Written in an outstandingly clear and lively style, this 1969 book provokes its readers to rethink issues they may have regarded as long since settled.

Natural Law and Natural Rights is widely recognised as a seminal contribution to the philosophy of law, and an essential reference point for all students of the subject. This new edition includes a substantial postscript by the author responding to thirty years of comment, criticism, and further work in the field.

H. L. A. Hart is heir and torch-bearer of a great tradition in the philosophy of law which is realist and unromantic in outlook. It regards the existence and content of the law as a matter of social fact whose connection with moral or any other values is contingent and precarious. His analysis of the concept of law is part of the enterprise of demythologising the law, of instilling rational critical attitudes to it. Right from his inaugural lecture in Oxford (...) he was anxious to dispel the philosophical mist which he found in both legal culture and legal theory. In recent years he has shown time and again how much the rejection of the moralizing myths which accumulated around the law is central to his whole outlook. His essays on “Bentham and the Demystification of the Law” and on “The Nightmare and the Noble Dream” showed him to be consciously sharing the Benthamite sense of the excessive veneration in which the law is held in Common Law countries, and its deleterious moral consequences. His fear that in recent years legal theory has lurched back in that direction, and his view that a major part of its role is to lay the conceptual foundation for a cool and potentially critical assessment of the law are evident. (shrink)

This chapter contains sections titled: Jurisprudence: Method and Subject Matter Legality and Authority Positivism: Austin vs. Hart The Authority of Law Judicial Discretion Incorporationism and Legality Raz' s Theory of Authority Incorporationism and Authority Conclusion Postscript References.

We explore the relationship between jurisprudential theories pertaining to the nature of law and semantic and metasemantic theories pertaining to the meaning of ‘law’ in the wake of Dworkin’s notorious Semantic Sting argument in Law’s Empire (HUP 1986). Along the way we delineate various aspects of the semantic and metasemantic underpinnings of ‘law’ as an artifact term and advance the general methodological point that jurisprudential inquiry is only negligibly constrained by the findings of semantic and metasemantic inquiry.

Practical Reason and Norms focuses on three problems: In what way are rules normative, and how do they differ from ordinary reasons? What makes normative systems systematic? What distinguishes legal systems, and in what consists their normativity? All three questions are answered by taking reasons as the basic normative concept, and showing the distinctive role reasons have in every case, thus paving the way to a unified account of normativity. Rules are a structure of reasons to perform the required act (...) and an exclusionary reason not to follow some competing reasons. Exclusionary reasons are explained, and used to unlock the secrets of orders, promises, and decisions as well as rules. Games are used to exemplify normative systems. Inevitably, the analysis extends to some aspects of normative discourse, which is truth-apt, but with a diminished assertoric force. (shrink)

Legitimate authority -- The claims of law -- Legal positivism and the sources of law -- Legal reasons, sources, and gaps -- The identity of legal systems -- The institutional nature of law -- Kelsen's theory of the basic norm -- Legal validity -- The functions of law -- Law and value in adjudication -- The rule of law and its virtue -- The obligation to obey the law -- Respect for law -- A right to dissent? : civil disobedience (...) -- A right to dissent? : conscientious objection --The purity of the pure theory -- The argument from justice, or how not to reply to legal positivism. (shrink)

Previous ed. by : Lord Lloyd of Hampstead and M.D.A. Freeman.

Reprinted 1999 by The Lawbook Exchange, Ltd. LCCN 98-32334. ISBN 1-886363-74-9. Cloth. $95. * Reprint of the first edition.

The Province of Jurisprudence Determined (1832) is a classic of nineteenth-century English jurisprudence, a subject on which Austin had a profound impact. His book is primarily concerned with a meticulous explanation of most of the core concepts of his legal philosophy, including his conception of law, his separation of law and morality, and his theory of sovereignty. Almost a quarter of it consists of an interpretation and defence of the principle of utility. This edition includes the complete and unabridged text (...) of the fifth (1885) and last edition. The comprehensive introduction discusses Austin's life, the main themes of his book, leading criticisms of his ideas, and recent interpretations of his legal philosophy. The edition also includes an up-to-date bibliography and biographical synopses of the principal figures mentioned in the text. (shrink)

The Concept of Law is the most important and original work of legal philosophy written this century. First published in 1961, it is considered the masterpiece of H.L.A. Hart's enormous contribution to the study of jurisprudence and legal philosophy. Its elegant language and balanced arguments have sparked wide debate and unprecedented growth in the quantity and quality of scholarship in this area--much of it devoted to attacking or defending Hart's theories. Principal among Hart's critics is renowned lawyer and political philosopher (...) Ronald Dworkin who in the 1970s and 80s mounted a series of challenges to Hart's Concept of Law. It seemed that Hart let these challenges go unanswered until, after his death in 1992, his answer to Dworkin's criticism was discovered among his papers. In this valuable and long-awaited new edition Hart presents an Epilogue in which he answers Dworkin and some of his other most influential critics including Fuller and Finnis. Written with the same clarity and candor for which the first edition is famous, the Epilogue offers a sharper interpretation of Hart's own views, rebuffs the arguments of critics like Dworkin, and powerfully asserts that they have based their criticisms on a faulty understanding of Hart's work. Hart demonstrates that Dworkin's views are in fact strikingly similar to his own. In a final analysis, Hart's response leaves Dworkin's criticisms considerably weakened and his positions largely in question. Containing Hart's final and powerful response to Dworkin in addition to the revised text of the original Concept of Law, this thought-provoking and persuasively argued volume is essential reading for lawyers and philosophers throughout the world. (shrink)

