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Kelsen and Hart on the Normativity of
Law

Torben Spaak∗

1 Introduction …………………………………………………………………
...
398
3 Kelsen’s Account of the Normativity of Law ………………………………
...
1
3
...
3
3
...

The Basic Norm as Fiction ……………………………………………
...


402
404
405
406

4 Hart’s Account of Law’s Normativity ………………………………………
...
1 Hart’s Theory of Law …………………………………………………… 407
4
...
408
4
...
410
5 The Trump Thesis and the Significance of Strictly Legal Normativity …
...
I would also like to thank Robert Carroll for checking my English
...


© Stockholm Institute for Scandianvian Law 1957-2010

398

Torben Spaak: Kelsen and Hart on the Normativity of Law

1

Introduction

The problem about the normativity of law – that is, the problem of accounting
for the nature of the legal ought, the law’s normative force, or, if you will, the
nature of legal reasons for action – is in my view the most serious if not the only
serious question facing legal positivists
...
1 But, one may wonder, if
normativity in the strictly legal sense is so problematic, why have first-rate legal
thinkers like Hans Kelsen and Herbert Hart expended so much energy in trying
to account for the normativity of law in this sense? Were they perhaps really
concerned with normativity in the moral sense? I don’t think so
...
And in this article I
am going to consider Kelsen’s and Hart’s analyses of the normativity problem in
order to show that both Kelsen and Hart were indeed concerned with normativity
in the strictly legal sense
...

I begin by presenting the problem about the normativity of law (Section 2)
...
Having done that, I consider the possibility of combining the strictly legal
conception of law’s normativity with a qualified version of the trump thesis, and
add a few words about the significance of strictly legal normativity (Section 5)
...
While they tend to agree that law is a system of norms,
they disagree about the relation between law thus conceived and morality
...
And it
accounts for this binding force by asserting that positive law is conceptually
connected with moral values like justice and the common good
...
16:4 2003, p
...

2 The text in this section can be found, more or less verbatim, in Spaak, Legal Positivism,
supra note 1, p
...


© Stockholm Institute for Scandianvian Law 1957-2010

Torben Spaak: Kelsen and Hart on the Normativity of Law

399

our reason and which confers binding force on positive law, if and insofar as the
latter is in keeping with the former
...
3
On this analysis, the moral authority of law is part of the concept of law, and the
thesis that an unjust law cannot be legally valid, i
...
, cannot be a law at all (lex
injusta non est lex), turns out to be a corollary to (i)
...
L
...
Hart,7
Joseph Raz,8 and Neil MacCormick & Ota Weinberger,9 not a theory telling the
judge how he should decide hard cases or when civil disobedience is justified
...
11 Legal positivism thus conceived could perhaps be described as a
meta-theory, a theory about theories of law, because it aims to lay down
requirements that any adequate theory of law must meet
...
”13
Now the problem about the normativity of law, as I have said, concerns the
nature of the legal ought or law’s normative force, or, if you will, the nature of
legal reasons for action
...
14 We are not
concerned with normativity in general, however, but with legal normativity; and
I take legal normativity to be stronger than other types of normativity – ex3 See, e
...
, Aquinas, Thomas, Summa Theologiae (R
...
Henle ed
...
2, C
...
4, C
...
P
...
85; Moore, Michael S
...
George ed
...
189-92;
Radbruch, Gustav, Rechtsphilosophie , 7th
...
, Stuttgart 1950, p
...

4 Austin, John, The Province of Jurisprudence Determined, Indianapolis/Cambridge 1954
...
ed
...

6 Ross, Alf, On Law and Justice, Berkeley & Los Angeles 1959
...
L
...
, The Concept of Law, Oxford 1961; Hart, H
...
A
...

8 Raz, Joseph, The Authority of Law, Oxford 1979, Ch
...
68 1985, p
...

9 MacCormick, Neil & Weinberger, Ota, An Institutional Theory of Law, Dordrecht 1986
...
46 2001, p
...
7 1994, p
...

11 See MacCormick, Neil, Legal Reasoning and Legal Theory, 2d
...
, Oxford 1994, p
...
13-14
...
39
...
19
...
) Oxford 2001,
p
...


