William and Mary Law School

An Excerpt from Kelsen, Quietism, and the Rule of Recognition

An Excerpt from Professor Green’s article, "Kelsen, Quietism, and the Rule of Recognition," is reprinted below. The article is forthcoming in a volume from Oxford University Press. For the full article, please click here.

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Abstract:
Sometimes the fact that something is the law can be justified by the law. For example, the Sarbanes-Oxley Act is the law because it was enacted by Congress pursuant to the Commerce Clause. But eventually legal justification of law ends. The ultimate criteria of validity in a legal system cannot themselves be justified by law. According to H.L.A. Hart, justification of these ultimate criteria is still available, by reference to social facts concerning official acceptance – facts about what Hart calls the “rule of recognition” for the system.

Drawing upon criticisms of sociological accounts of the law that can be found in the writings of Hans Kelsen, I argue in this essay that Hart’s approach cannot account for statements about the law that assert the independence of legal validity from rule of recognition facts. I offer as an alternative a legal quietist approach, which can account for such statements. For the quietist, legal justification exhausts the possible justification for law. If our judgments about the law are fundamental, in the sense that they cannot be justified by other judgments about the law, then they have no justification (which is not to say that they should be abandoned). I argue that legal quietism is exemplified – if somewhat imperfectly – in Kelsen’s writings, and I end the essay by exploring some difficulties that the quietist approach must face.

Introduction:
Consider 17 C.F.R. § 205.3(b)(1), a regulation that requires attorneys practicing before the Securities and Exchange Commission to report evidence of material securities violations. Why is it the law? The reason is another law, namely section 307 of the Sarbanes-Oxley Act,2 which authorized the Commission to establish minimum standards of professional conduct for attorneys practicing before it. Since the regulation was enacted by the Commission pursuant to the authorization in the Sarbanes-Oxley Act, it is the law.

But why is the Sarbanes-Oxley Act law? Here too the reason is another law. Congress was authorized under the Commerce Clause of the U.S. Constitution to “regulate Commerce … among the several States,” and Sarbanes-Oxley was enacted by Congress pursuant to that authorization. But why is the Commerce Clause law? Is the reason, once again, another law, namely Article VII?5 Is the Commerce Clause law because Article VII authorized any nine of the original thirteen states to ratify the Constitution (including the Commerce Clause), and the Constitution was indeed ratified pursuant to that authorization? Kent Greenawalt has argued that Article VII cannot be the reason that the Constitution is law.

“[N]o judge or other official,” he observes, “would presently be likely to countenance a legal argument that an original state purportedly bound to comply with the Constitution had not ratified it properly.” The Constitution’s status as law is established, not by law, but by a social fact, namely “its continued acceptance.”

As we shall later see, I think Greenawalt is wrong about Article VII. It plays a meaningful role in validating the Constitution in our legal system. But setting that issue aside for the moment, Greenawalt’s argument provides a nice illustration of the application of Hart’s idea of a rule of recognition to questions of constitutional law.

According to Hart, in every legal system officials use criteria to identify which norms are the laws of that system and so may be backed up by official power. Some criteria for law can themselves be identified as law by more fundamental criteria. For example, the Sarbanes-Oxley Act is identifiable as law because it was promulgated by Congress in accordance with the Commerce Clause. But eventually ultimate criteria are reached. These are the rule of recognition for the system, and their use to identify the laws of the system is justified, not by law, but by the social fact of official acceptance.

In this paper I will contrast Hart’s approach with legal quietism. For Hart, when justification of law by law runs out, justification is still available, by reference to social facts. For the quietist, legal justification exhausts the possible justification for law. If our judgments about the law are fundamental, in the sense that they cannot be justified by other judgments about the law, then they have no justification (which is not to say that they should be abandoned). There is, one might say, no legal epistemology – no possible account of why our fundamental legal judgments are justified.

My goal is not to show that legal quietism is correct. It is the more modest one of mapping the differences between a quietist approach and Hart’s and showing their consequences for fundamental questions of constitutional law. I also hope to inspire appreciation for, if not agreement with, Hans Kelsen’s legal theory, for I believe that legal quietism is exemplified – if somewhat imperfectly – in Kelsen’s writings.
I will begin by describing the role that social facts play in justifying legal judgments for Hart. I’ll then argue that such justification distorts our judgments about the law. Next I’ll offer Kelsen’s quietist legal theory as an alternative and I’ll end by exploring some difficulties that the quietist approach must face.