Plucking the Mask of Mystery from the Face of Jurisprudence, or HARTIANA and GRICEIANA
A LIFE AND TIMES OF H. L. A. HART:
THE NIGHTMARE AND THE NOBLE DREAM. By N. Lacey.
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.
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),
http://www.harvardlawreview.org/forum/issues/119/jan06/dworkin.pdf; David
Dyzenhaus,
The
Demise of Legal Positivism?, 119 HARV. L. REV. F. 112 (2006),
http://www.harvardlawreview.org/
forum/issues/119/jan06/dyzenhaus.pdf;
William Twining, Schauer on Hart, 119 HARV. L. REV. F. 122
(2006),
http://www.harvardlawreview.org/forum/issues/119/jan06/twining.pdf.
32. See Gardner,
supra note 2, at 330.
33. See generally HOWARD
GARDNER, THE MIND’S NEW SCIENCE: A HISTORY OF THE COGNITIVE
REVOLUTION (1987).
736 THE GEORGETOWN LAW
JOURNAL [Vol. 95:733
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.
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.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
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
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
LACEY, supra note
2, at xxii. BART SCHULTZ, HENRY
SIDGWICK: EYE OF THE UNIVERSE: AN INTELLECTUAL BIOGRAPHY (2004). NEIL DUXBURY, FREDERICK
POLLOCK AND THE ENGLISH JURISTIC TRADITION (2004). Duxbury resists
calling his book an
“intellectual biography,” id. at xi, but this distinction is immaterial
to the point we are making.
RICHARD W. BURKHARDT,
JR., PATTERNS OF BEHAVIOR: KONRAD LORENZ, NIKO TINBERGEN, AND THE FOUNDING OF ETHOLOGY (2005). 38. See MACCORMICK,
supra note 10.
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.
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 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
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 andIt 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.
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.
738 THE GEORGETOWN LAW
JOURNAL [Vol. 95:733
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."
"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.
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
-- 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).
2007] PLUCKING THE MASK
OF MYSTERY FROM ITS FACE 739
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?’;
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.’”
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.
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.
How-
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.
How-
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.
740 THE GEORGETOWN LAW
JOURNAL [Vol. 95:733
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´
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
CRIMINAL LAW: TWO LECTURES
(1965) [hereinafter HART, THE MORALITY OF THE CRIMINAL LAW] (same);
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.
59. See HART,
THE MORALITY OF THE CRIMINAL LAW, supra note 55.
2007] PLUCKING THE MASK
OF MYSTERY FROM ITS FACE 741
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).
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
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.
742 THE GEORGETOWN LAW
JOURNAL [Vol. 95:733
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.
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.
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,
67. JEREMY BENTHAM, AN
INTRODUCTION TO THE PRINCIPLES OF MORALS AND LEGISLATION (J.H. Burns &
H.L.A. Hart eds.,
Oxford Univ. Press 1996) (1780/1789).
68. JEREMY BENTHAM, A
COMMENT ON THE COMMENTARIES AND A FRAGMENT ON GOVERNMENT (J.H.
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).
70. H.L.A. HART, ESSAYS
ON BENTHAM: STUDIES IN JURISPRUDENCE AND POLITICAL THEORY (1982)
[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.
74. RONALD DWORKIN, TAKING
RIGHTS SERIOUSLY (1977).
75. RONALD DWORKIN, LAW’S
EMPIRE (1986).
76. LACEY, supra note
2, at 352.
2007] PLUCKING THE MASK
OF MYSTERY FROM ITS FACE 743
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
“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
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
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
OXFORD J. LEGAL STUD.
1 (2004).
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
“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
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.
744 THE GEORGETOWN LAW
JOURNAL [Vol. 95:733
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
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
In Between Utility and Rights, Hart seeks to
navigate the twin
shoals of “the old faith in utilitarianism and the new faith in
rights.
In Causation in the Law, Hart and Honore´ attempt to occupy a middle
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
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
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".
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.
2007] PLUCKING THE MASK
OF MYSTERY FROM ITS FACE 745
financially secure
man.
Additionally, it was during this period that Hart wrote
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
Though not widely read today, all of
these essays are
insightful and repay careful reading.
Unlike
Unlike
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
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,
ETHICS: INVENTING RIGHT
AND WRONG (1977) and GILBERT HARMAN, THE NATURE OF MORALITY: AN
INTRODUCTION TO ETHICS
(1977)).
