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Wednesday, March 18, 2015

Legal Implicatures


The publication of Nicola Lacey's A Life of H L A Hart - The Nightmare and the Noble Dream is a notable event. 
If jurisprudence is the study of the principles of law and legal systems and the theories about their fundamental basis, a biography of one of the twentieth century's most significant contributors to the discipline is to be welcomed. 


Books on the lives of judges and other lawyers are comparatively few - for the obvious reason that those who succeed are commonly obliged to lead rather dull lives. 
Success in the practice of law exacts a cost. 
Normally, it imposes a limitation on publishable extracurricular activities that might otherwise add spice to a life so as to make it worth reading about. 
If this is so of the actors who take part in the dramas of courtrooms, how much truer it is of scholars who spend most of their lives in studies and classrooms, writing down their analysis of the underlying foundations of law and obedience to law and teaching often ungrateful students. 
Such scholars will usually be viewed as poor prospects for an interesting life story. 
If we want to read their theories, we can go directly to their writings, without troubling ourselves too much about their personal circumstances.


 Yet, in the past decade, two books have been written on notable legal philosophers.  Nicola Lacey's biography of H. L. A. Hart complements Leonie Star's 1992 work Julius Stone - An Intellectual Life. 
Professor Lacey's recent study is the more substantial one, half again as long and more intensive in the description of the inner life of the subject. 
However, for Australians, Julius Stone is probably viewed as having enjoyed the greater impact.  He lived and worked amongst us for most of his professional life. 
Hart visited Australia but once, in 1971. 
Yet both of them continue to be, for Australians, leading expositors of the principles of legal philosophy. 
Somehow, they seem larger than life. 
The new life of Hart confronts us with an insight into the rivalry between these two very different scholars. 
Nicola Lacey helps us to see the similarities and differences in their views, which, in turn, grew out of the contrasting stories of their external and internal lives. 


          Inspired by Lacey's eminently readable account of Hart's life, we will collect some of the similarities and differences between Hart and Stone. 
By any account, each was an important thinker and writer for English-speaking people in the field of jurisprudence. 
The core of Hart's professional work was performed as Professor of Jurisprudence in the Oxford Law discipline - a post he held from 1953 until 1969. 
Julius Stone, after a controversial start, served as Challis Professor of Jurisprudence and International Law at the University of Sydney from 1941 to 1972. 
Both of them held academic and other appointments before and after these central assignments within distinguished universities on the opposite sides of the world. 
Stone, for instance, after finishing at Sydney University was quickly welcomed into the newly established Law School at the University of New South Wales.  This was to prove a safe haven for him, in many ways more welcoming and congenial than the Sydney Law School had been.  But it was around their primary professional appointments, that both scholars built a great deal of national and international activity in teaching and writing about jurisprudence.  Both were to play important parts in the development of an understanding about the law, and not only within the legal profession.



          The similarities between Stone and Hart are not difficult to perceive. 
Each was born into a family of Jewish immigrants who had settled in England in the nineteenth century before the Aliens Immigration Act 1905 (UK) placed restrictions upon such immigration. 
Stone's family had fled intensified anti-Semitism in Lithuania. 
Hart's family derived from East Prussia, in what is now part of Poland. 
When, years later, Hart was confronted by a boastful matron who said that her forebears were robber barons from the border country of England, Hart gently responded, that his forebears were "robber tailors in the East End".


          Stone's father was a cabinet-maker who had settled in Leeds where he brought up his large family that included the gifted Julius. 
Hart's father was also "in trade". 
Sim Hart, given like his son to periods of deep introspection and depression, was a furrier. 
He was to end his life in suicide. 


          From their earliest days, the two young Jewish boys, each born in 1907, were to taste anti-Semitism. 
During the Great War, a mob of anti-German locals gathered outside the Stone family business, threatening damage and mayhem.  Stone's father, wearing a skull cap, confronted them bravely pointing out that he had sons fighting for the King in France and promising to kill them if they touched his property, even if he were to hang for it
The mob retreated. 
These events in Leeds left a bitter memory and a scar on Stone's psyche. 
Hart, whose family was somewhat better off, was to taste serious racial discrimination later in his life, when perhaps he could cope with it more readily.


          Both boys won scholarships that helped them to advance their education and to lift them out of the economic and social disadvantages into which they were born. 
Hart received more encouragement in his education from his family. 
One suspects that Julius continued to advance only through the power of his considerable will and a frenetic energy that was to continue all his days. 


          Both Hart and Stone went up to Oxford where their dazzling intellectual gifts were quickly recognised. 
Stone was soon attracted to the lectures in international law given by J L Brierley, who enlivened the young man's interest in the potential of the League of Nations to protect ethnic minorities, a matter naturally close to Stone's interests. 
The banishment of Jews from various parts of Europe, which was to herald even worse events in the 1930s, engaged Stone's attention. 
It led to the second string to his bow, namely his deep interest in international law. 
If Hart was to develop a second string, it lay in the field of causation in the law - actually an unresolvable philosophical quandary that was to produce, with his friend Tony Honoré, the masterpiece Causation in the Law - a book often cited by courts in all parts of the world when judges are confronted with vexed problems of this kind.


          Whereas Hart welcomed his absorption into the Brahmin world of Oxford of the 1930s, Stone was more critical of that environment. 
Each of them had an outsider's scepticism about the self-satisfaction and unquestioning privilege of the Oxonian world view. 
Stone was to do more about it. 
Pursuing his interests in international law, he took up a Rockefeller Fellowship to further his studies in this discipline at Harvard University. 
There he came under the eye of Professor Manley O Hudson. 
His father did not approve of his academic pursuits.  But Stone had by now determined to follow the life of a legal scholar. 
Hart stayed in England and, being more Anglophile by disposition, was quickly absorbed. 
For a time he pursued quite a successful career as junior counsel at the Chancery Bar in London. 
It was a career that left him unsatisfied. 
He yearned for a return to Oxford and to scholarship in the field of jurisprudence.


