Tamanaha on Hart

The Concept of Law

Hart's The Concept of Law is the standard starting-point for considering conceptions of law. According to Tamanaha:

Hart's project was to advance and defend a general descriptive theory of law. Hart employed methods of conceptual elucidation that were derived from Bentham and modern analytical philosophy. These methods are still widely, but not universally, accepted today and they form the basis for the approach adopted in this chapter. Although he used some of the tools of analytical philosophy developed in the heyday of J. L. Austin, I do not accept that it is merely ‘a semantic theory’ or an exercise in ‘linguistic analysis’. It both elucidates basic concepts and uses them to describe common features of the form and structure of all state legal systems. It is presented and has been largely interpreted as a general analytical theory of law – a set of answers to some basic puzzlements about the nature of law in general. It makes few claims for being useful in guiding detailed research or in assisting judges or lawyers in dealing with practical problems and it has not been used much for such purposes.