This article uses the theories of H.L.A. Hart to provide an interpretive framework for a vital civil rights statute, 42 U.S.C. Sec. 1983. Any interpretation of Sec. 1983 requires some sense of the fundamental nature of law and the ability to identify legal rules. Specifically, this article examines the "under color of" language of Sec. 1983 and the statute's application to municipalities. It is possible that these areas remain partially in flux or undeveloped because the Court lacks an interpretation of the statute that accounts for how rules can confer power, create artificial persons, delegate the ability to act with the power of the state, and cause others to believe that actions are occurring under state sanction. Hart's inclusive legal positivism can provide a comprehensive approach to identifying legal rules, and thus, also provides a way to interpret laws that call for identification of other laws. Additionally, Hart's concept of the internal point of view provides a way to interpret the "under color of" language of Sec. 1983 that better differentiates that language from state action. Thus, Hart's The Concept of Law is a perfect launching point for the application of the philosophy of law to problems of identification such as those found in Sec. 1983 jurisprudence. By way of introduction, the first several sections of this article present the history behind Hart's theories and a basic overview of Hart. The later sections of the article discuss the Supreme Court's rulings on "under color of" and municipal liability and possible explanations and expansions on those rulings through inclusive legal positivism.
Timothy I. Oppelt,
The Foundations of Section 1983 Jurisprudence: A Look from the Concept of Law,
Fla. A&M U. L. Rev.
Available at: http://commons.law.famu.edu/famulawreview/vol2/iss1/3