Contemporary philosophy of law and the problem of the rule of recognition
This project examines the answers that several theories in contemporary philosophy of law give to questions about the foundational existence conditions for law. While all contemporary theories of law agree that human agency serves as a foundational existence condition for law, reaching a consensus has proven challenging about two related issues: first, whether human agency is one among many foundational existence conditions or is the one and only foundational existence condition for law and, second, how the form of human agency that lies as the foundation of law should be theorized. Legal theories in the legal positivist tradition can be distinguished from legal theories in other jurisprudential traditions by the claim that human agency can be the one and only foundational existence condition for law. Several contemporary legal positivist accounts of law have attempted an answer to these questions about the foundational existence conditions for law. This project will examine three of these accounts in order to determine if a useful defense of one of the distinctive and central claims of legal positivism can be mounted. Specifically, this project will examine the highly influential accounts of the foundational existence conditions for law advanced by H. L. A. Hart, Gerald Postema, and Scott Shapiro. This project will argue for two hypotheses and one suggestion: first, the strong (and positive) hypothesis that the three accounts of the fundamental existence conditions for law do provide a reasonable descriptive account of these conditions; second, the strong (and negative) hypothesis that these three accounts do not provide a sufficiently robust account of why it is that legal officials are bound by an obligation—from any of several possible sources—to conform to the critical standards of their profession; and third, the weak (and positive) suggestion that the attempt to demonstrate the bridge between a social fact and an obligation-imposing social norm is misguided. While this project is not likely to resolve the issue of what law is and what it requires, it may nevertheless prove helpful as an incremental step towards the issue’s eventual resolution.
Berry-Whitlock, Sterling, "Contemporary philosophy of law and the problem of the rule of recognition" (2012). ETD Collection for Fordham University. AAI3560058.