“The Religious Memory of HLA Hart: Legal Humanities in Religion’s Archive”

Adopting the post-secular as a critical posture for engaging the humanistic study of law, this paper seeks to render explicit legal positivism’s “religious memory” and its persistence within a “religious archive.”  By analyzing the account of legal obligation that distinguishes HLA Hart’s brand of positivism from earlier command theories of law, I attempt to show that this view of legal obligation presupposes an individual’s knowledge of some set of social facts whose recognition is deemed necessary for a community’s survival and, by extension, the ability to discern them.  This capacity for discernment, I contend, recovers and modifies a form of observational rationality, disused by command theorists, but inherited from the natural law tradition.  Such rapprochements with the intellectual reserves of law’s religious archive, I conclude, are particularly important in the present political moment, in which the line between law and sovereign command is increasingly blurred.