H.L.A. Hart

Matthew H. Kramer

• Publisher: Polity
• Year: 2018
• ISBN:
  9781509520763
• Edition: 1
• Topic: Philosophy
• Subtopic: Political Philosophy

H.L.A. Hart is among the most important philosophers of the twentieth century, with an especially great influence on the philosophy of law. His 1961 book The Concept of Law has become an enduring classic of legal philosophy, and has also left a significant imprint on moral and political philosophy. In this volume, leading contemporary legal and political philosopher Matthew H. Kramer provides a crystal-clear analysis of Hart's contributions to our understanding of the nature of law. He elucidates and scrutinizes every major aspect of Hart's jurisprudential thinking, ranging from his general methodology to his defense of legal positivism. He shows how Hart's achievement in The Concept of Law, despite the evolution of debates in subsequent decades, remains central to contemporary legal philosophy because it lends itself to being reinterpreted in light of new concerns and interests. Kramer therefore pays particular attention to the strength of Hart's insights in the context of present-day disputes among philosophers over the reality of normative entities and properties and over the semantics of normative statements. This book is an invaluable guide to Hart's thought for students and scholars of legal philosophy and jurisprudence, as well as moral and political philosophy.

1
A Discourse on Method

A full exposition of the philosophy of H.L.A. Hart would cover five main areas: (1) legal positivism and the general nature of law; (2) causation in the law; (3) responsibility and punishment; (4) the nature of rights; and (5) liberal political philosophy and civil liberties. His writings in each of those categories will continue to influence philosophical debates for many generations to come, but there is little doubt that the magnitude of his achievement is greatest in the first category. The Concept of Law will continue to be read – in its original language or in any of the myriad of languages into which it has been translated – until human beings altogether cease to be interested in the philosophy of law. It has rightly attained a place among the foremost classics in that area of philosophy. Hence, given that the limit on the length of each volume in the Key Contemporary Thinkers series will require selectivity in my engagement with Hart's oeuvre, the appropriate focus for that engagement is quite straightforward. Although the present book will occasionally refer to Hart's work on some of the other topics listed above, it will concentrate chiefly on The Concept of Law and on several of his main essays that likewise explore the fundaments of legal systems.

My principal aim in this book is to expound Hart's arguments and to assess their philosophical merits. Matters of intellectual history will enter into this volume only insofar as they help to shed light on the substance or quality of Hart's lines of reasoning. This rigorously philosophical orientation tallies nicely with his own objectives in writing The Concept of Law. As Hart stated at the outset of his classic text (vii), he sought to contribute to the philosophy of law rather than to the history of ideas.

Before we examine Hart's philosophical thinking, however, we should glance at his life.¹ Herbert Lionel Adolphus Hart was born into a Jewish family in Yorkshire, England in 1907. He pursued his undergraduate education at New College, Oxford, where he obtained a degree in 1929 in Literae Humaniores (a mixture of classical languages, ancient history, and philosophy). After completing his undergraduate endeavors, he undertook private studies in law that led to his qualifying as a barrister in the English legal profession. Having practiced law in London for several years during the 1930s, he worked for the British intelligence service MI5 during World War II. When the war ended, Hart returned to Oxford to take up a fellowship in philosophy at New College. In 1952, he was elected to Oxford's Professorship of Jurisprudence and to a concomitant fellowship of University College. Through his publications and his training of students, he made Oxford into the world's pre-eminent center of jurisprudential scholarship. A few years after stepping down from the Professorship of Jurisprudence in 1968, he became Principal of Brasenose College, Oxford. During the closing years of his career as an active scholar, he devoted much of his time to editing and interpreting the works of Jeremy Bentham. Hart died at the age of 85 in 1992. Many former students of his, including Joseph Raz, John Finnis, Neil MacCormick, Herbert Morris, and Wilfrid Waluchow, have been among the most prominent legal philosophers of the next generation.

1 Posing the questions

The opening chapter of The Concept of Law is a discourse on method. That is, Hart there broached the questions which he would address and the general approach which he would adopt for coming up with answers to those questions. His overarching concern was to delineate the general characteristics of law or of legal systems. However, instead of directly tackling that concern as a single question – the question “What is law?” – he differentiated among three main avenues of investigation that could together yield an answer to the overarching inquiry.

First, Hart proposed to ferret out the similarities and dissimilarities between the mandates introduced by a legal system and the orders uttered by a gunman. To what extent are the operations of a legal system analogous to the issuance of dictates that are backed by threats of force? In other words, to what extent are the multifarious legal relations in any society analogous to an array of starkly coercive relations? Hart addressed this question predominantly in the first half of his book, though naturally he drew upon his responses to it – implicitly or explicitly – throughout the rest of the volume.

Second, Hart sought to pin down the differences and affinities between legal requirements and moral requirements. Law shares with morality a repertoire of key notions. Both in legal systems and in the domain of morality, we encounter duties and rights and liberties and powers and immunities and so forth. Both legal norms and moral norms are authoritative standards by reference to which the normative import of anyone's conduct can be gauged. Are legal obligations, then, a subset of moral obligations? Is there always a moral obligation to comply with legal requirements? These and other questions pertaining to the relationships between law and morality were addressed by Hart primarily in the eighth and ninth chapters of The Concept of Law (and in some of his concomitant essays), but he touched upon them in virtually every other chapter as well.

