Jurisprudence Supervision 1 . Mercel - primary abstraction is important. Need a secondary reflection where the abstraction goes back into the concrete. · Analytical method is very archetypal of the Anglo-American philosophical tradition. o Continental can sometimes be a bit vague or unclear. · Scientific method is very dominant. Hart · Book meant for philosophy students who don't know much about law, and law students who don't know much about philosophy. . Subject to interpretation. May be because of way it is written. · Retter says Finnis thinks Hart works with cluster concept. Overlap of uses but no unifying feature. Wittgenstein says "game" is a cluster concept. Many overlaps of different uses of the word. Definition depends on what it is being used for. o Says Kramer would disagree Focal Instance First Chapter ? 3 recurrent issues of jurisprudence o Laws - commands backed by threats? o Laws and morals - their interplay and relationship o What are rules? . Hart gives things in threes. Crafts a middle way that he says is solution. . Hart views law through a social lens - they affect people. Social constructivism. Law is a social construct. Avoids natural law - there are no natural, eternal laws. . How does he avoid command theory too? o Both a product but also presupposition of intelligible human activity. o This is what he aims to prove. ? Retter thinks that custom is very important to Hart. o Wittgenstein - language games. Human creation - social creation. Mutual intelligibility presupposes rules. Can't fail to speak by rules if you want to be comprehensible. · Chess - once in game, when we don't play by rules, we aren't playing game. " Foundation of a practice and intelligibility of a practice is rooted in rules of practice. Don't ask about purpose, just want the rules. . Peter Winch - The Idea of a Social Science - extends to sociology in general.
- He says that to understand PNG cannibalism, we have to step inside and understand from inside based on their rules and practices. Coming with a moral evaluation fails to judge by their standards. o Hart influenced by Wittgenstein and Winch. Need to explain character of legal rules as opposed to rules of chess etc. o A rule is a measure of conduct. Intelligibility between agents, mutual meaningfulness needs reference to measure. o Mutual intelligibility of legal agents relies on reference to framework of legal rules. o When giving priority, we create a hierarchy of rules that define legality of legal action, acts, and decision-making. o Need a unifying norm - a rule of recognition. Presupposed norm in legal system that make acts intelligible. · References Wittgenstein twice in critical parts of book, also references Winch. . Does law as a social phenomenon explain why we feel compelled to follow it? o Hart thinks it is a normative inquiry - the book aims to explain legal obligation. . Normativity is the "oughtness" of something. The normativity we need