Hartian Positivism Framed as a Realist Theory of Law

The paper argues that H. L. A. Hart’s version of legal positivism should be seen as a realist theory of law. The author defines realist theories as those that describe law without moralizing, accept that law cannot fully determine every judicial outcome, and place law within a naturalistic account of the world. The work claims that both American and Scandinavian legal realists fit this conception, and that Hart’s positivism aligns with it despite his critiques. A noted exception is one element added by Raz, which the paper suggests departs from Hart’s realist ambitions.

What the study examined

The paper examines the relationship between two long-standing families of legal thought: positivist accounts of law and realist accounts of law. The author focuses on H. L. A. Hart’s influential version of positivism and asks whether it should be read as a realist theory rather than as opposed to realism.

The piece sets out a working definition of what counts as a “realist” theory of law. Under this definition, realist theories do three things: describe law without moralizing illusions; accept that law cannot adequately explain every judicial decision; and ground law and adjudication within a naturalistic understanding of the world, avoiding appeals to entities or properties outside successful empirical accounts of social and natural phenomena.

Key findings

According to the author, Hart’s theory meets the core criteria for realism. It privileges descriptive clarity over moralizing rhetoric, recognizes limits to legal explanation in adjudication, and treats legal institutions in ways consistent with a naturalistic framework. In this respect, Hartian thought operates like the realist approaches advocated by earlier American and Scandinavian writers, although those realist traditions approached the issues in different ways.

The paper also notes a tension introduced by a later addition to Hart’s framework associated with Joseph Raz. That addition—the idea that law necessarily claims authority in a particular “Service Conception” sense—is presented as a move that undermines or departs from Hart’s original realist ambitions. The author frames this Razan element as a notable exception within an otherwise realist reading of Hart.

Why it matters

Recasting Hart’s work as a realist theory has implications for how major debates in legal theory are understood. The author argues that, properly read, positivists and realists form a shared theoretical front against approaches that moralize or obscure the social role of law. This repositioning affects how critics and defenders of different schools are situated within ongoing disputes over the nature of law and adjudication.

By highlighting common ground—emphasis on descriptive adequacy, the recognition of law’s limits in adjudication, and the commitment to naturalistic explanation—the paper suggests a reframing of longstanding theoretical conflicts. At the same time, it isolates specific doctrinal moves, such as Raz’s formulation about authority, that complicate the unity between these schools and warrant further attention.