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The Illuminati Problem, Rules of Recognition, and What Distinguishes Law from Non-law?

Barczentewicz, Mikolaj (2018) The Illuminati Problem, Rules of Recognition, and What Distinguishes Law from Non-law? Oxford Journal of Legal Studies.

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Abstract

How to distinguish law from non-legal but systematic and ruleguided practices of legal officials? This issue features prominently in the debate on ‘positive originalism’ in US constitutional law, and in similar fundamental controversies in other legal orders. I take it as a question about content and constitution of ultimate rules of recognition. Legal philosophers have been too quick in dealing with this problem. I argue that there is more space to claim that non-officials have a constitutive relationship with the content of the law, thus potentially providing a standard to distinguish legal and non-legal practices of officials. However, to the extent officials play a constitutive role in the law, what matters is their genuine acceptance of ultimate rules of recognition. To show this, I develop the concept of ACCEPTANCE of a social rule by specifying the requirement of genuineness of acceptance and the role of mental dispositions associated with acceptance.

Item Type: Article
Divisions : Faculty of Arts and Social Sciences > School of Law
Authors :
NameEmailORCID
Barczentewicz, Mikolajm.barczentewicz@surrey.ac.uk
Date : 2018
Copyright Disclaimer : This is a pre-copyedited, author-produced version of an article accepted for publication in Oxford Journal of Legal Studiesfollowing peer review. The version of record will be available online at: https://academic.oup.com/ojls
Depositing User : Melanie Hughes
Date Deposited : 20 Mar 2018 13:17
Last Modified : 20 Mar 2018 13:17
URI: http://epubs.surrey.ac.uk/id/eprint/846054

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