Herbert Lionel Adolphus Hart (1907-1992) stands as the central figure of analytical jurisprudence in the English-speaking world after the Second World War. He took a field that sat at the edge of legal scholarship and moved it to the center of philosophy. His account of law as a union of rules, his concept of the rule of recognition, his distinction between the internal and external points of view, and his liberalism on questions of law and morality continue to set the terms of debate. More than six decades after the appearance of The Concept of Law (1961), legal theorists still locate their own positions by reference to his.
Hart joined three traditions that had rarely met in a single man. He brought the discipline of postwar Oxford philosophy, the practical knowledge of a working barrister, and the convictions of a liberal reformer. He held all three at once, and the combination gave his work its authority.
Hart was born on July 18, 1907, in Harrogate, Yorkshire. His father, Simeon Hart, ran a prosperous tailoring business and came from a family of German and Polish Jewish descent. His mother, Rose Samson Hart, also descended from Polish Jews. He grew up with two older brothers and a younger sister. The family’s Jewish background set Hart a little apart from the old English establishment. Later writers, Nicola Lacey above all, have suggested that this experience of standing inside and outside English society at the same time fed his lifelong concern with membership, authority, obligation, and the conditions under which rules win acceptance.
After a short period at Cheltenham College, Hart attended Bradford Grammar School and then went up to New College, Oxford. He read Greats, the classical course that joined philosophy, ancient history, and literature, and he took first-class honors. Greats trained him in the close analysis of concepts that marked all his later work. He did not move at once into academic philosophy. He chose law, qualified as a barrister, and joined the Chancery Bar in London in 1932.
Hart practiced for most of a decade before he entered the university, and the experience shaped his jurisprudence. He came to see law as a living institution made up of judges, lawyers, legislators, and citizens who carry on shared practices, rather than as a set of abstract propositions. That conviction later separated him from philosophical abstraction on one side and rigid legal formalism on the other. His theory kept a practical grain that came from his years at the bar.
The war changed the course of Hart’s life. Unfit for combat, he joined MI5, the British domestic intelligence service. There he worked beside men who later led British intellectual life, among them the philosophers Gilbert Ryle (1900-1976) and Stuart Hampshire (1914-2004). He also crossed paths with figures from the wider intelligence world, including Alan Turing (1912-1954) and the future head of the service Dick White (1906-1993). The work placed him inside a large bureaucracy and showed him how authority, rules, and state power operate in practice. It deepened his interest in obedience and command. His friendships mattered as much as the work. Through long conversations with Ryle and Hampshire he absorbed the methods of ordinary-language philosophy before he ever held a philosophical post.
After the war Hart returned to Oxford and began the academic career that ran for the rest of his life. Oxford philosophy in those years turned on the work of J. L. Austin (1911-1960), Ryle, and others who studied how words function in ordinary speech rather than building large metaphysical systems. Hart became among the first to bring these methods to bear on law. He held that many old quarrels in jurisprudence rested on confusion about concepts. Lawyers and philosophers used words such as law, obligation, right, and authority without examining how the words work. His inaugural lecture, Definition and Theory in Jurisprudence (1953), set out this program.
Oxford elected Hart to the Professorship of Jurisprudence in 1952. The choice surprised some, since Hart was no ordinary legal academic and his training came from practice and philosophy rather than from doctrinal scholarship. The unusual mix proved fertile. Over the next two decades Oxford became the leading center of analytical jurisprudence in the world. Hart’s seminars drew the men who later led the field, among them Joseph Raz (1939-2022), John Finnis (b. 1940), and Neil MacCormick (1941-2009).
Hart’s central achievement arrived with The Concept of Law in 1961. He wrote it to replace the command theory of John Austin (1790-1859), the nineteenth-century jurist who held that laws are commands issued by a sovereign and backed by threats. Hart held that this picture leaves out too much of how a modern legal system works. In its place he argued that law is a system of rules.
Hart drew a line between two kinds of rules. Primary rules govern conduct. They forbid murder, require the payment of taxes, set the terms of valid contracts, and fix standards of behavior. Secondary rules govern the system. They say how laws come into being, how courts read them, how they change, and how officials enforce them. The union of primary and secondary rules turns a simple social order into a developed legal system.
One secondary rule carries special weight. Hart calls it the rule of recognition, the final test by which officials decide what counts as valid law within their system. In the United States the constitutional text, statutes, judicial decisions, and other sources count as law because officials share standards that mark them as law. No statute creates the rule of recognition. It lives as a practice among officials who accept it. The idea became central to modern legal theory.
Many readers regard the internal point of view as Hart’s deepest contribution. John Austin had described law from the standpoint of an outside observer who notes that people tend to obey and that the state tends to punish. Hart held that this account misses the central feature of legal life. Those who live under a legal system do more than predict punishment. They treat rules as standards, use them to judge conduct, criticize those who break them, and justify their own decisions by appeal to them. A citizen who pays his taxes does not commonly think that he expects punishment if he refuses. He takes himself to meet an obligation. A judge who decides a case does not forecast behavior. He cites rules as reasons. The distinction lets Hart explain why a legal duty differs from the demand of a gunman. The robber compels through fear. A legal system rests on officials and citizens who accept its rules from the inside.
Hart’s view of language shaped his account of judging. Legal terms, he argues, carry a core of settled meaning and a penumbra of doubt. His example concerns a rule that forbids vehicles in a park. A car sits in the core. Bicycles, roller skates, toy cars, ambulances, and wheelchairs sit in the penumbra. In such cases the judge exercises discretion and performs a limited legislative task, choosing among competing aims where the existing law gives no single right answer. This claim later drew the fire of Ronald Dworkin (1931-2013).
Among the famous controversies of twentieth-century legal theory stands Hart’s exchange with Lon L. Fuller (1902-1978). It began after Hart gave the Holmes Lecture at Harvard in 1957. Hart argued that no necessary tie binds law to morality, and that a wicked law might still hold as valid law. Fuller answered that law carries an internal morality of its own, a set of procedural demands such as publicity, consistency, and generality, and that a system that fails these tests fails as law. Their dispute became the defining meeting of legal positivism and natural-law theory, and it remains on reading lists in law schools everywhere.
