Karl Llewellyn was there before

One of my gripes about contemporary jurisprudence is that all too often it looks as though people think it started in 1961. Consider three examples of ideas nowadays associated with Hart:

(1)      The distinction between the internal and the external point of view.

(2)     The distinction between the core and penumbra of legal rules.

(3)     What has been described recently as “the most famous hypothetical in the common law world,” the statute banning vehicles in the park. (This one is actually from Hart’s 1958 article “Positivism and the Separation of Law and Morals.”

All these can be found, years before, in the work of Karl Llewellyn.

H.L.A. Hart, A View of America – this time with a good scan

Following on the previous post: a much better scan is now available here.

For citation purposes, the source is The Listener, 59 (1958): 89-90.

H.L.A. Hart's least known paper, now online

In my paper mentioned in my previous post I cite what must be H.L.A. Hart’s least known published work. It is a brief piece, based on a recording he made for the BBC, reporting his impressions of the United States after his return from his year in Harvard. It is in this year that he gave the famous Holmes Lecture that, together with Lon Fuller’s response, became “the Hart-Fuller debate.” The piece, called “A View of America,” was published in the BBC’s (now defunct) magazine, The Listener.

The piece is interesting even if for no other reason than Hart’s comments on the differences between life, and especially academic life in the U.S. and Britain. But I think it is also significant for those interested in his ideas.

And it contains this: In the United States, writes Hart,

[a]rgument soon breaks through to what is believed, apparently, to be at the root of every problem—a moral problem. And, more widespread than I could have believed, was the conviction that just as there lurks at the bottom of almost every problem a moral question, so there must somewhere be an answer; an answer perhaps for the sage—and he may be in the university—to provide.

This sounds like pure Dworkin. There is the idea that all societal problems are moral problems, that there is a right answer to all those problems, and that it is the task for the sage “and he may be in the university”  to provide it. Here is Dworkin in Law's Empire in 1986:

It falls to philosophers, if they are willing, to work out law's ambitions for itself, the purer form of law within and beyond the law we have.

(Dworkin says the same on morality more generally in his latest book, Justice for Hedgehogs.) And yet Hart's piece is from January 1958! As far as I know Dworkin’s first publication is from 1963; “The Model of Rules” was published in 1968; and the right answer thesis did not become explicit until the 1970s.

There are a few other gems in this little article. 

The Listener is not available online, so I scanned the piece. It’s a very poor scan. In fact, I took photos of the pages with my phone, which I later converted to PDF. The result is not pretty, but is readable. I will try to get a proper scan, but in the meantime, there it is.

Update: A better scan is now available here.