Hart and me

About two months ago I started reading H.L.A. Hart’s Essays in Jurisprudence and Philosophy. I’d read Hart’s The Concept of Law and found it fascinating; it sets out a model of the law to which I’m strongly opposed, but it does it in a way that leaves very little purchase for criticism. I took the volume of essays out from the library on a whim a while ago and started reading it in June.

About six weeks ago I started writing about Hart’s Essays in Jurisprudence and Philosophy, and once I’d started I found it hard to stop. By the time I reached the end of my mental list of issues on which I felt I needed to make some comment – if only to clarify my own thoughts – I’d read another thirteen papers (by Duxbury, Dworkin, Ely, Gardner, Green, Keating, Kramer, Lyons, Mackie and Rawls) and written fifteen blog posts, totalling just under 30,000 words.

I don’t know if there’s a paper in there anywhere; I’m self-taught in this area (my background’s in history) and my arguments are probably fairly basic. But I’ve enjoyed doing it.

For future reference – if only my own! – here are links to those fifteen posts, with a representative quotation from each one. Share and enjoy!

 

The first three posts are in response to the 1976 paper “Law in the perspective of philosophy”.

Some baby! (Hart on Nozick) (800 words)

“For Hart, a model of justice was first and foremost a model of justice as it was administered in the real world: if such a theory pointed us in the direction of greater, less compromised or better-distributed justice, so much the better, but its first hurdle was to fit the reality of justice as we knew it. In Hart’s view, by defining justice in terms of principles which could only be realised in Utopia, Nozick had succeeded only in severing his own ideal of justice from the common-or-garden justice about which other theorists wrote.”

Hart, Nozick, Dworkin (in that order) (2400 words)

“Dworkin’s argument against other-directed preferences seems to boil down to saying that majority votes – and utilitarian greater-good arguments – are problematic when they justify things that are wrong; the question of what actually is wrong remains open (and, I would add, political). It could be argued that these considerations of value pluralism have nothing to do with equality of respect – in other words, that these are arguments we would have been having anyway – but in fact that’s the point: Dworkin’s metric gives us no guidance precisely when we need it.”

Earthbound skyhooks: Rawls and Dworkin (also responds to the 1973 paper “Rawls on liberty and its priority”) (1400 words)

“Rawls – like Dworkin – takes what appears to be a very different and much more worldly approach than a frank utopian like Nozick, but on inspection there’s something quite different – and stranger – going on than a simple opposition between utopianism and realism. The difference between Nozick and Rawls isn’t that Nozick built castles in the air; it’s that when Rawls built his castles in the air, he built them on the ground.”

 

The next six posts all address arguments in “Rawls on liberty and its priority”, taking into account Rawls’s responses in his 1982 lectures published as “The basic liberties and their priority”.

Hart on Rawls – 1 (2100 words)

“although Rawls treats his basic liberties as discrete and distinct, to the extent that they can be balanced against one another there must be a Liberty behind the curtain which they jointly make it possible to approach – or at least a Liberty-stuff which they each in their different ways produce. If this is the case, the basic liberties are not fundamental, but different aspects or facets of the production of fungible Liberty-stuff, or of the approach to an ineffable Liberty. And if that’s the case, clearly Rawls’s list can’t be taken as definitive; the possibility that it might need to be lengthened, and – more disruptively – the possibility that it might be appropriate to trade down one or more of our current list altogether, can’t be avoided.”

Hart on Rawls – 2 (1900 words)

“Either the conflict between rival liberties can be resolved in principle (in which case let’s get on and see how we can do it), or it can’t (in which case we are leaving a lot of important questions to be settled politically – and it’s not clear what philosophical work the basic liberties are doing). Rawls appears to be putting forward a middle position, in which conflicts between liberties can be resolved at the level of principle but we don’t know how. If, as Rawls seems to be suggesting, the key factor in making the resolution philosophically possible is the nature of the adjudicator – the “representative equal citizen” with her Good-oriented rationality – then we don’t seem to be saying much more than that people would get on much better if they were nice.”

Hart on Rawls – 3 (1600 words)

“There is no theoretical or practical difficulty encroaching on liberties so as to prevent harm; societies do it all the time. However, justifying those restrictions in a coherent and generalisable way has proved to be a serious challenge for political philosophy. Rawls, oddly, doesn’t seem to say much about it, other than to rule it out on principle – because a liberty should only be curtailed for the sake of a liberty (of greater significance). Can this be accepted, and if so how?”

Hart on Rawls – 4 (2300 words)

“Rawls assumes a society of free and equal persons, each of whom is capable of two things: social co-operation, subject to the demands of fairness and promise-keeping which can be called ‘reasonable’; and ethical deliberation, within the framework of logic and value which can be called ‘rational’. In terms of entry requirements for the world of his model, Rawls has set the bar surprisingly low. To derive the priority of liberty – or any other of Rawls’s apparently idealistic or counter-intuitive formulations – we may not need to assume a world of model citizens; perhaps all we need to do is to assume that everyone is capable of working together and valuing one set of ideas more highly than another”

Hart on Rawls – a review (1500 words)

“I sense that Hart saw a deep equivocation here, between a model which could exist (in the sense that it rests on valid assumptions about human nature) and one which could exist (in the sense that the model itself represents an imaginable society). It may be that Rawls only saw himself as developing the first of these; however, to the extent that such an abstract standard can be a driver for reforms to the society we have, it must surely be possible to envisage reforms which would represent steps towards it, even if they were fated never to reach it. And, if Rawls’s model is supposed to represent something approachable (even if not attainable), we’re back to the original question: why are his subjects so nice?”

