1. Early life and education
Herbert Lionel Adolphus Hart's formative years laid the groundwork for his intellectual development, shaping his approach to philosophy and law.
1.1. Birth and family background
Herbert Lionel Adolphus Hart was born on 18 July 1907, in Harrogate, England. His parents, Rose Samson Hart and Simeon Hart, had relocated to Harrogate from the East End of London. His father was a Jewish tailor of German and Polish descent, while his mother, also of Polish origin, managed customer relations and the finances of their clothing firm, having come from a family of successful retailers in the clothing trade. Hart had an elder brother named Albert and a younger sister named Sybil.
1.2. Education
Hart received his early education at Cheltenham College and Bradford Grammar School. He then pursued higher studies at New College, Oxford, where he specialized in classical greats, achieving a first-class honours degree in 1929. Following his graduation, Hart qualified as a barrister and successfully practiced at the Chancery Bar from 1932 to 1940. During this period, he was close friends with figures such as Richard Wilberforce, Douglas Jay, Baron Jay, and Christopher William Machell Cox. He was awarded a Harmsworth Scholarship to the Middle Temple and also contributed literary journalism to the periodical John O'London's Weekly.
2. World War II service
During World War II, Hart served in British intelligence, specifically with MI5, a division focused on counter-espionage and identifying spies who had infiltrated Britain. In this role, he reconnected with several Oxford acquaintances, including the philosophers Gilbert Ryle and Stuart Hampshire. He worked in close collaboration with Dick White, who would later become the head of MI5 and subsequently MI6. Hart's duties also took him to Bletchley Park, where he was a colleague of the renowned mathematician and codebreaker Alan Turing, and was involved in efforts to decipher the Nazi German cipher machine Enigma.
Hart's wartime work occasionally involved visits to MI5 offices located at Blenheim Palace, the ancestral home of the Dukes of Marlborough and the birthplace of Winston Churchill. Hart often recounted with amusement how he had the opportunity to read the diaries of Sarah Churchill, Duchess of Marlborough, the wife of the dynasty's founder, John Churchill, 1st Duke of Marlborough. He particularly enjoyed a passage where Sarah described John's sudden return after a long absence and his immediate desire for her "straight way in his boots." Another anecdote Hart enjoyed sharing from his time at Blenheim was sharing an office with Anthony Blunt, one of the infamous Cambridge Five spies and a fellow MI5 member. Hart often pondered which of the papers on his desk Blunt might have read and passed on to his Soviet handlers.
3. Academic career
After the war, Hart chose not to return to his legal practice. Instead, he accepted an offer to become a teaching fellow in philosophy at New College, Oxford.
In 1952, Hart was elected Professor of Jurisprudence at Oxford University, a position he held until 1969. Concurrently, he served as a fellow at University College, Oxford, from 1952 to 1973. It was in the summer of 1952 that he began writing The Concept of Law, his most celebrated work, though it was not published until 1961. Before its publication, he released another significant work, Causation in the Law, co-authored with Tony Honoré, in 1959. Hart served as president of the Aristotelian Society from 1959 to 1960 and delivered the prestigious Master-Mind Lecture in 1962.
Hart married Jenifer Fischer Williams, who initially worked as a civil servant in the Home Office, later rising to a senior position. She subsequently became an Oxford historian at St Anne's College, Oxford, specializing in the history of the police. For several years in the mid-1930s, Jenifer Hart was a "sleeper" member of the Communist Party of Great Britain, though her involvement faded entirely by the end of the decade. Decades later, she was interviewed by Peter Wright, MI5's official spy hunter, regarding her potential to have passed information to the Soviets. She explained her situation, and Wright took no action, as her work in areas like family policy would have been of no interest to Soviet intelligence. The person who recruited her, Bernard Floud, interviewed shortly after, claimed no recollection of doing so. Despite vague newspaper suggestions, Hart himself was not in a position to convey useful information to his wife, given the strict separation of his work, which focused on German spies and British turncoats rather than Soviet-related matters. In fact, Hart was staunchly anti-communist.
