| 5 Web JCLI|
Oxford: Oxford University Press, (2004)
ISBN 0 19 920277 5
pp. xxii + 422, (hbk), £29.95, and (pbk), £15.99.
Reader in Law and Legal Theory,
Newcastle Law School,
Copyright © 2007 Richard Mullender
First published in Web Journal of Current Legal Issues
In A Life of H.L.A. Hart(1), Nicola Lacey has written a biography that successfully details the many scholarly achievements of her subject. But she does much more than this. She also unfolds an account of Hart’s life that turns him from a jurisprudential reference point into a flesh-and-blood human being, able to pursue his various careers with conspicuous success while racked by self-doubt. She also places Hart in the contexts that influenced him (e.g., Oxford as an undergraduate and as an academic). Likewise, she examines a range of cultural influences that shaped his thinking: the Jewish faith into which he was born, England (with which he strongly identified), and the United States. Moreover, she makes the point that Hart’s influence extended beyond the fields of jurisprudence and philosophy. For his writings were relevant to the operations of the liberal and secular state. Indeed, he and a number of other academics (e.g., John Rawls) have, as Lacey notes, encouraged debate on the pursuit of justice in the liberal state that continues to unfold. This is a topic to which we will give detailed consideration below. But, before doing so, we must examine the contents of Lacey’s book in some detail.
Lacey details each step in Hart’s journey to academic prominence. Growing up in the spa town of Harrogate, at once a member of the Jewish community and someone who delighted in the English countryside, the young Herbert was uncommonly bright (11-13). Moreover, he ‘showed an outstanding capacity to abstract himself from whatever was going on around him: to absorb himself in books, and to retain whatever he had absorbed’ (17). After an unhappy interlude at Cheltenham College (‘a very, very English – almost military – public school’) Hart excelled at Bradford Grammar School (17-19 (quoting from an interview with Hart)). As a consequence, he was able, in 1926, to study Greats (Literae Humaniores) at New College, Oxford. Again, he excelled – securing ‘one of the best firsts’ in his year (30 (quoting one of Hart’s tutors, A.H. Smith)). Thereafter, Hart pursued a career at the Bar and built up a very successful Chancery practice (46).
While at the Bar, Hart met and married Jenifer Williams, a woman from ‘an educated, moneyed, upper-middle-class [and Gentile] background’ (who shared Hart’s ‘steadfast atheism’). When war came in 1939, Hart worked for the security services. His work was diverse (64 and 81). He prepared reports and briefing papers and ‘made an important contribution to MI5’s remarkable transformation from amateurishness and lack of direction to professionalism and effective strategic capability’ (100). On one occasion, he successfully secured an espionage conviction, with the result that the court imposed the death penalty – an outcome that ‘weighed heavily on his mind’ (99). With the defeat of the Nazis, Hart made an official visit to Germany, at least one purpose of which was ‘to report on the state of civilian morale’ (120). Thereafter, he applied for and secured a fellowship in Philosophy at New College.
As Lacey makes clear, one of the people best placed to make an assessment of Hart’s abilities, his friend Isaiah Berlin, did not foresee the significant contribution he would make in the field of legal philosophy. When invited by Henry Price, Professor of Mind and Logic at New College, to make an assessment of Hart’s abilities, Berlin predicted that he would make ‘an admirable teacher of the staple diet’ (117-118). However, Berlin doubted that Hart ‘would write anything very memorable’ (118). Indeed, Berlin went on to predict that Hart would ‘not provide glimpses of something new and exciting’; rather, his output would be ‘solid’ (118). As Lacey notes, Berlin ‘can rarely have been more mistaken’ (118).
Hart was plainly well equipped for his new role. Lacey’s account of the influences that shaped his thinking helps us to understand why this was the case. As an undergraduate, the ‘strongly committed Platonist’ H.W.B. Joseph had exerted a great influence on Hart’s thinking (26). Lacey tells us that, as a student, Hart ‘came to see things very much from Joseph’s point of view’ (27). As a result, Hart shared Joseph’s commitment to ‘detail and clarity’ and would, as an academic, press students and colleagues to explain ‘what you mean’ (27). Moreover, while practising at the Bar, Hart devoured the works of Baudelaire, Darwin, E.M. Forster, Thackeray, Tolstoy, and many others (49). He also maintained intellectually stimulating friendships with old friends from Oxford, including Douglas Jay, Isaiah Berlin, and Richard Wilberforce (61).
Thus, Hart returned to New College with a good grasp of philosophical essentials and a mind receptive to new ideas. His receptivity to new ideas found expression in his readiness to embrace the ordinary language philosophy that was blossoming in the Oxford of the mid-1940s (in the work of Gilbert Ryle and J.L. Austin) (128). Austin’s approach to philosophy particularly impressed Hart. This was because Austin (like Hart) was committed to the pursuit of clarity (135). This commitment manifested itself in the ‘dry, commonsensical Englishness’ of Austin’s approach to ordinary language and the nuances and distinctions often embedded in it (142). Austin sought to uncover ‘subtle, unnoticed differences in linguistic idiom’ (135 (quoting Peter Hacker)). His aim in fastening on these differences was to ‘sharpen our perception of phenomena’ through ‘a sharpened awareness of words’ (134).
By the beginning of the 1950s, Hart was, Lacey tells us, ‘a well established member of Oxford’s philosophical community’ (147). In 1952 (and having published a limited number of well received essays), Austin and others encouraged Hart to apply for the Chair in Jurisprudence then available in Oxford (149). Austin believed that only a ‘real’ philosopher could make a significant intellectual contribution in the post (149). And, when Hart secured the Chair, Austin wrote him a note in which he observed: ‘[i]t is splendid to see the empire of philosophy annex another province in this way’ (149). Lacey detects, however, ‘a marked difference of tone’ in the response to Hart’s appointment in the Law faculty (149-150). Most of its members were ‘merely polite’ (150). But R.V. Heuston looked forward to Hart providing a ‘town planning scheme’ for the ‘intellectual slum of English jurisprudence’ (150).
Like Heuston, Hart harboured misgivings about English jurisprudence. He said of it that ‘[i]t had no broad principle, no broad faith, it confronted no large question’ (149).(2) However, in the history of English jurisprudence Hart found not a slum but, rather, the rudimentary structure constructed by Jeremy Bentham and John Austin. This structure was English legal positivism: a philosophy that identified law as the command of a sovereign, paid law’s normativity little attention, and denied the existence of a necessary connection between legal norms and morality. In his most famous book, The Concept of Law, Hart built impressively on the foundations laid by his positivist predecessors. But before doing so, he pursued a number of other projects that enhanced his reputation. These projects included his inaugural lecture (on definition in the law) and an essay on the nature of rights (in which Hart set out the highly influential ‘choice theory’) (156 (inaugural lecture) and 169 (choice theory of rights)). They also included his debate with Lon Fuller (on positivism and natural law), and a treatise (co-authored with Tony Honoré) on causation in the law (197-202 (on the Hart-Fuller debate) and 209-219 (on Causation in the Law)).
