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13 - The Legal Positivism of H. L. A. Hart

from Part III - Central Figures

Published online by Cambridge University Press:  21 January 2021

By
Matthew H. Kramer
Edited by
Torben Spaak  and
Patricia Mindus
Torben Spaak
Affiliation:
Stockholms Universitet
Patricia Mindus
Affiliation:
Uppsala Universitet, Sweden
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Summary

Kramer explains how H. L. A. Hart reinvigorated legal positivism by disconnecting it from the command theory of law defended by his predecessors Bentham and Austin; by introducing through his own theory of law some new and fruitful concepts into legal thinking, such as the internal point of view, the distinction between primary and secondary rules, and the idea of a rule of recognition; by clarifying the meaning of and reasons behind the separability of law and morality through considering the many different ways in which law and morality are, or could be, connected; and by introducing the idea of the minimum content of natural law and clarifying the relation between this and the separability of law and morality. Kramer explains: even though a legal system can fulfil its basic function of securing the conditions of civilisation only if it includes rules prohibiting murder, assault, fraud, etc., the relevant protection provided by the legal system against such misconduct need not be extended to all groups of citizens. Consequently, because no true moral principles would permit this, Hart’s account does not reveal any necessary connections between those principles and legal norms.

Keywords

H. L. A. Hartrule of recognitionseparation thesisminimum content of natural lawcommand theory of law
Type
Chapter
Information
The Cambridge Companion to Legal Positivism , pp. 301 - 324
Publisher: Cambridge University Press
Print publication year: 2021

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References

Coleman, J. 1982. ‘Negative and Positive Positivism’. Journal of Legal Studies 11: 139–64.Google Scholar
Hart, H. L. A. 1983. Essays in Jurisprudence and Philosophy. Oxford University Press.Google Scholar
Hart, H. L. A. 1994. The Concept of Law. 2nd ed. Oxford University Press.Google Scholar
Hart, H. L. A. 2013. ‘Answers to Eight Questions’. In Duarte d’Almeida, L., Edwards, J. and Dolcetti, A. (eds.). Reading HLA Hart’s The Concept of Law. Hart: 279–97.Google Scholar
Kramer, M. 1999. In Defense of Legal Positivism. Oxford University Press.Google Scholar
Kramer, M. 2004. Where Law and Morality Meet. Oxford University Press.Google Scholar
Kramer, M. 2013. ‘In Defense of Hart’. In Waluchow, W. and Sciaraffa, S. (eds.). Philosophical Foundations of the Nature of Law. Oxford University Press: 22–50.Google Scholar
Kramer, M. 2017. ‘There’s Nothing Quasi about Quasi-Realism’. Journal of Ethics 21: 185–212.Google Scholar
Kramer, M. 2018. H.L.A. Hart: The Nature of Law. Polity Press.Google Scholar
Lamond, G. 2013. ‘The Rule of Recognition and the Foundations of a Legal System’. In Duarte d’Almeida, L., Edwards, J. and Dolcetti, A. (eds.). Reading HLA Hart’s The Concept of Law. Hart: 97–122.Google Scholar

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