Herbert Lionel Adolphus Hart Research Paper

During the war, Hart’s keen interest in philosophy was stimulated by regular conversations with Stuart Hampshire and Gilbert Ryle, who were working in a related Department, and who introduced him to the new movements in linguistic philosophy. In 1945, after some hesitation, but encouraged by his close friend Isaiah Berlin, Hart accepted a fellowship in philosophy at New College. Despite his 16 years outside the academy, he established himself quickly as a leading member of the influential group of analytic philosophers, including Ryle, J. L. Austin, G. A. Paul, and Friedrich Waissman, working in Oxford at the time. Such was his reputation that, notwithstanding having published only one article and a book review, he was in 1952 elected Professor of Jurisprudence at University College, Oxford. During his tenure of the Chair, he revived what had become an intellectually sterile subject, bringing to jurisprudence the rigor of a philosophical method of which it had been deprived since the days of Bentham and John Austin, and introducing the fresh insights of Wittgenstein’s and, primarily, J. L. Austin’s philosophy of language.

Outside the UK, his reputation was especially strong in the US, where he spent several periods, notably at Harvard in 1956–7, and in Israel, which he first visited in 1964. He was elected President of the Aristotelian Society in 1959 and Fellow of the British Academy in 1962. In 1968 he resigned from the Chair, taking up a Senior Research Fellowship at University College, Oxford, in order to devote himself to the editing and analysis of the works of Bentham. From 1967–73 he served as a member of the Monopolies Commission; he also chaired a committee that made important recommendations for the reform of Oxford’s governance in the light of student unrest in the late 1960s. From 1973–8 he was Principal of Brasenose College; following his retirement he returned to University College as an honorary fellow. He died in Oxford on December 19, 1992.

1. Hart’s Contribution To Legal, Moral, And Political Philosophy

Hart’s intellectual contribution lies in two distinct but related fields. First, he revived the tradition of analytical jurisprudence, exploring both the concept of law in general and a number of specific concepts— causation, rights, obligation, responsibility, rules— which structure legal reasoning and doctrines. In this work, Hart emphasized J. L. Austin’s assertion that one may use a ‘sharpened awareness of words to sharpen our perception of phenomena.’ He insisted, however, that the task was not one of simple definition: rather, the aim was to build a theory or elucidation of the relevant concepts by examining their operation within the practical contexts in which they are used, and paying heed to the ‘open texture’ of language, with its core meaning surrounded by an unsettled penumbra. Perhaps the most outstanding example of these methodological commitments lies in Hart’s and Honore’s monumental Causation in the Law, first published in 1959, which sets its conceptual analysis of causation within the context of hundreds of legal cases, and which draws criteria for the identification of causes out of the common sense understandings which underlie everyday usage in the relevant contexts.

Hart’s second contribution was in the fields of normative legal, moral, and political philosophy. Building out from his analytic conceptions, he made highly influential interventions in normative and policy debates about matters such as capital punishment, abortion and the regulation of homosexuality. His treatment of these issues was located within a tradition stretching back to Hobbes, Hume, Locke, and, most obviously, J. S. Mill, to which Hart contributed, among other things, an elaboration of principles limiting the proper scope of state action, a novel account of the justification of punishment, and an analysis of the relationship between utility and rights.

To understand why Hart’s work in analytical jurisprudence had such an extraordinary impact, one has to understand something about the development of jurisprudence in the century preceding his election to the Oxford Chair. From the late eighteenth to the mid-nineteenth century, the utilitarian thinkers Jeremy Bentham and his disciple John Austin had developed an influential theory of law known as ‘legal positivism.’ Rejecting the idea that law derives its authority from God, or from some metaphysical conception of nature or reason—so-called ‘natural law’—Bentham and Austin argued that law is essentially man-made: it is a command, backed by sanctions, issued by a political superior or sovereign, to whom the populace is in a habit of obedience. This positivist theory had, however, been little developed since Austin’s death. The one exception was the brilliant Austrian jurist Hans Kelsen, whose theory of law as a system of norms was, however, mainly influential on the continent of Europe. In Britain, the slow development of legal education in universities contributed to the impoverishment of the jurisprudential tradition, which in the first half of the twentieth century concerned itself primarily with the decontextualized analysis of legal terms such as ownership, possession, or the corporation. This analysis was not enriched by any systematic exchange with philosophy, nor was there any attempt to link it to any broader idea of the nature of law, or to consider how technical legal concepts assisted law to serve its various social functions. In the USA, by contrast, jurisprudence had moved in a sociological direction which arguably emphasized the empirical at the expense of a sustained examination of the conceptual dimensions necessary to an analysis of law’s distinctive normativity. Prescriptive questions about what purposes law ought to pursue were left to the attention of moral and political philosophy—the latter itself a field that was relatively stagnant at this time.