Their marriage, despite containing "incompatible personalities," endured until the end of their lives, bringing them joy at times. Hart once humorously remarked to his daughter, "The trouble with this marriage is that one of us doesn't like sex and the other doesn't like food." According to his biographer, Nicola Lacey, Hart himself identified as a "suppressed homosexual." Jenifer Hart was widely believed by her contemporaries to have had a long-term affair with Isaiah Berlin, a close friend of Hart's. In 1998, Jenifer Hart published her autobiography, Ask Me No More. The Harts had four children, including a son born late in life who suffered a disability due to the umbilical cord wrapping around his neck, depriving his brain of oxygen. Despite his disability, the son sometimes displayed remarkable observational abilities. As a philosopher deeply interested in the mind-body problem, Hart maintained a professional interest in his son's condition. Hart's granddaughter, Mojo Mathers, made history in 2011 as New Zealand's first deaf Member of Parliament. The writer on religion Karen Armstrong, who lodged with the Harts for a period to assist with their disabled son's care, provided a description of their household in her book The Spiral Staircase.
Hart retired from the Chair of Jurisprudence in 1969, and Ronald Dworkin succeeded him. Subsequently, Hart served as the Principal of Brasenose College, Oxford, from 1973 to 1978.
4. Major Works and Thought
Hart's most significant contributions to legal philosophy are encapsulated in his major publications, which introduced core ideas that redefined the field.
4.1. The Concept of Law
The Concept of Law, first published in 1961, stands as Hart's most influential and widely acclaimed work. A second edition, including a new postscript, was published posthumously in 1994, and a third in 2012. The book originated from a series of lectures Hart began delivering in 1952 and was foreshadowed by his Holmes lecture, "Positivism and the Separation of Law and Morals," given at Harvard Law School. The work meticulously develops a sophisticated view of legal positivism, challenging earlier theories and introducing nuanced distinctions. While widely influential, key ideas in the book have also received fundamental criticism.
4.1.1. Legal Positivism
Hart's version of legal positivism is highly sophisticated, emphasizing the fundamental separation of law and morality. He argued that the validity of a law does not depend on its moral content but rather on its social origins and the manner in which it was created. For Hart, law is grounded in social facts, meaning that a legal system exists and is authoritative because people generally accept and follow its rules, particularly the "rule of recognition." This perspective provided a robust framework for analyzing legal systems independently of subjective moral judgments, focusing instead on their observable social practices and institutional structures.
4.1.2. Primary and Secondary Rules
A central tenet of The Concept of Law is Hart's distinction between primary and secondary legal rules. Primary rules are those that directly govern conduct, imposing duties or conferring powers on individuals. Examples include criminal laws that prohibit certain actions or civil laws that establish contractual obligations. Secondary rules, in contrast, are rules about rules. They provide the procedural methods by which primary rules are created, altered, or enforced. These secondary rules are crucial for the existence of a developed legal system, as they address the inefficiencies and uncertainties inherent in a system based solely on primary rules. Hart specifically enumerated three types of secondary rules that form the structural backbone of a legal system.
4.1.3. Rule of Recognition, Rule of Change, and Rule of Adjudication
Hart identified three specific types of secondary rules, each serving a distinct function in a legal system:
- The Rule of Recognition is the foundational secondary rule that specifies the criteria for identifying valid laws within a given society. It allows any member of society to determine what constitutes a primary rule. In a simple society, Hart suggested, the rule of recognition might be as straightforward as "what is written in a sacred book" or "what is proclaimed by a ruler." Hart considered this concept an evolution from Hans Kelsen's idea of the "basic norm" (GrundnormGrundnormGerman), providing a more sociologically grounded account of legal validity.
- The Rule of Change is the secondary rule that empowers individuals or institutions to create, alter, or abolish existing primary rules. This rule is essential for the dynamic evolution of a legal system, allowing it to adapt to changing social needs and circumstances without resorting to revolution.
- The Rule of Adjudication is the secondary rule that confers authority on certain individuals (e.g., judges) to determine whether a primary rule has been violated and to prescribe remedies or punishments. This rule provides a mechanism for resolving disputes efficiently and authoritatively, thereby maintaining order and stability within the legal system.
