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Consider H.L.a Harts Critique of Austin Positivist Theory of Law. Do You Think H.L.a Hart Succeeds in Develeping an Alternative Account of Law Which Is Persuasive

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Consider H.L.a Harts Critique of Austin Positivist Theory of Law. Do You Think H.L.a Hart Succeeds in Develeping an Alternative Account of Law Which Is Persuasive
Hart’s Concept of Law: Positivist Legal Theory or Sociology? Glen Wright This paper will consider the extent to which HLA Hart can be said to have turned the positivist tradition of legal thought from positivism to a sociology of law. Hart 's claim to be engaging in 'descriptive sociology ' is first considered, followed by the submission that Hart 's gesture towards natural law is distinctly sociological. The significance of the ‘critical reflective attitude’ is then discussed and, finally, the sociology of secondary rules will be examined. This paper will conclude that, while Hart infused his theory with sociology in an attempt to circumvent what he saw as the restrictive nature of Austinian formalism, he remained true to the core tenets of positivism, and, ultimately, expounded a positivist theory, not a sociology, of law. Locating or formulating definitions of the concepts discussed herein, such as 'positivism ' or 'sociology of law ', is difficult. For example, “legal positivism... has been variously evolved and... shows signs of excessive pluralism and theoretical fragmentation... so much so that nothing we can say about [it] can be agreed to by all positivists.”1 Yet such definitions are necessary in order to place Hart’s theory on the theoretical spectrum. Given that this paper is concerned with these concepts at a general level, determining where Hart 's theory lies in the broadest sense, general definitions will suffice. Cotterrell offers such a definition.2 He suggests a distinction between normative and empirical theories of law, corresponding to jurisprudential theories and sociologies of law respectively. The former is a “theory which seeks to explain the character of law solely in the terms of legal doctrine *and other legal concepts+”;3 the latter “seeks to explain the character of law in terms of historical and social conditions and treats… law as... explicable in terms of their social origins and effects.”4 Raz’s definition of positivism is


Bibliography: Bankowska and Adler (trs), Bankowski (ed), Teubner, Law as an Autopoietic System, (The European University Institute Press Series, Blackwell, Oxford 1993). Bayles, Hart’s Legal Philosophy: An Examination (Kluwer Academic Publishers, Dodrecht 1992) 53-45. Bodenheimer, ‘Modern Analytical Jurisprudence and the Limits of Its Usefulness’ (1956) 104(8) U of Pennsylvania L Rev 1080-1086. Coleman (ed), Hart 's Postscript: Essays on the Postscript to The Concept of Law (2nd edn, OUP, Oxford 2001). Colvin, ‘The Sociology of Secondary Rules’ (1978) 28 University of Toronto Law Journal 196-214. Cotterrell, Law’s Community: Legal Theory in Sociological Perspective (OUP, Oxford 1995). Cotterrell, The Sociology of Law: An Introduction (2nd edn Butterworths, London 1992). Cotterrell, The Politics of Jurisprudence: A Critical Introduction to Legal Philosophy (Butterworths, London 1989). Cotterrell, ‘The Sociological Concept of Law’ (1983) 10 J of L & Society 241-255. Fitzpatrick, The Mythology of Modern Law (Routledge, London 1992). Freeman, ‘Law and Sociology’ (2005) 8 Current Legal Issues 1-15. Galligan, Law In Modern Society (Clarendon Law Series, OUP, Oxford 2006) Hart, Analytic Jurisprudence in Mid-twentieth Century: A Reply to Professor Bodenheimer (1957) 105(7) U of Pennsylvania L Rev 953- 975. Hart, The Concept of Law (2nd edn OUP, Oxford 1994). Hoebel, The Law of Primitive Man (Harvard University Press, Harvard 1954). Krygier, ‘The Concept of Law and Social Theory’ (1982) 2(2) OJLS 155-180. Lacey, A Life of HLA Hart: The Nightmare and the Noble Dream (OUP, Oxford 2004). Lacey, ‘Analytical jurisprudence versus descriptive sociology revisited’ (2006) 84(4) Texas L R 945-982. Letsas, ‘H.L.A Hart’s Conception of Law’ *2000+ UCL Jurisprudence Rev 187-194. MacCormick, H.L.A. Hart (Jurists, Profiles in Legal Theory, Stanford University Press, Stanford 1981). Routledge & Keagan Paul plc (tr), Luhman, A Sociological Theory of Law, (OUP, Oxford 1985). Moore, ‘Description and Analysis in the Concept of Law: a Response to Stephen Perry’ (2002) 8 Legal Theory 91–114. Rokumoto (ed), Sociological Theories of Law (The International Library of Essays in Law and Legal Theory, Dartmouth, Aldershot 1994). Ross, Law as a Social Institution (Hart Publishing, Oxford 2001). Tamanaha, A General Jurisprudence of Law and Society (OUP, Oxford 2001). Penner, D Schiff and R Nobles (eds), ‘Introduction to Jurisprudence and Legal Theory: Commentary and Materials’ (OUP, Oxford 2005). Sugarman, ‘Hart Interviewed: H.L.A. Hart in Conversation with David Sugarman’ (2005) 32(2) J of L & Society 267-293. Twining, ‘Schauer on Hart’ (2006) 119 Harvard L R Forum 122-130. 12

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