THE AMERICAN PHILOSOPHICAL ASSOCIATION NELNSLETTER ON PHILOSOPHY AND LALN

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THE AMERICAN PHILOSOPHICAL ASSOCIATION NELNSLETTER ON PHILOSOPHY AND LALN

After a long and productive life, Herbert Hart died on December 19, 1992, at the age of 84. Two years later a second edition of his most influential work, The Concept of Law, appeared with his long awaited “Postscript”, posthumously edited by Penelope Bullock and Joseph Raz. Tliis issue of the Newsletter on Philosophy and Law is devoted to a review of some of Hart’s major contributions, focusing particularly on the intellectual debates between Hart and Ronald Dworkin, his student and successor to the Chair of Jurisprudence at Oxford, between Hart and Lon Fuller of Harvard University over the respective merits of a natural law theory and Hart’s brand of legal positivism, and between Hart and British jurist Patrick Devlin over the possibility and wisdom of legislating morality. In “Hart’s Legacy”, this issue’s opening article, Charles Kelbley reviews Hart’s attempt to separate descriptive and normative questions we might ask about the law, and Dworkin’s critique of that enterprise. Kelbley uses the Supreme Court’s 1986 decision to uphold Georgia’s sodomy law (Bowers v. Hardwick), together with the current legislative race to ban same-sex marriages, to illustrate the traditional understanding of the difference between Hart’s reliance on rules and Dworkin’s appeal to principles. Where Kelbley focuses primarily on the original text of The Concept of Law and Dworkin’s response to it, Wil WaJuchow argues thin Hart’s 1994 “Postscript” confirms his own previous analysis of Hart’s conception of secondary rules of recognition (in Inclusive Legal Positivism, Clarendon Press, 1994), according to which moral principles and values may be included in the range of criteria which serve to determine what putative primary rules may count as valid laws. If Hart’s account of secondary rules does not have to be restricted to content-neutral “pedigree criteria” delimiting the legitimate forms of law-creation, then Dworkin’s criticism can be defused. Of course Waluchow’s analysis of Hart’s real views about the nature of secondary rules raises new questions about the extent to which we can count Hart as a legal positivist. A partial answer to that question emerges in Scott Landers’ contribution, “The Primacy of Primary Rules”. Landers Hart’s conception of primary rules is inherently defective because they cannot regulate social conduct without supplementation by secondary rules. Landers defends the contrary view by attributing a Wittgensteinian conception of rules to Hart. The last two essays, Dan Wueste’s “Hart-Fuller Debate Revisited” and my own contribution, “Legal Moralism”, move back from a focus on The Concept of Law to other aspects of Hart’s legal philosophy. Wueste examines one of the central questions of the dispute between Hart and Fuller: how it is that the law succesfully commands normative respect from the citizens it governs? Wueste contends that Fuller, like Hart (and despite what Hart says about Fuller’s views), provides an account of how law regulates its own creation. Moreover, this account incorporates a reliance on social or conventional morality exhibited by most citizens. Wueste goes on to suggest that Hart, somewhat inadvisedly, moves away from this social rule conception of rules of recognition to embrace a theory under which only government officials need accept rules of recognition. Wueste concludes with some speculation as to why Hart chose this divergent path, and how it is Significant for understanding the Hart-Fuller debate today. My contribution on the issue of legal moralism is a brief literature survey with an eye towards the challenges of teaching that topiC given the scarcity of current material in print. There are, however, two especially good and relatively recent contributions, one on each side of this debate, to which I devote some more extensive remarks: Joel Feinberg’s Harmless Wrongdoing, and Robert George’s Making Men Moral. now to future Newsletter projects, topics and topic editors for the next three issues are as follows:

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