Study questions on Greenawalt
p. 661-2 Greenwalt helpfully spells out ten ways that his investigation
of the rule if recognition of the American legal system reveals
possibilities that are omitted or undeveloped in Hart's theory. With
respect to the following, be familiar with Greenawalt's arguments:
The first possibility is that not only may a rule of recognition have
gaps (a point Hart does emphasize), but there may also be deep
uncertainty for someone tracing the legal status of a norm as to when
one ascends above the authority of the last relevant higher legal norm
and reaches the relevance of acceptance. Particularly when it has long
been assumed that a higher norm does confer legal status on an
important norm like a constitutional amendment, one may not know
whether conformity with the higher norm remains crucial to the validity
of the other norm.
2) The second possibility, closely related to
the first, is that over time in a perfectly stable legal order the
point of ultimacy may shift radically, despite the absence of any clear
change at any particular stage. What was once law because adopted
by a certain process may now be law because it has been so long
accepted as law.
3) The third possibility, tied to the previous
two, is that a system may be stable even if officials occupying the
same position, say Supreme Court Justices, have variant notions of the
point of ultimacy for the authority of some legal standards.
The fourth possibility is that differences in role may sharply affect
what ultimate rules of recognition officials actually use. The working
rule of recognition for highest court judges may look very different
from the working rule of recognition for a police sergeant even when
those working rules are fully compatible.
5) The fifth
possibility is that some standards for what counts as law may be
inextricable from what has been proposed as law under these standards.
The point is clearest with respect to the original Constitution and a
rule that what is adopted under the ratification clause is law, or a
rule that what the Constitution contains is law; but it is also
possible that other officials accept the results of judges'
interpretive strategies only because they fall within a widely
6) The sixth possibility is that as to some
standards for authoritative norms, such as state constitutions,
negative constraints on what they may provide come from one kind of
higher norm, the federal Constitution, while positive endorsement of
their status comes from either another higher norm, such as a prior
procedure within the state for adopting a constitution, or from
7) The ninth possibility is that the ultimate rule
of recognition may be very long. If judges largely agree on correct
interpretive standards but do not agree on a principle that prevailing
standards should be followed, a noncircular statement of the ultimate
rule may require specification of all relevant accepted standards.
The tenth possibility is that the supreme criterion of law need
not be a part of the ultimate rule of recognition; rather it may
be derived from that rule.