Law and Recognition-- Towards a Relational Concept of Law

Authors

Ralf Michaels, Duke Law SchoolFollow

Document Type

Chapter of Book

Publication Date

2017

Abstract

Law is plural. In all but the simplest situations multiple laws overlap—national laws, subnational laws, supranational laws, non-national laws.

Our jurisprudential accounts of law have mostly not taken this in. When we speak of law, we use the singular. The plurality of laws is, at best an afterthought. This is a mistake. Plurality is built into the very reality of law.

This chapter cannot yet provide this concept; it can serve only develop one element. That element is recognition. Recognition is amply discussed in the context of Hart’s rule of recognition, but this overlooks that recognition matters elsewhere, too. My suggestion is that we should accept not one but two rules of recognition in the concept of law. One, well-known, is the rule of internal recognition as developed by H.L.A. Hart—the idea that a developed legal system requires its recognition as law by its officials. The other, much ignored but equally important, is the rule of external recognition—the idea that law is law insofar as it is recognized externally by other legal systems. The rule of internal recognition is an example of a secondary rule. The rule of external recognition is of a different type. It is a tertiary rule. Hart suggested that a legal system is not complete unless it has, in addition to primary, also secondary rules. My suggestion is that, under conditions of legal pluralism, a legal system is not complete without such tertiary rules.

Citation

Ralf Michaels, Law and Recognition-- Towards a Relational Concept of Law, in In Pursuit of Pluralist Jurisprudence 90-115 (Nicole Roughan & Andrew Halpin eds., 2017)