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Conceptual JurisprudenceHard Cases and Legal Validity: The Internal Moral Significance of Law

Conceptual Jurisprudence: Hard Cases and Legal Validity: The Internal Moral Significance of Law [One of Hart’s central insights about law, and his major advance over Austin, is to argue for law’s internal normative structure, and to place this at the centre of his theory of law. Hart not only showed that law consists of an ordered system of rules rather than a collection of commands backed by threats, but he also argued that this internal normative framework is essential for a theory of law. This paper argues for the moral significance of law so conceived. As against instrumentalist accounts of law, I argue that it is the internal normative structure of law that gives it its distinctive moral force. Here, I argue that the moral significance of such an internally structured system of rules is lost or distorted when one focuses on law’s external ends. With this understanding of law in mind, I argue, positivists can solve the difficulty of hard cases raised by Riggs v. Palmer, which is often understood to raise a problem of external moral considerations in law. I argue that the internal normative structure that Hart places at the centre of his account of law is sufficient for positivists to meet this challenge raised by Dworkin and his followers.] http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png

Conceptual JurisprudenceHard Cases and Legal Validity: The Internal Moral Significance of Law

Part of the Law and Philosophy Library Book Series (volume 137)
Editors: Fabra-Zamora, Jorge Luis; Villa Rosas, Gonzalo
Kisilevsky, Sari
Conceptual Jurisprudence — Sep 2, 2021
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References (8)

Publisher
Springer International Publishing
Copyright
© Springer Nature Switzerland AG 2021
ISBN
978-3-030-78802-5
Pages
197 –223
DOI
10.1007/978-3-030-78803-2_12
Publisher site
See Chapter on Publisher Site

Abstract

[One of Hart’s central insights about law, and his major advance over Austin, is to argue for law’s internal normative structure, and to place this at the centre of his theory of law. Hart not only showed that law consists of an ordered system of rules rather than a collection of commands backed by threats, but he also argued that this internal normative framework is essential for a theory of law. This paper argues for the moral significance of law so conceived. As against instrumentalist accounts of law, I argue that it is the internal normative structure of law that gives it its distinctive moral force. Here, I argue that the moral significance of such an internally structured system of rules is lost or distorted when one focuses on law’s external ends. With this understanding of law in mind, I argue, positivists can solve the difficulty of hard cases raised by Riggs v. Palmer, which is often understood to raise a problem of external moral considerations in law. I argue that the internal normative structure that Hart places at the centre of his account of law is sufficient for positivists to meet this challenge raised by Dworkin and his followers.]

Published: Sep 2, 2021

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