"One Man's Theory....": A Metatheoretical Analysis of H.L.A. Hart's Model of Law

84 Pages Posted: 17 Dec 2010

See all articles by F. Patrick Hubbard

F. Patrick Hubbard

University of South Carolina School of Law

Date Written: 1976

Abstract

Jurisprudence is a tantalizing concern. The fundamental importance of its issues and subject matter entices scholars; but agreement on these fundamental matters, like the legendary fruits hanging over Tantalus, always eludes jurisprudents. Underlying this debate is the lack of a jurisprudential "metatheory" or "theory of theory," which would be addressed to three interrelated methodological tasks: First, the selection of theoretical tasks or functions, i.e., the determination of the questions the science and its theory should consider. Second, the construction of theories which are logically consistent, unambiguous, and "testable" in terms of objective criteria. Third, the evaluation of theories to determine the degree to which their tasks are accomplished and to compare conflicting theories. With such a metatheory it would be possible, for example, ,to identify areas of actual disagreement as opposed to perceived disagreement and to compare theories which are in conflict by some criteria of "validity." Thus, metatheory could play an important role in jurisprudence; however, with a few notable exceptions, the development of metatheory has generally been ignored. This Article will make specific proposals for such a development and demonstrate the usefulness of metatheory in .terms of constructing and comparing theories. The discussion begins with a summary of a proposed metatheoretical perspective. This perspective is then illustrated by examining the theory of law presented by H.L.A. Hart in The Concept of Law.

Hart’s model will be presented in summary form and then subjected to a critical analysis. At several points in this latter discussion conventional jurisprudential criticism will be considered. However, the purpose of this article is not to present a complete or exhaustive account of this type of criticism. Rather the concern is to demonstrate the proposed metatheoretical approach by analyzing Hart’s model in depth and by occasionally contrasting this approach with conventional theoretical criticism. This concern will be developed further in the concluding section of the article, which presents a sketch of a possible "model of jurisprudence."

Keywords: Hart, H.L.A. Hart, Dworkin, Ronald Dworkin, Fuller, Lon Fuller, jurisprudence, legal theory, concept of law

Suggested Citation

Hubbard, F. Patrick, "One Man's Theory....": A Metatheoretical Analysis of H.L.A. Hart's Model of Law (1976). Maryland Law Review, Vol. 36, p. 39, 1976, Available at SSRN: https://ssrn.com/abstract=1726061

F. Patrick Hubbard (Contact Author)

University of South Carolina School of Law ( email )

1525 Senate Street
Columbia, SC 29208
United States

HOME PAGE: http://sc.edu/study/colleges_schools/law/faculty_and_staff/directory/hubbard_patrick.php

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