Naturalising the Myth: Hart, Biopolitics, and the Body Corporate

Abstract

This article extends the critique of H. L. A. Hart developed by Peter Fitzpatrick in the conclusion to The Mythology of Modern Law. Fitzpatrick finds myth at the very heart of positivist legal theory, functioning to reproduce an imperialist worldview. Through a focus on Hart’s account of incorporation, this article will argue that Hart naturalises this mythic law by insinuating it into social relations. Incorporation, alongside other ‘facilitative’ or ‘power-conferring’ elements of law such as wills and marriages, are so important that we could not imagine life without them. At the same time, Hart maintains the importance of choice and autonomy in relation to such rules, but in so doing obscures their constitutive function. In his reliance on myth, Hart avoids contending with the history that forms the unacknowledged context for his account of incorporation. By reintroducing this history, this article demonstrates that Hart participates in the normalisation of law that Michel Foucault locates in the union between life and law that is characteristic of biopolitics.