A Life of H.L.A. Hart: The Nightmare and the Noble Dream

Melbourne University Law Review, April, 2005 by G. Edward White

Austin and his fellow linguistic philosophers advocated an approach to philosophical questions that emphasised a focus on the meaning of words determined by their ordinary uses, taking into account the contexts of those uses. Their 'common sense' approach resonated with Hart's experience as a barrister, where he constantly had to apply the meaning of legal rules and doctrines to cases in which that application was uncertain and contested. Linguistic philosophy also seemed grounded in the real world in a way that idealist approaches had not; for Austin, Ryle, Hart and many other members of the Oxford faculty who were returning to academic life after extended service in the military during World War II, this was particularly persuasive.

Lacey demonstrates the way in which Hart gradually began to integrate his understanding of linguistic philosophy with his legal training. This increasingly became his focus, particularly after the emergence, in the early 1950s, of a critical mass of Oxford scholars who were interested in the philosophical underpinnings of legal issues. That focus would eventually result in Hart publishing two major books: his joint effort with Honore, Causation in the Law, (21) and The Concept of Law, (22) an expansion of the jurisprudence lectures he had been giving at University College since 1953. As Hart identified himself as a jurisprudential scholar, he moved beyond Austinian versions of linguistic philosophy to develop his own perspective on legal theory, which captured the distinctive concerns of Anglo-American legal scholars in the 1950s and eventually assured Hart a worldwide reputation.

Lacey's second contribution is to show how Hart's mature scholarship, which appeared between 1961 and 1968 and further pursued ideas that had interested him in the early 1950s, addressed the normative issues raised by his earlier conceptual work. Lacey describes Hart's early work, as illustrated by Causation in the Law, as the careful unpacking of legal and philosophical concepts to demonstrate their contextual and professional use. Hart and Honore argued that the concept of causation in law is neither purely 'scientific', as in physics, nor a rubric whose purpose is to allocate legal responsibility on policy grounds. Instead, they contended it is a distinctive blend of legal doctrines informed by both scientific analogies and policy considerations. Its meaning can only be understood through application. The normative implications of this approach were to advance an intermediate position between those who believed that legal doctrines were open-ended and dictated by a combination of ideology, power, and policy-driven legal rules, and those who believed that legal actors were significantly constrained by the integrity of timeless principles of law. Despite this, the normative messages of Causation in the Law were muted.

By the time The Concept of Law was published, and in his subsequent work in the 1960s, Hart's position had become more developed. He had expanded his original concern from the curial application of legal doctrines in cases to the application of those doctrines by a variety of actors, ranging from Parliament and the judiciary to private citizens responding to the law's commands. At the same time he had increased the level of abstraction at which he analysed legal doctrines, moving from rule and doctrine to concept and principle. The result was that Hart's mature scholarship combined his distinctive close readings of judicial opinions, statutes and other legal texts with higher-level arguments in a way that had more significant normative implications.