Ambiguities: Law, Morality, and Legal Subjectivity in H.L.A. Hart's the Concept of Law
Bibliographic record
Abstract
In The Concept of Law, H.L.A. Hart set out his definition of law as a social phenomenon. He had two main objectives: to restate the positivist position that law and morality are different but related; and to modify and extend John Austin’s command theory of law using J.L. Austin’s analytic linguistic philosophy (Hart, 1994: vi-vii). The book, which Hart “primarily designed for the student of jurisprudence” (Hart, 1994: vi) quickly became one of two pillars in Anglo-American jurisprudence. The first substantive section of this chapter sets out Hart’s contribution to common law jurisprudence, and explains Hart’s definition of a legal system as a union of primary and secondary rules that imposes obligations on subjects and officials alike. Focusing on the distinction Hart draws between being obliged to follow a rule and having an 'obligation' to do so, I explore the legal subject Hart postulates in his description of internal and external points of view. Despite Hart’s claims to universality, I find that his 'ordinary citizen' (Hart, 1994: 113) is the disembodied, decontextualised man of liberal theory. In the following section, delineating a feminist critique of Hart’s legal subject, I rely on three of the many challenges that have been made to liberal conceptions of individual autonomy and rationalism by feminist theorists. In the final section, while acknowledging the strength of the feminist critiques of liberal legalism, and the applicability of those criticisms to The Concept of Law, I nonetheless conclude that Hart’s ethical commitment to distinguishing between law and morality has a contingent place in feminist legal theory. Without wishing to re-inscribe liberal legalism’s fiction of choice, I suggest that Hart’s distinction has the potential to help feminist theorists contest the apparent naturalness of inherently oppressive legal orders. If it is possible to decouple the distinction between law and morality from the liberal legal subject encapsulated by Hart’s phrase 'ordinary citizen', it might become more possible to hold legal officials, lawmakers, and ordinary citizens themselves accountable for the inequities perpetuated by human legal systems.
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How this classification was reachedexpand
Full frame machine prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. The Gemma side is a direct model label for every work in the frame, read from the title-only record. The Codex side is a classifier learned from the 10,348 direct Codex labels and calibrated to design-weighted sample rates; fields without enough sample support carry no Codex call. Candidate is the union of the two sides; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels.
Distilled classifier scores by category (both heads)
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.008 | 0.009 |
| Meta-epidemiology (narrow) | 0.001 | 0.000 |
| Meta-epidemiology (broad) | 0.001 | 0.001 |
| Bibliometrics | 0.002 | 0.003 |
| Science and technology studies | 0.008 | 0.079 |
| Scholarly communication | 0.012 | 0.012 |
| Open science | 0.001 | 0.005 |
| Research integrity | 0.005 | 0.008 |
| Insufficient payload (model declined to judge) | 0.002 | 0.000 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one source (direct Gemma or distilled Codex), not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".