          At Harvard, Stone fell under the spell of the sociological school of jurisprudence that predominated there.  It had been cultivated at Harvard by Dean Roscoe Pound, who held successive appointments there between 1913 and 1937.  Karl Llewellyn and Jerome Frank were other contributors to the Harvard dedication to viewing law as a social discipline.  They rejected the purely analytical approach of the legal positivism and the verbal analysis taught at the English universities.  For a restless, critical outsider, like Stone, Harvard must have been a breath of fresh air.  It afforded an injection of legal realism at a critical phase in Stone's intellectual development, that Hart was to miss.  Years later, in 1956-57, in the "jurisprudence year" of the Harvard Law School, Stone and Hart were to come together to teach their separate classes to the fortunate Harvard students.  Stone was in the mainstream of the predominant jurisprudential theories of the Harvard School.  He fitted naturally into that place, where he had once, still in his twenties, almost received appointment as Dean. 
Hart seemed less comfortable and attracted smaller classes. 
But he received greater accolades and was honoured by the invitation to deliver the O W Holmes Lecture - a privilege that was thought to engender envy in the ambitious Stone.


          In striking out on their careers, both Stone and Hart suffered burdens of discrimination because of their Jewish ethnicity. 
In Stone's case, it was immediate and significant. 
It is now known that his numerous attempts to secure academic appointments were frustrated, despite his brilliant scholarly achievements on both sides of the Atlantic, by referee reports that cautioned about his Jewish background and attitudes and his Zionist inclinations. 
Because Hart was more ambivalent about his Jewish origins, and definitely unattracted by Zionism, he suffered less on this score. 
However, in Nicola Lacey's book there is one instance that shows the prejudice that ran deep and may have been replicated in unknown ways during Hart's career.


          After serving many years within New College at Oxford, Hart applied to be elected Principal of Hertford College. 
By this stage (1971) he had a beautiful house in Oxford where, with his wife Jennifer, he had raised their children. 
He did not want to move to the Principal's lodgings within Hertford and raised this issue, only to be assured that it would not create a difficulty. 
Later he was solemnly told that the College constitution obliged the Principal to live within the College, residing outside "only in cases of emergency". 
On this footing Hart, with a little encouragement, withdrew.


          Years later, when the Chancellor of Oxford, the former British Prime Minister Harold Macmillan, was sitting next to Hart at a College feast, they fell into talk about Macmillan's role as Visitor to Hertford. 
Macmillan disclosed that he had only had one problem. 
It concerned a proposal of the College to appoint, as Principal of the College, a lawyer who was a Jew. 
Macmillan said that the appointing committee had not realised this fact and was concerned, upon the discovery, that it would not look good to turn down "a perfectly reputable man because he was a Jew". 
Yet "luckily" they discovered the requirement of the College constitution that the Principal should live in the lodgings. 
So they used this as the excuse to turn the candidate away, without mentioning his religion. 


          Little did Macmillan know that Hart was the person of whom he was speaking. 
Ever the Englishman, H. L. A. Hart did not embarrass Macmillan by revealing the truth. 
He said later, on telling the story, that it would have been too painful to have done so. 
Hypocrisy triumphed. 
In this, as in other things, Hart was to regret his silence and to regard it as a mistake.  One can be absolutely sure that Julius Stone would not have kept the secret to himself.  But then, Macmillan would have never raised the issue with Stone for whom Jewishness was a central, and never secret, aspect of his being.


          To some degree, both Hart and Stone felt themselves strangers in the law schools to whose chairs they were appointed. 
Hart, who had turned his back on the practice of law which he regarded as restricting, never truly viewed himself as a teacher of law. 
For Hart, his discipline was philosophy, with particular attention to legal applications.  Stone was not particularly happy in the environment of the Sydney Law School. 
His arrival had been tumultuous. 
Unable to secure professorial appointment to academic positions in Britain or North America, because in part of the offending references, Stone had ultimately accepted the post of Dean at the University of Auckland, in New Zealand.  It was from there, in 1941, that he was recruited to the Challis Chair in Sydney.  His appointment was attacked in the press and criticised in the Sydney University Senate.  It became a public controversy.  There were many who urged that the post should be filled by an Australian, specifically an ex-serviceman or someone who had done his patriotic duty.  However, for some that was simply the stated obstacle.[9]


          For others, Stone's Jewishness was raised, as if it were a disqualification for the appointment.  Supporters in Sydney sprang to his defence.  One, himself Jewish, hinted obliquely that Stone had performed work for the security services in New Zealand, of importance to the war effort there. 
Hart, in England, was by this time working for MI5 and MI6 in the British Security Service.  However, Stone immediately let it be known to the protagonists in Sydney that this was false.  He refused to compromise.  For him, the motion for recision of his appointment was pure anti-Semitism.  In the end, the recision was not carried.  Stone took up the post.  Yet from the start, his welcome at the Sydney Law School was less than entirely warm.  Even in the 1950s, when I was at the Sydney Law School as a student, he was housed in tiny quarters with his loyal secretary Zena Sachs and his surrounding and visiting group of scholars - a kind of intellectual Siberia with few connections with the teachers of the common law.  Stone was often treated (and sometimes seemed to view himself) as an alien in the Sydney Law School.  His subjects of jurisprudence and international law were viewed by some judges, practitioners and scholars as separate and distinct - not quite legal subjects.


          To a lesser extent, Hart suffered a similar fate; but in his case it was mainly of his own choosing. 
Hart was intensely irritated by the excessive deference shown by legal scholars in Britain to the judiciary and practising legal profession. 
He refused to sprinkle his essays, referring to recent judicial decisions, with the usual phase "with great respect". 
For him, ideas were either supportable or insupportable. 
There was no need to show the forced deference exhibited to the judiciary in those days.


