Hart's Rule of Recognition and the United States

Abstract. This essay explores the implications of H.L.A. Hart's rule of recognition for identifying ultimate standards of law in the United States. The effort reveals that these standards are much more complex than is commonly supposed. Not all of the federal constitution is part of the "ultimate" rule of recognition, and much else must be included in that rule. The analysis uncovers many possibilities for how ultimate standards relate to derivative standards that are omitted or barely hinted at in Hart's account. Some of these possibilities pose genuine difficulty for Hart's basic theory and help illuminate the relation of conventional and normative elements in an adequate account of law, a subject addressed in the final section of the essay.