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The Rule of Recognition and the U.S. Constitution$
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Matthew Adler and Kenneth Einar Himma

Print publication date: 2009

Print ISBN-13: 9780195343298

Published to Oxford Scholarship Online: September 2009

DOI: 10.1093/acprof:oso/9780195343298.001.0001

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2. Precedent-Based Constitutional Adjudication, Acceptance, and the Rule of Recognition

2. Precedent-Based Constitutional Adjudication, Acceptance, and the Rule of Recognition

Chapter:
(p.47) 2. PRECEDENT-BASED CONSTITUTIONAL ADJUDICATION, ACCEPTANCE, AND THE RULE OF RECOGNITION
Source:
The Rule of Recognition and the U.S. Constitution
Author(s):

RICHARD H. FALLON

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780195343298.003.0002

This chapter responds to claims that the Supreme Court behaves lawlessly whenever it follows erroneous past decisions, by invoking and applying H. L. A. Hart's famous assertions that the ultimate foundation for all legal claims lies in a “rule of recognition” and that the rule of recognition owes its status to “acceptance.” It is argued that Article VI and other provisions of the written Constitution do not exhaust the pertinent American rule or practice of recognition; accepted rules or practices of recognition accord judicial precedent a sometimes authoritative status. In developing this argument, the chapter explores whether Hart's account requires adaptation to provide an adequate explanation of American constitutional practice—which is famously argumentative and not obviously rule-bound—and, if so, what forms the adjustments ought to take. The ultimate goal is to use Hartian positivist theory to illuminate American constitutional adjudication, and especially the role of precedent within it, while deploying American constitutional practice as a prism through which to examine some of Hart's ideas.

Keywords:   Supreme Court, acceptance, H. L. A. Hart, rules of recognition, constitutional adjudication, U.S. law

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