Herbert Lionel Adolphus Hart (18 July 1907 – 19 December 1992)
was a British legal philosopher, and a major figure in moral and political
He was Professor of Jurisprudence at Oxford University and the
Principal of Brasenose College, Oxford.
His most famous work is "The Concept of
It has been argued that Hart had redefined the domain of
jurisprudence and moreover established it as a philosophical inquiry of the
"nature" or "concept" of law.
He is considered the "world's foremost legal
philosopher in the twentieth century" alongside Hans
Hart was born in 1907, the son of Simeon and
Rose Samson Hart, in Harrogate, to which his parents had
moved from the East End of London.
Simeon Hart was a prosperous Jewish tailor of
German and Polish origin.
Rose Samson was of Polish origin, daughter of successful
retailers in the clothing trade, handled customer relations and the finances of
Hart had an elder brother, Albert, and a younger sister,
Hart was educated at Cheltenham, Bradford Grammar School and at
New College, Oxford.
Hart took an outstanding First in Classical Greats in
He became a barrister and practised successfully at the Chancery Bar
from 1932 to 1940.
He was good friends with Richard (later Lord) Wilberforce,
Douglas Jay, and Christopher Cox, among others.
He received a Harmsworth
Scholarship to the Middle Temple and also wrote literary journalism for the
periodical John O'London's Weekly.
During World War II, Hart worked with
MI5, a division of British military intelligence concerned with unearthing spies
who had penetrated Britain, where he renewed Oxford friendships including
working with the philosophers Gilbert Ryle and S. N. Hampshire.
closely with Dick White, later head of MI5 and then of MI6.
Shortly after the
war in Europe had ended, Hart and White were joined in conversation by Hugh
Trevor-Roper, a conversation which revolved around what had happened to Hitler.
Trevor-Roper's biographer has written that "over the third bottle of hock", the
idea emerged that a systematic search should be made, a search which resulted
ultimately in the historian's famous book, The Last Days of Hitler.
work took him on occasion to MI5 offices at Blenheim, family home of the
Duke of Marlborough and the place where Winston Churchill was born.
was somehow able to read the diaries of Sarah Churchill, Duchess of Marlborough,
wife of the founder of the dynasty John Churchill, 1st Duke of Marlborough.
Hart's wit and humanity are demonstrated by the fact that he particularly
enjoyed the passage where Sarah tells that John had been away for a long time,
had arrived suddenly, and "enjoyed me straight way in his boots."
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.
Hart cites J. L. Austin as particularly influential during this time.
jointly taught from 1948 a seminar on 'Legal and Moral Responsibility.' Hart will later co-write an essay with Hampshire on Intention and Certainty to which Grice's Intention and Uncertainty is meant as a reply.
publications at this time were the essays 'A Logician's Fairytale,' 'Is
There Knowledge by Acquaintance?,' 'Law and Fact,' and 'The Ascription of
Responsibility and Rights', where he introduced the idea of DEFEASIBILITY (vide Baker, "Defeasibility and meaning"). He also reviewed Holloway's "Language and Intelligence" for the Philosophical Quarterly, citing Paul Grice on the distinction between
i. Those dark clouds mean rain, but it won't rain.
ii. "Those dark clouds mean rain" means that those dark clouds mean rain.
In 1952, he was elected Professor of
Jurisprudence at Oxford.
It was in the summer of that year that he began writing
his most famous book, The Concept of Law, though it was not published until
In the interim, he published another major work, Causation in the Law
(with Antonio Honoré) (1959).
He was president of the Aristotelian Society from
1959 to 1960.
Hart married Jenifer Fischer Williams, a civil servant, later a
senior civil servant, in the Home Office and, still later, Oxford historian at
St Anne's College (specialising in the history of the police).
was, for some years in the mid-1930s and fading out totally by decade's end, a
'sleeper' member of the Communist Party of Great Britain.
Three decades later
she was interviewed by Peter Wright as having been in a position to have passed
information to the Soviets, and to Wright, MI5's official spy hunter, she
explained her situation.
Wright took no action.
In fact her work as civil
servant was in fields such as family policy and so would have been of no
interest to the Soviets.
The person who recruited her, Bernard Floud,
interviewed by Wright shortly after, maintained that he was unable to remember
ever having done so.