Hart’s first single-authored book, The Concept of Law (1961), which stands as his most important work, claimed to provide a general, descriptive theory of law which was at once a contribution to ‘analytical jurisprudence’ and to ‘descriptive sociology.’ In other words, he sought to elucidate a concept of law that would be relevant to an understanding of all forms of law, wherever or whenever they arose. In pursuing this project, Hart returned to the insights of Austin and Bentham, but—in a crucial innovation—combined their methods with those of the new linguistic philosophy represented by J. L. Austin and Ludwig Wittgenstein.

The nub of Hart’s theory is the startlingly simple idea that law is a system of social rules structurally similar to the rules of games such as chess or cricket. The rules are of different kinds, with complementary functions. Some—‘primary rules’ such as criminal laws—directly govern behavior; others—‘secondary rules’—provide for the identification, interpretation, and alteration of the former. Distinctive among these ‘secondary’ rules is the ‘rule of recognition.’ This rule provides criteria by which officials identify valid rules belonging to the legal system. It, therefore, also serves to identify the content of one particular legal system. Yet it is not, Hart argued, itself a valid rule of the system. Rather, it exists in the constellation of official attitudes and practices. The existence of a legal system is hence, fundamentally, a complex matter of social fact.

Like his nineteenth-century counterparts, Hart therefore insisted that law is a social, human invention: though legal rules generate genuine obligations, they are not moral rules. Their authority derives not from their content but from their source, which lies in a distinctively institutionalized system of social recognition. For example, the rule that we should drive on the left is authoritative not because there is any intrinsic value to driving on the left. Rather, it is because the rule can be identified in accordance with an agreed set of criteria for recognition, such as parliamentary enactment or judicial precedent. Precisely the same is true, moreover, of legal rules that overlap with moral standards: the legal prohibition on murder is not the same as, and derives its validity in a different way from, the moral injunction against killing. Hart also teased out, however, what he saw as important grains of truth in the natural law tradition. While he insisted that the connection between law and morality was a contingent one, he also pointed out that a rule-based legal order brings with it a distinctive conception of formal justice. He also argued that, given certain features of human being—our physical vulnerability and limited altruism, and the limited resources of the natural world, for example—legal systems, given their purpose of facilitating human survival, would have to include a core set of rules governing—justly or unjustly—matters such as physical integrity and property. This he termed, perhaps misleadingly, ‘the minimum content of natural law.’

Hart’s account of how legal rules are recognized as valid served, on the other hand, to distinguish law from a mere system of force, or ‘orders backed by threats.’ For—crucially—according to Hart, legal rules have not only an external but also an internal aspect: we know that a rule is in existence not only because it is regularly observed, but also because those subject to it use it as a reason or standard for behavior, criticizing themselves or others for breaches of the rules. Here the linguistic philosopher’s focus on the understandings embedded in ordinary usage becomes important. For example, Hart explores the distinction between habitual behavior (going to a cafe on Sunday morning) and rule-governed behavior (going to Church on Sunday morning); between being obliged to do something (handing over money because someone threatens to kill you if you refuse) and having an obligation to do it (paying your taxes). Of crucial importance to his status as a positivist is his insistence that the decision to adopt an ‘internal attitude’ to legal rules may be based on a variety of reasons, ranging from moral commitment to mere pragmatism: indeed, for a legal order to exist, it is theoretically only necessary for the officials of the system to adopt an internal attitude to its rules. In his elucidation of the internal attitude, Hart claimed to have detached the concept of law from that of sanction: the normativity of law derives from the internal aspect of rules and not from the threat of punishment for their breach.

By moving from the early positivist notion of law as a sovereign command to the notion of law as a system of rules, Hart produced a theory that resonated with the impersonal idea of authority embedded in modern democracies, providing a remarkably widely applicable rationalization of the nature of law in a secular and pluralistic world. He also offered an account of legal validity that purported to explain the (limited) sense in which citizens have an obligation to obey the law. Unlike the ‘command’ theory, it accounts not only for laws which impose duties but also the wide variety of laws which confer powers upon or create normative facilities for citizens: the law of property, contract, marriage, or succession, for example.

