The Central Questions

When I finished this book I was left wondering why H.L.A. Hart hadn’t destroyed his diaries before he died. Perhaps modesty made him think that no one would want to write about him – he was not, in spite of his great distinction, world-famous like his friend Isaiah Berlin. But he certainly could have predicted that his widow Jenifer, whose indiscretion was well established, would do nothing to protect his privacy or her own.

Perhaps he didn’t care. One never knows how people will feel about what happens after their death. But having been acquainted with Hart for years and having known many of his friends, I felt I was learning too much that was none of my business. Hart was a figure notable, and admirable, for his discretion, reserve and unpretentious dignity. The turmoil that went on beneath that surface was his affair, but Nicola Lacey has made its exposure the unifying thread of her book. She says in explanation:

My rule of thumb was to use only the personal material which sheds light on the development of his ideas and the course of his career. But this, it turned out, was usually the case, because Herbert Hart himself moved seamlessly back and forth in his diaries between personal and professional preoccupations, and sought increasingly to draw links between them. Though some readers may feel that I have been too generous in my use of the personal material – particularly that relating to his feelings about his sexuality and his marriage – my judgment was that it was essential to any interpretation of him as a whole person.

Lacey slides here from ‘ideas and career’ to ‘whole person’, without acknowledging the difference; her claim that the personal material is needed to write an intellectual biography is a pretence. But something else is going on as well. Revealingly, the book is dedicated to Jenifer Hart, and Lacey describes herself as being much closer to Jenifer than to Herbert Hart (whom she also knew personally). Since she says, ‘When Jenifer Hart offered me the opportunity to write this biography …’ it would appear that the suggestion came from Mrs Hart. Having read her own candid and immensely appealing autobiography, published a few years ago,* I can’t help feeling that this book is really a continuation of it, an account of Herbert Hart’s life that reflects her desire to see the mask of respectability and self-possession torn off, so that people will know what she had to cope with.

Hart seems to have used the diaries partly as a substitute for intimacy, but perhaps he left them for Jenifer on purpose. These days, unfortunately, a biographer presented with such materials can hardly resist publishing even the most private of them. But apart from this, as someone interested in Hart’s contributions to political and legal philosophy, I am grateful for the detailed facts of his life and career so carefully presented here. Lacey has done a superb job of assembling the data from documents and interviews and turning them into a highly readable narrative. The book has defects both of taste and of substance, but it is on balance a valuable achievement.

Hart was born in 1907 to a well-off Jewish family with a clothing business in Harrogate, and he acquired a strong sense of himself as Jewish without acquiring the religion. At Oxford he read Greats and got a brilliant first, but was unsuccessful in his two attempts at the All Souls fellowship examination. He was thought of as a candidate for appointment as a philosophy don, but he had formed the intention before arriving at Oxford to become a lawyer, and in 1932 he was called to the Bar. On the advice of a colleague he took elocution lessons to get rid of his Yorkshire accent, and soon he had a flourishing Chancery practice. There were occasional approaches from Oxford about returning to teach, but although he maintained an amateur interest in philosophy, he declined them. He made money, rode, hunted, read widely, and led an active and successful social life, marred only by the shock of being turned down for membership of the Oxford and Cambridge Club in London because he was Jewish. In those days your friends didn’t resign over such a thing.

He met Jenifer Williams, the beautiful, outspoken, politically and sexually radical daughter of a diplomat, and amid the tangle of her relations with other men – jealousy being strictly forbidden – they gradually became engaged, and were married in 1941. Before their marriage Jenifer was a Communist, but was asked to conceal her Party membership so that she might be of use to the Soviets. She entered the Home Office in 1936, having achieved the highest rank to that date for a woman in the Civil Service exam – third out of 493. Soviet agents made contact with her occasionally, evidently intending to use her as a mole, but they never got around to asking her for information, and by the time the war started she had drifted away from the Party. Around the same time Hart joined the war effort by going to work (hired on Jenifer’s recommendation) for MI5, where he was regarded as invaluable.

