H. L. A. Hart
Encyclopedia
Herbert Lionel Adolphus Hart (18 July 1907-19 December 1992) was an influential legal philosopher
of the 20th century. He was Professor of Jurisprudence
at Oxford University and the Principal of Brasenose College, Oxford. He authored The Concept of Law
.
and Polish
origin. Educated at Cheltenham College
, Bradford Grammar School
and at New College, Oxford
, Hart took an outstanding First in Classical Greats
in 1929.
He became a Barrister
and practised successfully at the Chancery Bar from 1932 to 1940 and was good friends with Richard (later Lord) Wilberforce.
During World War II
, Hart worked with MI5
, a division of British military intelligence, where he renewed Oxford friendships. He did not return to his legal practice after the War, preferring instead to accept the offer of a teaching fellowship (in philosophy, not Law) at New College, Oxford.
In 1952, he was elected Professor of Jurisprudence at Oxford
. He retired from the Chair in 1969 and was succeeded by Ronald Dworkin
. He was president of the Aristotelian Society
from 1959 to 1960.
Hart married Jenifer Williams, a senior civil servant in the Home Office and, later, Oxford historian at St Anne's College (specializing in the history of the police). Jenifer Hart, a 'sleeper' member of the Communist Party
in the 1930s, later came under suspicion of having passed information to the Soviets. The Harts had four children, including a son who was disabled. The marriage contained "incompatible personalities", and Hart confessed to his daughter that "[t]he trouble with this marriage is that one of us doesn't like sex and the other doesn't like food." Jenifer Hart was believed by her contemporaries to have had an affair of long duration with Isaiah Berlin
, a close friend of Hart's. Jenifer published her memoirs under the title Ask Me No More in 1998.
There is a description of their household by the writer on religion Karen Armstrong
, who lodged with them for a time, in her book The Spiral Staircase.
, John Finnis
, Kent Greenawalt, Neil MacCormick
, Joseph Raz
, Chin Liew Ten
, W. J. Waluchow, and Ronald Dworkin
. Hart also had a strong influence on the young John Rawls
in the 1950s, when Rawls was a visiting scholar at Oxford shortly after finishing his PhD.
and Ludwig Wittgenstein
, Hart brought the tools of analytic, and especially linguistic, philosophy to bear on the central problems of legal theory. Hart's method combined the careful analysis of twentieth-century analytic philosophy with the jurisprudential tradition of Jeremy Bentham
, the great English legal, political, and moral philosopher. Hart's conception of law had parallels to the Pure Theory of Law
formulated by Austria
n legal philosopher Hans Kelsen, though Hart rejected several distinctive features of Kelsen's theory.
, first published in 1961, and with a second edition (including a new postscript) published posthumously in 1994. The book emerged from a set of lectures that Hart began to deliver in 1952, and it is presaged by his Holmes lecture, Positivism and the Separation of Law and Morals delivered at Harvard Law School. The Concept of Law developed a sophisticated view of legal positivism. Among the many ideas developed in this book are:
, Hart wrote Causation in the Law (1959, second edition 1985), which is regarded as one of the important academic discussions of Causation in the legal context. As a result of his famous debate with Patrick Devlin, Baron Devlin
on the role of the criminal law in enforcing moral norms, Hart wrote Law, Liberty and Morality (1963) and The Morality of the Criminal Law (1965).
Hart's work on the relationship between law and morality had a significant effect on the law in the UK, helping bring about the decriminalization of homosexuality
, among other things.
Jurisprudence
Jurisprudence is the theory and philosophy of law. Scholars of jurisprudence, or legal theorists , hope to obtain a deeper understanding of the nature of law, of legal reasoning, legal systems and of legal institutions...
of the 20th century. He was Professor of Jurisprudence
Jurisprudence
Jurisprudence is the theory and philosophy of law. Scholars of jurisprudence, or legal theorists , hope to obtain a deeper understanding of the nature of law, of legal reasoning, legal systems and of legal institutions...
at Oxford University and the Principal of Brasenose College, Oxford. He authored The Concept of Law
The Concept of Law
The Concept of Law is the most famous work of the legal philosopher H. L. A. Hart. It was first published in 1961 and develops Hart's theory of legal positivism within the framework of analytic philosophy...
.
