AN OUTSIDER ON THE INSIDE: HART’S LIMITS ON JURISPRUDENCE

Amanda Perreau-Saussine*

AN OUTSIDER ON THE INSIDE: HART’S LIMITS ON JURISPRUDENCE†

I

Introduction

In the small company of thinkers worthy to have dealings with philosophy, Plato’s Socrates places honest men in exile, men with great minds but ‘born in a petty state’ or suffering from bad health, and perhaps ‘a gifted few who turn to philosophy from other occupations which they rightly despise.’1 After World War II, MI5 lost to philosophy the gifted wartime head of its counter-espionage section, a man ‘very sensible in a crazy world’ who was dearly liked by his colleagues and whose work had been of strategic importance.2 In spite of a strikingly successful pre-war career as a barrister, it was not to the English Bar that Herbert Hart was to return: reflecting in his diary on ‘the horror of the dishonesty of the legal underworld on which barristers batten like gaily coloured fungi,’ Hart convinced himself that such work ‘would submerge all other intellectual interests, narrow the understanding and corrupt my life,’ leaving him unable to look back on it ‘without disgust’ (112).3 Instead, in January 1945, Hart accepted an invitation from the warden of Oxford’s New College, Alic Smith, to take up a fellowship in philosophy there. Hart first came to New College as an undergraduate in 1926 to read Classics (Literae Humaniores, or ‘Greats’: a mixture of Greek, Latin, ancient history, and philosophy); he was tutored by Smith and by Horace Joseph, Smith’s former teacher. It was Joseph in particular who had nurtured Hart’s philosophical interests (26–7). On his death in 1943, Joseph’s Oxford obituarist characterized him as having * Fellow and University Lecturer in Law, Newnham College, Cambridge. † A review essay on Nicola Lacey, A Life of H.L.A. Hart: The Nightmare and the Noble Dream (Oxford: Oxford University Press, 2004). Subsequent references appear parenthetically in the text. I am grateful to Margaret Atkins, David Dyzenhaus, Nigel Simmonds, and John Tasioulas for comments on an earlier draft. I draw here on sections of a forthcoming article, ‘Hart and the Noble Lie of Legal Positivism,’ presented at a Legal Theory Workshop at the University of Toronto in September 2004; I am indebted to participants at the workshop for their comments. 1 Plato, The Republic at 496b, trans. by Desmond Lee (London: Penguin, 1987) at 292. 2 ‘He was absolutely accurate and reliable, but not very intuitive. He was also very sensible in a crazy world: he was perpetually amazed at what was going on. This was characteristic of him: to be amazed at ordinary human folly.’ Stuart Hampshire, quoted in Lacey at 89. 3 Lacey quotes from a letter from Hart to Isaiah Berlin, written in August 1944. (2006), 56 UNIVERSITY OF TORONTO LAW JOURNAL

372 UNIVERSITY OF TORONTO LAW JOURNAL incarnated, more than any man of his time, the essential characteristics of ‘Greats’ Philosophy: a philosophy firmly rooted in the teachings of Plato and Aristotle, and continuing that tradition as a living thing, applicable to the problems of our own day.4

Isaiah Berlin was later to estimate that, in the 1930s Oxford revolt ‘against the entire traditional conception of philosophy as a source of knowledge about the universe,’ the man ‘who suffered most deeply was probably Joseph’: He had a very acute sense of the true tradition which he felt it was his duty to defend – a tradition which he received at the hands of his deeply admired master Cook Wilson, whose name and fame, despite all his disciples’ efforts, are still confined – so far as they survive at all – to Oxford. Plato, Aristotle, to some degree the rationalists, and again Cook Wilson – these Joseph defended to the end of his days.5

Smith seems to have hoped that Hart would return to Oxford as a new defender of this ‘Greats’ tradition, championing it against the new linguistic philosophy of Gilbert Ryle and J.L. Austin, the logical positivism of the Vienna Circle, and the work of Ludwig Wittgenstein.6 4 Oxford Magazine (2 December 1943) at 98. H.W.B. Joseph wrote extensively on Plato, Leibniz, Berkeley, and Kant – as also on Spencer, Darwin, Huxley, and Marx – but is mainly remembered for his contribution to Aristotelian logic. 5 Isaiah Berlin, ‘J.L. Austin and the Early Beginnings of Oxford Philosophy’ in Isaiah Berlin, Personal Impressions (Oxford: Oxford University Press, 1982) 101 at 102–4. 6 Lacey (113) writes that Warden Smith ‘cherished the hope that Herbert would return and revive idealist philosophy, and in particular the Platonic philosophy which had been so central to Herbert’s own education at the College.’ Both Joseph and Smith were strongly influenced by John Cook Wilson (Wykeham Professor of Logic at New College, 1889–1915) and would usually be categorized as ‘Oxford realists’ and not as idealists: see Mathieu Marion, ‘Oxford Realism: Knowledge and Perception’ (2000) 8 Brit.J.Hist.Phil. 299 & 485, writing that ‘Hart, perhaps the greatest British legal philosopher of the century, came up to New College with a scholarship in 1926 and was tutored in philosophy by Joseph and Smith, who steered him towards Cook Wilson’s realism’ (at 503 n. 105). Lacey herself quotes a letter of reference from Berlin to Smith, referring to Hart as ‘an excellent solid Cook Wilsonian’ as an undergraduate, and predicting Hart would be ‘an admirable teacher of the staple diet,’ not likely ‘to write a notable book’ but whose work would resemble ‘a solid pedestrian tramp’ (117–8). But, as Lacey and Marion both note, Joseph remained a ‘devoted admirer of Cook Wilson’ and a ‘strongly committed Platonist’ (Lacey 26–7, quoting Hart on how Joseph ‘worshipped Plato’; Marion, ‘Oxford Realism’ at 485: ‘Joseph never really gave up idealism but tried instead to accommodate some of Cook Wilson’s theses’). Joseph’s biographer goes further: ‘his doubts concerning the independent reality of space and the nature of solidity and magnitude caused a gradual return to a position similar to the idealism which had prevailed in Oxford during his undergraduate days.’ Clement C.J. Webb, rev. C.A. Creffield, Oxford Dictionary of National Biography (Oxford: Oxford University Press, 2004) s.v. ‘Joseph, Horace William Brindley (1867–1943)’. See also

