Mihal, Jan (2021) Responding to the over-inclusiveness objection to Hart's theory of law: a causal approach. Jurisprudence, 12 (2). pp. 175-199.

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Abstract

Hart’s account of law has long been acknowledged to be vulnerable to counterexamples which show that it is over-inclusive, since organisations such as private clubs, trade unions, and the mafia satisfy his conditions for law’s existence while clearly not counting as law themselves. To deal with this issue, this paper adds a new condition to Hart’s account of the nature of law – a requirement that obedience to the valid rules of the putative legal system causally contribute to social order and peace. I show that this additional condition effectively responds to the argument from over-inclusiveness as well as avoiding potential objections from under-inclusiveness. This yields a more plausible account of law’s nature with interesting implications for general jurisprudence.

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