99. Id.
100. H.L.A. Hart, Death
and Utility, N.Y. REV. BOOKS, May 15, 1980, at 25 (reviewing PETER SINGER,
PRACTICAL ETHICS (1979)).
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.
746 THE GEORGETOWN LAW
JOURNAL [Vol. 95:733
tensions which shaped
almost all of Hart’s work and relationships.
Lacey
Lacey
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 hadFor example, we learn that Hart was by his own account a “suppressed homosexual,” whose lack of sexual appetite for
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
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
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.
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).
2007] PLUCKING THE MASK
OF MYSTERY FROM ITS FACE 747
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.
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
Yet issues like these are really just the tip
of the iceberg.
Here are some further questions about which one is naturally
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?Did he welcome the efforts of Skinner, Watson, and other behaviorists to make psychology scientific by ridding
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
myth”?
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 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
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.”).
“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.”).
120. See P.F.
STRAWSON, INDIVIDUALS: AN ESSAY IN DESCRIPTIVE METAPHYSICS (1959).
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
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).
122. See generally
B.F. SKINNER, VERBAL BEHAVIOR (1957); JOHNWATSON, BEHAVIORISM (1925).
123. GILBERT RYLE, THE
CONCEPT OF MIND (1949).
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?”
“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?
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.
748 THE GEORGETOWN LAW
JOURNAL [Vol. 95:733
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,
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
“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”?
How
How
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
Did it cause him to reassess the philosophical
significance of
Bentham’s theory of fictions?
What did Hart think
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
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
transformations?141
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).
132. See, e.g.,
MICHAEL OAKESHOTT, The Tower of Babel, in RATIONALISM IN POLITICS
AND OTHER
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.
135. See generally
NOAM CHOMSKY, CARTESIAN LINGUISTICS: A CHAPTER IN THE HISTORY OF RATIONALIST
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
COGITANS: AN ESSAY IN
RATIONALIST PSYCHOLOGY (1972)).
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
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
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
rights?
How did Hart’s reaction to the Universal Declaration influence
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?
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
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
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
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
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
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
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,
1948).
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.
750 THE GEORGETOWN LAW
JOURNAL [Vol. 95:733
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
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
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
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
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
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,
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
Philosophy
of Language, in PHILOSOPHY, SCIENCE, AND METHOD: ESSAYS IN HONOR OF ERNEST
NAGEL 260
(Sidney Morgenbesser,
Patrick Suppes & Morton White eds., 1969); Jerry A. Fodor & Jerrold J.
Katz,
Introduction
to THE STRUCTURE OF LANGUAGE: READINGS IN THE PHILOSOPHY OF LANGUAGE
1 (Jerry A.
Fodor & Jerrold
J. Katz eds., 1964).
149. See generally
MARK C. BAKER, THE ATOMS OF LANGUAGE: THE MIND’S HIDDEN RULES OF
GRAMMAR (2001); RAY JACKENDOFF,
PATTERNS IN THE MIND: LANGUAGE AND HUMAN NATURE (1994);
STEVEN PINKER, THE LANGUAGE
INSTINCT: HOW THE MIND CREATES LANGUAGE (1994).
150. STEVEN PINKER, THE
BLANK SLATE: THE MODERN DENIAL OF HUMAN NATURE 37 (2002).
2007] PLUCKING THE MASK
OF MYSTERY FROM ITS FACE 751
(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
In English the head comes first; in
Japanese the head
comes last.
But everything else about the structure of
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.
Perhaps
Perhaps
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).
152. See, e.g.,
MARKUS DIRK DUBBER, THE SENSE OF JUSTICE: EMPATHY IN LAW AND PUNISHMENT
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.
154. MICHAEL GAZZANIGA,
THE ETHICAL BRAIN (2005).
752 THE GEORGETOWN LAW
JOURNAL [Vol. 95:733
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.
The
The
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
Recent work by comparative linguists suggests
155. JAMES Q.WILSON,
THE MORAL SENSE (1993).
156. ROBERT WRIGHT, THE
MORAL ANIMAL: WHY WE ARE, THE WAY WE ARE: THE NEW SCIENCE OF
EVOLUTIONARY PSYCHOLOGY
(1996).
157. MATT RIDLEY, THE
ORIGINS OF VIRTUE: HUMAN INSTINCTS AND THE EVOLUTION OF COOPERATION
(1996).
158. LAWRENCE R. TANCREDI,
HARDWIRED BEHAVIOR: WHAT NEUROSCIENCE REVEALS ABOUT MORALITY
(2005).