Lacey describes each of these undertakings in illuminating detail. For example, in her examination of the Hart-Fuller debate, she offers an evocative account of the context in which the debate unfolded, Harvard Law School. Hart found himself in a ‘self-assured law school community’ (181). And his opponent in argument, Lon Fuller, proved to be ‘a nice New Englander with some quite original ideas’ (181). But, to Hart’s dismay, ‘inexcusable analytical imprecision’ was a feature of the environment’ (181). Nonetheless, Harvard galvanised Hart. He found that ideas ‘started pullulating at a rather alarming rate’ (190). The result was an essay ‘setting out the agenda for a new version of legal positivism’ (190). In common with Bentham and Austin, Hart insisted on the lack of any necessary connection between law and morality (197). But he denied that ‘this betrayed an indifference to the moral status of laws’ (197). He also rejected the argument (associated with American Legal Realism) that positivism provides a formalistic account of legal reasoning (197).
On his return from Harvard, Lacey tells us that Hart was ‘about to launch himself into a period of quite extraordinary intellectual creativity’ (210). It was at this time that Hart and Honoré completed Causation in the Law. Thereafter, Hart made a powerful contribution to debate on the moral limits of the criminal law (in the context of an exchange with Lord Patrick Devlin). Devlin argued that criminal law should give expression to the moral sentiments of those who made up the majority in a society (221 and 261).(3) Hart, by contrast, staked out a position informed by the liberal political philosophy of John Stuart Mill. Hart sought to limit the circumstances in which the state could impose criminal sanctions. And, to this end he offered a qualified defence of John Stuart Mill’s harm principle, according to which harm to others provides a powerful (but sometimes defeasible) ground for the use of criminal sanctions (221). This contribution to the Hart-Devlin debate leads Lacey to conclude that he was ‘a broad-minded liberal’ whose thinking ‘tended to the libertarian rather than to the republican end of the spectrum’ (81 and 195).
But while Hart’s thinking tended in this direction, The Concept of Law, gave heavy emphasis to the concept of a rule. For Hart, as Lacey notes, identified the ‘standard’ case of a legal system as a ‘union’ of primary and secondary rules (225-226). On Hart’s account, primary rules directly govern behaviour (e.g., criminal prohibitions) while secondary rules systematise law by providing means for its identification, application, and modification (225). But Hart did much more in The Concept of Law than offer this ‘skeleton account of the salient features of a municipal legal system’ (Hart, 1994, 3-5). He also set out his highly influential account of law’s ‘internal point of view’. This is a subject on which Lacey dwells. She is right to do so. For Hart made a contribution that greatly enriched the analyses of the earlier positivists. Unlike Bentham and Austin, Hart was not prepared to reduce law to a pattern of behaviour involving habitual obedience on the part of the law’s addressees to orders backed by threats (226, 228, and 230-231; Duxbury, 2005, 49). Instead, he placed emphasis on law’s normativity. This led him to describe law’s internal point of view. From this standpoint, law is a source of authoritative reasons for action (rather than orders backed by threats). Moreover, Hart identified those who adopt the internal point of view as having a ‘critical reflective attitude’ towards the law (Hart, 1994, 57). By this he means that they are, among other things, ready to ponder the law’s (authoritative) requirements in circumstances where the demands it places upon them are unclear (199 and 228).
On the subject of uncertainty in the law, Hart staked out a position (first articulated in the Hart-Fuller debate) that situated him between the extremes of formalism and rule-scepticism. As Lacey notes, he was not prepared to accept the ‘formalistic vision of legal reasoning’ according to which judges simply grind out ‘deductive conclusions from closed sets of premises’ (197). But neither could he accept the rule-sceptics’ claim that legal language fails to place significant constraints on the exercise of judicial discretion. Nonetheless, Hart conceded some ground to each of these views. He recognised that legal language exhibits a core of settled meaning (199). Where this is the case, judges can subsume facts under it and apply the law deductively. But concepts, on Hart’s account, also exhibit a fringe of vagueness or penumbra of doubt, where meaning is uncertain (199).(4) In legal contexts, the upshot is a borderline case that judges resolve by specifying where the outer limits of the relevant concept lie. Hart recognised that the discretion they thus exercise lends plausibility to the arguments of the rule-sceptics. But he offered a powerful response to their criticisms of the law’s operations. Here, Lacey discusses his account of the ‘open texture’ of legal language (191). Since legal concepts (in common with other concepts) exhibit a fringe of uncertainty, judges are able to elaborate them in the light of new circumstances. But such a process of elaboration is not the arbitrary exercise described by the rule-sceptics. For judges may find in the core of settled meaning clues as to how they should reconfigure the relevant concept (199). As well as offering a crisp account of this feature of Hart’s legal philosophy, Lacey also examines the influences that shaped his thinking on legal language (and language more generally). She identifies Friedrich Waismann as the inspiration for Hart’s account of the open texture of legal language and the later philosophy of Wittgenstein as informing his thinking on the judicial elaboration of concepts (140 and 215, et seq).
While Lacey dwells on features of The Concept of Law that were prominent in Hart’s earlier work (his positivism and his interest in language), she says less about a further feature of the book. This is his account of the ‘minimum content of natural law’. Drawing on Hobbes and Hume, Hart identifies human beings as exhibiting a limited range of characteristics that are apparent in all contexts. These characteristics are ‘vulnerability’, approximate equality’, ‘limited altruism’, and ‘limited understanding and strength of will’ (Hart, 1994, 194-200). To this, Hart adds that people, in all contexts, have to address the problems created by ‘limited resources’ (Hart, 1994, 196-197). In light of these points, Hart argues that law is a practical necessity for all those who have ‘the modest aim of survival’ (Hart, 1994, 191). For, without law, and the co-operation and order it brings, humans are in danger of becoming a ‘suicide club’ (Hart, 1994, 188-189). Moreover, he describes the legal norms that work to counter this threat as ‘the minimum content of natural law’ (Hart, 1994, 193). In setting out this argument, Hart was not asserting a necessary connection between law and morality. Rather, he was following Hobbes and Hume in offering a form of ‘advisory’ natural law: if human beings wish to endure, they must act in accordance with the minimum content of natural law (Hampsher-Monk. 1992, 31 (on ‘advisory’ natural law)). The fact that Hart’s account of the minimum content of natural law is derivative may explain why Lacey felt no need to say more on this topic. Whatever the reason for her decision, it is regrettable. For the minimum content of natural law is (as we will see later) a feature of Hart’s thinking that has enduring significance.
Lacey’s account of Hart’s many academic contributions lends strong support to the view that he ‘establish[ed] the basic categories and assumptions in terms of which jurisprudential debate is now generally constructed’ (Simmonds, 2007, 4). But she does not simply offer her readers a chronicle of Hart’s achievements. She also offers an account of his life that is at once vivid and sensitive. By drawing on his diaries and correspondence, she makes his inner life a reality to the reader. It emerges that Hart was seldom comfortable in his own skin. Lacey observes that Hart ‘was not a man who ever found life straightforward’ (172). Moreover, she describes a number of episodes in his life that make apparent the (sometimes near disabling) extent of his unease. For example, Hart, having performed brilliantly as an undergraduate, sought to secure a Prize Fellowship at All Souls (41). At a formal dinner to which candidates were invited, he ‘dropped a piece of cutlery, shattering a beautiful dinner plate’ (42). Lacey tells us that, as he surveyed the fragments, ‘he was shocked to hear someone laughing hysterically’ (42). And, as he registered the laugh, he grasped that it was ‘coming from his own mouth’ (42).
