Conceptual Theories of Law and the Challenges of Global Legal Pluralism

2020 ◽  
pp. 317-338
Author(s):  
Wibren van der Burg
Keyword(s):  
Legal Pluralism ◽  
Family Resemblance ◽  
Legal Philosophy ◽  
General Definition ◽  
Legal Obligations ◽  
The Concept Of Law ◽  
Definition Of ◽  
Conceptual Pluralism ◽  
Pluralist Approach ◽  
Concept Of Law

One of the perennial discussions in legal philosophy is: What is law? Theories that elucidate the concept of law and provide definitions may be called conceptual theories of law. For such conceptual theories, global legal pluralism presents at least four major challenges. First, it recognizes a wide variety of types of law. Second, it recognizes a wide variety of law-producing actors. Third, it accepts that legal orders may gradually emerge. Fourth, legal orders overlap and are intertwined in many ways. We may discern three different strategies to deal with these challenges: monist, relativist, and pluralist. This chapter defends a pluralist approach, namely legal interactionism. It builds on American pragmatism, especially on the work of Lon Fuller and Philip Selznick. Legal interactionism recognizes interactional law as a source for legal obligations, but also accepts that contract and enacted law may constitute relatively autonomous legal orders in their own right. This chapter focuses on how it implies conceptual pluralism and definitional pluralism, and then discusses how this enables it to deal adequately with the four challenges global legal pluralism presents. Legal interactionism emphasizes that the concept of law is plural in character and can best be analyzed in terms of a dynamic family resemblance. If there is not one unified concept of law, but a plurality of defensible, partly incompatible conceptions, there cannot be one general definition of law.

The Methodology of Legal Philosophy

2016 ◽  
Author(s):  
Alex Langlinais ◽  
Brian Leiter
Keyword(s):  
Conceptual Analysis ◽  
Linguistic Analysis ◽  
Legal Philosophy ◽  
Legal Systems ◽  
Moral Norms ◽  
Social Constructs ◽  
Social Rule ◽  
The Concept Of Law ◽  
The Relationship ◽  
Concept Of Law

This article examines methodological debates in legal philosophy by focusing on two (related) methodological claims in H. L. A. Hart’s 1961 book, The Concept of Law: that Hart’s theory is both general and descriptive, and an exercise in both linguistic analysis and descriptive sociology. It considers what these claims reveal about Hart’s theoretical ambitions and methodological commitments, and what light they shed on debates in legal philosophy since then. In particular, it discusses the most important elements of Hart’s theory, such as the union of primary and secondary rules in law, the “rule of recognition” as a social rule, and the relationship between legal and moral norms. It also explores several objections to Hart’s approach to the problems of legal philosophy, including one that questions the fruitfulness of the methodology of conceptual analysis. Finally, it analyzes the argument of Hart and all legal positivists that legal systems are social constructs.

H. L. A. Hart, The Concept of Law

2016 ◽  
Author(s):  
Matthew H. Kramer
Keyword(s):  
Political Philosophy ◽  
Twentieth Century ◽  
English Language ◽  
Legal Philosophy ◽  
Law And Morality ◽  
The Concept Of Law ◽  
Moral Philosophers ◽  
Concept Of Law

H. L. A. Hartʼs The Concept of Law is, of course, primarily a work of legal philosophy. It is indeed the most influential work of legal philosophy in the English language (and perhaps in any language) published during the twentieth century. However, the immense importance of the book for philosophers of law should not prevent readers from discerning its importance for political and moral philosophers as well. Hartʼs insights into the nature of law and sovereignty are themselves of great significance for political philosophy, and the second half of The Concept of Law contains ruminations on justice and on the relationships between law and morality that deserve attention from anyone who aspires to think clearly about the problems of political philosophy.

Practice and Theory in The Concept of Law

2021 ◽  
pp. 1-31
Author(s):  
Thomas Adams
Keyword(s):  
Conceptual Analysis ◽  
Practice Theory ◽  
Legal Philosophy ◽  
Legal Rules ◽  
The Concept Of Law ◽  
Concept Of Law

This chapter challenges the widely held assumption that H.L.A. Hart endorsed a fatally flawed theory of rules known as ‘the practice theory’. In the first section I lay out the practice theory. The second section marshals evidence of the theory’s inconsistency with central aspects of Hart’s understanding of law, in particular his insistence on the distinction between the validity and efficacy of legal rules. In Section 3 I revisit the passages of The Concept of Law from which the practice theory is ostensibly culled and suggest an alternative. Finally, in Section 4, I consider some of the methodological implications of Hart’s style of argument and what it says about the importance or not of conceptual analysis in legal philosophy.

scholarly journals Contra o Conceito do Direito: Ontologia e Epistemologia no Problema da Definição do Direito

2018 ◽  
Author(s):  
Ítalo Oliveira
Keyword(s):  
Legal Theory ◽  
Scientific Activity ◽  
Point Of View ◽  
Epistemological Problem ◽  
Specific Object ◽  
Advance Research ◽  
The Concept Of Law ◽  
Definition Of ◽  
Ontological Problem ◽  
Concept Of Law

The problem of definition of the concept of law or at least the description of features of legal phenomenon presents variation about the implications of its solution and about the worries around it. The forms of this problem I am interested in are related to ontology and epistemology in legal philosophy: ‘What is the law?’ as (1) a question about the definition of the essence of law and (2) about the definition of a specific object of investigation for sciences about the supposed legal phenomenon – philosophy of law, legal theory, and science of law, for instance. Challenging its premises and trying to avoid both the ontological problem and epistemological problem, I propose a change of perspective from pragmatic concerns what I call the “manager's point of view”: a vision of who should manage the finite economic resources to finance scientific activity in the area of law. I argue that, starting from there, the problem of defining the concept of law as an ontological problem and as a epistemological problem is an unnecessary problem whose solution is useless to advance research in the field of law. I propose a reorientation of the controversy that has implications on how to see the researches and the education in this field.

