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

See all articles by Thomas Adams

Thomas Adams

University of Oxford - Faculty of Law

Date Written: September 1, 2020

Abstract

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

Suggested Citation

Adams, Thomas, Practice and Theory in The Concept of Law (September 1, 2020). Oxford Studies in Philosophy of Law, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3684512 or http://dx.doi.org/10.2139/ssrn.3684512

Thomas Adams (Contact Author)

University of Oxford - Faculty of Law ( email )

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