Jorge Luis Fabra-Zamora (University at Buffalo Law School) has posted Sets and Systems: A Reinterpretation of Hart’s Fable (Jurisprudence, forthcoming) on SSRN. Here is the abstract:
HLA Hart’s famous ‘fable’ in which the ‘legal system’ remedies the defects of a ‘pre-legal society’ is typically understood as offering an account of law. This article challenges the standard interpretation of Hart’s project and develops an alternative reading. I argue that the standard interpretation of the fable as providing an account of law not only conflicts with other elements of Hart’s work but is also vulnerable to a familiar objection of overinclusiveness. Alternatively, I argue that Hart’s fable should be read as developing a distinction between two types of normative complexes, sets and systems, applicable to both legal and non-legal settings. These differ in four dimensions: (i) how they regulate a community’s central normative activities, (ii) their authority structures, (iii) their doctrinal discourse, and (iv) their conditions of existence. I further argue that this reinterpretation illuminates central jurisprudential debates and the relationship between jurisprudence and social philosophy.
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