          Both Stone and Hart recognised that a point was reached where law ran out. 
Each understood that, ultimately, law was a social construct, with a vital function to perform in society. 
Obedience to the law could not be explained solely from within the law's own paradigm. 
However, whereas Hart sought to find explanations for most of law's binding force within the structure of primary and secondary rules, Stone emphasised the need to look beyond law's rules to social forces to explain the principle of obedience and the limits to which that principle could be pushed.


          Both Stone and Hart were greatly influential with their students. 
Each of them had a gift, and predilection, to choose particular students, encouraging them in their studies. 
Hart did so, to a very large extent, as examiner for many postgraduate degrees. 
Stone selected students whom he regarded as specially talented.  He then engaged some of them in his prolific writings, effectively as research assistants. 
This is how I came to know Julius Stone. 


          In my late years at the Sydney University Law School, Stone was involved in the rewriting of his monumental work Province and Function [10].  The three successor volumes, which were to be published in the 1960s, required extensive new work.  Stone engaged me to analyse a vast mass of written materials provided by his colleague Ilmar Tammelo, from translations from the original Russian on the then current Soviet view of the Marxist theory of the withering away of the State.  I clearly remember sitting in Stone's study at his home on the north shore of Sydney, where, under a reproduction of Rembrandt's masterpiece de Staalmeesters, we laboured over our differences.  In the end, my valiant efforts were rewarded with a single sentence acknowledgment in the Preface to one of the new volumes[11]. 


          At the time, I viewed this as an unequal reward for heroic labour.  As I look back, I can see that my true reward was working closely with this dynamic and energetic intellectual.  Then, it seemed as if I was part of Stone's slave labour.  Now, I can see that he was doing me a big favour.  Stone's choice of his students and the rewards he offered us have left insights that last our entire lives. 
So it was with Hart's students.  Interestingly, however, Hart's students tended to have more than profound respect for their master. 
Hart somehow won deep personal affection as well. 
He was a more spontaneous, personal, excited man. 
He was constantly sharing the wonder of experience and of thoughts and legal analysis.  With Stone, one always felt the constraints imposed by the rush of time.  Time was precious.  Stone could spare us only so much of it.  Respect rather than affection was the feeling that I believe most of Stone's students and assistants felt towards him.


          Both Stone and Hart were to have an impact on the society in which they worked that went far beyond that normal to a philosopher or professor of jurisprudence. 
In Hart's case, the impact could probably be seen most clearly in the exchange of opinions he had with Lord Devlin over the role of law in upholding public morality[12].  In Stone's case, his influence on public dialogue was wide and of long standing.  Often as a young man I listened to him broadcast "News Commentary" just before the national radio news on the Australian Broadcasting Commission.  Stone was a prolific commentator and writer in the popular media.  He frequently contributed to discussion about international law and the United Nations.  But for the appointment of Sir Percy Spender to fill a seat available to Australia on the International Court of Justice, Stone might well have received an appointment to that august judicial body.  Such was not to be.  Stone and Hart were public intellectuals.  Each was engaged with his society.  Each contributed to the world of ideas beyond the academic cloisters.


          Both Stone and Hart were blessed with loving wives and talented children. 
Mrs Reca Stone was a fiercely loyal companion to Julius.  She shared the triumphs and the disappointments.  In his early days, she often acted as his secretary and assistant.  Their highly talented children have continued to play a role in Australian society and beyond.   Some members of the family have gone on to contribute to the law[13].  Of course, they saw Stone as a loving father and grandfather.  They would have seen the softer elements of his personality.  Perhaps another book needs to be written to supplement Leonie Star's biography on the public life of Stone.  It would be a book that told more of his inner-workings. 


          Inner thoughts are displayed, with strengths and weaknesses, in Nicola Lacey's more intense book on Hart. 
In some senses, Lacey's is a psychological study.  It reveals more of Hart's inner-being - and especially in his relationship with his highly talented wife, Jennifer. 
The occasional tensions and difficulties in their relationship are disclosed, in a way that is not identified in the case of Stone.  One gets a feeling that Stone's home life was tranquil and private - a refuge of loyal support that he did not always have from colleagues in his professional life.  Both Hart and Stone had a considerable support system that is essential to a public figure, whoever they may be. 


          Jennifer Hart has written her own biography[14].  It gives her story, in a way that Reca Stone never did write or would have written.  We get comparatively few insights into the Stone family life from Leonie Star's book.  It is not coincidental that throughout that book Julius Stone is described by his biographer as "Stone" whereas throughout the book on H L A Hart, he is described as "Herbert". 


          Stone was reputed to have had a special empathy for migrant students studying law at the Sydney Law School.  Because this was not my minority, it was not a side of Julius Stone that I ever saw.  To the Anglo-Celtic majority, Julius was impressive, talented, energetic - but always the professor, always a little remote.  Hart, as Lacey describes him, made deep personal friendships with students – he engendered affection, even more precious than respect.




          The similarities of Hart and Stone were thus profound.  But so were the differences.  It is now necessary to mention some of the chief of these. 


          Gustav Mahler once said "I am thrice homeless, as a native of Bohemia in Austria, as an Austrian among Germans and as a Jew throughout all the world.  Everywhere an intruder, never welcomed"[15].  Whilst Hart and Stone shared a double exclusion - their Jewishness and modest class origins - Hart, like Mahler, added a third layer, although in all likelihood a different one. 
It is brought out with great sympathy and sensitivity in Nicola Lacey's biography. 


          Hart came to accept himself as basically homosexual. 
In 1937, at the time of his appointment to his first substantive academic post in New College, Oxford, he confided to his friend Christopher Cox: 
"I am or have been a suppressed homosexual (I see you wince) and would become more so (I mean more homosexual and less suppressed) in Oxford"[16]. 
In the same way as with his Jewishness, Hart was ambivalent about his homoerotic feelings. 
He was also acutely conscious of the social prejudices about homosexuality, and especially at his time of reaching sexual maturity. 


