Socio-Legal Positivism and a General Jurisprudence

Abstract

H.L.A. Hart described his classic book, The Concept of Law, as a work in 'descriptive sociology', and his aspiration was to produce a general jurisprudence. He was less than successful in achieving both of these aims. This article attempts a comprehensive reconstruction of legal positivism in a manner that will render it more compatible with a sociological approach, and more amenable to the project of general jurisprudence. The label 'socio-legal positivism' reflects the fact that this article grafts the insights and orientation of socio-legal theory onto the core tenets of legal positivism. In the course of this reconstruction, certain traditional views of legal positivists, especially those regarding the function of law and the nature of the concept of law, are discarded or modified. A number of Hart's key insights are preserved, but resituated within a broader framework. And the relationship between legal positivism and natural law is altered dramatically. The result of this re construction is the foundation for the construction of a general jurisprudence that better fits the complex and variable situation of law in society today.