Quite why Hart – given his prodigious academic ability – would find not just dining at All Souls but life more generally to be anything but straightforward is a question that Lacey ponders at length. She variously identifies low-self-esteem, anxiety, and a determination to turn in academic performances of the highest standard as explanations for Hart’s unease (132 (lack of self-esteem); 74 and 126 (anxiety); 126 (commitment to high academic standards)). Lacey also makes it clear that this unease never left him. For example, as he prepared to make his contribution to the Hart-Fuller debate – a lecture that would win him plaudits – he ‘became increasingly anxious about whether he could deliver something of adequate quality’ (196). Moreover, unease that troubled Hart had a profound impact on his most intimate relationships. While he married in the 1930s, he wrestled with homosexual impulses – on which he does not appear to have acted – throughout his adult life (61-62; 110-111).
Plainly, Lacey succeeds in bringing out the complexities of Hart’s make up. While doing so, she examines a range of influences (the Jewish faith, life in England, and time spent in the USA) that explain some of his personal complexity and the nuances of his thought. We will examine these influences in the section below. But, before doing so, we should note a feature of Hart’s outlook on which Lacey places emphasis. This is his marked distaste for (even elective) group-identification (34). Lacey tells us that Hart ‘resented being labelled as a member of a particular ethnic group’ (110). She adds that this was because Hart saw such classifications as ‘irrelevant for most purposes and in any case his own business’ (110). Hart’s adoption of this position is unsurprising, for he was, as Lacey notes, an ‘intensely private’ man (xvii). And he was committed to individualism and those strands of liberal philosophy that underwrite it most strongly.
Hart’s parents, Simeon and Rose, were ‘a relatively observant Jewish couple’ who ran a successful business in Harrogate (11). They raised Herbert in the Jewish faith, ensuring that he learned Hebrew and had a bar mitzvah (15). But, while Hart acquired a ‘continuing … interest in [his] heritage’, he was anxious ‘to assimilate to the dominant culture’ (13 and 35). In this he was successful. While writing a reference for him, one of his tutors at Oxford, H.W.B. Joseph, stated that ‘I did not discover for some time the fact of his being a Jew’ (35). And, many years later, Ronald Dworkin, expressed astonishment on learning of Hart’s Jewish background (73).
Lacey detects ‘a measure of denial’ in Hart’s efforts to assimilate to the dominant culture (35). But this, as she recognises, does not adequately explain Hart’s attitude towards the faith into which he was born. Hart wished ‘to be judged as an individual rather than as a member of a group’ (35). In this, he was giving expression to a liberal political philosophy that, even as an undergraduate, was a prominent feature of his thinking (36). This liberal outlook must, however, be set alongside Hart’s continuing interest in Jewish religion and culture. Hart made this interest apparent when, for example, he gave his friend Richard Wilberforce a detailed account of the Talmud and the Jewish system of courts (15). Likewise, he made plain his continuing interest in the Jewish faith when, later in life, he relearned Hebrew (247).
Lacey’s account of Hart’s relationship with his Jewish heritage leads her to conclude that he had an ambivalent attitude towards it (268-271). In light of the evidence she offers, this seems correct. But we might press the analysis further by drawing some comparisons between Hart’s thinking and that of his friend, Isaiah Berlin, on the Jewish faith. Both men maintained an interest in this subject throughout their lives. But Hart’s commitment to individualism made him ambivalent about his Jewish roots. By contrast, Berlin did not see the Jewish faith as posing a significant threat to the individualism he sought to defend in his writings. Indeed, he felt able to reconcile his faith (and advocacy of the Zionist cause) with a vigorous defence of negative freedom (the absence of coercive interference) (Crowder, 2004, 2-3 and 35). This perhaps explains why he offered a distinctly uncharitable interpretation of Hart’s attitude towards Jewish religion and culture. As Lacey notes, Berlin found in Hart’s unwillingness to identify with his Jewish roots evidence that he was (in some sense) ‘broken’. But the man Berlin saw as broken may simply have been reluctant wholeheartedly to embrace a faith that he regarded as a threat to his individualistic self-understanding and the liberal principles that underwrote it. Thus, we might see Hart not as broken but rather as one with a strongly individualistic dislike for all that has ‘a palpable design upon us’.(5)
While Hart’s views may have been significantly different from those of Berlin on the background they shared, he, like Berlin, identified strongly with England.
Lacey describes Hart’s identification with England as ‘deep’ (121). Certainly, it is apparent in his adoption of a practical outlook that is in the empirical philosophical tradition. Empiricism is the school of philosophical thought (strongly associated with England and the British Isles more generally) according to which experience is the wellspring of understanding (Scruton, 2000, 204). Lacey emphasises that this approach to philosophy is apparent not just in Hart’s best known work but also in his undergraduate essays. She tells us that, in these essays, Hart’s ‘deep fascination with the empiricist tradition’ and familiarity with the works of Hobbes, Locke, and Hume was plain to see (28). Little wonder, then, that when working for MI5, Hart advised those seeking to gather evidence concerning enemy agents to ask themselves a question that he would later put to tutees: ‘How do you know?’ (96).
Empiricists in the British tradition have long seen themselves as adopting a plain-fact view of the world around them. Rather than making appeal to the deliverances of ‘reason’ (grasped a priori), they take account of, and learn from, experience (Honderich, 1995, 226). This commonsensical outlook was much in vogue in Oxford in the years after World War Two. In Oxford at this time, there was, according to Lacey, ‘a strong sense of the opportunity to make a fresh start’ in the field of philosophy ‘on the English side of the Channel’ (141). She adds that this involved ‘casting off the historical, political, and metaphysical baggage of Continental traditions … and constructing an indigenous, English, no-nonsense, post-war philosophy’ (141).
Lacey associates this ‘no-nonsense’ school of thought with an ‘upper-class Englishness’ that found expression in J.L. Austin’s ‘dry’ approach to ordinary language philosophy (142). She also describes this approach as having ‘swept’ Hart along ‘on its tide’ (138). Moreover, she suggests that linguistic philosophy on the Austinian model may have ‘plugged a gap’ in Hart’s ‘sense of identity, born of his searing Cheltenham experiences as a Jewish boy from a trade background’ (142). Certainly, Hart had, at earlier points in his life, exhibited a willingness to identify himself with a distinctly Establishment form of Englishness. Thus he had, while at the Bar, subjected himself to elocution lessons so as to ‘rid himself of any vestiges of a Yorkshire accent’ (45). At the same time, he also took up fox- and stag-hunting (49-51).
