The Questionable Presupposition Underlying Hartian Accounts of Legal Facts

AbstractPer the standard reading of his view, Hart held that the legally valid norms of any legal system are those identified as such by the criteria of validity effectively accepted in common by the system's officials (i.e. the system's rule of recognition). Here, I focus on the presupposition underlying this Hartian account of legal facts – namely, that the officials of any legal system share a perspective that fixes the identity of their system's legally valid norms. Below, I hope to establish the appeal of this presupposition and the attendant Hartian project of providing an account of the identity of the legally valid norms of any legal system. Nonetheless, as I explain, the phenomenon of disagreement that Ronald Dworkin describes threatens Hart's crucial presupposition, thereby posing a mortal threat to his account of legal facts. Moreover, as I hope the following survey illustrates, the phenomenon of disagreement similarly threatens many other contemporary theories of law (including Dworkin's), for these theories join the project of providing a Hartian account of legal facts. A final objective of this survey is to highlight two mutually exclusive strategies for responding to the phenomenon of disagreement: rejecting the Hartian presupposition and commitment to legal facts or affirming this Hartian project by explaining how officials share a legal fact‐fixing perspective despite disagreeing about their system's criteria of validity.

The Questionable Presupposition Underlying Hartian Accounts of Legal Facts Journal Articles