4.1.4. Internal and External Points of View
Hart also distinguished between the internal and external points of view regarding law and rules, a distinction closely related to (and influenced by) Max Weber's perspectives on legal and sociological descriptions of law. The internal point of view is adopted by participants within a legal system who accept its rules as binding standards of conduct and criticism. These individuals understand and use the rules to guide their behavior and to evaluate the behavior of others. The external point of view, conversely, is that of an observer who analyzes the legal system objectively, without necessarily accepting its rules. This observer might describe the patterns of behavior and the reactions to deviations from rules, but they do not use the rules as reasons for their own actions or as justifications for criticism. This distinction highlights the social and psychological dimensions of legal validity and obedience.
4.1.5. Open-textured Terms in Law
Hart's concept of "open-textured" terms in law, influenced by Ludwig Wittgenstein and Friedrich Waismann, acknowledges that legal language, while generally clear, possesses inherent ambiguities and uncertainties at its margins. This "open texture" means that legal terms can be interpreted in various ways, particularly in unforeseen circumstances or novel cases. This characteristic allows for flexibility and development in legal application, enabling judges to exercise discretion and adapt existing rules to new situations. Hart also discussed "defeasible" terms, though he later disavowed this concept. Both ideas have found resonance in the field of Artificial intelligence and law.
4.2. Causation in the Law
Co-authored with Tony Honoré, Causation in the Law (1959, with a second edition in 1985) is regarded as a significant academic discussion of causation within the legal context. The early chapters, clearly bearing Hart's philosophical imprint, delve into the philosophical concept of cause. The later chapters, which focus on individual cases in English law, are largely attributable to Honoré's expertise.
4.3. Law, Liberty and Morality and other writings
As a direct outcome of his celebrated Hart-Devlin debate with Patrick Devlin, Baron Devlin, on the role of criminal law in enforcing moral norms, Hart authored Law, Liberty and Morality (1963). This work comprised three lectures he delivered at Stanford University. He also published The Morality of the Criminal Law in 1965.
In these works, Hart critically engaged with the idea that law should enforce private morality. He famously stated that he considered Devlin's interpretation of Mill's harm principle, particularly as it related to the decriminalization of homosexuality, to be "perverse." Hart was a strong advocate for individual liberty and believed that the law should not intervene in private moral choices unless they caused direct harm to others. He later expressed that the reforms to the law regarding homosexuality that followed the Wolfenden report "didn't go far enough," indicating his progressive stance on social issues and human rights. Despite their profound intellectual disagreements, Hart reported that he maintained a good personal relationship with Devlin.
Hart also gave lectures to the Labour Party on strategies to close tax loopholes exploited by the "super-rich." He openly identified himself as "on the Left, the non-communist Left," and expressed strong animosity towards Margaret Thatcher and her policies, reflecting his commitment to social justice and his critical view of conservative economic approaches.
5. Philosophical Method
Hart's methodological approach to jurisprudence significantly transformed the field, particularly in the English-speaking world, through his application of analytic and linguistic philosophy.
5.1. Influence of Analytic Philosophy
Hart was profoundly influenced by the analytic philosophical traditions of thinkers such as John Austin (the legal philosopher, distinct from J.L. Austin, whom he also cited as influential), Ludwig Wittgenstein, and Hans Kelsen. He brought the rigorous tools of analytic philosophy, and especially linguistic philosophy, to bear on the central problems of legal theory. His method combined the careful analysis characteristic of twentieth-century analytic philosophy with the jurisprudential tradition established by Jeremy Bentham, the great English legal, political, and moral philosopher.
5.2. Application to Jurisprudence
Hart employed analytic philosophical tools to dissect fundamental problems in legal theory, such as the nature of law, rules, and rights. His conception of law shared parallels with the Pure Theory of Law formulated by the Austrian legal philosopher Hans Kelsen, though Hart rejected several distinctive features of Kelsen's theory. A significant difference between Hart and Kelsen lay in their emphasis on the scope of positive law theory. Hart, in his book The Concept of Law, advocated for an expansive reading of positive law theory that included philosophical and sociological domains of assessment. This contrasted with Kelsen's more focused attention, which limited Continental positive law theory primarily to the domain of jurisprudence itself, as explored in an article titled "Leaving the Hart-Dworkin Debate" in the University of Toronto Law Journal.
