Last Updated on May 6, 2015, by eNotes Editorial. Word Count: 2557
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 empowering courts to adjudicate disputes.
From the late 1950’s through the mid-1960’s, Hart was engaged in a debate with a prominent British jurist, Sir Patrick Devlin. In his Maccabean Lecture in Jurisprudence delivered to the British Academy called “The Enforcement of Morals,” Devlin took issue with the Wolfenden Committee Report. The committee had recommended repeal of the law criminalizing homosexual practices, even among consenting adults in private. Devlin objected to the committee’s basis for its recommendation, namely, that such conduct was part of “a realm of private morality and immorality which is, in brief and crude terms, not the law’s business.” Devlin argued that “the suppression of vice is as much the law’s business as the suppression of subversive activities.” Hart criticized Devlin’s views on this matter and in particular Devlin’s comparison of vice with subversive activities, initially in an article “Immorality and Treason” published in the Listener. In the Harry Camp Lectures delivered at Stanford University, Hart presented a more elaborate critique of legal moralism, the principle endorsed by Devlin, which states that a society has a right to enforce its moral code legally. These lectures were published in 1963 in a short book called Law, Liberty, and Morality. Scholars and jurists on both sides of the Atlantic joined the Hart-Devlin debate about the proper role of criminal law and the limits of individual liberty. Devlin, who became a member of the House of Lords, was prompted to develop his views more fully, publishing them in The Enforcement of Morals in 1965.
Hart’s reputation as one of the leading philosophers of law in the English-speaking world was enhanced by his work on other issues besides the nature of law and the relationship of law and morality. Hart, along with Tony Honoré, his colleague at Oxford, published a detailed study of causation in their 1959 book Causation in the Law. They contended that the law used the conception of causation rooted in ordinary life and in everyday speech, distinguishing the cause of an event from other necessary conditions according to complex but discernible criteria. Hart and Honoré sought to defend the ordinary conception of causation and its use in the law from legal theorists who derided the use of causal language by the courts as a smokescreen for normative or policy judgments made by judges.
Hart also had a keen interest in philosophical questions surrounding responsibility and punishment in criminal law. A number of papers and lectures on these themes were assembled in the book Punishment and Responsibility. Hart provided a careful treatment of concepts related to legal responsibility, including intention, negligence, excuse, and mens rea (criminal intent). He affirmed the importance of the values of individual liberty and fair opportunity in legal policies and practices; as Hart observed, “Human society is a society of persons; and persons do not view themselves or each other as so many bodies moving in ways which are sometimes harmful and have to be prevented or altered. Instead persons interpret each others’ movements as manifestations and choices.” The first essay in the volume, on criminal punishment, sought to reconcile the competing philosophical theories of punishment, utilitarian and retributive, by pointing out that the justification of punishment is, in fact, a complex set of questions, with different aims and different values at stake.
Hart resigned the chair of jurisprudence at Oxford in 1968 and became a research fellow at University College. One of his major projects was participating in the editing of Bentham’s papers. In 1973, he became the principal of Brasenose College, serving in that position until 1978, when he returned to University College to resume scholarly research. During this period, Hart continued to publish important and well-received articles in moral philosophy and philosophy of law. He developed a distinctive theory of rights, defending a “will” or “choice” theory that held that conferring a right is recognizing the primacy of some individual’s choice over others with respect to some matter. For example, if one has a right to refuse medical treatment, then the choice of receiving or not receiving medical treatment is up to the individual; it is one’s choice that determines whether one receives or does not receive treatment. Hart also undertook to review his theory of law, revising it in places and defending and clarifying it in others. He began writing a response to the many critics of his views in The Concept of Law, particularly those of the American legal philosopher Ronald Dworkin. Dworkin’s early writings were a critical analysis of Hart’s theory of law, and on the basis of this work, Dworkin had been selected to succeed Hart in the chair of jurisprudence at Oxford. A second edition of The Concept of Law, with a new postscript, was published in 1994. The new edition contains unfinished drafts composed by Hart and edited by Joseph Raz and Penelope Bulloch.
Hart died in 1992 and was survived by Jennifer Williams Hart, his wife of fifty-one years, as well as one daughter and three sons.