AN OUTSIDER ON THE INSIDE : HART’S LIMITS ON JURISPRUDENCE

373

In the early years of his fellowship, Hart did plan to write a book on Plato. Joseph had been for a long time the principal lecturer in the university on Plato’s Republic; in 1947 Hart edited some of those lectures for publication, explaining in his editor’s preface that ‘the Platonic doctrine which it is concerned to expound was considered by [Joseph] to be of very great philosophical importance, and yet was not the subject of any of the essays on Plato which he published in his lifetime.’7 Later in this essay, I will suggest that Hart himself may have retained an understanding of morality influenced by Plato – not an idealist Plato, but one tentative or even sceptical about whether his very real ambitions for moral philosophy could be realized.8 By 1951 Hart was delivering lectures on ‘Legal and Political Theories in Plato.’ But Hart’s own book on Plato remained unwritten, and the lecture notes appear to have been lost. Instead, Hart was to hold the Oxford Chair in Jurisprudence and to become the founder of modern analytical jurisprudence.9 Nicola Lacey’s compelling and gracefully written account of Hart’s life and work was published by Oxford University Press in the autumn of 2004, to deserved acclaim. As a biographer, Lacey manages to combine a lively, humble, and infectiously tender sympathy for Hart with acute observations and a strikingly circumspect yet never pusillanimous account of his world and his writings. She maintains throughout the book an impressive balance between affectionate intimacy and courageously detached assessment, and she offers a wealth of material to illumine understanding of the development of Hart’s ideas and of his jurisprudential debates with Lon Fuller, Hans Kelsen, Patrick Devlin, and Ronald Dworkin. For a scholar who must have spent frustrating years labouring over Hart’s barely legible manuscripts and diaries, who was a graduate student and for eleven years a lecturer in the world of Oxonian jurisprudence, and who in her own work ‘takes a more critical view of his ideas, and in particular of his vision of the distinctively philosophical John Passmore, A Hundred Years of Philosophy (Harmondsworth, UK: Penguin, 1994) at 251–2. 7 H.W.B. Joseph, Knowledge and the Good in Plato’s Republic, ed. by H.L.A Hart (London: Oxford University Press, 1948): at preface. 8 An understanding of Plato close to that of Victorian thinkers like George Grote, John Stuart Mill, and Walter Pater, who associated Plato with critical, even sceptical, epistemology and, in some cases, with radical social reform. (A second group drew on Platonic philosophy as a vehicle for upholding Christian or transcendental doctrines. A third, particularly associated with Oxford and against whom Joseph saw himself as standing, treated Platonic philosophy as an idealist surrogate for Christian social and political values. See Frank Turner, The Greek Heritage in Victorian Britain [New Haven, CT: Yale University Press, 1981] at 369–451.) 9 While working at MI5, Hart had enjoyed debates with Gilbert Ryle and Stuart Hampshire (then MI6 colleagues); Hart’s correspondence with Isaiah Berlin (Lacey 117) shows that by the early 1940s he was grappling with linguistic philosophy.

374 UNIVERSITY OF TORONTO LAW JOURNAL boundaries of legal theory’ (xviii–xix), this is an achievement of real magnanimity. Those who awarded A Life of H.L.A. Hart the Swiney Prize appositely characterize it as a labour of love. One particularly difficult question for any biographer concerns how far to draw directly on the subject’s intimate papers and diaries. A second challenge specific to intellectual biography is that of how to relate the development of a philosophical work to its author’s character and social milieu. This essay focuses on Lacey’s approach to these two challenges, concluding by suggesting a way in which material presented in Lacey’s biography might contribute to an understanding of Hart’s philosophy of law. II

Lacey’s use of personal material: Hart’s attitude to his Jewish roots

Lacey’s use of Hart’s personal letters and diaries leaves the reader with a powerful sense of Hart’s ‘capacity to combine acute and sympathetic observation with an exquisite detachment’ (38) in his personal relationships and, in particular, of his relish for acceptance in establishment roles combined with his own sense of distance, often expressed in a playful yet trusting irony. (On ‘a loyal holiday with the Upper Classes’ he writes to his future wife, ‘Just off to murder animals. I’d forgotten how strange I look in hunting clothes – but rather lovely’ [49–50].) Lacey acknowledges that ‘some readers may feel that I have been too generous in my use of the personal material – particularly that relating to his feelings about his sexuality and his marriage’ but explains that ‘my judgment was that it was essential to any interpretation of him as a whole person’ (xix–xx). In reading some of those intimate passages, this reader did feel voyeuristic, although the material emphasizes Hart’s aspirations to ruthlessly detached honesty and a reasoned direction of his own emotions and gives a painfully immediate sense of his self-doubt. But Hart himself might well have objected less to publication of his reflections on his own sexuality and his marriage than to Lacey’s enlightening discussions of his attitude to his Judaism, which, for Hart, was a peculiarly private matter. Isaiah Berlin attributed the ‘broken’ side of Hart to his attitude to his Jewish roots, although Lacey asks ‘whether it was rather that Jewishness provided a salient object onto which Herbert could project (and Berlin could rationalize) his unsettled personal identity’ (265; also 386). In a striking passage in a letter of August 1944 to Berlin (then working at the British Embassy in Washington) on the ‘vexed and vexing question of what to do after the war if the F bombs have not settled the question for me,’ Hart explains that one of his reasons against returning to the bar is his ‘dislike of other lawyers, judges, lawyers’ clerks, solicitors (Jewish solicitors – o monde immonde [o vile world]), and of the legal mentality in all its narrow superficial and