But Hart’s readiness to identify himself with Establishment England must be set against his political views. As we have noted, Hart’s political views, as a young man, were liberal. But while submitting himself to elocution lessons and hunting, Hart’s ‘political outlook’ was, Lacey tells us, ‘moving leftwards’ (48). Under the influence of, inter alios, Douglas Jay (a friend from undergraduate days who published The Socialist Case in 1937), Hart began to think harder about politics (56).(7) In particular, he began to dwell on the question as to how personal freedom might be reconciled with social justice (56). This is a question that continued to interest him. Thus, when Tony Crosland published The Future of Socialism (an argument for social democracy), Hart (who was visiting Harvard at the time) asked his wife to send him a copy (193). Decades later, he was still examining this issue. In for example, an essay on ‘the philosophy of government’ (‘Between Utility and Rights’) he wrestled with the question as to how the state might defensibly accommodate each of these values (Hart, 1983, 198). But Lacey draws attention to an entry in Hart’s diary (made while he was visiting Harvard) that suggests that his readiness to move leftwards politically had very real limits. With painful honesty, Hart observes that ‘I have touches of self-disgust occasionally when I contemplate the absence of public concern that distinguishes me so much from so many including Jen[ifer Hart]’ (207).
Thus, when Lacey says that Hart’s later academic writings were ‘closely identified’ with a ‘left-leaning, social democratic liberalism’, she and others who categorise him in this way may have read him wrongly (56).(8) Certainly, questions of social justice exercised Hart. While at Harvard, ‘the refreshing lack of class snobbery in America’ impressed him (193). And the practical impact of this lack of snobbery was not lost on him. In his diary he noted that ‘[g]reat lawyers here have accents equivalent to Cockney: they just could not be great barristers at home’ (193). But, while egalitarian, Hart was first and foremost a liberal. Thus it becomes easy to understand why he was, as Lacey recognises, ‘uncomfortable with the more … state-centred forms of socialism’ (57). This suggests that he was not a strongly committed proponent of ‘New Jerusalem’: the statist ideal pursued by the Labour government after its election victory in 1945 (Hennessey, 2006, ch 4 (on New Jerusalem)).(9) Moreover, when he criticised the government responsible for dismantling the post-War welfarist settlement (Margaret Thatcher’s Conservative administration), his focus was on, inter alia, unjustified state intrusion in matters of sexual morality’ (356).
In light of these points, we find in Hart a commitment to liberty that has deep roots in English culture. Hart, as we noted earlier, drew on the political philosophy of John Stuart Mill when staking out positions that underscored the importance of liberty. But the themes in Mill that so appealed to Hart (the importance of the individual and the value of his or her liberty) were apparent in, for example, the seventeenth century in Daniel Defoe’s poem, ‘The True-Born Englishman’. For we find in Defoe ‘a feeling that … the English system of ordered liberty permitted individual liberty to flower’ (Mandler, 2006, 17). This ‘feeling’ is certainly apparent in a piece by Hart (prepared while at Harvard) that appeared in The Listener. Writing on ‘the liberty of the Englishman’, Hart stated that ‘there is a circle around each man, inside which he can do as he please, and it is no concern of others’ (195; Hart, 1958, 98). Moreover, Hart contrasted this English understanding of liberty with an American variant. The latter (clearly the fruit of a culture in which the ideal of civic republicanism figures prominently) had to do with participation in democratic decision-making processes (195). On this topic, as on many others, Hart found in the US academy, and American culture more generally, rich sources of stimulation.
As we have already noted, Hart’s debate with Fuller proved very fruitful. As a result of his exchanges with the genial New Englander he was able to offer a greatly refined defence of positivism. But Fuller was not the only thinker Hart encountered who led him to refine his thinking. Lacey tells us that, ‘apart from Fuller, the person with whom [Hart] made the most significant intellectual contact’ was the criminal and constitutional lawyer, Herbert Wechsler (187). Wechsler’s ‘rigorously utilitarian and policy-oriented approach’ to criminal law made a particular impression on Hart (188).(10) ‘[R]egular exchanges’ with Wechsler led Hart to conclude that he and Tony Honoré would have to ensure that their joint work on causation took the ‘policy approach’ sufficiently seriously (188).(11)
Thus, when Causation in the Law appeared in 1959, it offered a critical response to Wechsler and other proponents of the policy-based approach to causation (212). Hart and Honoré argued that policy-based adjudication on causal questions issued in a form of thought they called ‘causal minimalism’ (212). By this they meant the readiness to address only two considerations when dealing with questions of causation. The first of these considerations was factual: what were the necessary conditions of the relevant outcome? And the second had to do with the attribution of responsibility: what considerations of policy (e.g., the promotion of efficiency) led judges to hold someone liable for a harmful outcome? (212) Hart and Honoré argued that those who embraced causal minimalism failed to recognise that there is a ‘sui generis concept of causation deployed in law beyond the “factual” idea of causation as a sine qua non’ (212). Moreover, they deployed ordinary language philosophy to identify the principles and sub-principles that give content to the notion of causation in legal contexts.
Causation in the Law illustrates Hart’s measured, open-minded response to a new source of influence. On encountering broad-ranging policy-based analysis (and Wechsler’s rigorous utilitarianism), he felt no need to make a Damascene conversion. Neither did he, on detecting weaknesses in Wechsler’s approach, lapse into the condescension to which many of his countrymen were (and remain) prone when confronted by Americans who philosophise in broad terms.(12) Rather, he and Honoré offered, in response to causal minimalism, a tour de force that owed much of its analytical and critical power to the ordinary language school. But Hart’s response to Wechsler was not in all respects critical. He followed Wechsler’s utilitarian lead when he argued, in Punishment and Responsibility, that the general justifying aim of the criminal law is deterrence (280). However, Hart’s utilitarianism was qualified. He identified pursuit of the criminal law’s general justifying aim as being constrained by principles of justice. The mens rea principle specifies that full responsibility for one’s conduct is a condition of criminal liability (280). And the proportionality principle specifies that punishment should reflect (or be commensurate with) the gravity of the relevant offence (280).(13)
In invoking these principles, Hart qualified his utilitarianism by reference to considerations that have a distinctly deontological look. Those who act on such considerations assume that certain acts should (or should not) be done regardless of all or, at least, the more serious consequences of their performance or non-performance (Honderich, 1995, 187). Moreover, in identifying both deontological and utilitarian considerations as relevant to the criminal law’s operations, Hart’s thinking bears broad similarities to that of John Rawls. For Rawls, like Hart, argued that just institutions should accommodate both types of consideration. And Rawls was (as Lacey notes) another American academic who greatly impressed Hart during his time at Harvard. Having visited Rawls at Cornell and enjoyed some ‘real talk’ with him, Hart described him in a letter to Jenifer as ‘a superior character both in character and intellect’ (193).(14)
In the 1950s, Rawls was (like Hart) seeking to identify ways in which utilitarian considerations and the fundamental interests (and rights) of individuals could be defensibly accommodated in a politico-legal framework (169). In other words, Rawls’s concerns centred on what Hart would, many years later, call ‘the philosophy of government’ (Hart, 1983, 198). Moreover, Lacey notes that, for both men, the philosophy of government turned into ‘a lifelong preoccupation’ (169). In Rawls’s case, this preoccupation led him, in 1971, to publish A Theory of Justice. In this book he offered a ‘provisional’ statement of his first principle of justice. This principle specifies that ‘each person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others’ (Rawls, 1971, 60).(15) But Rawls’s commitment to the rights of the individual was qualified. For he set out a further principle of justice. This was the ‘difference principle’ and it specified that ‘social and economic inequalities’ are acceptable where they are ‘reasonably expected to be to everyone’s advantage’ (Rawls, 1971, 60).
