On Hart's Category Mistake

43 Pages Posted: 30 Jan 2015 Last revised: 25 Jan 2023

Date Written: 2013

Abstract

This essay concerns Scott Shapiro’s criticism that H.L.A. Hart’s theory of law suffers from a “category mistake.” Although other philosophers of law have summarily dismissed Shapiro’s criticism, I argue that it identifies an important requirement for an adequate theory of law. Such a theory must explain why legal officials justify their actions by reference to abstract propositional entities, instead of pointing to the existence of social practices. A virtue of Shapiro’s planning theory of law is that it can explain this phenomenon. Despite these sympathies, however, I end with the suggestion that Shapiro’s criticism of Hart, as it stands, is incomplete. Careful attention to Hart’s notion of the internal point of view indicates that he was aware that legal justification ends with abstract objects, not practices, and that he offered his own explanation of this phenomenon.

Keywords: Scott Shapiro, H.L.A. Hart, Practice Theory of Rules, Planning Theory of Law, Category Mistake, Norms

Suggested Citation

Green, Michael S., On Hart's Category Mistake (2013). William & Mary Law School Research Paper No. 09-298, 19 LEGAL THEORY 347-69 (2013), Available at SSRN: https://ssrn.com/abstract=2557080

Michael S. Green (Contact Author)

William & Mary Law School ( email )

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P.O. Box 8795
Williamsburg, VA 23187-8795
United States
(757) 221-7746 (Phone)

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