On Hart's category mistake

Legal Theory 19 (4):347-369 (2013)
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Abstract

This essay concerns Scott Shapiro's criticism that H.L.A. Hart's theory of law suffers from a Although other philosophers of law have summarily dismissed Shapiro's criticism, I argue that it identifies an important requirement for an adequate theory of law. Such a theory must explain why legal officials justify their actions by reference to abstract propositional entities, instead of pointing to the existence of social practices. A virtue of Shapiro's planning theory of law is that it can explain this phenomenon. Despite these sympathies, however, I end with the suggestion that Shapiro's criticism of Hart, as it stands, is incomplete. Careful attention to Hart's notion of the internal point of view indicates that he was aware that legal justification ends with abstract objects, not practices, and that he offered his own explanation of this phenomenon

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Michael S. Green
College of William and Mary

Citations of this work

The Institutionality Of Legal Validity.Kenneth M. Ehrenberg - 2020 - Philosophy and Phenomenological Research 100 (2):277-301.

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References found in this work

A simple theory of promising.David Owens - 2006 - Philosophical Review 115 (1):51-77.
Lessons from Hart.Wilfrid J. Waluchow - 2012 - Problema 5:363-383.
The Ineliminability of Hartian Social Rules.Stefan Sciaraffa - 2011 - Oxford Journal of Legal Studies 31 (3):603-623.

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