H. L. A. Hart

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H. L. A. Hart
Herbert Hart.jpg
Born
Herbert Lionel Adolphus Hart

18 July 1907
Harrogate, United Kingdom
Died19 December 1992(1992-12-19) (aged 85)
Oxford, United Kingdom
Alma mater New College, Oxford
Spouse(s)
Jenifer Williams(m. 1941)
Era 20th-century philosophy
Region Western philosophy
School Analytic
Legal positivism
Main interests
Jurisprudence, linguistic philosophy, political philosophy, liberalism, utilitarianism
Notable ideas
Empiricist normative foundations of legal systems [1]

Herbert Lionel Adolphus Hart, FBA ( /hɑːrt/ ; 18 July 1907 – 19 December 1992), usually cited as H. L. A. Hart, was a British legal philosopher, and a major figure in political and legal philosophy. He was Professor of Jurisprudence at Oxford University and the Principal of Brasenose College, Oxford. His most famous work is The Concept of Law (1961; 3rd edition, 2012), which has been hailed as "the most important work of legal philosophy written in the twentieth century". [2] He is considered one of the world's foremost legal philosophers in the twentieth century, alongside Hans Kelsen. [3]

Fellow of the British Academy award granted by the British Academy to leading academics for their distinction in the humanities and social sciences

Fellowship of the British Academy (FBA) is an award granted by the British Academy to leading academics for their distinction in the humanities and social sciences. There are three kinds of fellowship:

  1. Fellows, for scholars resident in the United Kingdom
  2. Corresponding Fellows, for scholars not resident in the UK
  3. Honorary Fellows, an honorary academic title
Jurisprudence theoretical study of law, by philosophers and social scientists

Jurisprudence or legal theory is the theoretical study of law. Scholars of jurisprudence seek to explain the nature of law in its most general form and provide a deeper understanding of legal reasoning, legal systems, legal institutions, and the role of law in society.

Brasenose College, Oxford college of the University of Oxford

Brasenose College (BNC), officially The King's Hall and College of Brasenose, is one of the constituent colleges of the University of Oxford in the United Kingdom. It was founded in 1509, with the library and chapel added in the mid-17th century and the new quadrangle in the late 19th and early 20th centuries.

Contents

Biography

Herbert Hart was born in 1907, the son of Rose Samson Hart and Simeon Hart, in Harrogate, [4] to which his parents had moved from the East End of London. His father was a Jewish tailor of German and Polish origin; his mother, of Polish origin, daughter of successful retailers in the clothing trade, handled customer relations and the finances of their firm. Hart had an elder brother, Albert, and a younger sister, Sybil.

Harrogate Town in North Yorkshire, England

Harrogate is a spa town in North Yorkshire, England. Historically in the West Riding of Yorkshire, the town is a tourist destination and its visitor attractions include its spa waters and RHS Harlow Carr gardens. 13 miles (21 km) away from the town centre is the Yorkshire Dales national park and the Nidderdale AONB. Harrogate grew out of two smaller settlements, High Harrogate and Low Harrogate, in the 17th century. Since 2013, polls have consistently voted the town as "the happiest place to live" in Britain.

East End of London Area of London, England

The East End of London, usually called the East End, is the historic core of wider East London, east of the Roman and medieval walls of the City of London, and north of the River Thames. It does not have universally accepted boundaries to the north and east, though the River Lea is sometimes seen as the eastern boundary. Parts of it may be regarded as lying within Central London.

Hart was educated at Cheltenham College, Bradford Grammar School and at New College, Oxford. He took a First in Classical Greats in 1929. [5]

Cheltenham College independent school in Cheltenham, Gloucestershire, England

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. A Church of England foundation, it is well known for its classical, military and sporting traditions, and currently has approximately 640 pupils.

Bradford Grammar School school in Bradford, UK

Bradford Grammar School (BGS) is a co-educational, independent school in Frizinghall, Bradford, West Yorkshire, England. Entrance is by examination, except for the Sixth Form, where admission is based on GCSE results. The school gives means-tested bursaries to help with fees. Unlike many private schools, BGS does not offer scholarships based on academic achievement.

New College, Oxford constituent college of the University of Oxford in the United Kingdom

New College is one of the constituent colleges of the University of Oxford in the United Kingdom. Founded in 1379 by William of Wykeham, the full name of the college is St Mary's College of Winchester in Oxford. The name "New College", however, soon came to be used following its completion in 1386 to distinguish it from the older existing college of St. Mary, now known as Oriel College.

