[lit-ideas] Re: Hartiana

  • From: Donal McEvoy <donalmcevoyuk@xxxxxxxxxxx>
  • To: "lit-ideas@xxxxxxxxxxxxx" <lit-ideas@xxxxxxxxxxxxx>
  • Date: Wed, 18 Mar 2015 15:26:47 +0000 (UTC)

In the hands of "legal philosophers", 'legal philosophy' is effectively a form 
of 'philosophy-lite', that takes law-related issues as its subject-matter but 
then treats these in a relatively shallow and superficial way. 

It cannot help but frame issues that derive from deeper, more general problems 
[such as the extent to which knowledge is best viewed as "conceptual", 
"empirical", "conventionalistic", "naturalistic" etc. - the Popperian view, 
that knowledge is best viewed as a product of problem-solving, has not made it 
yet into standard 'legal philosophy', such is the backwardness of 'legal 
philosophy']. But 'legal philosophers' are then inadequate to the task of 
addressing these issues as a great philosopher might. 

We may speak of great philosophers of law if we wish but we must be clear that 
no truly great philosopher was ever a mere philosopher of law. Equally, we may 
speak of great physicists of phlogiston but no truly great physicist was ever 
merely a physicist of phlogiston.
Hart's "Concept of Law" depends on a "rule of recognition" that is circular to 
the point of being empty and it is also an epistemic fiction. Rather than 
refute this kind of fundamental criticism, all JLS succeeds in showing is how, 
in very small and relatively shallow field, Hart's "The Concept of Law" can 
still be taught as some kind of preeminent text. Yet, even if we strip away the 
fictitious "rule of recognition", we are left with nothing very insightful as 
to what kind of cognitive processes are involved in legal thought [to do that 
you need to study legal problems], and most of what is accurate enough in the 
book is simply a watered-down version of ideas better dealt with by other 

Imagine a book "The Concept of Science" which claimed there is a kind of "rule 
of recognition" for what constitutes science: in effect, this is what Ayer and 
Strawson et al claim, and by this "rule of recognition" they mean 'valid 
inductive procedures'. It turns out the validity of Strawson's and Ayer's 
inductive procedures turns on what is accepted by scientists, just as Hart's 
"rule of recognition" turns out to depend on what is recognised as the "rule" 
by lawyers. Both theories are fictions, unexplanatory and circular - they have, 
however, hoodwinked many fairly weak and uncritical minds.
That's the real story: twentieth century academic philosophy in Britain was 
made up of small, insular groups, most of whom were "scientifically illiterate" 
and predisposed to endless linguistic analysis to very little end - they were 
also self-selecting to an unhealthy degree. Among them there was little genuine 
profound interest in philosophy in its great scientifically-informed sense and 
much more interest in how to make a philosophical career out of linguistic 
minutiae - as Bryan Magee explains, in his "Confessions of a Philosopher", 
there is much more genuine and profound interest in philosophy outside of 
university academic departments than there is within them. 

This real story is part of the explanation for the shallow and superficial and 
'let's-carry-on-regardless' approach that was taken to Popper's work by the 
vast majority of academic philosophers (most of whom have read next to nothing 
of it, and certainly not made a careful study of it). While I understand that 
university departments were very antipathetic to Hume for many decades after he 
wrote, I cannot help read JLS' long enconiums re Hart as being part of this 
'let's-carry-on-regardless' approach.

     On Wednesday, 18 March 2015, 10:55, "dmarc-noreply@xxxxxxxxxxxxx" 
<dmarc-noreply@xxxxxxxxxxxxx> wrote:

 My last post today!
In a message dated 3/18/2015 6:09:33 A.M. Eastern Daylight Time,  
omarkusto@xxxxxxxxx writes: "Let's say that we had a conference and I 
introduced  JL 
by saying "This is our man for implicatures." The connotations of this would 
 vary with the context; if the conference were on Grice, it might well be 
taken  as a compliment. (Even if not so intended). If the conference were on  
metaphysics, it might not be taken as particularly complimentary. But since 
JL  is "our man for implicatures," I would expect him to accept that 
truthful  description whether it is complimentary or not. 
Yes, I would. 
But again, let us be reminded that the original utterance was not about  
Hart, whom most would know, but Dr Puddle.
i. Meet Dr. Puddle, our man in legal philosophy.
With Hart it might ALL be different. Surely, it would be rude for a member  
of the Faculty of Law at Oxford to describe Hart as "our man in legal  
philosophy", and I wonder if Hart was ever thus described. 

