Law in Society: Defending Hart

Document Type

Article

Publication Date

2025

Abstract

I revisit the debate between Joseph Raz and H. L. A. Hart concerning the nature of legal content and reasoning. Raz contended that legal reasoning should be analyzed as a form of moral reasoning. In contrast, Hart emphasized the distinction between legal and moral content, proposing that legal reasoning is a form of what I will call social-institutional reasoning. I characterize social-institutional reasoning in terms of the agent-relative, domain-specific, universal, and content-insensitive justifications it draws upon. I evaluate Raz's moralized analysis and argue that it obscures the distinctive contribution that law's social and institutional grounds play in our understanding of law. By analyzing legal content in moral terms, Raz's approach obscures the very thing that positivism is well-placed to elucidate: the distinctively social-institutional character of legal reasoning.

(Published in Res Publica and available at https://doi.org/10.1007/s11158-025-09725-y under a Creative Commons Attribution 4.0 License.)

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