Hart did more than theorize about law. He spoke as a liberal in public life. In the late 1950s and early 1960s Britain asked whether the criminal law should enforce common morality. The question set Hart against the judge Patrick Devlin (1905-1992). Devlin held that a society may protect its shared morality through the criminal law, since that morality binds the society together. Hart drew on John Stuart Mill (1806-1873) and answered that the criminal law should prevent harm rather than impose the moral views of the majority. His books Law, Liberty and Morality (1963) and The Morality of the Criminal Law (1965) became founding texts of postwar liberalism, and his arguments lent intellectual support to the decriminalization of homosexual conduct and to other reforms of the period.
The Concept of Law tends to overshadow Hart’s work on the criminal law, yet many specialists rank Punishment and Responsibility (1968) beside it. The book takes up the old quarrel between utilitarian and retributive theories. Utilitarians justify punishment by its future gains, such as deterrence. Retributivists justify it because the wrongdoer deserves it. Hart sought a path between them. He argued that society may justify the practice of punishment by its useful aims while limiting its distribution by principles of responsibility and fairness, so that only those who break the law by their own choice face punishment. The position shaped later criminal theory and remains tied to modern defenses of the requirement of mens rea.
Hart’s work with Tony Honoré (1921-2019) produced another landmark, Causation in the Law (1959). The book asks how legal systems assign responsibility for harm. Rather than treat causation as a question for science alone, Hart and Honoré showed how legal reasoning draws on common-sense judgments about agency, intervention, and responsibility. It remains a foundational text.
Hart’s most famous critic was his former student and his successor in the chair, Ronald Dworkin. Dworkin rejected Hart’s account of judicial discretion and argued that law holds principles as well as rules. On his view the judge in a hard case draws out the principles already present in the legal tradition and the answer they yield, rather than legislating. The Hart-Dworkin debate ruled Anglo-American jurisprudence for more than twenty years, and most major theorists of the late twentieth century placed themselves somewhere between the two men.
In his later years Hart turned to Jeremy Bentham (1748-1832). He edited and read Bentham’s legal writings and worked to recover the parts of Bentham’s philosophy that scholars had neglected. His Essays on Bentham (1982) renewed interest in Bentham as a serious philosopher of law rather than a mere reformer.
Hart married Jenifer Fischer Williams in 1941. She served as an able civil servant and later taught history at Oxford, with work on the police and the penal system. The couple had four children. Nicola Lacey’s biography A Life of H. L. A. Hart: The Nightmare and the Noble Dream (2004) shows a marriage rich in mind and difficult in feeling. Hart carried self-doubt, anxiety, and spells of depression through his life. The calm and confident prose of his books concealed private fears that his powers had been overrated, and those fears grew sharper during his long contest with Dworkin. Friends saw the gap between the steadiness of his published pages and the unease of his private notes.
Hart gave up the Oxford chair in 1969, and Dworkin took it. From 1973 to 1978 he served as Principal of Brasenose College, Oxford. In retirement he kept refining his philosophy and worked on a reply to his critics. His main unfinished task was a full answer to Dworkin and to the other challengers of legal positivism. He died in Oxford on December 19, 1992, with the work incomplete. Penelope Bulloch and Joseph Raz edited the result and published it in 1994 as the Postscript to The Concept of Law, and it drew wide discussion in its own right.
Few men have shaped modern jurisprudence as far as Hart did. He turned legal positivism from a nineteenth-century doctrine about sovereign commands into a developed theory of legal institutions, social practice, and normative reasoning. His primary and secondary rules, his rule of recognition, his internal point of view, and his core and penumbra remain part of the working vocabulary of legal philosophy. Even those who reject his conclusions tend to start from his framework. Jurisprudence before Hart ran as a contest among rival schools. Jurisprudence after Hart became, to a large degree, a conversation carried on in the terms he set. He did more than win arguments. He set the questions.
Ludwig Wittgenstein (1889-1951) and Saul Kripke (1940-2022)
Hart’s two foundations come out of the same Oxford air that carried Wittgenstein into postwar philosophy. Meaning is use. To know a word is to know how to go on with it. The vehicles-in-the-park example is a Wittgensteinian point about how concepts work, put to legal use, and the term Hart takes for the soft edge of a concept, open texture, he had from Friedrich Waismann (1896-1959), who had it from Wittgenstein. So the rule-following considerations do not reach Hart as a foreign import. They reach him as the part of his own inheritance he chose not to spend.
The hardest version of the problem sits in the Philosophical Investigations. A rule does not contain its own application. Set down any rule and the cases it covers are not fixed by the words, since every later case can be brought under the words on one reading and shut out on another. Wittgenstein states the paradox at section 201: no course of action can be settled by a rule, because any course can be made to accord with the rule. Interpretation does not close the gap, because an interpretation is one more sign that stands in need of application. There has to be a way of grasping a rule that is not an interpretation, a way that shows in what men do, in going on the same way without a further rule to tell them how. At the floor Wittgenstein finds practice, not principle. I obey the rule, he writes, blindly.
Kripke gives the paradox its sharpest edge in Wittgenstein on Rules and Private Language. Take a man who has added numbers all his life. Ask what fact about him made it the case that he meant addition rather than some other function that agrees with addition on every sum he ever computed and parts from it on the next. No fact answers. Not his past sums, which are finite and consistent with countless functions. Not his dispositions, which are finite and also err. Not any picture or feeling in his mind, since a picture again needs reading. Past practice underdetermines the next step. Nothing in the man fixes what going on the same way comes to.
Turn this on the rule of recognition. The rule of recognition is the master test by which officials pick out valid law, and Hart says it lives as a practice, a convergence among officials who accept shared criteria. Grant the convergence. The question the rule-following considerations press is what fixes the content of the criteria the officials share. So long as the cases resemble the cases already settled, the practice runs and no one notices the gap. The gap shows at the new case: the contested amendment, the source without precedent, the constitutional break. There the past practice of the officials underdetermines the answer in the way the past sums underdetermine the next sum. Hart treats the shared criteria as carrying a determinate content that officials accept and apply. The frame says the content is not lying there to be accepted. It is made, or not made, in the going on, and at the edge no fact settles it.
The internal point of view takes the same cut. Hart’s advance over John Austin was to say that those inside a legal order do more than predict sanctions; they hold the rule as a standard, fault the man who breaks it, and cite it as a reason. True as description. But to hold a rule as a standard a man must know what the rule asks of him in the case before him, and the rule does not say. The internal point of view names the attitude, acceptance of the rule as a guide. It does not supply the content, what the rule guides the man to do. Hart puts the determinacy into the attitude and leaves the content unaccounted.