AN OUTSIDER ON THE INSIDE : HART’S LIMITS ON JURISPRUDENCE

375

reactionary manifestations’ (112). Lacey suggests that, in his anxiety both to assimilate into the English establishment and to be judged as an individual rather than a member of a group, ‘Herbert risked internalizing the very snobbery and prejudice which, at an intellectual level, he rejected so firmly’ (35, 39). She concludes, echoing Berlin, that ‘the tension between an underlying sense of Jewish identity and an intellectual commitment to its moral irrelevance was almost certainly the occasion for at least some of Herbert’s personal perplexities – his “brokenness”’ (271): such tensions were ‘the origins of a form of repression which was to reap many professional rewards, yet impose many personal costs’ over the course of Hart’s life (39).10 Lacey suggests that Hart’s dislike of being labelled as the son of a Jewish tailor during three miserable school years at Cheltenham ‘prefigured his later anti-religious views and the centrality of individual choice to his particular brand of liberalism’ (18–9). As an undergraduate, Hart attributed what anti-Semitism he encountered to ‘ignorance’ rather than malice, but the ‘ignorance’ ran very close to home (33). At the end of a glowing letter of reference written for one of Hart’s applications for an Oxford research fellowship in 1930, apparently to pre-empt anti-Semitic objections to Hart’s candidature, Joseph writes, I may add that I did not discover for some time the fact of his being a Jew. He hardly looks it: he doesn’t parade it: he doesn’t conceal it: he knows, I think, some Hebrew, and is interested in the thought of his own people. He kept in with the others of his people here; he equally easily kept in with those who were Christians. (35)

Failing to find a research fellowship at Oxford, Hart turned to a career at the bar (taking elocution lessons to get rid of his Yorkshire accent as an aid to his success). He prospered rapidly as a barrister, and in 1935 he attempted to join the Oxford and Cambridge Club. The club refused him. Both Patrick Reilly (who had nominated Hart) and Richard Wilberforce believe this to have been because Hart was Jewish – more specifically, according to Wilberforce, because Hart was not a well-connected Jew, since the club did have some Jewish members. Lacey quotes from Wilberforce’s diary: Suddenly one day [Hart] burst into my room with a letter from [Reilly] telling him that a section of the club was violently anti-Jewish and that the committee didn’t dare to go against it – recommending R. to withdraw the candidature. H. was terribly upset; he has always been sensitive about his race – he sees red when

10 For another three of Hart’s five objections to returning to the bar, see text above at note 3; the fifth was his objection to ‘the profoundly anti-social or at least a-social character of my sort of legal work (tax evasion and the like)’ (??).

376 UNIVERSITY OF TORONTO LAW JOURNAL the word Nazi is mentioned – refused to travel on a German boat to Lisbon – an idea which I had; he has completely taken his place in the Wykehamist–New College set, goes everywhere; he is a man who believes, too much perhaps, in the aristocracy of the intellect. So that when he heard of this being done, and being done by that of all clubs, a university club which by its constitution sets the imprimatur of respectability on every university man, knowing too ... how easy it is to get elected, naturally it shocks him and knocks his world from underneath him. (45)

Wilberforce later annotated this section of his diary to add that ‘we did not feel so strongly about anti-Jews before the Holocaust,’ although in retrospect he should have been yet more ‘indignant at the principle’ (54); decades later Reilly wrote to Hart’s wife that ‘I have never forgiven myself for not resigning when he was rejected. It had never occurred to me that such a thing was still possible in a civilised club’ (55). Lacey suggests that Hart’s rational objections to this bigotry ‘sat uncomfortably alongside the feelings prompted by other important aspects of Herbert’s personality: the sensibility of his Jewish origins and his desire to fit or belong’ (54–5). One of Hart’s great-grandfathers was for a time a chief judge of the rabbinical court of the Great Synagogue in London, and it was to his father’s family’s rabbinical tradition that Hart attributed his family’s respect for learning, the ‘belief in the aristocracy of the intellect (17, 13). Hart’s father regularly attended Saturday services, and, although no one remembered seeing the rest of the family there, the children were taught Hebrew and each of the boys, Hart included, celebrated his bar mitzvah (15). Hart retained a knowledge of the Talmud and of the system of Jewish courts. He was to relearn Hebrew at the age of fifty-four during a sabbatical in California in 1961 (247), and later still, as principal of Brasenose College, to deliver a lecture to the Oxford University Jewish Society titled ‘On Being a Jew at Oxford’ (320). Hart’s first visit to Israel in 1964 (to give the Lionel Cohen lectures at the Hebrew University in Jerusalem) was an occasion that, Lacey surmises, ‘forced him to confront what being Jewish meant to him, and how this could be reconciled with his secular liberalism.’ Joseph Raz, then a student at the Hebrew University, ‘remembers Herbert seeming acutely uncomfortable during this visit’ and that ‘Izhak Englard, then a young torts scholar [...] and later to become a Justice of the Supreme Court, asked him directly why he had not been to Israel before and what his attitude was to being Jewish. Herbert, a man who almost never lost his temper, flew into a rage, telling Englard that this was none of his business’ (267–8). Most memorably of all, Lacey recounts ‘a striking comment which Herbert made to Ronald Dworkin (and at different times to fellow Jews George Fletcher, Aharon Barak, and Joseph Raz) about the Oxford Chair of Jurisprudence’ (271). The comment gives a startling

AN OUTSIDER ON THE INSIDE : HART’S LIMITS ON JURISPRUDENCE

377

illustration of Hart’s deep sense of being ‘an outsider on the inside’ (1), ‘a perpetual outsider to the English establishment to which he was, despite his trenchant liberalism, so firmly attached’ (343; see also 289): It was remarkable, Herbert said, that no English person had held the chair in recent decades. Amazed, Dworkin replied, ‘But you are English.’ ‘No,’ Herbert retorted, ‘I’m Jewish.’ (271)

