H. L. A. Hart
| Era | 20th-century philosophy |
|---|---|
| Region | Western Philosophers |
| School | Analytic |
Main interests | jurisprudence, legal positivism, linguistic philosophy, political philosophy, liberalism, utilitarianism |
H. L. A. Hart (Herbert Lionel Adolphus Hart) (1907-1992) is considered one of the most important legal philosophers of the twentieth century. He is the author of The Concept of Law and was Professor of Jurisprudence at Oxford University. Hart developed a sophisticated theory of legal positivism within the framework of analytic philosophy. Hart also made major contributions to political philosophy.
Biographical sketch
Hart was born in 1907, the son of a prosperous Jewish tailor of German and Polish origin. Educated at Cheltenham College, Bradford Grammar School and at New College, Oxford, Hart took an outstanding First in Classical Greats in 1929. He became a Barrister and practiced successfully at the Chancery Bar from 1932 to 1940 and was good friends with Richard (later Lord) Wilberforce. During World War II, Hart worked with MI5, a division of British military intelligence, where he renewed Oxford friendships. He did not return to his legal practice after the War, preferring instead to accept the offer of a teaching fellowship (in philosophy, not Law) at New College, Oxford. In 1952, he was elected Professor of Jurisprudence at Oxford. He retired from the Chair in 1969, and was succeeded by Ronald Dworkin. Although possibly homosexual according to some of his biographers, he married Jenifer Williams, a prominent civil servant. Jenifer was believed by her contemporaries to have had an affair of long duration with Isaiah Berlin, a close friend of Hart's. Jenifer Hart had four children including one who was disabled.
Hart's students
Many of Hart's former students went on to be important legal, moral, and political philosophers, including Brian Barry, John Finnis, Neil MacCormick, Joseph Raz, W. J. Waluchow and Ronald Dworkin. Hart also had a strong influence on the young John Rawls in the 1950s, when Rawls was a visiting scholar at Oxford shortly after finishing his PhD.
Philosophical method
More than any other person, Hart revolutionized the methods of jurisprudence and the philosophy of law in the English-speaking world. Influenced by J. L. Austin and Ludwig Wittgenstein, Hart brought the tools of analytic, and especially linguistic, philosophy to bear on the central problems of legal theory. Hart's method combined the careful analysis of twentieth-century analytic philosophy with the jurisprudential tradition of Jeremy Bentham, the great English legal, political, and moral philosopher. Hart was also influenced by Austrian legal philosopher Hans Kelsen, though Hart rejected two distinctive features of Kelsen's positivism: the idea that law necessarily requires sanctions; and the NeoKantian idea that a normative social phenomenon could not be explained purely in terms of social facts. In rejecting the "purity" of Kelsen's "pure theory of law," Hart broke decisively with Kelsen. (Hart and Kelsen, as it happens, grew to detest each other). Hart is widely considered responsible for bringing English-language jurisprudence into the philosophical mainstream.
The Concept of Law
Hart's most famous work is The Concept of Law, first published in 1961, with a second edition (including a new postscript) published posthumously in 1994. The book emerged from a set of lectures that Hart began to deliver in 1952, and it is presaged by his Holmes lecture, Positivism and the Separation of Law and Morals delivered at Harvard Law School. The Concept of Law developed a sophisticated view of legal positivism. Among the many ideas developed in this book are:
- A critique of John Austin's theory that law is the command of the sovereign backed by the threat of punishment.
- A distinction between primary and secondary legal rules, where a primary rule governs conduct and a secondary rule allows of the creation, alteration, or extinction of primary rules.
- A distinction between the internal and external points of view of law and rules, close to (and influenced by) Max Weber's distinction between the sociological and the legal perspectives of law.
- The idea of the rule of recognition, a social rule that differentiated between those norms that have the authority of law and those that do not. Hart viewed the concept of rule of recognition as an evolution from Kelsen's Grundnorm.
- A late reply (1994 Edition) to Ronald Dworkin, who criticized legal positivism in general and especially Hart's account of law in Taking Rights Seriously (1977), A Matter of Principle (1985) and Law's Empire (1986).
Other work
With Tony Honoré, Hart wrote Causation in the Law (1959, second edition 1985). As a result of his famous debate with Lord Patrick Devlin on the role of the criminal law in enforcing moral norms, Hart wrote Law, Liberty and Morality (1963) and The Morality of the Criminal Law (1965). Hart's work on the relationship between law and morality had a significant effect on the law in the UK, helping bring about the decriminalization of homosexuality, among other things.
Writings
- Definition and Theory in Jurisprudence (1953)
- Causation in the Law (with Tony Honoré) (1959)
- The Concept of Law (1961)
- Law, Liberty and Morality (1963)
- The Morality of the Criminal Law (1964)
- Punishment and Responsibility (1968)
- Essays on Bentham: Studies in Jurisprudence and Political Theory (1982)
- Essays in Jurisprudence and Philosophy (1983)
Festschrift
- Law, Morality, and Society: Essays in Honour of H. L. A. Hart, edited by P. M. S. Hacker and Joseph Raz (1977)
References
Nicola Lacey, A Life of H. L. A. Hart: The Nightmare and the Noble Dream. Oxford University Press: 2004 (ISBN 0199274975).
Frederick Schauer, "(Re)Taking Hart," 119 Harv. L. Rev. 852 (2006) (reviewing Lacey, A Life of H. L. A. Hart).