Hart is widely credited for the revival of jurisprudence and philosophy of law in the post-World War II era. Dworkin once stated that after becoming professor of jurisprudence at Oxford in 1952, Hart dominated and transformed legal theory, a feat that Dworkin attributed to Hart’s lucid mind and to his command of moral philosophy. The Concept of Law is considered a classic in the field, and even those who are unconvinced by its main theses, including Dworkin, feel compelled to address the issues raised by Hart in the terms in which he framed them.
Hart’s work, while primarily dealing with the philosophy of law, affected a number of other areas, including social and political philosophy and ethics. His treatment of issues was always clear and illuminating, providing a fresh and incisive perspective on issues. For example, his 1955 paper “Are There Any Natural Rights?” is still regarded as a seminal study of rights, even though Hart himself later rejected its main argument as mistaken. Hart was evenhanded and fair, intellectually honest, and generous and gracious in acknowledging the merit in the work of those he criticized and those who criticized his work.
Hart’s philosophical outlook was broadly liberal, recognizing a plurality of moral values and principles. In this respect, he was very much akin in intellectual spirit to his close friend and Oxford colleague, Isaiah Berlin. Hart was very much impressed with and influenced by the British utilitarian tradition, but he insisted on the need to bring into play other types of moral concerns and principles, such as justice, fairness, and respect for individual rights.
Bayles, Michael. Hart’s Legal Philosophy. Dordrecht, Netherlands: Kluwer Academic Publishers, 1992. This careful and thorough analysis of H. L. A. Hart’s legal philosophy places Hart’s contributions in a wider context. The author is sympathetic to most of Hart’s positions, defending them against various criticisms.
Boos, Eric J. Perspectives in Jurispurdence: An Analysis of H. L. A. Hart’s Legal Theory. New York: Peter Lang, 1998. This book examines the perpetual controversy between legal positivism and natural law and explores Hart’s approach to the link between law and morality.
Devlin, Patrick. The Enforcement of Morals. London: Oxford University Press, 1965. This collection of Patrick Devlin’s papers and lectures contains a well-developed defense of legal moralism and an interesting appraisal of the complex role of criminal law.
Dworkin, Ronald. Law’s Empire. Cambridge, Mass.: Belknap Press, 1986. This work is the most comprehensive and systematic development of Dworkin’s views about the nature of law and adjudication. He continues his critique of Hart and legal positivism, and emphasizes the importance of interpretation in trying to understand law and adjudication.
Dworkin, Ronald. Taking Rights Seriously. Cambridge, Mass.: Harvard University Press, 1978. Dworkin’s first book consists of previously published major articles, emphasizing the theme of the importance of individual rights. It also includes several papers, starting with the “The Model of Rules,” in which he develops a series of criticisms of Hart’s legal positivism.
Fuller, Lon. “Positivism and Fidelity to Law: A Reply to Professor Hart.” Harvard Law Review 71(1957):630-672. Harvard law professor Lon Fuller published his reply to Hart’s Holmes Lecture in the same volume of the Harvard Law Review that contained the printed version of Hart’s lecture. Together they form the celebrated Hart-Fuller debate, referred to by one commentator as “perhaps the most interesting and illuminating exchange of views on basic issues of legal theory to appear in English in this century.”
Hacker, B. M. S., and J. Raz, eds. Law, Morality, and Society. Oxford: Clarendon Press, 1977. This excellent collection of original articles was published in honor of Hart on the occasion of his seventieth birthday. The essays all examine either Hart’s work or issues in philosophy of law that Hart discussed.
MacCormick, D. Neil. H. L. A. Hart. Stanford, Calif.: Stanford University Press, 1981. This remains the best available single study of Hart’s legal philosophy. The author is generally sympathetic to Hart’s views on the nature of law but sharply disagrees with other aspects of Hart’s theory such as the nature of legal rights.
Martin, Michael. The Legal Philosophy of H. L. A. Hart. Philadelphia, Pa.: Temple University Press, 1987. This critical appraisal of Hart’s legal philosophy examines the development of Hart’s views and Hart’s celebrated debates with Dworkin, Fuller, and Devlin.