The forgotten origin

H.L.A. hart's sense of the pre-legal

pp. 201-246

in: William E. Conklin, The invisible origins of legal positivism, Berlin, Springer, 2001

Abstract

The classic canons of the tradition of legal positivism suggest that officials forget that the authorizing origin of humanly posited laws is inaccessible to the language of humanly posited laws. The problematic of this tradition, then, has been to postulate an authorizing origin to humanly posited norms/rules, but the origin, to be an origin, must differ from the character of humanly authored laws. The origin must be external to what officials take as legal existence. Hart was more open than his predecessors were about the externality of the origin. He certainly was more conscious of the importance of the externality of the origin than are his supporters today. Indeed, there is a sense in which his commentators have unknowingly worked to conceal the externality of the origin. The objective of this chapter is to elaborate the nature of the forgotten origin and, as a consequence, to question the viability of important claims attributed to legal positivism.