The Invisible Constitution in Comparative Perspective

Language and Legal Determinacy (1993), reprinted in Dennis Paterson Wittgenstein and Law 

(Ashgate, 2004). However, if one doubts that the relationship between the rule of recognition 

and rules of legal inference might resemble the relationship between logical terminology and 

logical rules of inference that is posited by the conventionalist tradition, it is not clear what 

other resources the Hartian has to draw upon to account for the content of the rules of legal 

inference, and their validation. Rather, the alternative seems to be to adopt the ‘thin’ picture.

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The Centrality and Diversity of the Invisible Constitution 

159

This conclusion may seem commonplace or even trivial, because already 

well-established by scholarship on comparative law and legal cultures. It may 

nevertheless be of interest to see how a relatively mainstream analytic juris-

prudential approach to the study of constitutional orders leads to the same 

conclusion.

5.4.  ‘Thin’ Validation and Invisibility

The ‘thick’ picture of validation discussed in the previous section is distin-

guished by the claim that even unexpressed laws – that is to say, laws not 

expressly or self-evidently stated by an authoritative source – must be validated 

by the rule of recognition. The ‘thin’ picture, by contrast, extends the demand 

for validation only to the authoritative sources themselves. When it comes to 

working out the laws that are stated by or follow from these sources, on the 

other hand,

such argumentation does not itself require a rule of recognition to operate 

recursively upon its results. All it requires is a way of identifying the texts 

around which casuistry and interpretive argumentation will revolve.

33

On the ‘thin’ picture, identifying the content of the law – including the con-

tent of the constitution and the other legal content that follows from it – will 

depend upon particularities of acceptable method. We can therefore expect 

that different legal cultures, with differing methodologies for deriving the law 

from texts, will be apt to draw very different conclusions about the law even 

if confronted with identical texts. For instance, in some legal cultures it may 

be considered permissible to reason back from the rules stated in a legal text 

33 

Waldron, ‘Who Needs Rules of Recognition’ in Matthew Adler and Kenneth Einar Himma 

(eds.), The Rule of Recognition and the U.S. Constitution (Oxford: Oxford University Press, 

2009), 349. Although in this essay Waldron does not use the terminology of ‘thick’ and ‘thin’, 

he clearly draws the distinction, and also expresses a preference for the ‘thin’ picture, when 

he asks (336) ‘why did Hart think it plausible to talk about a fundamental rule for recognizing 

rules of law, as opposed to a rule for recognizing sources of (rules of) law? I know of no good 

answer’. Waldron also argues (332, 339–45, 348–9) that, once the focus is on sources, then 

rather than a rule of recognition our principle concern should be with the rule of change (i.e., 

the rule that governs the introduction of new authoritative sources into the system, and the 

cancellation of existing sources), which in a typical constitutional order will be the rule that 

governs the enactment of legislation and (at least in common law systems) the production 

of authoritative reports of decided cases. I think that this argument is a strong one (though 

Gardner disagrees: ‘Can There Be a Written Constitution’, Supra note 11, 176–8), but in this 

chapter I only note it.

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