© Stockholm Institute for Scandianvian Law 1957-2010

400

Torben Spaak: Kelsen and Hart on the Normativity of Law

cepting moral normativity of course
...
15 That is to say, law does not, except
in extreme cases, recognize as legally relevant conflicts between legal and moral
reasons for action
...
16
Now, as many writers have noted, the obvious way to account for the
normativity of law is to argue that having a legal right or obligation is having a
special kind of moral right or obligation
...
This conception, which I shall refer to as the moral conception
of law’s normativity, is attractive, because it makes it clear why we should care
about our legal rights and obligations and why we should obey the law
...

But not everyone believes that having a legal right or obligation is having a
special kind of moral right or obligation
...
20 H
...
A
...
Hart rejects Austin’s sanction theory of legal
obligation because he believes it obliterates the important distinction between
being obligated to do something and being obliged (or forced) to do it
...
As Hart sees it, the
victim may be obliged – but not obligated – to hand over the money
...
”22

15 When I say that the law makes a claim, I mean that judges – the law’s spokesmen – make that
claim when they act on behalf of the law
...
D
...
Freeman ed
...
205; Soper, Philip, The
Ethics of Deference, Cambridge 2002, p
...

16 This is nicely illustrated by the Supreme Court’s reasoning in the Swedish case NJA 1982 s
621
...
ed
...
4
...
, Positivism and the Fidelity to Law: A Reply to Professor Hart, Harvard Law
Review Vol
...
644-57
...
527-8
...
See Spaak, Torben, (Review of) Rex Martin, A
System of Rights Theoria, Vol
...
80
...

21 Hart, CL, supra note 7, p
...

22 Hart, H
...
A
...

71 1958, p
...


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Torben Spaak: Kelsen and Hart on the Normativity of Law

401

Hart maintains that what is missing in Austin’s theory is the idea of a rule
...
For to say that someone has an obligation (legal or moral) to
perform an action is to assume a back-ground of rules that makes certain
behavior standard, and to apply a rule to that person and his behavior
...
”25
Now according to Hart, a statement that a person has a legal obligation refers
to an action that is “due from or owed by” the person having the obligation, in
the sense that it “may be properly demanded or extracted from him according to
legal rules or principles regulating such demands for action
...
27 Although the judge may morally approve of this
obligation, his moral approval is not part of the meaning of his legal statement
...

The main problem is that it seems to be impossible to combine it with the thesis
that law necessarily claims to trump moral and other reasons for action
...


...
”30 I fear that I am
one of the many
...
Let us begin with Kelsen’s analysis
...
78
...
p
...

Id
...
168
...
159-60
...
p
...

Id
...
266
...
ed
...
151-2
30 Hart, EB, supra note 7, p
...

31 See also Raz, Joseph, Hart on Moral Rights and Legal Duties, in Oxford Journal of Legal
Studies Vol
...
129-31
...
1

Kelsen’s Theory of Law

The Pure Theory of Law is a general theory of law that conforms to the
requirements of legal positivism
...
33 More specifically, it
provides us with a set of fundamental legal concepts – such as ‘legal system,’
‘norm,’ ‘right,’ ‘duty,’ ‘sanction,’ and ‘imputation’ – that we can make use of
when trying to understand and describe the law in a scientific manner
...
35
The Pure Theory conceives of law as a system of norms,36 which norms
function as schemes of interpretation in light of which we can view human
behavior and other natural events
...
38 On
Kelsen’s analysis, a norm is the meaning of an act of will directed at the
behavior of another
...
Legal norms differ, however, from the orders issued
by the Mafia boss in that they also express an objective ought: that the act in
question ought to be performed not only from the viewpoint of the person
positing the norm, but also from the viewpoint of the person whose behavior the
norm regulates, and from the viewpoint of a neutral third party
...
40 To say that a valid legal norm expresses an objective ought is
just another way of expressing the same idea
...
xiii; Kelsen, Hans, On the Pure Theory of Law, Israel Law
Review Vol
...
5
...
112
...
Vol
...
231; Kelsen, GTLS, supra note 5, p
...

35 Kelsen, Function , supra note 34, p
...

36 Kelsen RR II, supra note 5, p
...
See also Kelsen, GTLS, supra note 5, p
...

37 Kelsen RR II, supra note 5, p 3-4
...
41
...
228
...
p
...
34 1959/60, p
...

40 Kelsen RR II, supra note 5, p
...
See also Kelsen, GTLS, supra note 5, p
...
Kelsen
thus treats ‘norm’ and ‘valid norm’ as synonyms, which means that a non-valid norm is not a
norm at all
...


© Stockholm Institute for Scandianvian Law 1957-2010

Torben Spaak: Kelsen and Hart on the Normativity of Law

403

made into a legal duty corresponding to a legal right
...

