H.L.A. Hart’s Hermeneutic Positivism: On Some Methodological Difficulties in The Concept of Law

Abstract

Despite the tremendous literature that has sprung up concerning Hart’s The Concept of Law, one very important feature of the work has been somewhat overlooked: its methodological underpinnings. While Hart himself says The Concept of Law may “be regarded as an essay in descriptive sociology”, this claim has not received adequate philosophical examination. Though a dedicated philosophical positivist, the distinctive feature of Hart’s legal philosophy – the internal aspect of rules – requires a social science methodology that moves him in the direction of hermeneutics. In defending the importance of the internal aspect of rules against the predictive theory of Scandinavian Legal Realist Alf Ross, Hart argues that without the internal aspect, onejettisons something vital not only to the understanding of law but of any form of normative social structure. For the understanding of this the methodology of the empirical sciences is useless; what is needed is a ‘hermeneutic’ method which involves portraying rule-governed behaviour as it appears to its participants, who see it as conforming or failing to conform to certain standards.