Legal Obligation and Social Norms
Jonathan Crowe and Lucy Agnew, ‘Legal Obligation and Social Norms’ (2020) 41 Adelaide Law Review 217
25 Pages Posted: 1 Dec 2020
Date Written: November 7, 2020
Abstract
H L A Hart famously argues that legal obligation is best understood by analysing law as a species of social rule. This article engages with recent work in social psychology and norm theory to critically evaluate Hart’s theory. We draw on the social intuitionist model of practical decision-making associated with Amos Tversky, Daniel Kahneman and Jonathan Haidt to argue that legal officials rely on holistic intuitive judgements to identify their legal obligations. We then explain the evolution and persistence of legal rules by reference to the theory of social norms offered by Cristina Bicchieri. This way of thinking about legal obligation lends support to Hart’s account of law as a social practice. However, it challenges other aspects of his views, such as the idea that the only necessary factor in determining the content of law is its socially recognised sources. It also casts doubt on Hart’s claim that legal obligation does not empirically extend beyond legal officials to other members of the community. Hart’s account can be adapted to meet these criticisms, but not without undermining its commitment to legal positivism.
Keywords: legal positivism, legal obligation, social norms, natural law theory, social psychology, H L A Hart
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