The names of the Rawls (1400 words)

Rawls, quietist: “the ideal outcome seems to be, not merely a system without injustice, but one without conflict. The point is not that conflicts of interest and diverging preferences would be taken into account, but that they would always already have been taken into account. I find it hard to reconcile this line of thinking with Rawls’s evident assumption that political processes would operate in his imagined society; I’m not sure what point politics would have. This is not, in other words, the work of someone who believes that human history has always been and always will be driven by scarcities and conflicts of interest.”

(The other names I tried out are ‘bourgeois liberal’, ‘right Libertarian’, ‘Right Hegelian’, ‘utopian’ and ‘Pragmatist’ (note capital P).)

 

The next post stands on its own, as does its infamously difficult subject:

Mutterings in favour of Kelsen (in response to “Kelsen visited” (1963) and “Kelsen’s doctrine of the unity of law” (1968) (2000 words)

“Hart’s arguments against Kelsen are both meticulous and dense, but they take two main forms: demonstrations that one of Kelsen’s assertions cannot be logically sustained, or has unsatisfactory implications if assumed to be true; and demonstrations that, even if true, the assertion would not do the work Kelsen claims that it does. I’m certainly not in a position to say anything authoritative about Kelsen, let alone rebut any of Hart’s criticisms. In this post I want to take on an easier target: Hart’s bafflement.”

 

Finally, a series of five posts relating to Hart’s debate with Lon Fuller. The focus is on Hart’s concessions to natural law theory, taking into account two papers by David Lyons. Hart suggested that Lyons’s arguments – supporting a position on natural law in some ways more severe than Hart’s – might prompt ‘considerable modification’ of his own position, although he did not (to my knowledge) follow up this suggestion.

Hart and natural law: the three concessions (2200 words)

“There are certain adverse outcomes to which we are all vulnerable, in any imaginable human society, and which – crucially – we can all bring about in others: anyone can kill or be killed, steal or be stolen from, abandon or be abandoned. Hence a certain minimum, presumptively universal, content to the law, which can without too many problems be called natural. (It might seem that deprivation of human kindness – abandonment by one person of another – is considerably less serious than robbery or violence. But consider that, in most cases where one adult can be said to abandon another, it will be unclear who has deprived whom of kindness. Ideas of abandonment come into play – and into the realm of the law – where one party is need of care and/or the other has a duty of care.)”

Hart and natural law: Lyons on formal justice (2300 words)

“In [one hypothetical] case, we know that the law is just and that a just decision is, at least, highly likely; in [another], we know that the criteria given by the law are not just, and that the possibility of a just outcome is vanishingly small. Can we still speak of injustice being done by a capriciously varied application of the law – perhaps, if the judge delays three days before passing sentence, rules on a second case in five minutes flat and reads the third sentence in a silly voice? This, surely, would be a violation of fair official treatment of which even the acquitted defendants could complain, and which would make the position of the defendants in the nightmare scenario still worse.”

Hart and natural law: Lyons on Fuller (1300 words)

“[Lyons writes:] ‘we cannot learn what use of sanctions is (or would be) unjust simply by understanding what the law is. We need to know what constitutes an injustice. And so far, our understanding of what the law is tells us nothing about that.’ On the contrary – Fuller might have answered – while ‘our understanding of what the law is’ may tell us nothing about injustice, our ordinary-language understanding of injustice tells us that the imposition of laws which could not be followed would constitute an injustice. The question of justice is engaged by the process of ascribing, to some individuals but not others, the social status of having broken a law; break the link between this status and those individuals’ past freely-chosen actions, and injustice necessarily results.”

Hart and natural law: the three concessions reviewed (3000 words)

“A striking virtue of Fuller’s argument is that it considers legal systems as a whole, arguing that they may exhibit the same merits and defects in many different ways. An individual law may be unfollowable for reasons of content, structure, administration or enforcement: because it clearly requires the impossible, or because it is drafted so badly as to be incomprehensible, or because it is liable to be changed without warning, or because it is only capriciously enforced. With this in mind, it is worth recalling the first aspect of the minimum content of natural law – the substantive element – and asking whether it may have any bearing on the other two, wholly or partly procedural, elements. If laws – some laws – are required in any conceivable human society, for the sake of bare collective survival, does this tell us something about the nature of law? Might it be appropriate – natural, indeed – to take as a starting point the assumptions that (contra Lyons) law does in fact embody the value of justice in society, and that (contra Hart) this value is of supreme moral importance?”

Hart and natural law: reactions (2900 words)

(On three papers by Matthew Kramer, Leslie Green and John Gardner)
“Kramer’s critique of Lyons is excellent, and his position on procedural justice – that it is a virtue but should not be seen as a moral virtue – seems authentically Hartian; I was not convinced by the argument by which he supported it, though. Green fills out the legal positivist background very usefully, as well as alighting on a potential connection – not necessarily one Hart had in mind – between a procedural morality of law and the minimum content of natural law. Gardner’s paper does an excellent job of presenting Hart as a liberal idealist, albeit one with a neuralgic reaction to the word ‘morality’; the argument is very much in line with my own thinking about the law, but as an interpretation of Hart I found it less persuasive.”

 

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