Hart's Response to Exclusive Legal Positivism
Robin Bradley Kar
University of Illinois College of Law; University of Chicago
Georgetown Law Journal, Vol. 95, p. 393, 2007
The three most important views in contemporary analytic jurisprudence - namely, inclusive legal positivism (Hart, Coleman, Waluchow), exclusive legal positivism (Raz, Shapiro), and non-positivist views arising from Dworkin's work on adjudication - are currently in a complex logical gridlock. I do not just mean by this that the views themselves are inconsistent; that, after all, is to be expected. I mean to draw attention to the further fact that each view is motivated, in part, by insights into important aspects of the law, which, as things presently stand, would appear to defy harmonization with the rest. To wit: (1) the law purports to provide us with a distinctive source of practical guidance, (2) we nevertheless sometimes identify the law's directives by using moral insight, and (3) the law is deeply bound up in conventions, and legal judgments are often true or false by convention.
This Article develops a version of inclusive legal positivism that accommodates all of these important features of the law. It begins by canvassing important contributions that the exclusive legal positivists - namely, Joseph Raz and Scott Shapiro - have made to our understanding of the law, and explaining why these contributions would appear to render inclusive legal positivism internally inconsistent. It then argues that these contributions can be absorbed without generating any such inconsistencies if we accept a novel account of legal obligation (and a corresponding account of legal authority) that makes reference to what Stephen Darwall has recently called the "second-person standpoint." There are, moreover, a number of important philosophical reasons to favor this account of obligation over the alternatives in the current literature. This version of inclusive legal positivism can also absorb a number of Dworkin's important insights into the law, which he has taken to warrant a wholesale rejection legal positivism.
The Article continues by arguing that, while there were important tensions in Hart's views, Hart himself implicitly understood the importance of reference to something like the second-person standpoint in accounting for obligation throughout his career. Indeed, his texts suggest that he became even clearer by the end. What he lacked - and what we have all lacked until now - was a clear account of what Darwall has recently called the "second-person standpoint" to articulate this view. Hence, the view developed here may not only be an independently viable form of inclusive legal positivism; it may also represent the best available development of Hart's core views and jurisprudential commitments.
This paper is based on an earlier idea paper. The ideas have been substantially revised, partly in light of comments from Yale's Center for Law and Philosophy and the Southern California Law and Philosophy Discussion Group.
Number of Pages in PDF File: 69
Keywords: Hart, Raz, Shapiro, Second Person, Practical Difference Thesis, Reason, Obligation, Jurisprudence, Philosophy, Internal Point of View, Analytic, Darwall, Coleman, Dworkin, positivism, inclusive legal positivism, exclusive legal positivism, internal point of view, exclusionary reasons, second-person
Date posted: February 7, 2007 ; Last revised: May 21, 2016