Biographical sketch
Hart was born in 1907, the son of a prosperous Jewish tailor of GermanGermany
Germany , officially the Federal Republic of Germany , is a federal parliamentary republic in Europe. The country consists of 16 states while the capital and largest city is Berlin. Germany covers an area of 357,021 km2 and has a largely temperate seasonal climate...
and Polish
Poland
Poland , officially the Republic of Poland , is a country in Central Europe bordered by Germany to the west; the Czech Republic and Slovakia to the south; Ukraine, Belarus and Lithuania to the east; and the Baltic Sea and Kaliningrad Oblast, a Russian exclave, to the north...
origin. Educated at Cheltenham College
Cheltenham College
Cheltenham College is a co-educational independent school, located in Cheltenham, Gloucestershire, England.One of the public schools of the Victorian period, it was opened in July 1841. An Anglican foundation, it is known for its classical, military and sporting traditions.The 1893 book Great...
, Bradford Grammar School
Bradford Grammar School
Bradford Grammar School is a co-educational, independent school in Frizinghall, Bradford, West Yorkshire. Headmaster, Stephen Davidson is a member of the Headmasters' and Headmistresses' Conference . The school was founded in 1548 and granted its Charter by King Charles II in 1662...
and at New College, Oxford
New College, Oxford
New College is one of the constituent colleges of the University of Oxford in the United Kingdom.- Overview :The College's official name, College of St Mary, is the same as that of the older Oriel College; hence, it has been referred to as the "New College of St Mary", and is now almost always...
, Hart took an outstanding First in Classical Greats
Literae Humaniores
Literae Humaniores is the name given to an undergraduate course focused on Classics at Oxford and some other universities.The Latin name means literally "more humane letters", but is perhaps better rendered as "Advanced Studies", since humaniores has the sense of "more refined" or "more learned",...
in 1929.
He became a Barrister
Barrister
A barrister is a member of one of the two classes of lawyer found in many common law jurisdictions with split legal professions. Barristers specialise in courtroom advocacy, drafting legal pleadings and giving expert legal opinions...
and practised successfully at the Chancery Bar from 1932 to 1940 and was good friends with Richard (later Lord) Wilberforce.
During World War II
World War II
World War II, or the Second World War , was a global conflict lasting from 1939 to 1945, involving most of the world's nations—including all of the great powers—eventually forming two opposing military alliances: the Allies and the Axis...
, Hart worked with MI5
MI5
The Security Service, commonly known as MI5 , is the United Kingdom's internal counter-intelligence and security agency and is part of its core intelligence machinery alongside the Secret Intelligence Service focused on foreign threats, Government Communications Headquarters and the Defence...
, a division of British military intelligence, where he renewed Oxford friendships. He did not return to his legal practice after the War, preferring instead to accept the offer of a teaching fellowship (in philosophy, not Law) at New College, Oxford.
In 1952, he was elected Professor of Jurisprudence at Oxford
Oxford
The city of Oxford is the county town of Oxfordshire, England. The city, made prominent by its medieval university, has a population of just under 165,000, with 153,900 living within the district boundary. It lies about 50 miles north-west of London. The rivers Cherwell and Thames run through...
. He retired from the Chair in 1969 and was succeeded by Ronald Dworkin
Ronald Dworkin
Ronald Myles Dworkin, QC, FBA is an American philosopher and scholar of constitutional law. He is Frank Henry Sommer Professor of Law and Philosophy at New York University and Emeritus Professor of Jurisprudence at University College London, and has taught previously at Yale Law School and the...
. He was president of the Aristotelian Society
Aristotelian Society
The Aristotelian Society for the Systematic Study of Philosophy was founded at a meeting on 19 April 1880, at 17 Bloomsbury Square which resolved "to constitute a society of about twenty and to include ladies; the society to meet fortnightly, on Mondays at 8 o'clock, at the rooms of the Spelling...
from 1959 to 1960.
Hart married Jenifer Williams, a senior civil servant in the Home Office and, later, Oxford historian at St Anne's College (specializing in the history of the police). Jenifer Hart, a 'sleeper' member of the Communist Party
Communist Party of Great Britain
The Communist Party of Great Britain was the largest communist party in Great Britain, although it never became a mass party like those in France and Italy. It existed from 1920 to 1991.-Formation:...
in the 1930s, later came under suspicion of having passed information to the Soviets. The Harts had four children, including a son who was disabled. The marriage contained "incompatible personalities", and Hart confessed to his daughter that "[t]he trouble with this marriage is that one of us doesn't like sex and the other doesn't like food." Jenifer Hart was believed by her contemporaries to have had an affair of long duration with Isaiah Berlin
Isaiah Berlin
Sir Isaiah Berlin OM, FBA was a British social and political theorist, philosopher and historian of ideas of Russian-Jewish origin, regarded as one of the leading thinkers of the twentieth century and a dominant liberal scholar of his generation...
, a close friend of Hart's. Jenifer published her memoirs under the title Ask Me No More in 1998.
There is a description of their household by the writer on religion Karen Armstrong
Karen Armstrong
Karen Armstrong FRSL , is a British author and commentator who is the author of twelve books on comparative religion. A former Roman Catholic nun, she went from a conservative to a more liberal and mystical faith...
