Rule of Recognition, Convention and Obligation. What Shapiro Can Still Learn from Hart’s Mistakes

Abstract

Shapiro works out a version of legal positivism taking as its starting point Hart’s practice theory of law. Some serious limits of Hart’s practice theory of norms concern the conception of legal obligation and normativity of law. In this paper I analyze the limits of Hart’s conception of legal normativity and I appraise whether the planning theory of law indicates the correct direction for overcoming them. To anticipate the conclusion, my effort is to show that Shapiro replicates Hart’s mistakes on this subject-matters. The paper is divided in three main sections. First, I will present briefly a critical reconstruction of Hart’s conception of normativity, reconstruction which is partially different from that given by Shapiro in Legalidad. I will analyze either the original conception of normativity sketched out by Hart in The Concept of Law and the (partially) different conception which can be drawn by the Postscript. Then, I will deepen the conceptions of legal obligation and authority of law associated with the planning theory of law. Few concluding remarks will be devoted to some Shapiro’s assumptions on legal positivism.