Abstract
HLA Hart famously argues that legal obligation is best understood by
analysing law as a species of social rule. This article engages with recent
work in social psychology and norm theory to critically evaluate Hart’s
theory. We draw on the social intuitionist model of practical decisionmaking associated with Amos Tversky, Daniel Kahneman and Jonathan
Haidt to argue that legal officials rely on holistic intuitive judgements
to identify their legal obligations. We then explain the evolution and
persistence of legal rules by reference to the theory of social norms offered
by Cristina Bicchieri. This way of thinking about legal obligation lends
support to Hart’s account of law as a social practice. However, it challenges
other aspects of his views, such as the idea that the only necessary factor
in determining the content of law is its socially recognised sources. It
also casts doubt on Hart’s claim that legal obligation does not empirically
extend beyond legal officials to other members of the community. Hart’s
account can be adapted to meet these criticisms, but not without undermining its commitment to legal positivism.
analysing law as a species of social rule. This article engages with recent
work in social psychology and norm theory to critically evaluate Hart’s
theory. We draw on the social intuitionist model of practical decisionmaking associated with Amos Tversky, Daniel Kahneman and Jonathan
Haidt to argue that legal officials rely on holistic intuitive judgements
to identify their legal obligations. We then explain the evolution and
persistence of legal rules by reference to the theory of social norms offered
by Cristina Bicchieri. This way of thinking about legal obligation lends
support to Hart’s account of law as a social practice. However, it challenges
other aspects of his views, such as the idea that the only necessary factor
in determining the content of law is its socially recognised sources. It
also casts doubt on Hart’s claim that legal obligation does not empirically
extend beyond legal officials to other members of the community. Hart’s
account can be adapted to meet these criticisms, but not without undermining its commitment to legal positivism.
| Original language | English |
|---|---|
| Pages (from-to) | 217-241 |
| Number of pages | 25 |
| Journal | Adelaide Law Review |
| Volume | 41 |
| Issue number | 1 |
| Publication status | Published - 2020 |