Hart saw a piece of this and walled it off. Open texture and the penumbra are his concession that concepts blur at the rim. He keeps a core where the concept holds firm and a penumbra where the judge must choose. Wittgenstein cuts deeper. The line between core and penumbra is drawn by agreement in practice; it is not a property the concept carries on its own. The car sits in the core of “vehicle” because officials and citizens go on the same way with the word, and that shared going-on is the thing to explain, not the thing we may assume. Hart’s core rests on the determinacy the rule-following considerations deny. He treats as given what the frame treats as the question.
Kripke ends with what he calls a skeptical solution. No fact in the man fixes meaning, so the account moves outward, to the community: the conditions under which a group treats a man as following the rule, the agreement in response that lets correction proceed, the shared form of life where justification ends. At first this reads as help for Hart, whose rule of recognition already lives among a community of officials rather than in one head. The help turns against him. On the skeptical solution there is no inner grasp of a rule that the officials then apply; there is the standing pattern of officials going on alike and correcting the man who goes on differently, with nothing under it. So the rule of recognition is not a set of criteria the officials hold and consult. It is the name for the regularity of officials agreeing, and for their agreeing to correct, until the day they do not agree. At that day, the hard constitutional case, there is no rule to consult, because the rule was never more than the agreement now in question.
Wittgenstein puts this at sections 241 and 242. The agreement that lets language work runs below shared opinion; it is agreement in a form of life, and where reasons give out a man says, this is simply what I do. Read Hart’s officials through that. When Hart says they accept the rule of recognition, the most the frame allows the saying to mean is that they share a trained way of going on that takes no further ground. Hart wants the rule of recognition to be a criterion, a thing with content that decides validity. The frame returns it as bedrock, a practice that admits no question beneath it. Justification comes to an end, and it ends in what officials do.
The quarrel with Dworkin looks different from here. Dworkin pressed Hart on the hard case and held that law carries principles that yield a right answer where the rules give out. Both men rest on determinate content. Hart locates it in the core, Dworkin in the principles. The rule-following considerations remove the ground under both. There is no layer where the content sits fixed ahead of the practice of deciding. Dworkin’s right answer and Hart’s settled core are two tries at locating a fact the frame says is not there to find. What the frame leaves standing belongs to neither man: the law is what the body of officials does, and at the margin the doing answers to nothing further. It belongs to neither the positivism Hart defended nor the reading of law Dworkin pressed. It dissolves the ground they fought on.
The frame does not knock Hart down so much as move his foundation. His account of how officials carry on, holding rules as standards, faulting the man who strays, survives as accurate description. The step that fails is the one from officials share a practice to the practice has a content that grounds validity. The frame answers that the practice is the ground and the ground has no content past the going-on. Hart wanted bedrock with structure. The rule-following considerations hand him bedrock without it.
He took from the Oxford Wittgenstein the therapy against bad definitions and the license for open texture, and he wrote The Concept of Law two decades before Kripke made the skeptical paradox vivid. He used Wittgenstein to break Austin’s command theory and to soften the edges of legal concepts, then set the tools down. The deeper Wittgenstein, the one who holds that no rule carries its own application, might have unsettled the rule of recognition Hart needed to stand on. Hart took the half of the inheritance that built the account and left the half that might have undone it.
This is the philosophical source of a gap the sociologists reach from the other side. Where Wittgenstein and Kripke show that no fact in the practice fixes how to go on, the sociology of the tacit asks where the shared practice sits and what work it does, and finds the same emptiness at the base. The two roads meet at the rule of recognition, the place Hart built to be solid and the place the rule-following considerations find to be agreement and nothing under it.
The books give nothing away. The prose of The Concept of Law runs cool and level, a man in full command of his ground, and a reader meets it and thinks here is a mind without fear. The diaries say otherwise. Nicola Lacey found in them a man who lay awake sure the field had overrated him, sure the gift others saw was a trick of manner, sure Dworkin had found the flaw and the flaw was real. The calm on the page and the dread in the drawer belong to the same man. Ernest Becker (1924-1989) gives the reason they belong together.
Becker’s claim, set down in The Denial of Death (1973) and Escape from Evil (1975), runs like this. A man is an animal that knows it will die, and the knowledge is more than he can carry, so every culture hands him a scheme by which he earns the feeling that he counts past his own body. Becker calls the scheme a hero system. It tells a man what a hero is, what acts and objects carry significance, how a life buys a portion of permanence. Self-esteem is the sense that you are an object of value in a world of meaning. The terror sits under it. The hero system holds the terror down by giving the man a way to count, and the way differs from culture to culture and from man to man.
Hart’s hero system is clarity. In his world the hero is the man who dispels confusion. The sacred act is the clean distinction. Austin had muddled command and law, force and authority, the gunman and the state, and Hart drew the lines Austin had blurred until the field could see. Primary rules and secondary rules. The internal view and the external. The core and the penumbra. Each is a clarification, and in Hart’s scheme a clarification is heroism, because it leaves behind a thing the field cannot un-know. That is the portion of permanence the system pays out. The man dies; the distinction stands; later men think with it whether they thank him or not.
Hold the word and carry it elsewhere, because clarity is sacred only inside the temple where Hart worships it. The word names a different holy thing to other men, and seeing the difference is the whole of Becker’s point.
A trauma surgeon stands over a man whose belly is open and filling. He has nine seconds to decide. Clamp here or there. He has done it a thousand times and his hands move before the thought lands, and the resident across the table watches the hands. In the corridor afterward the resident says he made it look like nothing, and the surgeon says, you stop thinking, that’s the trick, you stop thinking and you cut. For this man clarity is not a distinction held up to the light. It is the body cleared of fear so the hands can work. His permanence runs through the men and women who walk out of the building alive and through the residents who carry his hands into the next decade. Set Hart’s clarity beside it and Hart looks like a man who never had to be right in nine seconds with a life on the table.
A Rinzai monk sits forty years on a cushion to put down the very thing Hart spent a life building. The distinction, the name, the line between this and that, the monk treats as the net thrown over the real that keeps a man from the real. His teacher raps the stick and asks what his face was before his parents were born, and there is no clean answer, and the wanting of a clean answer is the sickness. Clarity here is the mind emptied of the categories, the seeing that comes when the names fall off. To the monk, Hart’s achievement, the whole fine structure of rules about rules, is a finer cage. The monk earns his permanence by stepping out of the line of birth and death the rest of us count by. Two men, one word, opposite heaven.
