On Hartian Questions of Legal Philosophy

In a broader research project my principal aim is to analyse contemporary French legal philosophy and to highlight its historical origins and its connections to other legal cultures. The framework is based on Hart’s ‘persistent questions’ whereas the content consists of the ‘would-be answers’ of French legal philosophers. With regard to these Hartian questions, this paper develops the following argument. Although law itself is intrinsically connected to a given political community characterised by its culture and history, legal philosophy recommends an abstract and general approach to law. ‘Abstractness’ and ‘generality’ urge the legal philosopher to treat basic legal problems independently of this or that legal system. I shall argue that this ‘independence’ requires analysing the spirit of the legal system rather than positive law. The pursuit of legal philosophy seems feasible if legal philosophers can elaborate sufficiently ‘basic questions’ that can be ‘transposed’ to other legal cultures and if by answering these they can understand the spirit of the other legal system. My claim is that Hart’s ‘persistent questions’ meet these criteria.