Thus a norm, n1, is legally valid if, and only if, it was created in accordance with
another and higher legally valid norm, n2, which in turn is legally valid if, and
only if, it was created in accordance with another and higher legally valid norm,
n3, etc
...
44 He
conceives of ‘is’ (Sein) and ‘ought’ (Sollen) as two fundamental and distinct
categories or modes of thought,45 and he takes the meaning of ‘ought’ to be
intuitively clear, expressing “the specific sense in which human behaviour is
determined by a norm
...
”48
Law, then, is a normative phenomenon, and as such it must be carefully
distinguished from factual phenomena,49 but also from other normative
phenomena
...
,
nor (ii) normative considerations from ethics, theology, etc
...
51 As Kelsen says, the basic methodological aim of the Pure Theory is to
free the study of law from all foreign elements, to avoid methodological
syncretism
...

As one might expect, Kelsen rejects John Austin’s command theory of law
...
Hence a gangster’s command that you hand over your money to him
cannot be binding, as there is no valid legal norm conferring legal power on the
gangster to issue such commands
...
113
...
200-1
...
196-7
...
110-1
...
5-6
...
36-7, 110-1
...
7-10
...
p
...

Kelsen, GTLS, supra note 5, p
...
Negatively, Kelsen says that “p ought to do A” means
neither that the speaker or someone else wants p to do A, nor that p will in fact do A
...
p
...

Kelsen, RR II, supra note 5, p
...
He holds that G
...
Moore’s characterization of
‘good’ – that it is a simple notion like ‘yellow’ – applies to ‘ought,’ too
...
p
...

Kelsen, Hauptprobleme, supra note 44, p
...

Id
...
1-2
...
61
...
at 1
...
2-3
...
1
...
30-2
...
45-6
...


3
...
Since that constitution
cannot have been created in accordance with another and higher valid norm,
Kelsen terminates the chain of validity by simply presupposing that we ought to
behave in accordance with the historically first constitution
...
”55 So the basic norm is the tool we use to distinguish between law and
coercion, between being obligated and being obliged,56 which means that it
grounds the normativity of law
...
On the
contrary, “[i]n der Voraussetzung der Grundnorm wird kein dem positiven Recht
transzendenter Wert bejaht
...
59 He admits, to be sure, that we
may ask why we ought to obey the historically first constitution, but points out
that it is characteristic of legal positivism to dispense with religious and moral
justifications of law
...
197, 203
...
115
...

Kelsen RR II, supra note 5, p
...
See also Kelsen, GTLS, supra note 5, p
...

Kelsen RR II, supra note 5, p
...

Id
...
204
...
p
...

Kelsen, GTLS, supra note 5, p
...
See also Kelsen RR II, supra note 5, p
...

Kelsen, GTLS, supra note 5, p
...


© Stockholm Institute for Scandianvian Law 1957-2010

Torben Spaak: Kelsen and Hart on the Normativity of Law

405

erkenntnistheoretische Antwort der Reinen Rechtslehre lautet: unter der
Bedingung, daß man die Grundnorm voraussetzt
...
62 It is also in keeping with Kelsen’s view that anyone interested in
conceiving of the law as a system of valid norms – judges, lawyers, legal
scholars, ordinary citizens – may but does not have to presuppose the basic
norm:
Die Grundnorm kann, muß aber nicht vorausgesetzt werden
...
Da diese Deutung durch die
Voraussetzung der Grundnorm bedingt ist, muß zugegeben werden, daß SollSätze nur in diesem bedingten Sinne als objektiv gültige Moral- oder
Rechtsnormen gedeutet werden können
...
3

The Basic Norm as Fiction

After years of referring to the basic norm as a hypothesis,64 Kelsen changed his
mind in the beginning of the 1960’s, suggesting instead that we think of it as a
fiction as that concept is understood in Hans Vaihinger’s Philosophy of As-If
...
66 Accordingly, he explains that presupposing the basic
norm involves presupposing an imaginary authority, over and above the
“fathers” of the historically first constitution, whose act of will has the basic
norm as its meaning
...
68
Kelsen concludes that the basic norm is best described as a genuine fiction in
the Vaihingerian sense
...
205
...
p
...

63 Kelsen, Hans, Allgemeine Theorie der Normen (Kurt Ringhofer & Robert Walter, eds
...
206
...
223-4
...
g
...
116
...
132 1964, p
...
6-7; Kelsen, ATN, supra note 63, p
...
See also
Vaihinger, Hans, Die Philosophie des Als Ob (4th
...
) 1920
...
585
...
p
...