One of the leading legal philosophers of this century, Kelsen published this short treatise in 1934, when the neo-Kantian influence on his work was at its zenith. An earlier, "constructivist" phase had been displaced by his effort to provide something approximating a neo-Kantian foundation for his theory. If this second phase represents the Pure Theory of Law in its most characteristic form, then the present treatise may well be its central text. And of Kelsen's many statements of the Pure Theory, (...) this one is surely the most accessible. Topics covered include the legal norm and Kelsen's normativity thesis, law and morality, the role of ideology, the concept of the legal person, legal interpretation, the identity of law and state, and the theory of international law. Among the appendices is an annotated bibliography of secondary literature on Kelsen. (shrink)

In this article, I distinguish between a moral and a strictly legal conception of legal normativity, and argue that legal positivists can account for law's normativity in the strictly legal but not in the moral sense, while pointing out that normativity in the former sense is of little interest, at least to lawyers. I add, however, that while the moral conception of law's normativity is to be preferred to the strictly legal conception from the rather narrow viewpoint of the study (...) of law's normativity, it is less attractive than the latter from the broader viewpoint of the study of the nature of law. I then distinguish between a moral and a strictly legal conception of the normative force of legal justification, and argue that legal positivists may without contradiction embrace the moral conception, and that therefore the analysis of the normative force of legal justification need not be a problem for legal positivists. I conclude that, on the whole, we have reason to prefer legal positivism to natural law theory. I begin by introducing the subject of jurisprudence . I then introduce the natural law/legal positivism debate, suggesting that we ought to understand it as a debate about the proper way to explicate the concept of law . I proceed to argue that legal decision‐making is a matter of applying legal norms to facts, and that syllogistic reasoning plays a prominent role in legal decision‐making thus conceived . Having done that, I discuss law's normativity , the normative force of legal justification , and the relation between the former and the latter . I conclude with a critical comment on Joseph Raz’ understanding of the question of law's normativity. (shrink)

It has become increasingly common for legal positivist theorists to claim that the primary objective of legal theory in general, and legal positivism in particular, is "explaining normativity." The phrase "explaining normativity" can be understood either ambitiously or more modestly. The more modest meaning is an analytical exploration of what is meant by legal or moral obligation, or by the authority claims of legal officials. When the term is understood ambitiously - as meaning an explanation of how conventional and other (...) empirical facts can give rise to moral obligations - as many legal positivist theorists seem to be using the phrase, the project is contrary to basic tenets of legal positivism, and has regularly led theorists to propose doubtful theories that ignore "is"/"ought" divisions. (shrink)

What does it mean to assert or deny the existence of a legal system? How can one determine whether a given law belongs to a certain legal system? What kind of structure do these systems have, that is--what necessary relations obtain between their laws? The examination of these problems in this volume leads to a new approach to traditional jurisprudential question, though the conclusions are based on a critical appraisal, particularly those of Bentham, Austin, Kelsen, and Hart.

This new edition includes a substantial postscript by the author, in which he responds to thirty years of discussion, criticism and further work in the field to ...

Jules Coleman, one of the world's leading philosophers of law, here presents his most mature work so far on substantive issues in legal theory and the appropriate methodology for legal theorizing. In doing so, he takes on the views of highly respected contemporaries such as Brian Leiter, Stephen Perry, and Ronald Dworkin.

This book is an uncompromising defense of legal positivism that insists on the separability of law and morality. After distinguishing among three facets of morality, Kramer explores a variety of ways in which law has been perceived as integrally connected to each of those facets. The book concludes with a detailed discussion of the obligation to obey the law--a discussion that highlights the strengths of legal positivism in the domain of political philosophy as much as in the domain of jurisprudence.

This important collection of essays includes Professor Hart's first defense of legal positivism; his discussion of the distinctive teaching of American and Scandinavian jurisprudence; an examination of theories of basic human rights and the notion of "social solidarity," and essays on Jhering, Kelsen, Holmes, and Lon Fuller.