Rawls’s argument made a great impression on Hart. Writing in the University of Chicago Law Review, Hart stated that ‘[no] book of political philosophy since I read the great classics of the subject has stirred my thoughts as deeply as John Rawls’s A Theory of Justice’ (Hart, 1973, 534). Nonetheless, we can find support in Hart’s writings for the conclusion that his views were significantly different from those of Rawls. This is far from surprising. For Hart, as earlier noted, drew a distinction between understandings of liberty in England (‘a circle round each man, inside which he can do as he please[s]’) and the USA (participation in the democratic decision-making process).
This distinction goes someway towards explaining why Hart’s liberalism led him in a direction that Lacey describes as ‘libertarian’ (195). It certainly helps us to understand why we find him regularly placing emphasis on J.S. Mill’s harm principle as a ground for justifying (and limiting the scope of) state coercion (Hart 1963, 46-47).(16) The importance Hart attaches to Mill is apparent in the University of Chicago Law Review essay mentioned earlier. Hart explores the possibility that ‘important forms of liberty’ (including ‘sexual freedom and the liberty to use alcohol or drugs’) do not fall within any of the basic liberties described by Rawls (Hart, 1973, 541). Moreover, he states that ‘[s]ince John Stuart Mill’s essay On Liberty, such liberties have been the storm centre of discussions of the proper scope of the criminal law and other forms of social coercion’ (Hart, 1973, 541). In this analysis, the state figures as a threat to the individual since it may deny him or her opportunities to enjoy liberty. This view of the state contrasts sharply with that in Rawls’s A Theory of Justice. For Rawls gives extensive consideration to the ways in which the state might legitimately employ its powers to enhance the lives of individuals.(17) It is, for example, in this connection that he identifies the difference principle as yielding a ground on which to justify ‘social and economic inequalities’ (Rawls, 1971, 61).
Plainly, both Hart and Rawls are liberals. For they each attach importance to the individual and his or her interests and associated rights. But, as we have seen, there are differences between their respective positions. These differences throw light on the extent to which Rawls influenced Hart and, hence, they merit close examination. Pinning down these differences with some degree of precision is a task to which the political philosophy of Michael Oakeshott is relevant. This is because Oakeshott draws a distinction between two models of human association that will enable us to gain greater analytic purchase on the respective positions of Hart and Rawls. The first of these models is ‘civil association’. It takes the form of a limited body of legal norms that provide an ordered context within which individuals are able to pursue the plans of their choice (Oakeshott, 1975, 124; Oakeshott, 1983, 158). This is a context within which the state seeks merely to maintain a framework the contours of which may alter as those who inhabit it engage in an exploration of its intimations (Oakeshott, 1975, 116-117 and 128-130, 173, and 178-180; Oakeshott, 1983, 161).
Matters are very different in the second model of human association described by Oakeshott. This is ‘enterprise association’. As with civil association, a body of legal norms work to create an ordered environment. But, in this context, the state specifies norms that will facilitate pursuit of a particular state of affairs or end-state (which gives expression to a shared or common purpose) (Oakeshott, 1975, 279-311). This mode of association is one in which the notion of a plan or a programme figures prominently (Loughlin, 1992, 72). This may explain why Oakeshott emphasised that, within the context of an enterprise association, commitment to individuality (as an end in itself) is apt to attenuate (Oakeshott, 1975, 274-278). By contrast, he identified civil association as affording a setting in which individuality could find more adequate expression. On this point Oakeshott, on occasion, grew lyrical. He described civil association as ‘an association, not of pilgrims travelling to a common destination, but of adventurers each responding as best he can to the ordeal of consciousness in a world composed of others of his kind’ (Oakeshott, 1975, 242-252).
Applying Oakeshott’s distinction between civil and enterprise association to Hart and Rawls, we find that the latter stakes out a position (in A Theory of Justice) that has obvious affinities with enterprise association. In Section 1 of A Theory of Justice, Rawls tells his readers that ‘society is a cooperative venture for mutual advantage’ (Rawls, 1971, 4) And it is this emphasis on mutual advantage that leads him to identify, inter alia, the difference principle as essential to the pursuit of justice. When we turn to Hart, matters are significantly different. His emphasis on, inter alia, the minimum content of natural law and the harm principle do not assume a state with large ambitions on the model described by Rawls. Rather, these features of Hart’s thinking suggest a cast of mind more comfortable with civil rather than enterprise association. This is a view to which Hart’s University of Chicago Law Review essay lends some support. For Hart detects in Rawls’s A Theory of Justice ‘a latent ideal’ that ‘powerfully impregnates the book’ (Hart, 1973, 554-555). Hart states that ‘[t]he ideal is that of a public-spirited citizen who prizes political activity and service to others as among the chief goods of life’ (Hart, 1973, 554). The public-spirited citizen described by Hart focuses on a just end-state and strives (in concert with others) to bring it into existence. This citizen, to put the same point another way, is the denizen of an enterprise association. No such ideal is to be found in Hart’s writings. But his ability to tease an ideal ‘public spirited citizen’ out of Rawls’s writings should not surprise us. For, in describing this ideal, Hart was capturing (in personified form) the point of view internal to Rawls’s project.
This suggests that Hart and Rawls (while both being liberals and advocating systems of law founded on a plurality of values) did not have quite as much in common as Lacey suggests. But, for reasons given in the next section, Lacey was right to emphasise their shared interests.
Assuming that the analysis in the last section is correct, we are now in a position to place Hart’s academic contribution in a context that seems particularly fitting. This is the field of Anglo-American legal and political philosophy within which Hart and Rawls (as Lacey indicates) pursued a shared interest in the egalitarian philosophy of government. Moreover, we can (for the reasons given in the last section) identify Hart as staking out a position in this field that is distinct from Rawls insofar as it tends towards civil association. This analysis of Hart finds some support in an account of his work recently offered by Richard Epstein. Epstein argues that Hart’s description of the ‘minimum content of natural law’ commits him to a modest practical agenda in which private ordering (through the mechanisms of, inter alia, contract and property law) features prominently (Epstein, 2005, 231-232). Moreover, Epstein states that ‘political beliefs’ are ‘hardly apparent in [Hart’s] work’ (Epstein, 2005, 221).