Third, Hart endeavored to explain what norms are, as he pondered the extent to which any legal system operates as a system of norms. When we ask what norms are, we are asking about the difference that is made by the presence of any norms. What is the difference between behavioral regularities that occur through the guiding sway of some norms and behavioral regularities that are not similarly oriented toward any such guiding sway? What is the difference between an adjudicative or administrative decision that implements some pre-existent norm(s) and an adjudicative or administrative decision that is not similarly an application of any such norm(s)? To what extent do the decisions by adjudicators and administrators in a legal system give effect to laws that prescribe determinately correct outcomes, and to what extent do those decisions amplify or modify the existing law through discretionary choices? Hart came to grips with these questions in the early chapters of The Concept of Law and in the pivotal seventh chapter. Given his commitment to the proposition that legal systems are systems of norms, and given the centrality of that proposition in his efforts to differentiate his own theorizing from that of his great legal-positivist predecessors Jeremy Bentham and John Austin, the success of his jurisprudential project hinged in no small part on the adequacy of his answers to these questions.

2 Elucidation of a concept

Together, the three foregoing lines of enquiry can lead to a distillation of the fundamental properties of legal systems. In setting out to pursue those lines of enquiry, Hart aspired to elucidate the prevailing concept of law. Such a characterization of his project is easily misunderstood, however. As will be emphasized shortly, he was not engaging in a lexicographical enterprise whereby he would try to formulate necessary and sufficient conditions for the applicability of the term “law” or of the phrase “legal system.” On the contrary, he repeatedly indicated that he regarded any such definitional endeavor as futile and misguided. Thus, although concepts undoubtedly correspond to general terms that are associated with them, the concept of law which Hart sought to elucidate is not a matter of linguistic usage. Rather, it is a way of understanding or apprehending some phenomenon. It is an understanding of law (or of legal systems) that informs everyday discourse and reflections.

Hart sketched that understanding of legal systems in some very early pages of The Concept of Law that are frequently overlooked or forgotten. Near the outset of his introductory chapter, he attributed to “[m]ost educated people” – or to “[a]ny educated man” – a general awareness of the structures of legal systems and a general familiarity with various types and instances of the laws that emanate from those systems (2–3). Such awareness and familiarity are components of the common-sense knowledge acquired by any reasonably well-educated person as a result of growing up in a society with a functional system of governance. That common-sense understanding is what Hart ventured to illuminate through his philosophical ruminations.

When Hart maintained that he was endeavoring to elucidate that everyday understanding of law – the concept of law – he meant that he was clarifying and refining it by expounding its presuppositions and entailments. In other words, he was attempting to show both what is taken for granted by that understanding and what follows from it. With his exposition of the nature of law, he was of course trying to shed light on an array of major institutions that profoundly affect the lives of people wherever those institutions operate, but he was also trying to acquaint his readers better with themselves. By gaining a more sophisticated comprehension of the workings of legal systems, Hart's readers can likewise gain a more sophisticated grasp of their own outlooks and assumptions.

Hence, the title of Hart's classic text denotes both the starting point and the destination of his enquiry. Hart embarked on his jurisprudential reflections by adumbrating a simple understanding of law that is serviceable for nearly all ordinary purposes. He then parlayed that elementary understanding into a philosophically rigorous theory, by elaborating its underpinnings and corollaries. Having begun with a relatively superficial concept of law, he finished with a greatly deepened concept.

What should be noted here is that the quotidian understanding of legal institutions that serves as the point of departure in The Concept of Law is indispensable for the very intelligibility of the book's theorizing. Hart relied throughout on the familiarity of his readers with the notions which he needed to invoke in order to develop a philosophical account of law. Had he and his readers not already been possessed of a pre-theoretical comprehension of law, he could not have arrived at a refined theoretical comprehension – because the transition from the former to the latter requires the building blocks which the former provides. Neither a philosophical theory nor any other theory can arise from nowhere; some propositions have to be treated as givens if a theory is to have any basis for its conclusions and any material for reaching those conclusions. In The Concept of Law, the paramount givens are the common-sense items of knowledge which Hart imputed to most educated people near the beginning of his book.

3 A method of central instances

Having framed the questions which he would tackle, and having recounted the elementary understanding of legal systems that would be his point of departure, Hart concluded the opening chapter of The Concept of Law by mulling over the method through which he would answer those questions. As has already been observed, he firmly eschewed any aspiration to supply a definition of the term “law” or of the phrase “legal system.” As he wrote, “it seems clear, when we recall the character of the three main issues which we have identified as underlying the recurrent question ‘What is law?’, that nothing concise enough to be recognized as a definition could provide a satisfactory answer to it” (16). Believing that a definitional approach would consist in distilling the individually necessary and jointly sufficient conditions for the applicability of the term “law” or of the phrase “legal system,” Hart was concerned that any such approach would be fruitless and inordinately rigid. It would oblige him to resolve certain matters straightaway – matters relating to marginal or borderline types of legal systems – which he wished to defer to the end of his investigation. Had he shaped the key elements of his theory to take account of those marginal matters ab initio, he would have been allowing the tail to wag the dog. He would have been skewing the central portions of his theory by adjusting their contours to fit the peripheral portions. Or so Hart contended, as he remarked that peripheral instances of legal systems wo...

Table of contents

• Cover
• Table of Contents
• Series page
• Title page
• Copyright page
• Preface
• 1: A Discourse on Method
• 2: Hart on Legal Powers and Law's Normativity
• 3: The Components of Hart's Jurisprudential Theory
• 4: Hart on Legal Interpretation and Legal Reasoning
• 5: Law and Morality
• 6: Conclusion
• References
• Index
• End User License Agreement