In Defence of Hart

Abstract

In his important and engaging book Legality, Scott Shapiro seeks to provide the motivation for the development of his own elaborate account of law by undertaking a critique of H.L.A. Hart's jurisprudential theory. Hart maintained that every legal system is underlain by a Rule of Recognition through which the officials of the system identify the norms that belong to the system as laws. Shapiro argues that Hart's remarks on the Rule of Recognition are confused and that his model of law -- though commendably more sophisticated than any model propounded by earlier legal positivists -- is consequently untenable. Having thus endeavored to establish that Hart's exposition of the nature of legality is unsustainable, Shapiro contends that a new approach is vital for progress in the philosophy of law. With his lengthy presentation of his own Planning Theory of Law, he aspires to pioneer just such an approach.

Except for a very terse observation in the final main section, this article does not directly assess the strengths and shortcomings of Shapiro's piquant Planning Theory. Instead, I defend Hart against Shapiro's charges and thereby undermine the motivation for the development of the Planning Theory. Admittedly, while arguing that Hart's jurisprudential theory is broadly sound and that Shapiro's alternative is therefore superfluous, this article does not attempt to uphold every detail of Hart's ruminations on law. Having criticized Hart on a number of points elsewhere, I am scarcely inclined to suggest here that his writings are entirely beyond reproach. Nonetheless, nearly all the objections to Hart's work posed by Shapiro are inapposite, or so this article will aim to show.

Keywords: legal positivism, H.L.A. Hart, Scott Shapiro, legal philosophy, Rule of Recognition, natural law, Ronald Dworkin, jurisprudencence

JEL Classification: K49