A trumpet player walks onto a bandstand in a room thick with smoke and takes a chorus the older men in the corner will talk about for years. He could not write down what he did and has no wish to. The clarity he chases lives for four bars and then is gone, and the next night he has to find it again. The record is the only permanence he trusts, the wax that holds the night the line came clean, and even that he distrusts, because the line was alive and the wax is dead. A man asks him after the set how he knew where to go and he says, you don’t know, you hear it a half second before your lip does. Hart wanted the thing that lasts. The trumpet player wants the thing that arrives and leaves and cannot be kept, and that wanting is its own bid against death, the night so good it outlives the nights.
In a study hall the noise is two hundred men arguing in pairs, swaying over the open tractate, and a scholar finds the resolution to a contradiction that has stood between two pages for a thousand years. He has clarity, and his clarity binds him tighter. The cleaner he sees the law the more the law owns him, because the law runs up to God and back through the dead who carried it to him, and to see it well is to owe more. Here is a man born, as Hart was, into the Jewish law, who took the opposite road. Hart left the law of his fathers and built a law that answers to nothing above the practice of the men who keep it. The scholar’s clarity ties a man to the chain. Hart’s clarity cut the chain and called the cut honesty. Each earns his permanence, the scholar by his link in a line that means to run to the end of days, Hart by a book that means to outlast the man. The same blood, the same word, two heavens that do not share a sky.
On a hillside at a graveside an old man stands at the head of his people and knows every name in the ground behind him and every face in the line before him. Ask him what he sees clearly and he will not point to a distinction. He points to the land, the dead, the boys who carry his name, the debts of blood his house has paid and is owed. His clarity is knowing whose he is and who is his. The hero in his scheme is the man who keeps faith with the line, who does not let the name fall, who hands the land on whole. To this man Hart’s life looks thin, a clever stranger in a far city arranging words that bind no one to anyone. The patriarch buys his permanence in grandsons and in the keeping of the name, the oldest immortality there is and the one Becker says the moderns lost and could not replace. Hart had four children and a chair. He bet on the chair.
Ask why Hart, of all the heroes a man can be, chose this one. Becker says a man does not pick his hero system off a shelf; the culture hands it to him and he takes the currency it mints highest. Hart came up the tailor’s son of a Jewish family in Harrogate, a boy a little outside the English thing, and the door into the center of that world ran through the mind. New College, Greats, first-class honors, the chair at Oxford. The English high culture he reached for paid its top rate in one coin above all, the cool clarifying intellect, and Hart had it and spent it and the world certified him a hero in the one currency he could earn. He had tried the bar first and left it. The bar prizes a clarity too, the story clean enough to move twelve men in a box, but that clarity serves the client and not the truth, and Hart wanted the truth, or wanted to be the man who served it. The war gave him a season inside the secret world, MI5, the knowledge held close and the men who held it, and he came back to Oxford and turned the habit of careful judgment on the law. Every step pointed one way. The hero he became is the hero the culture had a slot open for.
Dworkin frightened Hart past all proportion. A disagreement is one thing. A threat to the immortality is another. If Dworkin had the better of it, then the framework was not the permanent floor of the field; it was a position, a moment, a thing the next men step over. The cathedral Hart raised against his own death turned out to carry a crack, and the crack ran straight to the question of whether the life had bought what he paid for it. Lacey’s diaries grow darkest in those years. A man can take a wrong verdict on a case. Becker says no man takes the news that his bid against death has failed, and that is the news Dworkin seemed to carry. So Hart fought him for twenty years and went on fighting him in retirement, working the long reply that was to seal the framework shut.
He died with the reply unfinished. The Postscript to The Concept of Law came out two years after him, in 1994, pulled together from the papers by Penelope Bulloch and Joseph Raz. There is no scene in the life more Becker than that one. The man spends his last strength to close the project against the one who threatens it, and death takes him at the desk with the work open, and other hands finish what they can and publish the fragment. No immortality project closes. The body has the last word every time. Hart built the most enduring thing an English legal mind built in the century, and he went into the dark sure it might not hold.
Becker’s hardest line waits at the end. A hero system works only from the inside. To the surgeon and the monk and the trumpet player and the scholar and the old man on the hill, Hart’s life reads as a man in a quiet room arranging words, and the arranging looks a small thing to set against death. To Hart, getting the words right was the whole defense, the one a man of his gifts and his culture could mount, and he mounted it as well as it has been mounted. The word clarity sat on his desk like a holy object and on the surgeon’s table and in the zendo and on the bandstand and in the study hall and at the graveside, the same word on every tongue and a different god behind it. None of the worshippers can see the others’ god. The blindness is no fault in any of them. It is the price of having a god at all, and Becker’s news is that a man who knows he will die cannot afford to go without one.
In his 2018 book, The Great Delusion: Liberal Dreams and International Realities, John J. Mearsheimer wrote:
My view is that we are profoundly social beings from the start to the finish of our lives and that individualism is of secondary importance… Liberalism downplays the social nature of human beings to the point of almost ignoring it, instead treating people largely as atomistic actors… Political liberalism… is an ideology that is individualistic at its core and assigns great importance to the concept of inalienable rights. This concern for rights is the basis of its universalism—everyone on the planet has the same inherent set of rights—and this is what motivates liberal states to pursue ambitious foreign policies. The public and scholarly discourse about liberalism since World War II has placed enormous emphasis on what are commonly called human rights. This is true all around the world, not just in the West. “Human rights,” Samuel Moyn notes, “have come to define the most elevated aspirations of both social movements and political entities—state and interstate. They evoke hope and provoke action.”
[Humans] do not operate as lone wolves but are born into social groups or societies that shape their identities well before they can assert their individualism. Moreover, individuals usually develop strong attachments to their group and are sometimes willing to make great sacrifices for their fellow members. Humans are often said to be tribal at their core. The main reason for our social nature is that the best way for a person to survive is to be embedded in a society and to cooperate with fellow members rather than act alone… Despite its elevated ranking, reason is the least important of the three ways we determine our preferences. It certainly is less important than socialization. The main reason socialization matters so much is that humans have a long childhood in which they are protected and nurtured by their families and the surrounding society, and meanwhile exposed to intense socialization. At the same time, they are only beginning to develop their critical faculties, so they are not equipped to think for themselves. By the time an individual reaches the point where his reasoning skills are well developed, his family and society have already imposed an enormous value infusion on him. Moreover, that individual is born with innate sentiments that also strongly influence how he thinks about the world around him. All of this means that people have limited choice in formulating a moral code, because so much of their thinking about right and wrong comes from inborn attitudes and socialization.
