Hart and the problem of legal positivism. A reconstruction in three acts

Abstract

The aim of this work is to address H.L.A. Hart’s contribution to the problem of legal positivism. According to the author, Hart’s approach to the controversy of Natural Law/Legal Positivism was characterized by two apparently opposing ends. On the one hand, he clarified the label “Legal Positivism” as well as other approaches that are usually referred as such. In doing so, he paved the way to show in which sense it is not illogical to defend some theses associated with it and in which sense it is not. On the other hand, despite he did not take a stand for the necessary connection between Law and Morals, he did show in what sense such connection may exist and why it is important. To this end, section one offers a detailed reconstruction of Hart’s approach to the problem of legal positivism. In section two the author’s approach to Natural Law is explained so that his well-known thesis of “The Minimum Content of Natural Law”, and what it implies, is properly understood. Section three is devoted to Hart’s theory of Legal Positivism that is “Hartian Legal Positivism”, where his main claims are presented. Hart’s claim on the possibility for the rule of recognition to incorporate material criteria for legal identification or legal validity is particular relevant because it introduces us to a new stage of the never-ending controversy.