Nor was her husband in a position to convey to her
information of use, despite vague newspaper suggestions, given the sharp
separation of his work from that of foreign affairs and its focus on German
spies and British turncoats rather than on matters related to the Soviet ally.
In fact, Hart was anticommunist.
The marriage contained "incompatible
personalities", though it lasted right through the end of their lives and gave
joy to both at times.
Hart did joke with his daughter at one point, however,
that "the trouble with this marriage is that one of us doesn't like sex and
the other doesn't like food."
Jenifer Hart was believed by her contemporaries
to have had an affair of long duration with Isaiah Berlin, a close friend of
Jenifer published her memoirs under the title "Ask Me No More" in 1998.
The Harts had four children, including, late in life, a son who was disabled,
the umbilical cord wrapped around his neck having deprived his brain of oxygen.
The boy was, despite his handicap, capable of remarkable observations on
As a philosopher, Hart had long been interested in the mind-body
problem, and he was thus in some sense professionally interested in his son, as
well as emotionally invested, if only because his child was first-hand proof of
the complex and unpredictable nature of the relationship between mind and
There is a description of the Hart's household by the writer on
religion Karen Armstrong, who lodged with them for a time to help take care of
their disabled son.
The description appears in her book "The Spiral
Hart retired from the Chair of Jurisprudence in 1969 and was
succeeded by Ronald Dworkin.
He subsequently became Principal of Brasenose, Oxford.
Many of Hart's former students
became important legal, moral, and political philosophers, including Brian
Barry, John Finnis, John Gardner Kent Greenawalt, Neil MacCormick, William
Twining, Chin Liew Ten, Joseph Raz 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.
revolutionised the methods of jurisprudence and the philosophy of law in the
Influenced by J. L. Austin, 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
Hart's conception of law had parallels to the Pure Theory of Law
formulated by Austrian legal philosopher Hans Kelsen, though Hart rejected
several distinctive features of Kelsen's theory.
Hart drew, among others, on
Glanville Williams who had demonstrated his legal philosophy in a five-part
article, "Language and the Law" and in a paper, "International Law and the
Controversy Concerning the Word 'Law'".
In the paper on international law, Glanville Williams
sharply attacked the many jurists and international lawyers who had debated
whether international law was "really" law.
J. L. Austin calls this 'really' a trouser word ("He could be sexist and artless on occasion," Grice recalls).
These jurists, Glanville Williams said, had been wasting everyone's
time, for the question was not a factual one, the many differences between
municipal and international law being undeniable, but was simply one of
conventional verbal usage, about which individual theorists could please
themselves, but had no right to dictate to others.
This approach was to be
refined and developed by H. L. A. Hart in the last chapter of The Concept of Law
which showed how the use in respect of different social phenomena of an
abstract word like "law" reflects the fact that these phenomena each shared,
without necessarily all possessing in common, some distinctive features.
Glanville had himself said as much when editing a student text on jurisprudence
and he had adopted essentially the same approach to "The Definition of
Hart's most famous work is The Concept of Law, first published
in 1961, and 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.
distinction between primary and secondary legal rules, such that a primary rule
governs conduct, such as criminal law and secondary rules govern the procedural
methods by which primary rules are enforced, prosecuted and so on.
specifically enumerates THREE secondary rules.
The Rule of
Recognition, the rule by which any member of society may check to discover what A PRIMARY RULE
of the society is.
In a simple society, Hart states, the
recognition rule might only be what is written in a sacred book or what is said
by a "ruler".
Hart claims the concept of rule of recognition as an evolution from
Hans Kelsen's "Grundnorm", or "basic norm."
The Rule of Change, the rule by
which existing primary rules might be created, altered or deleted.
of Adjudication, the rule by which the society might determine when a rule has
been violated and prescribe a remedy.
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
This can be formulated in terms of implicature.
There is an implicature that an internal point of view will be adopted, but it need not. The implicature is cancellable.
Grice elaborates more fundamental aspects of this in his "Aspects of Reason", as Grice applies it to modals in general:
"Nixon should resign".