Hart is a liberal of the line that runs from John Stuart Mill. In Law, Liberty and Morality he argues that the criminal law should bar harm to others and leave alone the conduct by which a man harms only himself or no one. The state has no warrant to enforce the moral feelings of the majority where no one is hurt. This is the harm principle, and it presses the individual’s protected sphere against the claims of the group. It is the part of Hart that Mearsheimer’s anthropology strikes hardest, because the harm principle needs a man who has a sphere of his own, a region of life that is his and touches no other, and Mearsheimer’s man has no such sphere. He is made of his attachments. His conduct runs back into the group that formed him and forward into the group he forms.
The quarrel with Patrick Devlin is the test the frame was built for. Devlin held that a society coheres by a shared morality, that the morality is part of the bond holding the people together, and that a society may defend that morality with the criminal law as it defends against sedition, since to let the common morality dissolve is to let the society dissolve. Hart answered that this confuses the moral feelings of the majority with the conditions of social survival, and that a society can absorb wide changes in private morality without coming apart. Read the two men through Mearsheimer and Devlin has the stronger anthropology. The social animal Mearsheimer describes is held in his group by exactly the shared sentiment Devlin names. Loosen the shared morality and you loosen the bond, because the bond is the shared morality and little else holds men who are not kin. Devlin’s claim that the group may protect its cohesion is, on this frame, a claim grounded in human nature. Hart’s reply rests on the man who can stand a little apart from his people’s morality and weigh it by a reasoned standard, and that man, Mearsheimer says, is rare to the point of fiction, because reason came late and weak and the morality came early and deep.
The harm principle then loses the line it must draw. Hart needs a clean border between conduct that harms others and conduct that harms only the man himself, because the law may cross the first and not the second. Mearsheimer’s man blurs the border, since a man so embedded in his group has few acts that touch no one. What he does in private feeds the moral air the group breathes, weakens or strengthens the code the next child takes in, and the group feels the change whether or not a single victim can be named. Devlin called that the disintegration a society fears. Mearsheimer gives the reason the fear is not foolish. The self-regarding act, the act that is a man’s own business and no one else’s, is a clean idea only for a creature less social than the one we are.
Hart’s method takes the next blow. His trust runs to reason. He clarifies, he distinguishes, he argues, and he expects the argument to move the law toward the better view. His case against Devlin is a case made of reasons and offered to men he trusts to weigh reasons. Mearsheimer ranks reason last of the three guides. On that ranking the argument did not move the society; the society moved and the argument rode the change. The decriminalization Hart’s writing is said to have helped came as the socialized morality of the English shifted, and the philosopher’s case gave the shift a clean dress and a respectable name. The men who changed their minds did not change them because Hart drew a sound distinction. Their sentiment moved first, their sense of their people’s morality moved with it, and reason came along behind to tidy the result. If Mearsheimer is right, Hart misread his own influence and mistook the moving society for the force of his own argument.
Here the frame turns up something stranger than a defeat. The blow falls on Hart the liberal, not on Hart the jurist, and the two live in one man. The jurist holds that law rests on a social practice, that the rule of recognition exists because the officials of a system accept it together, that the internal point of view is the shared stance of men who treat a rule as their common standard. That Hart describes the social animal well. Law, on his own account, is not a set of commands aimed at atoms; it is a practice a group keeps. The internal point of view is a group’s acceptance worn on the inside. So the descriptive Hart, the one who says what law is, sees the embedded man clearly. The prescriptive Hart, the one who says what law should leave alone, builds on the atom who does not exist. One man wrote both. He grounded law in the group and grounded liberty in the individual, and Mearsheimer’s anthropology lets the first stand and pulls the floor from the second.
The life carries the same split. Hart was the social animal he theorized when he described law and forgot when he prescribed liberty. He came up a Jewish tailor’s son and climbed into English high culture, took its values, its cool rationalism, its liberalism, before he could weigh them, because a man takes the values of the world he enters and Hart entered Oxford young and hungry for it. He served in MI5 in the war, an act of a man bound to his nation, ready to spend his years defending the group against an enemy of the group. He married and raised four children. The values he argued for as the free choices of a reasoning man were poured into him by the milieu he joined, which is what Mearsheimer says happens to every man. Hart is the socialized creature who pictured the unsocialized one and called the picture liberty.
Mearsheimer aimed The Great Delusion at the foreign policy of liberal great powers, the crusades to spread rights and remake regimes, and Hart ran no foreign policy and dreamed no crusade. The bite lands on his domestic liberalism, the harm principle and the case against Devlin, where the question of human nature sits in the open. It lands lighter elsewhere. Hart’s positivism, his split of law from morality, answers a different question than the one Mearsheimer asks, and a man might hold the separation thesis and grant every word about the social animal. The frame settles nothing about whether Hart’s liberalism is good, only about whether its picture of man is true. A man who grants Mearsheimer the anthropology can still want the harm principle, can want a law that leaves the private man alone, building that protection into the group’s own morality rather than resting it on a fiction about atoms. Mill’s conclusion can outlive Mill’s psychology. Hart’s may do the same.
So if Mearsheimer is right, Hart loses the man at the center of his liberalism and keeps the man at the center of his law. The harm principle stands on a creature too solitary to be real, and the case against Devlin gives away the ground that Devlin, with the worse philosophy and the better anthropology, was standing on. What Hart keeps is the part of him that already knew we are social: the rule that lives because a group accepts it, the point of view that is a people’s, worn within. The deepest thing the frame turns up is that Hart held both men in his head and never made them meet. He built his theory of law on the animal Mearsheimer describes and his theory of freedom on the atom Mearsheimer denies.
David Pinsof has a name for the story intellectuals tell themselves, set out in his essay “A Big Misunderstanding”: the misunderstanding myth. The wrongs of the world come from confusion, and so the men whose trade is understanding turn out to be the men who can set it right. Pinsof answers that there is no misunderstanding. People are savvy animals who grasp what they have an incentive to grasp, stupidity is most often strategic, and the engine of our troubles is bad motive rather than bad belief, dressed in the language of belief because the motive looks ugly named plainly. Hold that against Hart, and a strange thing happens. Hart embodies the misunderstanding myth.
