Allan, James --- "A Life of H.L.A. Hart: The Nightmare and the Noble Dream" [2006] OtaLawRw 10; (2006) 11 Otago Law Review 327

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A Life of H.L.A. Hart: The Nightmare and the Noble Dream

(By Nicola Lacey, OUP, 2004)

In 1952, at the age of 45, Herbert Hart was elected to the Chair of Jurisprudence at University College, Oxford University. He had published three papers (only one related to law), a couple of reviews, and immediately after the war his first ever publication, a short piece for The Economist newspaper on defeated Germany. However highly one may think of The Economist, it could never happen today. Today universities want output volume; they want research plans; they want introspection, both about one's method of teaching and about the directions and themes in one's research. Quality, quantity, teaching effectiveness, you name it, everything has to be measurable - or at least open to the pretence of being measured. These days there's hardly a university mandarin on earth who stops to weigh the costs of all this (especially if they are non-monetary costs like academics' time) against the purported benefits, such as they are.

But even back in 1952 it was quite a surprise that a former chancery barrister at Lincoln's Inn, then an MI5 civil servant during the war, then a philosophy fellow, could be elected to Oxford's Chair of Jurisprudence. Even by the standards of the day it was one almighty gamble.

And boy, did it pay off! In 1961 Hart published what is widely considered to be the best book on legal philosophy in the twentieth century. I certainly think it is. The Concept of Law is a masterpiece. With next to no footnotes, it had sold over 180,000 copies last time I checked. It revolves around three questions, namely how does law differ from, and look similar to, orders backed by threats; how do legal obligations and rules differ from, and look similar to, moral obligations and rules; and to what extent is law a creature of rules. If you want to read only one book in legal philosophy this has to be it.

More than that, Hart almost single-handedly resurrected the study of jurisprudence in England and the Commonwealth. Going backwards in time there is no one between him and Bentham.

Hart also wrote a well-known book on causation with Tony Honoré. He debated with Lon Fuller on whether there is any necessary connection between law and morality and with Lord Devlin on the desirability of using the criminal law to enforce conventional morality (or put differently, to protect society and not just individuals). In my view, Hart won the debate with Fuller hands down but, at the very best, managed no more than a draw with Devlin. Most legal philosophers, despite the recent rebirth of Fuller's thinking in the common law constitutionalism of T.R.S. Allan and a few others, would agree with my first verdict. I suspect most would disagree, though, about the outcome of the Devlin debates.

The point, however, is that Herbert Hart proved to be an inspired choice as Professor of Jurisprudence. From the mid-1950s to well after his retirement he continued producing a string of powerful and insightful articles. Among his

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many illustrious students were John Finnis, Joseph Raz and even his successor in the Chair at Oxford, Ronald Dworkin. (As an aside, I would say that Hart got the better of Dworkin too, another view widely shared by legal philosophers and by those outside American constitutional law circles and circles keen on emulating in their jurisdictions the powers of US Supreme Court judges.)

Hart died at the end of 1992. Twelve years later this compelling biography by Nicola Lacey appeared. And compelling it is. It gives us Hart, warts and all. It takes us through his schooling, his years at Oxford, then at the Bar, then at MI5, before finishing with his return to Oxford from after the war till his death, not far off half a century later.

I particularly enjoyed the account of Hart's time at Harvard in 1957, his interactions with Fuller, and the background to his prestigious Oliver Wendell Holmes Lecture there, "Positivism and the Separation of Law and Morals".

And New Zealand readers might be interested in Hart's unusually unkind observations about their country, from letters home to his children during his 1971 speaking tour there (see p.304 Lacey), including these:

The place has its charms: it's an Anglo-Saxon Switzerland both physically and socially: no real poor; bottom is Middle Class (i.e. Lower MC.) with of course attendant horrors of philistinism, narrowness and religion - but of course wonderful to see no Asia-type or even UK-type poverty, slums or socially deferring classes. (Natural beauty is overwhelming.) .... S. Island where I now am lyrical Alps and Glaciers .... Society is horribly narrow minded, crude, ungainly, philistine, unimaginative, pathetically nostalgic for England of about 50 years ago and afraid of change. Food, except in private houses, is execrable .... But the universities on the whole are surprisingly liberal..

Lacey is also very good in setting out Hart's philosophical views, though arguably she is a tad too sympathetic to the Dworkinian critique. At any rate, this is in many respects a marvelous book and I whole-heartedly recommend it.

That said, on reading this book I was more and more struck by a strangely paradoxical reaction. I found myself half-wishing Lacey had not written the book, despite its insights, and obvious merits. This reaction was not because the Hart that Lacey paints could be a smidgen self-righteous at times (he could, as the above excerpts make plain) or because he suffered from bouts of depression and self-doubt. So what? His attractions clearly outweighed his warts, and anyway why should any of that make one half-wish the book had not been written?

Slightly more troublesome is the pop psychology, telling us how Hart in all likelihood must have felt and been thinking in various situations. I suppose, for my tastes, there was too much of the private, personal side of Hart on display in this book. Different readers, though, will no doubt react differently to this sort of intrusiveness.

No, the thing that set-off the paradoxical reaction in me is that as you read this book it becomes plain that Herbert Hart very much cared about his public persona. He had a nervous breakdown when the Sunday Times in 1983 accused his wife, Jenifer Hart, of being a Russian spy back before and during the War.

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(For what it's worth, Lacey herself clearly thinks this accusation false, a view I had shared, though the recent Jenifer Hart obituary in the Daily Telegraph (London), May 6th, 2005 does give one pause for second thoughts.)

More than just this, though, Hart's diaries, on which Lacey draws extensively, show a man who cares very much what others think of him, indeed to the point of insecurity. It seemed to me indisputable as I read this book that Herbert Hart the private man had no desire at all that the general public should see behind Herbert Hart the public persona.

So the question is this: Would Herbert Hart himself have approved of this biography? No one can know for sure. But by the end of the book at least a part of you will be thinking not, and wondering whether Hart might not have preferred his wife Jenifer to have followed the example of George Washington's wife Martha and to have burned all his personal papers on his death. (An ancillary benefit of that would have been to foreclose publication of the posthumous second edition of The Concept of Law where loose collections of materials Hart had not himself had published were found after his death, then gathered together by others and published as a postscript on the highly dubious (to me) theory that because papers were found tracing out a newish argument that means that Hart himself must have come to endorse it.)

At any rate, I suspect that a good many other readers will be left with the same feeling as I, that the man Nicola Lacey does such an effective job bringing to life is one who would not have wanted this biography written. In all other respects that does not take away from this book. In fact, and this too may be a paradox, it is only because Hart is on the whole such a sympathetic man that you find yourself half-wishing (or three-quarters wishing) that his inner life had not been lain bare - because he himself would have preferred it that way.

I suppose, though, that there is some sort of cosmic irony or roosting of chickens at work when the legal philosopher who as much as anyone urged us to separate 'law as it is' from 'law as it ought to be' has a biography written about him that brings home to the reader that 'Hart as he was' was distinct from 'Hart as he wanted to be seen by others'.

James Allan, Garrick Professor of Law, T.C. Beirne School of Law, University of Queensland.