A Postmodern's Hart: Taking Rules Sceptically
Modern Law Review, Vol. 58, pp. 788-819, 1995
16 Pages Posted: 25 Mar 2010
Date Written: 1995
Abstract
Although considered somewhat passe in the recherche circles of jurisprudential scholarship, H.L.A. Hart's view of law as basically a rule-applying activity remains the guiding theme of many legal practitioners and doctrinal scholars. The fact that his writings are no longer thought of as innovative or exceptional is only testament to their pervasive acceptance as part and parcel of what it is to be and think like a lawyer. Of course, this should not be surprising. His work was informed by the Austin - Wittgenstein imperative that good philosophy was simply making sense of people's daily linguistic practices: The Concept of Law was offered as 'an essay in descriptive sociology. As such, his juristic studies recommended themselves to the practical mind of the common lawyer; there was an intuitive and reassuring fit between what lawyers thought they were doing and what they were told that they should be doing. The fact that Hart's uncluttered writings also justified and set to rest any qualms about the legitimacy of lawyers' and judges' roles in a liberal democracy also helped. Showcased by the elegant simplicity of his writing, Hart's elevation of legal common sense to the status of jurisprudential theory is both his greatest strength and his greatest weakness.
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