Hart also drew upon the work of Glanville Williams, who had demonstrated his legal philosophy in a five-part article, "Language and the Law," and in a paper, "International Law and the Controversy Concerning the Word 'Law'." In the international law paper, Williams critically asserted that jurists and international lawyers debating whether international law was "really" law were wasting time. He argued that the question was not factual, as the differences between municipal and international law were undeniable, but rather one of conventional verbal usage. Williams maintained that individual theorists were free to choose their usage but had no right to dictate to others. Hart refined and developed this approach in the final chapter of The Concept of Law (1961), illustrating how the use of an abstract word like "law" in relation to different social phenomena reflected shared, though not necessarily universally common, distinctive features among these phenomena. Williams himself had articulated a similar approach when editing a student text on jurisprudence and had applied essentially the same method to "The Definition of Crime."
6. Major Debates
Hart engaged in several significant intellectual debates with other prominent legal and political philosophers, which further shaped his theories and the landscape of legal philosophy.
6.1. Hart-Devlin debate
The Hart-Devlin debate centered on the extent to which law should enforce societal morality. This public exchange began following the publication of the Wolfenden report in 1957, which recommended the decriminalization of homosexual acts between consenting adults in private. Lord Patrick Devlin, a judge, argued that a shared public morality was essential for the cohesion of society and that the law had a legitimate role in enforcing this morality to prevent the disintegration of society. Hart, in contrast, strongly defended Mill's harm principle, arguing that the law should only intervene in private conduct to prevent harm to others, not to enforce moral consensus. He contended that enforcing private morality through law constituted an unjustified infringement on individual liberty and that a society could tolerate diverse moral views without collapsing. Hart's arguments in this debate, particularly his defense of the decriminalization of homosexuality, underscored his commitment to social progress and individual rights.
6.2. Hart-Dworkin debate
The Hart-Dworkin debate was an influential and long-standing intellectual exchange between Hart and his successor at Oxford, Ronald Dworkin. Dworkin, a rights-oriented legal philosopher, mounted a significant critique of Hart's version of legal positivism in his works, including Taking Rights Seriously (1977), A Matter of Principle (1985), and Law's Empire (1986).
Dworkin challenged Hart's emphasis on rules, arguing that legal systems also include principles, policies, and other non-rule standards that judges must consider, especially in "hard cases" where rules are unclear or conflict. He contended that these principles are not merely matters of social fact or recognition but derive their authority from their moral content and their role in justifying the legal system. Dworkin's critique questioned the strict separation of law and morality central to Hart's positivism and introduced a more interpretive approach to legal theory, suggesting that legal interpretation is always an act of moral and political judgment. Hart addressed some of Dworkin's criticisms in a posthumously published postscript to the second edition of The Concept of Law, further elaborating on his views regarding judicial discretion and the nature of legal rules. This debate significantly advanced discussions on legal interpretation, the nature of legal principles, and the intricate relationship between law and morality.
7. Personal life
Hart's personal life, marked by both intellectual pursuits and complex relationships, offers a more complete picture of the philosopher.
Hart married Jenifer Fischer Williams, a civil servant who later became a senior civil servant in the Home Office and an Oxford historian specializing in police history at St Anne's College. For some years in the mid-1930s, Jenifer was a "sleeper" member of the Communist Party of Great Britain, though her involvement faded completely by the end of the decade. Three decades later, she was interviewed by Peter Wright, MI5's official spy hunter, regarding her potential to have passed information to the Soviets. She explained her situation, and Wright took no action, as her work in areas like family policy would have been of no interest to Soviet intelligence. The person who recruited her, Bernard Floud, interviewed shortly after, claimed no recollection of doing so. Despite vague newspaper suggestions, Hart himself was not in a position to convey useful information to his wife, given the strict separation of his work, which focused on German spies and British turncoats rather than Soviet-related matters. In fact, Hart was staunchly anti-communist.
Their marriage, despite containing "incompatible personalities," endured until the end of their lives, bringing them joy at times. Hart once humorously remarked to his daughter, "The trouble with this marriage is that one of us doesn't like sex and the other doesn't like food." According to his biographer, Nicola Lacey, Hart himself identified as a "suppressed homosexual." Jenifer Hart was widely believed by her contemporaries to have had a long-term affair with Isaiah Berlin, a close friend of Hart's. In 1998, Jenifer Hart published her autobiography, Ask Me No More.
