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Tuesday, March 3, 2015

Legal Implicatures: H. P. Grice and H. L. A. Hart


Plucking the Mask of Mystery from the Face of Jurisprudence, or HARTIANA and GRICEIANA 



Jurisprudence trembles so uncertainly on the margin of many subjects that there will always be the need for someone, in Bentham’s phrase, to pluck the mask of mystery from its face.1

H. L. A. Hart is widely held to be one of the greatest legal philosophers of the twentieth century, as H. P. Grice is held to be the greatest philosopher -- by me!

Many would disagree, insisting that Hart is the greatest, without qualification.2

However that may be, there is little doubt that Hart’s work has had a powerful impact on the fields of legal philosophy throughout the world.

Hart was Chair of Jurisprudence at Oxford, and the essays he published during this period, including Positivism and the Separation of Law and Morals, Causation in the Law (with A. M. Honore´), The Concept of Law,5 Law, Liberty, 1. H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 HARV. L. REV. 593, 594 1958), reprinted in H.L.A. HART, ESSAYS IN JURISPRUDENCE AND PHILOSOPHY 49 (1983) 2. Opinions differ, and some would probably give the nod to Hans Kelsen. But most scholars would agree that Hart and Kelsen are the century’s two greatest legal philosophers. See, e.g., B. Leiter, The End of Empire: Dworkin and Jurisprudence in the 21st Century, 36 RUTGERS L.J. 165, 168 (2005) (describing Kelsen and Hart as “the two dominant figures in twentieth-century legal philosophy”); J. Gardner, Book Review, 121 LAW Q. REV. 329, 333 (2005) (reviewing N. LACEY, A LIFE OF H.L.A. HART: THE NIGHTMARE AND THE NOBLE DREAM affirming that “only Kelsen seriously challenges Hart’s claim to be the most important legal philosopher of the twentieth century”). 3. Hart, supra note 1. 4. H.L.A. HART and A.M. HONORE, CAUSATION IN THE LAW (2d ed. 1985). 5. H.L.A. HART, THE CONCEPT OF LAW (1961). and Morality,6 and Punishment and Responsibility,7 set a standard of excellence -- and influence that few are likely to rival.

Other important legal scholars have occupied the Oxford chair, including Henry Maine (1869–1883), Frederick Pollock (1883–1903), Paul Vinogradoff (1903–1926), and Hart’s successor, Ronald Dworkin (1969–1998), but, with the possible exception of Dworkin, none have been more influential than Hart.

Until recently, little was known of Hart’s private life.

That has now changed with the publication of Lacey’s The Nightmare and the Noble Dream.

Drawing on a wealth of material, including Hart’s diaries, correspondence, and personal papers, as well as interviews with his family, friends, former students, and colleagues, Lacey paints a warm, sensitive, and highly revealing portrait of the man she calls “quite simply, the pre-eminent legal philosopher of the twentieth century.”

Lacey's essay is a valuable source of information on Hart’s life and scholarly career, and a wonderful complement to the numerous book-length assessments of his work that have already been published.

Lacey is  no philosopher but a teacher of Criminal Law and Legal Theory at the London School of Economics and a notable legal theorist in her own right, particularly in the fields of criminal law theory and feminist jurisprudence.11

She brings to her task not only a deep familiarity with Hart’s scholarship and the literature it has generated, but also a personal acquaintance with Hart himself.

Lacey met Hart and became close with Hart and his family, initially because her husband was a musician who gave lessons to Hart’s disabled son, and later through her own appointment as an 6. H.L.A. HART, LAW, LIBERTY, AND MORALITY (1963). 7. H.L.A. HART, PUNISHMENT AND RESPONSIBILITY: ESSAYS IN THE PHILOSOPHY OF LAW (1968). 8. LACEY, supra note 2. 9. Id. at 1. 10. See, e.g., MICHAEL D. BAYLES, HART’S LEGAL PHILOSOPHY: AN EXAMINATION (1992); E. J. BOOS, PERSPECTIVES IN JURISPRUDENCE: AN ANALYSIS OF H.L.A. HART’S LEGAL THEORY (1998); N. MACCORMICK, H.L.A. HART (1981); MICHAEL MARTIN, THE LEGAL PHILOSOPHY OF H.L.A. HART: A CRITICAL APPRAISAL (1987); ROBERT N. MOLES, DEFINITION AND RULE IN LEGAL THEORY: A REASSESSMENT OF H.L.A. HART AND THE POSITIVIST TRADITION (1987); DANIEL W. SKUBIK, AT THE INTERSECTION OF LEGALITY AND MORALITY: "HARTIAN LAW" AS NATURAL LAW (1990); see also ISSUES IN CONTEMPORARY LEGAL PHILOSOPHY: THE INFLUENCE OF H.L.A. HART (R. Gavison ed., 1987); LAW, MORALITY, AND SOCIETY: ESSAYS IN HONOUR OF H.L.A. HART (P.M.S. Hacker & Joseph Raz eds., 1977); HART’S POSTSCRIPT: ESSAYS ON THE POSTSCRIPT TO THE CONCEPT OF LAW (Jules Coleman ed., 2001) (hereinafter HART’S POSTSCRIPT); THE JURISPRUDENCE OF ORTHODOXY: QUEEN’S UNIVERSITY ESSAYS ON H.L.A. HART (Philip Leith & Peter Ingram eds., 1988). 11. See, e.g., N. LACEY, STATE PUNISHMENT: POLITICAL PRINCIPLES AND COMMUNITY VALUES (1988); Nicola Lacey, Feminist Legal Theories and the Rights of Women, in GENDER AND HUMAN RIGHTS 13 (Karen Knop ed., 2004); Nicola Lacey, Penal Theory and Penal Practice: A Communitarian Approach, in THE USE OF PUNISHMENT 175 (Sea´n McConville ed., 2003); Nicola Lacey, Feminist Perspectives on Ethical Positivism, in JUDICIAL POWER, DEMOCRACY AND LEGAL POSITIVISM 89 (Tom Campbell & Jeffrey Goldsworthy eds., 2000). 12. LACEY, supra note 2, at xvii; G. Edward White, Getting Close to H.L.A. Hart, 29 MELB. U. L. REV. 317, 318 (2005) (reviewing LACEY, supra note 2). Oxford Law Fellow.

In a “Biographer’s Note on Approach and Sources,” Lacey observes that her personal relationship with Hart “was of tremendous help in writing this book” and made it natural for her “to write and think of Herbert Hart as ‘Herbert.’”

Because of this, and her desire “to bring alive on the page the complicated, very human man whom so many readers of his academic work think of as the impersonal icon, H.L.A. Hart,” Lacey refers to Hart by his first name throughout the text.

This practice has drawn criticism from some reviewers, but on balance it probably enables Lacey to achieve the “enviably humane and affectionate touch” for which she has been rightly praised.

A Life of H.L.A. Hart has sensational aspects, particularly the revelations featured prominently on the front flap and back cover of the hardcover edition that “behind his public success, Hart struggled with demons,” including his “Jewish background, ambivalent sexuality, and unconventional marriage” —  all of which “contributed to a profound insecurity” that, with “allegations of espionage,” “nearly destroyed him.”

Partly as a result of these revelations, but also due to its intrinsic interest, Lacey’s essay has attracted widespread attention, and reviews of it have already appeared in the Harvard Law Review, Michigan Law Review, Texas Law Review, and Law Quarterly Review, as well as popular publications such as the London Review of Books and Times Literary Supplement.

As one might expect, reviewers have used the occasion to pursue a variety of themes, reflecting a broad range of academic interests.

Thus M. Kirby, Justice of the High Court of Australia and former student of Hart’s jurispruden- 13. LACEY, supra note 2, at xvii. 14. Id. 15. See, e.g., Thomas Nagel, The Central Questions, LONDON REV. BOOKS, Feb. 3, 2005, at 13 (objecting that Lacey “refers to [Hart] jarringly as ‘Herbert’ throughout, even when discussing his relations to other thinkers who are referred to by their last names”); Jeanne L. Schroeder, Beautiful Dreamer: A Review of Nicola Lacey’s A Life of H.L.A. Hart: The Nightmare and the Noble Dream, 77 U. COLO. L. REV. 803, 807 n.14 (2006) (“[G]iven Hart’s extreme sense of propriety, the use of his surname, like a hospital smock, might have better preserved his modesty during the intimate examination to which he is submitted.”). 16. Gardner, supra note 2. 17.

“Nicola Lacey draws on Hart’s previously unpublished diaries and letters to reveal a complex inner life.

Outwardly successful, Hart was tormented by doubts about his intellectual abilities, his sexual identity, and his capacity to form close relationships.”

“To generations of lawyers, H.L.A. Hart is known as the twentieth century’s greatest legal philosopher . . . . But behind his public success, Hart struggled with demons. His Jewish background, ambivalent sexuality, and unconventional marriage all contributed to a profound insecurity; allegations of espionage, though immediately quashed, nearly destroyed him.

Nicola Lacey’s biography explores the forces that shaped an extraordinary life.”

19. Frederick Schauer, (Re)Taking Hart, 119 HARV. L. REV. 852 (2006). 20. A.W.B. Simpson, Herbert Hart Elucidated, 104 MICH. L. REV. 1437 (2006). 21. Ian P. Farrell, H.L.A. Hart and the Methodology of Jurisprudence, 84 TEX. L. REV. 983 (2006). 22. Gardner, supra note 2. 23. Thomas Nagel, The Central Questions, LONDON REV. BOOKS, Feb. 3, 2005, at 12. 24. A.W.B. Simpson, Stag-hunter and Mole, TIMES LITERARY SUPPLEMENT (London), Feb. 11, 2005, at 6. tial “rival,”

Julius Stone, examines Hart’s relationship with Stone, their respective influence in England and Australia, and their contrasting approaches to law, jurisprudence, Judaism, and Zionism.

A.W.B. Simpson, Hart’s former colleague and a noteworthy critic of The Concept of Law from a common law perspective, provides a candid recollection of Hart and his impact on the Oxford legal community.

G. Edward White, author of biographies of Oliver Wendell Holmes, Jr. and Earl Warren, addresses the challenge of writing a biography of a famous academic whose family grants the biographer special access to the subject’s private papers without being unduly affected by this special access.

Frederick Schauer, a prominent legal philosopher working within the analytical tradition, attempts to reclaim some neglected aspects of Hart’s jurisprudence.

J. Gardner, a holder of the Oxford Chair, discusses Hart’s philosophical influences, particularly J. L. Austin.

This Essay likewise traces an individualistic path, by examining a limited number of Hart’s ideas and Lacey’s interpretation of them from the perspective of my own interests in the contemporary cognitive sciences and their implications for jurisprudence and legal theory.

The central argument I make is that while Lacey deserves considerable praise for her lucid and compelling account of Hart’s life and career, her exploration of his jurisprudential ideas and their roots in analytic philosophy lacks a sufficiently broad intellectual compass.

Linguistics, psychology, and the philosophy of language and mind are much different today than they were in the 1940s and 1950s, yet Lacey does not discuss how such familiar events as the overthrow of logical positivism, the demise of behaviorism, the rise of generative linguistics, or the broader cognitive revolution of which they were a part actually impacted Hart or should influence our understanding of his legacy.

Surprisingly, none of these developments are taken up in Lacey's essay, leading one to ponder the significance of their absence.

25. Michael Kirby, H.L.A. Hart, Julius Stone, and the Struggle for the Soul of Law, 27 SIDNEY L.

REV. 323, 336 (2005) (reviewing LACEY, supra note 2). 26. See A.W.B. Simpson, The Common Law and Legal Theory, in OXFORD ESSAYS IN JURISPRUDENCE (SECOND SERIES) 77 (A.W.B. Simpson ed., 1973). 27. Simpson, supra note 20. 28. See, e.g., G. EDWARD WHITE, JUSTICE OLIVER WENDELL HOLMES: LAW AND THE INNER SELF (1993); G. EDWARDWHITE, OLIVERWENDELL HOLMES, JR. (2006). 29. G. EDWARDWHITE, EARLWARREN: A PUBLIC LIFE (1982). 30. White, supra note 12, at 317.

31. Schauer, supra note 19. Schauer’s review has since received a series of replies in the new

Harvard Law Review Forum. See Ronald Dworkin, Hart and the Concepts of Law, 119 HARV. L. REV. F.

95 (2006),; David Dyzenhaus,

The Demise of Legal Positivism?, 119 HARV. L. REV. F. 112 (2006),

forum/issues/119/jan06/dyzenhaus.pdf; William Twining, Schauer on Hart, 119 HARV. L. REV. F. 122


32. See Gardner, supra note 2, at 330.




Although A Life of H.L.A. Hart is an intellectual biography, Lacey disclaims

any attempt to provide an extended analysis of Hart’s legacy.

Lacey's essay is therefore unlike some other notable monographs of the same general type which have appeared recently, such as Bart Schultz’s biography of Henry Sidgwick, Neil Duxbury’s volume on Frederick Pollock, or, somewhat further afield, Richard Burkhardt’s study of Konrad Lorenz and Niko Tinbergen,37 the founders of modern ethology, all of which critically evaluate their subjects’ academic and professional accomplishments within broad intellectual parameters.

That A Life of H.L.A. Hart does not do so is disappointing, but by no means fatal.

On the contrary, Lacey’s biography is a magnificent achievement within the confines she sets for herself.

However, it does suggest that an important gap remains in our understanding of Hart and his place in Oxford philosophy of language.

Even after the appearance of Lacey’s essay, we lack a proper overall assessment of Hart’s contributions to the philosophy of law, the most definitive of which was published over twenty-five years ago.

This Essay therefore attempts to take an initial step in that direction, by examining a few select themes of Hart’s legal philosophy and Lacey’s interpretation of them in light of some recent developments in philosophy, linguistics, cognitive science, and law.

The Essay falls into four parts.

We offer a brief sketch of Hart’s life and career as described by Lacey in A Life of H.L.A. Hart.

Readers already familiar with Lacey’s book may wish to skim this section or skip ahead to Part II.

We then examine some of the major themes implicit in the book’s subtitle, The Nightmare and the Noble Dream. At the close of Part II, we suggest that while Lacey deserves credit for her sympathetic portrait of Hart’s complex inner life, she
leaves unexplored some basic questions about Hart’s jurisprudence and its connection to wider intellectual currents such as the modern revival of Universal Grammar and the broader cognitive revolution it helped inspire, along with the contemporaneous human rights revolution in constitutional and international law.

In Part III, which along with Part IV is the most substantial part of the Essay, we argue that one of the intriguing mysteries surrounding Hart’s intellectual biography is his attitude toward these developments, which were already beginning to swirl around him during the period in which he occupied the Oxford Chair.

Surprisingly, Hart wrote very little on these topics, despite having many opportunities to do so.

Finally, in Part IV, we attempt to explain this puzzling state of affairs.

Drawing on aspects of Hart’s biography which Lacey brings to light, we


calling his book an “intellectual biography,” id. at xi, but this distinction is immaterial to the point we are making.


identify some of the factors which may have caused Hart to remain unaffected by these movements, despite their relevance to the theoretical traditions with which he was associated. 

We also attempt to put Hart’s contributions to legal philosophy in proper perspective in light of these considerations.

Lacey's essay is divided into four parts.

The first part (“North to South”) consists of three relatively short chapters which trace Hart’s early experiences as the third child of middle-class, first-generation Jewish parents of central European origin who ran a successful clothing business in Harrogate, a prosperous town in Yorkshire, England.

Hart’s years as an undergraduate at Oxford in the late 1920s, where he studied “Greats” (i.e., classics, ancient history, and philosophy) and became friends with many future leaders of Great Britain; and Hart’s early professional activities as practicing barrister in London from 1932 to 1940.

The second part (“Change and Continuity”), also divided into three chapters, centers around Hart’s relationship with Jenifer Fischer Williams Hart, the outspoken and politically active daughter of a British diplomat whom Hart met in 1936 and married in 1941; Hart’s war service in British military intelligence; and Hart’s post-war transition from practicing
lawyer and civil servant to the life of an Oxford philosopher.

The chapter which chronicles this transitional period in Hart’s life (“Oxford from the Other Side of the Fence”) is the book’s longest and also one of the most interesting.

It is here that Lacey begins to chart Hart’s intellectual development and to situate him within the main philosophical currents prevalent in England in the 1940s and 1950s, primarily the so-called ordinary language philosophy of J.L. Austin and H. P. Grice.

In this chapter, Lacey also begins to explore the insecurity and self-doubt which, paradoxically, were to plague Hart throughout his remarkably successful career.

To some degree these anxieties are understandable.

When Hart returned to Oxford in 1945 and took up a position as
a philosophy don, he did so after an interval of sixteen years.

He was 38 years old and armed with only an undergraduate degree in philosophy.

By the standards of contemporary academic life, the idea that a former undergraduate with no further academic experience should be sought out for a permanent appointment over a decade after graduation is virtually unthinkable.

Even by the standards of the 1930s and 1940s, it was extraordinary, and a testimony to the regard in which Hart had been held as a student.
Jenifer Hart’s father, Sir John Fischer Williams, was a prominent international lawyer who represented the British Government on the Reparations Commission in Paris after World War I and

whose scholarship H.L.A. Hart cites in The Concept of Law. See JENIFER HART, ASK ME NO MORE: AN

AUTOBIOGRAPHY, xi, 8 (1998) [hereinafter HART, ASK ME NO MORE]; HART, supra note 5, at 255–56

(citing John FischerWilliams, Sanctions Under the Covenant, 17 BRIT. Y.B. INT’L. L. 130 (1936)).

40. LACEY, supra note 2, at 114.

41. Id.


Still, it is surprising to discover how intellectually insecure Hart was at the time, as illustrated by a letter he wrote to his friend, Isaiah Berlin: "What I am tremendously doubtful about is the adequacy of my abilities and the strength of my interest in the subject . . . .

"My greatest misgiving (amongst many) is about the whole linguistic approach to logic, meaning . . . semantics, meta-languages, object-languages. At present my (necessarily intermittent) attempts to understand this point of view only engender panic and despair but I dimly hope that I cannot be incapable given time of understanding it."

The solution or dissolution of philosophical problems in this medium is however at present incomprehensible yet terrifying to me.

"My main fear is that it is the fineness and accuracy of this linguistic approach which escapes my crude and conventional grasp and that it may be very difficult at my age to adjust one’s telescope to the right focus.

As a result of this I have pictures of myself as a stale mumbler of the inherited doctrine, not knowing the language used by my contemporaries (much younger, like H. P. Grice) and unable to learn it."

Hart taught philosophy at Oxford for seven years, from 1945 to 1952.

During this period he published relatively little: only three papers and two book reviews (including the one quoting H. P. Grice on "Smoke means fire"), only two of which were directly related to law.

When Hart’s predecessor, Arthur Goodhart, resigned as Chair of Jurisprudence in 1952, it was therefore largely on the strength of Hart’s reputation for cleverness and his connection with Austin, and other influential Oxford philosophers such as H. P. Grice that Hart was appointed to replace him.

This raised eyebrows among the Oxford LAW Faculty, with whom Hart had enjoyed little contact.

It’s Goodhart without the good.

is how a prevailing sentiment was expressed.

