Hart on Sovereignty

Abstract

This essay is part of a volume of essays by various authors on the 50 years of H. L. A. Hart’s The Concept of Law (the book will be published as: Andrea Dolcetti, Luís Duarte d’Almeida and James Edwards (eds), Reading HLA Hart's 'The Concept of Law' (Hart Publishing 2013). Although discussing mainly Hart’s chapter 4, my essay seeks to give a more general account of Hart’s achievements and failures. Focusing on Hart’s account of sovereignty, the essay shows how Hart’s descriptivism prevented him from giving an adequate account of the law and the legal system. In my view (see also Eleftheriadis, Legal Rights, 2008) because law is part of practical reason, its theory is also practical reason and cannot be accommodated by Hart’s causal, descriptive model. Hart never accepted this. When speaking of the ‘internal point of view’ Hart ought to have been speaking instead of the practical, deliberative standpoint of the reflective agent who faces a first person choice about action and remains situated in the common circumstances of social life. This standpoint is necessary both at the highest offices of state and in the idea of sovereignty and at the lowest matters of social interaction. That Hart did not see this in chapter IV is the origin of all the subsequent failures of the Concept of Law.

Keywords: jurisprudence, legal philosophy, Hart, sovereignty