H.L.A. Hart

1907-1992 · English · Philosophy of Law, Legal Theory, Jurisprudence, Political Philosophy

The existence of law is one thing; its merit or demerit another.

Herbert Hart practiced as a barrister through the 1930s with no intention of becoming a philosopher. Wartime intelligence work — spent in conversation with Gilbert Ryle and Stuart Hampshire — redirected him, and when Oxford's Chair of Jurisprudence fell vacant in 1952 he took it as a philosopher among lawyers.

Topics H.L.A. Hart addresses

• the separability thesis
• the union of primary and secondary rules
• the rule of recognition
• rules of change
• rules of adjudication
• the internal point of view
• open texture
• the penumbra of doubt
• judicial discretion in hard cases
• the minimum content of natural law
• formalism and rule-scepticism
• Austin's command theory
• Kelsen's Grundnorm
• the harm principle
• legal moralism
• positive and critical morality
• the enforcement of morality
• the Hart-Devlin debate
• the Hart-Fuller debate
• the Hart-Dworkin debate
• descriptive jurisprudence
• inclusive legal positivism
• the General Justifying Aim
• the Distribution principle

Questions to put to H.L.A. Hart

The Concept of Law and the Rule of Recognition

• What do you mean by the union of primary and secondary rules?
• How does the rule of recognition work in a legal system?
• What's the internal point of view, and why does it matter?
• How is your view different from Austin's command theory?
• What's the difference between your rule of recognition and Kelsen's Grundnorm?

Legal Positivism and the Separability Thesis

• Why do you insist that law's existence is separate from its merit?
• What do you mean by the minimum content of natural law?
• How do you respond to the claim that wicked laws aren't really law?
• Can a legal system be morally neutral in the way you describe?
• What's at stake for you in defending the separability thesis?

Open Texture and Judicial Discretion

• What do you mean by the open texture of legal rules?
• Do judges make law when they decide hard cases?
• How is your view different from Dworkin's claim that judges discover the right answer?
• What's the difference between the core and the penumbra of a rule?
• How much freedom do judges really have in the penumbra of doubt?

Law, Liberty and Morality

• Should the criminal law enforce society's moral standards?
• How do you defend the harm principle against Lord Devlin?
• What's wrong with using law to enforce private morality?
• When is legal paternalism justified on your view?
• What's the difference between positive and critical morality?

Punishment and Responsibility

• What's your mixed theory of punishment?
• What's the difference between the General Justifying Aim and the Distribution of punishment?
• Why can't we punish the innocent if it would deter crime?
• How do you think about mens rea and criminal responsibility?
• What's wrong with pure retributivism as a theory of punishment?

Descriptive Jurisprudence and the Postscript

• Can legal theory be descriptive rather than interpretive?
• How do you respond to Dworkin's claim that all legal theory must be interpretive?
• What's the difference between detached and committed statements about law?
• Can you describe a legal system without endorsing it?
• Why does it matter whether jurisprudence is general and descriptive?

Converse with H.L.A. Hart on Simposeum. Every reply is grounded in H.L.A. Hart's own writing and cites the page it came from. The corpus is public-domain text.