This Book Review Note reviews The Rule of Recognition and the U.S. Constitution, edited by Matthew Adler and Kenneth Einar Himma.

This review focuses on two of the book’s chapters: Mitchell Berman’s Constitutional Theory and the Rule of Recognition: Toward a Fourth Theory of Law and Matthew Adler’s Social Facts, Constitutional Interpretation, and the Rule of Recognition.  Both of these pieces find flaws in Hart’s legal positivism—they claim that the rule of recognition framework cannot account for features of U.S. constitutional theory.  This Note argues that the Hartian positivist can respond to both Berman’s and Adler’s complaints about the Hartian rule of recognition framework.  However, the reviewer concludes that there is a common lesson to be learned in Berman’s and Adler’s challenges: the rule of recognition framework accommodates more analogical and inductive reasoning than Berman and Adler recognize, and understanding this may show that Hartian positivism is more broadly applicable as a theory of general jurisprudence than it is credited for.