Hart and the Oxford Jurisprudence Circle: Rediscovering the Lost Legacy of Customary Law

H.L.A. Hart is one of the most famous legal positivists. Nevertheless, the controversy that surrounds his position on (customary) international law discloses a controversy that runs to the core of his Concept of Law. In an attempt to settle this controversy, the thesis delves into the history of ideas and, especially, the legacy built by Hart’s predecessors in the Oxford Chair of Jurisprudence: the Oxford Jurisprudence Circle. An exploration of their works exhibits that they constructed socio-historical groundworks for redefining the concept of law, beginning at the level of primitive communities and customary law. Fitting Hart into this legacy and re-reading his seminal work through its prism, clearly shows that Hart never questioned the legality of customary law, nor (in extension) the legality of customary international law. As such, this endeavour definitively, it is hoped, settles the controversy that surrounds Hartian scholarship and, through the revival of this lost legacy of customary law, a new, and more complete, Hart is revealed. This realization brings with it a number of other elements and unveils at least three strands of Positivism that have remained hidden, and largely misunderstood, under the vague and confusing ‘Positivism’ label. From this perspective, the present work challenges us to rethink what we consider to be the basis of Hart’s work and Hart’s kind of Positivism; and, at its end, new routes and new possibilities are revealed, not only for international Hartian scholarship but for general jurisprudence as well.