Hart, Herbert Lionel Adolphus (1907–1992)

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HART, HERBERT LIONEL ADOLPHUS
(1907–1992)

Herbert Lionel Adolphus, professor of jurisprudence at Oxford University (1952–1968), was the most important and influential philosopher of law of the twentieth century. Bringing to bear the linguistic approach to philosophy championed by Wittgenstein and Hart's Oxford colleague, J. L. Austin, Hart transformed jurisprudence into the vibrant discipline it had been at the time of Jeremy Bentham and his student, John Austin. He revealed the law to be a fertile ground for addressing age-old philosophical questions on a wide range of topics, for example, the analysis of causation, human action and intention, responsibility and rights, and the very nature of morality. Ronald Dworkin, who succeeded Hart in the Oxford Chair, nicely expressed this feature of his predecessor's work in a speech delivered at Hart's memorial service: "Herbert showed how philosophy can be tutor to law, how lawyers' questions about punishment and cause and definition have philosophical dimensions that it is irresponsible to ignore. He also showed how law can be tutor to philosophy, how legal problems, discriminations and attitudes can help philosophers in formulating and attacking those same ancient philosophical puzzles." (Hart, Jenifer, p. 213). Although Hart's writings cover a wide range of topics, his most memorable and influential contributions were in four main areas: causation, the theory of punishment, the moral limits of the law, and the concept of law.

Causation

Causation in the Law (1959), written with A. M. Honore, is an impressive and original analysis of causation as it figures in Anglo-American legal systems. The authors proceed from the premise that then-extant philosophical analyses of cause and effect were largely inadequate because they focused on causation in science, where the concern is to establish causal laws and generalizations. Within the domain of law (and analogously morals), however, causation is more particularistic in nature, concerned with whether, for example, the defendant caused the death of the victim. Assessing such claims requires appeal to an array of different principles and individuating features, and attention to central or paradigm cases in which causal responsibility is confidently assessed. These factors are all in various complex ways connected with ordinary understandings of causation as these are reflected in our linguistic practices. It is here, perhaps more than anywhere else, that Hart's debt to J. L. Austin's "ordinary language philosophy" is in evidence. This is a method in which, as Hart later said in The Concept of Law, "We are using a sharpened awareness of words to sharpen our perception of the phenomena" (Austin 1956–1957, p. 8).

Theory of Punishment

Punishment and Responsibility (1968) is a collection of essays in which Hart develops a distinctive theory of punishment. The account was motivated by two factors. First, there is the potential for abuse seemingly inherent in utilitarian theories of punishment. In the right circumstances, they appear to sanction excessive punishment, as well as punishment of the innocent. Second, there was Hart's utter rejection of Kantian retributivist theories that view punishment as warranted independently of any good that might be brought about through its exercise. In a characteristic effort to seek compromise, Hart sought the middle ground between the two theories. Retributivist principles should influence the distribution of punishment: Only the guilty should be punished and only to the degree that they deserve. But the utilitarian goal of general deterrence remains to justify the overall practice.

The Law's Moral Limits

Law, Liberty and Morality (1963) represents a brilliant statement of Hart's liberal views regarding the role of law in enforcing morality, views that echo those of his distinguished liberal predecessor, John Stuart Mill. The book summarizes and extends Hart's contribution to a famous debate with Lord Patrick Devlin who, in response to an official call for legalizing prostitution and homosexuality in England, argued that a society has a right to enforce its morals because a solid moral foundation is as essential to its survival as a firm political structure. In Devlin's view, society has as much a right to enforce its morals through legal means as it has the right to protect itself through laws against sedition and treason. Hart was thoroughly repelled by Devlin's legal moralism. There is little reason, he argued, to believe that failure to enforce widely shared moral beliefs inevitably leads to social disintegration. Devlin also fails to recognize the distinction between positive morality (the morality widely shared within a society) and critical morality (more enlightened, rational standards for assessing both human conduct and, crucially, a society's positive morality). Most importantly, Devlin fails to appreciate the important role of the latter in challenging positive morality and in keeping alive the animating spirit of morality—the belief that certain standards of behavior should be followed, not because they are widely accepted and enforced, but because adhering to them voluntarily is the right thing to do. In Hart's view, critical morality includes a mixture of principles and values, some of which have utilitarian roots, others of which are of a more deontological bent. These standards, he thought, reveal that the coercive hand of the law should be used only to prevent palpable harm to others, or for the sake of a limited set of paternalistic goals.

