This essay, a contribution to a forthcoming edited volume on Hart's rule of recognition and the U.S. Constitution, advances one argument and pitches one proposal. The argument is that Hart's theory of law does not succeed. On Hart's account, legal propositions are what they are - that is, they have the particular content and status that they do - by virtue of their satisfying necessary and sufficient conditions that are themselves established by a special sort of convergent practice among officials. American constitutional theorists are often troubled by this account because it seems to imply that in the "hard cases" in which practice-legitimated modalities of constitutional argument conflict, there is no law (or, put more precisely, such law as exists is much too general to resolve disputes), leaving judges with the extra-legal or political task of crafting more determinate law. Vindicating constitutional theorists' disquiet with the dichotomous law/not-law picture that emerges from the Hartian account, I argue that law cannot be validated by practice-determined criteria in the way that Hart proposes.
If my argument is sound, and therefore Hart's account is not, it remains to determine what the correct theory of law is. My proposal is to view law as an argumentative practice. Of course, put so generally, this notion will hardly be controversial: no contemporary jurisprudential theories are likely to deny tout court that law incorporates a dimension of practice or that it involves argument. It is beyond the ambition of this essay to fully articulate, let alone to successfully defend, a distinctive practice-based theory of law. But, drawing on recent work by Gerald Postema, it endeavors to say enough to escape vacuity, to distinguish my argumentative account from Dworkin's, and to nourish hope that the image dimly glimpsed can be realized.
Hart, Rule of Recognition, positivism, constitutional theory, law as practice
Berman, Mitchell N., "Constitutional Theory and the Rule of Recognition: Toward a Fourth Theory of Law" (2009). Faculty Scholarship at Penn Law. 2345.