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.

Upcoming McMaster conference on the nature of law

Soon I will be heading off to the conference on the nature of law to be held at McMaster University.  For quite some time I have been rather skeptical of legal philosophers’ defining the jurisprudence as concerned first (and foremost?) with the search for the nature of law, and my contribution to the conference takes the same line, albeit perhaps more explicitly than in the past. The specific argument is different from my earlier efforts. I adopt a kind of “case study” approach, comparing the way the relationship between law and politics is understood in American and British (or English) law. I argue that it is understood very differently, and that the difference reflects a different fundamental understanding of the nature of law. The paper is now available on SSRN.

There is a broader point emerging from the paper: the need for legal philosophers to pay more attention to politics. Legal philosophers are obsessed with the question of the relationship between law and morality. In one way or another all the big debates of the last fifty years or so (positivism v. natural law; positivism v. Dworkin; inclusive positivism v. exclusive positivism; obligation to obey to the law yes or no) are offshoots of that question, and different thinkers’ views tend to be aligned along predictable lines: if you are a legal positivist it is not surprising you think there is no general obligation to obey the law; if you are a natural lawyer, it is not hard to see to discover that you believe the opposite.

What is interesting is that there is almost no work by legal philosophers on the connection between law and politics. (There is, of course, a lot by political scientists.) But I have come to think that the law-and-politics interface is much more important than the law-and-morality interface for the sort of questions that preoccupy legal philosophers. Admittedly, this impression may simply be the result of the fact that this issue is less explored, but be that as it may, more attention should be paid to this issue. One reason why it may have been less discussed is that it is potentially much more destructive for the “nature of law” enterprise than that of law-and-morality. Or at least this is at least this what I try to show in my paper.

The paper ends with a brief look to the future (and in a way to the past) of jurisprudence, a matter that I explore more fully in a different paper (still in the works), namely the disappearance of human nature from jurisprudence and its potential, and needed, return. A view of law as derived from some views on human nature has been central to the work of the classical natural lawyers but it is also an aspect of those thinkers often classified as early legal positivists, Hobbes and Bentham. For them an account of human nature was itself part of a broader metaphysical worldview. This perspective has largely disappeared from contemporary legal positivism, and it is this perspective that a more naturalistic jurisprudence could and should revive. More on this in the future.