, who lodged with them for a time, in her book The Spiral Staircase.
Hart's students
Many of Hart's former students became important legal, moral, and political philosophers, including Brian BarryBrian Barry
Brian Barry FBA was a moral and political philosopher. He was educated at the Queen's College, Oxford, obtaining the degrees of B.A. and D.Phil under the direction of H. L. A. Hart....
, John Finnis
John Finnis
John Finnis , is an Australian legal scholar and philosopher, specializing in the philosophy of law. He is Professor of Law at University College, Oxford and at the University of Notre Dame, teaching jurisprudence, political theory, and constitutional law...
, Kent Greenawalt, Neil MacCormick
Neil MacCormick
Sir Neil MacCormick, QC, FBA, FRSE , or just Neil MacCormick, was a legal philosopher and Scottish politician. He was Regius Professor of Public Law and the Law of Nature and Nations at the University of Edinburgh from 1972 until 2008...
, Joseph Raz
Joseph Raz
Joseph Raz is a legal, moral and political philosopher. He is one of the most prominent advocates of legal positivism. He has spent most of his career as professor of philosophy of law and a fellow of Balliol College, Oxford, and simultaneously as professor of law at Columbia University Law...
, Chin Liew Ten
Chin Liew Ten
Chin Liew Ten is Professor of Philosophy and former Head of the Philosophy Department, National University of Singapore. Before taking up his appointments at the National University of Singapore, he was Professor of Philosophy and Acting Head of the School of Philosophy, Linguistics, and...
, W. J. Waluchow, and Ronald Dworkin
Ronald Dworkin
Ronald Myles Dworkin, QC, FBA is an American philosopher and scholar of constitutional law. He is Frank Henry Sommer Professor of Law and Philosophy at New York University and Emeritus Professor of Jurisprudence at University College London, and has taught previously at Yale Law School and the...
. Hart also had a strong influence on the young John Rawls
John Rawls
John Bordley Rawls was an American philosopher and a leading figure in moral and political philosophy. He held the James Bryant Conant University Professorship at Harvard University....
in the 1950s, when Rawls was a visiting scholar at Oxford shortly after finishing his PhD.
Philosophical method
Hart revolutionized the methods of jurisprudence and the philosophy of law in the English-speaking world. Influenced by John AustinJohn Austin (legal philosopher)
John Austin was a noted British jurist and published extensively concerning the philosophy of law and jurisprudence....
and Ludwig Wittgenstein
Ludwig Wittgenstein
Ludwig Josef Johann Wittgenstein was an Austrian philosopher who worked primarily in logic, the philosophy of mathematics, the philosophy of mind, and the philosophy of language. He was professor in philosophy at the University of Cambridge from 1939 until 1947...
, Hart brought the tools of analytic, and especially linguistic, philosophy to bear on the central problems of legal theory. Hart's method combined the careful analysis of twentieth-century analytic philosophy with the jurisprudential tradition of Jeremy Bentham
Jeremy Bentham
Jeremy Bentham was an English jurist, philosopher, and legal and social reformer. He became a leading theorist in Anglo-American philosophy of law, and a political radical whose ideas influenced the development of welfarism...
, the great English legal, political, and moral philosopher. Hart's conception of law had parallels to the Pure Theory of Law
Pure Theory of Law
Pure Theory of Law is a book by legal theorist Hans Kelsen, first published in 1934 and in a greatly expanded second edition in 1960. The second edition appeared in English translation in 1967, as Pure Theory of Law, the first edition in English translation in 1992, as Introduction to the...
formulated by Austria
Austria
Austria , officially the Republic of Austria , is a landlocked country of roughly 8.4 million people in Central Europe. It is bordered by the Czech Republic and Germany to the north, Slovakia and Hungary to the east, Slovenia and Italy to the south, and Switzerland and Liechtenstein to the...
n legal philosopher Hans Kelsen, though Hart rejected several distinctive features of Kelsen's theory.
The Concept of Law
Hart's most famous work is The Concept of LawThe Concept of Law
The Concept of Law is the most famous work of the legal philosopher H. L. A. Hart. It was first published in 1961 and develops Hart's theory of legal positivism within the framework of analytic philosophy...
, first published in 1961, and with a second edition (including a new postscript) published posthumously in 1994. The book emerged from a set of lectures that Hart began to deliver in 1952, and it is presaged by his Holmes lecture, Positivism and the Separation of Law and Morals delivered at Harvard Law School. The Concept of Law developed a sophisticated view of legal positivism. Among the many ideas developed in this book are:
- A critique of John Austin'sJohn Austin (legal philosopher)John Austin was a noted British jurist and published extensively concerning the philosophy of law and jurisprudence....
theory that law is the command of the sovereign backed by the threat of punishment. - A distinction between primary and secondary legal rules, where a primary rule governs conduct and a secondary rule allows of the creation, alteration, or extinction of primary rules.
