On Hart's Ways: Law as Reason and as Fact
University of Oxford - Faculty of Law; Notre Dame Law School
Oxford Legal Studies Research Paper No. 07/2008
Notre Dame Legal Studies Paper No. 08-06
American Journal of Jurisprudence, Vol. 52, pp. 25-53, 2007
THE LEGACY OF H.L.A. HART, Matthew Kramer, ed., Oxford University Press, 2008
This address at the Hart Centenary Conference in Cambridge in July 2007 reflects on foundational elements in Hart's method in legal philosophy. It argues that his understanding of what it is to adopt an internal point of view was flawed by (a) inattention to the difference between descriptive history (or biography or detection) and descriptive general theory of human affairs, (b) inattention to practical reason as argument from premises, some factual but others normative (evaluative) in their content, and (c) relative inattention to the deliberations of law-makers as distinct from subjects of the law. These flaws contributed to a concept or theory of law that so truncated its account of the juridical, and of the sources of legal reasoning, that it could provide little or no guidance in situations of legal difficulty. The paper suggests that these flaws result, to some significant extent, from the skeptical doubts about morality evident particularly in his later work. All this has implications for the kind of approach to law and legal theory often self-described as positivist.
Number of Pages in PDF File: 33
Date posted: March 4, 2008
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