Consider H.L.a Harts Critique of Austin Positivist Theory of Law. Do You Think H.L.a Hart Succeeds in Develeping an Alternative Account of Law Which Is Persuasive
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
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