Hart became a barrister and practised successfully at the Chancery Bar from 1932 to 1940. He was good friends with Richard (later Lord) Wilberforce, Douglas Jay, and Christopher Cox, among others. He received a Harmsworth Scholarship to the Middle Temple and also wrote literary journalism for the periodical John O'London's Weekly . [5]

Barrister lawyer specialized in court representation in Wales, England and some other jurisdictions

A barrister is a type of lawyer in common law jurisdictions. Barristers mostly specialise in courtroom advocacy and litigation. Their tasks include taking cases in superior courts and tribunals, drafting legal pleadings, researching the philosophy, hypothesis and history of law, and giving expert legal opinions. Often, barristers are also recognised as legal scholars.

Middle Temple one of the four Inns of Court in London, England

The Honourable Society of the Middle Temple, commonly known simply as Middle Temple, is one of the four Inns of Court exclusively entitled to call their members to the English Bar as barristers, the others being the Inner Temple, Gray's Inn and Lincoln's Inn. It is located in the wider Temple area of London, near the Royal Courts of Justice, and within the City of London.

John O'London's Weekly was a weekly literary magazine that was published by George Newnes Ltd of London between 1919 and 1954. In 1960 it was briefly brought back into circulation. Regarded as the leading literary magazine in the British Empire, at its height it had a circulation of 80,000, and it was popular among young and older readers alike.

During World War II, Hart worked with MI5, a division of British military intelligence concerned with unearthing spies who had penetrated Britain, where he renewed Oxford friendships including working with the philosophers Gilbert Ryle and Stuart Hampshire. He worked closely with Dick White, later head of MI5 and then of MI6. Hart worked at Bletchley Park and was a colleague of the mathematician and codebreaker Alan Turing. [6]

World War II 1939–1945 global war

World War II, also known as the Second World War, was a global war that lasted from 1939 to 1945. The vast majority of the world's countries—including all the great powers—eventually formed two opposing military alliances: the Allies and the Axis. A state of total war emerged, directly involving more than 100 million people from over 30 countries. The major participants threw their entire economic, industrial, and scientific capabilities behind the war effort, blurring the distinction between civilian and military resources. World War II was the deadliest conflict in human history, marked by 70 to 85 million fatalities, most of whom were civilians in the Soviet Union and China. It included massacres, the genocide of the Holocaust, strategic bombing, premeditated death from starvation and disease, and the only use of nuclear weapons in war.

MI5 British domestic security agency

The Security Service, also known as MI5, is the United Kingdom's domestic counter-intelligence and security agency and is part of its intelligence machinery alongside the Secret Intelligence Service (MI6), Government Communications Headquarters (GCHQ) and Defence Intelligence (DI). MI5 is directed by the Joint Intelligence Committee (JIC), and the service is bound by the Security Service Act 1989. The service is directed to protect British parliamentary democracy and economic interests, and counter terrorism and espionage within the UK.

Gilbert Ryle British philosopher

Gilbert Ryle was a British philosopher. He was a representative of the generation of British ordinary language philosophers who shared Ludwig Wittgenstein's approach to philosophical problems, and is principally known for his critique of Cartesian dualism, for which he coined the phrase "the ghost in the machine." Some of his ideas in the philosophy of mind have been referred to as "behaviourist". Ryle's best known book is The Concept of Mind (1949), in which he writes that the "general trend of this book will undoubtedly, and harmlessly, be stigmatised as 'behaviourist'." Ryle, having engaged in detailed study of the key works of Bernard Bolzano, Franz Brentano, Alexius Meinong, Edmund Husserl, and Martin Heidegger, himself suggested instead that the book "could be described as a sustained essay in phenomenology, if you are at home with that label."

Hart's war work took him on occasion to MI5 offices at Blenheim Palace, family home of the Dukes of Marlborough and the place where Winston Churchill had been born.[ citation needed ] He enjoyed telling the story that there he was able to read the diaries of Sarah Churchill, Duchess of Marlborough, wife of the founder of the dynasty John Churchill, 1st Duke of Marlborough. Hart's wit and humanity are demonstrated by the fact that he particularly enjoyed the passage where Sarah tells that John had been away for a long time, had arrived suddenly, and "enjoyed me straight way in his boots". Another incident of life at Blenheim which Hart enjoyed recounting was that he shared an office with one of the famous Cambridge spies, Anthony Blunt, a fellow member of MI5. Hart wondered which of the papers on his desk Blunt had managed to read and to pass on to his Soviet controllers.

Blenheim Palace country house in Woodstock, Oxfordshire, England

Blenheim Palace is a monumental country house in Woodstock, Oxfordshire, England. It is the principal residence of the Dukes of Marlborough, and the only non-royal, non-episcopal country house in England to hold the title of palace. The palace, one of England's largest houses, was built between 1705 and 1722, and designated a UNESCO World Heritage Site in 1987.

Winston Churchill Prime Minister of the United Kingdom during most of World War II

Sir Winston Leonard Spencer-Churchill was a British politician, army officer, and writer. He was Prime Minister of the United Kingdom from 1940 to 1945, when he led Britain to victory in the Second World War, and again from 1951 to 1955. Churchill represented five constituencies during his career as a Member of Parliament (MP). Ideologically an economic liberal and imperialist, for most of his career he was a member of the Conservative Party, which he led from 1940 to 1955, but from 1904 to 1924 was a member of the Liberal Party.

