Wednesday, September 27, 2017

Ho on Hart and the Chinese Legal Tradition

Norman P. Ho, Peking University School of Transnational Law, has posted Internationalizing and Historicizing Hart's Theory of Law, which is forthcoming in the Washington University Jurisprudence Review 10 (2018):
In "The Concept of Law" – which continues to enjoy the central position in the field of analytical jurisprudence five decades after its initial publication – H.L.A. Hart makes two powerful claims. He argues that his theory of law is universal (in that it can apply to any legal culture) and timeless (in that it can apply to different times in history). Despite the sweeping, bold nature of these claims, neither Hart nor the large body of scholarship that has responded to, criticized, and refined Hart’s model of law over the past few decades has really tested whether Hart’s geographic and temporal claims are true. Hoping to correct this scholarly deficit, this Article attempts to internationalize and historicize Hart’s theory of law by applying it to the Chinese legal tradition – a non-Western, secular, and largely homegrown legal tradition that remained free from Western influence and enjoyed remarkable continuity for approximately 1,500 years. Through using specific legislative and judicial debates from the Chinese legal tradition as a testing ground for Hart’s theory (rather than simply focusing on Chinese premodern codes and statutes, which cannot illuminate law in practice), this Article argues that Hart’s theory of law – namely, his signature concept of the rule of recognition – can be said to be generally applicable to the Chinese legal tradition, and hence, has stronger claims to being universal and timeless. However, when applied to the Chinese legal tradition, Hart’s model of law makes certain incorrect, Western-centric assumptions regarding the function of the rule of recognition in a legal system, namely, his argument that the rule of recognition solves the deficiency of uncertainty in the primary rules. Put another way, although Hart claims his theory of law is descriptive and morally neutral, it may nevertheless contain certain Western-centric normative assumptions. This problem is not, however, fatal to the general applicability of Hart’s model of law to the Chinese legal tradition, but acknowledgement of such a problem can help legal theorists put forth a truly general “general jurisprudence.”

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