          It was a painful journey for Hart to come to terms with this aspect of his nature, assuming that he ever fully did. 
His sexual orientation did not mean that he loved his wife, Jennifer, any the less. 
On the contrary, in every department except the physical, their personalities complemented each other. 
He told her, quite candidly, from the start, that hers was "the only woman's body I've ever loved" or from which he had "any physical pleasure". 
As Lacey points out, the revelation, in a letter, illuminated "the stunted nature of Herbert's emotional life and his ambivalent sexual feelings". 
Almost certainly it had led to bullying at school and teasing during Hart's early years at Oxford.


          Marriage, and a physical sexual life was not impossible for Hart. 
So, in the manner of many in those times, he proceeded to marry Jennifer and to father their children. 
He attempted self-analysis both about his diminishing interest in sex and his feeling of being emotionally closed[17].  He confided his anxieties in letters and in his diaries, from which Lacey quotes extensively. 


          As a human story, it is tragic to read the suffering and denial evident in the quoted passages. 
Physical expression of Hart's sexual identity is frequently mentioned or hinted at. 
But it is not developed and appears less significant than the frustration of being forced into deprivation and pretence.  Yet one very good result came out of this denial and for it a wider world of ideas must be thankful.  The events must first be placed in their historical context. 


          The disruptions of the Second World War led to many challenges to the established legal and social order, in Britain and elsewhere. 
In the post-War world, things long accepted were subjected to critical scrutiny.  Alfred Kinsey, a biologist who was expert in the gall wasp and working at Indiana University, in 1948 published his path-breaking report on Sexuality in the Human Male[18].  In 1953, he published the companion volume on Sexuality in the Human Female[19]. 
These volumes demonstrated the significant proportion of people in American society who identified, to themselves at least, as exclusively or mainly homosexual in orientation.  The likelihood that this was true of other societies, indeed of the human species, became gradually accepted.  The message crossed the Atlantic. 


          In Britain, the Wolfenden Committee embarked upon the inquiry that led to the recommendation of substantial changes in the criminal laws against adult consensual homosexual acts[20], the so-called "unnatural offences". 
This proposal was published in September 1957. 
In 1959, Lord Devlin delivered the Maccabean Lecture in Jurisprudence to the British Academy. 
He used the occasion to attack the general principle of the Wolfenden Report. 
According to Devlin, social morality was a seamless web. 
Once the law withdrew from the support of a distinctively Christian morality, the result would be a breakdown in the British social order.  Thus, society had the right to punish with criminal sanctions private immorality that caused indignation or disgust to the majority[21].


          Patrick Devlin's views were anathema to Hart's liberal principles. 
In response, in July 1959, he gave a talk on BBC Radio, "Immorality and Treason". 
It was later published in The Listener.  Hart drew upon the principle of John Stuart Mill that the only justification for invoking the coercive power of the state - especially in criminal law - was the necessity of preventing harm to others. 
Hart did not publicly associate himself with the homosexual law reform campaign that was established to support the Wolfenden proposals. 
Doing so would not only have been contrary to his attitude to his own Britishness and sense of uninvolvement. 
It would also have been a difficult step for a man to take who, at the very least, was bisexual, whilst maintaining his own peace of mind and personal relationships.


          Driven by events and doubtless his own deep feelings, Hart began giving a number of lectures on the differences between himself and Devlin. 
They attracted large audiences and much scholarly notice. 
They took Hart into profound questions concerning the limits of democratic lawmaking and the ways in which those limits could be spelt out, respected and maintained in a principled way. 
These were ideas he was later to express in his most famous work, The Concept of Law. 
However, for the public in Britain, it was his work as a gentle, reasoned advocate of reform of the law on homosexual conduct that had the largest impact. 


          Hart gave dignity and reason to the cause that Sir John Wolfenden had advanced on pragmatic grounds. 
He gave a principled basis for supporting the reforms that eventually made their ways into the statue books in England in the form of the Sexual Offences Act 1967 (UK). 
It is possible that the passage of such significant changes to the law would not have been so easy and swift, in the face of such powerful conservative opposition, had it not been for the strong intellectual engagement of Herbert Hart. 
Of course, we now know that he spoke from his own experience. 
But he presented his views in the language of philosophy and reason. 
As the opinion of a married man with three children, they doubtless assumed the respectability of apparently total neutrality. 
As it happened, the stated opinions were fully consistent with Hart's general views on liberty and the role of law in attaining it.  Hart's world view had a unity.  But his opinions had an edge to them and this gave them a special conviction and sense of urgency which struck a chord in the British public mind. 


          Years later - and long before I knew of the revelations about Hart appearing in Nicola Lacey's biography - I read for some purpose the entry on Jeremy Bentham in the Biographical Dictionary of the Common Law[22]. 
In the middle of the discussion of the range and volume of Bentham's writing - and the description of his many proposals for change stretching from improved school education, economic theory, English grammar and birth control - was mentioned Bentham's demands for "a sceptical examination of … homosexuality". 
The author who wrote the entry on Bentham was identified as "H.L.A.H."[23]. 
He quoted J S Mill's description of Bentham as "a boy to the last". 
This was the way Hart is also described in Lacey's biography - a man who never threw off the wonder of youth and a fascination in new things and new ideas. 


          We are given few, if any, similar insights into the most private thoughts of Julius Stone in Star's biography. 
Certainly on the issue of homosexual offences, Stone, writing from Auckland in 1941, showed none of the sensitivities later evident in Hart's writings on the subject. 
To the contrary. his views reflected the somewhat unyielding opinions of that time[24].  Never in all my dealings with him did Stone ever intrude the slightest reference to his personal or sexual life. 
So far as we know, Stone kept no tell-tale diaries, as Hart did, to reveal to a later generation intimate personal thoughts of such a character. 
His marriage to Reca was revealed in public as close, mutually supportive, loyal and traditional.  No windows are opened by Star, or anyone else, into the private persona of Julius Stone.