- A distinction between the internal and external points of view of law and rules, close to (and influenced by) Max WeberMax WeberKarl Emil Maximilian "Max" Weber was a German sociologist and political economist who profoundly influenced social theory, social research, and the discipline of sociology itself...
's distinction between the sociological and the legal perspectives upon law. - The idea of the Rule of RecognitionRule of RecognitionA central part of H.L.A. Hart's theory on legal positivism, in any legal system, the rule of recognition is a master meta-rule underlying any legal system that defines the common identifying test for legal validity within that system...
, a social rule that differentiates between those norms that have the authority of law and those that do not. - A late reply (published as a postscript to the second edition) to Ronald DworkinRonald DworkinRonald Myles Dworkin, QC, FBA is an American philosopher and scholar of constitutional law. He is Frank Henry Sommer Professor of Law and Philosophy at New York University and Emeritus Professor of Jurisprudence at University College London, and has taught previously at Yale Law School and the...
, who criticized legal positivism in Taking Rights Seriously (1977), A Matter of Principle (1985) and Law's Empire (1986).
Other work
With Tony HonoréTony Honoré
Anthony Maurice Honoré is a British lawyer and jurist, known for his work on ownership, causation and Roman law.Honoré was born in London but was brought up in South Africa. He served in the army during the Second World War and was severely wounded in the Battle of Alamein...
, Hart wrote Causation in the Law (1959, second edition 1985), which is regarded as one of the important academic discussions of Causation in the legal context. As a result of his famous debate with Patrick Devlin, Baron Devlin
Patrick Devlin, Baron Devlin
Patrick Arthur Devlin, Baron Devlin, PC was a British lawyer, judge and jurist. He wrote a report on Britain's involvement in Nyasaland in 1959...
on the role of the criminal law in enforcing moral norms, Hart wrote Law, Liberty and Morality (1963) and The Morality of the Criminal Law (1965).
Hart's work on the relationship between law and morality had a significant effect on the law in the UK, helping bring about the decriminalization of homosexuality
Homosexuality
Homosexuality is romantic or sexual attraction or behavior between members of the same sex or gender. As a sexual orientation, homosexuality refers to "an enduring pattern of or disposition to experience sexual, affectional, or romantic attractions" primarily or exclusively to people of the same...
, among other things.
Writings
- "The Ascription of Responsibility and Rights". Proceedings of the Aristotelian Society 1949.
- Definition and Theory in Jurisprudence (1953)
- Causation in the Law (with Tony Honoré) (1959)
- The Concept of Law Oxford: Oxford University Press: 1961.
- Law, Liberty and Morality (1963)
- The Morality of the Criminal Law (1964)
- Punishment and Responsibility (1968)
- Essays on Bentham: Studies in Jurisprudence and Political Theory (1982)
- Essays in Jurisprudence and Philosophy (1983)
Festschrift
- Law, Morality, and Society: Essays in Honour of H. L. A. Hart, edited by P. M. S. Hacker and Joseph Raz (1977)
See also
- Hart-Dworkin debateHart-Dworkin debateThe Hart–Dworkin debate is a debate in legal philosophy between Herbert Hart and Ronald Dworkin. At the heart of the debate lies a Dworkinian critique of Hartian legal positivism.-External links:*...
- Hart-Fuller debateHart-Fuller debateThe Hart-Fuller debate is an exchange between Lon Fuller and H.L.A. Hart published in the Harvard Law Review in 1958 on morality and law, which demonstrated the divide between the positivist and natural law philosophy. Appearing in 1958 in the Harvard Law Review, Hart took the positivist view in...
(Lon Fuller) - Legal interpretivismInterpretivismInterpretivism is a school of thought in contemporary jurisprudence and the philosophy of law. The main claims of interpretivism are that*Law is not a set of given data, conventions or physical facts, but what lawyers aim to construct or obtain in their practice. This marks a first difference...
- Legal positivismLegal positivismLegal positivism is a school of thought of philosophy of law and jurisprudence, largely developed by nineteenth-century legal thinkers such as Jeremy Bentham and John Austin. However, the most prominent figure in the history of legal positivism is H.L.A...
- Natural lawNatural lawNatural law, or the law of nature , is any system of law which is purportedly determined by nature, and thus universal. Classically, natural law refers to the use of reason to analyze human nature and deduce binding rules of moral behavior. Natural law is contrasted with the positive law Natural...
- Philosophy of law