Is The Concept of Law a Good Book? Part 1: Introduction

I plan to begin a series of posts on The Concept of Law (CL). I believe the book enjoys an inflated reputation, which deserves some deflating. Though by no means a central theme in my paper, “The Misguided Search for the Nature of Law” I said in the end that one way for jurisprudence to get better would be to stop reading CL. This did not go well with Les Green: “Many academic lawyers, and most legal sociologists, show no signs of having read Hart’s book at all (or of having understood it if they have).”

Perhaps, but that, of course, would matter if they would miss out on much if they did. Green thinks they would. I disagree. So here it is, as clearly as I can (forever guaranteeing my excommunication from respectable jurisprudential company): The Concept of Law is not a very good book. It is far more derivative than is often acknowledged, and most of its arguments are weak. I will get to this later in detail, but some examples of ideas attributed to Hart but found much earlier in the writings of Karl Llewellyn, see this earlier post.

Though it is hard to separate Hart’s book from its reception, the book and its impact are also responsible for leading jurisprudence astray by separating it from political philosophy. Hart does not bear all responsibility for the latter charge: John Austin and Hans Kelsen (and possibly others) have a hand in that too. But in the English-speaking world, there is no question that CL has been read by many more people and shaped future debates more than others. And it was Hart, after all, who chose to model his ideas on Austin and Kelsen, and not on (say) Bentham’s very different ideas.

Philosophy is not about head counting. I say this to make it clear that what I am about to say is not part of the argument against CL. But I think it is worth mentioning that attitudes towards the book may be, in part, generational, and they seem to be changing. Look at scholars who now in their fifties, and the general view seems to be that for all its faults CL is a great book. Among legal theorists of (roughly) my age, I often hear very different things: that the book is overrated, not very interesting, that it is kind of pedestrian. As for its legacy and impact, the inestimable Victor Tadros put it nicely when he wrote a few years ago “If ever a book has done more harm than good to philosophy, it is surely Hart’s [Concept of Law].”

I think it would be particularly illuminating to consider the context in which the book was born to see how parochial is its view of law, morality, politics, and philosophy. That is, of course, not a fault of the book: that is just to say that its author was human. Still, such an exercise would cast some doubt on the suggestion that Hart captured in his book something about the “nature” of law in general, even if such a thing exists. I will not do that here, but I do hope to show that the book falls far short of the lavish praise heaped on it.

By way of impressions, I do not think that this undergraduate textbook for law students with no philosophical background, a book that Hart himself said was “very much with lawyers in mind, and for them,” can be seen as a philosophical masterpiece. I don’t think anyone reading it without being prompted to think of it as an important book will feel they are encountering a towering work of philosophy. Comparison to works by, say, David Lewis, Daniel Dennett, Philip Pettit (to name but a few, and limiting myself to philosophers) does not bode well for CL. But these are mere personal impressions.

CL is often said to be a great book in philosophy without much by way of explanation why it is so. I cannot expect to convince anyone of my opposite view that CL is a mediocre book without some supporting arguments. And for this one needs to look at the details. To do that, I can think of nothing better than to go over the book’s contents, chapter by chapters. I will largely do that, except that I will start with a discussion of Hart’s methodology, which will relate to his remarks on the topic that are strewn throughout CL, and leave for last the discussion on what is usually considered CL’s most original and important parts, chapters 5 and 6.