          One can imagine that the revelations, to the world at large, of Herbert Hart's sexuality in the Lacey biography would be painful, at least to some members of the Hart family and some close friends, especially of the older generation. 
In a way, this course is similar to the disclosure to a mass audience, in the recent film Kinsey, that Alfred Kinsey was also bisexual and had homosexual experiences that were important to him. 
Critics of the Kinsey film[25] condemn the way in which Kinsey's self-interest overlapped his research on human sexuality and, as they claim, distorted the presentation of his data and his conclusions.  Doubtless, some of the same critics, if they did not regard it as too esoteric, would say the same things about Herbert Hart's response to Lord Devlin. 


          Yet for the progress of humanity along a path of rationality, science and truth, the world, and not just members of sexual minorities and their families, must be specially grateful to people such as Kinsey and Hart. 
In a way, too, the world must be grateful for the genetic or other factors that not only affected their sexual orientation but also propelled them into doing something to improve society's response to this phenomenon they knew well from their own life's experiences.


          The closest that Stone came to a passion of the heart affecting his scholarship was his fierce loyalty to the State of Israel.  For Stone, this was a cause of the emotions and of ethics as he viewed them.  His feelings grew out of his own experiences of anti-Semitism, his witness to the sufferings of the Holocaust and his belief that the creation of a homeland for the Jewish people was both timely and necessary.  It led some of his colleagues to express fear even to discuss Israel with him.  However, in a letter in August 1967, Stone asserted that his writings demonstrated not bias towards Israel but bias towards justice.  For justice, he was unwilling to suppress his "passion"[26].  Zionism was to split the small Jewish community in Australia during the Second World War and thereafter.  Some Australian Jews, such as Sir Isaac Isaacs, past Justice and Chief Justice of the High Court of Australia and Governor-General, were opposed to Zionism.  Stone was appalled.  He wrote an open letter to Isaacs which later grew into an extended essay, Stand Up and be Counted[27].


          Upon these matters, and Zionism generally, Hart was much closer to the opinion of Isaacs. 
He was somewhat ambivalent about his Jewishness and sceptical concerning the creation of a new State in the middle of the Arab world. 
Upon this matter, he felt and thought more as an Englishman than as a Jew. 
When, eventually, in later years, he travelled to Israel for the first time to give a lecture, he was tackled by one of his hosts on why he had not come earlier. 
For Hart, this presented a difficult problem. 


          During the visit to Israel, Hart was invited to attend a meeting at the Palestinian University of Bir Zeit. 
Several of the western scholars present, but not the Israelis, accepted the invitation. 
Hart did not. 
He did not want to upset his hosts. 
As with his reaction to Harold Macmillan, this portrayed Hart not so much as a Jewish scholar as manifesting the attitudes of an English gentleman. 
There would be little doubt that Stone would have felt aggrieved and angry about Hart's neglect of Israel and his failure to rally to its cause. 
Amongst homosexuals, there are similar controversies today.  Some regard their sexuality as a wholly private issue, the revelation of which might do them harm. 
Others reject that notion and insist that wrongs and stigmatisation will never disappear until all who are affected nail their colours to a new mast. 
For Julius Stone, Zionism was undoubtedly an affair of the heart and the mind, taught by experience.  For his "rival", the closest he came to such a public motivation was on the deeply personal, and then still secret, issue of his sexuality.


          A big change came over Stone's career with his effective banishment to the Antipodes.  Of course, he maintained his links with scholars in Britain and North America.  He returned regularly and held some joint posts.  But his daily work for most of his life in Sydney, before the advent of fast and cheap transportation, meant that inevitably he was cut off to some extent from the intellectual mainstream of his discipline.  Hart, on the contrary, was at the centre of it in Oxford.  Moreover, he was there at a time in legal developments when the writings of the leading scholars at Oxford, like the writings of the leading judges in the English courts, had a profound and continuing influence in all parts of the Commonwealth of Nations and in the United States.


          If today H L A Hart is cited frequently in United States judicial opinions and scholarly texts, it is probably because of the fact that Hart remained at a global hub of intellectual endeavour. 
Stone, to a large extent, was geographically sidelined.  Yet it was the great fortune of Australia and New Zealand that Stone came to this part of the world.  In a sense, he brought with him the school of jurisprudence that Roscoe Pound had built at Harvard, adapting it to his own views. 


          Stone's writings and thoughts were to carry an impact in the theory of ideas about law akin to that which, earlier, William Blackstone's writings on the common law were to play in the United States.  After the Revolution, cut off from the source and stimulus by formal connection with the English courts, the Americans were highly dependent on Blackstone's The Commentaries on the Laws of England[28].  That work became the source of basic legal principles that the early judges and lawyers of the United States carried in their knapsacks as that nation was opened up and brought under the rule of law.  Stone did not attempt an encyclopaedia of the law.  But he did write a major statement on the theories of law.  Its full impact was only to be felt in a latter time as his ideas about what law was, how it came to be expressed and what values underpinned it gathered supporters with each year of graduates who were submitted to Stone's teaching. 


          Stone was, in truth, a vital antidote in his time to the established school of legal positivism that had taken root in Australia and whose finest expression was found in the commitment of Chief Justice Sir Owen Dixon to the resolution of great disputes by "strict and complete legalism"[29].  At such a time, the powerful instruction of Stone concerning the legal categories of indeterminate reference; the leeways for judicial choice; and the manner in which the ratio decidendi of cases was to be found and extended, came to influence increasing numbers of Australian judges and lawyers. 


          Stone's leeways for choice were not totally open-ended.  He did not support the tyranny of judicial whim.  He was a strong proponent of the rule of law.  It would be a mis-statement of his theory of law to suggest that he favoured unbounded judicial creativity or discretion about law. However,  his central contribution was to teach that some creativity is inevitable, inescapable and desirable.