68 Id
...
585
...
69 Kelsen’s aim of thought, as
we have seen, is to ground the normativity of the legal system, and he admits
that he can achieve this goal only by introducing a fiction, viz
...

Kelsen scholars have been debating whether the change of status of the notion
of the basic norm is an important event in the development of Kelsen’s theory of
the basic norm and, therefore, of the Pure Theory
...
71 Stewart maintains, more specifically, that if the
concept of a basic norm is a fiction, then everything that follows from it, such as
the concept of a legal system, must be fictional too
...
I am not, however, convinced that there is such a close connection
between will (Wollen) and ought (Sollen) as Kelsen assumes
...
We might
simply think of it as a presupposition that the historically first constitution is
legally valid – and as such it is not contradictory
...
4

The Basic Norm and the Normativity of Law

We see, then, that Kelsen’s proposed solution to the problem about the
normativity of law, considered within the framework of legal positivism, is to
presuppose the basic norm conceived of either as an hypothesis or as a fiction
...

Joseph Raz has made an attempt to reconstruct the theory of the basic norm in
its role as an explanation of the normativity of law
...
’75 Specifically, he suggests legal scholars should view the law from the legal man’s
69 Id
...
585
...
207-8
...

Paulson, Stanley L
...
12, p
...
29-33, 156-8; Stewart,
Iain, Kelsen and the Exegetical Tradition, in Essays on Kelsen (Richard Tur & William
Twining, eds
...
131-5
...
167-75;
Walter, Robert, Zum Versuch einer Kritik der Reinen Rechtslehre, Rechtstheorie Vol
...
148-9
...
208
...
122-45; Raz, Joseph, The Purity of the Pure Theory, Revue
Internationale de Philosophie Vol
...
441
...
140
...
451-2
...
142-3
...
’

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Torben Spaak: Kelsen and Hart on the Normativity of Law

407

point of view “as if it is valid or on the hypothesis that it is
...
”76 On this analysis, there is no specifically legal
normativity, but only a “specifically legal way in which normativity can be
considered”,77 in that the validity of the constitution is simply (non-committally)
assumed
...
79 For one thing, it is in keeping with the
notions that legal validity is conditional upon presupposing the basic norm and
that one may, but does not have to, presuppose the basic norm
...
But, as should be clear, the theory of the basic norm thus
conceived can only account for the normativity of law in the strictly legal
sense
...


4

Hart’s Account of Law’s Normativity

Like Kelsen, Hart conceives of law as a system of norms, the foundation of
which is a single, fundamental norm
...
The problem Hart faces is
therefore the same problem as Kelsen faced, viz
...


4
...
Like Kelsen, Hart conceives of law as a system
of norms, or as he says, rules
...
81 Duty-imposing rules are of course the paradigm of rules, as they
76
77
78
79

Id
...
157
...
p 145
...
459
...
See, e
...
,
Bindreiter, Uta U
...
94-5; Paulson, Stanley L
...
) Berlin 1992, p
...
, Kelsen’s Rechtssätze as Detached Statements, Essays on Kelsen, supra note 70, p
...
27 1982, p
...

80 James Harris Seems to share this view, though he does not accept Raz’s analysis and does not
speak of ‘strictly legal normativity
...
, Kelsen’s Pallid Normativity, Ratio
Juris Vol
...
94
...


© Stockholm Institute for Scandianvian Law 1957-2010

408

Torben Spaak: Kelsen and Hart on the Normativity of Law

directly guide human behavior by giving reasons for action: no normative
system can do without them
...
Specifically, rules of change confer legal power on persons,
thus enabling them to change legal positions;82 rules of adjudication constitute
courts and other law-applying organs and regulate their activities;83 and the rule
of recognition lays down criteria for the identification of the rules of the
system
...
”85

4
...
First, it identifies and
ranks the sources of law: legislation, precedent, custom, etc
...
87 The second function clearly presupposes that normativity can
somehow be transmitted from the highest level of the Stufenbau down to the
lower levels
...
But he
clearly thinks it does
...
In other
words, it is a rule by virtue of being accepted by a certain group of people, viz
...
So whereas other legal rules exist in the sense that they meet
82
83
84
85
86
87

Id
...
93-4
...
p
...

Id
...
92-3
...
p
...

Id
...
97-107
...
48-51; MacCormick, Neil, H
...
A
...
110; Raz, Joseph, The Concept of a Legal System, 2
...
, Oxford 1980, p
...