Lacey’s book, I have suggested, gives a subtle and powerful account of Hart’s attitude to his Judaism. But how, if at all, is this significant in an intellectual biography? After all, neither theology nor religion, Hart remained adamant, had a direct bearing on philosophy. On sabbatical leave at Harvard University in 1956/1957, Hart wrote home to his wife, ‘I’ve been invited by both a Rabbi and a Catholic priest to lecture to separate meetings on how religion affects my subject. I shall refuse both, saying it does not.’ (193)11 This returns us to the challenge Lacey faced as an intellectual biographer: that of how to relate her account of the development of Hart’s life and character to that of his philosophical work. III

Intellectual biography and purely analytical jurisprudence

Whatever account is given of the relation (or absence of relation) between Hart’s personal life and his philosophy of law must presuppose an account of what can count as philosophical influence, and so also an account of the proper limits of the philosophy of law. ‘My rule of thumb,’ Lacey explains in an introductory ‘Biographer’s Note on Approach and Sources,’ was to use only the personal material which sheds light on the development of his ideas and the course of his career. But this, it turned out, was usually the case, because Herbert Hart himself moved seamlessly back and forth in his diaries between personal and professional preoccupations, and sought increasingly to draw links between the two. (xix–xx)12

This is one of few places in the book where Lacey gives a clear glimpse of her position as ‘underlying interpreter’ (xvii): her own writing on feminist legal theory aims to emphasize the close links between legal 11 Ten years later, Hart commissioned John Finnis, a Catholic and then one of Hart’s doctoral students, to write a book on Natural Law and Natural Rights; Hart worried that the theological arguments Finnis wanted to make in a final chapter would affect his jurisprudential arguments adversely, undermining the book as a work of philosophy (347). 12 Lacey acknowledges that her (sociologically minded) criticisms of Hart’s work, particularly on the boundaries of legal theory, ‘have shaped my interpretation of his work in this book’ (xix).

378 UNIVERSITY OF TORONTO LAW JOURNAL theory and social practice, treating jurisprudence as a social science and both law and legal philosophy as forces within and products of a socially constructed reality.13 Lacey’s position is one shared by many contemporary philosophers and sociologists, for whom the pursuit of general, universally applicable truths beyond Plato’s cave of everyday reality is profoundly misconceived: there is no ‘outside’ or ‘beyond,’ only the ‘inside’ world of civil society and its institutions constructed in and through social practice. On this account, a social scientist can and must aspire to give a descriptive account of those social practices from within the cave of civil societies. Hart himself initially characterized his book The Concept of Law as an exercise in ‘descriptive sociology,14 and central to that book is a concept of law as a system of social rules, a system built around a set of rules of recognition (standards that define what counts as valid laws). As the existence of a rule of recognition, and so also of a legal system, depend on human practice (particularly the practice of officials), Hart argues that to understand a particular legal system and its rule of recognition one needs to understand (although, he would insist, not necessarily share) the ‘internal attitude’ or point of view of the relevant officials in that society. 13 See esp. Nicola Lacey, Unspeakable Subjects: Feminist Essays in Legal and Social Theory (Oxford: Hart Publishing, 1998) at c. 3. Lacey’s focus on whether self-destruction was a corollary of Hart’s intellectual creativity is linked by one perceptive reviewer with Lacey’s feminist theory, who heralds the book as belonging to a special genre of ‘feminist biographical jurisprudence’: Samantha Besson, ‘Deconstructing Hart: Review of Nicola Lacey’s A Life of H.L.A. Hart’ (2005) 6 German L.J. 1093 at 1108. 14 In the light of a striking series of annotations in Hart’s copy of Max Rheinstein’s Max Weber on Law in Economy and Society, particularly around Weber’s discussion of the internal aspect of rules, Lacey concludes that ‘there was a Weberian undertow in The Concept of Law’ (229–30). Hart himself attributed any Weberian influence on his work to the mediating influence of Peter Winch’s The Idea of a Social Science. Although Hart may simply never have followed up his annotations to Rheinstein’s book, instead pursuing those same themes through his reflections on Winch’s work, Lacey suggests two other explanations for Hart’s denial of Weber’s influence. First, since ‘even the greatest thinkers in the tradition of modern social theory were regarded with some scepticism’ among analytical philosophers, Hart ‘may have been reluctant to claim sociological credentials which were unlikely to get him much praise within the philosophical world which he inhabited.’ Second, she suggests that in characterizing The Concept of Law as an ‘essay in descriptive sociology,’ Hart intended ‘to signal his move away from the more rigidly conceptual theories of John Austin and Hans Kelsen in favour of an approach which helps us to look at the complex social phenomenon of law,’ an approach revealing that ‘within the very loose constraints imposed by the socalled “minimum content of natural law,” the content of a legal system is entirely contingent, shaped by configurations of interests and other social, cultural, and political factors in its environment’ (229–30). Since Lacey’s second point explains Hart’s reliance on Weber but not his non-acknowledgement of that reliance, she implicitly suggests that Hart’s limits on jurisprudence and its philosophical sources are explicable, in large part, as those sustained and defended within the world of Oxonian analytical philosophy.

