Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

University of Pennsylvania Carey Law School

2009

Jurisprudence

Hart

Articles 1 - 1 of 1

Full-Text Articles in Law

Constitutional Theory And The Rule Of Recognition: Toward A Fourth Theory Of Law, Mitchell N. Berman Jan 2009

Constitutional Theory And The Rule Of Recognition: Toward A Fourth Theory Of Law, Mitchell N. Berman

All Faculty Scholarship

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" …