88 See Dworkin, TRS, supra note 17, p
...
, Coordination and Convention
at the Foundations of Law, Journal of Legal Studies Vol
...
170
...
” Hart, CL, supra note 7, p
...
But since Hart takes ‘valid’ to mean ‘satisfies all
the criteria provided by the rule of recognition,’ Id
...
100, his criticism does not show that he
is indifferent to the normativity of the rule of recognition
...
”90 This means that “[f]or the most part the rule of recognition is
not stated, but its existence is shown in the way in which particular rules are
identified, either by courts or other officials
...
92 Accordingly, his account of the normativity of social rules centers on
this internal aspect, or more specifically, on the characteristic pro-attitude
toward the rules among those concerned that he refers to as the internal point of
view
...
94
So, on Hart’s theory, there is a Danish (say) rule of recognition if Danish
legal officials (i) display a regular pattern of behavior with regard to the
identification and ranking of the sources of law (the external aspect), and (ii)
have a steady commitment in favor of acting in accordance with this pattern of
behavior (the internal aspect)
...

Note that on Hart’s theory, part of the reason for each official to comply with
the rule of recognition is that other officials comply with it
...
”97 The rule of recognition can therefore be described as a
conventional rule
...
99 The most important one is that whereas the rule of recognition is a
social rule, the basic norm is merely a presupposition, an idea in the minds of
legal scholars and others
...
107
...
See Raz, CLS, supra note 87, p
...

91 Hart, CL, supra note 7, p
...

92 Id
...
54-6
...
p
...

94 Id
...
56
...
85 1987, p
...

96 Hart, H
...
A
...
ed
...
Bulloch
& Joseph Raz) Oxford 1994, p
...

97 Hart, CL, supra note 7, p
...

98 Hart, CL II, supra note 96, p
...

99 Hart himself has commented on these differences
...
245-6
...
Kelsen could thus accept the rule of recognition as a
criterion of validity, but not as the source of law’s normativity
...
3

The Rule of Recognition and the Normativity of Law

We see, then, that Hart’s proposed solution to the problem about the normativity
of law, considered within the framework of legal positivism, is to point to the
rule of recognition
...

Let us begin by asking whether the rule of recognition is best understood as a
moral or as a non-moral rule
...
”100 The idea, then, is that unless the officials morally approve of the
rule of recognition, they will not look upon it as a standard to be complied with,
or criticize those who do not comply, etc
...

To be sure, when accepting the rule of recognition, the legal officials are,
strictly speaking, accepting a customary rule laying down essentially factual
criteria of validity
...
I doubt, however, whether the
officials can really disregard the actual content and function of the legal system
in question when contemplating whether to accept the rule of recognition
...
If I am right, accepting the rule of
recognition involves accepting the legal system, and acceptance of the legal
system would seem to be a paradigm case of moral acceptance
...
In fact, their allegiance to the
system may be based on many different considerations: calculations of longterm interest; disinterested interest in others; an unreflecting inherited or
traditional attitude; or the mere wish to do as others do
...
101
100 Fuller, Positivism, supra note 18, p
...
See also Goldsworthy, Jeffrey D
...
10 1990, p
...

101 Hart, CL, supra note 7, at 198-9
...
265; Hart, CL II, supra

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Torben Spaak: Kelsen and Hart on the Normativity of Law

411

Of course, one can accept a rule for non-moral reasons
...
But can a judge really
accept the rule of recognition, the foundation of the legal system, for non-moral
reasons? I don’t think so
...
, will have to accept the rule of recognition for moral
reasons, or, at the very least, pretend that he does
...
103 One might, for
example, hold that sticking to the rule even when it yields bad results will yield
better consequences on the whole than a strategy of picking and choosing would
...
104
Hart maintains, however, that inclusion of a moral component in the judges’
acceptance of the rule of recognition conveys an unrealistic picture of the way
judges conceive of their task of identifying and applying the law
...
106 In this
situation judges “are committed in advance in the sense that they have a settled
disposition to do this [that is, apply the rule of recognition] without considering
the merits of so doing in each case and indeed would regard it not open to them
to act on their view of the merits
...
108 My own view is that most judges have this disposition
because they consider the legal system on the whole to be worthy of moral
approval – if things would change for the worse they would gradually give up
that disposition
...
257
...
A
...
For, he explains, ”such a relationship to the rules is defective by the
standards of the practice itself
...
A
...
25 1980, p
...
The reason, he explains, is that the acceptance
of a rule involves accepting the moral values internal to the rule
...
p
...