In the course of their marriage she had serious love affairs with other men, including Michael Oakeshott and Isaiah Berlin. She was attracted by brains, and that is what drew her to Hart. His attraction to her seems very natural: her outrageousness and lack of inhibition must have made him feel alive. She despised comfort, respectability, politeness. She could also behave like a child, as Lacey reveals in a story about a letter she sent anonymously to Princess Anne, lying about it afterwards.

After the war everything changed. Fed up with arguing cases that enabled rich people to pay less tax, Hart decided to return to the academy, and at the age of 38, with only an undergraduate degree in the subject, took up a post as philosophy tutor at New College, where he had been a student. It was a leap in the dark, and it caused him high anxiety until he found his feet. This was a time of philosophical transformation, with Wittgenstein, Gilbert Ryle, J.L. Austin and others developing the study of natural language and its logic as the primary tool of analytic philosophy. Hart gave a seminar jointly with Austin on legal and moral responsibility, and his legal experience and familiarity with cases blended perfectly with the new emphasis on subtle conceptual distinctions.

Jenifer Hart stayed at the Home Office till 1947, but then moved her career to Oxford, and eventually found a permanent post teaching history at St Anne’s. The Harts had four children, the youngest of them autistic as a result of brain damage, difficult to control, and requiring constant attention. Jenifer, with her overwhelming energy, worked full time, managed the household without Hart’s help, and was sometimes left on her own when he accepted visiting engagements overseas.

In 1952, though not a member of the law faculty and having published almost nothing, Hart was elected professor of jurisprudence, an important step in the imperial advance of Oxford philosophy and the beginning of his greatest productivity and influence. In 1966 he refused a knighthood, having been very scornful when Berlin accepted his in 1957. In 1968 he took early retirement from the chair, began editing the unpublished works of Bentham, and after an interval became principal of Brasenose, where he stayed till 1978. He then returned as a research fellow to University College, to which his chair had been attached, and continued to work on Bentham.

In 1983, four years after Anthony Blunt had been exposed as a KGB agent, Jenifer Hart, with monumental recklessness, talked about her prewar Soviet contacts in a television interview. The Sunday Times published an article insinuating that Hart himself might have been involved in espionage through his wife. The couple filed an inconclusive libel suit, and Hart, shattered by the impeachment of his loyalty, had a nervous breakdown. He was hospitalised and, at the age of 76, given shock treatment. He died in 1992.

Hart was the founder of jurisprudence as a field for analytic philosophy in the second half of the 20th century. He re-created the subject, posed the central questions, and started a great flood of work by others which has not ceased with his death. Along with John Rawls, he initiated the vastly influential tradition within analytic philosophy of substantive moral exploration of major public issues, bringing high standards of clarity, rational argument and lucid expression to questions that matter to many more people than the abstract problems of metaphysics, epistemology and logic with which the analytic movement began.

He did important work on responsibility, on concepts of causation in law (with A.M. Honoré), and on the theory of criminal punishment, but his largest contribution and his deepest concerns had to do with the complex relation between law and morality. Two superb and accessible books embody this contribution. One, The Concept of Law, defends a form of legal positivism, the view that law is best described in value-neutral terms as a distinctive type of social fact, and that what the law is depends on something quite different from what the law morally ought to be. The other, Law, Liberty and Morality, is an eloquent attack on the use of law to enforce standards of private – particularly sexual – morality just because they are accepted by a social majority, and an exploration of the balance between individual liberty and social welfare in determining the proper scope of the law.

Law, Liberty and Morality, published in 1963, served as the philosophical manifesto for the explosive increase in sexual toleration and respect for privacy that we have seen since that time, and it had a large impact on the development of both morality and law. It is one of the most important documents of modern political liberalism, setting limits on the legitimate use of state power. By contrast, the influence of The Concept of Law, published in 1961, has been entirely intellectual. It gave rise to a debate over the place of moral reasons in determining what the law is that has occupied the foreground of legal philosophy ever since.