Start at the root of his program. Hart’s first move, the move that lifts jurisprudence from a back room of the law school to the center of philosophy, is the claim that the old disputes about law rest on confusion about words. Lawyers and philosophers have muddled law, obligation, right, and authority, and the cure is the analyst who shows how the words work. Pinsof’s question lands hard here. What if the disputes were never confusions? What if they were fights, and the clarification is the intellectual’s bid to be the man the fight cannot proceed without? Hart needs the confusion to be real, because if the confusion is real the clarifier is the hero, and jurisprudence becomes a field that cannot do without him. The misunderstanding has to exist or Hart has no job. That is the first thing the frame turns up. The man who built modern jurisprudence built it on the premise that does the most to make a jurisprudence-builder important.
Now the heart of it. Austin had said law is the command of a sovereign backed by threats, the gunman writ large. Hart spent his best pages showing that this is a misunderstanding. The man who obeys the law is not the man with a gun to his head; he holds the rule as a standard, accepts it from the inside, treats it as a reason and not a threat. Hart called this the internal point of view and made it the thing that parts a legal system from a stickup. Pinsof reaches for the same picture Austin reached for. The state is the coercive apparatus that puts men in prison at gunpoint. That line is Austin’s gunman, alive in a writer who holds no stake in jurisprudence. So the contest between Austin and Hart is the contest the frame is built to judge, and the frame sides with Austin. The internal point of view is the beautiful story laid over the gun. It lets the intellectual say the citizen takes part rather than submits, that he has an obligation where Austin saw a man merely obliged. Hart drew that line, obligation against the man who is obliged, and treated it as his deepest finding. Pinsof reads it the other way. The man is obliged. The prison is real and the gun is real. Obligation is the dignifying word we lay over the threat so the order feels like a practice we share rather than a force we fear.
Pinsof’s cut between stated motive and actual motive opens the rest. He likes the example of the mission statement, the firm that says it nurtures the human spirit one cup at a time while it works to clear a profit. Read Hart’s official the same way. The judge who says he applies the law, the official who accepts the rule of recognition, gives the stated motive. The work is the upkeep of the coercive order and the official’s place inside it. Hart’s picture of a legal system, a body of officials who accept shared rules from the internal point of view, is a portrait painted from the mission statement. It takes the official at his word. Pinsof takes the deed. The deed is that some men hold the power to cage other men, that they guard that power and pass it among themselves, and that the talk of acceptance and recognition is the gloss the guild lays on its grip.
The fight with Devlin reads as a fight once the frame is on. Hart argued that the criminal law should not enforce the morality of the majority where no one is harmed, and that Devlin confused the feelings of the many with the survival of society. He framed Devlin’s position as a misunderstanding of the relation between law and morals. Pinsof sets the misunderstanding aside and looks at the gun. The criminal law is the power to punish, and the question of what it punishes is the question of which coalition holds that power and turns it on whom. The older coalition wanted the law to keep punishing the conduct it loathed. The rising liberal coalition wanted that power pulled back from private life, where its own people stood most exposed. Decriminalization is the rising side taking ground. Hart gave that side what every winning side wants, a story in which it stands above the fight as the party of reason and liberty correcting an error. He let the liberals wage a coalition war while feeling like clarifiers. The misunderstanding frame was the kindest weapon in the armory, because it let the victors think they had taught rather than won.
Hart’s open texture takes the same turn. He held that legal words carry a settled core and a penumbra of doubt, and that judges in the penumbra exercise discretion because the language runs out. The picture is one of honest limitation, a gap in the concept that an honest judge then fills. Pinsof reads the gap as room. The penumbra is where the coalition does its work and calls the work interpretation. The judge grasps what he does and whom it serves; the talk of discretion forced by open texture is the cover that lets a choice look like a constraint. Stupidity is strategic, and so is the show of helplessness before a hard case. The judge is not stuck. He chooses, and the language of the gap lets him choose while denying that he chose.
Here Hart turns and half-faces the frame. His positivism, the claim that an evil law is still law, that the law’s authority is not its goodness, is the one place he refuses the comforting story. The natural lawyer wants law to be moral by definition, so that a wicked rule is no law at all and a man may feel his obedience runs always to the good. Hart says no. The wicked rule is law, and a man might have to break it. This is a cold-eyed move, near to Pinsof’s own refusal of the flattering account. Hart looks straight at the force and declines to pretend it must be just. So why does the frame still catch him? Because he takes the cold eye to the content of law and never turns it on the form. He sees that the law need not be good. He will not see that the acceptance he sets at the law’s base might be the same self-serving story, sincerely felt, that he refused in the natural lawyer. Pinsof’s sharpest point is that self-deception works best when it is sincere. The official does feel the internal point of view. The citizen does feel the obligation. The feeling is the savvy read of the incentives, running the more smoothly because the man does not know it for what it is. Hart treats the felt obligation as the datum that sinks the gunman. Pinsof treats the felt obligation as the gunman’s most effective disguise.
The long fight with Dworkin fits the same reading with no need for the inner life. Two men hold the same chair in succession and contend for command of the same field, and each says the other has misread the nature of law. The frame sets the misunderstanding aside again. These are rivals competing for the top of a hierarchy, and the look of a high quarrel over principle is the form the competition takes among men whose weapons are arguments. Each denies he fights for position and frames the stakes as the truth about law, because denial and high framing serve well in that kind of fight. Pinsof need not call either man a liar. He needs only to say that the field hands status to the man who wins the argument, and that men who compete for status compete hard and tell themselves a clean story about why.
The Set
The world to paint is a set of rooms in Oxford in the years after the war, and the men who filled them held that they had found the right way to think and that the right way was theirs.
Start on a Saturday morning in the rooms of J. L. Austin. By invitation a dozen men sat while one read a few pages, and the talk that followed could take a paper apart to the last joint. Austin published almost nothing in his life and ruled the school anyway, by the spoken word, by the short question that found the place where an argument turned on two senses of one word. Gilbert Ryle sat near the center of it, editor of Mind for a quarter century, author of The Concept of Mind, the book that taught a generation to laugh at the ghost in the machine. A. J. Ayer (1910-1989) had come back from the war famous and glamorous, the man who at twenty-six had told England that most of what it called philosophy was literal nonsense. Isaiah Berlin (1909-1997) talked faster than any of them and held court at All Souls, the college a man entered by examination and never had to leave. Stuart Hampshire had been with Hart in the secret service and came back to the same rooms. Peter Strawson (1919-2006), Paul Grice (1913-1988), Richard Hare (1919-2002), and after them the young Bernard Williams (1929-2003), each made his name in the same coin. Friedrich Waismann had carried the Vienna manner across the Channel and given Hart the term open texture without either man guessing where it might lead.
