The Basic Concept of Professor Hart's Jurisprudence

Abstract

THERE are but a few days-of who shall say what importancebetween the Julian and Gregorian calendars, considered as schemes for the interpretation of recurrent movements in our solar system. And yet, from the point of view of each, the other seems somewhat out in respect of the characterisation of nearly every year, month, week and individual day. The gap between the legal theories of John Austin and Professor Hart-between their models of the legal universe-is somewhat more than this. Its demonstration provides the foundation for Professor Hart's new book. 1 But there may here be some analogy to what divides the concept of law, as elucidated by Professor Hart in terms of rules, from the concept of law as a system of action constructed by the writer in earlier numbers of this Journal. 2 If Professor Hart now reveals himself as conceptual pragmatist as well as linguistic philosopher 3 the writer's gratitude to Professor Hart in the latter capacity is only tinged with regret that he does not display greater boldness in the former. Despite his claim to have contributed " an essay in descriptive sociology " (p. vi), it is clear that jurisprudence remains for him under the theoretical umbrellas of logic and philosophy rather than under those of " the still young sciences of psychology and of sociology " (p. 189) in which a general theory of action is being developed. Indeed for information concerning " human nature and the world in which men live " Professor Hart relies on " some very obvious

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“…The definition of law has been the subject of many debates (Salmond & Fitzgerald, 1966, p. 12), and its notion is surrounded by philosophical perplexities (Hart, 1963, p. 6). Thus, the law can be regarded as a basic concept of jurisprudence (King, 1963); with the various theories of law advanced to what the nature of the law might be; so building up a complete and rounded picture of the subject (Salmond & Fitzgerald, 1966, p. 13). Some authors argue that there is a lack of existing connection between law and morality (legal positivism; Black, 1979), whereas others suggest that there is an interplay between law and morality (natural law; Strauss, 1968, p. 137).…”