PUBLG032: MEANINGS OF LIBERTY: APPLIED METHODS IN POLITICAL THEORY
Descriptive Methods in Jurisprudence
Normative Aspects of Hart’s Methodology in A Concept of Law
Student: MKNN1
16.11.2009
Essay 1 of 2. Word count: 3270
Analytical writers are used to clearly state the aim of their endeavour; yet it is the methodological analysis which reveals the realization of their intentions. This essay assumes that, despite a clear aim formulation, the methodology used might sometimes undermine an author’s work.
The work under review is H.L.A. Hart’s The Concept of Law, which for the past 60 years has fueled debate in jurisprudence. The current analysis proceeds from Hart’s description of methodology in the book’s preface, where he declares that “the book may also be regarded as an essay in descriptive sociology” (Preface vi). Starting with this claim, this essay assesses Hart’s methodology and suggests that he partially fails to provide a purely descriptive account of law, as he introduces normative elements in his description.
It would not be the first time Hart is criticized for methodological flaws. My contribution has two different aspects: firstly, I aim to classify Hart’s methods and thus organize the possible methodological objections; secondly, I aim to show that Hart is not accountable for all flaws, because some are intrinsic to the methods themselves and can be found in other sciences as well. My thesis is therefore that Hart fails to provide a descriptive sociology of law because of the moral and political, not metatheoretical, elements he introduces.
In view of this thesis, I shall be presenting several methods Hart uses in The Concept of Law providing both a reconstruction of his account and a presentation of possible objections. Preliminarily, I shall present the Benthamic distinction between the Expositor and the Censor in jurisprudence, and argue that Hart was aware of this distinction and hence aware of the normative elements implied in...