Article abstract: Combining the approaches of postwar linguistic philosophy and British analytical jurisprudence, Hart revived the field of philosophy of law, making distinctive and notable contributions to such issues as the nature of law, the relationships between law and morality, punishment and responsibility, and the concept of rights.
Herbert Lionel Adolphus Hart was the third son of Simeon Hart and Rose Hart. His father was a wool merchant of German Jewish extraction. Hart was educated at Chettenham College and Bradford Grammar School, then went to New College, Oxford University, where he studied the classics, ancient history, and philosophy. H. W. B. Joseph, a well-known logician, was Hart’s tutor there. Joseph later observed that Hart, among his many students, was a rare individual who combined exceptional philosophical acumen with solid judgment and good sense. Although offered a teaching post in philosophy at Oxford, Hart instead chose to study law. He was called to the bar in 1932 and served as a Chancery barrister from 1932 to 1940. During the war years, he served as a civil service member in the War Office, doing military intelligence work. In 1945, he was invited to become a fellow and tutor in philosophy at Oxford. He accepted the position and became one of the leading teachers of philosophy at that institution. Hart was increasingly influenced by his colleagues in philosophy, Gilbert Ryle, Stuart Hampshire, and especially J. L. Austin, all of whom were central figures in what was called linguistic philosophy, or ordinary language philosophy. Hart was elected to the chair of jurisprudence at Oxford when it was vacated in 1952.
In his inaugural lecture as professor of jurisprudence, “Definition and Theory in Jurisprudence,” Hart employed the methods of linguistic philosophy to address certain traditional issues in the law. The philosophical approach emphasized that human language had a great diversity and complexity of uses and that meaningful forms of human discourse were many and varied. Hart sought to apply this insight to the study of a number of jurisprudential concepts. Legal theorists, in seeking to define, per genus and species, terms such as “right” and “corporation,” had been led into obscure and unenlightening theories. Hart suggested that it would be more fruitful not to pursue such traditional definitions, which involve inquiring into what such terms “stood for,” and instead to examine the conditions under which statements using these terms are regarded as true. Such careful attention to language remained characteristic of Hart’s work; however, his approach was not confined to narrow linguistic analysis but extended to substantive theories and normative issues in philosophy and jurisprudence. Still, he remained committed to the methodological value of careful attention to language, expressed in J. L. Austin’s remark that we can use “a sharpened awareness of words to sharpen our perception of the phenomena.”
Hart’s rising reputation attracted the attention of Harvard Law School professor Lon Fuller, who invited Hart to spend a term at Harvard in 1956. Hart delivered the Holmes Lecture, under the title “Positivism and the Separation of Law and Morals,” which was later published in the Harvard Law Review along with a lengthy reply by Fuller. The Hart-Fuller debate—in particular, Hart’s vigorous defense of legal positivism—attracted widespread interest. Legal positivism was a doctrine advocated by the famous nineteenth century utilitarians, Jeremy Bentham and John Austin.
The core of the doctrine, in Hart’s view, was the denial of any necessary connection between law and morality. Hart agreed with Bentham and Austin that it is better to maintain a distinction between the issues of what the law is and what the law ought to be, both for understanding and for making moral criticism of the law. Hart criticized traditional natural law theory, which grounded positive law in higher law or natural law and insisted that unjust or evil laws were not genuine laws. In contrast, the main tenets of legal positivism, according to Hart, consisted of two claims:
First, in the absence of an expressed constitutional or legal provision, it could not follow from the mere fact that a rule violated standards of morality that it was not a rule of law; and, conversely, it could not follow from the mere fact that a rule was morally desirable that it was a rule of law.
Fuller, while praising the clarity and acuity of Hart’s discussion, developed a lengthy critique, sharply challenging the implication of legal positivism that law was morally neutral. Law was a purposive human institution, Fuller maintained, and as such it constituted a morally good order, worthy of respect and fidelity of those subject to it. The most heated exchange concerned the example of Nazi Germany, with discussion of the claim that the legal positivist leanings of most members of the German legal profession may have fostered a subservient attitude to the Nazi regime and its corruption of legal processes. There was also attention given to the problematic cases faced by postwar German courts involving wartime activities of German civilians that were “lawful” under some questionable Nazi statutes.
Hart incorporated many of the ideas and arguments of these early essays into his most famous work, The Concept of Law. In this work, he defended a sophisticated form of legal positivism, elaborated an analysis of law as a union of primary and secondary rules, and offered sustained criticisms of competing theories of law, including natural law theory, American legal realism, and John Austin’s command theory of law. Austin claimed to have found the “key to the science of jurisprudence” in the idea of a command or order backed up by credible threats. This provided a simple, clear, and seemingly compelling model of what the law really is. Hart subjected Austin’s theory to a withering attack, noting its inability to account plausibly for many of the familiar and characteristic aspects of laws and legal rules in mature legal systems, such as those enabling people to make wills and...
(The entire section is 2557 words.)