HERBERT HART was the doyen of British jurisprudence, writes Zenon Bankowski.
Jurisprudence is the theoretical study of a practical subject. That practical subject is law and theoretical studies of it encompass diverging strands. They may deal with justice and the just ordering of society, in which case they overlap with political, social and moral philosophy; with the actual role law plays in society, in which case they overlap with the social sciences and history; with the study of the reasoning of the law and the understanding of the concepts used, in which case they overlap with logic, rhetoric, and analytical philosophy. Theoretical studies were not something that came easily to English lawyers: the native pragmatic and empiricist bent preferred to get stuck into the practical law without worrying overmuch about the 'why?' questions. Hart did. Herbert Hart was a practising barrister turned academic philosopher, who became Professor of Jurisprudence at Oxford. His contribution was great.
He first of all enriched the study of the law with his philosophical expertise. His masterly study (with AM Honore) of causation in questions of civil and criminal liability addressed important practical legal issues in a philosophical way. His work on punishment and responsibility set the agenda for criminal and delict lawyers. But his legal training also enriched philosophy. The theory of performative utterances, that to say 'I promise' is to do something as well as to say something, emerged from a series of seminars conducted by Hart and JL Austin after the Second World War. It was Hart who pointed to analogies with formal legal acts.
The work that most students of jurisprudence know him by, The Concept of Law, is a sophisticated defence of the thesis that law should be viewed solely as a system of rules. It shows how rules and obligations are located in social practices. It draws on both philosophical and social scientific insights. Whether it has wholly withstood the sustained attacks on it is not clear. It is clear that many of its technical doctrines were flawed and have not withstood the test of time. However it is still the classic statement of the position. And the thesis that it propounds deals with some of the key political and social issues of our day. It is the work to attack.
Hart's last great contribution is to substantive moral and social issues. It is here that his liberal and social democratic views come to the fore, views which stayed with him for all his life. His debate with Lord Devlin on the Wolfenden report gives us the classic defence of the liberal position on the limits of the law in moral matters.
Herbert Hart's influence has been great. He revitalised British jurisprudence. I remember with what delight I first read The Concept of Law. Jurisprudence became alive for me. His book had such an impact, and for such a long time afterwards, because for some time it was the only student book on legal theory that, using current philosophical ideas, addressed itself in clear English to philosophical problems of law. For many working in the area, whether they now agree with the worth of his contribution or not, it was the first complete book of serious legal philosophy they read. It spurred them on to make the theoretical study of law the lively and important study it now is.
Then, there was only him. Now, a hundred flowers bloom. That is his lasting contribution.
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