By contrast, Hart’s appointment was a source of pride to the Oxford philosophical community, which saw Hart as one of their own and welcomed the opportunity to extend their influence.

Quite apart from his high intellectual regard for Hart, Austin’s thinking was shaped by a belief that only a ‘real’ philosopher could elevate the Chair to a level of any intellectual credibility. This is strikingly reflected in his note of

42. Id. at 115 (alteration in original).

43. See H.L.A. Hart, The Ascription of Responsibility and Rights, 49 PROC. ARISTOTELIAN SOC’Y 171

(1949) [hereinafter Hart, The Ascription of Responsibility and Rights], reprinted in LOGIC AND LANGUAGE

(FIRST AND SECOND SERIES) 151 (Anthony Flew, ed., 1965); H.L.A. Hart, Book Review, 60 MIND

268 (1951) (reviewing JEROME FRANK, LAW AND THE MODERN MIND (6th prtg. 1949)); see also H.L.A.

Hart, A Logician’s Fairy Tale, 60 PHIL. REV. 198 (1951); H.L.A. Hart, Is There Knowledge by

Acquaintance?, 23 ARISTOTELIAN SOC’Y SUPP. VOL. 69 (1949)

-- H.L.A. Hart, Signs and Words, 2 PHIL. Q. 59 (1952) (reviewing JOHN HOLLOWAY, LANGUAGE AND INTELLIGENCE (1951) and citing H. P. Grice). In addition, Hart edited

and wrote the preface to a book on Plato by Horace Joseph, one of his former teachers. See H.W.B. JOSEPH, KNOWLEDGE AND THE GOOD IN PLATO’S REPUBLIC (1948).

44. LACEY, supra note 2, at 151.

45. See HART, ASK ME NO MORE, supra note 39, at 131; A.M Honore´, Herbert Lionel Adolphus Hart

1907–1992, 84 PROC. BRIT. ACAD. 295, 302 (1994).


congratulation on Herbert’s ultimate election.

J. L. Austin wrote:

"It is splendid to see the empire
of philosophy annex another province in this way—not to mention the good you’re going to do them."

One can imagine how members of the Law Faculty must have felt about this colonization, not to mention the triumphalism with which it was accomplished.

For it was not only J. L. Austin’s letter which illustrated the philosophers’ sense of intellectual superiority: Magdalen Fellow K. Baier found it 'remarkable' that lawyers could be so 'perceptive'.

Richard Braithwaite wrote from Cambridge to celebrate Hart’s ‘infiltration, or was it assault?’, opining that ‘Jurisprudence is quite futile unless it is treated as a branch of philosophy. But’, he wondered, ‘will you persuade the lawyers?’;

Ryle was ‘glad for the sake of the students who want to think’.

In short, there was a marked difference of tone between the philosophers and the lawyers.

While the philosophers were warm and exultant, the lawyers were merely polite.

There were exceptions, however.

Hart’s closest friend on the Law Faculty, A.M. Honore´, wrote an unsigned notice for a university newspaper welcoming his appointment, while another lawyer, R.V. Heuston, wrote Hart to say he “looked forward to Hart providing a ‘town planning scheme’ for the ‘intellectual slum of Jurisprudence.’”

In retrospect, Heuston’s remark was prophetic.

For Hart’s appointment became
a significant turning point in Oxonian legal thought.

Hart revived the largely moribund discipline of jurisprudence and restored it to a prominent position alongside its more influential German and American counterparts.

Indeed, over the next several decades, Hart managed, with the help of a talented group of students and colleagues, including Ronald Dworkin, John Finnis, Ruth Gavison, David Lyons, Neil McCormick, Herbert Morris, Joseph Raz, and Robert Summers, to launch a minor intellectual revolution in the philosophy of law, which quickly spread beyond its original borders and integrated parts of academic law and analytic philosophy in a manner now largely taken for granted, although not without its influential critics.

In Part Three (“The Golden Age”), which is the heart of the biography and comprises nearly half of its 364-page narrative, Lacey describes the trajectory of Hart’s career during this period in lush and illuminating detail.

The centerpiece is a useful introduction to The Concept of Law, a book which eventually sold over 150,000 copies and cemented Hart’s worldwide reputation.


46. LACEY, supra note 2, at 149.

47. Id. at 149–50.

48. Id. at 150.

49. See Honore´, supra note 45, at 302. See generally Neil Duxbury, English Jurisprudence Between

Austin and Hart, 91 VA. L. REV. 1 (2005) (arguing that English jurisprudence between John Austin and Hart

was largely inert); W.L. Twining, Academic Law and Legal Philosophy: The Significance of H.L.A.

Hart, 95 LAW. Q. REV. 557 (1979) (same).

50. See, e.g., R. POSNER, THE PROBLEMATICS OF MORAL AND LEGAL THEORY (1999) (criticizes the influence of philosophers on legal scholarship).

51. LACEY, supra note 2, at 218–19, 222–33.


ever, Lacey also covers virtually every major event during this part of Hart’s career, including his 1953 inaugural lecture and subsequent exchange with Edgar Bodenheimer over the limits of analytic jurisprudence in the University of Pennsylvania Law Review; his year-long visit to Harvard Law School in 1956–1957, which culminated in Hart’s debate with Lon Fuller over legal positivism and natural law in the Harvard Law Review; Hart’s appointment in 1959 as President of the Aristotelian Society; his debate with Patrick Devlin over the legal enforcement of sexual morality;55 Hart’s first book, Causation in the Law, co-authored with Honore´;56 his second visit to the United States in 1961–1962, when he spent a sabbatical at U.C.L.A. and traveled to Berkeley to debate Hans Kelsen;57 his trip to Stanford University in 1962 to deliver the Harry Camp Lectures, which later became Law, Liberty and Morality;58 and his first visit to Israel in 1964 to deliver the Lionel Cohen Lectures, which later became The Morality of the Criminal Law.59

Lacey’s chapter on Hart’s visit to Harvard Law School in 1956–1957 is especially engaging.

Here one learns that, in addition to forming a steady friendship with Fuller, Hart maintained regular contacts with Paul Freund, Erwin Griswold, Henry Hart, Roscoe Pound, and— most interestingly—Herbert Wechsler, who was also visiting Harvard that year while working as Lead Reporter on the American Law Institute’s Model Penal Code.

As Lacey recounts, Hart (Herbert, not Henry) and Wechsler engaged in lengthy discussions of criminal responsibility, punishment, and causation, the last of which convinced Hart to modify the approach to causation he and Honore´ were then taking in Causation in the Law.

As a result, Hart and Honore´

52. H.L.A. Hart, Definition and Theory in Jurisprudence, 70 LAW Q. REV. 37 (1954), reprinted in

ESSAYS, supra note 1, at 21.

53. See Edgar Bodenheimer, Modern Analytical Jurisprudence and the Limits of Its Usefulness, 104

U. PA. L. REV. 1080 (1956); H.L.A. Hart, Analytical Jurisprudence in Mid-Century: A Reply to

Professor Bodenheimer, 105 U. PA. L. REV. 953 (1957); see also Edgar Bodenheimer, Analytical

Positivism, Legal Realism, and the Future of Legal Method, 44 VA. L. REV. 365 (1958) (responding to

Hart’s reply).

54. See Hart, supra note 1 at 627; Lon Fuller, Positivism and Fidelity to Law—A Reply to Professor

Hart, 71 HARV. L. REV. 630 (1958). The Hart-Fuller debate did not end here but continued for over a

decade. See HART, supra note 5, at 195–207 (discussing Fuller and the separation thesis); LON L.

FULLER, THE MORALITY OF LAW 133–45 (1964) (criticizing The Concept of Law); H.L.A. Hart, Book

Review, 78 HARV. L. REV. 1281 (1965) (reviewing and responding to FULLER, supra); LON L. FULLER,

THE MORALITY OF LAW 187–242 (rev. ed. 1969) (responding to critics, including Hart).

55. See Patrick Devlin, Maccabaean Lecture in Jurisprudence: The Enforcement of Morals (March

18, 1959), reprinted in PATRICK DEVLIN, THE ENFORCEMENT OF MORALS 1 (1965) (defending the legal

enforcement of morality); H.L.A. Hart, Immorality and Treason, LISTENER, July 30, 1959, at 162

[hereinafter Hart, Immorality and Treason], reprinted in THE PHILOSOPHY OF LAW 83 (Ronald Dworkin

ed., 1977) (criticizing Devlin); see also HART, supra note 6 (same); H.L.A. HART, THE MORALITY OF THE


H.L.A. Hart, Social Solidarity and the Enforcement of Morality, 35 U. CHI. L. REV. 1 (1968) (same).

56. See HART AND HONOR´E, supra note 4.

57. See H.L.A. Hart, Kelsen Visited, 10 UCLA L. REV. 709 (1963).

58. See HART, supra note 6.



decided to reconstruct their book in the form of a debate with the policy-oriented approach to causation espoused by Wechsler and other American lawyers.

Lacey’s chapter on Hart’s visit to Harvard is also full of interesting and amusing anecdotes, including one which sheds light on Hart’s relationship with Dworkin, who was a student at Harvard Law School at the time. Here one discovers that as early as the mid-1950s, Hart had expressed anxiety about the implications of Dworkin’s ideas for his own legal theories, which Hart had encountered when he served as an examiner on Dworkin’s undergraduate law exams at Oxford in 1955. Hart was therefore keen to seek out Dworkin and have dinner with him during his subsequent visit to Harvard.

Another interesting story reveals that the famous Hart-Fuller debate almost never came to pass because of some overly intrusive edits by the editors of the Harvard Law Review.

There are some notable omissions here and elsewhere, however, which are surprising in an intellectual biography such as this one.

For example, although Hart held an appointment in the Philosophy Department during his Harvard visit, Lacey does not say whether he had any contact with W.V.O. QUINE, the dominant figure in American philosophy at the time, or what Hart thought of Quine’s influential criticisms of the analytic-synthetic distinction about which he had learned via H. P. Grice (cfr. Grice/Strawson, In defense of a dogma).

What, for instance, was Hart’s reaction to the reply to Quine which his Oxford colleagues, H. P. Grice and P. F. Strawson, had written the previous year?

Surprisingly, there is no discussion of this topic here or elsewhere in this book, nor of its implications for Hart’s understanding of the scope and methods of analytical jurisprudence -- when it is SO RELEVANT!

Suffering from “a loss of intellectual confidence and the feeling that he had no further original contribution to make,” Hart took an early retirement from the Oxford Chair in 1968, after helping to facilitate the selection of Dworkin as his successor.

Nevertheless, he continued to lecture and write on philosophical topics, and he remained an active member of the Oxford community.

From 1968 to 1972, Hart held a Senior Research Fellowship at University College, and in 1972 he was elected Principal of Brasenose, a position he held until his retirement in 1978.

During this period, Hart also assumed a leading role in The Bentham Project, a long-standing (and ongoing) effort to organize, edit, and publish the huge mass of mostly unpublished manuscripts Bentham

60. LACEY, supra note 2, at 188, 209–14. 61. Id. at 185–86. 62. Id. at 200. 63. See infra notes 122–43 and accompanying text. 64. See W.V.O. Quine, Two Dogmas of Empiricism, 60 PHIL. REV. 20 (1951). We do learn that Hart was close with Burton Dreben and Morton White, LACEY, supra note 2, at 179, 186, but Lacey does not discuss their views on the analytic-synthetic distinction either, a subject to which White had also recently contributed. See Morton White, The Analytic and the Synthetic: An Untenable Dualism, in JOHN DEWEY: PHILOSOPHER OF SCIENCE AND FREEDOM 316, 324 (Sidney Hook ed., 1950). 65. See H.P. Grice and P.F. Strawson, In Defense of a Dogma, 65 PHIL. REV. 141 (1956) -- now repr. in Grice, WAY OF WORDS -- Strawson promised Grice that he would never include that essay in one of his many publications and compilations! (Alas, Strawson did publish his contribution to the Grice festschrift in one of his many compilations, destroying the point of a festschrift -- 'buy the festschrift!').

66. LACEY, supra note 2, at 297.


had bequeathed to University College, London, at his death.

For his part in this project, Hart brought forth together with J.H. Burns a new edition of two of Bentham’s major works, An Introduction to the Principles of Morals and Legislation67 and A Comment on the Commentaries and a Fragment on Government.

Hart also served as sole editor of Bentham’s Of Laws in General,69 and he wrote a series of important essays on aspects of Bentham’s legal and political thought, which later appeared in a 1982 volume, Essays on Bentham.70

In the last section of the biography (“After the Chair”), Lacey chronicles these and other events in Hart’s life which occurred between 1968 and 1992, when he passed away at the age of eighty-five.

These chapters often make for sad and painful reading, because Hart’s final years were not, generally speaking, happy or contented ones.

In 1983, four years after a major spy scandal in Britain in which Anthony Blunt, a fellow intelligence officer with whom Hart shared an office during World War II, was exposed as a KGB agent, Jenifer Hart gave a series of interviews in which she spoke candidly of her pre-war Communist sympathies, as well as certain contacts she had then with individuals she later realized were Soviet agents.

News outlets began covering the story, and shortly thereafter the Sunday Times published an article under a sensational headline which insinuated that Hart himself may have been guilty of espionage.

The Harts sued for defamation and their friends rallied around them in a show of support.

But the experience turned out to be devastating for Hart, who eventually
suffered a nervous breakdown and had to be admitted to a psychiatric hospital, where he underwent electro-convulsive shock therapy.
As Lacey recounts, Hart’s last decade was also marked by his complex and increasingly strained relationship with Dworkin and by Hart’s ongoing struggle to formulate a definitive response to numerous criticisms of The Concept of
Law, particularly those pressed by Dworkin in Taking Rights Seriously74 and Law’s Empire.

Dutiful to the last, he could not bring himself to give up the effort, but his energy was running out.

Hart’s response to his critics remained largely unfinished at the time of his death, but one relatively polished section responding to Dworkin was published posthumously in 1994,


H.L.A. Hart eds., Oxford Univ. Press 1996) (1780/1789).


Burns & H.L.A. Hart eds., Univ. of London 1977) (1774–1776).

69. JEREMY BENTHAM, OF LAWS IN GENERAL (H.L.A. Hart ed., Univ. of London 1970) (1782).


[hereinafter ESSAYS ON BENTHAM]. Hart also published a collection of his philosophical essays in 1983

spanning the entire length of his career. See ESSAYS, supra note 1.

71. “I Was a Russian Spy” Says MI5 Man’s Wife, SUNDAY TIMES, July 17 1983, cited in LACEY, supra

note 2, at 339.

72. LACEY, supra note 2, at 344–45.

73. Id. at 330–35.



76. LACEY, supra note 2, at 352.


as an appendix to the second edition of The Concept of Law.

“Hart’s Postscript,” as it has become known, has since generated a significant secondary literature of its own78 and has become an important, if controversial, part of Hart’s legacy.79

The subtitle of A Life of H.L.A. Hart, and the title of its final chapter, is drawn from a lecture Hart delivered in 1977 and later published in the Georgia Law Review, in which Hart contrasts two competing tendencies in American jurisprudence: the “nightmare” that judges make law and the “noble dream” that they don't.

Hart describes these tendencies as “two extremes with many intermediate stopping places.

He associates the

first with prominent American legal realists like O.W. Holmes, Karl Llewellyn,

and Jerome Frank, and the second primarily with Ronald Dworkin, whom Hart,

with a nod to Shakespeare, calls “the noblest dreamer of them all.”

Lacey’s subtitle is well chosen, for it encompasses multiple meanings and

furthers several different objectives, all of which are helpful in understanding

the significance of Hart’s life and accomplishments.

One of these objectives is to recall that Hart’s contributions to the theory of adjudication and to legal

theory generally are notable for their moderation and good sense, indeed that

Hart often conceived of those contributions in Aristotelian fashion as a mean

between extremes. This much is evident in the Georgia Law Review essay itself,

where after giving the nightmare and the noble dream their due, Hart endorses

77. H.L.A. HART, THE CONCEPT OF LAW (Penelope A. Bulloch & Joseph Raz eds., 2d ed. 1994).

78. LACEY, supra note 2, at 353.

79. See generally HART’S POSTSCRIPT, supra note 10. For Dworkin’s response to Hart, see Dworkin,

supra note 31; Ronald Dworkin, Hart’s Postscript and the Character of Political Philosophy, 24


80. H.L.A. Hart, American Jurisprudence through English Eyes: The Nightmare and the Noble

Dream, 11 GA. L. REV. 969 (1977). The title of Hart’s essay echoes in turn a famous article by the

German jurist, Gustav Radbruch. See Gustav Radbruch, Anglo-American Jurisprudence through Continental

Eyes, 52 LAW Q. REV. 530 (1936).

81. Hart, supra note 80, at 972

“Litigants in law cases consider themselves entitled to have from

judges an application of the existing law to their disputes, not to have new law made for them.

The nightmare is that this image of the judge, distinguishing him from the legislator, is an illusion, and the

expectations which it excites are doomed to disappointment—on an extreme view, always, and on a

moderate view, very frequently.”).

Like its antithesis the Nightmare, the Noble Dream has many variants, but in all

forms it represents the belief, perhaps the faith, that, in spite of superficial appearances to the contrary

and in spite even of whole periods of judicial aberrations and mistakes, still an explanation and

justification can be provided for the common expectation of litigants that judges should apply to their

cases existing law and not make new law for them even when the text of particular constitutional

provisions, statutes, or available precedents appears to offer no determinate guide.

Hart does not explain the Shakespeare reference, but presumably he has in mind

Antony’s description of Brutus as “the noblest Roman of them all.” See WILLIAM SHAKESPEARE, JULIUS

CAESAR act 5, sc. 5.


the “unexciting truth” that judges sometimes make law and sometimes find it.

This remark echoes a famous passage in The Concept of Law:

Formalism and rule-scepticism are the Scylla and Charybdis of juristic theory.

They are great exaggerations, salutary where they correct each other, and the truth lies between them.

Moreover, the same theme pervades Hart’s entire corpus and in many ways encapsulates it.

Hart explains the main thesis of The Concept of Law in

these terms,87 and he uses the same device in the book’s opening chapter to

characterize certain excessive tendencies of NATURAL LAW law and legal realism.88

Likewise, in The Morality of the Criminal Law, Hart defends a “moderate”

position on the elimination of mens rea in criminal liability, in contrast to both

the forward looking doctrine of radical utilitarian reformers like Lady Barbara

Wooten and the backward looking approach of traditional retributivists like

James Fitzjames Stephens.

In Between Utility and Rights, Hart seeks to

navigate the twin shoals of “the old faith in utilitarianism and the new faith in


In Causation in the Law, Hart and Honore´ attempt to occupy a middle

ground on the issue of proximate causation, that is, “to reject causal minimalism

without embracing causal maximalism.

Throughout his career, Hart can be

seen resisting the pull of bold and exciting but ultimately excessive and

untenable arguments, and Lacey presumably wishes to recall this about him.

Lacey’s subtitle is also significant because it helps to focus our attention on

an important but easily overlooked part of Hart’s career, namely, the period

stretching from the mid-1970s until his nervous breakdown in 1983, whereupon

his productivity slowed considerably.