The Concept of Law

Hart's most memorable work was undoubtedly in the area of general legal theory, where "Positivism and the Separation of Law and Morals" (1957–1958) and The Concept of Law (1961) stand as monumental contributions to our understanding of law and legal systems. These works develop a modern version of the legal positivism espoused by Bentham and Austin. Much as those two theorists had done, Hart sought to explain law as it is, not as it ought to be. In his view, natural law theories confuse these two issues, thus leading not only to philosophical confusion, but to anarchism (this law is not as it ought to be; therefore it is not really law and I am free to disregard it) or reactionary thinking (this is the law; therefore it must be as it ought to be and I must obey). The latter mind-set was of particular concern to Hart because it led, he thought, to a dimming of the vitally important sense that, for all its aura of majesty and authority, law's demands must always remain open to moral critique and challenge.

Though he shared this overall positivistic approach to law and legal analysis with Bentham and Austin, Hart departed dramatically from them on a number of other fronts. Most importantly, he thoroughly rejected their command theory according to which law is comprised of the general commands of an habitually obeyed sovereign whose directives are backed up with threat of sanction. The command theory reduces law to "the gunman situation writ large" (1994, p. 7), that is, it views our situation under law as analogous to being obliged to surrender our money to a gun-toting robber. But we do not always view laws this way. Many of us take a more "internal point of view" (1994, p. 89) toward them. While we may feel obliged to hand over our money to the gunman, many—especially the officials of the legal system—view laws as imposing legitimate reasons for action. Furthermore, not all laws demand or prohibit conduct. Rather they facilitate our doing certain good things, such as entering into contracts and creating valid wills. As such, they are grossly mischaracterized if conceived as orders backed by threats.

Conclusion

So law is not the gunman situation writ large: It is the "union of primary and secondary rules" (1994, p. 99). Unlike the standards of morality and the social mores of etiquette and fashion, legal systems have a formal structure created by the interplay of primary rules (of duty and obligation) and certain fundamental secondary rules (rules about other rules). Every legal system contains a secondary rule of recognition that specifies criteria of validity—for example, parliamentary enactment or conformity with a Charter of Rights—which all other rules of the system must meet if they are to count among its binding laws. There will also be secondary rules of change, through which existing rules are altered or replaced, and secondary rules of adjudication, which regulate the enforcement and application of legal rules, most notably by judges. These fundamental secondary rules are social rules whose existence and content depend crucially on the behavior of the officials who use them in the everyday workings of the system.

Understood in this way, law can be seen to be a human, social creation. Its existence and content are matters of social fact, determined by what is, not by what ought to be. Despite his firm commitment to this positivistic view of law's content, Hart was prepared to concede that there is a kernel of truth in rival natural law theories. Law is a social institution whose existence depends on its acceptance; but there would be no reason to accept law were it somehow devoid of "minimum forms of protection for persons, property and promises" (1994, p. 199). There is therefore a "natural necessity" (1994, p. 199) that legal systems contain this minimum content. Beyond this humble minimum, however, Hart was not prepared to venture, thus affirming his conviction that the law, by its very nature, may fail to meet our moral expectations of it.

Bibliography

Austin, J. L. "A Plea for Excuses." Proceedings of the Aristotelean Society 57 (1956–1957): 1–30.

Bentham, Jeremy. An Introduction to the Principles of Morals and Legislation, edited by J. H. Burns and H. L. A. Hart. London: Athlone Press, 1970. 2nd ed., Oxford, U.K.: Clarendon Press, 1996.

Bentham, Jeremy. Of Laws in General, edited by H. L. A. Hart. London: Athlone Press, 1970.

Dworkin, Ronald. Law's Empire. Cambridge, MA: Harvard University Press, 1986.

Dworkin, Ronald. Taking Rights Seriously. London: Duckworth, 1977.

Hart, Jenifer. Ask Me No More. London: Peter Halban Publishers Ltd., 1998.

Raz, Joseph. The Authority of Law: Essays on Law and Morality. Oxford, U.K.: Clarendon Press, 1979.

Raz, Joseph. The Concept of a Legal System. Oxford, U.K.: Clarendon Press, 1970.