Hart’s French Bulldog. Gregory Bligh on The Philosophical Foundations of H.L.A. Hart’s Legal Positivism

Abstract

This is a critical review of Gregory Bligh’s Les bases philosophiques du positivisme juridique de H.L.A. Hart (The Philosophical Foundations of H.L.A. Hart’s Legal Positivism). Bligh’s book offers a deep dive into all of Hart’s works, as well as into the works of his main “ordinary language” philosophical influences, J.L. Austin and the later Wittgenstein. It explores ordinary language philosophy’s fundamental philosophical commitments as well as those of its nemeses, the logical positivists. In the process, Bligh suggests that there was more to ordinary language philosophy than the theory of speech-acts and that its basic commitments have never quite left Hart as he went on to build his jurisprudential theses in contrast with Kelsen’s and Alf Ross’s. As for more contemporary debates in legal philosophy, Bligh argues in favor of fully going “back to Hart” and moving away from Joseph Raz’s peculiar philosophical universe. The review first provides an overview of the book’s extraordinary genealogical achievements. It is nevertheless suggested that while Hart’s early critique of logical positivism presents strong analogies with the critique he later made of Kelsen and Ross, they also differ in fundamental ways. It is then argued that although moving away from Raz may be warranted, this should not be done by going back to Hart’s original philosophical toolkit. Brian Leiter’s Hart-sympathetic jurisprudential naturalism is suggested as an alternative path since it fits many of Bligh’s inclinations.