The Return of Habits

Sylvie Delacroix, Law and Habits, 37 Oxford J. of Legal Stud. 660 (2017), available at SSRN. Sean Coyle The article begins by considering two theses from H.L.A Hart: thesis 1) a legal system can be based on official acceptance alone; thesis 2) such a system is particularly conducive to a society that is deplorably sheeplike. The author argues that (2) is correct but (1) is unhelpful or wrong. Hart spells out the sheeplike tendency when he speaks of ‘an unreflecting inherited or traditional attitude, or the mere wish to do as others do.’ The author wants to interrogate the idea of “acceptance”, and to switch the focus from social practices to the habits (patterns of repeated behaviour) that underpin the practices. Hart, it is said, sought to bridge the gap between habits as a social fact and law as social rules, by the concept of acceptance. The author states that an “emphasis on the necessity to grow out of the habitual through…

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