Hart 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. Hart cites J. L. Austin as particularly influential during this time. [5] The two jointly taught from 1948 a seminar on 'Legal and Moral Responsibility'. Among Hart's publications at this time were the essays 'A Logician's Fairytale', 'Is There Knowledge by Acquaintance?', 'Law and Fact' and 'The Ascription of Responsibility and Rights'.

In 1952, Hart was elected Professor of Jurisprudence at Oxford and was a Fellow at University College, Oxford from 1952 to 1973. [7] It was in the summer of that year that he began writing his most famous book, The Concept of Law , though it was not published until 1961. In the interim, he published another major work, Causation in the Law (with Tony Honoré) (1959). He was president of the Aristotelian Society from 1959 to 1960.

Hart married Jenifer Fischer Williams, a civil servant, later a senior civil servant, in the Home Office and, still later, Oxford historian at St Anne's College (specialising in the history of the police). [8] Jenifer Hart was, for some years in the mid-1930s and fading out totally by decade's end, a 'sleeper' member of the Communist Party of Great Britain. Three decades later she was interviewed by Peter Wright as having been in a position to have passed information to the Soviets, and to Wright, MI5's official spy hunter, she explained her situation; Wright took no action. In fact her work as civil servant was in fields such as family policy and so would have been of no interest to the Soviets. [9] The person who recruited her, Bernard Floud, interviewed by Wright shortly after, maintained that he was unable to remember ever having done so. Nor was her husband in a position to convey to her information of use, despite vague newspaper suggestions, given the sharp separation of his work from that of foreign affairs and its focus on German spies and British turncoats rather than on matters related to the Soviet ally. In fact, Hart was anticommunist.

The marriage contained "incompatible personalities", though it lasted right to the end of their lives and gave joy to both at times. Hart did joke with his daughter at one point, however, that "[t]he trouble with this marriage is that one of us doesn't like sex and the other doesn't like food". [10] 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. The Harts had four children, including, late in life, a son who was disabled, the umbilical cord wrapped around his neck having deprived his brain of oxygen. The boy was, despite his handicap, capable of remarkable observations on occasion. As a philosopher, Hart had long been interested in the mind-body problem, and he was thus in some sense professionally interested in his son, as well as emotionally invested, if only because his child was first-hand proof of the complex and unpredictable nature of the relationship between mind and body.[ citation needed ]

Hart's granddaughter Mojo Mathers became New Zealand's first deaf Member of Parliament in 2011.[ citation needed ]

There is a description of the Hart's household by the writer on religion Karen Armstrong, who lodged with them for a time to help take care of their disabled son. The description appears in her book The Spiral Staircase. [11]

Hart retired from the Chair of Jurisprudence in 1969 and was succeeded by Ronald Dworkin. He subsequently became Principal of Brasenose College, Oxford.

Hart died in Oxford in 1992, aged 85. He is buried there in Wolvercote Cemetery. Isaiah Berlin's grave is nearby.

Grave of H. L. A. Hart at the Wolvercote Cemetery in Oxford Grave of H. L. A. Hart at the Wolvercote Cemetery in Oxford. 2017.jpg
Grave of H. L. A. Hart at the Wolvercote Cemetery in Oxford

Hart's students

Many of Hart's former students have become important legal, moral, and political philosophers, including Brian Barry, Ronald Dworkin, John Finnis, John Gardner, Kent Greenawalt, Peter Hacker, Neil MacCormick, Joseph Raz, Chin Liew Ten and William Twining. 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.

Philosophical method

Hart strongly influenced the application of methods in his version of Anglo-American positive law to jurisprudence and the philosophy of law in the English-speaking world. Influenced by John Austin, Ludwig Wittgenstein and Hans Kelsen, 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 Austrian legal philosopher Hans Kelsen, though Hart rejected several distinctive features of Kelsen's theory.

Significant in the differences between Hart and Kelsen was the emphasis on the British version of positive law theory which Hart was defending as opposed to the Continental version of positive law theory which Kelsen was defending. This was studied in the University of Toronto Law Journal in an article titled "Leaving the Hart-Dworkin Debate" which maintained that Hart insisted in his book The Concept of Law on the expansive reading of positive law theory to include philosophical and sociological domains of assessment rather than the more focused attention of Kelsen who considered Continental positive law theory as more limited to the domain of jurisprudence itself. [12]

Hart drew, among others, on Glanville Williams who had demonstrated his legal philosophy in a five-part article, "Language and the Law" and in a paper, "International Law and the Controversy Concerning the Word 'Law'". In the paper on international law, he sharply attacked the many jurists and international lawyers who had debated whether international law was "really" law. They had been wasting everyone's time, for the question was not a factual one, the many differences between municipal and international law being undeniable, but was simply one of conventional verbal usage, about which individual theorists could please themselves, but had no right to dictate to others.