Positivism in its original form, deriving from Hobbes and developed by Bentham and the 19th-century theorist John Austin, holds that law is the command of the sovereign backed by the threat of punishment. This implies that the content of the law can be anything, and that there is no necessary connection between law and morality. Hart rejected this position because he saw that what we mean by the rule of law in modern legal systems is something quite different from the arbitrary will of a ruler: that in fact such systems are not headed by any identifiable individual or group whose will is law. Yet he wanted to preserve the basic positivist distinction between law and morals, so he identified the existence of law with a different kind of social fact: the ordering of the society by a system of rules of a special sort, rules whose existence depends simply on their acceptance by those officials and functionaries of the society who administer, apply and sometimes revise them.

The ordinary laws, criminal and civil, that govern individual conduct, commercial transactions, property rights and so forth he calls primary rules. But essential to these primary rules’ being laws in the modern sense is that there should also be secondary (i.e. second-order) rules, governing the application, interpretation and transformation of the primary rules. A system of law, unlike the game of chess, cannot have a permanently fixed set of rules; there must be a way of changing the rules in response to changed circumstances or knowledge, and this way must itself be rule-governed. At the apex of the system of secondary rules Hart places what he calls the rule of recognition, which embodies the factual basis for identifying the content of the law – by reference to a constitution, the actions of a legislature, judicial precedent and so forth.

Hart is a positivist because he insists that it is possible to describe any legal system factually from the standpoint of an outside observer, including its rule of recognition, without making any value judgments. The sources of law are certain practices and institutions sustained by the acceptance of the participants. This is true, he holds, even when the rules require the participants to exercise moral judgment in applying them, as is true of the US Constitution, for example, with its references to ‘equal protection of the laws’ and ‘due process of law’, which can be interpreted only with the help of moral principles.

Hart’s positivism provoked a critique from Ronald Dworkin, who argued that there can be no value-free theory of what it is for a law to exist, and that the outside view cannot be divorced from the inside view of participants in an adequate account. Not only in constitutional adjudication, he claimed, but in statutory or common law interpretation by judges in hard cases, the reliance by judges on moral reasoning is a method of discovering or attempting to discover what the law is, and not, as Hart maintains, a way of making new law which is created only by the social fact of their actual decision.

The elaboration and pursuit of this disagreement has engaged most of the legal theorists of our time, producing a very complex literature. Hart himself did not write much more about it, but Dworkin went on to develop an independent theory (most fully expounded in Law’s Empire), and Joseph Raz became the leading representative of the positivist position. There is no sign that the matter is about to be settled. It poses deep questions about the possibility of a purely descriptive account of an essentially evaluative activity, and more generally about the degree of independence that can exist between the meta-theory, or external account of a form of thought, and first-order thought within that domain.

One reason Hart thought it essential to separate law and morality in the way he did is that he saw that law was as often an instrument of oppression in the hands of the powerful as it was an instrument of justice. Law is central to the institutions of slavery, caste, racial segregation, religious persecution, sexual domination and sexual intolerance. The moral criticism of law, he thought, requires a clear and morally neutral way of identifying what the law is that carries no presumption of moral authority. Whether or not he is correct in thinking this, it shows that his positivism had a strong moral motivation.

Lacey does a thorough and useful job of describing Hart’s writings and their genesis. She is not equipped, however, to deal with the philosophical background. When she talks about ‘the paradox of analysis’ or about the differences between J.L. Austin and Wittgenstein, it is clear that she is lost. In one absurd passage she suggests that Hart failed to take up Wittgenstein’s approach partly to curry favour with Austin: had he accepted Wittgenstein, she writes, it would have led him to see ‘that illumination of legal practices lies not merely in an analysis of doctrinal language but in a historical and social study of the institutions and power relations within which that usage takes place.’ This admission, she adds, ‘would have threatened Herbert’s idea of himself as a philosopher’. (She refers to him jarringly as ‘Herbert’ throughout, even when discussing his relations to other thinkers who are referred to by their last names.)

