Hart’s Legal Philosophy: An Examination

321 Pages·1992·12.236 MB·English

by  Michael D. Bayles (auth.)

HART'S LEGAL PHll..OSOPHY
Law and Philosophy Library
VOLUME 17
Managing Editors
ALAN MABE, Department of Philosophy, Florida State University,
Tallahassee, Florida 32306, U.S.A.
AULIS AARNIO, Department of Civil Law, University ofH elsinki,
Vuorikatu 5c, SF"()()100 Helsinki, Finland
CONRAD D. JOHNSONt, Department ofP hilosophy,
University ofM aryland, College Park, Maryland 20742-7615, U.S.A.
Editorial Advisory Board
ROBERT ALEXY, Lehrstuhlfilr Offentliches Recht und Rechtsphilosophie,
Christian Albrechts-Universitiit, Kiel
GEORGE P. FLETCHER, School ofL aw, Columbia University
ERNESTO GARZOO VALDEs, 1nstitutjilr Politikwissenschajt,
Johannes Gutenberg Universitiit Maim
JOHN KLEINIG, Department ofL aw, Police Science and Criminal
Justice Administration, John Jay College ofC riminal Justice,
City University of New York
NICOLA LACEY, New College, Oxford University
NEIL MacCORMICK, Centre for Criminology and the Social and
Philosophical Study ofL aw, Faculty ofL aw, University of Edinburgh
ALEKSANDER PECZENIK, Juridiska 1nstitutionen, University ofL und
NIGEL SIMMONDS, Corpus Christi College, Cambridge University
ROBERT S. SUMMERS, School ofL aw, Cornell University
ALICE ERH-SOON TA Y, Faculty ofL aw, University ofS ydney
ERNEST J. WEINRIB, Faculty ofL aw, University ofT oronto
CARL WELLMAN, Department ofP hilosophy, Washington University
The titles published in this series are listed at the end of this volume.
t
MICHAEL D. BAYLES
Department of Philosophy.
Florida State University
HART'S
LEGAL PHILOSOPHY
An Examination
Springer-Science+Business Media, B.v.
Library of Congress Cataloging-in-Publication Data
Bayles. Mlchael D.
Hart's legal phl1osophy : an exa.lnatlon / Mlchael D. Bayles.
p. CI. -- (Law and phl1osophy library; v. 17)
Includes bibliographical references and lndex.
1. Law--Phl1osophy. 2. Hart. H.L.A. (Herbert Lionel Adolphus).
1907- I. Tltle. II. Serles.
K230.H3652B39 1992
340',1--dc20 92-30371
ISBN 978-90-481-4208-8 ISBN 978-94-015-8086-1 (eBook)
DOI 10.1007/978-94-015-8086-1
Printed on acid-free paper
All Rights Reserved
© 1992 Springer Science+Business Media Dordrecht
Originally published by Kluwer Academic Publishers in 1992.
Softcover reprint of the hardcover 1s t edition 1992
No part of the material protected by this copyright notice may be reproduced or
utilized in any form or by any means, electronic or mechanical,
including photocopying, recording or by any information storage and
retrieval system, without written permission from the copyright owner.
To Rick, Tricia, and Doug
Table of Contents
EDITORIAL PREFACE ix
PREFACE xi
1. PROBLEMS AND DEFINITIONS 1
1.1 Problems 1
1.2 Definitions 6
1.3 Linguistic Analysis and Normativity 15
2. A CRITIQUE OF AUSTIN 21
2.1 The Austinian Theory 21
2.2 Laws as Commands 23
2.3 Concept of a Sovereign 35
3. ELEMENTS OF LAW 43
3.1 Obligation 43
3.2 Internal vs. External Viewpoints 53
3.3 Primary and Secondary Rules 57
4. THE NATURE OF RULES 69
4.1 Existence 69
4.2 Open Texture 85
5. MORALITY AND LEGALITY 101
5.1 Morality 101
5.2 Justice 110
5.3 Natural Law 116
5.4 Positivism 122
6. RIGHTS 141
6.1 Concept 141
6.2 Justifications 151
viii
7. HART VS. DWORKIN 165
7.1 Dworkin's Criticisms of Hart 166
7.2 Judicial Discretion 174
7.3 Moral Rights and Evil Law 181
8. LEGISLATION OF MORALITY 191
8.1 Mill and the Wolfenden Report 191
8.2 Devlin's Challenge 194
8.3 Legal Moralism 200
8.4 Defense of Antimoralism 218
9. MENTAL CONDITIONS OF CRIMINAL
RESPONSIBILITY 229
9.1 Human Action 230
9.2 Mens Rea 239
9.3 Intention and Negligence 245
10. JUSTIFICATION OF PUNISHMENT 253
10.1 Conceptual Issues 254
10.2 The General Aim of Punishment 261
10.3 Mens Rea and Conviction 267
10.4 Sentences and Mens Rea 281
BIBLIOGRAPHY 293
Abbreviations 293
Works by Hart 294
Works Cited or About Hart 297
INDEX 313
EDITORIAL PREFACE
During the last half of the twentieth century, legal philosophy (or legal theory
or jurisprudence) has grown significantly. It is no longer the domain of a few
isolated scholars in law and philosophy. Hundreds of scholars from diverse
fields attend international meetings on the subject. In some universities, large
lecture courses of five hundred students or more study it.
The primary aim of the Law and Philosophy Library is to present some of
