Título del seminario: "50º aniversario de The Concept of Law"In apertura di The Concept of Law (d’ora in avanti, CL) Hart osserva: "the most
prominent general feature of law at all times and places is that its existence
means that certain kinds of human conduct are no longer optional, but in some
sense obligatory" (1961, p. 6; cfr. anche p. 80: "where there is law, there human
conduct is made in some sense non-optional or obligatory").
Questa osservazione appare innocua. Ma c’è un trucco. L’osservazione
suggerisce un’identificazione: l’identificazione fra l’essere una linea di condotta
‘non-opzionale’ e il suo essere ‘obbligatoria’. E questa identificazione è fallace..

Celano, Bruno

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Hart's blind spot : Il tassello mancante in "The concept of law"

At the beginning of The Concept of Law Hart suggests a mistaken assimilation between conduct that is ‘non-optional’ and conduct that is ‘obligatory’ (i.e,. conduct that is either coerced or subject to an obligation). This suggested assimilation vitiates the argument of the whole book, leading Hart to neglect the different ways in which the law typically tracks, corroborates or constitutes power relations. It is true that, famously, attention is paid, in The Concept of Law, to normative, legal powers. Brute social power, and law’s relation to it—the role of law as a cog in the workings of social powers—, however, are largely overlooked. This is. in a way, Hart’s blind spot.
I list some of the ways, other from coercion or obligation, in which the law may happen to serve, corroborate or be an instrument of social power. I also show that Hart’s treatment of the relations between the law and political power, in The Concept of Law, is unsatisfactory. Both his reconstruction of the ideal genesis of a developed legal system and the argument supporting a ‘minimal content of natural law’ presuppose the idea of a social group in which no power relationships subsist

Hart's blind spot : Il tassello mancante in "The concept of law"

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