159. FRANS DE WAAL, GOOD
NATURED: THE ORIGINS OF RIGHT AND WRONG IN HUMANS AND OTHER
ANIMALS (1996).
160. MARC D. HAUSER,
MORAL MINDS: HOW NATURE DESIGNED OUR UNIVERSAL SENSE OF RIGHT AND
WRONG (2006).
161. See, e.g.,
GILBERT HARMAN, Moral Philosophy and Linguistics, in EXPLAINING VALUE
217
(2000); HAUSER, supra
note 160; MATTHIAS MAHLMANN, RATIONALISMUS IN DER PRAKTISCHEN THEORIE:
NORMENTHEORIE UND PRAKTISCHE
KOMPETENZ (1999); Susan Dwyer, Moral Competence, in PHILOSOPHY
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,
Toward
a Universal Moral Grammar, in PROCEEDINGS OF THE TWENTIETH
ANNUAL CONFERENCE OF THE
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),
http://ssrn.com/abstract_766464;
Jennifer Nado, Daniel Kelly & Stephen Stich, Moral Judgment, in
ROUTLEDGE COMPANION
TO THE PHILOSOPHY OF PSYCHOLOGY (John Symons & Paco Calvo eds., forthcoming
2007).
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,
2007] PLUCKING THE MASK
OF MYSTERY FROM ITS FACE 753
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
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
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
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.,
1995).
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
order.
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
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
PROFILE OF THE NATURAL
LAW 40 (1977);
St. Paul: “When the Gentiles, who have not the law, do by
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
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
Ulpian: “Natural
law is what nature
has taught all animals.” DIG. 1.1.1.3 (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
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
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
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
necessity . . . .” HUGO
GROTIUS, 1 DE JURE BELLI ET PACIS [ON THE LAW OF WAR AND PEACE] I.1.10
(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
species.” DAVID HUME,
AN INQUIRY CONCERNING THE PRINCIPLES OF MORALS 6 (Charles W. Hendel ed.,
1957) (1751); (11)
James Wilson: “The moral sense is a distinct and original power of the human
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
(Oct. 14, 1816), in
2 THE ADAMS-JEFFERSON LETTERS: THE COMPLETE CORRESPONDENCE BETWEEN THOMAS
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
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
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.
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
Legislation.
Bentham introduced the term “universal jurisprudence” by an
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
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,
176. See THOMAS
ERSKINE HOLLAND, THE ELEMENTS OF JURISPRUDENCE (13th ed. 1924). The book ran
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);
WILLIAM TWINING, GLOBALISATION
AND LEGAL THEORY 25–33 (2000).
177. HOLLAND, supra
note 176, at 9.
178. Id. at 6.
179. Id. at 1.
180. FREDERICK POLLOCK,
ESSAYS IN JURISPRUDENCE AND ETHICS 3–4 (London, MacMillan & Co.
1882).
181. JOHN CHIPMAN GRAY,
THE NATURE AND SOURCES OF THE LAW 145 (2d ed. Peter Smith 1972)
(1909).
182. Id. at
136–37.
Plato, and Freud).
But Hart did, and he was well-positioned to examine the
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
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
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
HART: I’d always been passionately interested
in language. As a
schoolboy I tried to learn about a dozen languages. Words had always fascinated
me.”).
186. See, e.g.,
LACEY, supra note 2, at 297–302. See generally HART, ESSAYS ON BENTHAM,
supra note
70.
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.
189. See RICHARD
BRANDT, ATHEORY OF THE GOOD AND THE RIGHT 16–23 (1979); BERNARD WILLIAMS,
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).
758 THE GEORGETOWN LAW
JOURNAL [Vol. 95:733
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
(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
inquiries
(4) a legal system is a “closed logical system” in which correct
(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
(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
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
PHILOSOPHY (1985)).
193. See JOHN AUSTIN,
THE PROVINCE OF JURISPRUDENCE DETERMINED 81–93, 114–25, 157–63 (Wilfrid
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
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
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.,
1996)
All positivists share two central beliefs: first, that what counts as law in any particular society
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.
2007] PLUCKING THE MASK
OF MYSTERY FROM ITS FACE 759
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
“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
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.
And
And
yet, surprisingly,
Hart hardly seemed to notice or care.
None of his rights-related
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
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
Hart’s
Hart’s
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
Aquinas).
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.,
1958).
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.
760 THE GEORGETOWN LAW
JOURNAL [Vol. 95:733
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
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.
However,
However,
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,
85.
