Abstract

The recent publication of a lost essay by Herbert Hart is important for an historical appreciation of his work, but its likely celebration is a sad testament to the poverty and lethargy of contemporary legal thought. I use this occasion to review the state and condition of contemporary legal theorising. After positioning Hart's essay in the prevailing jurisprudential milieu, I highlight the thrust and the failings of the three main traditional approaches to contemporary legal theorising in regard to the nature and operation of 'judicial discretion'. Then, I suggest an alternative approach to legal theorising that recommends a more satisfying way of proceeding