          It is impossible to understand the creative period of the High Court of Australia in the 1990s, when Sir Anthony Mason was Chief Justice, without an awareness of the powerful impact of Stone's teaching on at least three members of the Court at that time - Mason, Deane and Gaudron.


          If, for the time being, there has been something of a return to the commitment to "doctrine" of earlier times, it seems unlikely, in the long run, that Stone's message will not prevail in Australia.  In my experience, it is an accurate description of the way judges, especially in final courts, exchange private thoughts about issues of legal policy and principle relevant to their decisions.  The most that Stone taught was that judges should be honest and transparent in their exposure of the considerations of legal policy and principle as well as legal authority, that influence their decisions.  They should be themselves aware of the way such considerations influence their approaches to ambiguous expressions in the Constitution, the contested language of legislation and disputed principles of the common law.  The furtherance of these ideas will remain Stone's great achievement in the Antipodes.  If he, rather than Hart, has had the greater impact amongst Australian lawyers, it is, perhaps, because we had the greater need for his instruction.


          There were differences between Hart and Stone in their attitudes to the world and its ways. 
Hart absorbed more closely the techniques and habits of English expression.  
To some extent he seemed, consciously or unconsciously, to play the role of the absent-minded English professor. 
He was more urbane, witty, less intense and less driven than Stone. 
He was given to understatement, where Stone would sometimes err on the side of overkill. 
Famously, Stone's writings are full of the most copious footnotes in which he details the sources of his ideas with total intellectual honesty.  This is done, not only from a personal sense of truthfulness, but to provide the reader who is interested with material that can back up Stone's propositions and expand knowledge on the particular point, if that is desired. 
Hart's writings, by way of contrast, are briefer, more discursive and less given to references and citations.


          Those who like the English minimalism of Hart's expression applaud his willingness to state directly his own opinions, without troubling the reader needlessly about the opinions of others.  Some critics suggested at the time that Stone had erred by giving so much attention to the opinions of others that he sometimes failed to state clearly his own conclusions - or to give enough time and space to formulating and expressing them. 


          Stone was conscious of this criticism.  However, he was unimpressed by it. 
When Hart's classic work The Concept of Law was published in 1961, it was immediately hailed as a brilliant work "more forceful and convincing" because Hart banished the very few references to other writers that he felt it necessary to make to a few endnotes at the back of the book[30]. 
For Stone, this was heresy in jurisprudence, above all subjects.  In one of the successor volumes to his great work The Province and Function of Law, Stone responded directly to Hart's approach[31]:


"A book may be inadequate in range even if it is not primarily a book about other books, or is primarily a book about one other book.  In our view it is very likely to be inadequate unless it refers to what many other books contain.  In truth, however, the mere degree of reference to other works is not the point at all.  Adequacy of range depends on which other books, and how they are presented in relation to living issues of today.  It depends above all on whether there is provided for modern issues an awareness which will allow the reader to find and pursue his interests without the massive inheritance of juristic learning.  The teacher certainly is not entitled (even unconsciously) to fix his students in a mere matrix of his own range of concern".


          Unapologetically, I am a disciple of the Stone school.  Perhaps it comes of growing up with, and contributing to, works that were copiously footnoted with ample references to sustaining materials.  Without such citations, there is a risk that elegantly expressed idiosyncrasies and verbal dexterities will submerge the complexities and intellectual divisions over a topic that should be acknowledged, even if not always embraced.


          The understatement of Hart's writings was also connected with his disdain for the sociology of jurisprudence that Stone had learned from Roscoe Pound and others at Harvard. 
If jurisprudence is an analytical discourse involving the examination of rules, by verbal techniques designed to reduce propositions to their absolute core and essence, the manner of writing apt to that view will inevitably differ from that appropriate to one who sees the complexities of law as a social discipline, serving various often conflicting societal functions.  Thus, the different modes of writing that Stone and Hart exhibit is partially the result of the different schools of jurisprudence to which they respectively belonged. 


          Hart was squarely placed in the English analytical school of verbal discourse and analysis. 
Stone crossed over. 
He was aware of that school and, where necessary, could perform legal analysis as well the next scholar[32].  Like Hart, Stone was most comfortable in the legal speculations of jurisprudence.  He simply used different tools.  They took him to a wider ambit of source materials.  They led to writing that was at once more diffuse and less sharp; more detailed and sometimes less precise.  But for those of Stone's persuasion, declarations are not necessarily convincing, even when the declarant is as distinguished a mind as Herbert Hart.


          Stone loved honours.  In his lifetime, he was honoured by society and the academy. 
Hart, on the other hand, was ambivalent about such things.  He often displayed a republican attitude to the symbols and trappings of worldly success. 
The disdain that he felt for the excessive deference amongst English academics to the judiciary flowed into his attitude to civil honours. 
He was critical of his friend, Isaiah Berlin for accepting a knighthood. 
This, and news that Berlin had had an affair with his wife, Jennifer Hart, led to unresolved feelings to which the knighthood probably contributed. 


          Hart's views were put to the test in the 1960s when he was informed of the offer of a knighthood to himself. 
He declined on the basis that "such honours should be given in recognition of public service as distinct from academic merit or scholarship"[33]. 
He said he was not qualified for the honour. 
If a similar honour had come in Julius Stone's direction (as it well might in those days) I do not believe that he would have declined.  There was an element of insecurity in Stone's personality that was missing in the case of Herbert Hart. 


          Both Stone and Hart were appointed Queen's Counsel and both enjoyed this honour. 
Whereas in England the appointment of academics to the silk robe was not unknown, in Australia small world provincialism intruded. 
The President of the New South Wales Bar, when told that the government was considering such an appointment for Stone, responded that doing so would devalue the appointment as a mark of professional success[34].  This was a remarkable response given that the comment was made by one of Stone's finest pupils, R P Meagher, later a Judge of Appeal who knew well the English tradition.  Stone was sensitive to the issue.  However, the State Premier of the day (Mr N K Wran QC) also a former pupil and admirer of Stone, was insistent.  The postnominals were added.  When, at a celebration, Stone met one of his pupils who had also been appointed one of Her Majesty's counsel, he exclaimed "Oh, a real silk"[35].


