Sets and systems: a reinterpretation of Hart’s fable

HLA Hart’s famous fable in which the legal system remedies the defects of a pre-legal society is typically understood as offering an account of law. This article challenges the standard interpretation of Hart’s project and develops an alternative reading. I argue that the standard interpretation of the fable as providing an account of law not only conflicts with other elements of Hart’s work but is also vulnerable to a familiar objection of overinclusiveness. Alternatively, I argue that Hart’s fable should be read as developing a distinction between two types of normative complexes, sets and systems, applicable to both legal and non-legal settings. These differ in four dimensions: (i) how they regulate a community’s central normative activities, (ii) their authority structures, (iii) their doctrinal discourse, and (iv) their conditions of existence. I further argue that this reinterpretation illuminates central jurisprudential debates and the relationship between jurisprudence and social philosophy.