This is when Lacey first met Hart, and

along with the other images her book evokes, she presumably wishes us to

remember Hart as she remembers him then: accomplished, confident, distinguished— to all external appearances, a contented, successful, emotionally and

85. Hart, supra note 80, at 989.

86. HART, supra note 5, at 144.

87. Id. at 208

The idea of a union of primary and the three types of secondary rules to which so important a place has been assigned in this book may be regarded as a mean between juristic extremes.

For legal theory has sought the key to the understanding of law sometimes in the simple idea of an order backed by threats and sometimes in the complex idea of morality.

With both of these, law has certainly many affinities and connexions.

Yet, as we have seen, there is a perennial danger of exaggerating these and of
obscuring the special features which distinguish law from other means of social control.

The assertion that an unjust law is not a law has the same ring of exaggeration and paradox, if not falsity, as statutes are not laws or constitutional law is not law.

It is characteristic of the oscillation between extremes, which make up the history of legal theory, that those who have seen in the close assimilation of law and morals nothing more than a mistaken inference from the fact that law and morals share a common vocabulary of rights and duties, should have protested against it in terms equally exaggerated and paradoxical.

The prophecies of what the courts will do in fact, and nothing more pretentious, are what *I* mean by "the law".

89. HART, THE MORALITY OF THE CRIMINAL LAW, supra note 55, at 5–29, 24–25.

90. H.L.A. Hart, Between Utility and Rights, 79 COLUM. L. REV. 828 (1983), reprinted in ESSAYS,

supra note 1, at 198.

91. Id. at 221.

92. HART&HONOR´E, supra note 4, at xxxv.

93. LACEY, supra note 2, at 328–53.


financially secure man.

Additionally, it was during this period that Hart wrote

not only his Georgia Law Review essay, but also the chapters of what became

Essays on Bentham, plus a whole series of additional publications, including

sparkling commentaries on six highly influential books of moral and political

philosophy: John Rawls’ A Theory of Justice,95 Robert Nozick’s Anarchy, State,

and Utopia,96 Ronald Dworkin’s Taking Rights Seriously,97 J.L. Mackie’s Ethics:

Inventing Right and Wrong -- a favourite book with H. P. Grice, that Grice quotes in "The conception of value" -- The Carus Lectures -- 98 Gilbert Harman’s The Nature of Morality (Harman is a Griceian),99

and Peter Singer’s Practical Ethics.

Though not widely read today, all of

these essays are insightful and repay careful reading.


some of his other writings, the tone of these essays of the mid-1970s is assured

and decisive; it is as if Hart’s primary focus on the work of other scholars

relieved him of a sense of pressure to speak in his own voice and enabled him,

paradoxically, to do just that.

Lacey finds Hart’s initial responses to Dworkin

during this period especially noteworthy, describing them as “assured and

magisterial,” in contrast to “the tragedy of the "Postscript,"" whose quality

she finds “uneven” and other scholars have described as “frail and defensive,”

 “not wholly convincing,”even “petulant, whiny and peevish.”

By drawing attention to this unduly neglected period of Hart’s career, therefore, Lacey implicates that his legacy vis-a`-vis Dworkin should depend less

on the Postscript than on the more confident arguments of these earlier publications.

Finally, Lacey’s subtitle implies that Hart’s life itself was both a nightmare and a noble dream.

This is in many ways the book’s unifying theme; according

to Lacey, the “contrasts between external success and internal perplexities,

between being an insider but feeling like an outsider, constituted dynamic

94. Id. at 1.

95. H.L.A. Hart, Rawls on Liberty and Its Priority, 40 U. CHI. L. REV. 534 (1973), reprinted in

ESSAYS, supra note 1, at 223 (discussing JOHN RAWLS, ATHEORY OF JUSTICE (1971)).

96. Hart, supra note 90 (discussing ROBERT NOZICK, ANARCHY, STATE, AND UTOPIA (1974)); H.L.A.

Hart, 1776–1976: Law in the Perspective of Philosophy, 51 N.Y.U. L. REV. 538 (1976) [hereinafter

Hart, 1776–1976], reprinted in ESSAYS, supra note 1, at 145 (same).

97. See, e.g., Hart, supra note 80 (discussing DWORKIN, supra note 74); Hart, supra note 90 (same).

98. H.L.A. Hart, Morality and Reality, N.Y. REV. BOOKS, Mar. 9, 1978, at 35 (reviewing J.L. MACKIE,



99. Id.

100. H.L.A. Hart, Death and Utility, N.Y. REV. BOOKS, May 15, 1980, at 25 (reviewing PETER SINGER,


101. LACEY, supra note 2, at 326.

102. See Hart, supra note 80; Hart, supra note 90; and Hart, 1776–1976, supra note 96. See also

H.L.A. HART, Legal Duty and Obligation, in ESSAYS ON BENTHAM, supra note 70, at 127–61.

103. LACEY, supra note 2, at 333.

104. Id. at 353.

105. Id.

106. Gardner, supra note 2, at 7.

107. Honore´, supra note 45, at 318.

108. Schroeder, supra note 15, at 814, 816.


tensions which shaped almost all of Hart’s work and relationships.


focuses throughout the book on four of Hart’s internal perplexities —his sexual orientation, Jewish identity, intellectual insecurity, and unconventional marriage—and she produces ample evidence to suggest that Hart did, indeed, struggle with them to varying degrees.

For example, we learn that Hart was by his own account a “suppressed homosexual,” whose lack of sexual appetite for
his wife caused a severe strain on their marriage;111 that Jenifer Hart had

numerous affairs with other men, including his best friend, Isaiah Berlin, and

the political philosopher, Michael Oakeshott;112 that Hart suffered periodic

doubts about the worth of his ideas and grappled his entire life with depression,

anxiety, and panic attacks;113 that he was torn between his “underlying sense of

Jewish identity and an intellectual commitment to its moral irrelevance”;114 and

that although Hart often projected “a highly anglicised, patrician, almost colonial

persona”115 and was largely welcomed into elite English culture, he also

endured some appalling acts of anti-Semitism.116

Yet, as critics have noted, the connection between these revelations and the growth and development of Hart’s ideas is not altogether clear.117

Moreover, one cannot help wondering whether by focusing on these rather sensational aspects of Hart’s personal life, Lacey has missed an opportunity to explore certain basic questions about his legal philosophy and its links to wider philosophical currents. 

We mentioned one example earlier: Hart’s attitude toward the analytic-synthetic distinction.

Recently, Brian Leiter, Ian Farrell, and other

scholars have drawn attention to the potential implications of Quine’s criticisms

of the distinction for the viability of conceptual analysis as a jurisprudential

method,118 and since this issue seems likely to become a focal point of future

109. LACEY, supra note 2, at 3.

110. Id.

111. Id. at 61, 74.

112. Id. at 174, 177–78.

113. See, e.g., id. at 3, 115, 127, 291, 297.

114. Id. at 271.

115. Id.

116. See, e.g., id. at 33–35, 54, 313–14.

117. See, e.g., Nagel, supra note 15, at 12

Lacey’s] claim that the personal material is needed to

write an intellectual biography is a pretence”); Simpson, supra note 20, at 1449 (doubting whether “all

the revelations as to Herbert’s private and family life cast any real light on his academic work”); White,

supra note 12, at 330

It is hard to see how the domestic and sexual dynamics of the Hart household had an effect on the development of Hart’s ideas and the course of his career.

See also De´idre M.

Dwyer, The Three Lives of Herbert Hart, 26 OXFORD J. LEGAL STUD. 411, 417–21 (2006) (examines several difficulties with Lacey’s reliance on Hart’s diaries and private correspondence and suggesting that her use of this personal material is only partially justified).

118. See, e.g., Farrell, supra note 21, at 1001 n.88; Brian Leiter, Legal Realism, Hard Positivism,

and the Limits of Conceptual Analysis, in HART’S POSTSCRIPT, supra note 10, at 355, 366–70; Brian

Leiter, Beyond the Hart/Dworkin Debate: The Methodology Problem in Jurisprudence, 48 AM. J. JURIS.

17, 44–50 (2003); see also John Oberdiek & Dennis Patterson, Moral Evaluation and Conceptual

Analysis in Jurisprudential Methodology, in CURRENT LEGAL ISSUES: LAW AND PHILOSOPHY (Ross

Harrison ed., forthcoming 2007).


debates in the philosophy of law, one wishes that Lacey had shed light on Hart’s

own views of the matter.

Another example is Hart’s apparent debt to Grice's student, P. F. Strawson.

although much ink has been spilled over Hart’s controversial remark in the

Preface to The Concept of Law that his book could be viewed as “an essay in

descriptive sociology,” Lacey does not explore whether, as seems likely, Hart’s remark was originally simply a paraphrase of the subtitle of Strawson’s 1959 book, Individuals: An Essay in Descriptive Metaphysics, and if so, what

if anything follows from this fact.

Yet issues like these are really just the tip

of the iceberg.

Here are some further questions about which one is naturally

curious but which A Life of H.L.A. Hart fails to illuminate:

What was Hart’s view of psychological behaviorism and its impact on the philosophy of language and mind?

Did he welcome the efforts of Skinner, Watson, and other behaviorists to make psychology scientific by ridding
it of references to unobservable mental states?

To what extent, beyond

the similarity of their titles, is The Concept of Law indebted to Ryle’s The

Concept of Mind?123 Did Hart embrace Ryle’s criticisms of “the dogma

of the Ghost in the Machine”?124 In particular, did he concur with Ryle

that common beliefs about “Reason and Conscience” are a “nursery


What role did behaviorism play in Hart’s preoccupation with the ontological status of legal rules?

Was it a latent commitment to behaviorism that led him to assume that for a rule to be something other than a mere habit, it must be prescriptive or normative?

What did Hart think of the analogy Rawls drew in A Theory of Justice

between moral theory and generative grammar?

Did he share Dworkin’s

view that Rawls’ analogy was “exciting” because it implied the

119. HART, supra note 5, at v

“Notwithstanding its concern with analysis the book may also be regarded as an essay in descriptive sociology; for the suggestion that inquiries into the meanings of words merely throw light on words is false.”).


121. Although Lacey takes up Hart’s remark in her Leon Green ’15 Lecture in Jurisprudence at the

University of Texas Law School, she does not discuss the parallel to Strawson’s title there either. See

generally Nicola Lacey, Analytical Jurisprudence Versus Descriptive Sociology Revisited, 84 TEX. L.

REV. 945 (2006).

For Hart’s own brief explanation of his prefatory remark, which does not refer to

Strawson or any other writer, see David Sugarman, Hart Interviewed: H.L.A. Hart in Conversation with

David Sugarman, 32 J. LAW & SOC’Y 267, 291 (2005).



124. Id. at 15–16.

125. Id. at 315.

126. See, e.g., HART, supra note 5, at 8

“What are rules? What does it mean to say a rule exists?”

127. See, e.g., id. at 9 (contrasting “mere convergent behavior and the existence of a social rule”); id.

at 10

What then is the crucial difference between merely convergent habitual behavior in a social group and the existence of a rule of which the words ‘must’, ‘should’, and ‘ought to’ are often a sign?

What can there be in a rule apart from regular and hence predictable punishment or reproof of those who deviate from the usual patterns of conduct, which distinguishes it from a mere group habit?

128. See RAWLS, supra note 95, at 45–52.


existence of “innate categories of morality common to all men, imprinted

on their neural structure”?

Did he concur with R. M. Hare that the analogy is fundamentally inapt?

Was Hart intrigued that Fuller had also compared rules of justice with rules of grammar?

Did he recognize that Ryle,

Ross, and Oakeshott had done so as well?132 What did Hart make of the

fact that Simpson’s interpretation of classical common law theory also

drew the same comparison:

“Formulations of the common law are to be

conceived of as similar to grammarians’ rules, which both describe

linguistic practices and attempt to systematize and order them”?


did Hart react to Simpson’s contention that The Concept of Law simply

ignores the common law and therefore is necessarily defective?134

What was Hart’s response to generative linguistics itself?

Did he welcome

the modern revival of Universal Grammar?135 Did it spark an

interest in Bentham’s writings on Universal Grammar,136 or lead him to

investigate the connections Bentham drew between Universal Grammar

and Universal Jurisprudence?137

Did it cause him to reassess the philosophical

significance of Bentham’s theory of fictions?

What did Hart think

of his colleagues’ reactions to Chomsky’s research program?

Did he share Austin’s enthusiasm for Syntactic Structures?

Was he sympathetic to

Ryle’s criticism of Chomsky’s defense of innate ideas?140 Did he share

Strawson’s interest in Chomsky’s work on deep structure and grammatical


129. DWORKIN, supra note 74, at 158.

130. See R. M. Hare, Rawls’ Theory of Justice, in READING RAWLS: CRITICAL STUDIES ON RAWLS’ A

THEORY OF JUSTICE 81, 85–86 (Norman Daniels ed., 2d prtg. 1989).

131. See LON L. FULLER, THE MORALITY OF LAW 5–13 (rev. ed. 1969).


ESSAYS 59, 61–62 (1962); W.D. ROSS, FOUNDATIONS OF ETHICS 169 (1939); RYLE, supra note 123, at 316.

133. Simpson, supra note 26, at 94.

134. See generally id.


THOUGHT (1966) (describing the Enlightenment origins of Universal Grammar).

136. See generally C.K. OGDEN, BENTHAM’S THEORY OF FICTIONS (1932). See also JEREMY BENTHAM,

Chrestomathia (1843), reprinted in 8 THE WORKS OF JEREMY BENTHAM 1, 150–55, 185–91 (John

Bowring ed., Thoemmes Press 1995) [hereinafter WORKS]; JEREMY BENTHAM, A Fragment on Ontology,

reprinted in 8 WORKS, supra, at 193; JEREMY BENTHAM, Essay on Language, reprinted in 8 WORKS,

supra, at 295; JEREMY BENTHAM, Essay on Logic, reprinted in 8 WORKS, supra, at 213; JEREMY BENTHAM,

Fragments on Universal Grammar, reprinted in 8 WORKS, supra, at 339.

137. See, e.g., BENTHAM, supra note 67, at 6, 294–95; BENTHAM, supra note 68, at 418; BENTHAM,

supra note 69, at 251. See James E. Crimmins, Bentham’s Philosophical Politics, 3 HARV. REV. PHIL. 18,

20 (1993) (noting that Bentham’s manuscripts on the fundamental elements of Universal Jurisprudence—

some 614 pages—still await publication).

138. See generally OGDEN, supra note 136.

139. NOAM CHOMSKY, SYNTACTIC STRUCTURES (1957). See also G.J. Warnock, John Langshaw Austin,

A Biographical Sketch, in SYMPOSIUM ON J.L. AUSTIN 3, 14–15 (K.T. Fann ed., 1969) (observes that

Austin taught Syntactic Structures in his VERY last “Saturday mornings” seminar.

140. See GILBERT RYLE, Mowgli in Babel, in ON THINKING 95 (1979) (reviewing ZENO VENDLER, RES


141. See Peter F. Strawson, Grammar and Philosophy, in SEMANTICS OF NATURAL LANGUAGE 455

(Donald Davidson & Gilbert Harman eds., 1975).


What was Hart’s attitude toward human rights?

Did he welcome the

adoption of the Universal Declaration of Human Rights in 1948?

 If so, how did he reconcile it with his commitment to legal positivism?

Did he

embrace the Declaration’s affirmation of economic, social, and cultural


How did Hart’s reaction to the Universal Declaration influence

the philosophical analysis of rights he developed in his publications of the

late 1940s and 1950s?

How, if at all, did Hart’s attitude toward human rights change over the course of his career?

Questions like these are hardly orthogonal to the intellectual and social

worlds Hart inhabited, and they comprise a mere subset of those to which an

intellectual biography of him would ideally provide answers.

That Lacey does

not engage any of them may be the most disappointing feature of her otherwise

compelling narrative.

In the remainder of this Essay, we attempt to answer some

of these questions, drawing on various parts of Hart’s corpus along with Lacey’s

own fruitful exploration of Hart’s life and career. 

Our central argument is that a

genuinely puzzling aspect of Hart’s legal theory is how detached it now seems

from many of the most significant intellectual events of the past fifty years,

including the modern revival of Universal Grammar, the cognitive revolution in

the sciences of mind, brain, and behavior, and the human rights revolution in

constitutional and international law, all of which would appear to have significant

implications for the tradition of general and descriptive jurisprudence with

which Hart was associated.

After providing some support for this claim in

Part III, we offer a partial explanation of this state of affairs in Part IV.


The story of jurisprudence Lacey tells in A Life of H.L.A. Hart is a familiar one, which largely mirrors the one found in many student textbooks. The story

centers around Hart’s relationship to the philosophy of language.

Lacey contends

that Hart’s “crucial philosophical innovation” was to combine the insights

of legal positivism with the methods of “the new linguistic philosophy represented

by the work of J.L. Austin and H. P. Grice -- especially the keyword of a 'conversational implicature' that Austin ignored.

However, she neglects to explain what exactly those methods are, or to explore the fate of ordinary language philosophy since the 1950s.

This leaves the impression that she has not thought critically about how such major events as the overthrow of logical positivism, the demise of behaviorism, and the rise

142. Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. Doc. A/810 (Dec. 10,


143. See H.L.A. Hart, Are There Any Natural Rights?, 64 PHIL. REV. 175 (1955); see also Hart, supra

note 52; Hart, The Ascription of Responsibility and Rights, supra note 43.

144. See HART, supra note 77, at 239–40 (characterizing his own legal theory as one which is both

general in the sense that it is not tied to any particular legal system or legal culture” and “descriptive

in that it is morally neutral and has no justificatory aims”).

145. LACEY, supra note 2, at 4–5, 225.


of generative linguistics should inform our understanding of this aspect of Hart’s legacy.

Linguistics, psychology, and the philosophy of language and mind are much different today than they were in the 1940s and 1950s, and the philosopher Tyler Burge expresses a common view when he observes that ordinary language philosophy’s “primary contribution to the philosophy of language, its focus on details of usage, yielded better results when it later allied

itself with systematic theory.

Yet these developments make virtually no

appearance in A Life of H.L.A. Hart, leading one to ponder the significance of

their absence.

The central event in the study of language of the past fifty years, to which

ordinary language philosophy has long since given way, is the so-called “Chomskyan

Turn,” which transformed the study of language and mind by showing

that ordinary language is susceptible to precise formal analysis and by rooting

knowledge of language in the human bioprogram.

From this perspective, while

philosophers like J. L. Austin and H. P. Grice were correct to criticize the neglect

by logical positivists of the variety of uses (beyond the paradigm case of

asserting) to which ordinary language can be put, and while they deserve credit

for calling attention to many subtle nuances and minutiae of ordinary usage, their approach

was inherently incapable of providing an adequate theory of language because

of its characteristically unsystematic orientation and its fundamentally flawed

empiricist epistemology.

Today, researchers around the world investigate

language within Chomsky’s paradigm of Universal Grammar, and they have

discovered that Chomsky was fundamentally correct to postulate that the grammars

of individual languages throughout the world are variations on a single,

universal pattern.

