise that Simpson’s essay endures as a classic partly as a major contribution to understanding the nature of the common law, and partly because it forces us to consider the nature of the rule of recognition even within positivist theory. On this occasion, I will focus on the latter, and try to show why the questions that Simpson raised about the rule of recognition are questions that resonate still. Or, to put it differently, I will try to suggest that questions about the rule of recognition should be thought of not only in terms of whether it is a social rule, but also with respect to whether it is a social rule.