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DESCRIPTION AND ANALYSIS IN THE CONCEPT OF LAW
A Response To Stephen Perry
Published online by Cambridge University Press: 12 August 2002
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In the posthumously published Postscript to The Concept of Law, H.L.A. Hart claimed that the account he advanced in that book was meant to be “both general and descriptive.”H.L.A. Hart, THE CONCEPTOF LAW 239 (2nd ed. with Postscript; Penelope A. Bulloch and Joseph Raz, eds., 1994). Hereinafter “Hart.” The meaning, possibility, and desirability of such an account of legal institutions form the subject of much recent interpretative and critical debate.See, e.g., Stephen Guest, Two Strands in Hart’s Concept of Law: A Comment on the Postscript to Hart’s The Concept of Law, in POSITIVISM TODAY 29-44 (Stephen Guest, ed., 1996); Michael Moore, Hart’s Concluding Scientific Postscript, 4 LEGAL THEORY 301-327 (1998); Joseph Raz, Two Views of the Nature of the Theory of Law: A Partial Comparison, 4 LEGAL THEORY 249–282 (1998). Prominent among the disputants is Professor Stephen Perry, who, in several recent articles, offers both an interpretation of Hart’s distinctive methodological aims and a critical argument that counsels their rejection.Stephen Perry, Hart’s Methodological Positivism, 4 LEGAL THEORY 427–467 (1998) (hereinafter “HMP”); The Varieties of Legal Positivism, 9 CAN. J. L. & JURIS. 361–381 (1996) (hereinafter “VLP”); Interpretation and Methodology in Legal Theory, in LAWAND INTERPRETATION: ESSAYSIN LEGAL PHILOSOPHY 97, 118 (Andrei Marmor ed., 1995) (hereinafter “IMLT”). Perry’s interpretation is worth examining, not only for his claims about Hart, but also for his more general claims and assumptions about what a descriptive theory of law would be expected to look like and what it could hope to accomplish.
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