15 Pages Posted: 19 Nov 2003
Date Written: October 1, 2003
In this article I intend to show that H.L.A. Hart's position in The Concept of Law, that the validity of law is not grounded in the fact that the content of law is essentially moral, is incongruent with his insistence that the ultimate rule of recognition is grounded in normative (social) behavior. Hart's insistence that there be an attitude of shared acceptance toward the ultimate rule of recognition compromises his insistence that there is no logically necessary relationship between law and morality. The problem in Hart's legal theory seems to be rooted in his strident efforts to make application of the general tenets of positivism. His attempt to keep separate the fields of law and morality while at the same time attempting to satisfy the parameters of his own project as a "descriptive sociology," are in conflict. In short, Hart seems to have too stringently applied Hume's Is-Ought distinction to the realm of legal theory.
Keywords: H.L.A. Hart, David Hume, positivism, internal perspective, justice, minimum moral content, natural truths
Suggested Citation: Suggested Citation
MA, PHD, JD, LLM, Eric Boos, The Misapplication of the 'Is-Ought' Distinction and the Role of Justice in Hart's Legal Theory (October 1, 2003). Available at SSRN: https://ssrn.com/abstract=460761 or http://dx.doi.org/10.2139/ssrn.460761
By Brian Leiter