Revisiting legal positivism: H. Hart’s 1958 conception of legal reasoning in the lens of G. Postema

The article explores the 1958 “Harvard” conception of legal reasoning presented by the British philosopher and jurist Herbert Hart, within the context of a contemporary reinterpretation by American jurist and historian of legal thought, Gerald Postema. Postema’s interpretation, labeling Hart’s view as “settled-meaning positivism”, posits it as a unity that encompasses both the delineation of distinct types of argumentation in the realms of “core” and “penumbra” (linguistically mediated clear and controversial cases of law enforcement) and the reduction of law and legal reasoning to the “core” of rules and their established linguistic meanings. The article aims to analyze Postema’s perspective in the broader context of the evolution of Hart’s views on legal indeterminacy and judicial decision-making. The relevance of this topic lies in the necessity for a more comprehensive and balanced reconstruction of Hart’s theory, which is paradigmatic for modern positivism and Anglophone jurisprudence, in the light of the contentious and narrow character of its assessments. The authority of the Postema’s interpretation, seen as providing new insights into the work of the British jurist, adds to the relevance of this analysis. The research uses diverse, primarily hermeneutical, methods, drawing from Postema’s paper and the available body of Hart’s writings, as well as the representative biographical and scientific literature. The article examines the historical context of the 1958 essay’s creation and the doctrine of judicial reasoning contained within it. Ultimately, while recognizing the stimulating role of Postema’s re-description of the 1958 doctrine, the article finds some of its key assertions (including Hart’s understanding of the nature of legal indeterminacy and judicial choice, the attribution of “settle-meaning positivism”, and a doctrine of the rule of law) to be contentious or unwarranted.

Authors

Institutions

Publication Details

Journal
RUDN JOURNAL OF LAW
Published
2024-12-15
DOI
https://doi.org/10.22363/2313-2337-2024-28-4-778-797
Primary Topic
Law in Society and Culture
Type
article
Field-Weighted Citation Impact
0.00
Controls
|||
ALL TIME
JAN
FEB
MAR
APR
MAY
JUN
JUL
AUG
SEP
OCT
article

Revisiting legal positivism: H. Hart’s 1958 conception of legal reasoning in the lens of G. Postema

S. N. Kasatkin
RUDN JOURNAL OF LAW
Law in Society and Culture
article

Revisiting legal positivism: H. Hart’s 1958 conception of legal reasoning in the lens of G. Postema

S. N. Kasatkin
article en

Abstract

The article explores the 1958 “Harvard” conception of legal reasoning presented by the British philosopher and jurist Herbert Hart, within the context of a contemporary reinterpretation by American jurist and historian of legal thought, Gerald Postema. Postema’s interpretation, labeling Hart’s view as “settled-meaning positivism”, posits it as a unity that encompasses both the delineation of distinct types of argumentation in the realms of “core” and “penumbra” (linguistically mediated clear and controversial cases of law enforcement) and the reduction of law and legal reasoning to the “core” of rules and their established linguistic meanings. The article aims to analyze Postema’s perspective in the broader context of the evolution of Hart’s views on legal indeterminacy and judicial decision-making. The relevance of this topic lies in the necessity for a more comprehensive and balanced reconstruction of Hart’s theory, which is paradigmatic for modern positivism and Anglophone jurisprudence, in the light of the contentious and narrow character of its assessments. The authority of the Postema’s interpretation, seen as providing new insights into the work of the British jurist, adds to the relevance of this analysis. The research uses diverse, primarily hermeneutical, methods, drawing from Postema’s paper and the available body of Hart’s writings, as well as the representative biographical and scientific literature. The article examines the historical context of the 1958 essay’s creation and the doctrine of judicial reasoning contained within it. Ultimately, while recognizing the stimulating role of Postema’s re-description of the 1958 doctrine, the article finds some of its key assertions (including Hart’s understanding of the nature of legal indeterminacy and judicial choice, the attribution of “settle-meaning positivism”, and a doctrine of the rule of law) to be contentious or unwarranted.

RUDN JOURNAL OF LAWVol. 28(4)
Samara State University of Economics (RU)
Openalex Percentile: Top 40%
Law in Society and Culture
AI Navigator

Ask Laika to Summarize, Analyze, and Connect papers live on the map.

Summarize Papers & Methodologies

Extract key findings, datasets, and comparative methods across publications.

Benchmark Rankings & Visual Analytics

Rank top research institutions, authors, funders, topics, and journals by Field-Weighted Citation Impact (FWCI) and paper volume with instant charts.

Connect Distant Disciplines

Bridge topological clusters on the map to find hidden collaborative intersections.

Revisiting legal positivism: H. Hart’s 1958 conception of legal reasoning in the lens of G. Postema — S. N. Kasatkin · RUDN JOURNAL OF LAW (2024) | TGRS Research Map | TGRS