A Hartian Theory of Officials
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Description
Published in Legal Competence: Concept, Norms, Formalization, and Exercise, Gonzalo Villa-Rosas & Torben Spaak, eds.
HLA Hart did not provide a thorough account of legal officials, even though such a notion is one of the central elements of his theory of legal systems. As critics have rightly argued, three related questions remain unanswered: “What is an official?” (the Conceptual Problem); “Who are the officials of a given legal system?” (the Identification Problem); and “How are these officials empowered by the system’s secondary rules?” (the Empowerment Problem). These issues have generated suggestions for eliminating legal officials from theoretical inquiries, leading to a larger question: “What role do officials play in legal theory?” (the Explanatory Role Problem). This chapter articulates an account of legal officials that supplements and substantially revises Hart’s original formulation in response to these issues. My renewed account reinterprets the central insights of Hart’s theory of legal systems as a general theory of practice-based normativity. With this account at hand, responses to each problem are advanced. To address the Conceptual Problem, I argue that officials are agents who make peremptory decisions (enactments and settlements) on behalf of a given community, while legal officials are agents who make such decisions on behalf of political communities. In response to the Identity Problem, I hold that the identification of officials demands the recognition of two kinds of agents: order-constituted officials created by the system’s valid norms identified by the rule of recognition and identified through a doctrinal analysis; and order-constitutive officials created by the system’s secondary rules and identified through a quasi-sociological inquiry. A detailed clarification of the power-conferring character of social rules is developed in response to the Empowerment Problem. Finally, in response to the Explanatory Role Problem, I clarify the relevance of officials both for jurisprudence and for social philosophy.
Publication Date
7-12-2023
Publisher
Springer
City
Dordrecht
ISBN
978-3-031-28554-7
Keywords
Legal systems, Constitutive rules, Power-conferring rules, Normative community, Normative orders
Disciplines
Comparative and Foreign Law | Jurisprudence | Law | Law and Society
Recommended Citation
Jorge Luis Fabra-Zamora, A Hartian Theory of Officials in Legal Competence: Concept, Norms, Formalization, and Exercise (Gonzalo Villa-Rosas & Torben Spaak, eds., Springer 2023).
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