For example, in English the verb comes before the object

(pick fruit) and the preposition comes before the noun phrase (from the tree). In

Japanese, things are reversed: the object comes before the verb (fruit pick) and

the noun phrase comes before the preposition, or rather, the postposition (the

tree from).

However, as Steven Pinker explains,

it is a significant discovery that both languages have verbs, objects, and pre or post-positions to start with, as opposed to countless other conceivable kinds

of apparatus that could power a communication system. And it is even more

significant that unrelated languages build their phrases by assembling a head

146. Tyler Burge, Philosophy of Language and Mind: 1950–1990, 101 PHIL. REV. 3, 13 (1992).

147. THE CHOMSKYAN TURN (Asa Kasher ed., 1991).

148. See generally Burge, supra note 146; Noam Chomsky, Some Empirical Assumptions in Modern


(Sidney Morgenbesser, Patrick Suppes & Morton White eds., 1969); Jerry A. Fodor & Jerrold J. Katz,


Fodor & Jerrold J. Katz eds., 1964).






(such as a verb or preposition) and a complement (such as a noun phrase) and

assigning a consistent order to the two.

In English the head comes first; in

Japanese the head comes last.

But everything else about the structure of

phrases in the two languages is pretty much the same. And so it goes with

phrase after phrase and language after language. The common kinds of heads

and complements can be ordered in logically possible ways, but 95

percent of the world’s languages use one of two: either the English ordering

or its mirror image the Japanese ordering. A simple way to capture this

uniformity is to say that all languages have the same grammar except for a

parameter or switch that can be flipped to either the “head-first” or “head-last”

setting. The linguist Mark Baker has recently summarized about a dozen of

these parameters, which succinctly capture most of the known variation

among the languages of the world.151

Needless to say, these and related scientific developments in the study of

language and cognition have profound implications for law and legal theory,

which legal scholars have only recently begun to explore in earnest.


the most important is their potential to transform our understanding of a cluster

of interrelated topics, including the concept of universal jurisprudence, the

origin of the law of nations, the idea of human rights, and—perhaps most

fundamentally—the hypothesis of innate moral knowledge which lies at the

heart of the perennial debate between natural law and legal positivism. Although

this hypothesis has long been unfashionable, the fashion in moral

psychology is now rapidly changing,153 and the psychology and biology of

human morality has become one of the liveliest topics in the cognitive and brain

sciences, as a plethora of recent books attest: The Ethical Brain,154 The Moral

151. Id. at 37–38 (citing BAKER, supra note 149).


91–112 (2006) (drawing on linguistic theory to investigate the sense of justice); GEORGE FLETCHER,

BASIC CONCEPTS OF CRIMINAL LAW 5 (1998) (proposing a “universal grammar of the criminal law”

analogous to universal grammar); MICHAEL J. PERRY, THE IDEA OF HUMAN RIGHTS: FOUR INQUIRIES 57,

68–69 (1998) (drawing on Chomsky’s theory of innate cognitive capacities to reply to historicist

objections to the idea of human rights); LAWRENCE M. SOLAN, THE LANGUAGE OF JUDGES (1993)

(applying linguistic theory to problems of statutory interpretation and adjudication); Jim Chen, Law as

a Species of Language Acquisition, 73 WASH. U. L.Q. 1263, 1279 (1995) (arguing that the “existence of

universal grammar reinforces the discovery of universals in other language-based disciplines,” including

law); Stuart P. Green, The Universal Grammar of Criminal Law, 98 MICH. L. REV. 2104 (1998)

(reviewing FLETCHER, supra); Robin Bradley Kar, The Deep Structure of Law and Morality, 84 TEX. L.

REV. 877, 878 (2006) (arguing that “law and morality share a deep and pervasive structure—an

analogue in the moral and legal domain of what Noam Chomsky has called the ‘deep structure’ or

‘universal grammar’ of language”); John Mikhail, Law, Science, and Morality: A Review of Richard

Posner’s The Problematics of Moral and Legal Theory, 54 STAN. L. REV. 1057, 1088–98 (2002)

(explaining the analogy between rules of justice and rules of grammar and criticizing Judge Posner’s

conception of morality and moral theory in light of it).

153. See generally Rebecca Saxe, Do the Right Thing: Cognitive Science’s Search for a Common

Morality, BOSTON REV., Sept.–Oct. 2005, at 33.



Sense,155 The Moral Animal,156 The Origins of Virtue,157 Hardwired Behavior,

158 Good Natured,159 Moral Minds,160 and other similar titles. Philosophers

and scientists have begun to inquire whether the human genetic program

includes a Universal Moral Grammar analogous to the linguist’s notion of

Universal Grammar, that is, an innate function or acquisition device that maps

the child’s early experience into the system of principles that constitutes the

mature state of her moral faculty and generates her moral intuitions.


psychology of moral development has become a particularly fruitful field of

investigation, and developmental psychologists have begun to reveal that the

intuitive jurisprudence of young children is complex and exhibits many characteristics

of a well-developed legal code, including abstract theories of crime,

tort, contract, and agency.

Recent work by comparative linguists suggests









ANIMALS (1996).


WRONG (2006).

161. See, e.g., GILBERT HARMAN, Moral Philosophy and Linguistics, in EXPLAINING VALUE 217



AND LINGUISTICS 169 (Kumiko Murasugi & Robert Stainton eds., 1999); Joshua Greene, Cognitive

Neuroscience and the Structure of the Moral Mind, in THE INNATE MIND: STRUCTURE AND CONTENTS 338

(Peter Carruthers, Stephen Laurence & Stephen Stich eds., 2005); Joshua Knobe, Theory of Mind and

Moral Cognition: Exploring the Connections, 9 TRENDS COG. SCI. 357 (2005); Matthias Mahlmann &

John Mikhail, Cognitive Science, Ethics, and Law, in EPISTEMOLOGY AND ONTOLOGY 95 (Zenon Bankowski

ed., 2005); Mikhail, supra note 152; John Mikhail, Cristina M. Sorrentino & Elizabeth S. Spelke,


COGNITIVE SCIENCE SOCIETY 1250 (Morton A. Gernsbacher & Sharon J. Derry eds., 1998); Shaun

Nichols, Innateness and Moral Psychology, in THE INNATE MIND, supra at 353; John Mikhail, Rawls’

Linguistic Analogy: A Study of the “Generative Grammar” Model of Moral Theory Described by John

Rawls in “A Theory of Justice” (May 2000) (unpublished Ph.D. dissertation, Cornell University),; Jennifer Nado, Daniel Kelly & Stephen Stich, Moral Judgment, in



For example, three- and four-year-old children use intent or purpose to distinguish two acts

with the same result. See, e.g., Sharon Nelson, Factors Influencing Young Children’s Use of Motives

and Outcomes as Moral Criteria, 51 CHILD DEV. 823 (1980). They also distinguish “genuine” moral

violations (e.g., theft, battery) from violations of social conventions (e.g., wearing pajamas to school).

See, e.g., Judith G. Smetana, Social Cognitive-Development: Domain Distinctions and Coordinations, 3

DEV. REV. 131, 135 (1983). Four- and five-year-olds use a proportionality principle to determine the

appropriate level of punishment for principals and accessories. See, e.g., Norman J. Finkel, Marsha B.

Liss & Virginia R. Moran, Equal or Proportional Justice for Accessories? Children’s Pearls of

Proportionate Wisdom, 18 J. APPLIED DEVELOPMENTAL PSYCHOL. 229, 240 (1997). Five- and six-yearolds

use false factual beliefs but not false moral beliefs to exculpate. See, e.g., Michael J. Chandler,

Bryan W. Sokal & Cecilia Wainryb, Beliefs About Truth and Beliefs About Rightness, 71 CHILD DEV. 91,


that every natural language has words or devices to express the three basic

deontic concepts—may, must, must not, or their equivalents;163 while anthropologists

and comparative lawyers have suggested that prohibitions of murder, rape,

and other types of aggression are universal,164 as are distinctions based on

causation, intention, and voluntary behavior.

In a similar vein, George Fletcher

has argued that a small set of basic distinctions captures the “deep structure” or

“universal grammar” of all systems of criminal law.

 Finally, recent functional

imaging and clinical evidence suggests that a fairly consistent network of brain

regions is involved in moral cognition, although this conclusion remains both

preliminary and highly controversial.

In short, researchers from a variety of

disciplines have begun to converge on a scientific theory of moral cognition

which, at least in its broad contours, bears a striking resemblance to classical

ideas of natural law and the foundation of the law of nations that reverberate

throughout the ages.168

93 (2000). See generally John Mikhail, The Poverty of the Moral Stimulus, in 1 MORAL PSYCHOLOGY:

INNATENESS AND ADAPTATION (Walter Sinnott-Armstrong ed., forthcoming 2007).

163. See generally MODALITY IN GRAMMAR AND DISCOURSE (Joan Bybee & Suzanne Fleischman eds.,


164. See, e.g., DONALD E. BROWN, HUMAN UNIVERSALS 138 (1991); see also PINKER, supra note 149,

at 412–15 (citing BROWN).

165. See, e.g., FLETCHER, supra note 152.

166. See id.

167. See, e.g., Jorge Moll et al., The Neural Basis of Human Moral Cognition, 6 NATURE REVIEWS

NEUROSCIENCE 799 (2005) (arguing that a fairly consistent network of brain regions is implicated in

moral cognition, including the anterior prefrontal cortex, medial and lateral orbitofrontal cortex,

dorsolateral and ventromedial prefrontal cortex, anterior temporal lobes, and superior temporal sulcus

region). But see Joshua Greene & Jonathan Haidt, How (and Where) Does Moral Judgment Work?, 6

TRENDS COGNITIVE SCI. 517, 523 (2002) (holding that “there is no specifically moral part of the brain”

and that “if one attempts to ‘deconfound’ moral judgment with everything that is not specific to moral

judgment . . . there will almost certainly be nothing left”).

Recall some of the most famous and important formulations, presented here in chronological


For Cicero, natural law is “something which is implanted in us, not by opinion, but by a kind of innate instinct.” CICERO, DE INVENTIONE, II, 65, cited in MICHAEL BERTRAM CROWE, THE CHANGING


St. Paul: “When the Gentiles, who have not the law, do by

nature those things that are of the law . . . [they] show the work of the law written in their hearts. . . .”

Romans 2:14–15, cited in CROWE, supra, at 52.

Gaius: “All peoples who are governed under laws

and customs observe in part their own special law and in part a law common to all men . . . which

natural reason has established among all human beings . . . and is called jus gentium, as being the law

which all nations observe.” DIG. 1.1.9 (Gaius, Institutes 1) (Alan Watson trans.);

Ulpian: “Natural

law is what nature has taught all animals.” DIG. (Ulpian, Institutes 1), cited in CROWE, supra, at

45; (5)

Isadore: Natural law is “what is common to all nations and is set up by natural instinct and not

by any positive institution.” ISADORE, BOOK OF ETYMOLOGIES, V, 4, cited in CROWE, supra, at 69; (6)

Gratian: “Natural law is common to all nations by reason of its universal origin in a natural instinct and

not in any (positive) constitution.” GRATIAN, DECRETUM, D.I, 7, cited in CROWE, supra, at 75; (7)

Aquinas: Natural law is “a natural disposition of the human mind . . . concerned with the basic

principles of behavior.” THOMAS AQUINAS, DEBATED QUESTIONS ON TRUTH, 16.1, cited in TIMOTHY C.

POTTS, CONSCIENCE IN MEDIEVAL PHILOSOPHY 124 (1980); (8) Suarez: Natural law is “that form of law

which dwells within the human mind, in order that the righteous may be distinguished from the evil.”

FRANCISCO SU´AREZ, DE LEGIBUS AC DEO LEGISLATORE, I.3.9 (James Brown Scott ed., 1944) (1612); (9)

Grotius: “Natural Law is the Dictate of Right Reason, indicating that any act, from its agreement or

disagreement with the rational [and social] nature [of man], has in it a moral turpitude or a moral


Returning to Hart, one of the mysteries surrounding his intellectual biography,

which Lacey’s book does not illuminate, is his attitude toward this set of

ideas, which were already beginning to swirl around him during the period in

which he occupied the Oxford Chair.

Surprisingly, Hart devoted very little

attention to any of these topics, despite having many opportunities to do so. For

example, although from the late 1950s onward many of Hart’s colleagues were

deeply engaged with Chomsky’s ideas—Austin, for instance, 'read' Syntactic

Structures in the last term before his death —and by the early 1970s, scholars

from a variety of disciplines were already describing Chomsky’s influence in

monumental terms, Hart stood apart from these developments and displayed

no discernible interest in the new linguistics.

Why this happened is not entirely clear, but it meant that Hart continued to write about language and linguistic phenomena through the 1980s as if the “Chomskyan turn” in linguistics had never occurred.171

The mystery deepens when we consider the analogy between grammar and


(William Whewell trans., Cambridge Univ. Press 1853) (1625) (alteration in original); (10) Hume: “The

final sentence . . . which pronounces characters and actions amiable or odious, praiseworthy or blamable

. . . depends on some internal sense or feeling which nature has made universal in the whole


1957) (1751); (11)

James Wilson: “The moral sense is a distinct and original power of the human

mind . . . . Our knowledge of moral philosophy, of natural jurisprudence, of the law of nations, must

ultimately depend, for its first principles, on the evidence and information of the moral sense.” JAMES

WILSON, Of the Nature and Philosophy of Evidence, in 1 THE WORKS OF JAMES WILSON 369, 378–79

(Robert Green McCloskey ed., Harvard Univ. Press 1967) (1804); (12) Thomas Jefferson: “Hobbes

. . . [believes] that justice is founded in contract solely, and does not result from the construction of

man. I believe, on the contrary, that it is instinct, and innate, that the moral sense is as much a part of

our constitution as that of feeling, seeing, or hearing.” Letter from Thomas Jefferson to John Adams


JEFFERSON AND ABIGAIL AND JOHN ADAMS 490, 492 (Lester J. Cappon ed., 1959).

169. See Warnock, supra note 139.

170. See, e.g., John Searle, Chomsky’s Revolution in Linguistics, in ON NOAM CHOMSKY: CRITICAL

ESSAYS 2, 7 (Gilbert Harman ed., 1974) (“

The extraordinary and traumatic impact of the publication of

Syntactic Structures by Noam Chomsky in 1957 can hardly be appreciated by one who did not live

through the upheaval.’ ”

quoting Howard Maclay, Overview, in SEMANTICS 163 (Danny D. Steinberg

& Leon A. Jakobovits eds., 1971)); Gilbert Harman, Introduction to ON NOAM CHOMSKY, supra, at vii

Nothing has had a greater impact on contemporary philosophy than Chomsky’s theory of language”);

JOHN LYONS, NOAM CHOMSKY 9 (1970) (noting that Syntactic Structures “revolutionized the

scientific study of language”).

171. See, e.g., ESSAYS, supra note 1, at 2–6, 3 (reflecting on how linguistic philosophers like Austin

and Wittgenstein sought to analyze how “identical grammatical forms” conceal subtle differences of

meaning without calling attention to Chomsky’s subsequent work on deep structure); HART, ESSAYS ON

BENTHAM, supra note 70, at 10 (explaining Bentham’s view that “the relation of language and so of

thought to the world is radically misunderstood if we conceive of sentences as compounded out of

words which simply name or stand for elements of reality” without noting the parallel to Chomsky’s

internalist semantics); id. at 129–32 (discussing Bentham’s paraphrastic analysis of terms like “right,”

“duty,” and “obligation” without reference to the modern theory of linguistic transformations); H.L.A.

Hart, Book Review, 94 MIND 153 (1985) (reviewing ROSS HARRISON, BENTHAM (1983)) (same); cf.

Joseph Raz, Two Views of the Nature of the Theory of Law: A Partial Comparison, in HART’S

POSTSCRIPT, supra note 10, at 1, 5–6

The story . . . of Hart’s forays into the philosophy of language” is “a sad one” in which “[v]ery little seems to have been gained.


jurisprudence which bulks so large in the Western legal tradition Hart inherited.

Although the link between these subjects traces at least as far back as Aristotle’s observation in The Politics that the gift of speech and a sense of justice are what distinguish humans from other animals, and although the comparison between

rules of justice and rules of grammar was a popular one among Enlightenment

philosophers and jurists, including Adam Smith, David Hume, Samuel

Pufendorf, and Matthew Hale, the modern positivist discussion of the topic

begins in earnest with Bentham, in particular with Bentham’s brief remarks on

universal jurisprudence in An Introduction to the Principles of Morals and


Bentham introduced the term “universal jurisprudence” by an

implicit analogy to Universal Grammar to denote the science of those notions

that appear in “the laws of all nations,” such as “power, right, obligation,

liberty, and many others.”

The basic idea was picked up and elaborated by

Austin, who renamed the inquiry general jurisprudence, which he defined as

“the science concerned with the exposition of the principles, notions, and

distinctions which are common to systems of law.”175

Austin’s most significant follower, in turn, was Thomas E. Holland, whose

Elements of Jurisprudence was the most widely used jurisprudence textbook in

172. See ARISTOTLE, THE POLITICS, Bk. 1, 1253a1-15 (Steven Everson ed., Cambridge Univ. Press

1988) (“[T]hat man is more of a political animal than bees or any other gregarious animals is evident.

Nature . . . makes nothing in vain, and man is the only animal who has the gift of speech . . . .And it is

[also] a characteristic of man that he alone has any sense of good and evil, of just and unjust, and the

like, and the association of living beings who have this sense makes a family and a state.”).

173. See, e.g., Matthew Hale, Preface to ROLLE’S ABRIDGMENT (1668), reprinted in READINGS IN

JURISPRUDENCE 341 (Jerome Hall ed., 1938) (comparing mastery of the common law with knowledge of

grammar); DAVID HUME, A TREATISE OF HUMAN NATURE 490 (P.H. Nidditch ed., Oxford Univ. Press

1978) (1739–1740) (comparing the origin of justice to the establishment of human language); ADAM

SMITH, THE THEORY OF MORAL SENTIMENTS 175 (D.D. Raphael & A.L. Macfie eds., Oxford Univ. Press

1976) (1759) (comparing the rules of justice to the rules of grammar); Samuel Pufendorf, On the Duty

of Man and Citizen (1673), reprinted in 1 MORAL PHILOSOPHY FROM MONTAIGNE TO KANT: AN ANTHOLOGY

158, 164 (J.B. Schneewind ed., Cambridge Univ. Press 1990) (explaining the meaning of “[t]he

common saying that the law is known by nature” by observing that “[e]veryone has the same

experience with his mother tongue”).

174. BENTHAM, supra note 67, at 295; see also id. at 6 (enumerating “obligation, right, power,

possession, title, exemption, immunity, franchise, privilege, nullity, validity, and the like” as the “short

list of terms, the exposition of which contains all that can be said with propriety to belong to the head of

universal jurisprudence”). But cf. Crimmins, supra note 137.

