The Rule of Recognition and the Rule of Law: Departmentalism and Constitutional Development in the United States and the United Kingdom

As the ultimate rule of a legal system, a rule of recognition is sometimes viewed as the equivalent of a nation's constitution. Theoretically and operatively, however, constitutions and rules of recognition are not, and cannot be, the same thing. By employing departmentalism the theory that each branch of government has the authority to interpret its national constitution for itself as a challenge to the respective rules of recognition in the United States and the United Kingdom, this Article explores fundamental commitments of constitutionalism in both nations. More specifically, the Article challenges widespread assumptions and assertions about judicial supremacy in the United States and parliamentary sovereignty in the United Kingdom. In doing so, the Article clarifies errors made by prominent constitutional theorists and helps to explain the historical and theoretical development of Anglo-American rule of law values as these have been, and continue to be, identified by the rule(s) of recognition within and across these legal systems.