A late reply (published as a postscript to the second edition) to Ronald
Dworkin, a "rights"-oriented legal philosopher (and Hart's successor at Oxford)
who criticised legal positivism in Taking Rights Seriously (1977), A Matter of
Principle (1985) and Law's Empire (1986).
Honoré, Hart wrote and published Causation in the Law (1959, second edition
1985), which is regarded as one of the important academic discussions of
Causation in the legal context.
The early chapters deal philosophically with the
concept of cause and are clearly the work of Hart, while later chapters deal
with individual cases in English law and are clearly his co-author's.
result of his famous debate with Patrick Devlin, Baron Devlin, on the role of
the criminal law in enforcing moral norms, Hart wrote "Law, Liberty and Morality"
(1963), which consisted of three lectures he gave at Stanford.
also wrote "The Morality of the Criminal Law" (1965).
Devlin's view of Mill's harm principle as it related to the decriminalisation of
homosexuality was "perverse".
Hater also states that he believed the reforms
to the law regarding homosexuality that followed the Wolfenden report "didn't go
Despite this, Hart reported later that he got on well personally
Hart gave lectures to the Labour Party on closing tax
loopholes which were being used by the "super-rich".
Hart considered himself to
be "on the Left, the non-communist Left", and expressed animosity towards
"The Ascription of Responsibility and
Rights". Proceedings of the Aristotelian Society 1949.
Definition and Theory
in Jurisprudence (1953)
Causation in the Law (with Tony Honoré) (1959)
Concept of Law Oxford: Oxford University Press: 1961.
Law, Liberty and
The Morality of the Criminal Law (1964)
Essays on Bentham: Studies in Jurisprudence and
Political Theory (1982)
Essays in Jurisprudence and Philosophy
Law, Morality, and Society: Essays in Honour of
H. L. A. Hart, edited by P. M. S. Hacker and Joseph Raz (1977)
Philosophy of law
Priel, Dan (2011).
"H. L. A. Hart and the Invention of Legal Philosophy". Problema 7
Matthew H. Kramer and Claire Grant. "Introduction", in
Satthew H. Kramer, Claire Grant, Ben Colburn, and Anthony Hatzistavrou (ed.):
The Legacy of H. L. A. Hart: Legal, Political and Moral Philosophy."
York, Oxford University Press, xiii.
Mullender, Richard: "Nicola
Lacey, A Life of H. L. A. Hart: the Nightmare and the Noble Dream – H.L.A. Hart in
Anglo-American Context", Web Journal of Current Legal Issues (review 2007).
Oxford University Press, (2004). ISBN 978-0-19-920277-5
Sugarman, David; Hart, H. L. A. (2005). "Hart Interviewed: H.L.A. Hart in
Conversation with David Sugarman". Journal of Law and Society (Blackwell) 32
(2): 267–293. Retrieved 27 March 2012. edit
Biography of Jenifer
Obituary of Jenifer Hart, Daily Telegraph, 9 April
Margaret Howatson Obituary: Jenifer Hart, The Independent, 31
Karen Armstrong (3 January 2005), The Spiral Staircase,
HarperPerennial, ISBN 978-0-00-712229-5, 0007122292
Lacey A Life of H. L. A. Hart: The Nightmare and the Noble Dream, Oxford
Frederick Schauer "Retaking
Hart," 119 Harv. L. Rev. 852 (2006) (reviewing Lacey, "A Life of H. L. A.
Karen Armstrong The Spiral Staircase, Harper Collins, 2004 (ISBN
Carlin Romano "A Philosopher's Humanity", Chronicle of Higher
Education vol. 51 (2005) (reviewing Lacey, "A Life of H. L. A. Hart")
Short Biography by Tony
Noel Frederick Hall -- Principal of
Brasenose College, Oxford
John Keiran Barry Moylan
Philosophy of law
Libertarian theories of
NameHart, H. L.
Short descriptionBritish legal scholar
birth18 July 1907
Place of birthHarrogate, England
Date of death19
Place of deathOxford, England
People educated at Bradford
People educated at Cheltenham College
Alumni of New
20th-century British writers
British legal scholars
British political philosophers
Harvard Law School people
Fellows of New College, Oxford
Principals of Brasenose College,
Ordinary language philosophy
Presidents of the Aristotelian
Professors of Jurisprudence (University of Oxford)