Unveiling the Rule of Recognition in Thai Society: A Comparative Analysis and Contextual Examination

Abstract

This study explores H.L.A. Hart's concept of the rule of recognition and its application in the legal systems of compact communities and contemporary societies. Hart argues that societal control relies on collective adherence to primary rules of obligation within close-knit communities. However, as societies grow larger, uncertainties regarding the nature and application of rules emerge. Hart proposes the secondary ‘rule of recognition’, which determines valid and binding rules. The rule of recognition can take various forms and is identified by actors such as courts, officials, and individuals. In modern legal frameworks, it encompasses the entire spectrum of legal sources. Understanding the rule of recognition is crucial to comprehending how legal norms acquire authoritative status, particularly in Thailand's legal environment.

However, there are gaps and criticisms to consider. This study examines three other scholars' interpretations of the rule of recognition: Adam Perry, Sylvie Delacroix, and Adam Tucker. Perry argues that relying solely on social acceptance may limit the stability and consistency of the rule of recognition. Delacroix emphasises the need to account for informal practices and customs in addition to formal legislation. In the Thai context, the rule of recognition faces challenges in aligning with legislative power and accommodating cultural specificities. These criticisms underscore the need for a more comprehensive and contextually sensitive understanding of the rule of recognition, incorporating norms, informal practices, and evolving social acceptance.

In conclusion, Hart's rule of recognition provides a valuable framework, but its practical application reveals gaps and limitations. Insights from scholars such as Perry, Delacroix, and Tucker highlight the importance of considering social habits, informal practices, cultural specificities, and the interplay with parliamentary legislative power. Addressing these gaps will contribute to a more comprehensive understanding of the rule of recognition, enhancing its relevance in contemporary legal systems, and in the context of Thailand.