What they valued first was clarity, and they held it a duty and not a taste. Obscurity was a vice in that world and most often a cover, for muddle or for fraud. They prized the well-drawn distinction, the dissolved problem, the confusion shown to be a confusion. They did not honor the system-builder; the man who raised a great structure of thought looked to them like a man who had not noticed his foundations were a play on words. They honored the man who saw through. Ordinary speech they trusted more than any philosopher’s invention, on the ground that the common stock of words held the distinctions generations of men had found worth marking, and the philosopher who ignored it was a fool reinventing a poorer wheel. Above all they valued intellectual honesty, the willingness to follow the argument past your own commitments and to give up a view you had held in public. A man who could do that was sound. A man who could not was something less, whatever his gifts.
The hero in that world was the man who could not be fooled. Greatness showed in talk before it showed in print, and the high moment was the live demolition, done quietly. A young man read his paper and the question came back short, and the question showed that the paper rested on a slide between two meanings, and the room knew the paper was finished, and no voice had risen. Austin was the model of it, and the model was cruel under the courtesy. To win was to be quickest and clearest and least taken in. The prize was not a doctrine that bore your name. The prize was the standing of the man others could not catch out, the man who had seen the trick before anyone said it aloud.
The games that ranked them ran through the colleges and the journals. Austin’s Saturday mornings tried the young. A review in Mind, where Ryle held the pen for decades, could lift a book or bury it. There were the chairs to be had, the Waynflete and the White’s and the Wykeham and the chair of jurisprudence Hart took in 1952, and the fellowships, All Souls above them all, taken by an examination that became a legend. There was election to the British Academy, the knighthood, the festschrift gathered by your students, the obituary written by a rival who knew where the bodies lay. The currency was cleverness spent in public, and the coin most prized was the mild remark that left a man with nothing to say. The terror that matched it was the terror of the man caught out muddled, or pretentious, or solemn, or provincial, which in that company came close to the same sin.
Their essentialist claims were the things they took for the nature of things and not for a position a man might hold. They took it as plain that philosophy is the analysis of concepts and the clearing of confusion, and that metaphysics and system are diseases of language. They took it as plain that clarity is possible and obligatory, that reason can be cut clean from rhetoric and feeling, that there is a fact about how a word works and the trained ear finds it. They took it as plain that the educated secular mind is the proper judge of these questions, and that religion is a confusion or a comfort and in any case not knowledge. Elizabeth Anscombe (1919-2001), a Catholic convert and the student who carried Wittgenstein into Oxford, stood against that last assumption and so stood a little outside the room even as she shaped it, and Philippa Foot (1920-2010) and Iris Murdoch (1919-1999) pressed from the same edge, asking whether the cool analysis of moral words had left out the thing that made them moral. The mainstream heard them and went on. Under all the rest sat the deepest essentialism, never argued because never doubted, that this temper was English and that its home was Oxford, that the common room was the natural seat of a clear mind, and that the man trained in Greats and seasoned at high table had a faculty for telling the serious from the silly that came close to a moral organ.
Their moral grammar followed from the temper. They spoke in understatement and in irony, and the deflation was the message. I’m not sure I follow. That may be so. The mild sentence carried more weight than abuse, and a man learned to dread the courteous question more than the open attack. They held earnestness and cant in horror, and moral seriousness came out as dryness, as the refusal to emote, so that the most serious men sounded the least solemn. The cardinal move of that grammar was to turn sin into muddle. To call a man wicked was crude and uninteresting. To show that his view rested on a confusion was the deep dismissal, deeper than calling it false, because a false view might be honestly held and a confused one marked a failure of the mind’s hygiene. The line between the serious and the silly ran as a moral line, and to be silly, or to be solemn, was a fault of character. Their tolerance was real and it was also a weapon. The liberal in that room could grant another man his liberty and in the same breath set him down as unenlightened, and the granting and the placing came in one motion. Toward belief, toward the man who knelt and prayed, the grammar offered a courteous incomprehension that served as a verdict.
Into this Hart fitted, and did not quite fit, and worked all his life as a man re-earning a place. He had come up the son of a Jewish tailor in Harrogate, and he had practiced at the bar and earned money in the world before he took to the dons’ life, and both marks set him a little apart in a room of gentlemen who had never left the schools. What he did was carry the school’s method into the law and take new ground for it, and the conquest raised the prestige of the method and his own standing at one stroke. His liberalism was the set’s liberalism written as legal doctrine, the harm principle and the protected private man, the case that the criminal law should leave alone the conduct that hurt no one. When he argued it against Patrick Devlin he argued the politics of his common room against a judge who spoke for an older England, and the room knew which side was its own.
Around Hart formed a court of his own, the men who came to his seminar and carried his questions into the next age. Tony Honoré worked the law of causation at his side. Ronald Dworkin came as a student, took the chair after him, and turned on the master, and the long quarrel between them ran with all the courtesy and all the blood the set’s grammar allowed. Joseph Raz and John Finnis and Neil MacCormick carried the work outward, Finnis back toward the natural law the school had thought it buried, Raz deeper into the questions Hart left open. Brian Simpson (1931-2011) pressed from inside as the historian who found the analysts too clean about a law that grew dirty in real courts. Outside the room stood the men who did not share its grammar and whom the room found, each in his way, not quite of the club: Lon Fuller at Harvard, who answered Hart across an ocean and a temper; Patrick Devlin on the bench; Hans Kelsen (1881-1973), the great positivist of the Continent, whose pure theory the Oxford men admired and found bloodless, a system where they wanted a practice.
The world was small and its bonds were close. Marriage and college and war and talk tied it into a few hundred people who dined together and reviewed one another and married one another’s friends. Hart had served in MI5 with Hampshire, in the secret world run in time by Dick White, the same world that touched Alan Turing at its edge. He married Jenifer Williams (1914-2005), a civil servant of her own standing who became a historian, a woman with a will as hard as his and a past of her own. She had been a Communist in the thirties, a past that drew official notice in later years, and Lacey’s biography records a long attachment between her and Isaiah Berlin that the small world absorbed as it absorbed most things, in talk that stayed mostly private. The set forgave much among its own and forgot little.
