Adam Tucker

This article presents an account of the contours of Parliament’s law-making powers including an explanation of their limits and how those limits arise. The argument is based on HLA Hart’s claim that legal validity ultimately depends on the requirements of a social rule, the ultimate rule of recognition, that binds the officials of a legal system to enforce laws that conform to certain criteria. Section 2 outlines the way in which rules of recognition can be indeterminate and argues that the rule of recognition in the United Kingdom’s legal system is in fact indeterminate on the question of the scope of Parliament’s law-making power. Section 3 explores the effects of indeterminacy in the rule of recognition, arguing that indeterminate social rules develop according to rule users’ understanding of the point of the rule, and that the rule of recognition will therefore develop according to the judiciary’s understanding of the value or values served by the according law making power to Parliament

It is common to encounter the criticism that Joseph Raz’s service conception of authority is flawed because it appears to justify too much. This essay examines the extent to which the service conception accommodates this critique. Two variants of this critical strategy are considered. The first, exemplified by Kenneth Einar Himma, alleges that the service conception fails to conceptualize substantive limits on the legitimate exercise of authority. This variant fails; Raz has elucidated substantive limits on jurisdiction within the service conception of authority, albeit reluctantly and equivocally. The second, exemplified by Scott Hershovitz, alleges that the service conception fails to conceptualize procedural limits on the legitimate exercise of authority. He objects that the normal justification thesis fails to deny legitimacy to rational and expert dictators. This argument is more potent, but its force is concealed when it is aimed at the normal justification thesis rather than the quite separate jurisdictional limits of Raz’s theory. Clarifying those jurisdictional aspects of the service conception shows why the first argument fails and exposes the real strength of the second. Both variants have important consequences for our understanding of the service conception