H.L.A. Hart

H.L.A. Hart (born July 18, 1907, Harrogate, Yorkshire, England—died December 19, 1992, Oxford, Oxfordshire) was an English philosopher, teacher, and author who was the foremost legal philosopher and one of the leading political philosophers of the 20th century.

Early life

Hart pursued his undergraduate education at the University of Oxford, and, after graduating in 1929, he went on to qualify as a barrister. After practicing law for several years, he worked for the British intelligence service MI5 during World War II. When the war ended, he returned to Oxford to take up a fellowship in philosophy at New College. In the early 1950s he became a professor of jurisprudence at Oxford and a fellow of University College. He later served (1973–78) as principal of Brasenose College.

The Concept of Law

Hart is best known for his contributions to legal philosophy generally and to legal positivism specifically. He acknowledged his intellectual debts to his positivist predecessors Jeremy Bentham and John Austin, he severely criticized their theories for obscuring the normative dimension of law (i.e., law’s orientation toward what ought to be). At the same time, he emphasized that the normativity of law is not necessarily moral; throughout his jurisprudential work, he maintained a legal-positivist insistence on the separability of law and morality. In his classic 1961 book The Concept of Law, and in a number of essays written approximately contemporaneously, he presented a hugely influential account of the ways in which different types of norms combine to form the structure of a legal system. Hart laid particular stress on what he designated as the “rule of recognition”—namely, the array of normative presuppositions that underlie the behaviour of legal officials (especially judges and administrators) as they ascertain the existence and contents of the laws in their system of governance. Under the prevailing rule of recognition in a jurisdiction, legal officials are both authorized and obligated to follow specific criteria in determining which norms possess the status of laws. Those criteria typically fix upon familiar sources of law such as legislative enactments or adjudicative rulings or administrative regulations or constitutional provisions.

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Philosophy 101

Although The Concept of Law is principally a work of legal philosophy, it contains some important discussions of topics in political and moral philosophy. Hart’s first major contribution to political philosophy occurred in his 1955 essay “Are There Any Natural Rights?” In that essay he briefly introduced a theory of political obligation that has come to be known as the “principle of fair play” (later elaborated by the American political philosopher John Rawls). That is, he contended that anyone who benefits greatly from the presence of some institution is morally required to bear a commensurate share of the burden of sustaining that institution’s existence. Although the principle of fair play has often come under attack in the decades since Hart fleetingly propounded it, the theory continues to be espoused by some present-day political philosophers.

Later work

Hart’s most-sustained entry into political disputation occurred in 1963, with the publication of Law, Liberty, and Morality. He wrote in the liberal tradition of English philosopher and economist John Stuart Mill in arguing that homosexual intercourse between consenting adults should not be legally proscribed. Invoking and defending Mill’s “harm principle,” which maintains that no activity can legitimately be outlawed unless the activity causes nontrivial harm to somebody other than the participants, Hart submitted that consensual intercourse between adult homosexuals does not cause any detriment that would suffice to satisfy the harm principle. In particular, the mere fact that certain sexual practices cause offense to some people who are aware of their occurrence does not constitute harm of any kind that would render legitimate the prohibition of those practices.

Other notable works include Essays on Bentham (1982)—during his closing years as an active scholar, Hart devoted much of his time to editing and interpreting Bentham—and Essays in Jurisprudence and Philosophy (1983). In several writings in those volumes, Hart made noteworthy contributions to debates over the nature of rights and justice. He joined Rawls and American philosopher Robert Nozick in rejecting utilitarian rationales for sacrificing the vital interests of some individuals in furtherance of the interests of others, but he likewise assailed the extreme individualism of Nozick’s libertarian principles of justice. Generally sympathetic to Rawls’s ideas, Hart nonetheless challenged Rawls’s remarks about the overriding priority of liberty. (Among other things, he queried Rawls’s unexplained shift from speaking about the priority of liberty to speaking about the priority of liberties.) What Hart impugned was not really the priority of certain liberties but instead the claim by Rawls to have derived that priority from a situation of pure rational choice—the “original position”—in which each choosing agent seeks to promote his or her own interests optimally. Hart declared that, instead, the only tenable basis for Rawls’s prioritization of certain liberties is a liberal ideal of human personality.

Hart further exhibited his liberal allegiances in his analysis of the nature of rights. He contended that the holding of a legal right by any person P always involves the vesting of P with legal powers to waive or demand the enforcement of the legal duty that is correlated with the right. Hart adopted this analysis precisely because he believed that no alternative conception of right holding would capture the role of rights in enabling individual self-determination. His account of rights, like his other political stances, was grounded on liberal values.

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