The Scattergun and the Owl: Brian Simpson on Herbert Hart

2013 ◽  
Vol 26 (2) ◽  
pp. 491-513 ◽  
Author(s):  
Richard Mullender
Keyword(s):  
Legal System ◽  
Theoretical Approach ◽  
Case Law ◽  
Legal Philosophy ◽  
Legal Systems ◽  
Central Vision ◽  
Michael Oakeshott ◽  
The Concept Of Law ◽  
Interdisciplinary Theory ◽  
Concept Of Law

While recognizing that H.L.A. Hart’s The Concept of Law has exerted a powerful and continuing influence on general jurisprudence, Brian Simpson finds it wanting. Simpson argues that Hart’s determination to make broad generalizations about the nature of a legal system deflected him from the important task of attending to the particularities of actually-existing law. Moreover, he identifies Hart as a ‘hedgehog’ in Isaiah Berlin’s sense: a thinker whose work gives expression to a ‘single central vision’ (in Hart’s case, law as a system of rules). This critique of Hart leads Simpson to argue for an approach to legal philosophy that is more attentive to the details of existing legal systems. But Simpson fails to present his readers with the theoretical approach for which he argues. This essay seeks to make good this deficiency in his response to The Concept of Law. To this end, it uses the writings of two philosophers on whom Simpson draws (Berlin and Michael Oakeshott) with the aim of enriching Hart’s contribution to general jurisprudence. Moreover, it finds in this Hart-Oakeshott-Berlin-based interdisciplinary theory (HOBBIT) a basis on which to throw much light on Britain as a distinctive form of politico-legal life.

H.L.A. Hart’s Hermeneutic Positivism: On Some Methodological Difficulties in The Concept of Law

1990 ◽  
Vol 3 (1) ◽  
pp. 113-128 ◽  
Author(s):  
H. Hamner Hill
Keyword(s):  
Social Science ◽  
Social Structure ◽  
Distinctive Feature ◽  
Legal Philosophy ◽  
The Concept Of Law ◽  
Science Methodology ◽  
Social Science Methodology ◽  
Predictive Theory ◽  
Methodological Difficulties ◽  
Concept Of Law

Despite the tremendous literature that has sprung up concerning Hart’s The Concept of Law, one very important feature of the work has been somewhat overlooked: its methodological underpinnings. While Hart himself says The Concept of Law may “be regarded as an essay in descriptive sociology”, this claim has not received adequate philosophical examination. Though a dedicated philosophical positivist, the distinctive feature of Hart’s legal philosophy – the internal aspect of rules – requires a social science methodology that moves him in the direction of hermeneutics. In defending the importance of the internal aspect of rules against the predictive theory of Scandinavian Legal Realist Alf Ross, Hart argues that without the internal aspect, onejettisons something vital not only to the understanding of law but of any form of normative social structure. For the understanding of this the methodology of the empirical sciences is useless; what is needed is a ‘hermeneutic’ method which involves portraying rule-governed behaviour as it appears to its participants, who see it as conforming or failing to conform to certain standards.

Social Rules at the Foundations of Law

2011 ◽  
Author(s):  
Andrei Marmor
Keyword(s):  
Nineteenth Century ◽  
Twentieth Century ◽  
Legal Philosophy ◽  
State Sovereignty ◽  
Modern State ◽  
Social Rules ◽  
Political Sovereignty ◽  
Legal Positivist ◽  
The Concept Of Law ◽  
Concept Of Law

This chapter presents some of H. L. A. Hart's main contributions to legal philosophy. Hart's The Concept of Law is widely regarded as the single most important contribution to legal philosophy in the twentieth century. It shows that Hart's theory is the most consistent and sustained attempt to develop a detachment view of law and legal philosophy, and one that is thoroughly reductive. The chapter introduces another separation, or detachment, that Hart's theory attempted, and one that is less successful: the detachment of law from state sovereignty. The legal positivist tradition, from Hobbes to the main positivists of the nineteenth century, conceived of law as the instrument of political sovereignty, largely influenced by the emergence of the modern state. Hart tried to show that this identification of law with state sovereignty is profoundly misguided; law is independently grounded on social rules, not on political sovereignty. It is argued that Hart's attempt to separate our understanding of law from the concept of sovereignty is only partly successful.

APPROACHES TO DEFINING THE CONCEPT OF «LAW ENFORCEMENT»

2021 ◽  
Author(s):  
Юлия Борисовна Штин
Keyword(s):  
Law Enforcement ◽  
Characteristic Features ◽  
The Concept Of Law ◽  
Definition Of ◽  
Concept Of Law

Предметом исследования является генезис понятия «правоприменение», исследуется теоретический дискус различных подходов к его определению. На основе проведенного анализа выявлены характерные особенности правоприменения, приведено авторское определение понятию «правоприменение». The article deals with the genesis of the concept of «law enforcement», explores the theoretical discus of various approaches to its definition. On the basis of the analysis, the characteristic features of law enforcement are revealed, the author's definition of the concept of "law enforcement" is given.

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