Doing Jurisprudence Historically: Interpreting Hart Through J.L. Austin

Abstract

The article addresses the jurisprudential methodology adopted by H.L.A. in The Concept of Law. Hart himself makes very few comments in the book regarding his methodology, and this has resulted in commentators reaching conflicting views as to his approach.

The article argues that contemporary discussions of Hart have paid inadequate attention to Hart's intellectual context at the time he was developing the ideas that ultimately appeared in Concept. It then demonstrates that an appropriate attention to the work of Hart's friend and colleague J.L. Austin, can usefully illuminate certain issues regarding Hart's methodology.

The article does not, that is, argue that Concept is an "Austinian" book, but rather that there are certain aspects of Hart's methodology in Concept that can be traced to views advocated by Austin. This is demonstrated through a detailed discussion of certain elements of Austin's philosophy, combined with an illustration that these ideas can also be found in Concept and in works by Hart leading up to it. Having reached this conclusion, it is demonstrated how attributing these specific views to Hart can shed light on longstanding areas of conflict regarding Hart's methodology in Concept.

Keywords: Austin, Jurisprudence, Hart, Concept of Law

JEL Classification: K10