HLA Hart on Viewing Law With Caution Rather Than Celebration

In The Concept of Law (3rd Edition, 2012) (link) H.L.A. Hart discusses the nature of law, coercion and morality, shedding light on various topics that have been in contention always. The Concept of Law “is widely recognized as the most important work of legal philosophy published in the twentieth century”.

Leslie Green, A Professor of Philosophy of Law at Oxford gives an equally compelling introduction to this seminal work. Starting from a point on how to think about the law, he takes the readers through some basics which everyone always talks about, but forget it equally fast.

Talking about what Hart’s work stands for, he says:

Law is a social construction. It is an historically contingent feature of certain societies, one whose emergence is signalled by the rise of a systematic form of social control administered by institutions.

In one way law supersedes custom, in another it rests on it, for law is a system of primary rules that direct and appraise conduct together with secondary social rules about how to identify, enforce, and change the primary rules. A set-up like that can be beneficial, but only in some contexts and always at a price, for it poses special risks of injustice and of alienating its subjects from some of the most important norms that govern their lives.

The appropriate attitude to take towards law is therefore one of caution rather than celebration.

What is more, law sometimes pretends to an objectivity it does not have for, whatever judges may say, they in fact wield serious power to create law. So law and adjudication are political. In a different way, so is legal theory.

There can be no ‘pure’ theory of law: a jurisprudence built only using concepts drawn from the law itself is inadequate to understand law’s nature; it needs the help of resources from social theory and philosophic inquiry.

Jurisprudence is thus neither the sole preserve, nor even the natural habitat, of lawyers or law professors. It is but one part of a more general political theory. Its value lies not in helping advise clients or decide cases but in understanding our culture and institutions and in underpinning any moral assessment of them. That assessment must be sensitive to the nature of law, and also to the nature of morality, which comprises plural and conflicting values.

These ideas are all the more important to think of, given the (absence of) the rule of law so often, and the objectivity with which people tend to treat the law as good.

You can complement this book with Scott Shapiro’s Legality (link) and also listen to this podcast series to read along with these books. Here is a reading list if you are looking for a place to start.

If you are interested in this topic, you could register for a meeting we have with Scott Shapiro, where we discuss his book ‘Legality’. Click here.

To submit a write-up, or share a story, get in touch at umang.poddar@lawctopus.com

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