The grammar of that common room was the air Hart breathed and the doctrine he wrote down. Sin recoded as muddle became a jurisprudence that asked first whether a dispute rested on a confusion of words. Clarity held as the first duty became a method that prized the clean distinction over the deep system. Tolerance held as the height of politics became the harm principle. The portrait of the man and the portrait of his work turn out to be the portrait of a set of rooms at the high tide of English confidence, when a few clever men in Oxford took it for plain that the clear secular liberal mind was the measure of things and that the measure was theirs. The confidence did not last the century. The rooms emptied, the certainty thinned, and the world stopped agreeing that Oxford held the standard. What the set built in law outlasted the set, the fate it wished for and the one it taught its students to expect.
The Voice
Hart writes the clearest prose in modern jurisprudence, and the ease of it is both the achievement and the cover.
The base note is lucidity. He takes abstract questions and sets them down in plain English, short ordinary words put to exact work. He prefers “rule,” “obey,” “accept,” “point of view” to heavier machinery, and when he has to climb into abstraction he climbs back down fast to a homely example. The gunman who says hand over the money. The sign that forbids vehicles in the park. The scorer at a game of cricket. The traffic light. He anchors every hard idea to a scene a layman can picture, which is the ordinary-language habit he took from J. L. Austin and the Oxford rooms, and it lets a reader with no training feel he follows.
His characteristic move on the page is the distinction. He finds two things the tradition has run together and pulls them apart. The man who is obliged from the man who has an obligation. Rules that impose duties from rules that confer powers. The view from inside a practice from the view of the outside observer. The prose advances by these separations, each laid out with the same calm, and the calm is rhetoric. He persuades by seeming not to persuade. He lays the matter out so well that the reader feels he reached the conclusion on his own, and then the radical claim arrives without heat. An evil law is still law. He states it flat, no thunder, and the flatness carries more than any flourish could.
The diction leans Anglo-Saxon over Latinate display. He uses the first-person plural to pull you alongside him, if we look at this, suppose we consider that, the invitation to inspect a thing together rather than to receive a doctrine. He qualifies and hedges. In a sense. It may be said. Perhaps. Some readers take the hedging for scrupulous care and some take it for a way of sliding past a difficulty, and both are right at different moments. He is unfailingly fair to the men he means to defeat. He gives Austin and Devlin and Fuller their strongest form before he takes them apart, and the courtesy is a weapon, because the demolition done gently looks like simple truth rather than attack.
He also has the gift of the phrase that sticks. The union of primary and secondary rules. The rule of recognition. The internal point of view. Open texture, core and penumbra. He coins the image that does the analytic work and lodges in the memory, and a field that wanted to argue with him had to argue in his words.
In speech the picture splits. He was a fluent and effective lecturer, with the barrister’s training in laying out a case in order, and he delivered the Holmes Lecture at Harvard in 1957 well enough to start the longest debate of his life. In the seminar he was searching and quick and courteous, hard on the argument and generous to the student. But the command on the page was a made thing. Lacey’s record of the diaries shows a man who qualified and doubted in private the way the prose never does, who feared he had been overrated, who heard in Dworkin’s pressure the charge that the smoothness hid a problem he could not solve. That charge is the standing criticism of the voice. The reasonable surface, the unhurried fairness, the steady drawing of distinctions, can let a hard question pass by looking settled when it is not, and Dworkin spent twenty years pressing on the places where the calm had closed over a difficulty too soon.
So the voice is the composed public self of an anxious man. Even, lucid, fair, dry where the Oxford temper called for dryness, built to look like a mind without fear. The prose gives nothing away, and that is the first thing to notice about it.
What coalition he depends on for status and income. Oxford, first and last. The chair of jurisprudence and later the headship of Brasenose paid him and ranked him, and behind the post stood the university, the faculties of law and philosophy, the analytic-philosophy set he came up in, the British Academy, the Clarendon Press that published him, and the journals that reviewed him. Past Oxford, the Anglo-American jurisprudence profession, the law schools on both sides of the Atlantic, and the students who became professors and carried his name, since a school’s standing feeds its founder. His wider home was the postwar liberal secular establishment, the reforming professional class that took Mill for its politics. That coalition gave him status and income, and his work spoke its language back to it.
Who he risks angering if he speaks plainly. The natural-law and religious camp, the men who held that an unjust law is no law and that the criminal law should guard the common morality. To say flat that a wicked statute is still law, and that the state has no business punishing private conduct that harms no one, set him against Devlin and the bench, against the churches, against the conservative press and the moral-traditionalist public. It set him in time against his own student Finnis. He risked the judges too, by telling them plainly that they make law in the hard case rather than find it, which steps on the bench’s account of what it does. And he risked a softer anger from his own side, the liberal reformers who wanted law to be both neutral and good and grew uneasy when his positivism said the law need not be good at all.
Who benefits if his framing wins. The liberal reforming coalition first. The harm principle and the split of law from morals hand the secular tolerant order a reasoned warrant for pulling the criminal law back from private life, and the Wolfenden-era reforms drew that warrant from it. The legal guild next. If law is a system of rules picked out by the practice of officials, then the officials and the experts who read them gain authority, and the academic who clarifies the system becomes necessary to it. Hart benefits as the man at the head of the field he reframed. And any holder of state power benefits in a way Hart did not intend, since a theory that counts a command as law whatever its justice lets a regime have its orders recognized as law without defending them as good.
What truths would cost him his position. That the rule of recognition has no settled content at the margin, that at the hard constitutional case there is no rule to consult and only the agreement of officials, with nothing under the agreement. Grant that and the claim to a science of legal validity thins to a description of a habit. That identifying law always calls for moral judgment, the truth Dworkin pressed, which sinks the separation thesis and the positivist program with it. That the internal point of view reduces to habit or fear, so the advance over Austin’s gunman dissolves. That his liberal wins rode the changing morality of the country rather than causing it, so the reasoner who thought he moved the law was carried by a tide he took for his own argument. And the private truth Lacey found, that the man who wrote the most assured prose in the field doubted in the dark that the framework would hold. Each of these, said out loud and granted, costs him the standing the framework bought.