We can refine Epstein’s analysis by drawing on Oakeshott. Hart clearly had political beliefs. He thought, for example, that the criminal justice system should operate in ways that adequately accommodate the interests of potential victims and those charged with offences (Hart, 1968, ch 1). This being so, his thinking was informed by the ideal of distributive justice (which typically bulks large in political debate). Moreover, in pursuit of this ideal, he placed heavy emphasis on the harm principle as a means by which to limit legal restrictions on liberty. This principle sharply circumscribes the coercive power of the state while providing a basis on which to establish an ordered environment. Hence, it does the sort of work associated with law in the context of a civil association.(18)
We should, however, recognise that Hart did, on occasion, adopt positions that indicated that he was, to use a phrase from Epstein, ‘something of a social democrat’ (Epstein, 2005, 221). Hart did this, for example, while criticising Robert Nozick’s ‘extreme libertarian’ political philosophy (Hart, 1983, 203). Hart identified Nozick as inattentive to the ‘the ancient insight that for a meaningful life not only the protection of freedom from deliberate restriction but opportunities and resources for its exercise are needed’ (Hart, 1983, 207). He added that, in the absence of ‘positive marshalling of social and economic resources’, few will be able to live autonomously (Hart, 1983, 208). These statements (and others like them) indicate some enthusiasm for the pursuit of social justice by means of redistribution. But they do not add up to a richly elaborated programme on the model of Rawls’s A Theory of Justice (which, as argued earlier, bespeaks a commitment to enterprise association). Rather, they indicate familiarity with and suggest an approving attitude towards social democratic arguments such as those set out by Tony Crosland in the 1950s.
While Hart’s emphasis on the harm principle suggests a commitment to civil association, there are reasons for doubting whether this is true of his account of the minimum content of natural law. For the minimum content of natural law makes its appearance in a book (The Concept of Law) that is, according to Nigel Simmonds, an exercise in philosophical ‘minimalism’: a ‘clarificatory enterprise’ rather than a programmatic one (Simmonds, 1993, 155-157). By this Simmonds means that Hart’s ‘object is to identify a “central element” or “complex activity” in terms of which the various uses of the word “law” can best be understood’ (Simmonds, 1993, 153). On this view, Hart’s aim in describing the minimum content of natural law was to indicate how legal institutions serve the end of survival.
In light of these points, we find in Hart’s legal theory three distinct strands of thought. In his critical response to Nozick’s ‘extreme libertarian’ political philosophy, we see evidence of enthusiasm for human association on the model of an enterprise association. Moreover, since his response to Nozick is an argument for redistribution in pursuit of social justice, it supports the claim that he was something of a social democrat. But this strand in Hart’s thinking is less prominent than the other two. He wrote at greater length and more systematically on the moral limits of the criminal law. And, in arguing for application of the harm principle, he staked out a position that (for the reasons given earlier) has affinities with civil association. However, while this feature of Hart’s thought won him many plaudits and exerted influence in practical debates, it is less prominent than his commitment to the clarificatory or minimalist enterprise described by Simmonds.
Nonetheless, the second strand in Hart’s thinking (which has to do very obviously with the ‘philosophy of government’) does support Lacey’s claim that his interests and those of Rawls intersected. But, when we probe their common concerns, we find some significant differences. Consider Hart’s contribution in the area of criminal law. We find him arguing that deterrence should be the general justifying aim of the criminal law. Here, a consequentialist concern with the outcomes produced by a particular set of institutions bulks large. But Hart’s commitment to consequentialism is not unswerving. We find him identifying both the mens rea and proportionality principles as placing limits on the distribution of punishment. In his invocation of these principles (as in his invocation of the harm principle), deontological assumptions inform Hart’s thinking. He assumes that the interests of the individual defendant are intrinsically valuable and should (regardless of consequences) receive strong protection. These features of Hart’s argument concerning the criminal justice system suggest that he is a qualified consequentialist (Mullender, 2000, 500-503 (on qualified consequentialism)). He attaches priority to the pursuit of a generally beneficial outcome: general deterrence.(19) But deontological considerations place constraints on the pursuit of this outcome. Hence, the state should respond to wrongdoing justly by acting in accordance with the principles described by Hart.
When we turn to Rawls, we find an approach to practical matters that suggests a commitment not to qualified consequentialism but to a different moral philosophy built out of the same materials. This becomes apparent when we examine the two principles of justice that occupy a central place in his account of ‘justice as fairness’. The first principle, as noted earlier, specifies that ‘each person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others’ (Rawls, 1971, 60). Rawls also states that ‘a departure from the institutions of equal liberty required by the first principle cannot be justified by, or compensated for, by greater social and economic advantages’ (Rawls, 1971, 61). Moreover, he describes his account of ‘justice as fairness’ as ‘a deontological theory’ (Rawls, 1971, 30; see also Freeman, 2007, 306). While he does little to develop this point, he clearly assumes that securing the fundamental interests of individuals is the intrinsically right thing to do (Rawls, 1971, 60). However, he adds that ‘[a]ll ethical doctrines worth our attention take consequences into account when judging rightness’ (Rawls, 1971, 60). His commitment to this view finds expression in his second principle of justice which, as we noted earlier, specifies that ‘social and economic inequalities’ are acceptable where they are ‘reasonably expected to be to everyone’s advantage’. In light of these points, we find in Rawls’s thought a commitment to qualified deontology.(20) He attaches priority to deontological considerations. However, he is ready to act on consequentialist reasons for action where they pose no threat to his first principle and serve to advance his egalitarian agenda.
While Hart’s thinking differs from that of Rawls in the ways we have noted, they share a commitment that explains the obvious affinity between them. Each of them sought to stake out egalitarian positions. To this end, they each aimed to accommodate consequentialist and deontological reasons for action in ways that would give expression to this commitment. In light of this point, Lacey is right to emphasise the points of intersection between Hart’s thought and that of Rawls. For they each made influential contributions in a field we can term (appropriating a phrase from Hart) the egalitarian philosophy of government. This field merits close scrutiny. An examination of it supports (for reasons given below) the suggestion that Hart should be set in an Anglo-American context.
The century in which both Hart and Rawls lived and died saw three broad approaches to the philosophy of government loom to prominence: fascism (and national socialism), communism, and liberal democracy. On the analysis offered by Philip Bobbitt, two of these approaches (fascism (and national socialism) and communism) were found wanting in an ‘epochal war’ that lasted from 1914 to 1990) (Bobbitt, 2002, 19-64). Bobbitt argues that this war (‘the Long War’) was ‘fought over a fundamental constitutional question’: which sort of nation-state – communist, fascist, or parliamentary should prevail (Bobbitt, 2002, 19). This was a war in which Trotsky made plain the status of the individual in the Soviet Union when he spoke sneeringly of ‘the papist-Quaker babble about the sanctity of the human life’ (Ferguson, 2006, 148). Likewise, it was a war in which Hitler’s National Socialists, while offering little in the way of developed or even coherent philosophy, made a concerted assault on egalitarian assumptions (Gray, 2007, 28 and 55-69).(21) Moreover, it is only in retrospect that the success of liberal democracy takes on the appearance of inevitability. In the 1930s, as Isaiah Berlin has noted, ‘[t]he most insistent propaganda … declared that humanitarianism and liberalism and democratic forces were played out, and that the choice… lay between two bleak extremes, Communism and Fascism’ (Berlin, 1998, 629).
