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.
STUDY IN
CONTRASTS
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".
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.
CONCLUSIONS
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.
"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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