Work in Progress
I’m currently working on an article titled “Customary Law and the Limits of the Rule of Recognition”. The paper addresses the customary foundations of legal systems and the various ways in which the law can make customs into legal norms.
Here’s the abstract:
The article offers a novel philosophical account of the various ways in which customary rules may transition into the law, and examines the conditions and limits of the most prominent way of accounting for this transition in Hartian terms: through the rule of recognition. In doing so, it engages with key debates in the literature on customary law and the rule of recognition. The article considers whether customary law can exist prior to an official declaration through positive law, and distinguishes between a custom’s believed and reputed legal existence, as well as between pure and hybrid forms of customary law—proposing a test to differentiate them. It then clarifies Hart’s views on the legal status of the rule of recognition and considers the case for treating this rule as a legal one. It argues that there are good reasons for scepticism and that the rule is better understood as a bare customary (social) rule that enables non-delegated legal authority.
Sebastian Lewis 