the best original work on legal philosophy from both the Anglo-American and
European traditions. Not only does it help make some of the best work
available to an international audience, but it also encourages increased aware
ness of, and interaction between, the two major traditions. The primary focus
is on full-length scholarly monographs, although some edited volumes of
original papers are also included. The Library editors are assisted by an
Editorial Advisory Board of internationally renowned scholars.
Legal philosophy should not be considered a narrowly circumscribed field.
Insights into law and legal institutions can come from diverse disciplines on
a wide range of topics. Among the relevant disciplines or perspectives
contributing to legal philosophy, besides law and philosophy, are anthropol
ogy, economics, political science, and sociology. Among the topics included
in legal philosophy are theories of law; the concepts of law and legal institu
tions; legal reasoning and adjudication; epistemological issues ofe vidence and
procedure; law and justice, economics, politics, or morality; legal ethics; and
theories of legal fields such as criminal law, contracts, and property.
MANAGING EDITORS
ix
PREFACE
Michael Bayles knew before his death that this book would be published. He
left instructions for the final steps needed for publication. While Michael
considered the manuscript to be in final form, he requested that his friend
Professor Kenneth Henley read the manuscript for any substantive corrections
that might be needed. Ken Henley generously did that and prepared the index
as well. I am sure Michael would want me to express his appreciation for Ken
Henley's contribution to this manuscript. Camera-ready copy was to be
prepared by the Department of Philosophy. Ms. Roxane Fletcher did the final
copy editing of the manuscript and Ms. Margaret Vanos prepared the camera
ready copy for publication. Ms. Cathy Butler was responsible for the initial
typing of the manuscript. Again I am sure that Michael would want me to
express his thanks for their work on his manuscript. Chapter 10, Hart vs.
Dworkin appeared in a slightly edited form in Law and Philosophy 10 (1991),
349-82.
AlanMabe
xi
CHAPTER!
PROBLEMS AND DEFINITIONS
Philosophers of law traditionally asked questions of the fonn 'What is X?'
"What is law?", "What is a corporation?", "What is a legal right?" This fonn
of philosophical problem stems from Plato, who took it to be asking for a real
definition of the nature or essence of the entity in question. The question 'What
is X?' is ambiguous. It can ask for the purpose or cause or justification of
institutions or practices as well as for definitions (EJP,21). Long after this
fonn of raising problems had been abandoned in most branches of philosophy,
philosophers of law continued to use the old form and treat it as calling for a
definition of the tenn.
Professor H. L. A. Hart devotes much time and effort to identifying the
problems that prompted philosophers oflaw to continue to ask such questions,
considering the appropriateness of attempts to solve these problems by giving
definitions, and elucidating other problems in the philosophy of law. In
particular he maintains that (1) philosophical perplexities in law do not stem
from the vagueness of legal terms; and (2) definitions of legal tenns, at least
of a traditional sort, are of no help in resolving these philosophical perplexities.
Hence, (3) he proposes alternative methods for defining or elucidating legal
tenns and addressing other problems in the philosophy of law. His strictures
on these points quickly gained such widespread acceptance that some legal
philosophers take them as uncontroversial principles of legal philosophy
(Summers 1968, 1-21). Whether or not Hart's particular views are accepted,
he has transfonned AnglO-American legal philosophy during the last part of
the twentieth century. (These two paragraphs are modified from Bayles 1971,
50.)
1.1 Problems
Hart divides the problems of legal philosophy into three groups-those of
definition and analysis, legal reasoning, and criticism of law (EJP, 89).
However, most of his writing involves a blend of two or more of these
concerns. His major work, The Concept of Law, addresses problems of both
analysis and legal reasoning. His papers collected in the volume Punishment
and Responsibility involve both analysis and criticism. His essays collected