AN OUTSIDER ON THE INSIDE : HART’S LIMITS ON JURISPRUDENCE

379

But one of Hart’s most influential contributions to contemporary jurisprudential debates is his insistence that a concept of law can be (indeed, must be) developed prior to a contextual study of social practice and legal doctrine. The study of any particular system requires the fruits of prior reflection on the concepts to be employed: it is an ‘important truth that a purely analytical study of legal concepts, a study of the meaning of the distinctive vocabulary of the law, [is] as vital to our understanding of the nature of law as historical or sociological studies, though of course it could not supplant them.’ 15 Hart remained crucially ambivalent about the nature of this conceptual clarification or analysis. Since it is neither historical nor sociological nor logical nor metaphysical, what does this ‘purely analytical study’ involve? And can it defer or deflect both historical and metaphysical study without assuming its own metaphysical picture of the world? At times Hart emphasizes the vagueness and open character of language, insisting that his claims about the concept of law are not logical claims about the necessary and sufficient conditions for something to be law and that he does not assume that law is a closed logical system in which judges can deduce their decisions from premises. But if conceptual analysis requires us to eschew a search for necessary and sufficient conditions, Hart’s denial of a necessary connection between law and morals would be not a claim about what properly can and cannot be said to be conditions for something to be law but, instead, part of a general rejection of any attempt to give an account of law in terms of necessary and sufficient conditions. One way of developing this approach to jurisprudence would be to explain that a philosopher of law should aim to write as a thoughtful, reflective sociologist, a scholar who aspires to give a clear, detached account of the social and linguistic practices found in specific legal systems: her account of law will be a reflective account of actual legal practices, and so will require informed reflection on historical practice. A second and very different way of developing this approach to jurisprudence would be to treat the philosopher of law as one who aspires to escape the cave, believing that an analysis of social and linguistic practices is a necessary but not sufficient condition for her to comprehend moral and political truths that transcend those practices. Hart, I will suggest, was torn between these two very different understandings of the nature of jurisprudence. In a memorable chapter, Lacey evokes the excited, intense, and at times terrifying atmosphere of discussions among Oxford philosophers in the 1950s, of the ‘culture of gamesmanship and kingmaking’ and the 15 H.L.A. Hart, ‘Positivism and the Separation of Law and Morals’ in H.L.A. Hart, Essays in Jurisprudence and Philosophy (Oxford: Oxford University Press, 1983) 49 at 57.

380 UNIVERSITY OF TORONTO LAW JOURNAL Saturday morning discussion seminars in linguistic philosophy organized by John Austin for other male members of the philosophy faculty, including the then junior Hart.16 She suggests three reasons for Hart’s abandonment of Plato for the school of analytical linguistic philosophy that he had been recruited to counter:17 First – and not unconnected with his need for belonging and status – the coterie around Austin and Ryle was, to put it crudely, the main show in town within the discipline in which Herbert wished to make his mark. Notwithstanding the diversity within Oxford philosophy, it was acceptance and regard among the group around Ryle, Austin, Hampshire, and Strawson which – as the course of Herbert’s career over the next seven years would prove – was the ultimate mark of reputation and guarantee of success. Secondly, common-sense, linguistic philosophy must have held some discrete attractions for a late returner to philosophy who had doubts – as his 1940s notebooks show – about his capacity to get to the bottom of the deepest questions of epistemology and logic. The flight from metaphysics, in other words, offered the seductive prospect of escape from a painful further period of apprenticeship in the arcane craft of traditional philosophy – an apprenticeship which some of Herbert’s colleagues felt that he had left too soon. This was a judgment which he himself endorsed in his later work – notably in his Essays on Bentham. [... T]hirdly and most importantly, Austin’s method gave Herbert for the first time a clear view of the distinctive contribution which he might make to philosophy. The method of painstaking, detailed analysis of linguistic usage, with its clarion call, ‘look for the use, not the meaning,’ was premised on the idea (if not always practised on the basis) that context was all-important. (142–3)

Hart realized, argues Lacey, ‘that his legal background gave him an important piece of intellectual equipment’ (144). He could draw on his knowledge of the usage and setting of legal words and ideas and adopt Austin’s method to look for a broad, general concept or classification of law – a concept that could be fleshed out (depending on the content of a particular rule of recognition and all the other primary and secondary 16 ‘One term, the texts were abandoned in favour of a series in which each participant had to study and give an account of the rules of a particular game. Years later, Herbert remarked to a colleague that he “probably knew more about the rules of baseball than anyone alive,” this having been his allotted subject’ (134). 17 She also speculates that Hart may have found Austin’s apparent confidence and invulnerability an attractive foil to his own feelings of insecurity. It is also likely that he was drawn to the dry, commonsensical Englishness of Austin’s version of linguistic philosophy – an upper class, establishment Englishness which plugged a gap in his own sense of identity, born of his searing Cheltenham experiences as a Jewish boy from a trade background. And, temperamentally, the two men shared a left-of-centre political outlook, an intellectual scrupulousness and taste for attention to detail, an attachment to the power of reasoned argument, and, perhaps most importantly, a commitment to clarity, as both an intellectual value and an aesthetic. (142)

AN OUTSIDER ON THE INSIDE : HART’S LIMITS ON JURISPRUDENCE

381

rules recognized through it) into many different concrete conceptions of law. And such an approach, Hart argues, assumes only a minimal set of ‘truisms’ about human nature, assumptions that do not require detailed reflection on moral philosophy:18 the existence and content of the law can be identified by reference to the social sources of the law (e.g. legislation, judicial decisions, social customs) without reference to morality except where the law thus identified has itself incorporated moral criteria for the identification of law.19

