Responding to the over-inclusiveness objection to Hart's theory of law: a causal approach

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.

Item ID: 68114
Item Type: Article (Research - C1)
ISSN: 2040-3321
Keywords: Philosophy of law; general jurisprudence; nature of law; over-inclusiveness; HLA Hart
Copyright Information: © 2021 Informa UK Limited, trading as Taylor & Francis Group
Date Deposited: 01 Jul 2021 04:59
FoR Codes: 48 LAW AND LEGAL STUDIES > 4804 Law in context > 480410 Legal theory, jurisprudence and legal interpretation @ 80%
48 LAW AND LEGAL STUDIES > 4804 Law in context > 480405 Law and society and socio-legal research @ 20%
SEO Codes: 28 EXPANDING KNOWLEDGE > 2801 Expanding knowledge > 280117 Expanding knowledge in law and legal studies @ 70%
23 LAW, POLITICS AND COMMUNITY SERVICES > 2399 Other law, politics and community services > 239999 Other law, politics and community services not elsewhere classified @ 30%
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