The Theoretical Burden of Proof in the Element Selection in H.L.A. Hart's Analysis

Abstract

This paper reflects on the implications of the recent discussions on the methodology of the legal theory on H.L.A. Hart's separation thesis and argues that even if the distinction between the morally or politically evaluative and the theoretical principles is assumed, Hart fails to deliver an adequate analysis, because he fails to live up to the latter type of principles. To that end, first, we will illustrate Hart's two-pronged methodology consisting of positing a marginalized position as to the relationship between 'law and morals' and subjecting to a critical inquiry the present and possible plausible objections to it and discuss its significance to non-evaluative methodological principles and what we can call 'the methodological burden of proof' through an exposition of different aspects of Hart’s analysis. It will be illustrated that Hart takes an ever-changing and conflicting attitude in his element selection and that his methodology can also be utilized in refuting some elements in his analysis. Secondly, we will argue that the point-by-point evaluation in the selection of the possible links between the concepts of law and morality that are to factor into an analysis should be preceded by a higher level determination as to the conceptual links between the concepts and that this determination has methodological implications that turn the tables on the suppositions favoring a wholesale separation as a methodology of conceptual analysis. In this connection, the simple and background concepts of normativity and purposeful action are pointed out as regards this higher level determination and it is argued that the solution is bound to a stable position on the acquirers of the concepts in the analysis. In this connection, we lay down two possible ways the selection process could have proceeded in order for Hart to bring together different aspects of his methodology successfully: For each possible link, the supposition is that: 1) The link is upheld between 'the final products of law' [i.e. representing the positivist focus] and morality for each and every case but some such are excluded for considerations of theoretical simplicity. 2) There is a defeasible presupposition in favor of, not against, the link and the exclusion is only to be justified on the basis of representativeness. If the analysis is not to be redundantly comprehensive and overly pretentious, the second option is argued to offer an adequate analysis in line with Hart's methodological commitments including essentialism and what Stephen Perry calls 'external conceptual analysis'. As against the narrow positivist focus on material elements, we will see to the methodological implications of a proper balance after bringing into the picture concept holders. As the final step, we will draw attention to the structure of concepts and theories of the structure of concepts and argue that focusing on simplicity and complexity in concepts might provide a perspective that can make up for the shortcomings of Hart’s analysis. The result is to reverse the unintentional subsumption of natural law to positive law and a critique of natural law theorists in their misconceived discourse that legitimizes the positivist thesis.