|
''The Concept of Law'' (ISBN 0-19-876122-8) is the most famous work of the legal philosopher H. L. A. Hart. It was first published in 1961 and develops Hart's theory of legal positivism (the view that laws are rules made by human beings and that there is no inherent or necessary connection between law and morality) within the framework of analytic philosophy. In this work, Hart sets out to write an essay of descriptive sociology and analytical jurisprudence. ''The Concept of Law'' provides an explanation to a number of traditional jurisprudential questions such as "what is law?", "must laws be rules?", and "what is the relation between law and morality?". Hart answers these by placing law into a social context while at the same time leaving the capability for rigorous analysis of legal terms, which in effect "awakened English jurisprudence from its comfortable slumbers". As a result Hart's book has remained "one of the most influential works in modern legal philosophy",〔Green, Leslie (2012), "Introduction" in H.L.A. Hart, ''The Concept of Law: Third Edition''. Calderon Law Series, xv.〕 and is also considered a "founding text of analytical legal philosophy", as well as "the most successful work of analytical jurisprudence ever to appear in the common law world" ==Background== ''The Concept of Law'' emerged from a set of lectures Hart delivered in 1952. The lectures were preceded by Hart's Holmes lecture, ''Positivism and the Separation of Law and Morals'' at Harvard Law School. The book developed a sophisticated view of legal positivism. Among the ideas developed in the book are: *A critique of John Austin's theory that law is the command of the sovereign backed by the threat of punishment. *A distinction between primary and secondary legal rules, where a primary rule governs conduct and a secondary rule allows the creation, alteration, or extinction of primary rules. *A distinction between the internal and external points of view of law and rules, close to (and influenced by) Max Weber's distinction between the sociological and the legal perspectives of law. *The idea of the rule of recognition, a social rule that differentiated between those norms that have the authority of law and those that do not. Hart viewed the rule of recognition as an evolution from Hans Kelsen's "''Grundnorm''", or "basic norm". *A reply to Ronald Dworkin, who criticized legal positivism in general and especially Hart's account of law in ''Taking Rights Seriously'' (1977), ''A Matter of Principle'' (1985) and ''Law's Empire'' (1986). 抄文引用元・出典: フリー百科事典『 ウィキペディア（Wikipedia）』 ■ウィキペディアで「The Concept of Law」の詳細全文を読む スポンサード リンク
|