Hart’s Concept of Law: Positivist Legal Theory or Sociology?
This paper will consider the extent to which HLA Hart can be said to have turned the positivist tradition of legal thought from positivism to a sociology of law. Hart's claim to be engaging in 'descri...
Abstract
This paper will consider the extent to which HLA Hart can be said to have turned the positivist tradition of legal thought from positivism to a sociology of law. Hart's claim to be engaging in 'descriptive sociology' is first considered, followed by the submission that Hart's gesture towards natural law is distinctly sociological. The significance of the ‘critical reflective attitude’ is then discussed and, finally, the sociology of secondary rules will be examined. This paper will conclude that, while Hart infused his theory with sociology in an attempt to circumvent what he saw as the restrictive nature of Austinian formalism, he remained true to the core tenets of positivism, and, ultimately, expounded a positivist theory, not a sociology, of law.
Abstract
This paper will consider the extent to which HLA Hart can be said to have turned the positivist tradition of legal thought from positivism to a sociology of law. Hart’s claim to be engaging in ‘descriptive sociology’ is first considered, followed by the submission that Hart’s gesture towards natural law is distinctly sociological. The significance of the ‘critical reflective attitude’ is then discussed and, finally, the sociology of secondary rules will be examined. This paper will conclude that, while Hart infused his theory with sociology in an attempt to circumvent what he saw as the restrictive nature of Austinian formalism, he remained true to the core tenets of positivism, and, ultimately, expounded a positivist theory, not a sociology, of law.
Publication Details
Authors: Glen Wright
Year: 2010
