Language and the Law in the Legal Philosophy of H.L.A. Hart

Abstract

While H.L.A. Hart is one of the classical figures in positivist legal thought his theory of law nonetheless moved starkly away from the traditional positivist model of law as the creation of a privileged class, aimed at directing the behavior of the general populace. Instead, Hart crafted a theory emphasizing law's status as a normative social system, related though distinguishable from other systems of social rules such as morality and etiquette. Nonetheless, after spending much of "The Concept of Law" emphasizing the social element of law, Hart ultimately settles on a theory of law that excludes ordinary citizens from any role in the development and interpretation of law. This article argues that Hart's rejection of his own insight into the social nature of law arises from his views on legal language. An analysis of two rarely-cited early articles by Hart illustrates that Hart viewed the meaning of legal terms as inseparable from the practices of the legal profession, a position that excluded ordinary citizens from participation in the creation or interpretation of legal rules. The article demonstrates that Hart retained this view of legal language at the time he wrote "The Concept of Law," and argues that it is this view that explains his adoption of a theory of law centered upon the legal profession. It then concludes with a demonstration that Hart's professionalized conception of law can be rejected while still retaining his essential insights into the social nature of law.

Keywords: Hart, jurisprudence, law, legal philosophy, concept of law, rule of recognition