From Discretionary Power To The Crisis Of Recognition Of Secondary Rules

critical Perspectives From The Philosophy Of H. Hart

Abstract

This paper intends to show, from a critical reconstruction of H. Hart's thought, that the debate about discretionary power and the crisis of recognition of secondary rules are based on the pragmatic instance of language. This argument, however, consists essentially in a critique of law understood as a coercive order because, according to him, this would not be able to explain the habit of obedience and the very continuity of law. Initially, in this paper, we reconstruct Hart's typographical path to show the elements that support his concept of open texture to, in the sequence, indicate that the crisis in the recognition of secondary rules exposes, among other things, the boundaries in the exercise of discretionary power.