He was born on July 18, 1907 in Harrogate, England
Educated at Cheltenham College, Bradford Grammar
School and New College
Admitted into the Chancery Bar in 1932 He practiced as a barrister in the Chancery courts of London. He established a successful legal office handling complex cases involving trusts, family settlements, and taxes. Philosopher of positive law He was asked to serve in the MI5 (British Intelligence Unit) during WWII where he worked with Oxford philosophers
Married Jenifer Fischer Williams; the couple
had one daughter and three sons.
He became a Fellow and Tutor in philosophy at Oxford from 1946 to 1952. Was elected to the Oxford Chair of Jurisprudence in 1952 In 1972, Hart was named the principal of Brasenose College in Oxford. He died on Dec. 19, 1992
Herbert Lionel Adolpus Hart (1907-1992) was
an influential English speaking legal
philosopher of the 20th century. He is the author of the Concept of Law and was Professor of Jurisprudence at Oxford University. Hart developed a sophisticated theory of legal positivism within the framework of analytic philosophy. Hart also made major contributions to political Philosophy.
Hart revolutionized the methods of
jurisprudence and the philosophy of law in the
english speaking world. Influenced by J.L. Austin and Ludwig wittgenstein. Hart brought the tools of analytic and especially linguistic, philosophy to bear on the central problems of legal theory. Harts method combined the careful analysis of twentieth century analytic philosophy with the jurisprudential tradition of Jeremy Bentham. The great English legal, political and moral philosopher.
The starting of our discussion.
is harts dissatifactions with John Austins
Command Theory. a jurisprudential concept that holds that law is command backed by threat and is meant to be ubiquitous in its application.
Hart likens Austin theory to the role of a
gunman in a bank and tries to establish the
differences between the gunmans order and those made of the law.
(For instance, the gunman forces us to obey but
we may not feel inclined to obey him.
Presumably, obedience to the law comes with a different feeling.)
Hart identifies three such important
differences:
CONTENT ORIGIN RANGE
In Content. Not all laws are imperative or
coercive. Some are facilitative,
allowing us to create contracts and other legal relations.
Austin believed that every legal system had
to have a sovereign who creates the law
(origin) whilst remaining unaffected by it (range). Such as the bank scenes gunman whos the
only source of command and who is not subject
to others commands. Hart argues that this is an inaccurate description of law, noting that laws may have several sources and legislators are very often subject to the laws they create.
HART was also influenced by Austian legal
philosopher Hans Kelsen. Though Hart
rejected two distinctive features of Kelsens positivism: The idea that law necessarily requires sanctions The neo-Kantians idea that a normative social
phenomenon could not be explained purely in
terms of social facts.
In rejecting the purity of Kelsens pure
theory of law. Hart broke decisively with
Kelsen.
| #THECONCEPTOFLAW| Hart most famous work is
First publish in 1961.
The book emerged from a set of lectures that
harts began to deliver in 1952 and it is a
presaged of the work of HOLMES lecture. Postivism and the seperation of laws and morals delivered at HARVARD LAW SCHOOL.
The #ConceptofLaw developed a
sophisticated view of legal positivism. Among
the many ideas developed in this book are: - being a critique of John Austins theory tha law is the command of the sovereign backed by the threat of punishment. A distinction between primary and secondary
legal rules, where a primary rule governs
conduct and secondary rule allows of the creation, alteration, or extinction of primary rules.
There are two perspectives to this:
1.) the external aspect, which is the
independently observable facts that people do tend to obey the rule with regularity, and the 2.)The internal aspect, which is the feeling by the individual of being in some sense obligated to follow the rule. Otherwise know as the CRITICAL REFLECTIVE ATTITUDE.
It is from this internal sense that the law
acquires its normative quality.
Primary rules (rules of conduct) and secondary rules (rules addressed to officials and which set out to affect the operation of primary rules).
Secondary rules deal with the three problems
1st the problem of uncertainty about what the law is (the
secondary rule for this dilemma is called the rule of recognition and states the criteria of validity of a law). the problem of rigidity of rules (which requires rules of change allowing laws to varied). 2nd
the problem of how to resolve legal disputes (from
which rules of adjudication arise). 3rd
As a result of his famous debate with Lord
Patrick Devlin on the role of the criminal law in
enforcing moral norms. Hart wrote LAW, LIBERTY and MORALITY (1963) and THE MORALITY OF THE CRIMINAL LAW (1965). Harts work on the relationship between law and morality had a significant effect on the law in the UK. Helping bring about the descriminalization of the homosexuality, among other things.
HART-FULLER DEBATE An exchange between Lon Fuller and H.L.A
HART published in the HARVARD SCHOOL OF
LAW REVIEW. In 1958 on morality and law which is demonstrated the divide between the positivist and natural law philosophy. Hart took the positivst view in arguing that morality and law were separate.
Fuller reply and argued that for morality as the
source of laws binding power.
Hart uses the problem of the core and the penumbra to illustrate the idea that laws must be related to the meaning of the words, not any natural or moral belief. A Core case would be one that the statute is intended to cover. In the classic example a statute that bans
vehicles from a park obviously is intended to
cover cars.
A penumbra case would be one not
considered by the creators of the law.
A judge interpreting such a law from a positivist viewpoint would look to a definition of the words of the statute.
Laws are viewed based on a purpose, not on
meaning of the words. In the vehicle in the
park example above, Fuller would say that it would depend on the purpose for banning vehicles from the park. For ex., if the purpose would not be vehicle purpose of the law. Because of this focus on purpose instead of meaning, a judge using a natural law interpreting a statutes relies much more heavily on legislative history.