Abstract: Law is a social construction. It is a historically contingent feature of certain societies, one whose emergence is signaled by the rise of a systematic form of social control and elite domination. In one way it supersedes custom, in another it rests on it, for law is a system of primary social rules that direct and appraise behavior, together with secondary social rules that identify, change, and enforce the primary rules. Law may be beneficial, but only in some contexts and always at a price, at the risk of grave injustice; our appropriate attitude to it is therefore one of caution rather than celebration. Law pretends, also, to an objectivity that it does not have, for whatever judges may say, they in fact wield serious political power to create law. Not only is law therefore political, but so is legal theory there can be no pure theory of law; concepts drawn from the law itself are inadequate to understand its nature. Legal theory is thus neither the sole preserve, nor even the natural habitat, of lawyers or law professors: it is just one part of a general social and political theory. We need such a theory, not to help decide cases or defend clients, but to understand ourselves, our culture, and our institutions, and to promote serious moral assessment of those institutions, an assessment that must always take into account the conflicting realities of life. Those are the most important theses of the late H.L.A. Hart's The Concept of Law, published originally in 1961. Like some other great works of philosophy, however, Hart's book is known as much by rumor as by reading, so it will be unsurprising if, to some, that does not sound like Hart at all. For what circulates as his views
Publication Year: 1996
Publication Date: 1996-05-01
Language: en
Type: article
Indexed In: ['crossref']
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Cited By Count: 69
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