Study questions on Greenawalt

On 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:

1) 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.

4) 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 tolerable range.

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 acceptance.

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.

8) 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.