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The High Point of Legal Positivism: HLA Hart and the theory of law as a self-referring system of rules
DOI link for The High Point of Legal Positivism: HLA Hart and the theory of law as a self-referring system of rules
The High Point of Legal Positivism: HLA Hart and the theory of law as a self-referring system of rules book
The High Point of Legal Positivism: HLA Hart and the theory of law as a self-referring system of rules
DOI link for The High Point of Legal Positivism: HLA Hart and the theory of law as a self-referring system of rules
The High Point of Legal Positivism: HLA Hart and the theory of law as a self-referring system of rules book
ABSTRACT
As the opening quotation indicates, Hart was weil aware that conflict and coerClon were part of the social universe of law, but the main strand of The Concept of LaU! downplayed the elements of coercion, command and habitual obedience in law, replacing the images of power and violence in the jurisprudential imagination by conceiving of law as a system of rules upon rules, of social practices infonned by their own criteria of validity and nonnative obligation. Hart presented the benign and functionalist face ofliberallegality, transforming the early positivist theme of an external coercion enforcing the law and making the subject feel 'obliged' by threat of violence to remain lawful - the threat of sanctions - into an image of the legal subject's nonnative obligation to abide by legal rules. Hart's argument was simple: early positivism had misunderstood law's obligatory nature viewing legality as something politically imposed on an otherwise chaotic social order to structure it, whereas legality was something which developed in evolutionary fashion through a growing complex system of different kinds of ru/es. Beginning with a fundamental recognition that law entails obligation,3 Hart was to develop a theory of law that rendered the source of this obligation an internal effect of the structure of a modem municipal legal system, and rather than bighlighting domination, Hart spoke of 'the shared acceptance of rules' (CL: 98). The law, it seemed, belonged to us all; legal rules were not to be seen as external forces upon us, but as our resources.