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.

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.

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.

scholarly journals The legal consequences of jus cogens and the individuation of norms

2020 ◽  
Vol 33 (4) ◽  
pp. 893-909
Author(s):  
Ulf Linderfalk
Keyword(s):  
International Law ◽  
General Assumption ◽  
Legal Decisions ◽  
International Crimes ◽  
Judicial Proceedings ◽  
Legal Positivist ◽  
The Concept Of Law ◽  
Jus Cogens ◽  
Legal Consequences ◽  
Concept Of Law

AbstractInternational law ascribes to the conferral of a jus cogens status on a norm a particular legal significance. Bluntly put, jus cogens norms have legal consequences that norms of ordinary international law do not. International lawyers have a great many different ideas of what these legal consequences are more precisely. As of yet, the reason for this divide has not been fully clarified. This void tends to confuse jus cogens discourse on several issues such as the immunity of states and state officials in judicial proceedings originating in the violation of jus cogens norms, or the extradition of alleged perpetrators of international crimes, or again the non-applicability of amnesty laws concerning such crimes. It also impedes the justification of judicial and other legal decisions.As this article argues, contrary to the general assumption, a lawyer’s conception of the legal consequences of jus cogens is not theory-neutral but dependent on his or her preferred understanding of the concept of law. The argument goes briefly as follows: (i) What causes international lawyers to disagree is the issue of whether or not jus cogens norms entail obligations concerned with their own enforcement; (ii) this is essentially an issue concerning the individuation of norms; (iii) depending on whether a lawyer takes the position of a legal positivist or a legal idealist, he or she uses different criteria for the individuation of jus cogens norms; and (iv) this is why, for legal idealists, jus cogens norms entail obligations concerned with their own enforcement, whereas for legal positivists they do not.

Old Borderlands

2020 ◽  
Vol 40 (3) ◽  
pp. 454-467 ◽  
Author(s):  
Eric Lewis Beverley
Keyword(s):  
Twentieth Century ◽  
South Asia ◽  
State Sovereignty ◽  
Cultural Dynamics ◽  
Political Autonomy ◽  
Political Sovereignty ◽  
The World ◽  
Frontier Zone ◽  
A Site ◽  
Autonomous State

Abstract Large zones of de facto political autonomy persist even as various state systems have endeavored to fix, rationalize, and secure external and internal borders. These spaces are products of long histories of uneven extension and exercise of state sovereignty in the subcontinent and much of Asia and Africa. Histories and legacies of borderland autonomy have important implications for contemporary sovereign practice in much of the world. This article examines the making, unmaking, and endurance of borderlands around Hyderabad in the eastern Deccan. It describes the region as an “old borderland,” from premodern frontier zone, to sovereign and autonomous state during the era of British imperial dominance, through its mid-twentieth-century reemergence as a site of state avoidance or resistance. Identifying the productive relationship among frictional environments, political sovereignty, and social and cultural dynamics, this article develops frameworks for historicizing borderland autonomy in South Asia and beyond.

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.

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 SOURCES OF DOUBT, SOURCES OF DUTY: HLA HART ON INTERNATIONAL LAW

2005 ◽  
Vol 10 (2) ◽  
pp. 698 ◽  
Author(s):  
JOHN MORSS
Keyword(s):  
International Law ◽  
Critical Analysis ◽  
Title Page ◽  
General Analysis ◽  
State Sovereignty ◽  
Legal Obligation ◽  
The Concept Of Law ◽  
Concept Of Law

<div class="page" title="Page 1"><div class="layoutArea"><div class="column"><p><span>[</span><span>In many ways HLA Hart’s critical analysis of the concept of law, with its repudiation of simple command theories of legal obligation, is at the same time a critique of the notion of state sovereignty. It is therefore an adumbration, if no more, of a radical reconceptualisation of interna- tional law, one which redefines the distinction between municipal and in- ternational jurisdiction. This paper is an exploration of what Hart could or ‘should’ have said about international law, based as much as possible on what he did say about international law and law in general. After some introductory comments it outlines Hart’s general analysis of law, with particular reference to the relevance for our understanding of inter- national law.</span><span>] </span></p></div></div></div>

Romania

2012 ◽  
Author(s):  
Radu Ioanid
Keyword(s):  
Social Sciences ◽  
Nineteenth Century ◽  
Twentieth Century ◽  
Great Powers ◽  
Modern State ◽  
Political Elites ◽  
Electoral Fraud ◽  
Founding Fathers ◽  
Anti Semitism ◽  
Native Strains

The modern Romanian state was born in the nineteenth century, as a result of the struggle for the independence and unity of its intellectual and political elites in a fragile and shifting equilibrium between the Great Powers. Its political functioning remained troubled. Between the two world wars, governmental majorities never cooperated with the opposition, even though their programmes were not very different. Electoral fraud and electoral premiums characterized the inter-war Romanian electoral process. Romanian fascism proclaimed itself to be the spiritual heir of the nineteenth- and early twentieth-century native strains of conservatism and xenophobia. The most powerful component of this xenophobia was anti-Semitism, which from the nineteenth century expressed itself in economic, social, religious, and political models. Basically, most of the founding fathers of the Romanian modern state who took on any major role in politics, economics, social sciences, philosophy, or literature, were anti-Semites.

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.

Unmasking the ‘personality’ of the state—Max Weber, Staatsrechtslehre, and the modern state

2003 ◽  
Author(s):  
Duncan Kelly
Keyword(s):  
Nineteenth Century ◽  
Conceptual Understanding ◽  
Max Weber ◽  
The State ◽  
The Other ◽  
Political Life ◽  
Modern State ◽  
Legal Positivist ◽  
Relationship Of ◽  
Comparative Manner

This chapter examines Max Weber's rejection of an idea central to nineteenth-century Staatsrechtslehre. This is the notion that the state itself is a ‘personality’. After outlining some of the main tenets of this tradition, the chapter seeks to show how Weber, borrowing from the work of Georg Jellinek in particular, retains a conceptual understanding of the state that stresses its position at the apex of political life. He nevertheless rejected the formalism of Jellinek's modified legal-positivist argument, which had resulted in his famous two-sided (one legal, the other political-sociological) account of the state. Weber insisted that the state could only be properly discussed as a relationship of domination, and in an empirical-sociological and comparative manner at that.

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