But if disenchanted sociologists and philosophers are right that the truths they pursue are socially constructed, should Hart not have concluded, as Brian Simpson challenged him, that law can only be treated as ‘a body of traditional ideas received within a caste of experts’? And if so, on what basis could Hart claim to be offering an account of the ‘“normative concepts required for a descriptive sociology”’20? In what sense can conceptual analysis be said to be freestanding? Is there such a thing as an a-contextual concept of law, or can our ‘normative concepts’ of law be formed and developed only by reflection on historical practice? For Simpson, who gradually abandoned his jurisprudential writing in favour of legal history, to argue that a particular account of the common law is the correct one, ‘as academics, judges, and counsel do, is to participate in the system, not simply to study it scientifically’:21 the studies of legal historians and sociologists are a prerequisite for reflection on the nature of law – and an informed reflection is unlikely to render general, universally applicable concepts. As there is, he argues ‘no way of settling the correct text or formulation of the rules, so that it is inherently impossible to state so much as a single rule in what Pollock called “any 18 On his truisms, Hart writes, ‘[The] painful facts of human history are enough to show that, though a society to be viable must offer some of its members a system of mutual forbearances, it need not, unfortunately, offer them to all. [...] For those oppressed there may be nothing in the system to command their loyalty but only things to fear. They are its victims, not its beneficiaries.’ H.L.A. Hart, The Concept of Law (Oxford: Clarendon Press, 1972) at 196–7. 19 Ibid. at 269. 20 Hart’s re-characterization of The Concept of Law: Lacey 337. 21 A.W.B. Simpson, ‘The Common Law and Legal Theory’ in A.W.B. Simpson, ed., Oxford Essays in Jurisprudence: Second Series (Oxford: Clarendon Press, 1973) 77 at 97 [Simpson ‘Common Law’]. A critic might argue that Simpson is writing about legal doctrinal studies, not theories of law’s nature – and, therefore, that I am confusing questions about ‘law’ with questions about ‘the law’ – but this distinction itself assumes a contestable concept of jurisprudence and, in particular, of its separability from doctrinal studies. (See Amanda Perreau-Saussine, Old Questions for New Natural Lawyers (Princeton, NJ: Princeton University Press [forthcoming in 2007, c. 4]).) On the difficulty Hart faces in explaining the status of his theory, see Nigel Simmonds, Central Issues in Jurisprudence, 2d ed. (London: Sweet & Maxwell, 2002) at 175.

382 UNIVERSITY OF TORONTO LAW JOURNAL authentic form of words,”’ the common law cannot be said to exist as a system of rules.22 Hart would respond that of course one needs to understand a particular group of humans’ point in creating a particular set of laws, the way that group explains their rule following (as opposed to their habits of doing things ‘as a rule’): ‘It is true that [...] the descriptive legal theorist must understand what it is to adopt the internal point of view and in that limited sense he must be able to put himself in the place of an insider.’23 But Hart’s concern in acknowledging this was to resist not a Simpsonian challenge but, instead, the argument that to understand the internal point of view requires a philosopher to give up his descriptive, detached position. Hart insists that the legal theorist must resist the assumption that the internal point of view will be a moral one: allegiance to a legal system ‘may be based on many different considerations: calculations of long term interest; disinterested interest in others; an unreflecting inherited or traditional attitude; or the mere wish to do as others do.’24 There might not, Hart assumes, be any overall purpose or point shared by every legal system, beyond a very broad, thin, generalized purpose: ‘I think it quite vain to seek any more specific purpose which law as such serves beyond providing guides to human conduct and standards of criticism of such conduct.’25 As he summarizes his position in The Concept of Law in a much later letter, which Lacey quotes, the theorist must treat law as ‘a complex structure of social fact the moral value of which is an entirely contingent matter’ (336). The philosopher of law must seek a broad classification of law: ‘whether the laws are morally good or bad, just or unjust, rights and duties demand attention as focal points in the operations of the law which are of supreme importance to human beings and independently of moral merits of the laws.’26 Even if the internal point of view did include a belief that there are moral reasons for following the law, ‘this would be something for a morally neutral descriptive jurisprudence to record but not to endorse or share. [...] Description may still be description, even when what is described is an evaluation.’27 Yet Hart the defender of ‘morally neutral descriptive jurisprudence’ was also a man for whom the nurture of rational argument and the pursuit of truth were of supreme social value. One of the most striking of the many materials that Lacey has unearthed to illumine understanding 22 23 24 25 26 27

Simpson, ‘Common Law,’ supra note 21 at 97. Hart, Concept of Law, supra note 18 at 242. Ibid. at 198. Ibid. at 248–9 Ibid. at 243–4. Ibid. at 269.

AN OUTSIDER ON THE INSIDE : HART’S LIMITS ON JURISPRUDENCE

383

of Hart’s jurisprudence is the conclusion Hart appended to his report for Oxford University on regulations and arrangements governing academic–student relations. In that appendix, Hart attacks the notion of a ‘sociology of knowledge’ as ‘utterly inimical to the ideal of liberal education bent on rational argument and the pursuit of truth’ (286–8). Hart famously reconciles this position with his defence of a morally detached study of law by arguing that the latter is itself of great moral value: in order to make men clear-sighted in confronting the official abuse of power, [...] they should preserve the sense that the certification of something as legally valid is not conclusive of the question of obedience, and that, however great the aura of majesty or authority which the official system may have, its demands must in the end be submitted to moral scrutiny.28 IV

Hart the moral rationalist and Hart the moral sceptic

Lacey highlights the appendix to the Hart Report as an example of ‘vintage Herbert optimistic rationalism’ (287). She remarks on ‘Herbert’s Benthamite impatience with the claims of tradition when unsupported by rational argument’ (288) and notes that the sections of the report written by Hart are ‘marked out by their precision and their elegant formulation of liberal principles, with solutions to all specific issues worked out through rationally defensible extensions of those articulated principles’ (286). But how should what Lacey calls Hart’s ‘rationalism’ be understood?29 As John Finnis was to argue against Hart (in an essay published in Simpson’s collection of Oxford Essays in Jurisprudence), the identity and continuity over time of a legal system ‘can no more be explained by reference simply to sequences of sets of valid rules than can motion, as Zeno discovered, be explained by reference to sequences of points.’ Synchronically, Hart’s rule of recognition is a set of rules – some powerconferring, some identificatory, some superior, some subordinate – with ‘rather little in common other than that they are not derived from one another.’ Diachronically, the identity problem is greater not only because Hart himself accepts that rules can be added and subtracted from the rule of recognition (‘and so the problem once more appears of the basis of the unity of the sequence of sets thus produced’) but also because 28 Ibid. at 210. 29 Lacey quotes from one of Hart’s undergraduate essays, arguing that Mill confuses theory and practice, ‘intellectual truth and the facts of experience,’ and that empiricism ‘cannot establish the necessity of connection’ (27–8): she assumes that Hart ‘would certainly have rejected’ this argument later. I suggest below that he might not have done so.