          According to Lacey's biography, Hart was a gentler, kinder and less abrasive personality than Stone could sometimes be. 
Hart's devotion to his students, particularly those undertaking doctoral studies and preparing for academic life, was legendary. 
Stone, on the other hand, was more distant, at least if my experience is any guide.  He perceived, quite clearly, the privilege and advantage that he extended to his students by entering into intellectual dialogue with them.  In my experience, he did not become personal or warm.  His relationship with his pupils was that of the pedagogue.  And it did not much change with passing time.


          When, in 1975, I was appointed to chair the first national law reform commission in Australia, Stone took part in a seminar reception held soon after at the University of New South Wales where he had by then become a member of the Faculty.  At one point in the exchanges, Stone asked how I would go about challenging the fundamental precepts of the Australian law of contract and tort.  I answered that I would consider each case within the references assigned to the Commission by the federal Attorney-General, that being the requirement of the statute[36].  However, I went on to describe the importance that I attached to the Commission proving useful to the Parliament and elected governments.  If we were not pragmatic to some degree, but prepared marvellous scholarly reports with little chance of adoption, we would be failing in our duty under the statute and the Commission would probably be abolished (as was soon to happen in Canada).  Stone fixed me with an icy look.  "One day", he declared, "the Law Reform Commission will have a chairman who is up to the challenge that is required by the present state of the law".


          Stone's radical instincts were the same as mine.  But mine were tempered by institutional necessities and my perception of political realities.  In this, I was striving to be true to a rabbinical instruction that Stone was fond of repeating and which was read at his funeral:  "[i]t is not for you to complete the task; but neither are you free to desist from it"[37].  The Commission, for me, was not wholly a body of scholars.  Stone's cutting comment left a mark on me; but I never doubted that mine was the correct view.  His capacity occasionally to wound people, even those who were his friends and devoted students, was a reason why he came to be known as prickly.  It sometimes led to retaliation, sadly evident all too often in his years in the Law Faculty of the University of Sydney.  Our relationship was quickly restored to its earlier equilibrium.  However, such a public and direct confrontation, as occurred in my case, was by no means unique.  Stone had an uncompromising directness that matched his sharp intellect.


          Stone was hypersensitive.  He did suffer many wrongs in his life.  He was not a person simply to accept these. 
Hart, on the other hand, adapted to English habits which teach kindness in public exchanges (sometimes accompanied by the opposite behind the back).  Living with Herbert Hart as teacher and mentor would probably have been an easier journey than living with Julius Stone. 
On one occasion, Hart unintentionally caused affront to Stone. 
He said that, in Stone, English jurisprudence had at last found its Pound. 
Stone took this as a suggestion that he had merely copied his work from Pound and resented the statement.  But even Stone's sympathetic biographer acknowledges that Hart had simply meant that Stone had managed to bring an understanding of sociological jurisprudence to the English scene[38].


          Although in earlier years, as "rivals", Hart and Stone had shared a fragile relationship, in later times their association became somewhat less strained. 
When Hart came to Australia and New Zealand and met Stone in Sydney, he found him "thinner, nicer, less egocentric"[39].  Whether Julius Stone modified his assessment of Hart is unrecorded.




          By the test of citations in judicial and scholarly writings, Hart's sparser texts out-perform today those of Stone in continuing influence.  
The latter died, after a long struggle with lung cancer, which he faced with outstanding fortitude, on 3 September 1985. 
Hart had a longer life, but the last years of it were full of gloom, melancholy, depression and self-criticism. 
In his eighties, Hart was subjected to electroconvulsive therapy, a treatment available for the disorders of depression at that time. 
He was confined for a short period to a mental hospital. 
Yet, on his discharge, he continued to write essays for the New York Review of Books, the last of them published in 1986. 
Hart was discouraged by his fading intellectual life but, in his last year, his emotional connections with his children were the source of most of his joys. 


          To the end, Hart retained a fascination of his wife, Jennifer.  As Professor Lacey puts it[40]:


"Though the emotional ground that lay between them was never really made up, Jennifer worked valiantly to adapt the changed circumstances brought about by Herbert's need for physical care in the last two years of his life and to overcome her impatience at his increasing preoccupation with the state of his health".


          Hart was ultimately wheelchair bound, enveloped by the melancholy beauty of the late music of Schubert and Beethoven.  He died in his sleep on 19 December 1992.


          The passing of two such scholars would normally be privately mourned but go largely unremarked, except amongst friends and a small cadre of grateful pupils.  Yet now we have Nicola Lacey's outstanding book on the life of H L A Hart. 
For Australians, it provides a good companion to the earlier, briefer story by Leonie Star of the life of Julius Stone. 


          Although the perceptions that each of these highly individualistic scholars had of law and its theories and operation were distinct and different, each knew, and taught, that a point is reached where law, as rules, runs out.  The value of recording the lives of these teachers is that the subject of their fascinations is not, in the end, one for lawyers only.  Law is the essential life-blood of a modern democracy.  How it is found; what it means; how its ambiguities are resolved; why we obey it; when we should disobey it and with what consequences - these are issues for citizens, not just for lawyers, still less for philosophers alone. 


          The world of the common law was lucky to secure at the same moment two young Englishmen, of Jewish descent, raised in the common law, who thought and wrote and argued on these subjects, sometimes with each other. 
They were both outsiders. 
Perhaps that fact gave them a capacity to stand beyond the circle and to look at the law derived from England more critically and without undue deference. 
These were precious qualities that they each brought to their writings. 
If the clarity and comparative simplicity of Hart's writing style ensures that his work endures with a continued impact throughout the world of our legal system, this is partly because he stayed in the northern hemisphere and partly because of the continuing fascination of analytical and linguistic jurisprudence wherever English law is taught and practised.  For Australians, Stone was more important because he provided the precious alchemy that would enable us, after a long silence, to break the spell of the declaratory theory of the judicial function and to look for a better theory. 


