Hart’s Concept of Law: Positivist Legal Theory or Sociology? Glen Wright This paper will consider the extent to which HLA Hart can be said to have turned the positivist tradition of legal thought from positivism to a sociology of law. Hart's claim to be engaging in 'descriptive sociology' is first considered, followed by the submission that Hart's gesture towards natural law is distinctly sociological. The significance of the ‘critical reflective attitude’ is then discussed and, finally, the sociology of secondary rules will be examined. This paper will conclude that, while Hart infused his theory with sociology in an attempt to circumvent what he saw as the restrictive nature of Austinian formalism, he remained true to the core tenets of positivism, and, ultimately, expounded a positivist theory, not a sociology, of law. Locating or formulating definitions of the concepts discussed herein, such as 'positivism' or 'sociology of law', is difficult. For example, “legal positivism... has been variously evolved and... shows signs of excessive pluralism and theoretical fragmentation... so much so that nothing we can say about [it] can be agreed to by all positivists.”1 Yet such definitions are necessary in order to place Hart’s theory on the theoretical spectrum. Given that this paper is concerned with these concepts at a general level, determining where Hart's theory lies in the broadest sense, general definitions will suffice. Cotterrell offers such a definition.2 He suggests a distinction between normative and empirical theories of law, corresponding to jurisprudential theories and sociologies of law respectively. The former is a “theory which seeks to explain the character of law solely in the terms of legal doctrine *and other legal concepts+”;3 the latter “seeks to explain the character of law in terms of historical and social conditions and treats… law as... explicable in terms of their social origins and effects.”4 Raz’s definition of positivism is helpful as it seeks to identify the essence of traditional positivist theories, rather than a specific definition. 5 Raz notes that “*three+ major theses have been traditionally associated with legal positivism”: the reductive semantic thesis, which “proposes a reductive analysis of legal statements according to which they are non-normative, descriptive 1 2
Letsas, „H.L.A Hart‟s Conception of Law‟  UCL Jurisprudence Review 187-194, 187.
Cotterrell, „The Sociological Concept of Law‟ (1983) 10 J of L & Society 241-255, 241. However, note Moore, „Description and Analysis in the Concept of Law: a Response to Stephen Perry‟ (2002) 8 Legal Theory 91–114, 99 suggesting that even Cotterrell‟s general framework may be unhelpful. 3 4 5
Raz, „The Purity of the Pure Theory‟ in Penner, Schiff and Nobles (eds), Introduction to Jurisprudence and Legal Theory: Commentary and Materials (OUP, Oxford 2005) 202.
statements”;6 the contingent connection thesis, which states that “there is no necessary connection between law and moral values”;7 the sources thesis, that “the identification of the existence and content of law does not require resort to any moral argument.”8 Freeman suggests that sociological theories of law generally involve a rejection of the uniqueness of law and of law as a closed logical order, a focus on the law in action and use of sociological methods.9 Hart's 'Descriptive Sociology' Claim An obvious starting point for this assessment is Hart’s ‘notorious’10 hope, expressed in the preface to The Concept of Law,11 that his work “may also be of use to those whose chief interests are in… sociology, rather than in law” and that “*n+otwithstanding its concern with analysis the book may also be regarded as an essay in descriptive sociology”.12 Adding to the definitional woes outlined above, Hart fails to define what he meant by ‘descriptive sociology’. As Krygier notes, “*a+ sympathetic critic can be sceptical about the claim… because the idea...