Do rules exist?
| Abstract | This paper argues that in focusing on the problem of whether, and if so how, rules of law exist, legal theory endangers its capacity to both account for and evaluate how law accompanies a community in its adaptation to emerging social problems. Two classical works of legal theory are analysed, Hans Kelsen's Pure Theory of Law and HLA Hart's The Concept of Law, with a view to revealing the weaknesses of a legal theoretical approach aimed at describing the conditions under which norms or rules exist as laws. An alternative is offered in the name of the concept of qualifiers. This concept is elaborated upon by reference to the work of GEM Anscombe, Bernard Jackson and Geoffrey Samuel, and an attempt is made to show how the concept of qualifiers can refocus the emphasis of legal theory on the more or less successful use of legal language by members of a legal community for the purposes of proposing legal solutions to social problems. Ultimately, the concept of qualifiers offers not only a different way of thinking about legal language, but also a different way of thinking about the limited role of language in theorising about any sort of phenomenon, including law. | |||||||||
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Hans Kelsen (1992). Introduction to the Problems of Legal Theory: A Translation of the First Edition of the Reine Rechtslehre or Pure Theory of Law. Oxford University Press.
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