In this volume, leading contemporary legal and political philosopher Matthew H. Kramer provides a crystal-clear analysis of Hart’s contributions to our understanding of the nature of law. He elucidates and scrutinizes every major aspect of Hart’s jurisprudential thinking, ranging from his general methodology to his defense of legal positivism. He shows how Hart’s achievement in The Concept of Law, despite the evolution of debates in subsequent decades, remains central to contemporary legal philosophy because it lends itself to being reinterpreted in light of new concerns and interests. Kramer therefore pays particular attention to the strength of Hart’s insights in the context of present-day disputes among philosophers over the reality of normative entities and properties and over the semantics of normative statements.
This book is an invaluable guide to Hart’s thought for students and scholars of legal philosophy and jurisprudence, as well as moral and political philosophy.
Table of Contents
Preface vii
1 A Discourse on Method 1
1 Posing the questions 2
2 Elucidation of a concept 4
3 A method of central instances 5
4 A philosophical scope 8
5 Variations across societies 11
6 A descriptive-explanatory methodology 12
7 A reductionist ambition? 23
8 A naturalistic ambition? 28
2 Hart on Legal Powers and Law’s Normativity 32
1 The Austinian model of law 33
2 Power-conferring laws 36
3 Legislators bound 52
4 Custom-derived laws 53
5 Limits on sovereignty 56
3 The Components of Hart’s Jurisprudential Theory 60
1 The internal/external distinction 61
2 The simulative point of view 65
3 The blurring of distinctions between viewpoints 68
4 Primary norms and secondary norms: the general distinction 70
5 Primary norms and secondary norms: Hart’s thought-experiment 74
6 The Rule of Recognition: to whom is it addressed? 78
7 The Rule of Recognition: power-conferring and duty-imposing 81
8 The unity of the Rule of Recognition: disagreements over details 84
9 The unity of the Rule of Recognition: multiple criteria 85
10 The unity of the Rule of Recognition: institutional hierarchies 88
11 The ultimacy of the Rule of Recognition 91
12 The Rule of Recognition: the foundational level and the codified level 92
13 The intertwining of the Rule of Recognition and other secondary norms 97
14 Interdependent but distinct: a riposte to Shapiro 99
15 Interdependent but distinct: a riposte to Waldron 101
16 Interdependent but distinct: a riposte to MacCormick 103
17 The problem of circularity 105
18 Necessary and sufficient conditions 107
4 Hart on Legal Interpretation and Legal Reasoning 110
1 Crucial distinctions 112
2 Hart on formalism and rule-skepticism 133
5 Law and Morality 148
1 Separability theses 149
2 Hart on the minimum content of natural law 164
3 Inclusive versus Exclusive Positivism 173
4 Hart as an expressivist? 180
6 Conclusion 204
Notes 207
References 215
Index 222