But even in ‘the iron ‘30s’, Franklin Roosevelt gave a fillip to the egalitarian philosophy of government by ‘seeking to establish new rules of social justice’ (Berlin, 1998, 628). However, while committed to the pursuit of social justice, he did not wish to ‘forc[e] his country into some doctrinaire strait-jacket’ (Berlin, 1998, 628). This led him, on the analysis offered by Isaiah Berlin, to ‘alter[ ] the fundamental concept of government and its obligations to the governed’ (Berlin, 1998, 636). For ‘[Roosevelt] showed that it is possible to be politically effective and yet benevolent and human’ (Berlin, 1998, 636). In Britain, the architects of New Jerusalem sought to follow his lead. Thus, even as Britain lost its place of pre-eminence as a liberal democracy in what became ‘the American century’, it hosted a bold experiment in the egalitarian philosophy of government (Ferguson, 2004, 365-384). By the time Hart and Rawls made their respective contributions to this body of philosophical thought, they were doing so in a liberal-democratic transnational space to which Andrew Gamble has given the name ‘Anglo-America’ (Gamble, 2003, 87). This was a space in which egalitarian assumptions had taken on the status of a ‘given’. And it was, as Oakeshott noted, a space in which both arguments for civil association and enterprise association enjoyed wide currency (Franco, 2004, 164-170). Thus Hart and Rawls each spoke in distinct ways (the former a qualified consequentialist, the latter a qualified deontologist) to the practical concerns of those around them.
Lacey succeeds in detailing Hart’s many achievements as an academic. Likewise, she presents a richly detailed account of his life. While this review has concentrated on Hart’s academic contribution, Lacey’s success as a biographer deserves praise. She devotes sufficient attention to his life to make Hart’s character vivid to her readers. The picture that emerges is of one who comes closer than most to being a person ‘on whom nothing is lost’.(22) He drew much from, inter alia, culture, religion, the institutions in which he studied and worked, and exposure to the influence of the USA (where he broke into his stride as an academic). But, while attentive to these influences, he did not allow them to erode his sense of his own individuality. The upshot, at the personal level, was introspection tending towards self-absorption. However, this intense focus on the awkward individual he himself instantiated encouraged in him, as Lacey emphasises, a determination to defend and refine principles of liberal political philosophy.
We might contrast Lacey’s extended examination of the fine-grained detail of Hart’s life with the chapter devoted to John Rawls’s life in Thomas Pogge’s John Rawls. Pogge’s account of Rawls’s life is instructive. We learn that Rawls’s intense interest in justice was encouraged by the deaths of two young siblings (for which he held himself responsible) and by his combat experiences in World War Two. But the account offered by Pogge is too brief to turn Rawls into what E.M. Forster called a ‘round’ character: a person who ‘cannot be summed up in a single phrase’ (Forster, 1962, 74).(23) Instead, we find ourselves confronted with a ‘type’ or flat character in the form of a ‘Mr Justice’ (Forster, 1962, 73-74 (on ‘flat’ characters)).(24) This is not true of Lacey’s Hart. We find in him the ‘incalculability of life’ that makes a character round (Forster, 1962, 81).
Certainly, we cannot sum up Hart’s political philosophy in a single phrase. What we find is a liberal-cum-social democratic admixture. This is a feature of Hart’s thinking to which Lacey is very much alive. But had she dwelt on it more closely, she might have resisted the temptation (to which others have succumbed) to categorise him as a social democrat. Her decision to do so has some plausibility. As we have noted, he recognised that few will be able to live autonomously without a ‘positive marshalling of social and economic resources’. Here, we find Hart gesturing in the direction of ‘the morality of freedom’ as Joseph Raz later elaborated it (Raz, 1986). But at no point in his career do we find Hart offering developed arguments in support of, for example, the post-War social democratic settlement or its informing ideal of New Jerusalem. Rather, he focused his attention on, inter alia, the harm principle and other means by which to limit the range of circumstances in which the law impinges on the lives of individuals.
Against this, however, we must set the fact that Hart identified deterrence as the general justifying aim of the criminal law. This suggests that he was a proponent of enterprise association and qualified consequentialism. For what is a system of criminal justice that promotes security (a social primary good) and distributes punishment fairly, if not an enterprise association that prioritises the pursuit of distributively just outcomes?(25) One answer is a means by which to satisfy necessary conditions of civil association: an ordered environment in which the apparatus of the state endures because citizens recognise it as legitimate. In light of these points, we should regard Hart as one whose arguments tended in the direction of civil association but who nonetheless grasped the significance of the morality of freedom. (See Tables 1 and 2, below.)
While Lacey may have overstated her case in categorising Hart as a social democrat, she is right to emphasise the points of intersection between his work and that of Rawls. For both men made, on the analysis offered here, highly influential contributions to the egalitarian philosophy of government that has flourished in Anglo-America. But while Hart’s contribution had affinities with civil association, Rawls’s revealed a commitment to enterprise association. This is something to which Hart was very much alive. This becomes clear when he teases out of A Theory of Justice the ‘[t]he ideal … of a public-spirited citizen who prizes political activity and service to others as among the chief goods of life’. Hart does not dwell at length on this point. But he creates the impression that the ‘citizen’ he describes is too earnest (and perhaps even priggish) to be a rounded human being and that Rawls’s political philosophy exhibits a perfectionist undertow.(26) While not censorious in his response to Rawls, the ‘citizen’ upon whom Hart fixes his gaze seems to be something of a Boston Brahmin, intoning ‘New England Principles’ (Tocqueville, 2003, pt 1, ch 1 (on ‘New England Principles’). Likewise, he calls to mind Sir Stafford Cripps (a member of Labour’s post-War government), exhorting the British to ‘play by the rules’ and to accept ‘fair shares’ (Kynaston, 2007, 350 (on Cripps). Hart thus conjures up an image of stunted humanity much like that offered by Oakeshott in his account of enterprise association and its limitations as a model of human association.
Finally, we seem to find in Hart’s reflections on Rawls’s ‘citizen’ a wariness towards the state that extended to cultural forces (e.g., the Jewish faith) that play a part in shaping individuals. In emphasising this feature of Hart’s make-up, Lacey makes it plain to her readers that he was reluctant to be a token of any particular type. It is here that we find the roots of his liberalism. He recognised that both the state and its practical agenda and the (too often) ‘blind impress’ of culture pose threats to the integrity of the individual.(27) Hence, while he identified law as a practical necessity (without which we may become a suicide club) he was reluctant to see the individual integrated into a larger whole. In this he shows (as we noted earlier) distaste for institutions and systems of belief that have ‘a palpable design on us’. This is surely what we would expect from one who, while recognising the moral appeal of social democracy, staked out positions that would sustain a civil association.
Tendency towards Civil association
Prominent ideal of the self
(Criminal justice system: general justifying aim (Punishment and Responsibility)
X (But a critical, reflective attitude possessed by a sufficient number of the law’s addressees to make it a viable institution.)
(Intimations of perfectionism: Rawls’s ‘citizen’ (as described by Hart).)
B Bix, Law, Language, and Legal Determinacy (Oxford: Clarendon Press, 1993).
P. Bobbitt, The Shield of Achilles: War, Peace, and the Course of History. (London: Penguin 2003)
B. Chapman, ‘LawIncommensurability, and Conceptually Sequenced Argument’ (1998) 146 University of Pennsylvania Law Review 1487.
