Herbert L. A. Hart (1907-1992). From the History of Legal Positivism

Abstract

The paper is an attempt to present the influence of British analytic philosophy on the shaping of philosophical and legal concepts proposed by H.L.A. Hart. The views of that eminent philosopher and jurist were practically established already in the 50s of the 20th century, as can be seen in his Definition and Theory in Jurisprudence (1953), Causation in the Law (1956) and Positivism and the Separation of Law and Morals (1958). His greatest accomplishment, however, is The Concept of Law from 1961 in which he attempted a comprehensive definition of the essence of law. In his opinion, the notion of law may be analysed in at least two aspects (i) as a reflection originating in analytical jurisprudence, and (ii) an essay on descriptive philosophy. It is that very difference between the two that requires a reference to the context which British analytic philosophy, and ordinary language philosophy in particular, constitutes for the notion of law. The author analyses the views of those representatives of „soft” analytic philosophy, who had unquestionably influenced Hart’s works, i.e. L. Wittgenstein and his theory of language games and family relations, and J.L. Austin.

In the paper, presumption and argumentation from model samples, the two analytical methods that Hart used to justify his theory of law, are analysed in a number of selected examples. The importance of this methodology for the explanation of the complex character of the foundations of Hart’s concept of law, i.e. the recognition method, is also emphasised.