Practice and Theory in The Concept of Law
Oxford Studies in Philosophy of Law, Forthcoming
30 Pages Posted: 6 Nov 2020 Last revised: 10 Aug 2021
Date Written: September 1, 2020
This paper challenges the widely held assumption that H.L.A. Hart endorsed in The Concept of Law a fatally flawed theory of rules known as ‘the practice theory’. In the first section I lay out the practice theory. The second section marshals evidence of the theory’s inconsistency with central aspects of Hart’s philosophy of law, in particular his insistence on the distinction between the validity and efficacy of legal rules. In section three I revisit the passages of the book from which the practice theory is ostensibly culled and suggest an alternative. Finally, in section four, I consider some of the methodological implications of Hart’s style of argument and what it says about the importance or not of conceptual analysis in legal philosophy.
Keywords: Jurisprudence; Philosophy of Law; Legal Theory; Hart; Conceptual Analysis
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