H.L.A.Hart: An Inside Outsider

The positivist school of law has been committed to answer the question of " what law it is", which is totally perplexing and fascinating, since the day of its birth. Based on the utilitarian legal theory which Jeremy Bentham had developed, positivist jurists had taken empiricism as their foundation stone in the way of investigating jurisprudence problems. John Austin, the father of modern jurisprudence, had claimed a significant proposition------ " law as sovereign's command"------ by teasing notions such as sovereign, legal command, punishment and so on. This proposition, to H. L. Hart, however, had presented some defects of not explaining origin and function of law in a proper way. As the representative of the positivist school of law in 20th century, Hart had developed a new model, which can be considerd as theory of " legal rules", in his The Concept of Law. By differentiating the difference between primary rules and secondary rules, internal perspective and external perspective and fuzzy area and focal area, Hart was confident that a new theory of jurisprudence as " descriptive sociology'' can be found and expressed clearly to respond criticisms which was from other school of jurisprudence(especially natural law school), to legal positivist school.Just like his predecessors, Hart had also hold the historic philosophical tradition of empiricism. Even so, that was not the only source of inspiration and theoretical foundation. Through studying and analyzing Hart's concepts such as internal perspective or fuzzy area, it is not difficult for one to understand that there are obvious factors existing in Hart's approach to jurisprudence. Besides, Ludwing Wittgenstein's philosophy of ordinary language, which was formed in his medium and later period, had no doubt exercised an important influence over Hart's thinking. With well comprehension of the phenomenology factor in Wittgenstein's philosophy, Hart had made a good effect in appling this philosophy approach into his own legal theory. But just as the warning Ronald Dworkin had claimed, there is a tiny dangerous door, which can put individual rights in danger, in Hart's legal theory.What this essay is tring to indicate is: The opening of this very door can do much with the misunderstanding of Wittgenstein's philosophy which was brought by The concepts of Law. To a certain extent, Hart's theory of legal rules are in the position which can be considered as both the consistent or contradictory side to Wittgenstein's philosophy. In another respect, as well as which has been noted above, this essay is trying to compare Hart or his predecessors' theory with Wittgenstein's philosophy In order to recall the theoretical background of legal positivism, which might have close contact to Wittgenstein's philosophy. The most important point this essay is making efforts to explain is that the connections and differences between Hart and Wittgenstein's theory is potentially significant to us since there are more complicated reasons in such agreement or discrepancy.