herbert hart

The origin and foundation investigation of authority and validity of law on the one hand and explanation of the method of achieving legal provisions on the other hand are two fundamental issues in the philosophy of law that have always occupied the minds of legal theorists. Herbert Hart, in his book "The Concept of Law", as one of the most important works of legal philosophy in the twentieth century, with a serious approach to legal positivism, seeks to present a content analysis of the use of the concept of law in various social behaviors and the construction of such concept to create legal provisions and justify its authority on order to design a modern model in law. To reach the goal, the use of speech acts as one of the important elements in the field of discourse analysis and the acceptance of a kind of moderate skepticism are evident in his words and ideas. Considering the translation of his works into Persian version and the expansion and promotion of the aforementioned thoughts in Iranian scientific-legal communities without paying attention to its philosophical background nor considering its paradigmatic difference with Islamic thought, the study here, has aimed to analytically and comparatively examine Herbert Hart's thesis in two methodological and epistemological aspects with Islamic jurisprudential and fundamental thought, in order to clarify the identity contrast of law emerged from the two. The emergence of the modern law with a different identity comparing the former is indebted to specific philosophical foundations, and its development does not simply refer to a change in terminology and positions. It seems that confronting and standing firm against modern philosophical interpretations of the science of law and presenting traditional and indigenous interpretations arising from the transcendent jurisprudential thought can serve as a center of authority elevating the status of the legal system in general and Islamic law in particular. Here, descriptive and analytical methods and comparisons in a cross-paradigmatic situation between the paradigms of existence and language have been hired in order to identify the components of each of the two ideas, create discourse, and emerge a suitable context for philosophical criticism. The findings of the study have depicted that in terms of methodology, given the dominance of the language paradigm in the 20th century and its extension in Western philosophical thought, such as the branches of continental philosophy and analytic philosophy, Hart's positivist thought follows a single linguistic method in answering all questions of the legal system generally called Law, including issues regarding the origin, foundation, authority, obligation, and validity of law, and recognition of legal rules and their provisions. However, in indigenous Islamic thought, actually not all of the above questions can be answered with the same method. Rather, given the dominance of the existential paradigm over Islamic thought and the divine dominance with metaphysical perspective, can be analyzed and through a rational-philosophical method, and rest with a rational-conventional explanation will be responded. Epistemologically, Hart's Monolateral view of man and his social actions does not guarantee the permanence and survival of law, and the elevation of human knowledge in the light of divine grace, by connecting to the source of revelation, frees him from limitation and secures the immortality of law in the field related to nature. With the correct view of rational and customary public laws, in short, one can achieve fixed and unchangeable laws.

Philosophy of law is one of the most complex and difficult branches of law, as well as philosophy, which seeks to determine the legal truth of law (law as it is). Legal positivism, as one of the philosophical schools of law, with a morally neutral theory, makes the conceptual description of law possible and necessary. According to this school of law, positive laws are laws adopted by governments, and in the context of the analysis of this school, public law emerges as a branch of law whose main mission is to study the rules governing the organization of internal and external relations of the state in its general sense, by designing general theory with a correct and in-depth understanding of its fundamental concepts. Herbert Hart’s legal theory, with a hermeneutical approach to legal rules, seeks to understand the legal system through introspective analysis and semantics of legal rules. Through a comprehensive analysis of the formulation of legal rules, while adhering to a minimum of the natural law, it also seeks to depict a system of law in which following the law is internalized, not as mere following the ruler; this system of law proposes the theory of distinction between the primary rules and the secondary rules, as well. Therefore, this descriptive-analytic research analyzes Hart’s positivism in the field of public law.