Research Seminar Series - Putting the Human Back into Jurisprudence

Asked late in life whether legal positivism had limits, H.L.A. Hart replied that it was "the beginning not the end of the answer." This article takes him at his word and asks: is it really the beginning? For decades, legal philosophy in the Hartian tradition has claimed that conceptual analysis must come first. On this view, before law's history, politics, or social life can be properly studied, philosophers must settle what law is. We argue that this gets the order of things backwards, and that the mistake matters for every legal scholar, not only for philosophers. No one comes to law from nowhere. We meet it first as people who live under it. We are protected by it, constrained by it, sometimes harmed by it, and we speak about it in a language already shaped by history and power. Three unlikely allies help show why. Bernard Williams reminds us that philosophy about human practices cannot pretend to stand outside them. Judith Shklar shows that whose point of view we start from (the judge's or the person in the dock) is a moral choice, not a neutral one. Stanley Cavell shows that our everyday legal words already carry the lives and struggles that produced them. What genuinely comes first, we suggest, is a sense of the situation: a lived, historically grounded awareness of what law means for those subject to it. From this starting point emerges a humanistic philosophy of law. It keeps analysis's rigour, recovers its purpose, and reconnects legal philosophy with the concerns of legal scholarship as a whole. It sees law, in Gloucester's words from King Lear, feelingly.

Join the seminar in person or through this teams link: https://teams.microsoft.com/meet/393802349298378?p=DxTTgRnRz5Tmxp3Jtr