175. John Austin, The Uses of the Study of Jurisprudence, in THE PROVINCE OF JURISPRUDENCE

DETERMINED 365, 367 (H.L.A. Hart ed., 1954) (1832). Austin’s list of common principles is more

extensive than Bentham’s and includes (1) “notions of Duty, Right, Liberty, Injury, Punishment,

Redress; with their various relations to one another, and to Law, Sovereignty, and Independent Political

Society”; (2) the distinction between written and unwritten law; (3) the distinction between rights in

rem and rights in personam; (4) the distinction between property or dominion and “the variously

restricted rights which are carved out of [them]”; (5) the division of obligations into those arising from

contracts, those arising from injuries (i.e., delicts), and those arising “from incidents that are neither

contracts nor injuries” (i.e., obligations quasi ex contractu); and (6) the division of injuries into civil

and criminal, and the subordinate division of civil injuries into torts, breaches of contract, and breaches

of obligations quasi ex contractu. Id. at 367–68. In line with his positivism, however, Austin’s list does

not include the mala in se/mala prohibita distinction, a point to which we return. See infra notes 193,

247–49 and accompanying text.


England for the next fifty years and exerted a significant impact on many

leading British and American writers, including Pollock, Salmond, Gray, Hohfeld,

Langdell, and Pound.176 Holland defined jurisprudence as the formal science of

law: “not the material science of those portions of the law which various nations

have in common, but the formal science of those relations of mankind which are

generally recognized as having legal consequences.”177 Explaining what he

meant by a “formal science,” Holland drew an analogy to grammar, the abstract

science of language under which “all the phenomena of any language find

appropriate places.”178 Just as grammar studies concepts and relationships

appearing in all languages, so jurisprudence analyzes “those comparatively few

and simple ideas which underlie the infinite variety of legal rules.” 179

Holland’s linguistic analogy provoked a flurry of criticism from some of the

era’s most prominent jurists. Frederick Pollock, for example, questioned whether

the analogy was intelligible:

The parallel is felicitous, and only too felicitous. If it be just, it goes a little

too far for the writer’s purpose. Abstract grammar, in the sense here specified,

is evidently a conceivable science. But is it an actual science in the sense of

being explicitly taught or learnt by any one? We have never heard of its

professors or text-books. No such teachers or books, as far as I can learn, have

been called forth by the development of modern philology.180

Likewise, John Chipman Gray argued that “Jurisprudence is, in truth, no more a

formal science than Physiology.”181 While conceding that language is “subject

to rigorous rules which have operated controllingly without the conscious

knowledge of those who have in fact obeyed them,” Gray objected that the type

of legal science Holland envisioned, which seeks “to show what universal

forces of human nature have caused the Jurisprudence of the globe to be what it

is . . . does not yet exist.”182

Pollock and Gray did not live to witness the birth of a new scientific

paradigm that transformed linguistics and psychology and helped make Chomsky

one of the ten most-cited authors in all of the humanities (surpassing Hegel

and Cicero, and trailing only Marx, Lenin, Shakespeare, the Bible, Aristotle,


to thirteen editions, the last appearing in 1924. On Holland’s influence on subsequent British and

American writers, see JAMES HERGET, AMERICAN JURISPRUDENCE, 1870–1970: A HISTORY 84–93 (1990);


177. HOLLAND, supra note 176, at 9.

178. Id. at 6.

179. Id. at 1.





182. Id. at 136–37.


Plato, and Freud).

But Hart did, and he was well-positioned to examine the

modern revival of Universal Grammar and draw out its implications for jurisprudence

and legal theory. Indeed, Hart was arguably uniquely qualified to do so

for many reasons, including his background in linguistic philosophy,184 his

superb linguistic skills,185 his interest in Bentham,186 and his familiarity with

the jurisprudential history we have been chronicling.187 And yet Hart did not do

so, for reasons that remain obscure.

Hart’s attitude toward Rawls’ linguistic analogy is especially puzzling. The

centerpiece of the conception of moral theory Rawls articulates in A Theory of

Justice is what we may call the moral grammar hypothesis: the assumption that

each individual develops a moral sense or sense of justice under normal

circumstances, whose essential properties the moral theorist must describe and

explain, using concepts and models similar to those used in the study of

language.188 Although A Theory of Justice became highly influential, Rawls’

linguistic analogy was not warmly received, and early reviews by R.M. Hare,

Thomas Nagel, Ronald Dworkin, and Peter Singer sharply criticized or otherwise

distanced themselves from Rawls’ proposal, as did subsequent commentaries

by Norman Daniels, Richard Brandt, Joseph Raz, and Bernard Williams.


Virtually alone among his peers, Hart refrained altogether from discussing the topic.

Likewise, although both Fuller and Williams address the linguistic

183. See PINKER, supra note 149, at 23.

184. See, e.g., LACEY, supra note 2, at 4–6, 132–51.

Interestingly, Hart used “linguistics” to describe the jurisprudence seminar he taught at Harvard Law School:

After the initial shock of my accent and my refusal to do sociology, and natural law, they seem to enjoy linguistics and comparisons of law with the rules of baseball.

They’ll be raging positivists before we’re ‘thru’ and then there’ll be a row.

cf. Sugarman, supra note 121, at 271 (“SUGARMAN: I

wondered whether the barrister’s manipulation of words, that concern with language, might have

possibly ‘connected’ with your passion for philosophy?

HART: I’d always been passionately interested

in language. As a schoolboy I tried to learn about a dozen languages. Words had always fascinated


186. See, e.g., LACEY, supra note 2, at 297–302. See generally HART, ESSAYS ON BENTHAM, supra note


187. On Hart’s familiarity with Gray and Holland, see, for example, Hart, supra note 1, at 56

(quoting Gray); id. at 55 n.21 (citing Holland).

188. See RAWLS, supra note 95, at 45–53. See generally Mikhail, Rawls’ Linguistic Analogy, supra

note 161. Note that as described here, the moral grammar hypothesis includes three distinct ideas: (1)

each individual develops a moral sense or sense of justice under normal circumstances, (2) whose

essential properties the moral theorist must describe and explain, (3) using concepts and models similar

to those used in the study of language. In what follows, for ease of exposition, I sometimes use the

phrase in a more restricted sense to refer to (1) and (2) only, or to (1) only, as circumstances warrant.


ETHICS AND THE LIMITS OF PHILOSOPHY 93–99 (1985); Norman Daniels, Some Methods of Ethics and

Linguistics, 37 PHIL. STUD. 21 (1980); DWORKIN, supra note 74, at 150–83; Hare, supra note 130;

Thomas Nagel, Rawls on Justice, in Daniels, supra note 130, at 1–16; Joseph Raz, The Claims of

Reflective Equilibrium, 25 INQUIRY 307 (1982); Peter Singer, Sidgwick and Reflective Equilibrium, 58

MONIST 490 (1974).

190. See Hart, supra note 95 (discussing Rawls without reference to the linguistic analogy).


analogy at some length,191 Hart’s critical reviews of The Morality of Law and

Ethics and the Limits of Philosophy pass right over those comparisons.192

Turning more directly to the moral grammar hypothesis itself, Hart’s neglect

of this topic throughout his career is also quite mysterious. In 1954, Hart edited

and wrote an introduction to a new edition of John Austin’s The Province of

Jurisprudence Determined, but he noticeably refrained from commenting there

on Austin’s vigorous attack on the moral grammar hypothesis in Lecture IV or

his use of that attack to undermine the traditional distinctions between jus

gentium/jus civile and mala in se/mala prohibita in Lectures IV and V.193 In

Positivism and the Separation of Law and Morals, and again in The Concept of

Law, Hart distinguished five main doctrines associated with legal positivism:

(1) laws are the commands of human beings

(2) there is no necessary connection between law and morals

(3) the analysis of legal concepts is worth

pursuing and should be distinguished from historical, sociological, and critical


(4) a legal system is a “closed logical system” in which correct

decisions can be deduced from pre-existing legal rules without reference to

social aims, policies, or moral standards; and

(5) ethical noncognitivism (the

claim that moral judgments cannot be established or defended by methods of

rational inquiry as statements of fact can).

Significantly, Hart neglected to

mention a sixth doctrine, which as an historical matter unites Bentham and

Austin as much any other—that the moral grammar hypothesis is false.

Hart’s characterizations of natural law are notoriously inadequate, but in addi-

191. See FULLER, supra note 131; WILLIAMS, supra note 189.

192. See H.L.A. Hart, Lon L. Fuller: The Morality of Law, 78 HARV. L. REV. 1281 (1965) (book

review), reprinted in ESSAYS, supra note 1, at 343–64; H.L.A. Hart, Who Can Tell Right from Wrong?,

33 N.Y. REV. BOOKS, Jul. 17, 1986, at 49 (reviewing BERNARD WILLIAMS, ETHICS AND THE LIMITS OF



E. Rumble ed., Cambridge Univ. Press 1995) (1832).

194. See Hart, supra note 1, at 601 n.25; see also HART, supra note 5, at 253 (adding the further

comment that “‘positivism’ is often used [in continental literature] for the general repudiation of the

claim that some principles or rules of human conduct are discoverable by reason alone”).

Hart identifies

the same five doctrines in his Encyclopedia of Philosophy article on Legal Positivism. See H.L.A. Hart,

Legal Positivism, in 4 THE ENCYCLOPEDIA OF PHILOSOPHY 418 (Paul Edwards ed., 1967). Note that in

contemporary legal theory, legal positivism is often defined more narrowly, to include only the second

doctrine and a Hartian alternative to the first doctrine.

See, e.g., Jules L. Coleman & Brian Leiter, Legal

Positivism, in A COMPANION TO PHILOSOPHY OF LAW AND LEGAL THEORY 241, 241 (Dennis Patterson ed.,


All positivists share two central beliefs: first, that what counts as law in any particular society

is fundamentally a matter of social fact or convention (‘the social thesis’); second, that there is no

necessary connection between law and morality (‘the separability thesis’).”); see also Brian Leiter,

Positivism, Formalism, Realism, 99 COLUM. L. REV. 1138, 1140–44 (1999) (reviewing ANTHONY SEBOK,

LEGAL POSITIVISM IN AMERICAN JURISPRUDENCE (1998)) (explaining that legal positivism is a theory of

law, not a theory of adjudication, which consists of the social thesis and the separability thesis); accord

Jack Goldsmith & Steven Walt, Erie and the Irrelevance of Legal Positivism, 84 VA. L. REV. 673,

677–79 (1998). Because of the wide scope of this Essay, unless otherwise indicated we use the term more

broadly than this, to encompass additional doctrines historically associated with legal positivism,

including Bentham’s and John Austin’s rejection of the moral grammar hypothesis.

195. See, e.g., AUSTIN, supra note 193, at 81–93; BENTHAM, supra note 67, at 25–28.


tion to the criticisms John Finnis,196 Norman Kretzmann,197 Mark Murphy,198

and other writers have made, one must add the further objection that Hart

simply ignores many of the classic questions of moral epistemology which

occupied the majority of natural law theorists from Plato onward.

Finally, there is the issue of human rights.

It is difficult to imagine a more

direct repudiation of legal positivism than that which is contained in Article 1 of

the Universal Declaration of Human Rights:

“All human beings are born free

and equal in dignity and rights. They are endowed with reason and conscience

and should act towards one another in a spirit of brotherhood.”

Here, one

might think, is humanity’s considered response to Anarchical Fallacies and The

Province of Jurisprudence Determined, the sharpest conceivable provocation to

any jurist seeking to build on the positivist legacy of Bentham and Austin.


yet, surprisingly, Hart hardly seemed to notice or care.

None of his rights-related

essays of the 1940s and 1950s—the 1949 paper on rights and responsibilities,

200 1953 inaugural lecture,201 1955 paper on natural rights,202 and 1958

paper on legal and moral obligation203—gives the Universal Declaration so

much as a passing reference.

Meanwhile, the topic of human rights is

196. See, e.g., JOHN FINNIS, NATURAL LAW AND NATURAL RIGHTS 29 (1980) (“H.L.A. Hart has said that

‘natural law theory in all its protean guises attempts to assert that human beings are equally devoted to

and united in their conception of aims (the pursuit of knowledge, justice to their fellow men) other than

that of survival.’ For my part, I know of no one who has ever asserted this.”); id. at 52–53


account of ‘the teleological view of nature’ is a little extravagant—of what serious writer was it ever

true that ‘the questions whether [events] do occur regularly and whether they should occur or whether it

is good that they occur [were] not regarded as separate questions’?”) (alteration in original); id. at

364–65 (“The central tradition of natural law theorizing . . . has not chosen to use the slogans attributed

to it by [Hart], for example that ‘what is utterly immoral cannot be law’, or that ‘certain rules cannot be

law because of their moral iniquity’, or that ‘these evil things are not law’, or that ‘nothing iniquitous

can anywhere have the status of law’, or that ‘morally iniquitous demands . . . [are] in no sense

law’ . . . . On the contrary, the tradition, even in its most blunt formulations, has affirmed that unjust

LAWS are not law. Does not this . . . make clear, beyond reasonable question, that the tradition is not

indulging in ‘a refusal, made once and for all, to recognize evil laws as valid for any purpose’?”)

(alteration in original).

197. See Norman Kretzmann, Lex Iniusta Non Est Lex: Laws on Trial in Aquinas’ Court of

Conscience, 33 AM. J. JURIS. 99, 101 n.5 (1988) (explaining that Hart mischaracterizes Augustine and


198. See Mark Murphy, Natural Law Jurisprudence, 9 LEGAL THEORY 241, 243–44 (2003) (arguing

that the “dominant contemporary understanding of natural law theory,” which is “not drawn from any

reading of natural law theorists themselves, but from Hart,” is deficient in several respects).

199. G.A. Res. 217A (III), supra note 142, art. 1.

200. Hart, The Ascription of Responsibility and Rights, supra note 43.

201. Hart, supra note 52.

202. H.L.A. Hart, Are There Any Natural Rights?, 64 PHIL. REV. 175 (1955).

203. H.L.A. Hart, Legal and Moral Obligation, in ESSAYS IN MORAL PHILOSOPHY 82 (A.I. Melden ed.,


Hart later declined to republish three of these essays, although not for this reason. See HART,

supra note 7, at v (explaining that the main claims of The Ascription of Responsibility and Rights “no

longer seem to me defensible”); cf. LACEY, supra note 2, at 146. See also ESSAYS, supra note 1, at 17

(explaining that the main argument of Are There Any Natural Rights? “seems to me to be mistaken and

my errors not sufficiently illuminating to justify re-printing now”); cf. LACEY, supra note 2, at 169.


completely absent from The Concept of Law.205 In fact, it is not until the late

1970s—three decades after the Universal Declaration was adopted—that the

phrase “human rights” first appears in Hart’s writings.206 We are therefore left

with the following paradox: human rights is “the idea of our time,”207 and yet

the twentieth century’s leading English-language legal philosopher had virtually

nothing to say about them.208

Disappointingly, Lacey does not shed much light on any of these issues.

Although she does a terrific job situating Hart’s intellectual development in the

context of the ordinary language philosophy of the 1940s and early 1950s, her

account of the cross-fertilization that occurred in Hart’s mind between the

philosophy of language and the philosophy of law does not progress much

beyond this point.

The contrast Lacey draws between J. L. Austin and H. P. Grice

in particular her suggestion that Hart would have benefited from taking

“a broader,Wittgensteinian approach” to problems of language and meaning—

has proven controversial, with Thomas Nagel holding that “[t]he idea that

Wittgenstein’s method encourages a more empirical approach than Austin’s is

[false],” and John Gardner arguing that Lacey is mistaken to assume that

Austin’s influence on Hart was more dominant than Wittgenstein’s.


this debate leaves untouched the more interesting and fertile question of Hart’s

attitude toward Universal Grammar, next to which the writings of Austin and

Wittgenstein for all their genuine insight seem more like the dead end of a river

than a source of continued inspiration.


Likewise, Lacey’s account of the debate between natural law and legal

Apparently, Hart also declined to republish Legal and Moral Obligation; however, we am unaware of the

reason for this decision, and Lacey does not address the issue.

As far as we can tell, neither “human rights” nor “natural rights” appears in The Concept of Law.

Arguably, Hart does tacitly invoke human rights when discussing the tendency of some natural law

theorists to equate law and morality. See HART, supra note 5, at 7 (explaining that “law and morals

share a vocabulary so that there are both legal and moral obligations, duties, and rights”). However,

none of the book’s further references to rights appear to refer to human rights. See id. at 53–54, 57–58,


206. See, e.g., H.L.A. Hart, Utilitarianism and Natural Rights, 53 TUL. L. REV. 663, 670–71, 678–80


207. LOUIS HENKIN, THE AGE OF RIGHTS, at ix (1990).

208. See also infra notes 217–19 and accompanying text. In his book on Hart, MacCormick remarks

that “Hart has written very extensively about rights.” MACCORMICK, supra note 10, at 88. However, as

MacCormick’s subsequent discussion makes clear, Hart’s efforts in this regard were directed mainly

toward legal rights. Id. at 88–91.

Furthermore, as MacCormick points out, Hart’s analysis of the

truth-conditions of

X has a right.

in his 1953 inaugural lecture seems to preclude standard uses of

“right” in ordinary moral discourse. Id. at 88–89.

209. LACEY, supra note 2, at 218.

210. Nagel, supra note 15, at 13.

211. Gardner, supra note 2, at 332 (describing Hart’s work as “impeccably late-Wittgensteinian”).

212. Cf. GILBERT RYLE, Review of ‘Symposium on J.L. Austin,’ in 1 COLLECTED PAPERS 272, 273

(1971) (observes that Austin was a “stamp-collector of idioms” who “thought of his own, almost

BOTANICAL (cfr. Grice on linguistic botany) classifications of locution-types much less as contributions to philosophy than as elements for a future Principia Grammatica”); Chomsky, supra note 148, at 280 (observing that “[t]here is a curious

frustration in the attempt to explore Wittgenstein’s thought.

His examples and remarks, often brilliant


positivism is also less than edifying. Both of these schools are described as

competing answers to a single question—what is the source of law’s authority?—

their main difference being that one answer (natural law) is inherently religious

or metaphysical, while the other (legal positivism) conceives of law as “essentially

human.”213 While this may accurately capture how some legal writers,

such as Justice Holmes,214 have sought to distinguish these schools, such a

description seems little more than a misleading caricature. On any historically

accurate account, what is central to the traditional debate between natural law

and legal positivism is an empirical proposition about the essential properties of

the human mind, which virtually all of the classical natural lawyers affirmed,

but which Bentham and Austin vigorously denied.

Regrettably, Lacey simply

ignores this issue.

Finally, the information one is able to glean from Lacey’s book on Hart’s

attitude toward human rights is also meager and unsatisfying.

We learn that Hart

regularly lectured on rights and duties from 1953 to 1966, but little is said of the

substance of those lectures. Lacey merely observes that they “not only encompassed

the close analysis of legal concepts but also demonstrated his continued

identification as a philosopher, his persisting interest in moral and political

philosophy, and his belief in the relationship between analytic and normative,

prescriptive strands in philosophy.”216 Lacey does briefly discuss the thesis of

Hart’s 1955 paper, Are There Any Natural Rights?—the conditional argument

“that if there are any moral rights at all, it follows that there is at least one

natural right, the equal right of all men to be free”217—which she generously

describes as “distinctly more radical in 1955 than it would [look] today,”218 but

surely this is a lapse into hagiography. It was not radical, but timid, for Hart to

and perceptive, lead right to the border of the deepest problems, at which point he stops short and

insists that the philosopher can go no further”).