This approach was to be refined and developed by Hart in the last chapter of The Concept of Law (1961), which showed how the use in respect of different social phenomena of an abstract word like law reflected the fact that these phenomena each shared, without necessarily all possessing in common, some distinctive features. Glanville had himself said as much when editing a student text on jurisprudence and he had adopted essentially the same approach to "The Definition of Crime". [13]

The Concept of Law

Hart's most famous work is The Concept of Law, 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:

  • The Rule of Recognition, the rule by which any member of society may check to discover what the primary rules of the society are. In a simple society, Hart states, the recognition rule might only be what is written in a sacred book or what is said by a ruler. Hart claimed the concept of rule of recognition as an evolution from Hans Kelsen's " Grundnorm ", or "basic norm".
  • The Rule of Change, the rule by which existing primary rules might be created, altered or deleted.
  • The Rule of Adjudication, the rule by which the society might determine when a rule has been violated and prescribe a remedy.

Other work

With Tony Honoré, Hart wrote and published Causation in the Law (1959, second edition 1985), which is regarded as one of the important academic discussions of causation in the legal context. The early chapters deal philosophically with the concept of cause and are clearly the work of Hart, while later chapters deal with individual cases in English law and are clearly his co-author's.

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), which consisted of three lectures he gave at Stanford University. He also wrote The Morality of the Criminal Law (1965). Hart said that he believed Devlin's view of Mill's harm principle as it related to the decriminalisation of homosexuality was "perverse". [14] He later stated that he believed the reforms to the law regarding homosexuality that followed the Wolfenden report "didn't go far enough". Despite this, Hart reported later that he got on well personally with Devlin. [5]

Hart gave lectures to the Labour Party on closing tax loopholes which were being used by the "super-rich". Hart considered himself to be "on the Left, the non-communist Left", and expressed animosity towards Margaret Thatcher. [5]

Writings

Festschrift

See also

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<i>The Concept of Law</i>

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References

  1. Legal Positivism (Stanford Encyclopedia of Philosophy)
  2. "The Concept of Law (Clarendon Law) (Clarendon Law Series)". Amazon. Clarendon Law Series.
  3. Matthew H. Kramer and Claire Grant (2008). "Introduction", in Satthew H. Kramer, Claire Grant, Ben Colburn, and Anthony Hatzistavrou (ed.): The Legacy of H.L.A. Hart: Legal, Political and Moral Philosophy. Oxford/New York, Oxford University Press, xiii.
  4. Mullender, Richard: "Nicola Lacey, A Life of H.L.A. Hart: the Nightmare and the Noble Dream – H.L.A. Hart in Anglo-American Context", Web Journal of Current Legal Issues (review 2007). Oxford University Press, (2004). ISBN   978-0-19-920277-5
  5. 1 2 3 4 5 Sugarman, David; Hart, H. L. A. (2005). "Hart Interviewed: H.L.A. Hart in Conversation with David Sugarman". Journal of Law and Society. Blackwell. 32 (2): 267–293. JSTOR   3557228.
  6. Gavaghan, Colin (2007). Defending the Genetic Supermarket: The Law and Ethics of Selecting the Next Generation. Biomedical Law and Ethics Library. Routledge. p. 37. ISBN   978-1135392932.
  7. Darwall-Smith, Robin (2008). A History of University College, Oxford. Oxford University Press. pp. 486, 492–4, 501, 504, 513, 536. ISBN   978-0-19-928429-0.
  8. Biography of Jenifer Hart
  9. Obituary of Jenifer Hart, Daily Telegraph , 9 April 2005.
  10. Margaret Howatson, Obituary: Jenifer Hart, The Independent, 31 March 2005.
  11. Armstrong, Karen (3 January 2005), The Spiral Staircase, HarperPerennial, ISBN   978-0-00-712229-5, 0007122292
  12. Keith Culver. "Leaving the Hart-Dworkin Debate', University of Toronto Law Journal, pp374-398.
  13. Baker, Dennis J.; Horder, Jeremy (14 February 2013). The Sanctity of Life and the Criminal Law: The Legacy of Glanville Williams. Cambridge University Press. ISBN   9781107020474.
  14. Hart. H. L. A. "Immorality and Treason·, The Listener (July 30, 1959). 162-63. Reprinted in Wasserstrom, Richard A. (ed.). Morality and the Law. Belmont, CA: Wadsworth Publishing, 1971.

Sources

Academic offices
Preceded by
Noel Frederick Hall
Principal of Brasenose College, Oxford
1973–1978
Succeeded by
John Keiran Barry Moylan Nicholas