Lacey seems to have a weak grasp of what philosophy is. Hart’s work consists not merely in the analysis of doctrinal language, but in the philosophical elucidation of institutions, practices, concepts, and forms of reasoning and justification that are the most basic and general elements of law and politics. He is acutely aware of the importance of institutions and power relations, but the questions he addresses cannot be answered by social and historical study. The idea that Wittgenstein’s method encourages a more empirical approach than Austin’s is the opposite of the truth, but for both of them, as for all philosophers, the understanding they seek has to be pursued primarily by reasoning rather than by empirical observation, because it is concerned with the concepts and methods that enable us to describe and think about what we can observe. These are not mutually exclusive approaches or forms of understanding: they address different questions, and they operate at different levels of abstraction and generality.

Lacey’s preferred theoretical discipline is sociology, and she rebukes Hart at several points for not paying enough attention to it. She also suggests that the reason was his intellectual insecurity and desire to be an insider at Oxford, which meant remaining firmly identified as a philosopher. Again she reveals a lack of understanding of the nature and interest of philosophical questions. In an intellectual biography this kind of delving beneath the surface for explanations is always a sign of superficiality.

She is right, however, to point out that Hart would almost certainly not have become one of the leading thinkers of his age had he not taken up the philosophy of law, and to emphasise how anxious he was about his grasp of the core areas of logic and philosophy of language. But what he was able to achieve in the field of jurisprudence and political theory, though it relied on his unique wealth of extraphilosophical knowledge and experience of the law, was the result of a specifically philosophical talent applied to this material. It was philosophical reasoning and philosophical clarity that enabled him to formulate and test hypotheses about the most fundamental concepts and principles of law and politics, and he could not have made his great contributions by any other method.

As I have said, the unifying theme of the book, what Lacey offers throughout as her main insight, is the gap between the accomplished public figure and the tormented private man. In her sympathetic peroration she says that the public story of Herbert Hart’s life is

in no way compromised by the equally true story of his struggle to overcome depression, his incompletely resolved attitude to both his sexuality and his Jewish and class origins, his volatile shifts between intellectual confidence and insecurity, his unconquerable emotional reserve, and his long-standing sense of not really being what he actually was: an influential and respected insider in the social and professional worlds in which he moved. Rather, in the light of these complexities, his intellectual, institutional and personal achievements appear all the greater.

I find the contrast less illuminating than she does because I assume that in every civilised person there is a huge gap between the outward and the inner life, though the forms of inner anxiety and turmoil vary. Every life of achievement is a minor miracle in this way. Hart just seems to have been exceptionally honest with himself and to have left an articulate private record, which confirms what those who knew him knew: that he was much less vain than most men, and much freer of malice.

The book’s subtitle, ‘The Nightmare and the Noble Dream’, is here applied to Hart’s life, but it is taken from the subtitle of an essay he wrote about American jurisprudence – the nightmare being the legal realist idea that all judicial interpretation is political choice in disguise, and the dream being Dworkin’s idea that it is a process of being guided, with the help of moral principles, toward the objectively right answer to legal questions. Though he published little about it, Hart was occupied throughout his life with this challenge to his work, and left at his death the draft of a postscript to The Concept of Law, replying to Dworkin, which was published posthumously in a new edition of the book and which has generated still more commentary.†

In a startling anecdote, Lacey reveals how far back the controversy went. In 1955, before he had published any of his general theory of law and was presenting it only in lectures, Hart served as an examiner for the Oxford undergraduate law degree, and he made a remarkable observation to Herbert Morris, one of his graduate students. ‘Amid the hard work of marking,’ Lacey writes, ‘Herbert was excited by the performance of an American student who had scored an alpha (the highest mark) on every single one of his papers. To Morris’s amazement, Herbert went on to express considerable anxiety about the implications of this student’s views for the arguments of The Concept of Law. The student’s name was Ronald Dworkin.’ Thirteen years later, when Hart retired from the chair of jurisprudence, his book and Dworkin’s published responses to it were at the centre of legal theory, and Hart closed the circle by urging Dworkin’s appointment to succeed him. Dworkin occupied the chair for the next two decades, and the tradition of analytic jurisprudence that Hart began continues to flourish, at Oxford and throughout the world.