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

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

According to Lacey, the factors that resolved Hart's decision to accept a philosophy fellowship at New College in 1945 were the fact that he and Jenifer had now married--so that his earlier anxieties about their future had been somewhat resolved--(33) and his conviction, after years of reading philosophy, that the subject was his 'only permanent intellectual interest': his mind 'return[ed] to the subject whenever [he was] not doing anything else'. (34) Jenifer reluctantly agreed with him, and from 1945 to 1947 Hart commuted to London from Oxford, while Jenifer and their first two children (who had been born in 1942 and 1944) remained, along with several other families, in a house owned by Hart's Oxford contemporary Douglas Jay. In 1947, Jenifer agreed to look for a job in Oxford, and when she found one with the Delegacy of Extra-Mural Studies (the Oxford department concerned with adult education), the Harts took up permanent residence in Oxford. (35)

Although Hart would be named an honorary Queen's Counsel in 1983, his acceptance of the New College fellowship ended his associations with the bar. His scholarship between the late 1940s and 1953 would be exclusively in philosophy, although by the time Honore and Woozley started their law and philosophy seminar, Hart had become interested in the intersections between philosophy and legal subjects. Despite Hart's regular engagement in intensive analysis of legal doctrines, his work was sufficiently abstract to place it beyond the interests of most practising barristers. Indeed, Hart deplored the approach to jurisprudence exemplified by his predecessor in the University College chair, Arthur Goodhart, who was Master of the College when Hart assumed that chair in 1952. (36)

Lacey is well aware that once Hart established himself as a major contributor to legal philosophy and jurisprudence in the 1950s and 1960s, he settled into a method of scholarly inquiry that, although he called it 'descriptive sociology', did not pursue full-scale sociological or historical analyses of the legal concepts and institutions he examined. Once he had introduced jurisprudential concepts such as the 'rule of recognition', and analysed legal doctrine to illustrate those concepts, Hart largely stopped there. His work thus involved a masterful ability to apply techniques of linguistic philosophy to legal doctrines, but he chose to operate almost exclusively in that realm.

If we knew more about the intellectual dimensions of Hart's work as a barrister--if, for example, he had left more written evidence of his performance in cases--the connections between Hart's legal and philosophical analytics might have warranted greater analysis. Lacey's successful exploration of the philosophical dimensions of Hart's scholarship might well have been accompanied by a comparable study of its legal dimensions. However, Lacey was either disadvantaged by a paucity of evidence about Hart's career at the bar, uninterested in the details of that career, or both. The result is a missed opportunity. Notwithstanding the fact that Hart ultimately may have found being a barrister intellectually stultifying and even corrupting, his scholarship profited from the experience. It would have been useful to know to what extent. At one point Lacey says that Hart's 'years of experience as a Chancery barrister, his detailed knowledge of the subtle texture of legal reasoning, provided him with a fund of examples ripe for philosophical analysis'. (37) Lacey further states that the originality of Hart's contributions to legal philosophy came from his 'combination of legal experience and philosophical insight.' (38) Some illustrative examples might have assisted in understanding an important part of Hart's scholarship.