2 Of course, part of my assertion is that the rule of recognition is not sufficient to explain the empirical emergence of a legal system. Even if it could be argued that, according to a conception of a whole, a whole is a totality consisting of its elements, so that any systematic set of legal rules can be considered conceptually (as an abstraction) as a legal system, I also submit that the rule of recognition alone cannot be a constitutive rule of a legal system as a matter of conceptual truth. since it is a rule constituting a single party. elements of a total quantity (i.e. only primary legislation). Moreover, a question other than whether the recognition rule is a constituent rule of a legal system must indeed be taken into account because the existence of a recognition rule does not in itself constitute a legal system; In addition, the rules applicable under the recognition rule must be effective. And this opens the relationship between empirical and conceptual conceptions of a legal system. Many thanks to the anonymous reviewer and K. Himma for insisting on this. 27 The second question concerns the question why acceptance by officials is sufficient for the recognition rule to occur. What Hart argues is that although in ordinary society the rule of recognition can be accepted by both citizens and officials, in a complex modern state, “the reality of the situation is that a large proportion of ordinary citizens – perhaps a majority – have no general idea of the legal structure or its criteria for validity.”33 Since the complex modern state necessarily has a legal system, It is then sufficient that only civil servants accept the rule of recognition. However, this argument boils down to an intuitive assertion that is not supported by empirical evidence. Moreover, while it is true that the vast majority of ordinary citizens do not have a general idea of the structure of a legal system or its criteria for validity, it cannot be concluded that acceptance or, for example, some minimal acceptance by ordinary citizens is not required.
G. Lamond puts forward two arguments in support of the assertion that acceptance by public servants is sufficient for the recognition rule to occur. In modern legal systems, according to his first argument, the rule of recognition appears to be “a rule formed by the practices of public servants, since it is the rules identified by official practice that amount to legal rules”.34 His second argument states that “in contemporary systems, it seems that the opinions of non-public servants are not generally regarded as partially determining the criteria for recognition in these systems. The rule of recognition consists exclusively of the practices and beliefs of civil servants in these systems and are social rules of civil servants”.35 While the first argument is the logical error petitio principii, the second argument is still an intuitive assertion that is not supported by empirical evidence. Even if it were true that the opinions of non-staff members were not determinative of the validity criteria, the fact that the opinions of non-staff members are not normally regarded by staff members as partially determinative of those criteria cannot lead to the conclusion that the recognition rule consists exclusively of the practices and beliefs of staff members. On the other hand, the argument that emerges from the theory of artifacts of law is more conceptual. By collectively adopting the rules constituting a legal system and judicial officials, the community concerned imposes the function of status of “judicial officials” on a particular group and makes that group the authors of its legal system. Since officials are the authors of a legal system and their function of status includes the function of identifying rules as legal provisions and rules forming part of a system of rules, the practice and strong normative attitude of those to whom the function of status of official has been assigned by the Community concerned are sufficient to justify the rule of recognition. 23In this way, the Community concerned determines the `character` of its legal order by collectively recognising the rule constituting a legal order. However, this is only a first-level determination. The community concerned thus defines the general idea of its legal system, but does not yet create its instantiation.
For an instantiation of a legal system to occur, someone must concretize or implement the general idea (i.e. someone must ensure that conditions C of the constitutive rule of the legal system are given). Since the competent community empowers legal officials to identify, create, amend and enforce the law, it can be said that legal officials are the real authors of a particular instantiation or pledge of the legal system. And if judicial officials are indeed at the origin of a legal system collectively recognized by the community concerned as auxiliaries of justice (a function that implies the corresponding “deontic powers” of identification, creation, modification and application of the law), it is not wrong to assume that their practices are conceived by them as practices to fulfill their official role. The manifestation of their intention to do so is most evident in the fact that they view their patterns of behaviour as a rule – a rule (of recognition) which, according to Hart, forms the basis of a legal system.30 It can therefore be said that their intention is to create a legal system. The rule constituting a Community legal order thus creates the context in which the practice of court officers, as the author of a legal order leading to the rule of recognition and other secondary rules, may be understood as giving concrete expression to the expression or implementation of the general concept of the Community legal order and as defining the `character` of the legal order at the second level.