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Legality's BordersAn Essay in General Jurisprudence$
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Keith Culver and Michael Giudice

Print publication date: 2010

Print ISBN-13: 9780195370751

Published to Oxford Scholarship Online: May 2010

DOI: 10.1093/acprof:oso/9780195370751.001.0001

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Legal officials, the rule of recognition, and international law

Legal officials, the rule of recognition, and international law

Chapter:
(p.1) 1 LEGAL OFFICIALS, THE RULE OF RECOGNITION, AND INTERNATIONAL LAW
Source:
Legality's Borders
Author(s):

KEITH CULVER

MICHAEL GIUDICE

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780195370751.003.001

This chapter analyzes the limits to Hart's account of an official-operated rule of recognition as an account of the existence and borders of legal systems. The argument is developed via assessment of the success of the account's solutions to problems of circularity and indeterminacy in the identification of a distinct class of legal officials whose practices constitute the rule of recognition. It is shown that while the problem of circularity may have been adequately addressed in explanation of state legal systems, its solutions leave intact the problem of indeterminacy and reveal a strong presumption of hierarchy which threatens to run past rather than solve issues at the borders of legality. This is true in explanation of state legal systems, but the difficulties are particularly troubling in explanation of international law, as analysis of Hart's view of international law makes plain.

Keywords:   legal officials, rule of recognition, international law, Hart, circularity, indeterminacy, hierarchy, Kelsen, legal system

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