1776–1976: Law in the Perspective of Philosophy

H. L. A. Hart

in Essays in Jurisprudence and Philosophy

Published in print November 1983 | ISBN: 9780198253884
Published online March 2012 | e-ISBN: 9780191681431 | DOI:
1776–1976: Law in the Perspective of Philosophy

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This chapter provides a discussion on law with the perspective of philosophy. The liveliest and most interesting modern writings in political and legal theory contain frank and fundamental challenges to Bentham's thought about law and politics. This chapter takes two examples of new ideas and raises the question of whether it should do well to regard them in terms of disposing of Bentham's thought in these fields. In his attack in 1776 on the Declaration of Independence Bentham talked as if the concept of a non-positive right, that is one not created by the law or social custom, was coherent and not self-contradictory, though his own view was that it was indeed self-contradictory and a species of nonsense. This chapter addresses a modern challenge to the legal positivism inherited from Bentham. It considers, very briefly, one aspect of this modern challenge: namely the new form of the old indictment that the positivist has misrepresented the nature of the judicial process. In general, there is much unfinished business in the future of law and philosophy.

Keywords: philosophy of law; political theory; legal theory; Bentham; legal positivism; Declaration of Independence

Chapter.  5670 words. 

Subjects: Jurisprudence and Philosophy of Law

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