Abstract
H.L.A. Hart is said to have “famously demolished” Alf Ross’s Scandinavian version of Legal Realism with his celebrated introduction of a distinction between internal and external aspects of social rules. In this article, I argue that this received opinion is mistaken. Ross was not only perfectly aware of the internal/external distinction; he in fact analyzed it with much greater clarity and consistency than Hart did. Thus, behind Hart’s writings on this issue lies not only one but two important and logically distinct distinctions and Hart continuously confuses them and their interrelations. Ross on the other hand expressly acknowledged their existence and consistently observed both of them in his work. Setting the record straight not only casts much needed light on debates about internal and external aspects of social rules. It also gives us a privileged opportunity to redraw our map of the broader jurisprudential landscape and in particular of identifying where we could draw the line between Legal Positivism and Legal Realism in a clear and principled way. These insights are particularly valuable as we are currently seeing sustained attempts to revitalize the Legal Realist movement, either by seeing the Legal Realists as precursors of philosophical Naturalism in jurisprudence or by exploring the prospects of a New Legal Realism.
| Translated title of the contribution | Gensyn med en stråmand: En nyvurdering af H.L.A. Hart's kritik af den skandinaviske retsrealisme |
|---|---|
| Original language | English |
| Article number | 1 |
| Journal | Santa Clara Law Review |
| Volume | 57 |
| Issue number | 1 |
| Pages (from-to) | 2-41 |
| Number of pages | 40 |
| ISSN | 0146-0315 |
| Publication status | Published - 2017 |
Keywords
- Faculty of Law
- Alf Ross
- H.L.A. Hart
- Scandinavian legal realism
- Legal realism
- legal positivism
- naturalized epistemology
- naturalizing jurisprudence