Charles J. Reid Jr. (University of St. Thomas School of Law (Minnesota)) has posted Sovereignty and Belief: Thoughts on H.L.A. Hart, the Rule of Recognition, and the Crisis in Iraq (Judicial Service Association Journal (2014 Forthcoming)) on SSRN. Here is the abstract:
This paper has two principal concerns. The first is a close look at H.L.A. Hart’s Rule of Recognition and the notion of “acceptance” upon which it is premised. Hart argues, rightly I think, that the Rule of Recognition must be either accepted or rejected. It cannot be criticized or otherwise found wanting on the basis of other laws. On the other, he leaves the question of “why we accept” the Rule of Recognition unclear. I propose that the Rule of Recognition is either accepted or rejected on the basis of shared belief in the rightness of its values. The second section paper considers this thesis in relationship to several societies, historical and contemporary. I look to the role filled by state religion in ancient Rome; by the “Ancient Constitution” in early modern Britain; and the American system and the ways in which the Declaration of Independence’s values have come to shape America’s “propositional” or “creedal” democracy. I close with an analysis of the question, why has Iraq fragmented? And there I propose that central to the failure of the Iraqi project is a breakdown in shared values. The three main contending parties – Sunnis, Shiites, and Kurds – no longer share faith in a unified Iraqi state. And without a shared system of values, without a coherent belief system, efforts at unified sovereignty fail.