H. L. A. HART'S CONCEPT OF LAW IN THE PERSPECTIVE OF AMERICAN LEGAL REALISM
| Date | 01 November 1972 |
| Published date | 01 November 1972 |
| Author | E. Hunter Taylor |
| DOI | http://doi.org/10.1111/j.1468-2230.1972.tb01343.x |
H.
L.
A. HART’S CONCEPT
OF
LAW IN THE
PEIRSPECTIVE
OF
AMERICAN
LEGAL
REALISM
1.
INTRODUCTION
ANALYTICAL
jurisprudence is the dominant theme of the legal
theory
of
Professor
H.
L.
A.
Hart. But other jurisprudential
approaches are discernible in his thought. One of the more import-
ant of these other approaches is that of American Legal Realism.
While Hart adopts some Realist tenets, he is severely critical of
others. His criticism of Realism may be designed chiefly for effect.
That is to say, Hart may have caricatured American Legal Realism
primarily to make more vivid certain points in his own theory. Be
that as
it
may, Hart’s distortion of Realism is
so
great as to require
response. The writer is of the opinion that Hart and the Realists
are not as incompatible in thinking as Hart in his
The Concept
of
Law
seems to suggest.
Recognition of one point is essential to a meaningful comparison
of Hart and the Realists: Hart’s attempt, in the tradition of
analytical jurisprudence, is to describe a universal legal system,
while the Realists seek a method of critical examination rather than
a philosophy of law. As Karl Llewellyn, the greatest Realist,
explained
:
“There is no school of realists. There
is
no likelihood that
there will be such a school. There is, however, a
movement
in
thought and work about law. The movement, the method of
attack,
is
wider than the number of its adherents.
It
includes
some
or
much work of many men who would scorn ascription
to its banner.”
Because there is no attempt by the Realists to formulate a complete
theory of law, point by point comparison of Hart and the Realists
is not possible. What is possible is a comparison of the respective
focuses of attention with a consequent illumination of differences in
the degree of importance attached by each to various phases
of
law
and legal methodology.
While there is no simple system of American Legal Realism,
adherents of the method do, however, share several
“
common
points of departure.” Three of these, adopted from
Mr.
Justice
Holmes’
The
Path
of
the
Law,
are:
(1)
separation of law and
morality, which is common to both the Realists and Hart;
(2)
the
fallacy of the logical form as the source for answers to legal ques-
1
I(.
Llewellyn,
“
Some Realism
About
Realism,”
(1931)
44
Harv.L.Rev.
1222, 1233-1234.
606
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