The Harts had four children, including a son born late in life who suffered a disability due to the umbilical cord wrapping around his neck, depriving his brain of oxygen. Despite his disability, the son sometimes displayed remarkable observational abilities. As a philosopher deeply interested in the mind-body problem, Hart maintained a professional interest in his son's condition. Hart's granddaughter, Mojo Mathers, made history in 2011 as New Zealand's first deaf Member of Parliament. The writer on religion Karen Armstrong, who lodged with the Harts for a period to assist with their disabled son's care, provided a description of their household in her book The Spiral Staircase.
Hart's political views were firmly on the Left. He considered himself to be "on the Left, the non-communist Left," and expressed strong animosity towards Margaret Thatcher and her policies. He even gave lectures to the Labour Party on how to close tax loopholes that were being exploited by the "super-rich," demonstrating his commitment to social justice and economic equality.
8. Students and Influence
Hart's role as a mentor was as significant as his own scholarly output, profoundly influencing subsequent generations of legal and political thinkers. Many of his former students went on to become prominent figures in legal, moral, and political philosophy, including:
- Brian Barry
- Ronald Dworkin
- John Finnis
- John Gardner
- Kent Greenawalt
- Peter Hacker
- David Hodgson
- Neil MacCormick
- Joseph Raz
- Chin Liew Ten
- William Twining
Hart also had a strong influence on the young John Rawls in the 1950s, when Rawls was a visiting scholar at Oxford shortly after finishing his PhD. His teaching and intellectual environment at Oxford fostered a vibrant community of legal scholars who continued to develop and challenge the ideas he introduced, ensuring his lasting impact on the field.
9. Death and Legacy
Hart died in Oxford on 19 December 1992, at the age of 85. He is buried there in Wolvercote Cemetery, where Isaiah Berlin's grave is also located.
H.L.A. Hart's legacy is immense and enduring. His work, particularly The Concept of Law, remains a foundational text in legal philosophy, influencing debates on the nature of law, legal validity, and the relationship between law and morality. His sophisticated articulation of legal positivism provided a powerful alternative to natural law theories and earlier command theories of law. The distinctions he introduced, such as primary and secondary rules, and the concept of the rule of recognition, continue to be central to contemporary jurisprudential discourse.
Beyond his specific theories, Hart's philosophical method, which applied the rigorous tools of analytic and linguistic philosophy to legal problems, set a new standard for clarity and precision in jurisprudence. His engagement in major debates, such as the Hart-Devlin debate on law and morality and the Hart-Dworkin debate on legal interpretation, stimulated critical thinking and pushed the boundaries of legal theory. His progressive stance on social issues, advocating for individual liberty and challenging the enforcement of private morality, further solidified his reputation as a thinker committed to social progress. Through his writings and his mentorship of numerous influential scholars, Hart's intellectual output continues to shape the way legal systems are understood, analyzed, and debated globally.
10. Writings
H.L.A. Hart's comprehensive body of work includes numerous books, essays, and edited collections that have profoundly shaped legal and political philosophy.
- "The Ascription of Responsibility and Rights", Proceedings of the Aristotelian Society (1949)
- Definition and Theory in Jurisprudence (1953)
- Causation in the Law (with Tony Honoré) (Clarendon Press, 1959; 2nd edn 1985)
- The Concept of Law (Clarendon Press, 1961; 2nd edn 1994; 3rd edn 2012)
- Law, Liberty and Morality (Stanford University Press, 1963)
- The Morality of the Criminal Law (Oxford University Press, 1964)
- Punishment and Responsibility (Oxford University Press, 1968)
- Essays on Bentham: Studies in Jurisprudence and Political Theory (Clarendon Press, 1982)
- Essays in Jurisprudence and Philosophy (Oxford University Press, 1983)
- An Introduction to the Principles of Morals and Legislation, co-edited with J. H. Burns (Athlone Press, 1970)
- Of Laws in General, edited by H.L.A. Hart (Athlone Press, 1970)
- A Comment on the Commentaries and A Fragment on Government, co-edited with J. H. Burns (Athlone Press, 1977)