A Response to Hart on Penumbra in Law: Kovesi's Account of Concept Formation

• Main Author: MOONEY, T. Brian
• Format: text
• Language: English
• Published: Institutional Knowledge at Singapore Management University 2013
• Subjects: Concept; Law; Legal positivism; political philosophy; Kovesi; Hart; Philosophy
• Online Access: https://ink.library.smu.edu.sg/soss_research/1502
• Institution: Singapore Management University

In a famous debate on jurisprudence held in 1958 between H. L. A. Hart and Lon Fuller, the protagonists argued about the nature of the law. On one side was H. L. A. Hart, who was a staunch defender of two ideas, first, that law was to be separated from morals, and secondly, that law as it is should be separated from law as it ought to be. These two ideas are subtly different. On the other side, is Fuller, who argues that law cannot be understood apart from its reason for being formulated in the first place. In relation to Hart's two ideas, the paper shows how both rest upon an unstated hidden motivating assumptions, clues to which can be found in both "Positivism and the Separation of Law and Morals" and 'The Concept of Law'. This assumption is that Hart is committed to a distinctively liberal account of morality (with all that this entails) which finds expression in the rule of law. The paper argues that the project of finding a purely descriptive account of law is impossible in the Hartian sense since the descriptive/evaluative dichotomy is a false dichotomy. This is achieved by means of the Kovesian analysis of concept formation.