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Philosophy of Law$
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Andrei Marmor

Print publication date: 2011

Print ISBN-13: 9780691141671

Published to Princeton Scholarship Online: October 2017

DOI: 10.23943/princeton/9780691141671.001.0001

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Social Rules at the Foundations of Law

Social Rules at the Foundations of Law

Chapter:
(p.35) Chapter Two Social Rules at the Foundations of Law
Source:
Philosophy of Law
Author(s):

Andrei Marmor

Publisher:
Princeton University Press
DOI:10.23943/princeton/9780691141671.003.0003

This chapter presents some of H. L. A. Hart's main contributions to legal philosophy. Hart's The Concept of Law is widely regarded as the single most important contribution to legal philosophy in the twentieth century. It shows that Hart's theory is the most consistent and sustained attempt to develop a detachment view of law and legal philosophy, and one that is thoroughly reductive. The chapter introduces another separation, or detachment, that Hart's theory attempted, and one that is less successful: the detachment of law from state sovereignty. The legal positivist tradition, from Hobbes to the main positivists of the nineteenth century, conceived of law as the instrument of political sovereignty, largely influenced by the emergence of the modern state. Hart tried to show that this identification of law with state sovereignty is profoundly misguided; law is independently grounded on social rules, not on political sovereignty. It is argued that Hart's attempt to separate our understanding of law from the concept of sovereignty is only partly successful.

Keywords:   H. L. A. Hart, legal philosophy, detachment view, state sovereignty, social rules

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