213. See LACEY, supra note 2, at 224 (“Rejecting the ‘natural law’ idea that law derives its authority

from God, or from some metaphysical conception of nature or reason, Bentham and Austin argued that

law is essentially human: it is a command issued by a political superior or sovereign, to whom the

populace is in a habit of obedience.”); see also id. at 4.

214. See, e.g., S. Pac. Co. v. Jensen, 244 U.S. 205, 222 (1917) (Holmes, J., dissenting) (“The

common law is not a brooding omnipresence in the sky, but the articulate voice of some sovereign or

quasi-sovereign that can be identified . . . .”). Cf. O.W. Holmes, Jr., The Path of the Law, 10 HARV. L.

REV. 457, 457, 461 (1897) (“When we study law we are not studying a mystery but a well known

profession . . . . The prophecies of what the courts will do in fact, and nothing more pretentious, is what

I mean by the law.”).

215. See generally supra notes 168 and 195; see also infra notes 238–39 and accompanying text.

216. See LACEY, supra note 2, at 168–69. According to Honore´,

Hart was never willing to publish his lectures on rights.

While he rejected the view of Austin

and Bentham that only law could create rights, he was not satisfied with Mill’s attempt to put

moral rights on a utilitarian foundation and did not see how to provide an alternative. So,

while dismissive of Dworkin’s free-wheeling use of the notion of moral right, he was

uncertain what to substitute.

Honore´, supra note 45, at 303.

217. Hart, supra note 202, at 175.

218. See LACEY, supra note 2, at 169.

defend this thesis in 1955, seven years after the adoption of the Universal

Declaration, with its notably concrete and expansive list of fundamental human

rights, including freedom from torture or cruel, inhuman or degrading treatment

(Article 5); freedom from arbitrary arrest, detention, or exile (Article 9); the

right to a fair, public, and impartial trial (Article 10); the presumption of

innocence and immunity from retroactive punishment (Article 11); the right to

marry and to found a family (Article 16); freedom of thought, conscience, and

religion (Article 18); freedom of opinion and expression (Article 19); freedom

of peaceful assembly and association (Article 20); the right to just and favorable

working conditions, including a living wage, unemployment benefits, and equal

pay for equal work (Article 23); the right to a standard of living adequate to the

health and well-being of oneself and one’s family (Article 25); the right to

education (Article 26); and the right to participate in the cultural and scientific

life of one’s community (Article 27).219 In light of all this, one is left wondering

whether in spite of, or perhaps even because of, instruments like the Universal

Declaration, with its unmistakable natural law overtones, Hart was simply

skeptical of human rights at the time, as both his early papers and his overall

commitment to legal positivism would seem to imply.


What explains the puzzle we have uncovered?

Why did Hart devote so little

attention to the modern revival of Universal Grammar and the cognitive revolution

it helped inspire? Why did he write so little on the analogy between

grammar and jurisprudence, the moral grammar hypothesis, or the foundation of

human rights? Questions like these are too complex to resolve adequately

here,220 but the following partial and provisional explanation seems plausible. I

offer it here as a tentative hypothesis, with the hope and expectation that others

will modify and improve on it.

Hart’s rise to prominence at Oxford initiated a new phase of legal theory that

shifted the focus of Anglo-American jurisprudence away from historical, doctrinal,

and empirical inquiries toward analytic philosophy.

Although Hart described

this process as selling just a little philosophy to the lawyers, one

of Lacey’s many achievements is to reveal that the converse is also true, that

one of Hart’s primary accomplishments was selling law to the philosophers,

219. Cf. Hart, supra note 202, at 176 (observing that the thesis of his paper “is not as ambitious as

the traditional theories of natural rights” and may appear “meager” in many respects).


For example, it is impossible to determine here whether Hart’s unpublished writings might call

into question one or more arguments of this Essay, certainly a distinct possibility that should be kept in

mind. See LACEY, supra note 2, at 145 (“Throughout his career, Hart wrote vastly more than he

published: he would only release for publication work which satisfied his exceptionally high standards

of rigour, insight, and clarity.”); see also Honore´, supra note 216.

221. See generally LACEY, supra note 2, at 151, 155–78.


thereby transforming the discipline of analytic philosophy itself.

The context

in which Hart did so was ordinary language philosophy, a highly insular

movement which was “crying out for someone with insight into the social

practices within which linguistic usage develops.

Drawing on his background

as a lawyer, Hart imported a much-needed practical sensibility into this

movement at a time that it risked becoming stale and complacent.

He also

exerted a powerful influence on his students and colleagues, including J. L. Austin,

which has not always been fully appreciated.

Hart’s early efforts at applying the techniques of analytic philosophy to

jurisprudence were somewhat shaky, but he hit his stride by the late 1950s. The

books and articles he published during his most productive period, roughly

1957–1964, comprise a truly remarkable body of work, including what may be

the best book on causation and the best short introduction to legal philosophy

ever written. During this period, Hart also became a justly admired public

intellectual, championing gay rights (among other liberal causes) at a time when

such rights were not yet a significant part of public consciousness. His forceful

response to Devlin’s facile attempt to equate the legal suppression of homosexuality

with that of treason not only became “the nearest thing to a manifesto for

the homosexual law reform movement,”225 but also constituted a major event in

the development of a liberal democratic culture in Great Britain, Canada, the

United States, and elsewhere.226 It is probably no exaggeration to suggest that a

direct line can be drawn from Hart’s vigorous defense of sexual freedom in

Immorality and Treason and Law, Liberty, and Morality, the latter a true

landmark of political liberalism which grew out of the Hart-Devlin debate, to

cases such as Lawrence v. Texas, which struck down laws criminalizing intimate

homosexual conduct because, inter alia, “the fact that the governing majority in

a State has traditionally viewed a particular practice as immoral is not a

222. See, e.g., LACEY, supra note 2, at 144–45; accord MACCORMICK, supra note 10, at 16 (Hart

recognized “lawyers’ practices as highly significant for philosophy”); Honore´, supra note 45, at 300

(Hart “introduced to philosophers the legal notion of defeasibility”)

Nagel, supra note 15, at 12 (“Hart

was the founder of jurisprudence as a field for analytic philosophy in the second half of the twentieth

century.”); Schauer, supra note 19, at 858 (“Anglo-American analytic philosophy before Hart was not

particularly concerned about law”).

223. LACEY, supra note 2, at 145.

224. See id. (discussing Hart’s influence on Austin’s A Plea for Excuses); MACCORMICK, supra note

10, at 16 (same); Gardner, supra note 2, at 332 (suggesting that “Austin’s ‘theory of speech-acts owed

more to Hart than Hart owed to him’”) (quoting Honore´); cf. H.L.A. Hart, John Langshaw Austin, in

DICTIONARY OF NATIONAL BIOGRAPHY 1951–1960, at 46, 47 (E.T. Williams & Helen M. Palmer eds.,

1971) (describing Austin as “the most powerful single influence on the development of philosophy in

Oxford” from 1946 to 1960). Note that Gardner is mistaken to imply that Hart was one of Austin’s

younger colleagues, Gardner, supra note 2, at 332, since Austin was born in 1911 and Hart in 1907.

By contrast, Ryle was born in 1900, making him 45 years old when Hart returned to Oxford in 1945 at

the age of 38, while Austin was only 34 at the time.

225. LACEY, supra note 2, at 2, 221.

226. Id.; see also MACCORMICK, supra note 10, at 8–10.


sufficient reason for upholding a law prohibiting the practice.”227 As some

notably repressive post-Lawrence decisions illustrate, Hart’s spirited defense of

liberalism remains pertinent even today.228

By the time Hart accomplished all of this, however, the bulk of his creative

energies had been spent. As Lacey observes, one “cannot disguise a certain

deceleration in Herbert’s intellectual creativity in the second half of the 1960s.”229

This of course is just when Chomsky’s ideas began to attract widespread

attention and the new field of cognitive science began to take hold. By then Hart

was almost sixty years old, and although he remained active for the next several

decades, it seems clear in retrospect that a sustained engagement with a new

paradigm was more effort than Hart could muster. Additionally, there are those

features of Hart’s biography which Lacey brings to our attention.

Hart’s training

was classical rather than scientific.

He was a late returner to philosophy who

was notably insecure about his ability to handle the more technical aspects of

the philosophy of language; he came of age intellectually in a highly insular

and homogenous environment, characterized by disdain for the history of

philosophy and the almost cult-like dominance of a few intimidating personalities;

232 and finally, throughout his career Hart strongly resisted the idea that

philosophy might become empirical or test its basic assertions about language

and thought experimentally.233

All of these factors help to explain Hart’s failure

to engage productively with the best linguistics and cognitive science of his day.

Hart’s attitude toward the moral grammar hypothesis is more complex, but

many of the same factors seem to be involved.

To begin with, Hart’s familiarity

227. Lawrence v. Texas, 539 U.S. 558, 577 (2003) (quoting Bowers v. Hardwick, 478 U.S. 186, 216

(1986) (Stevens, J., dissenting); cf. Bowers, 478 U.S. at 212 (Blackmun, J., dissenting) (“Reasonable

people may differ about whether particular sexual acts are moral or immoral, but ‘we have ample

evidence for believing that people will not abandon morality, will not think any better of murder,

cruelty and dishonesty, merely because some private sexual practice which they abominate is not

punished by the law.’ ”) (quoting Hart, Immorality and Treason, reprinted in THE PHILOSOPHY OF LAW,

supra note 55, at 86).

228. See, e.g., Lofton v. Sec’y of Fla. Dep’t of Children & Family Servs., 377 F.3d 1275 (11th Cir.

2004) (denial of reh’g en banc) (upholding FLA. STAT. § 63.042(3) (2002), which provides that “[n]o

person eligible to adopt under this statute may adopt if that person is a homosexual”); see also Williams

v. Attorney Gen. of Ala., 378 F.3d 1232 (11th Cir. 2004) (upholding an Alabama statute prohibiting the

commercial distribution of any device primarily used for the stimulation of human genitals). But see

Lofton, 377 F.3d at 1291 (Barkett, J., dissenting) (arguing that Florida’s ban on homosexual adoption is

unconstitutional because, inter alia, it “condition[s] access to the statutory privilege of adoption on

surrender of the right to engage in private intimate sexual conduct protected by Lawrence”); Williams,

378 F. 3d at 1250 (Barkett, J., dissenting) (“The majority’s decision rests on the erroneous foundation

that there is no substantive due process right to adult consensual sexual intimacy in the home and

erroneously assumes that the promotion of public morality provides a rational basis to criminally

burden such private intimate activity.”).

229. LACEY, supra note 2, at 281, 283, 297, 326.

230. Id. at 136–37.

231. Id. at 115, 143.

232. See id. at 132–36, 138–44.

233. Id. at 260–62.


with the history of philosophy appears to have been rather limited.234 Most of

the authors he appears to have studied extensively were British empiricists,235

who rejected appeals to innate moral knowledge, often on rather dubious

epistemological grounds.

Additionally, throughout his career Hart was surrounded

by an intellectual culture that was deeply skeptical of appeals to

conscience, the moral sense, the sense of justice, and other allegedly mysterious

entities. Indeed, largely due to their commitment to empiricism, behaviorism,

historicism, or other theoretical doctrines predicated on denying the existence of

innate mental structures, many of the authors Hart read or was influenced by

sought to delegitimize these concepts, or simply rejected them out of hand.237

234. See, e.g., id. at 141–42; see also FINNIS, supra note 196; Kretzmann, supra note 197; Cristobal

Orrego, H.L.A. Hart’s Understanding of Classical Natural Law Theory, 24 OXFORD J. LEG. STUD. 287,

287 (“Hart misunderstood classical natural law theory in such a way that it warranted the suspicion that

he did not have a first hand acquaintance with that theory”); Twining, supra note 49, at 579 (“Hart has

never claimed to be primarily an historian of ideas.”); cf. H.L.A. Hart, Book Review, 77 LAW Q. REV.


(1959)) (expressing surprise “at the amount and difficulty of the philosophy which Professor Lloyd

expects his students to absorb” and explaining “I have never dared to do more overt philosophy than

expound Aristotle on justice, Hobbes and Hume on the nastiness of life without law, and parts of

Aquinas on natural law”).

235. Cf. LACEY, supra note 2, at 141–42 (noting that Oxford linguistic philosophy was characterized

by a process of “casting off the historical, political, and metaphysical baggage of continental traditions

. . . and constructing an indigenous, English, no-nonsense, post-war philosophy.

T]here was a

feeling that much of what had gone before in philosophy was ‘nonsense’: ‘they had won the war, got rid

of the evil people, and didn’t need to learn anything from earlier traditions’.”); id. at 142 (“Only the

so-called English Empiricists—Locke, Berkeley, Hobbes, Hume, and Mill (as well as, to some extent,

Kant)—appear to have engaged the enthusiasm of the linguistic philosophers”).

236. See, e.g., THOMAS HOBBES, LEVIATHAN 188 (C.B. MacPherson ed., Viking Penguin 1985) (1651)

(“Justice, and Injustice are none of the Faculties neither of the Body, nor Mind. If they were, they might

be in a man that were alone in the world, as well as his Senses, and Passions. They are Qualities, that

relate to men in Society, not Solitude.”); JOHN LOCKE, AN ESSAY CONCERNING HUMAN UNDERSTANDING

65–84 (Peter H. Nidditch ed., Oxford Univ. Press 1975) (1689) (rejecting the existence of innate

practical principles because, inter alia, there are no moral principles which command universal assent,

many people violate basic principles without remorse, and no such principles are available to introspection);

JOHN LOCKE, ESSAYS ON THE LAW OF NATURE 136–45 (W. von Leyden ed., Oxford Univ. Press

1954) (1660) (same); cf. AUSTIN, supra note 193, at 81–90 (attacking the hypothesis of a moral sense on

these and similar grounds).


(“The moral sense theory . . . claim[s] that we have a special moral sense . . . which enables us to see

the rightness or wrongness of certain sorts of action. The absolutely fatal objection to this view is that

there is no such moral sense . . . . There is no part of a man’s body whose removal or injury would

specifically affect his knowledge of the rightness or wrongness of certain types or courses of action . . . .”);

R.M. HARE, THE LANGUAGE OF MORALS 77 (Galaxy Book 1964) (1952) (explaining that “our consciences

are the product of the principles which our early training has indelibly planted in us” and

therefore an unreliable basis from which to make ethical decisions); MACKIE, supra note 98, at 38–42

(rejecting the existence of a “faculty of moral perception or intuition” because it would be at odds with

empiricist theories of knowledge acquisition, hence epistemologically “queer”); RYLE, supra note 123,

at 315–16 (describing “moral knowledge” as a “strained phrase” and the idea of an innate moral sense

or conscience as a “nursery myth”); JULIUS STONE, HUMAN LAW AND HUMAN JUSTICE 213–16 (1965)

(distancing himself from the sense of justice with scare quotes and arguing that its usefulness as a guide

to moral problems is limited); see also A.J. AYER, LANGUAGE, TRUTH, AND LOGIC 104–09, 108 (1946)

(supplying the classical logical positivist articulation of noncognitivism by holding that “sentences


Moreover, for most of his life, Hart clung firmly to the belief that legal

positivism and utilitarianism were morally progressive doctrines and that natural

law and common morality were inherently conservative. Indeed, it seems

likely that Hart was inclined to follow Bentham and Austin in assuming that any

appeal to the conscience or moral sense of the community in the context of a

legal or policy dispute was likely to be a mask for ignorance or prejudice.

Austin put the matter thus:

And as for the moral sense, innate practical principles, conscience they are

merely convenient cloaks for ignorance or sinister interest: they mean either

that I hate the law to which I object and cannot tell why, or that I hate the law,

and that the cause of my hatred is one which I find it incommodious to


This merely distilled Bentham’s memorable footnote in the second chapter of

An Introduction to the Principles of Morals and Legislation, in which Bentham

collected all of the “contrivances” previous British writers had used to reaffirm

the moral grammar hypothesis after Hobbes’ influential attack on it and held

that “[t]he mischief common to all these ways of thinking and arguing (which,

in truth . . . are but one and the same method, couched in different forms of

words) is their serving as a cloak, and pretence, and aliment, to despotism.”239

which simply express moral judgments do not say anything. They are pure expressions of feeling and as

such do not come under the category of truth and falsehood”); SIGMUND FREUD, CIVILIZATION AND ITS

DISCONTENTS 51–70 (Joan Riviere trans., Dover Publications 1994) (1930) (explaining conscience as the

function of a super-ego which originates in the internalization of instinctual aggression); cf. ALASDAIR

MACINTYRE, AFTER VIRTUE: A STUDY IN MORAL THEORY 67 (Univ. of Notre Dame Press 1981) (arguing

that human rights are “fictions” and “belief in them is one with belief in witches and in unicorns”);

WILLIAMS, supra note 189, at 94 (arguing that the hypothesis of a faculty of moral intuition “has been

demolished by a succession of critics, and the ruins of it that remain above ground are not impressive

enough to invite much history of what happened to it”); Richard Rorty, The Priority of Democracy to

Philosophy, in PROSPECTS FOR A COMMON MORALITY 254, 255 (Gene Outka & John P. Reeder, Jr. eds.,

1993) (“Contemporary intellectuals have given up the Enlightenment assumption that religion, myth,

and tradition can be opposed to something ahistorical, something common to all human beings qua

human. . . . The result is to erase the picture of the self common to Greek metaphysics, Christian

theology, and Enlightenment rationalism: the picture of an ahistorical natural center, the locus of human

dignity, surrounded by an adventitious and inessential periphery.”). Rawls was a notable exception to

this pattern. See, e.g., RAWLS, supra note 95, at 45–52; John Rawls, The Sense of Justice, 72 PHIL. REV.

281 (1963). Hence it is perhaps not surprising that his proposals to organize moral theory around

describing the sense of justice met with such strong resistance.

238. AUSTIN, supra note 193, at 159.

239. BENTHAM, supra note 67, at 28 n.d. Bentham wrote:

It is curious enough to observe the variety of inventions men have hit upon, and the variety of

phrases they have brought forward, in order to conceal from the world, and, if possible, from

themselves, this very general and therefore very pardonable self-sufficiency.

1. One man (Lord Shaftesbury, Hutchinson, Hume, etc.) says, he has a thing made on

purpose to tell him what is right and what is wrong; and that it is called a moral sense: and

then he goes to work at his ease, and says, such a thing is right, and such a thing is

wrong—why? ‘because my moral sense tells me it is’.

2. Another man (Dr. Beattie) comes and alters the phrase: leaving out moral, and putting in


Furthermore, Hart had at least two additional reasons for being skeptical of

hortatory appeals to conscience and common morality. First, the Holocaust:

where was conscience when the most vicious mass murder machine in history

was unleashed on defenseless Jews? Second, his debate with Devlin: why

embrace a “common morality” which apparently lends itself so easily to the

legal enforcement of homophobia?240 Both of these arguments still resonate

common . . . . He then tells you, that his common sense teaches him what is right and wrong,

as surely as the other’s moral sense did: meaning by common sense, a sense of some kind or

other, which, he says, is possessed by all mankind: the sense of those, whose sense is not the

same as the author’s, being struck out of the account as not worth taking. This contrivance

does better than the other; for a moral sense, being a new thing, a man may feel about him a

good while without being able to find it out: but common sense is as old as the creation; and

there is no man but would be ashamed to be thought not to have as much of it as his

neighbours . . . .