384 UNIVERSITY OF TORONTO LAW JOURNAL there is no credible rule which could be privileged ‘in the sense that it lasts unchanged and thus unifies the sequence of sets of criteria of validity [...] such that when it changes one is obliged to recognize that a new rule of recognition (and thus a new legal system) has come into being.’30 For Finnis, the jurist’s problems are not those highlighted by Simpson (those concerning the limits of dubious – because general – questions, the fluidity of traditions, and the lack of order in human creations) but instead concern the limits of historical study. Invoking a Burkean argument on the difficulty of ever marking a discrete change in the identity of a polis, Finnis argues that the [historian’s] object of inquiry expands from the order of the concrete societies to civilizations which belong to the same type of order, and ultimately to the order of history of a mankind which is no finite unit of observation at all as it extends indefinitely into the future.

Instead, he suggests that a jurist should assume that different societies can be distinguished by referring to a problem faced by every man, not as a citizen but as someone virtuous trying to determine the relevant society to which he owes allegiance and with whose collective debts he is concerned.31 An Aristotelian would want to enquire into why we should assume that every human being either can or must reason in terms of objective virtues. Finnis, however, assumes that every human being’s identity belongs to an ethical level distinct from political or social history. Distinctions between societies can be drawn only in terms of the prudential ‘self-understanding of the spoudaios,’ and any notion that one can escape to a ‘theoretical’ perspective is a philosophical delusion, perhaps even simply a grammatical misunderstanding of the very concept of differentiating between societies. Finnis argues that ‘once one abandons, with Hart, the bad man’s concerns as the criterion of relevance in legal philosophy, there proves to be little reason for stopping short of accepting the morally concerned man’s concerns as that criterion’: There is no distinct ‘theoretical purpose’ of the ‘scientific observer’ which could be set over against the ‘practical purposes’ that the spoudaios has in drawing the boundaries of concepts by using them in his life in society. The concepts thus differentiated for analytical use are the relevant ‘standard cases’ ... 32

30 John Finnis, ‘Revolutions and Continuity of Law’ in A.W.B. Simpson, ed., Oxford Essays in Jurisprudence: Second Series (Oxford: Clarendon Press, 1971) 44 at 67–70. 31 Ibid. at 72–3 (citing Voegelin, Order and History, vol. 3 at 334). 32 Ibid. At 72–6 [footnotes omitted].

AN OUTSIDER ON THE INSIDE : HART’S LIMITS ON JURISPRUDENCE

385

So appears one of the strongest of Finnis’s arguments in Natural Law and Natural Rights: ‘there is no escaping the theoretical requirement that a judgment of significance and importance must be made if theory is to be more than a vast rubbish heap of miscellaneous facts described in a multitude of incommensurable terminologies,’ and that judgment, argues Finnis, is inevitably a moral one.33 Lacey gives a vivid and detailed account of Hart’s response to such criticisms ‘from the direction of modern versions of “natural law” theory’ (335). She draws on unpublished notes and diaries showing that, while he remained committed to the notion of value-free, descriptive, general jurisprudence, Hart agonized on his own ‘errors’ about morality, reflecting that he had been mistaken to treat moral obligation and critical morality as a matter of social rules (350). The final paragraphs of this essay focus on Hart’s assumptions about the nature of moral philosophy. In an autobiographical fragment, written in 1945 as he was preparing to return to Oxford, Hart aspires to ‘assess my character[,] powers and capabilities as life hitherto has revealed them’ (122). Although Lacey treats this as an existentialist approach, in assuming that he has a nature to be revealed, Hart’s aspiration is arguably a Platonic one. And in later critical essays on Jeremy Bentham, John Stuart Mill, John Rawls, Robert Nozick, and Ronald Dworkin, Hart repeatedly asserts that a theory of rights ‘must rest on a specific conception of the human person and of what is needed for the exercise and development of distinctive human powers.’34 Any conception of morality, Hart claims, will be defined as taking as its end ‘some ideal development of human capacities which is taken to be of ultimate value in the conduct of life.’35 Such remarks seem most naturally attributable to someone who holds t 33 John Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980) at 17. 34 Hart, Essays in Jurisprudence, supra note 15 at 17. Hart’s essay on Mill concludes that no theory of basic human rights, of universal moral rights, can succeed without ‘a theory of what individuals need and can reasonably demand from each other (by way either of restraint or of active provision) in order to pursue their own ends through the development of distinctive human powers.’ Hart, ‘Natural Rights: Bentham and John Stuart Mill’ in H.L.A. Hart, Essays on Bentham (Oxford: Clarendon Press, 1982) 79 at 103–4. He concludes that Rawls ‘harbours a latent ideal of his own, on which he tacitly draws when he represents the priority of liberty,’ an ideal ‘among the chief ideals of liberalism,’ one of ‘the public-spirited citizen who prizes political activity and service to others as among the chief goods of life and could not contemplate as tolerable an exchange of the opportunities for such activity for mere material goods or contentment.’ Hart, ‘Rawls on Liberty and Its Priority’ in H.L.A. Hart, Essays in Jurisprudence and Philosophy (Oxford: Oxford University Press, 1983) 223 at 247. 35 H.L.A. Hart, ‘Lon L. Fuller: The Morality of Law’ in H.L.A. Hart, Essays in Jurisprudence and Philosophy (Oxford: Oxford University Press, 1983) 343 at 351.

