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ABSTRACT

If the legal officials mislead the public as to what they accept the sources of law (and of legal change) to be, what does that mean for the content of the law? Is the law what the officials publicly say it is? This is at the core of the Illuminati problem framed by William Baude. In this paper I consider what the Hartian rule of recognition account of foundations of legal systems has to say in response. I argue that what the officials publicly say the sources of law are is not constitutive of the content of the law. This has important consequences for ‘positive originalism’ in constitutional interpretation advocated by William Baude and Stephen Sachs, among many other problems in jurisprudence. This is an ambitious paper. I provide a novel account of the rule of recognition, and of social rules in general, that employs recent developments in epistemology, metaphysics and meta-ethics. In doing so I respond to some of the recent criticism of the Hartian project, in particular as voiced by Mark Greenberg. I argue that social rules are metaphysically grounded in mental states of belief-independent acceptance exhibited by a sufficiently significant number of the members of the community. I discuss the structure of the rule of recognition (ultimate vs non-ultimate rules of recognition, is there more than one rule of recognition), the constitution of the recognitional community (whose acceptance counts) and the problem of anarchist officials. 
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