G. Crowder, Isaiah Berlin: Liberty and Pluralism (Cambridge: Polity, 2004).
P. Devlin, The Enforcement of Morals (Oxford: Oxford University Press, 1965).
N. Duxbury, ‘English Jurisprudence Between Austin and Hart’ (2005) 91 Virginia Law Review 1.
R. Epstein, ‘The Not So Minimum Content of Natural Law’ (2005) 25 Oxford Journal of Legal Studies 219.
R. Evans, The Third Reich in Power, 1933-1939 (London: Allen Lane, 2005).
N. Ferguson, The War of the World: History’s Age of Hatred (London: Allen Lane, 2006).
E.M. Forster, Aspects of the Novel (London: Pelican Books, 1962).
P. Franco, Michael Oakeshott: An Introduction (London: Yale University Press, 2004).
S. Freeman, Rawls (London: Routledge, 2007).
J. Gray, Black Mass: Apocalyptic Religion and the Death of Utopia (London: Allen Lane, 2007).
A. Gamble, Between Europe and America: The Future of British Politics (London: Palgrave Macmillan, 2003).
H.L.A. Hart, ‘A View of America’ (1958) The Listener 89.
H.L.A. Hart, Law, Liberty, and Morality (Stanford, California: Stanford University Press, 1963).
H.L.A. Hart, Punishment and Responsibility (Oxford: Clarendon Press, 1968).
H.L.A. Hart, ‘Rawls on Liberty and Its Priority’ ((1973) 40 University of Chicago Law Review 534.
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M. J. Horwitz, ‘Why is Anglo-American Jurisprudence Unhistorical?’ (1997) 17 Oxford Journal of Legal Studies 551.
D. Kynaston, Austerity Britain, 1945-51 (London: Bloomsbury, 2007).
N. Lacey, A Life of HLA Hart: The Nightmare and the Noble Dream (Oxford: Oxford University Press, 2004).
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(1) Unless otherwise stated, all references in the text and footnotes are to A Life of H.L.A. Hart.
(2) England was far from being the only context in which jurisprudence exhibited the philosophical weaknesses described by Hart. See Schauer, 2006, 852, 852-853 (noting that ‘[p]rior to Hart, jurisprudence was, to be sure, a theoretical topic, but it was only rarely a philosophical one’).
(3) Lord Devlin first set his views out in the Maccabean Lecture in Jurisprudence at the British Academy in July 1959. His lecture was, inter alia, a response to the Report of the Wolfenden Committee, 1957, which argued that certain areas of private morality were ‘not the law’s business’: e.g., homosexual conduct between consenting adults. Lord Devlin developed the arguments that feature in his Maccabean Lecture in Devlin, 1965.
(4) The distinction Hart draws between core and penumbra may have come from Bertrand Russell. In 1923, Russell stated ‘all words are attributable without doubt over a certain area, but become questionable within a penumbra, outside which they are again certainly not attributable’ (Slated, ed, 1988 149; Bix, 1993, 10, n 21).
(5) Walden, 2006, 139 (quoting John Keats).
(6) Horwitz, 1997, 17, identifies English culture, philosophy, and politics as having exerted a significant influence on Hart.
(7) The argument in The Socialist Case is an example of ‘New’ Fabian thinking (featuring advocacy of, inter alia, Keynesian demand management, income redistribution, and nationalisation of national monopolies). See Marquand, 1988, 25-26.
(8) Horwitz, 1997, 577-578, describes Hart as a ‘Jewish social democrat’ and as ‘a Man of the Left’.
(9) Cf Honoré, 1993, 298-299 (noting that ‘[d]uring the war … [Hart] became a Labour Party supporter – a democratic socialist with liberal leanings, not a Marxist – and remained one for the rest of his life’.
(10) Wechsler is best known for his account of ‘neutral principles of constitutional government’ (that specify that judicial decisions should be based on ‘analysis and reasons quite transcending the immediate result that is achieved’) (Wechsler, 1959, 1-35).
(11) The ‘policy approach’ explains legal rules and decisions concerning causation by reference to, inter alia, the law’s economic impact (188).
(12) Condescension of the sort described in the text finds expression in Green, 1955, ix (where Zadie Smith, in her foreword, notes Graham Greene’s determination to ‘fight against big, featureless impersonal ideas’ that have their roots in American political philosophy). See also Hitchens, 2006, ch 1 (discussing, inter alia, Harold Macmillan’s view that ‘[t]hese Americans represent the new Roman Empire and we Britons, like the Greeks of old, must teach them how to make it go’).
(13) 280. See also Hart, 1968, 9 and 25.
(14) In 1952-53, Rawls (who then held a post at Princeton) had visited Oxford and attended Hart’s lecture course. See Pogge, 2007, 16. Rawls was also a visitor to All Souls in 1965 (269).
(15) Rawls’s statement of his first principle of justice was, indeed, provisional. In later works, he sought to refine it. See, for example, Rawls, 2001, 42.
(16) See Freeman, 2007, 75 (who notes that Rawls ‘does not make it clear whether he intends [his] first principle of justice to be as potentially wide-ranging as Mill’s [harm] principle’).
(17) Rawls’s theory of justice is ‘realistically utopian’ since it is informed by the aim of ‘probing the limits of practicable political possibility’. See Rawls, 2007, 10-11.
(18) Cf Franco, 2004, 155-156 (noting that, in his efforts to define civil association, Oakeshott staked out positions that exhibited similarities to those of Hart).
(19) The priority attached to consequentialist concerns by Hart is sequential. On ‘sequential argument’, see B. Chapman, ‘Law Incommensurability, and Conceptually Sequenced Argument’ (1998) 146 University of Pennsylvania Law Review 1487.
(20) The priority attached to deontological considerations by Rawls is, in some circumstances, substantive and not merely sequential. This is because ‘a departure from the institutions of equal liberty required by the first principle cannot be justified by, or compensated for, by greater social and economic advantages’. (See also Rawls, 1971, 61 (noting that the two principles of justice ‘are to be arranged in a serial order with the first principle prior to the second’.)
(21) See also, Evans, 2005, 138 (noting that Josef Goebbels (the Nazi Minister of Propaganda) described The Myth of the Twentieth Century, the magnum opus of the Third Reich’s most prominent philosopher, Alfred Rosenberg, as a ‘philosophical belch’).
(22) Hoggart, 1995, 182 (noting Henry James’s injunction, ‘Try to be one of the people on whom nothing is lost’).
(23) Forster’s analysis relates to characters in works of fiction. Nonetheless, it has relevance to the work of biographers (who are more or less successful in their efforts to breathe life into those whose lives they examine).
(24) The editors of the Times Higher Education Supplement characterised Rawls as ‘Mr Justice’ in 2007, when seeking to draw attention to John Dunn’s review of John Rawls’s Lectures on the History of Political Philosophy (THES, 2007, no 1750, 1).
(25) Social primary goods are those ‘things that every rational man is presumed to want’ in order to pursue a ‘rational plan of life’ (Rawls, 1971, 62).
(26) Perfectionism is ‘the ethical position that the goal of life is to pursue a perfect [or, at least, highly estimable] ideal of character and conduct’ (Blackburn, 1994, 282).
(27) For discussion of the (often) blind impress of culture, see Rorty, 1989, ch 2 (drawing on the poetry of Philip Larkin).
(28) Exclusionary reasons provide grounds for disregarding either all or some reasons that would otherwise have action-guiding significance when reaching decisions in particular practical contexts. See Raz, 1990, 35-48.