206. See, e.g.,
H.L.A. Hart, Utilitarianism and Natural Rights, 53 TUL. L. REV. 663,
670–71, 678–80
(1979).
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
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
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
His examples and remarks, often brilliant
2007] PLUCKING THE MASK
OF MYSTERY FROM ITS FACE 761
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
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
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
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
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
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).
220.
For example, it is impossible to determine here whether Hart’s unpublished writings might call
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.
2007] PLUCKING THE MASK
OF MYSTERY FROM ITS FACE 763
thereby transforming
the discipline of analytic philosophy itself.
The context
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
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
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
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.
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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
Hart’s training
was classical rather
than scientific.
He was a late returner to philosophy who
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
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
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
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.
123, 125 (1961)
(reviewing DENNIS LLOYD, INTRODUCTION TO JURISPRUDENCE: WITH SELECTED TEXTS
(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
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).
237. See, e.g.,
KURT BAIER, THE MORAL POINT OF VIEW: A RATIONAL BASIS OF ETHICS 22–23 (1958)
(“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
766 THE GEORGETOWN LAW
JOURNAL [Vol. 95:733
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
avow.238
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
practice.
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.
244. ARTHUR L. GOODHART,
ENGLISH LAW AND THE MORAL LAW (Fred B. Rothman & Co. 1988)
(1953).
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
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
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
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
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
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
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).
770 THE GEORGETOWN LAW
JOURNAL [Vol. 95:733
“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
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).
252. See generally
ELIE HALEVY, THE GROWTH OF PHILOSOPHICAL RADICALISM (1955); James E.
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
generally GERALD J. POSTEMA,
BENTHAM AND THE COMMON LAW TRADITION (1986).
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.
2007] PLUCKING THE MASK
OF MYSTERY FROM ITS FACE 771
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.
26.
“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 novelty—done into English—apt to suspect—altogether
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.
262. See WILFRID
E. RUMBLE, THE THOUGHT OF JOHN AUSTIN 51 (1985).
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.
2007] PLUCKING THE MASK
OF MYSTERY FROM ITS FACE 773
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
law).
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
SHORT INTRODUCTION TO
MORAL PHILOSOPHY (1747), reprinted in PHILOSOPHICAL WRITINGS 155, 161
(R.S.
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 (1792),
reprinted in AVINDICATION OF THE RIGHTS OF MEN AND AVINDICATION 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
Nature—the original Compact—the moral Sense—the 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
776 THE GEORGETOWN LAW
JOURNAL [Vol. 95:733
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”).
281. See generally
BRIAN LEITER, NATURALIZING JURISPRUDENCE: ESSAYS ON AMERICAN LEGAL REALISM
AND NATURALISM IN LEGAL
PHILOSOPHY (2007); BRIAN Z. TAMANAHA, A GENERAL JURISPRUDENCE OF LAW
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).
282. See generally
NOAM CHOMSKY, LANGUAGE AND THOUGHT (1993); NOAM CHOMSKY, NEW HORIZONS
IN THE STUDY OF LANGUAGE
AND MIND (2000); JERRY A. FODOR, THE LANGUAGE OF THOUGHT (1975);
GARDNER, supra note
33; JACKENDOFF, supra note 149; RAY JACKENDOFF, LANGUAGES OF THE MIND:
ESSAYS ON MENTAL REPRESENTATION
(1992); STEVEN PINKER, HOW THE MINDWORKS (1997).
2007] PLUCKING THE MASK
OF MYSTERY FROM ITS FACE 777
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
clear.285
Hence a careful study of classical accounts of jurisprudence from a
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
of conscience); J.B.
SCHNEEWIND, SIDGWICK’S ETHICS AND VICTORIAN MORAL PHILOSOPHY (tracing the
history of British
moral philosophy from Thomas Reid to Henry Sidgwick, F.H. Bradley, and T.H.
Green); J.B. SCHNEEWIND,
THE INVENTION OF AUTONOMY: A HISTORY OF MODERN MORAL PHILOSOPHY
(1998) (tracing the
history of modern moral philosophy from Montaigne to Kant); BRIAN TIERNEY, THE
IDEA OF NATURAL RIGHTS:
STUDIES ON NATURAL RIGHTS, NATURAL LAW, AND CHURCH LAW, 1150–1625
(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
BRACTON, 2 DE LEGIBUS
ET CONSUETUDINIBUS ANGLIAE [ON THE LAWS AND CUSTOMS OF ENGLAND] 25
(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,
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
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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