In this paper, written for a volume on the work of Robert Alexy, I discuss the idea that law makes certain distinctive claims, an idea familiar from the work of both Alexy and Joseph Raz. I begin by refuting some criticisms by Ronald Dworkin of the very idea of law as a claim-maker. I then discuss whether, as Alexy and Raz agree, law's claim is a moral one. Having arrived at an affirmative verdict, I discuss the content of law's moral (...) claim. Is it, as Alexy says, a claim to moral correctness? Or is it, as Raz says, a claim to moral authority? (shrink)

Abstract. The paper begins by challenging Hart's argument aimed to show that sanctions are not part of the concept of law. It shows that in the "minimal" legal system as understood by Hart, sanctions may be required for keeping the legal system efficacious. I then draw a methodological conclusion from this argument, which challenges the view of Hart (and his followers) that legal philosophy should aim at discovering some general, politically neutral, conceptual truths about law. Instead, the aim should be (...) to discover the values because of which certain things in the world are classified as law and others as non-law. Focusing on those would give us a more insight to the roles law plays in society, as well as more illuminating answers to traditional jurisprudential questions like the status of law in evil regimes. (shrink)

The paper deals with the possibility of a theory of the nature of law as such, a theory which will be necessarily true of all law. It explores the relations between explanations of concepts and of the things they are concepts of, the possibility that the law has essential properties, and the possibility that the law changes its nature over time, and that what is law at a given place and time depends on the culture and concepts of that place (...) and time. It also considers the possibility of understanding the institutions, such as the law, of cultures whose concepts are alien to us. The position advocated offers a reconciliation of ways in which a theory of the nature of law is parochial with its claim to be universal. (shrink)

This is the penultimate draft of a paper originally presented at the Hart-Fuller at 50 conference, held at the NYU Law School in February 2008. A revised version will appear in the NYU Law Review. The paper seeks to clarify and assess HLA Hart's famous claim that legal positivism somehow involves a 'separation of law and morals.' The paper contends that Hart's 'separability thesis should not be confused with the 'social thesis,' with the 'sources thesis,' or with a methodological thesis (...) about jurisprudence. Hart's thesis denies the existence of necessary (conceptual) connections between law and morality. But that thesis is false: there are many necessary connections between law and morality, some of them conceptually significant. Among these is an important negative connection: law is of its nature morally fallible and morally risky. Lon Fuller emphasised the 'internal morality of law,' the 'morality that makes law possible'. Hart stressed that there is also an immorality that law makes possible. Law's nature is seen not only in its internal virtues, in legality, but also in its internal vices, in legalism. (shrink)

Hans Kelsen’s Pure Theory of Law, presented as a form of legal positivism, is interpreted as establishing metaphysical bases of legal science, on analogy with Kant’s “metaphysical bases of natural science (Metaphysische Anfangsgründe der Naturwissenschaft)”. It is asked, in the light of the Pure Theory’s acknowledged difficulties, how far it succeeds in escaping from the exegetical tradition in Western legal theory.

Legal philosophers share the same phenomenology of legal practice. Yet, they differ in its explanation. For normativists, descriptivists got it wrong and vice versa. This controversy between normativists and descriptivists will be called “the methodological problem” in legal theory. Normativists such as Dworkin and Perry argue that descriptivists need evaluation. By contrast, descriptivists such as Coleman argue that normativists need the methods of descriptivism such as conceptual analysis and therefore might be committed to descriptivism. The paper shows that the responses (...) of Perry and Coleman to the methodological problem are not free from difficulties. The article also advances a reinterpretation of normativism in terms of two tenets: 1. the semantic sting argument, and 2. the ametaphysical thesis argument. If the latter argument is sound, normativism is unavoidable, because if there cannot be an external point of view or Archimedean perspective, then we can only resort to our moral convictions or substantive claims. The first tenet has been criticized in previous work and the paper focuses on a criticism of the second tenet. (shrink)

Elaborating first upon H. L. A. Hart's distinction between imposing duties and imposing disabilities, this article explores the two senses mentioned by Hart in which power-holders may be legally disabled. Legal invalidation of norms that have been generated by vulnerable power-holders is seen to reduce diversity or pluralism in every normative sphere, from the supranational to the intrafamilial. By contrast, mere legal nonvalidation of such norms tends to preserve the autonomy of the power-holders that created the norms, thus enhancing legal (...) pluralism. Punishment for creating forbidden norms amounts in principle to an in-between sort of control, less restrictive than completely invalidating them but more restrictive than just not validating them, that is, just ignoring them. Illustrative examples include the European Court of Justice's early use of invalidation to convert an international treaty into a supranational constitution, and the subtle effects of legal nonvalidation of same-sex marriage. (shrink)

Nowhere has H.L.A. Hart's influence on philosophical jurisprudence in the English-speaking world been greater than in the way its fundamental project and method are conceived by its practitioners. Disagreements abound, of course. Philosophers debate the extent to which jurisprudence can or should proceed without appeal to moral or other values. They disagree about which participant perspective—that of the judge, lawyer, citizen, or “bad man”—is primary and about what taking up the participant perspective commits the theorist to. However, virtually unchallenged is (...) the view that jurisprudence is fundamentally interpretive or “hermeneutic”; that it takes for its subject a certain kind of social practice, constituted by the behavior and understandings of its participants; that its task is to explain this practice and its relations to other important social practices; and that it can properly be explained only by taking full account of participant understandings. It is, perhaps, some measure of the hegemony of Hart's influence that Ronald Dworkin mounts his fundamental challenge to Hart's positivism squarely from within this jurisprudential orthodoxy. Dworkin may have exceeded the limits of the method as Hart conceived it, but, as Stephen Perry has argued, “the seeds of Dworkin's strong version of inter-pretivism were sown by Hart himself.”. (shrink)