3. Another man (Dr. Price) comes, and says, that as to a moral sense indeed, he cannot find

that he has any such thing: that however he has an understanding, which will do quite as well.

This understanding, he says, is the standard of right and wrong: it tells him so and so. All good

and wise men understand as he does: if other men’s understandings differ in any point from

his, so much the worse for them: it is a sure sign they are either defective or corrupt.

4. Another man says, that there is an eternal and immutable Rule of Right: that that rule of

right dictates so and so: and then he begins giving you his sentiments upon anything that

comes uppermost: and these sentiments (you are to take for granted) are so many branches of

the eternal rule of right.

5. Another man (Dr. Clark), or perhaps the same man (it’s no matter) says, that there are

certain practices conformable, and others repugnant, to the Fitness of Things; and then he tells

you, at his leisure, what practices are conformable and what repugnant: just as he happens to

like a practice or dislike it.

6. A great multitude of people are continually talking about the Law of Nature; and then

they go on giving you their sentiments about what is right and what is wrong: and these

sentiments, you are to understand, are so many chapters and sections of the Law of Nature.

7. Instead of the phrase, Law of Nature, you have sometimes, Law of Reason, Right

Reason, Natural Justice, Natural Equity, Good Order. Any of them will do equally well.

. . .

The mischief common to all these ways of thinking and arguing (which, in truth, as we have

seen, are but one and the same method, couched in different forms of words) is their serving

as a cloak, and pretence, and aliment, to despotism: if not a despotism in practice, a despotism

however in disposition: which is but too apt, when pretence and power offer, to show itself in


Id. at 26 n.d (footnotes omitted).

240. See, e.g., DEVLIN, supra note 55, at 10 (“[S]ociety is not something that is kept together

physically; it is held by the invisible bonds of common thought . . . . A common morality is part of the

bondage.”); id. at 13 (“There is disintegration when no common morality is observed and history shows

that the loosening of moral bonds is often the first stage of disintegration, so that society is justified in

taking the same steps to preserve its moral code as it does to preserve its government and other

essential institutions.”); id. at 15 (equating law with a “‘practical morality’, which is based . . . ‘in the

mass of continuous experience half-consciously or unconsciously accumulated and embodied in the

morality of common sense’”). Recall Hart’s trenchant reply:

For [Devlin] a practice is immoral if the thought of it makes the man on the Clapham omnibus

sick. So be it. Still, why should we not summon all the resources of our reason, sympathetic

understanding, as well as critical intelligence, and insist that before general moral feeling is

turned into criminal law it is submitted to scrutiny of a different kind from Sir Patrick’s?

Surely the legislator should ask whether the general morality is based on ignorance, supersti-


today, and it is perhaps considerations like these more than anything else that

explains Hart’s decision to align himself with legal positivism just as the seeds

of a global, anti-positivist human rights revolution were being sown. Surely this

is understandable at some level: after the nightmare of the Holocaust, in the face

of so much ongoing racism, sexism, militarism, and homophobia, who is really

prepared to confidently answer Freud’s question: “Homo homini lupus;241 who

has the courage to dispute it in the face of all the evidence in his own life and in

history?”242 Dworkin is probably correct, therefore, that Hart simply despaired

of finding any great truth about human nature that could generate concrete

theories of justice or human rights.243

Hart’s conviction that utilitarianism and legal positivism were morally progressive

doctrines and his related discomfort with natural law were clearly major

factors in his approach to The Concept of Law. On this point, a key text which

has not yet received adequate attention (and which Lacey inexplicably ignores)

is Goodhart’s slim but stimulating volume, English Law and the Moral Law.244

Here in a nutshell one finds many of the same ideas for which Hart later became

famous, including the critique of Austin, the variety of laws, the distinction

between being obliged and being obligated, the rule of recognition, the gunman

situation, and others.245 Although one cannot be certain, Hart’s primary objection,

or misunderstanding . . . . To any theory which, like this one, asserts that the criminal law

may be used on the vague ground that the preservation of morality is essential to society and

yet omits to stress the need for critical scrutiny, our reply should be: “Morality, what crimes

may be committed in thy name!”

Hart, Immorality and Treason, supra note 55, at 87.

241. “Man is to man a wolf.” FREUD, supra note 237, at 40.

242. Id.

243. See Ronald Dworkin, Speech at the Memorial Ceremony for Herbert Hart (Feb. 6, 1993),

excerpted in HART, ASK ME NO MORE, supra note 39, at 213, 214.



245. See, e.g., id. at 12 (“The attraction of the command theory lies in the fact that it is a not

inaccurate description of the typical English statute. A statute appears to be a command by a superior,

the Queen-in-Parliament, to inferiors, the Queen’s subjects, which will be enforced by a sanction if they

fail to obey it. Even this is true only of penal law where there may be said to be a direct command to

the subject. It is difficult to find a command and a sanction in ordinary civil law. Thus there is no

command addressed to a testator requiring him to make a will in a particular form because he is free to

make a will or not as he chooses.”); id. at 13 (“[T]he moment we go beyond the ordinary civil law we

can see the total inadequacy of this interpretation of law. It leaves out the most important part of State

law, i.e., constitutional law. It is obvious that the corner-stone of the English legal system is the

obedience that is paid to the Queen-in-Parliament, but this cannot have been commanded by anyone.

The structure and the authority of Parliament are based on a collection of ancient and modern rules

which, taken together, constitute the constitution, but they are based on recognition and not on a

non-existent command.”); id.

The American constitution, which is the most important single legal

document in the history of the world, clearly was not commanded . . . , and it continues to exist not by

force, but by general recognition.

id. at 19 (“Austin found the key to the science of jurisprudence in

the word command: I suggest that a more correct view is to find it in the word obligation. I should

therefore define law as any rule of human conduct which is recognized as being obligatory. It is

distinguished from a purely voluntary rule of human conduct which is followed for its own sake: thus if

a man always puts on an overcoat in the winter to avoid the cold he is not following this course of


tive in writing The Concept of Law was probably to produce an accessible

student text which conceded the main criticisms of positivism Goodhart had

made but which denied the conclusions he drew about the dependence of legal

obligation on “an objective moral law.”

However, while Hart succeeded

brilliantly in this endeavor, his success came at a heavy cost because the

emphasis he placed on the separation of law and morals led him to simplify and

distort the natural law tradition in ways that now seem painfully obvious. It also

led him to evade some difficult conceptual barriers to reconciling legal positivism

with the idea of human rights, such as what to do with the mala in se/mala

prohibita distinction. Human rights and inherent wrongs are opposite sides of a

coin; each implies the other. Yet legal positivists were unwavering in their

rejection of the mala in se/mala prohibita distinction,247 while conservative

jurists like Devlin were quite prepared to draw upon the distinction to support or

at least tolerate the legal regulation of homosexuality and other allegedly

conduct because of any sense of obligation.”); id. at 19–20 (“It is essential to draw a clear distinction

between obedience to an order or a rule and recognition that the order or rule is obligatory, i.e., that the

order or rule ought to be obeyed. We may obey an order solely because we fear that if we do not do so

we shall incur an evil. In such a case we are reacting to naked force, and we shall seek to avoid

obedience if that is possible. We have no conative feeling: no sense that we are under a duty of any

nature. On the other hand, if we recognize that a rule is obligatory our reaction will be entirely

different. It is true that we may refuse to perform our obligation . . . , but nevertheless the feeling of

oughtness will remain.”); id. at 20 (“Let me give you one illustration to make my point. A gangster

enters a bank, and orders, at the point of his gun, all the persons there to raise their hands. A police

constable, who is present, calls on them, as he is entitled to do under the common law, to assist him in

arresting the gangster.

Why do we regard the gangster’s order as an arbitrary command and the police

constable’s order as a legal one?

The answer obviously does not depend on any sanction, because the

sanction behind the gangster’s order is far more powerful than is any which the law can apply.”).

246. Id. at 30; see, e.g., Sugarman, supra note 121, at 281 (“SUGARMAN: What were the origins of

The Concept of Law? HART: “The essential doctrine is contained in my Harvard lecture. . . . All of a

sudden I felt tremendously antipathetic to rather, as it seemed to me, sentimental views of the

connection between law and morality.

Goodhart had it, all sorts of people have it, and it could be given

a natural law basis. And I’ve possibly gone over the deep end too much. I said ‘no separation; they’re

conceptually distinct’, except at various points, which I mention.”) (alteration in original); Hart, supra

note 203, at 89 (linking Goodhart with the view that “at the root of every legal system is a general

recognition of a moral obligation to obey the law so that there is a necessary or analytic connection and

not merely an empirical one between the statement that a legal system exists and the statement that

most of the population recognizes a moral obligation to obey the law” and citing GOODHART, supra note

244, at 18, 28); cf. Morton J. Horwitz, Why is Anglo-American Jurisprudence Unhistorical?, 17 OXFORD

J. LEGAL STUD. 551, 581 (1997) (suggesting that the appeal of positivism for secular Jews like Hart and

Kelsen was its serving “as a counterweight to religiously grounded legal systems derived from natural

law”); id. at 582 (“It was precisely his fear of the incorporation of religious norms into positive law that

led Hart to wish to separate law and morality.”).

247. See, e.g., HANS KELSEN, GENERAL THEORY OF LAW AND STATE 52–53 (Anders Weberg trans.,

Harvard Univ. Press 1945) (1925) (“There are no mala in se, there are only mala prohibita, for a

behavior is malum only if it is prohibitum . . . . These principles are the expression of legal positivism

in the field of criminal law . . . .”); see also AUSTIN, supra note 193, at 92; 2 JOHN AUSTIN, LECTURES ON

JURISPRUDENCE 264 (Burt Franklin 1970) (1861); BENTHAM, supra note 68, at 28–33, 63–68, 79–89,

374–89; 1 JEREMY BENTHAM, The Influence of Time and Place in Matters of Legislation, in WORKS,

supra note 136, at 171, 192–93; cf. Morissette v. United States, 342 U.S. 246, 260 (1952) (drawing on

the mala in se/mala prohibita distinction to read a specific intent element into a federal statute

prohibiting the conversion of government property).


“immoral” conduct.248 This is the dilemma which, in retrospect, one can see

Hart wrestling with at various times throughout his career, beginning in the

mid-1950s, yet which he arguably never squarely resolved.

Finally, Hart’s

emphasis on the separation thesis led him to neglect and sometimes distort the

historical record of legal positivism itself, thereby making his jurisprudence

vulnerable to the charge of being unhistorical.250 There are many telling illustrations

of this point, such as the fact that Hart never wrote anything about Erie

and its progeny, surely a surprising characteristic of one of the century’s leading

positivists.251 However, nowhere is the unhistorical and politically detached

character of Hart’s jurisprudence more apparent than in his unfortunate tendency

to overlook or minimize some rather significant distinctions between

Bentham and Austin.

Bentham was an atheist and a political radical.252 He condemned the corruption

and chicanery of the English bar; waged ceaseless war on irrational

privileges based on sex, wealth, race, and creed; and lit the fire that resulted in

the historic Reform Bill of 1832.253 He was a fierce opponent of slavery,254 a

harsh critic of colonialism,255 and an outspoken if belated proponent of universal

suffrage.256 He conceived of the principle of utility as a rational, secular

measure of right and wrong, and his prodigious philosophical energies were

248. See, e.g., DEVLIN, supra note 55, at 16–18; cf. Lawrence v. Texas, 539 U.S. 558, 589 (Scalia, J.,

dissenting) (“Countless judicial decisions and legislative enactments have relied on the ancient proposition

that a governing majority’s belief that certain sexual behavior is ‘immoral and unacceptable’

constitutes a rational basis for regulation.”); Barnes v. Glen Theatre, Inc., 501 U.S. 560, 575 (1991)

(Scalia, J., concurring) (“Our society prohibits, and all human societies have prohibited, certain

activities not because they harm others but because they are considered, in the traditional phrase,

‘contra bonos mores,’ i.e., immoral.”).

249. See, e.g., H.L.A. Hart, Blackstone’s Use of the Law of Nature, 3 BUTTERWORTHS S. AFR. L. REV.

169 (1956) (examining Blackstone’s use of the mala in se/mala prohibita distinction); Hart, Are There

Any Natural Rights?, supra note 202; Hart, Legal and Moral Obligation, supra note 203, at 83–84

(suggesting that while “duties and obligations are really at home” in the law, the same vocabulary may

be unsuitable in morals); see also HART, supra note 6 (examining the relation between law and morals);

HART, supra note 5, at 181–207 (same); H.L.A. Hart, Duty, in 4 INTERNATIONAL ENCYCLOPEDIA OF SOCIAL

SCIENCES 320 (David L. Sills ed., 1968) (explaining the concept of duty without reference to natural

duties); Hart, Rawls on Liberty and Its Priority, supra note 95, at 231–32, 240–41 (expressing concern

over the implications of Rawls’ account of natural duties for sexual freedom and other liberties); Hart,

Social Solidarity and the Enforcement of Morality, supra note 55, at 5–13 (analyzing the legal

enforcement of morality in the light of Durkheim’s notion of a “collective conscience”).

250. See generally Horwitz, supra note 246; see also TWINING, supra note 176, at 47–49.

251. See Erie R.R. v. Tompkins, 304 U.S. 64, 78–80 (1938) (drawing on a positivist conception of

law to deny the existence of federal general common law). But see Goldsmith and Walt, supra note 194

(challenging the conventional wisdom that Erie relies on a commitment to legal positivism).


Crimmins, Bentham on Religion: Atheism and the Secular Society, 47 J. HIST. IDEAS 95 (1986).

253. On Bentham’s life and influence, see generally HALEVY, supra note 252; MARY P. MACK, JEREMY

BENTHAM: AN ODYSSEY OF IDEAS, 1748–1792 (1962); JOHN STUART MILL, BENTHAM (1838), reprinted in

MILL ON BENTHAM AND COLERIDGE 39 (F.R. Leavis ed., 1983). On Bentham’s jurisprudence, see


254. See, e.g., HART, ESSAYS ON BENTHAM, supra note 70, at 72–73.

255. See, e.g., JEREMY BENTHAM, Emancipate Your Colonies!, in 4 WORKS, supra note 136, at 408.

256. See, e.g., HART, ESSAYS ON BENTHAM, supra note 70, at 70.


undoubtedly directed toward the genuine improvement of human welfare. For

example, when Bentham wrote of those “whose care it has been to pluck the

mask of Mystery from the face of Jurisprudence,”257 he was not referring to

something abstruse or theoretical, but simple and practical: parliamentary reforms

requiring courts of law to record their proceedings in English rather than

Law-Latin, so that the public, whose liberties were at stake, could actually

understand them.258

By contrast, Austin was a religious and political conservative whose opposition

to liberalism earned him a reputation as “a retrograde or backsliding

257. BENTHAM, supra note 68, at 410.

258. Id. In one of his many trenchant criticisms of Blackstone, Bentham wrote:

It is from the decisions of Courts of Justice that those rules of Law are framed, on the

knowledge of which depend the life, the fortune, the liberty of every man in the nation. Of

these decisions the Records are, according to our Author [i.e., Blackstone] (I Comm. 71) the

most authentic histories. These Records were, till within these five-and-forty years, in

Law-Latin: a language which, upon a high computation, about one man in a thousand used to

fancy himself to understand. In this Law-Latin it is that our Author is satisfied they should

have been continued . . . . He gives us to understand that, taking it altogether, there could be

no room to complain of it, seeing it was not more unintelligible than the jargon of the

schoolmen, some passages of which he instances; and then he goes on, “This technical Latin

continued in use from the time of its first introduction till the subversion of our ancient

constitution under Cromwell; when, among many other innovations on the body of the Law,

some for the better and some for the worse, the language of our Records was altered and

turned into English. But at the Restoration of King Charles, this novelty was no longer

countenanced; the practisers finding it very difficult to express themselves so concisely or

significantly in any other language but the Latin. And thus it continued without any sensible

inconvenience till about the year 1730, when it was again thought proper that the Proceedings

at Law should be done into English, and it was accordingly so ordered by statute 4 Geo. II. c.


“This was done (continues our Author) in order that the common people might have

knowledge and understanding of what was alleged or done for and against them in the process

and pleadings, the judgment and entries in a cause. Which purpose I know not how well it has

answered; but am apt to suspect that the people are now, after many years’ experience,

altogether as ignorant in matters of law as before.”

In this scornful passage the words noveltydone into English—apt to suspectaltogether

as ignorant—sufficiently speak the affection of the mind that dictated it. It is thus that our

Author chuckles over the supposed defeat of the Legislature with a fond exultation which all

his discretion could not persuade him to suppress.

The case is this. A large portion of the body of the Law was, by the bigotry or the artifice of

Lawyers, locked up in an illegible character, and in a foreign tongue. The statute he mentions

obliged them to give up their hieroglyphics, and to restore the native language to its rights.

This was doing much; but it was not doing every thing. Fiction, tautology, technicality,

circuity, irregularity, inconsistency remain. But above all the pestilential breath of Fiction

poisons the sense of every instrument it comes near.

The consequence is, that the Law, and especially that part of it which comes under the topic

of Procedure, still wants much of being generally intelligible. The fault then of the Legislature

is their not having done enough. His quarrel with them is for having done any thing at all. In

doing what they did, they set up a light, which, obscured by remaining clouds, is still but too

apt to prove an ignis fatuus: our Author, instead of calling for those clouds to be removed,

deprecates all light, and pleads for total darkness.

Id. at 410–11 n.r (quoting WILLIAM BLACKSTONE, 3 COMMENTARIES *322).


Benthamite.”259 He did not think the principle of utility was the basis of a

secular morality, but rather “the index to God’s commands.”260 He was lukewarm

on the abolition of slavery,261 an apologist for British colonialism,262 and

an opponent of universal suffrage on the grounds that “the bulk of the working

people are not yet ready for political power.”263 While Austin supported some

progressive reforms in his youth, by 1859 he stated publicly what he had told

his friends in private many years earlier: that democracy was not only unnecessary,

but also undesirable, because the natural opinions of most working people

were essentially socialist.264

When Hart, therefore, described Bentham and Austin as “the vanguard of a

movement which laboured with passionate intensity and much success to bring

about a better society and better laws”265 and praised them for standing firmly

“for all the principles of liberalism in law and government”;266 when he

credited them with “the most enlightened liberal attitudes”267 and claimed that

their emphasis on the separation of law and morality was motivated mainly by

“the problem posed by the existence of morally evil laws”;268 and when he

insisted that the “the great battle-cries of legal positivism”269 were therefore

directed toward empowering rather than weakening the ability of individuals to

criticize and resist the abuse of official power; his statements were largely

accurate with respect to Bentham but quite dubious with respect to Austin.

