Title

A Response to Hart on Penumbra in Law: Kovesi's Account of Concept Formation

Publication Type

Journal Article

Publication Date

12-2013

Abstract

In a famous debate on jurisprudence held in 1958 between H. L. A. Hart and Lon Fuller, the protagonists argued about the nature of the law. On one side was H. L. A. Hart, who was a staunch defender of two ideas, first, that law was to be separated from morals, and secondly, that law as it is should be separated from law as it ought to be. These two ideas are subtly different. On the other side, is Fuller, who argues that law cannot be understood apart from its reason for being formulated in the first place. In relation to Hart's two ideas, the paper shows how both rest upon an unstated hidden motivating assumptions, clues to which can be found in both "Positivism and the Separation of Law and Morals" and 'The Concept of Law'. This assumption is that Hart is committed to a distinctively liberal account of morality (with all that this entails) which finds expression in the rule of law. The paper argues that the project of finding a purely descriptive account of law is impossible in the Hartian sense since the descriptive/evaluative dichotomy is a false dichotomy. This is achieved by means of the Kovesian analysis of concept formation.

Keywords

Concept, Law, Legal positivism, political philosophy, Kovesi, Hart

Discipline

Philosophy

Research Areas

Humanities

Publication

Res Disputandae: A Journal for Philosophy and Ethics in the Christian Tradition

Volume

19

First Page

17

Last Page

47

ISSN

1444-8386

Publisher

Irish Studies Association of Australia and New Zealand

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