Hart also succeeded in reviving the idea that the project of jurisprudence should be not only to provide a clear, descriptive concept of law; but also—though as a separate project—to elaborate a framework for systematic criticism of law and for law reform. Hart’s work became increasingly concerned with these prescriptive questions: from the late 1950s on he published highly influential papers dealing with issues such as the punishment of those who had committed what would now be regarded as serious crimes in Nazi Germany; capital punishment, the decriminalization of homosexuality, and the legalization of abortion. In these works, and in his widely publicized debate with the conservative judge Patrick Devlin, he regenerated a liberalism that finds its roots in J. S. Mills’s On Liberty (1859). In Law, Liberty and Morality, Hart (1963) argued, as against Devlin, that democratic states are not entitled to enforce moral standards for their own sake. With the exception of special cases where paternalistic legislation can be justified, or where grave public offence is at issue, the state should respect individual freedom, intervening only to punish the commission of tangible harms. This books stands, over 30 years after its publication, as the resounding late twentieth-century statement of the most influential genre of liberal social policy. The philosophical ideas on which it rests are articulated closely with those expressed in Hart’s conception of rights as founded in respect for individual human liberty and choice (‘Are there any natural rights?’), and in his argument that consequentialist aims of punishment should be tempered by considerations of individual fairness in the distribution and quantum of punishment (Hart 1968).

2. Hart’s Importance For The Social Sciences

Since the mid-1960s, Hart’s work has been subject to intense scrutiny and criticism. The most significant criticism has come from two different directions. First, from the direction of ‘natural law’ theory, it has been argued that, ultimately, the reason why those subject to legal rules adopt an ‘internal attitude’ to them has to do with moral factors, and that consequently Hart’s restricted sense of ‘legal obligation,’ and with it his distinction between law and morality, collapse. Second, from the direction of the social sciences, it has been argued that although the techniques of analytic philosophy may establish that law is simply one form of social rule, the further question of just what is distinctive about legal as opposed to other social rules can only be understood in terms of historical and social facts in which Hart shows surprisingly little interest. Notwithstanding these criticisms, there is strong reason to think that Hart’s work has real significance for the social sciences.

First, in reviving the tradition of descriptive legal theory—the attempt to provide a systematic elucidation of law—Hart illuminated an institution whose distinctive importance in the organization of modern societies has become a fundamental preoccupation of the social sciences. In spite of his universalistic philosophical ambitions, and of the undoubted tension in his work between his ‘analytic’ and his ‘descriptively sociological’ methods, his theory can be argued to provide a persuasive account of the distinctive nature of legal authority—law’s normativity—while maintaining that law’s existence is, ultimately, a matter of social fact and hence susceptible of empirical inquiry.

Second, therefore, in elucidating the nature of law as a social institution, Hart arguably provides precisely the sort of legal theory which social scientists need in incorporating law into broader social analyses. In his insistence on the structural continuity between legal and other social rules yet on law’s distinctive mode of institutionalization, Hart provides a vision that is at once analytically well delineated yet relatively modest in terms of its substantive assumptions. Hence, the feature of his theory which might at first sight seem least sympathetic from a social science point of view—its pretension to provide a universal theory of law—may in fact be argued to be one of its strengths. For it provides a clear model for the purposes of testing hypotheses about, for example, the relationship between legal and other forms of social authority. This idea of his concept of law as, at root, a social science model is backed up by his own insistence, in terms reminiscent of Weber (though, in a significant ambiguity, also of Aristotle), that he is delineating a ‘central case’ with reference to which other, ‘penumbral’ cases can be identified and analyzed rather than ‘banished to another discipline.’

Third, in his insistence on the internal aspect of rules, and hence on the idea that the social phenomenon of law can only be understood by reference to the attitudes and understandings of the agents who are its subjects, Hart’s thinking meshed with a cluster of theoretical developments in disciplines such as sociology and anthropology. In this respect, his theory is a vast step forward from the cruder empiricism of the nineteenth-century positivists. Although it is not something with which Hart himself was centrally concerned, this feature of his method undoubtedly opens up the possibility of an analysis of the symbolic aspects of legal power and authority such as would be central to any adequate social science account of legal practices. In his emphasis on the importance of linguistic usage, moreover, his ideas relate, albeit obliquely, to the so-called ‘linguistic turn’ in much social theory of the late twentieth century.

Finally, in his revival of the utilitarian tradition of systematic critique of law and argument for its reform, Hart provided an example of the way in which conceptual analysis can be marshaled in aid of social policy. Clear thinking and reason—Hart’s deepest intellectual commitments—are used, in an apparently modest and sometimes painstaking way, to clear the confusion in social and political debate, opening up in often unexpected ways paths forward in the development of policy and the construction of social consensus. Though Hart’s own work is surprisingly little concerned with empirical—social, psychological, economic—evidence, his arguments often serve to clarify the relevance of just this sort of social science data. Though the fulcrum of his work lay firmly at the analytical–philosophic rather than the descriptive– sociological end of the spectrum, he can, therefore, justly claim a place among those whose thinking has made a significant contribution to the social and behavioral sciences.

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