(Considering what Austin actually does in connection with the separation thesis

in The Province of Jurisprudence Determined, among his main objectives was

to delegitimize the law of nations, hardly a progressive doctrine either in his day

259. W.L. MORRISON, JOHN AUSTIN 42 (1982).

260. AUSTIN, supra note 193, at 69; see also id. at 41 (describing “the principle of general utility” as

“our only index or guide to [God’s] unrevealed law”).

261. See MORRISON, supra note 259, at 122.


263. JOHN AUSTIN, APLEA FOR THE CONSTITUTION, at vi (London, John Murray 1859).

264. MORRISON, supra note 259, at 123. Austin wrote:

No man, looking attentively at the realities around him, can doubt that a great majority of the

working classes are imbued with principles essentially socialist: that their very natural

opinions on political and economic subjects are partial applications of the premises which are

the groundwork of the socialist theories. They believe, for example, very generally, that the

rate of wages depends on the will of the employers; that the prices of provisions and other

articles of general consumption, depend upon the will of the sellers; that the wealth of the

richer classes is somehow subtracted from their own; and that capital is not an adminicle, but

an antagonist of labour. We might, therefore, expect from a House of Commons representing

the prejudices of the non-proprietary class, a minimum rate of wages, a maximum price of

provisions and other necessaries of life, with numberless other restrictions on the actual

freedom of contracting.

AUSTIN, supra note 263, at 19.

265. Hart, supra note 1, at 52.

266. Id. at 51.

267. Id. at 74.

268. Id. at 73.

269. HART, supra note 5, at 203.


or ours.) Likewise, when Lacey credits the positivism on which Hart built with

“the development of a conception of law appropriate to modern, secular democracies,”

270 her contention merits careful scrutiny. There is little question that

modern secular democracies are predicated on the fundamental moral equality

and dignity of all individuals; on popular sovereignty; on the rule of law (“the

government of law and not of men”); and, above all, on the concept of human

rights. How, if at all, ideas like these can be brought together in one coherent

scheme is of course controversial, but as an historical matter, they unquestionably

owe more to the philosophy of natural law than to legal positivism.271 By

contrast, the legal positivism Hart inherited and sought to revitalize included

(along with many attractive features) the following elements: no acts are wrong

in themselves; conscience and human rights are mere fictions; international law

is not really law; all law emanates from a determinate sovereign, whose power

is incapable of legal limitation. Hart chipped away at many of these notions,272

but he never subjected the epistemological foundations of positivism to wholesale

critical scrutiny, even after the cognitive and human rights revolutions

provided him with powerful reasons to do so. Nor, as far as one can tell, did he

seriously question whether the same philosophical doctrines which for Bentham

had been a key to progressive social reform had become in his own day, under

different circumstances, a legal theory for judicial conservatives.273

270. LACEY, supra note 2, at 4, 224.

271. Cf. GOODHART, supra note 244, at 10–28 (arguing that Austin’s positivism is incompatible with

the rule of law); HENRY SUMNER MAINE, ANCIENT LAW 88–92 (Raymond Firth ed., Beacon Press 1963)

(1861) (discussing the natural law origins of modern democratic ideas); FREDERICK POLLOCK, ESSAYS IN

THE LAW 31–79, 32 (1922) (tracing the “essentially rationalist and progressive” history of natural law

doctrines from Aristotle onward, including their impact on English legal norms of reasonableness,

justice, and equity); see also Dyzenhaus, supra note 31, at 119–20 (arguing that “in the last sixty years

both international and domestic law have been shaped more by Professor’s Radbruch’s intuitions than

by Professor Hart’s”); Schauer, supra note 19, at 865 (noting that lawyers refer to the rule of law in

ways that owe far more to Fuller than to Hart).

272. See, e.g., HART, supra note 5, at 64–69 (criticizing the positivist concept of a legally unlimited

sovereign); id. at 189–95 (rejecting the positivist thesis that “law may have any content” in favor of “a

minimum content of natural law”); id. at 208–31 (affirming the obligatory character of international


273. For some illuminating discussion of this topic, see generally ANTHONY J. SEBOK, LEGAL

POSITIVISM IN AMERICAN JURISPRUDENCE (1998) (tracing the association of positivism and conservatism in

post-war American jurisprudence); Horwitz, supra note 246 (describing the shifting political significance

of legal positivism in English jurisprudence from Bentham to Hart); see also Ronald Dworkin,

Thirty Years On, 115 HARV. L. REV. 1655, 1677–78 (2002) (noting that while jurists like Bentham,

Holmes, Hand, and Brandeis appealed to positivism to support progressive economic and social

legislation, after World War II positivism “was associated no longer with democratic progress, but with

conservative majoritarianism”). Dworkin claims that positivism “is no longer an important force either

in legal practice or in legal education,” id. at 1677, but among other things this contention seems at

odds with the Supreme Court’s recent habeas corpus, qualified immunity, and law of nations jurisprudence.

See, e.g., Richard H. Fallon, Jr. & Daniel J. Meltzer, New Law, Non-Retroactivity, and

Constitutional Remedies, 104 HARV. L. REV. 1731, 1746–53, 1758–64 (1991) (analyzing the positivist

underpinnings of Teague v. Lane, 489 U.S. 288 (1989) (habeas corpus), and Harlow v. Fitzgerald, 457

U.S. 800 (1982) (qualified immunity)); see also Sosa v. Alvarez-Machain, 542 U.S. 692, 724–38 (2004)

(relying on a positivist conception of law to limit the jurisdictional reach of the Alien Tort Statute, 28


Near the end of his career, Hart’s attitudes began to shift, and he began to

voice greater misgivings about Bentham’s philosophical doctrines and to devote

more attention to the foundation of human rights. In one of his last essays, he

wrote movingly of the growth of a global human rights culture and of the

importance of finding sound philosophical arguments in support of it. Surveying

the efforts of Rawls, Nozick, and Dworkin to construct such a theory, Hart

found them to be “in spite of much brilliance still unconvincing,”274 and he

called for a “more radical and detailed consideration”275 of the basis of human

rights and their relation to other values. Hart wrote:

[I]t is plain that a theory of rights is urgently called for. During the last half

century man’s inhumanity to man has been such that the most basic and

elementary freedoms and protections have been denied to innumerable men

and women guilty, if of anything, only of claiming such freedoms and

protections for themselves and others, and sometimes these have been denied

to them on the specious pretence that they are demanded by the general

welfare of society. So the protection of a doctrine of basic human rights

limiting what a state may do to its citizens seems to be precisely what the

political problems of our own age most urgently require . . . . And in fact the

philosophical developments which I have sketched have been accompanied

by a growth, recently accelerated, of an international human rights movement.

Since 1946 when the signatories of the United Nations Charter affirmed their

faith in fundamental human rights and the dignity and worth of the human

person, no state can claim that the denial of such rights to its own citizens is

solely its own business . . . . [T]he conception of basic human rights has

deeply affected the style of diplomacy, the morality and the political ideology

of our time, even though thousands of innocent persons still imprisoned or

oppressed have not yet felt its benefits. The doctrine of human rights has at

least temporarily replaced the doctrine of maximising Utilitarianism as the

prime philosophical inspiration of political and social reform. It remains to be

seen whether it will have as much success as Utilitarianism once had in

changing the practices of governments for human good.276

Hart’s eloquent remarks in this passage serve as an important reminder of

U.S.C. § 1350); id. at 745–46 (Scalia, J., concurring) (arguing that “a new federal common law of

international human rights” should be completely foreclosed because “the creation of post-Erie federal

common law is rooted in a positivist mindset utterly foreign to the American common-law tradition of

the late 18th century”). Of course, none of these observations should be taken to imply that positivism

is inherently conservative, for depending on how it is defined, positivism may have few if any political

implications. See generally Hart, supra note 1; cf. supra note 194. Nor do they imply that natural law

doctrines are “essentially rationalist and progressive.” POLLOCK, supra note 271 (emphasis added).

“ ‘Like a harlot, natural law is at the disposal of everyone. The ideology does not exist that cannot be

defended by an appeal to the law of nature.’ ” H.L.A. Hart, Scandinavian Realism, in ESSAYS, supra

note 1, at 163 (quoting ALF ROSS, ON LAW AND JUSTICE (1958)).

274. Hart, supra note 206, at 679.

275. Id.

276. Id. at 679–80.


difficult political and legal challenges which have not yet been met. Yet they

also remind us of some crucial limitations of Hart’s own approach to human

rights, which he never managed to transcend over the course of his illustrious

career. Here and elsewhere, Hart’s philosophy of human rights is restricted to

the activities of a state concerning the civil and political rights of its citizens.

Significantly, Hart never broadened this conception to encompass human rights

abuses committed by private actors, such as corporations; the full status of

social, economic, and cultural rights, such as those rights enumerated in Articles

22–27 of the Universal Declaration; or the human rights of persons generally,

including aliens, refugees, indigenous peoples, and individuals living under

military occupation. Today, these categories comprise many of the world’s most

pressing human rights challenges. Moreover, it seems clear on reflection that

even after Rawls had called for a return to “the conception of [moral philosophy]

adopted by most classical British writers through Sidgwick,”277 Hart never

seriously entertained the possibility that the foundation of human rights could

be found where most classical British as well as American writers said it could

be found: in a moral sense or conscience “which nature has made universal in

the whole species.”278 Instead, even in his later essays, Hart continued to

approach the topic of human rights almost entirely in the shadow of Bentham’s

epistemological empiricism279—even as he perceptively criticized Nozick and

277. RAWLS, supra note 95, at 51.

278. HUME, supra note 168, at 6; see also id. at 5 (locating the seat of moral judgment in “the

original fabric and formation of the human mind”); JOSEPH BUTLER, A Dissertation on the Nature of

Virtue, in FIVE SERMONS 69, 69 (Stephen L. Darwall ed., 1983) (recognizing a universal moral faculty in

“our natural sense of gratitude . . . [the] distinction every one makes between injury and mere harm . . .

and [the distinction] between injury and just punishment, a distinction plainly natural, prior to the

consideration of human laws,” and remarking that a “great part of common language, and of common

behavior over the world, is formed upon supposition of such a moral faculty”); FRANCIS HUTCHESON, A


Downie ed., 1994) (observing that the “several rights of mankind” derive “from that moral sense of

right and wrong, natural to us previous to any consideration of law or command”); SMITH, supra note

173, at 318 (explaining that in order to refute the “odious” doctrine of Hobbes, “it was necessary to

prove, that antecedent to all law or positive institution, the mind was naturally endowed with a faculty,

by which it distinguished in certain actions and affections, the qualities of right, laudable, and virtuous,

and in others those of wrong, blamable, and vicious”); MARY WOLLSTONECRAFT, A VINDICATION OF THE


RIGHTS OF WOMAN 65, 75, 69 (Sylvana Tomaselli ed., 1995) (observing that women must be viewed “in

the grand light of human creatures, who, in common with men, are placed on this earth to unfold their

faculties,” and demanding “a participation of the natural rights of mankind” on this basis); cf.

JEFFERSON, supra note 168; WILSON, supra note 168.

279. See Etienne Dumont, Introduction to Principles of the Civil Code, reprinted in 1 WORKS, supra

note 136, at 299, 300 (“The first ray of light which broke in upon Mr. Bentham in his legal studies was,

that the law of Naturethe original Compactthe moral Sensethe notions of Right and Wrong,

which had been employed for the explanation of the laws, were only at bottom those innate ideas

whose falsehood had been so ably demonstrated by Mr. Locke.”). Compare John Stuart Mill:

Man is conceived by Bentham as being susceptible of pleasures and pains, and governed in all

his conduct partly by the different modifications of self-interest, and the passions commonly

classed as selfish, partly by sympathies, or occasionally antipathies, towards other beings. And

here Bentham’s conception of human nature stops . . . . Man is never recognized by him as a


Dworkin of operating too much in the shadow of utilitarianism.280

Finally, as scholars continue to debate Hart’s legacy and to contemplate new

forms of jurisprudence in an era increasingly characterized by naturalism and

globalization,281 it seems important to ask whether Hart ever considered that the

proper philosophical standpoint from which to interpret Bentham’s theory of

fictions, of which his critique of natural rights was in some sense merely an

application, is the computational and internalist theory of language and mind

pioneered by Chomsky and other linguists and philosophers in the 1960s and

1970s and now widely utilized in the cognitive and brain sciences.282 From this

naturalistic perspective, human rights are indeed “fictions” in more or less

Bentham’s sense—mental constructs which are indispensable for human thought

and discourse, but which have no immediate referent in the mind-independent,

external world, as described by the natural sciences—but are surely no worse

off for that; for the same may be said of many if not most concepts of folk

psychology and ordinary discourse, and the principles which generate these

rights are, or at least can be, as much a part of a scientific theory of human

nature as other principles of cognitive science are. Furthermore, while the

existence and character of these principles is, or least can be, a problem of

ordinary science, the discipline which studies them may justly be called “jurisprudence”

as much as anything else. For it is a matter of no small importance to

recognize that for centuries before positivism sought to redefine its subject

matter, the science of jurisprudence was directed toward elucidating “the combeing

capable of pursuing spiritual perfection as an end; of desiring, for its own sake, the

conformity of his own character to his standard of excellence, without the hope of good or

fear of evil from other source than his own inward consciousness. Even in the more limited

form of Conscience, this great fact of human nature escapes him. Nothing is more curious

than the absence of recognition in any of his writings of the existence of conscience, as a thing

distinct from philanthropy, from affection for God or man, and from self-interest in this world

or the next. There is a studied abstinence from any of the phrases which, in the mouths of

others, import the acknowledgment of such a fact.

MILL supra note 253, at 66–67; cf. BENTHAM, supra note 67.

280. See, e.g., H.L.A. HART, The United States of America, in ESSAYS ON BENTHAM, supra note 70, at

53 (examining the doctrine of natural rights from the perspective of Bentham’s criticisms of it); H.L.A.

HART, Natural Rights: Bentham and John Stuart Mill, in ESSAYS ON BENTHAM, supra note 70, at 79

(same); Hart, 1776–1976, supra note 96 (same); Hart, Utilitarianism and Natural Rights, supra note

206 (same); Hart, Between Utility and Rights, supra note 90 (same); cf. id. at 222 (suggesting that “a

satisfactory foundation for a theory of rights will [not] be found as long as the search is conducted in

the shadow of utilitarianism, as both Nozick’s and Dworkin’s in their different ways are”).



AND SOCIETY (2001); TWINING, supra note 250; William Twining, General Jurisprudence, in LAW AND

JUSTICE IN A GLOBAL SOCIETY 609 (M. Escamilla & M. Saavedra eds., 2005).






monsense morality of the human race”283 with the aid of a technical legal

vocabulary, in roughly the manner many philosophers and cognitive scientists

now do: by identifying a class of considered judgments in which “our moral

capacities are most likely to be displayed without distortion”284 and a set of

rules and principles from which they can be derived. The historical evidence for

this proposition is hardly unequivocal, but nonetheless it seems reasonably


Hence a careful study of classical accounts of jurisprudence from a

contemporary scientific perspective may prove to be a highly profitable enterprise

for philosophers, legal theorists, and cognitive scientists alike. With the

dramatic success of Universal Grammar in the past fifty years, it is perhaps not

too much to hope that a revitalized conception of Universal Jurisprudence,

conceived along similar lines, may also make significant progress in the years

that lie ahead, thereby supplying an increasingly globalized yet fractured world

with a deeper and more durable understanding of universal human rights.

283. J.B. Schneewind, Hugo Grotius, in 1 MORAL PHILOSOPHY FROM MONTAIGNE TO KANT: AN

ANTHOLOGY, supra note 173, at 88, 88.

284. RAWLS, supra note 95, at 47.

285. See, e.g., RAWLS, supra note 95, at 50–51, 51 n.26 (characterizing a theory of justice as “a

theory of the moral sentiments . . . setting out the principles governing our moral powers, or, more

specifically, our sense of justice” and equating this endeavor with both “the conception of [moral

philosophy] adopted by most classical British writers through Sidgwick” and “Aristotle’s procedure in

the Nicomachean Ethics”); id. at 51 (stating that under this conception of moral philosophy “[t]here is a

definite if limited class of facts against which conjectured principles can be checked, namely, our

considered judgments in reflective equilibrium”); HENRY SIDGWICK, OUTLINES OF THE HISTORY OF ETHICS

160–61 (Hacket Publ’g 5th ed. 1988) (1902) (observing an “absence of distinction between the

provinces of Ethics and Jurisprudence” in the history of moral philosophy prior to Grotius, which

Grotius only partially abandoned); HENRY SIDGWICK, THE METHODS OF ETHICS 373–74 (Hacket Publ’g

1981) (1874) (characterizing the history of moral philosophy as a series of attempts to formulate

principles “by the scientific application of which the common moral thought of mankind may be at

once systematized and corrected”). See generally POTTS, supra note 168 (discussing medieval theories


history of British moral philosophy from Thomas Reid to Henry Sidgwick, F.H. Bradley, and T.H.


(1998) (tracing the history of modern moral philosophy from Montaigne to Kant); BRIAN TIERNEY, THE


(William B. Eerdmans Publ’g 2001) (1997) (examining rights in the context of medieval and early

modern jurisprudence); RICHARD TUCK, NATURAL RIGHTS THEORIES (1979) (same). Cf. J. INST. 1.1.1 (J.B.

Moyle ed., 1928) (defining jurisprudence to include “the science of the just and the unjust”); HENRY DE


(George E. Woodbine ed., Samuel E. Thorne trans., Harvard Univ. Press 1968) (1268) (same); GROTIUS,

supra note 168, Prolegomena, at 30 (noting that the proper study of jurisprudence is natural law and

observing: “Many, in preceding times, have designed to invest [jurisprudence] with the form of an Art

or Science; but no one has done this. Nor can it be done, except care be taken in that point which has

never yet been properly attended to;—to separate Instituted Law from Natural Law.”); ADAM SMITH,

LECTURES ON JURISPRUDENCE 397 (R.L. Meek et al. eds., Oxford Univ. Press 1978) (1766) (“Jurisprudence

is that science which inquires into the general principles which ought to be the foundation of the

laws of all nations.”). But see AUSTIN, supra note 193, at 18 (“The matter of jurisprudence is positive

law: law, simply and strictly so called: or law set by political superiors to political inferiors.”).

A Life of H.L.A. Hart is a compelling story of an admirable man who had a

profound impact on twentieth-century philosophy of law.

With style and grace,

Lacey unmasks the man behind the initials, weaving a complex and

engaging narrative which illuminates many aspects of Hart’s life and career by

locating them in their original social and philosophical context.

The result is a

truly impressive biography that is sure to become a standard reference for many

years to come.

As Frederick Schauer observes, one of the many virtues of Lacey’s book is

that it “tracks what actually interested Hart,”286 thereby enabling scholars to

take a fresh look at elements of his legal philosophy that have become hidden or

obscured as a result of the massive literature it has spawned. Further, by paying

Hart’s work the ultimate compliment of unflinching criticism, Lacey encourages

the rest of us to ask some hard questions of our own. This Essay seeks to build on these foundations by drawing attention to some notable gaps in Hart’s jurisprudence and Lacey’s interpretation of it that have not yet received adequate attention. It is to be hoped that these efforts will encourage others to improve on them.

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