Professor H.L.A. Hart’s theory of the rule of recognition, introduced in 1961, asserts that every legal system requires a rule of recognition to tell society what the law is. Though much scholarship has been dedicated to analyzing America’s theoretical rule of recognition, Hart’s theory has not yet been applied to the numerous actions and operations of America’s Executive Branch. The rule of recognition should be able to tell us which executive actions have the authority of law. Yet, when we try to make sense of various recent orders, memos, guidance documents, and letters emanating from the White House and administrative agencies, the rule of recognition falls short of its purpose.
This Note is the first to apply Hart’s theory to a sample of Executive Branch actions—including executive orders, “Dear Colleague” letters, and even Twitter—and derive lessons about Hart’s work from that application. By taking the rule of recognition out of the realm of theory and applying it to our modern reality, this Note raises important questions about our government and Hart’s theory. Is there something wrong with Executive Branch actions? Is there something wrong with Hart’s theory? Maybe it is failing to settle uncertainty as it was proffered to do. Or maybe this real-world application gives us reason to question Hart’s fundamental thesis. Addressing these questions will not only deepen our understanding of the law’s philosophical underpinnings but will also bolster our understanding of various government actions in the real world.
The Rule of Recognition and Presidential Power,
Nw. U. L. Rev.