103 Raz, Joseph, Hart on Moral Rights and Legal Duties, Oxford Journal of Legal Studies Vol
...
130-1; Raz, Purity, supra note 73, p
...

104 Hart, CL, supra note 7, p
...
For an analysis of this issue, See Hill, Roscoe E
...
80 1970, p
...

105 Hart, EB, supra note 7, p
...

106 Id
...
158
...
p
...

108 See Postema, Gerald J
...
L
...
Hart (Ruth Gavison, ed
...
94-5
...
For it does not follow from the fact, if it is a fact,
that the legal officials have a moral duty to apply all and only the rules identified
by the rule of recognition, that those rules impose (moral or non-moral)
obligations on the citizens
...

This should be clear from a brief look at the existence conditions for a legal
system
...
109 According to Hart, the voluntary
acceptance by the officials is necessary to create authority, without which the
law could not establish its coercive power
...
111 Hence the law need not extend its
protections and benefits to all groups in a society
...
that “the centrally
organized power may
...
”113 But what kind of authority could the law have over
the people it oppresses?
I conclude that whatever normative force the rules of the legal system may
have, it is not derived from the rule of recognition, and that therefore the very
idea of accounting for law’s normativity by means of an ultimate norm or rule is
misconceived
...


5

The Trump Thesis and the Significance of Strictly Legal
Normativity

I have argued that both Kelsen and Hart attempted to account for the normativity
of law in the strictly legal sense, and that they succeeded in doing so
...
If this is so, we must make a
choice: (i) we might adopt the moral conception of law’s normativity instead, (ii)
we might reject the thesis that the law is intrinsically normative, or (iii) we might
reject or qualify the thesis that the law necessarily claims to trump moral and
other reasons for action? James Harris – who has analyzed Kelsen’s conception
109
110
111
112
113

Hart, CL, supra note 7, p
...

Id
...
196
...
p
...

Id
...
196
...
p
...


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Torben Spaak: Kelsen and Hart on the Normativity of Law

413

of normativity and who complains that it is pallid – recommends that we reject
the assumption that law is intrinsically normative:
Kelsen’s pallid normativity is contrived and artificial
...
The
solution suggested here is that we give up the search for any intrinsic connection
between legality and “ought,” whilst recognizing, as Hart and others have
shown, that normativity, in many important ways, hovers over the law
...
They do not, in and of themselves,
assert that anything, from any point of view, ought to be done
...
Harris rejects (what he refers to as)
the standard negative argument for the normativity of law, namely that
“statements to the effect that behaviour is legally obligatory cannot, without
change of meaning, be translated into statements about past, present or future
events
...
He simply maintains that
propositions of law “do not, in and of themselves, assert that anything, from any
point of view, ought to be done
...
117 That is to say, they provide (but do not assert) that certain
things ought to be done
...

I recommend instead that we qualify the thesis that the law necessarily claims
to trump moral and other reasons for action in the following way
...
118 On this
understanding of the trump thesis, we can easily combine it with the strictly
legal conception of law’s normativity
...
Even if we agree that the
strictly legal conception of law’s normativity can be combined with a qualified
version of the trump thesis, we may wonder whether the normativity of law thus
conceived is an important characteristic of the law
...
But why
was Hart so concerned with this distinction? If he wasn’t trying to elucidate the
difference between authority and power, what was he trying to do? Stanley
Paulson suggests that on this issue, Hart’s quarrel with Austin concerned the

114
115
116
117

Harris, Normativity, supra note 80, p
...

See id
...
110
...

I have in mind here Hart’s distinction between statements of the law and statements about
the law, and I assume that Harris has the same distinction in mind
...
144-5
...
3
...
Says Paulson:
…Hart’s quarrel with the empirico-reductive tradition is over the nature of
facts
...
119
If Paulson is right, Hart has offered a new and perhaps more sophisticated
analysis of the type of social situation in which we find obligations
...
I have not been able to find a satisfactory answer to this
question, and I doubt that there is one to be found
...

If one accepts this conclusion, one is likely to start thinking about the relation
between Kelsen’s and Hart’s theories, on the one hand, and Austin’s and
Bentham’s theories, on the other
...
But a
fuller investigation of this difficult issue will have to await another occasion
...
, Continental Normativism and Its British Counterpart: How Different
Are They?, Ratio Juris Vol
...
240-1

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