386 UNIVERSITY OF TORONTO LAW JOURNAL he belief, cherished for so long and by so many, that philosophy can furnish or discover rational foundations for ethical thought, or can at least provide some acceptable systematic theory that could determine how, in thinking ethically, we should think if we are to think correctly.36

Many of Hart’s critics and colleagues understand him as sharing this belief that philosophy is a source of knowledge and, in particular, that it can furnish rational tests for correct moral thinking.37 But in his jurisprudential work, although Hart frequently uses the turns of phrase of a moral rationalist, every one of his references to moral truths or moral values is qualified. Values other than liberal ones ‘may even’ be shown to be irrational: ‘if so,’ enlightened liberal morality ‘has special credentials as the true morality, and is not just one among many possible moralities,’ but this is an argument, writes Hart, ‘which cannot be investigated here.’38 One is left wondering whether Hart was all too aware of the wishfulness of Mill’s belief that a classical emphasis on morality as a noble vision of the development of human capacities was compatible both with utilitarianism and with a democratic defence of liberty. In particular, must a classical conception of morality (based on a notion of the development of human capacities) give objective reasons for an agent even when that agent places no weight on them? If so, is this classical conception of morality one ‘strongly associated’ with the illiberal ‘classical thesis’ that ‘the law of the city state exists not merely to secure that men have the opportunity to lead a morally good life, but to see that they do,’ an illiberal thesis that, Hart writes, it ‘is possible to extract from Plato’s Republic and Laws’?39 One of Hart’s former doctoral students and most eminent critics, Joseph Raz, traces the inadequacies he attributes to Hart’s jurisprudential 36 H.L.A. Hart, ‘Who Can Tell Right from Wrong?’ New York Review of Books 33:12 (17 July 1986), online: NYRB [Hart, ‘Who Can Tell’]. 37 When Hart returned to New College to take up his fellowship, Richard Crossman laughed at him: ‘Still worrying about the truth, I suppose?’ (24). Hart later endorsed this view: ‘I was all that Crossman hated: that’s to say balanced, fair, worrying about the truth’ (284). 38 Hart, Concept of Law, supra note 18 at 201. 39 H.L.A. Hart, ‘Social Solidarity’ in H.L.A. Hart, Essays in Jurisprudence and Philosophy (Oxford: Oxford University Press, 1983) 248 at 248. One of Hart’s Oxford colleagues in the early 1980s, David Wiggins, recalling that, for Hart, ‘moral philosophy was a source of pleasure that was intense, direct and unalloyed by any call to respond to critics,’ recounts how, ‘reacting in some excitement and incertitude to a weekly seminar John McDowell and I had been giving, Hart wrote me a letter strenuously defending John Mackie’s Ethics: Inventing Right and Wrong against something that I had been saying about “objective” and “subjective” not being the antonyms they are taken for.’ David Wiggins, ‘Objectivity in Ethics; Two Difficulties, Two Responses’ (Hart Lecture, May 2004).

AN OUTSIDER ON THE INSIDE : HART’S LIMITS ON JURISPRUDENCE

387

work to what he asserts are Hart’s rejection of evaluative objectivity, his empiricist epistemology, and his naturalism, ‘according to which the only things there are (or the only things whose existence has duration) are things located in space, knowledge about which is gained from the natural sciences, or at any rate is subject to correction by them.’40 Yet Hart acknowledges the fear associated with sceptical claims that ‘there is no independent rational foundation for ethical thought and no acceptable systematic theory to tell us what is morally right or wrong,’ a fear that ‘ordinary people who with various degrees of conviction, difficulty, and backsliding manage to live up to the moral standards they have acquired and developed in their social life and to transmit them to their children’ will start to disregard those moral standards ‘whenever they stand in the way of our getting or doing what we want.’41 Hart’s response to this fear is to claim that it is plain that most likely to abandon their moral beliefs when these are shown to have a subjective source are those whose moral sentiments have been formulated apart from concrete situations and kinds of conduct, and have become focused on general principles and theories or on the divine will or on whatever is taken to be a general authoritative source of all moral right and wrong. The moral monster who thinks there is nothing morally wrong in torturing a child except that God has forbidden it, has a parallel in the moralist who will not treat the fact that the child will suffer agony as in itself a moral reason enough.42

In most if not all cases, moral philosophizing (subjectivism included) has a dangerous influence on the morals of the philosopher, inhibiting the acquisition of the moral understanding acquired by ‘those whose moral education or self-education has not led them into this mode of moral thinking and who find their moral reasons at the ground-floor level of particular concrete situations.’43 As Hart himself notes elsewhere (in an essay on Durkheim and Devlin), on accounts such as this, society is not the instrument of the moral life; rather morality is valued as the cement of society, the bond, or one of the bonds, without which men would not cohere in society. This thesis is associated strongly with a relativist conception of morality [...]. It is not the quality of the morality but its cohesive power which matters.44

40 Joseph Raz. ‘Two Views of the Nature of the Theory of Law: A Partial Comparison’ in Jules Coleman, ed., Hart’s Postscript: Essays on the Postscript to the Concept of Law (Oxford: Oxford University Press, 2001) at 4–6. 41 Hart, ‘Who Can Tell,’ supra note 36. 42 Ibid. 43 Ibid. 44 Hart, ‘Social Solidarity,’ supra note 39 at 248.

388 UNIVERSITY OF TORONTO LAW JOURNAL On this conservative and sceptical account, law exists to uphold society and society can be upheld only by sustaining communal mores: insofar as there is no morality other than communal mores, law and morality are inseparable. So if Hart is sceptical (albeit reluctantly so) about whether an objective system of morality can be justified, how should we understand his defence of the separability of morality from law and of the philosophy of law from both moral philosophy and sociology? For one who doubts that a ‘real’ or objective morality exists, law is needed as a substitute for minimal moral authority: perhaps Hart’s vision of the proper limits of the philosophy of law marks an aspiration that one day a true philosopher might escape the cave. This returns us to the question of the relation between a philosopher’s life and character and his philosophy. John Lucas, a graduate student at the time, memorably explains to Lacey the nostalgia he noticed in Austin as ‘born of an odd feeling of being so clever yet feeling there was so little in the world to be clever about’ (135). Far from shrinking the world in order to claim to be clever about everything in it, Hart seems to have striven to keep jurisprudential thought open to a moral truth that he feared might not exist, aware that our capacity to understand what does exist is rooted in our own self-definitions and, hence, in what we are.