Rule of Recognition vs. Grundnorm

Rule of Recognition vs. Grundnorm

Introduction

According to Herbert Hart, the rule of recognition is merely a rule however; rules classified into two separate parts that are primary and secondary. The rule of recognition is followed under the secondary classification. It specifies that events must occur to the original rule, which could be seen as binding. These events make it important that the primary rule is the rule of law, however it is not. It also serves to determine whether a primary rule is the product of an entity equipped with legislative powers or anything else. In other words, it allows determining whether the standard is valid or not. Hart argued that the law should be recognized by society. It is recognition of the interior of every citizen. It is used by individuals is tantamount to its recognition. This is not necessarily linked to morality. Not every law is a moral force, and although it is recognized by society.

If one accepts this concept of privacy, it should be applied to contemporary constitutionalism distinction similar to English law that operates between the King and the Crown: the constitution has in itself no value, if the principle government by the Constitution is not itself recognized by the subjects. Just as the Crown may be regarded as formalization, somewhat fetish collective recognition of the sovereign, as the basic norm of Kelsen understood it as an attempt to capture the idea of constitution as it is collectively recognized by the subjects of the state. In this context, the question of obedience and punishment is not far from it, the only relevant question can disobey the rule without disavowing the authority of one who enacts, and a simple tax evader cannot be considered as a rebel. Conversely, one can obey the state without recognizing as legitimate, the French right, for example, refused to recognize the Republic since the crisis of 16 May to the Sacred Union of 1914, without disobeying the laws. Negligible at the scale of the individual, these phenomena disallow utmost importance at the political level because what is at stake then is the recognition of the majority by the minority, that is to say, the existence even of a political community.

Discussion

This community is largely fictional, as the minority does not recognize itself obliged by the majority decision. There is nothing that allows the majority to speak for the entire people, despite the claims of all constitutions that call themselves democratic principle. Furthermore, in such a situation, the constitution will only have value as a mere pretense of a majority, much the same way as during the English Civil War and the constitutional fiction will become reality when the minority has fully recognized the majority as legitimate. Only such recognition will actually prevail in political community whose existence is only postulated by the constitution.

In this perspective, the recognition and disavowal are the true objects of political rights, more than obedience and punishment, which are in ...