          Each scholar was to some extent an alien to the common law.  Yet each knew it well, with all of its foibles.  Each could teach their theories from that viewpoint.  Fortunate was Australia that Julius Stone devoted most of his professional life to writing and teaching in our midst.  Fortunate is the whole common law world that Nicola Lacey has now written her tender, affectionate, insightful description of the personal and intellectual life of Herbert Hart. 


          Three centuries ago John Arbuthnot declared that biography was "one of the new terrors of death".  On this account Hart and Stone had no need for fear.  They knew that, in all ages, ideas are the most enduring forces for change in the world.  Stone and Hart.  Hart and Stone.  Each utilised to the full their great natural gifts of intelligence, perception and analysis.  Whether they know it or not, every common lawyer is richer for the work of such scholars.  Now we can seek to know both of them from books that describe their lives and work.  We can perceive the similarities.  We can understand the differences.

[1]     Oxford University Press, 2004 ('Lacey').
[2]     Oxford University Press in association with Sydney University Press, 1992 ('Star').
[3]     Lacey, 13.
[4]     Star, 3.
[5]     See eg Chappel v Hart (1998) 195 CLR 232 at 243 [24] per McHugh J; at 270 [93.6] of my own reasons; at 283 [116] per Hayne J.
[6]     Star, 41ff.
[7]     Lacey, 197-202.
[8]     Lacey, 313.
[9]     Star, 60.
[10]    The Province and Function of Law:  Law as Logic, Justice and Social Control (AGP, Sydney, 1946).
[11]    Legal System and Lawyers' Reasonings, Maitland, Sydney, 1964.
[12]    The debate between Hart and Devlin is described in Lacey, 6-7, 256-261.  Hart's lectures on "Law and Morals" followed closely the argument in his Law, Liberty and Morality (OUP, Oxford, 1963).  Hart also had famous debates with Professors Lon Fuller and Hans Kelsen, described in Lacey, 197-202, 252-253.
[13]    Including his daughter-in-law, Margaret Stone, now a judge of the Federal Court of Australia and his grand-daughter Adrienne Stone, now a faculty member of the Australian National University.
[14]    Jennifer Hart, Ask Me No More.
[15]    G Mahler, quoted M Kennedy, Mahler, J Dent & Sons, London, 1974 (2nd ed, 1990), 2.
[16]    Quoted Lacey, 61.
[17]    Quoted Lacey, 111.
[18]    A C Kinsey, W B Pommeroy and C E Martin, Sexual Behaviour in the Human Male (1948, Saunders, Philadelphia).
[19]    A C Kinsey, W B Pommeroy, C E Martin, P H Gebhard, Sexual Behaviour in the Human Female (1953, Saunders, Philadelphia).
[20]    Royal Commission into Homosexual Offences and Prostitution, Cmnd 247, HMSO 1947.
[21]    P Devlin, Maccabean Lecture noted in Lacey, 221:  see also P Devlin, The Enforcement of Morals, (OUP, Oxford, 1965); cf N Lacey, C Wells and D Meure, Reconstructing Criminal Law, (Weidenfeld & Nicolson, London, 1990) at 3, 311-312.
[22]    A W B Simpson (ed), Butterworths, London, 1984, 45.
[23]    Ibid, 46.
[24]    See J Stone, "Propensity Evidence in Trials for Unnatural Offences", (1941) 15 Australian Law Journal 131 at 131-132 (referring to "powder puffs commonly used in [gross indecency offences]" and "certain pervertedly indecent photographs" that were found and admitted into evidence although not used in the alleged offending).  However, Stone was critical of the method of judicial reasoning "with respect", as he stated at 134.
[25]    Fox Searchlight Pictures, Kinsey, released 15 November 2004.  The film was directed by Bill Condon and Liam Neeson appears as Alfred Kinsey.
[26]    Stone quoted in Star, 189.  Compare his identical response 40 years earlier to anti-Zionist expression in England:  Star, 44.
[27]    Stand up and be Counted:  An Open Letter to the Right Hon Sir Isaac Isaacs PC GCMG on the 26th Anniversary of the Jewish National Home, Ponsford, Sydney, 1944.
[28]    Published London, 1765-1769.
[29]    Swearing in of Sir Owen Dixon as Chief Justice (1952) 85 CLR xi at p xiv.  See generally P Ayres, Owen Dixon:  A Biography (Miegunyah Press, Carlton, 2003), 292.  For differing views see J D Heydon, "Judicial Activism and the Death of the Rule of Law" (2003) 23 Australian Bar Review 110; and a reposte by the author (2004) 24 Australian Bar Review 219 based on M D Kirby, Judicial Activism:  Authority, Principle and Policy and the Judicial Method (Hamlyn Lectures, 2003), Sweet & Maxwell Limited, London, 2004.
[30]    Star, 160.
[31]    J Stone, Legal Systems and Lawyers' Reasonings, 7.
[32]    J Stone, "The Rule of Exclusion of Similar Fact Evidence:  England" 46 Harvard Law Review 954 (1933); J Stone, "Propensity Evidence in Trials of Unnatural Offences" (1941) 15 Australian Law Journal 131; J Stone, Precedent and Law:  Dynamics of Common Law Growth, Butterworths, Sydney, 1985.
[33]    Lacey, 274.
[34]    Star, 257.
[35]    Star, 258.
[36]    Now Australian Law Reform Commission Act 1996 (Cth), s 20.
[37]    Ethics of the Fathers, quoted Star, xii.
[38]    Star, 159.
[39]    Quoted Lacey, 136.
[40]    Lacey, 358.

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