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    H.L.A. Hart's distinction between primary and secondary r... — Carmelics
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    Supports→Formalism cannot adequately distinguish constitutive from regulative rules because rules must be understood based on contextual use

    H.L.A. Hart's distinction between primary and secondary rules demonstrates that the legal force of any rule depends on a 'rule of recognition' grounded in social practice, not formal inscription.

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    Key Terms

    Formal inscription(contrasted with social practice as the source of legal authority)
    Rules that are officially written down or officially declared by some authority in a document or proclamation.
    H.L.A. Hart(as the originator of the mixed theory being discussed)
    A 20th-century British philosopher who wrote influential work on the philosophy of law and punishment, trying to find a middle ground between different theories about why we punish people.
    Legal force(what makes rules actually work)
    The binding power that makes a rule actually matter and gives people reasons to follow it, rather than just being a suggestion.
    Social practice(where habitus operates in real life)
    The actual day-to-day actions and behaviors that people do within society, as opposed to theory or ideas.

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    primary rules(e.g. laws against murder (Hart 1961))
    Rules that directly govern the behaviour of citizens.
    rule of recognition(Positivist clarification against Dworkin's diversity argument)
    A social rule that identifies source-based legal norms; positivists deny it is meant to identify all relevant reasons for legal decisions or to tell judges how to decide cases
    secondary rules(e.g. the legislative processes for enacting primary rules (Hart 1961))
    Rules that determine what the primary rules are.

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    Philosophy of Language1 linked

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    Formalism cannot adequately distinguish constitutive from regulative rules becau...

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