公 法 评 论 你们必晓得真理，真理必叫你们得以自由。

Oxford Journal of Legal Studies, Volume 21, Issue 1, pp. 1-32: Abstract.

Socio-Legal Positivism and a General Jurisprudence

BRIAN Z. TAMANAHA

H.L.A. Hart described his classic book, The Concept of Law, as a work in ?descriptive sociology?, and his aspiration was to produce a general jurisprudence. He was less than successful in achieving both of these aims. This article attempts a comprehensive reconstruction of legal positivism in a manner that will render it more compatible with a sociological approach, and more amenable to the project of general jurisprudence. The label ?socio-legal positivism? reflects the fact that this article grafts the insights and orientation of socio-legal theory onto the core tenets of legal positivism. In the course of this reconstruction, certain traditional views of legal positivists, especially those regarding the function of law and the nature of the concept of law, are discarded or modified. A number of Hart's key insights are preserved, but resituated within a broader framework. And the relationship between legal positivism and natural law is altered dramatically. The result of this reconstruction is the foundation for the construction of a general jurisprudence that better fits the complex and variable situation of law in society today.

Oxford Journal of Legal Studies, Volume 21, Issue 1, pp. 59-72: Abstract.

Pepper v Hart; A Re-examination

JOHAN STEYN

This article re-examines the House of Lords? decision in Pepper v Hart, which relaxed the rule prohibiting courts from using ministerial explanations of Bills in Parliament in the construction of statutes. It recognizes the importance of context in the interpretation of statutes, but questions the assumption in the case that intention can be attributed to Parliament. It argues that the case can be confined to authorizing the use of ministerial statements in Parliament when such statements can be shown to be inconsistent with arguments made by government before the courts on the meaning of the legislation. Any broader interpretation of the decision raises serious constitutional objections.