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H.L.A. Hart, Second Edition$
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Neil MacCormick

Print publication date: 2008

Print ISBN-13: 9780804756785

Published to Stanford Scholarship Online: June 2013

DOI: 10.11126/stanford/9780804756785.001.0001

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The Legal Order I: Primary Elements of Law

The Legal Order I: Primary Elements of Law

(p.117) Chapter Nine The Legal Order I: Primary Elements of Law
H.L.A. Hart, Second Edition
Stanford University Press

In relation to obligation, duty, and wrongdoing, H. L. A. Hart incorrectly conflates these three related but distinct concepts and reaches a false conclusion as to the necessity of “rules” for defining them. In his theory of the content and structure of a legal order, Hart argues that the primary elements of law are certain basic rules of obligation. He cites the “importance” of certain kinds of restraint on conduct as a defining criterion for both morality and obligation. In addition, he claims that certain kinds of restraint on killing, on violence, on dishonesty, deception and breach of faith, and on the free use of valued possessions are important for humans as social beings based on his acceptance of certain elements in what is called the “natural law” tradition in Western legal and political philosophy. Hart (and David Hume) discussed three basic human qualities: “human vulnerability,” “approximate equality,” and “limited altruism.” However, Hart failed to mention another basic feature of human nature: sex.

Keywords:   H. L. A. Hart, legal order, restraint, sex, human nature, human vulnerability, approximate equality, limited altruism, law, obligation

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