A more  colloquial example would be J. L. Austin referring to Hart as "our 
man in legal  philosophy". "Legal philosophy" is not a phrase J. L. Austin 
would use. After  all, Hart was professor of Jurisprudence, and there might 
be a difference,  although the talk of the town (if not gown) was that for a 
historical first, it  was a PHILOSOPHER (and a good one at that) that was 
appointed as professor of  Jurisprudence. 
We are considering.
ii. Hart as a philosopher.
iii. Hart as a LEGAL philosopher.
and how it is Hart's strength as a PHILOSOPHER (rather than perhaps lawyer) 
 that makes him a good legal philosopher. 
As a student at Oxford Hart studied only "Greats" (i.e., classics, ancient  
history, and PHILOSOPHY) -- not law. He had to take further legal 
examinations  to be called to the bar -- where he practised law in London from 
to  1940.
After the war, there was transition from practicing lawyer and civil  
servant to Oxford philosophy don.
When Hart returned to Oxford in 1945 and took up a position as a philosophy 
 don, he did so after an interval of sixteen years, armed with only an  
undergraduate degree in philosophy. 
This is a testimony to the regard in which Hart had been held in Oxford as  
a student.
Hart was a philosophy don at Oxford for seven long years, from 1945 to 1952 
 -- the heyday of ordinary language philosophy. 
During this period Hart typically published relatively little. As  Warnock 
recalls ("Saturday mornings") ordinary language philosophers felt PROUD  
about NOT publishing: parochialism as a virtue. 
As a philosophy don, Hart published only three essays and two reviews,  
only two of which were directly related to law: the essay on "The ascription of 
 responsibility and rights" (Aristotelian Society) where he borrows (but 
never  returns) 'defeasible' from property law, and a review of Jerome Frank, 
"Law and  the modern mind" (1949), for "Mind".  
When Goodhart, resigned as Chair of Jurisprudence in 1952, it was largely  
on the strength of Hart’s reputation for cleverness -- and his connection 
with  J. L. Austin, and other influential Oxford philosophers -- that Hart was 
 appointed to replace him. 
This raised eyebrows among the Oxford Law Faculty, with whom Hart had  
enjoyed little contact. 
“It’s Goodhart without the good” is how a prevailing sentiment was  
By contrast, Hart’s appointment was a source of pride to the Oxford  
PHILOSOPHICAL community, which saw Hart as ONE OF THEIR OWN and  welcomed the 
opportunity to extend their influence. 

Quite apart from his high intellectual regard for Hart, J. L. Austin’s  
thinking was shaped by a belief that only a ‘real’ PHILOSOPHER could  elevate 
the Chair of Jurisprudence to a level of any intellectual  credibility. 
This is strikingly reflected in J. L. Austin's note of  congratulation on 
Hart’s ultimate election to the Chair of Jurisrudence:
It is splendid to see the empire of PHILOSOPHY  [emphasis Speranza's] annex 
another province in this way — not to  mention the good you’re going to do 
-- where 'them' is not 'us'. 
One can imagine how members of the Law Faculty must have felt about this  
colonisation, not to mention the philosophical triumphalism with which it was 
For it was not only J. L. Austin’s letter which illustrates the Oxford  
ordinary language philosophers’ sense of superiority.
Magdalen Fellow Kurt Baier found it "remarkable that lawyers can be so  
perceptive" -- the implication being complex: 'lawyers' is 'them', not 'us', 
but  since Hart is a lawyer ("Once a lawyer, allways a lawyer"), Baier's 
remark on  the remarkability is pretty rude. 
(Baier, unlike J. L. Austin, who was from Lancaster, was from Vienna,  
Austria-Hungary, where he lived till 1938, so we must allow for some  
cross-cultural variance in the expression of stuff). 
R. B. Braithwaite wrote from Cambridge (no less!) to celebrate Hart’s  ‘
infiltration, or was
it assault?’.
This could also be taken as 'rude' but then it is from Cambridge --  
Oxford's competition. 
Braithwaite opined that "Jurisprudence is quite futile unless it is treated 
 as a branch of philosophy. But", he goes on to wonder, "will you persuade 
the  lawyers?".
Hart took the answer as rhetorical and, as an Oxonian, rude, seeing that  
"once a lawyer, allways a lawyer", plus the adage that it is VERY EASY to  
persuade oneself.
Professor Ryle was "glad" about Hart's appointment as Professor of  
Jurisprudence, "for the sake of the students who want to think" -- where,  
Ryle, the æquivocatio is on 'want': students who WILL to think vs.  students 
who NEED to think. 
All in all, there was a marked, shall we say, difference of *tone* back in  
the day, between the philosophers and the lawyers -- and you can see how 
Hart  might have felt being _both_. 
While the philosophers were warm and exultant, the lawyers were merely  
polite, if not downright rude or badly comical (the toilet graffito, "It's  
Goodhart without the good"). 
There were exceptions, however.
Hart’s closest FRIEND on the Law Faculty, lawyer A.M. Honoré, wrote a  
(granted) unsigned notice for a university newspaper welcoming Hart's  
appointment. (cfr. Neil Duxbury, English Jurisprudence Between Austin and Hart, 
L. Rev., arguing that English jurisprudence between Austin and Hart was  
largely inert) and W. L. Twining, "Academic Law and Legal Philosophy: The  
Significance of H.L.A. Hart" in the Law Q. Rev., arguing for same).

Still another lawyer, R.V. Heuston, wrote Hart to tell him he  looked 
forward to Hart's providing a ‘town planning scheme’ for the  "intellectual 
of English Jurisprudence" where there is, granted, no  reference to 
_philosophy_ as such. 
In retrospect, Heuston’s remark was prophetic, for Hart’s appointment  
became a significant turning point in Oxonian legal thought. 
Hart revived the largely moribund discipline of English jurisprudence and  
restored it to a prominent position.
Indeed, over the next several decades, Hart managed, with the help of a  
talented group of students and colleagues, including Ronald Dworkin, John  
Finnis, Ruth Gavison, David Lyons, Neil McCormick, Herbert Morris,
Joseph  Raz, and Robert Summers, to launch a minor intellectual revolution 
in the LEGAL  philosophy, which quickly spread beyond its original borders 
and integrated  parts of both academic law and analytic PHILOSOPHY in a 
manner  now
largely taken for granted, although not without its influential critics.  
(I'm thinking of R. Poster, "The problematics of moral and legal theory", 
who,  perhaps as old Cato did, back in 155 B. C., upon hearing Carneades in the 
Roman  senate, criticises the influence of philosophers on legal  


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