A Straw Man Revisited: Resettling the Score between H.L.A Hart and Scandinavian Legal Realism
iCourts Working Paper Series No. 78
55 Pages Posted: 26 Oct 2016 Last revised: 15 Nov 2016
Date Written: October 26, 2016
H.L.A. Hart is said to have “famously demolished” Alf Ross’s analysis of normative statements and thereby Ross’s version of Scandinavian Legal Realism more generally. In this article, I argue that Hart’s critique is fundamentally mistaken, and that Ross’s legal theory deserves serious reconsideration in contemporary jurisprudential debate. Central to Hart’s alleged demolition was his celebrated introduction of a distinction between internal and external aspects of social rules – a distinction which Ross is accused of overlooking or at least badly misrepresenting. However, Ross was not only perfectly aware of the internal/external distinction; he in fact analyzed it with much greater clarity and consistency than Hart did. Thus, behind Hart’s writings on this issue lies not only one but two important and logically distinct internal/external distinctions and Hart continuously confuses them and their interrelations. Ross on the other hand expressly acknowledges their existence and consistently observes both of them in his work. Setting the record straight not only casts much needed light on debates about internal and external aspects of social rules. It also gives us a privileged opportunity to redraw our map of the broader jurisprudential landscape and in particular of identifying where we could draw the line between Legal Positivism and Legal Realism in a clear and principled way. These insights are particularly valuable as we are currently seeing sustained attempts to revitalize the Legal Realist movement, either by seeing the Legal Realists as precursors of philosophical Naturalism in jurisprudence or by exploring the prospects of a New Legal Realism.
Suggested Citation: Suggested Citation