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

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

Hart argued that law could not be understood simply as a set of coercive acts by officials holding power, nor as purely moral norms governing conduct. Law could more accurately be referred to as a type of complex social convention in which officials 'recognised' certain criteria in testing the validity of legal norms. The criteria ended up producing norms characteristic of the legal systems of largely secular, tolerant, anti-totalitarian and liberal communities. The road map of Hart's later jurisprudence was complicated and multifaceted, whilst at the same time being integrated and structured. It sought to rebuild a growing legal order pursuing democratic goals and facing the complexities of modern government.

Lacey patiently builds the edifice of Hart's mature jurisprudence, using the techniques of a legal philosopher and an intellectual historian. We are in debt to her for this effort. By the time Lacey completes her tour of Hart's 'golden years', stretching from the 1920s through to Hart's sudden retirement from his jurisprudence chair at University College in 1968, one understands the sources of Hart's scholarly eminence. Lacey uses Hart to help us understand the cultural and intellectual framework out of which his generation of scholars, for whom the social unrest of the 1930s and World War II were decisive events, developed their theories of law and society.

III

How important was the fact that Hart was a lawyer to his eventual eminence? Here one confronts a paradox that Lacey, in the end, fails to illuminate. To the extent that Hart's scholarship still plays an important role in academic and policy discussions, it is in legal circles. Hart's mature work was grounded in philosophy, but its central impact was on legal theory and jurisprudence. Hart could not have written Causation in the Law, The Concept of Law, nor any of the other books he produced between 1961 and 1968 had he not been trained in the law, and each of those books were arguably shaped by his having been a practising barrister. (23) Yet Hart, by the time he launched his scholarly career, was far more interested in philosophy than in law. As Lacey puts it, his intellectual ambitions 'stopped at the borderlines between legal philosophy and doctrinal legal scholarship' and he 'made little effort to get to know, let alone to engage intellectually with, the more influential ... lawyers' at Oxford. (24)

Understanding Hart's decisions to go to the bar and enter legal practice, despite an opportunity to pursue a fellowship in philosophy, is an important step to understanding his life and work. However, in contrast to the considerable detail with which she traces Hart's scholarly development, Lacey gives her readers little material connected with those decisions. Her treatment of Hart's years at the bar makes use of three sets of evidence: recollections of his fellow barristers, who describe him as an excellent lawyer; Hart's papers, which indicate that his work brought him into frequent contact with wealthy and socially prominent clients; and material in which he reflected upon the choice between remaining at the bar and studying philosophy at Oxford. Each of the sets is quite insubstantial, such that one hesitates before drawing conclusions from it.