Hart, Raz and the Concept of a Legal System Author(s): Sean Coyle Source: Law and Philosophy, Vol. 21, No. 3, (May, 2002), pp. 275-304 Published by: Springer Stable URL: http://www.jstor.org/stable/3505206 Accessed: 03/07/2008 22:15
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HART,RAZ AND THE CONCEPTOF A LEGALSYSTEM
(Accepted 10 September2001)
ABSTRACT. An underpinning assumptionof modem legal positivism is thatthe differ from normativestandards otherspheres in question of how legal standards of human thought is resolved via the concept of a legal system and the notion of internallogic, throughuse of contextual definition. This approachis seen to lead to an untenableform of structuralism altogetherat odds with the positivist's intentions.An alternativestrategyis offered which allows the positivists to retain their deepest insights, thoughat aprice. KEY WORDS: institutional theory, internal logic, legal system, positivism, semantics, structuralism
One central question for legal positivists is: how does law differ in essential respects from political standardson the one hand, and moralityon the other?This question has sometimes (and unwisely) been seen by some critical theorists as forcing legal positivism into abattle on two fronts: though the positivist is committed to maintainingsome conceptual distance between law and the kind of objective moral standardswhich often form the basis of natural
law claims,1 this cannot - if positivism is sustainable - lead to
a situation in which the criteria employed by judges in reaching decisions at law embody no more than the substantive political leanings of thecollectivity to which the law applies. Though the picture this criticism raises is perhaps naive in its assumptionof a kind of equidistancebetween positivism and its objectivist and subjectivist rivals, the underlying point it makes might nevertheless be troubling:in what sense is law, accordingto the positivists,
1 The pictureof naturallaw which this dilemmaposes is, of course, questionable onindependentgrounds.I do not howeverpropose to go into this questionin the presentpaper.
9 ? KluwerLaw International2002.
Law and Philosophy 21: 275-304,2002.
as positivism'sattraction a theoryderived really law? Contemporary from its ability seemingly to replaceimplausibleassumptionsabout to conceptualstructures which we had no obvious epistemic access or (likeGrundnorms categoricalimperatives)with somewhatmore ones concerning knowable criteria of recognition (such plausible as Hart'sRule of Recognition), without threateningto collapse the boundaries between law and other spheres of human thought or activity.If our sceptic's claim is correct,this achievementis illusory.
II. THE SCEPTIC'S CLAIM
The centrepiece of the positivist conception of law is its...
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