Professor Hart and Analytical Jurisprudence

Association of American Law Schools
PROFESSOR HART AND ANALYTICAL JURISPRUDENCE

Author(s): Clifford L. Pannam
Source: Journal of Legal Education, Vol. 16, No. 4 (1964), pp. 379-404
Published by: Association of American Law Schools
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JOURNAL OF LEGAL EDUCATION
Volume 16 Number 4
PROFESSOR HART AND ANALYTICAL

JURISPRUDENCE
Clifford L. Pannam *
ProfessorininthetheUniversity
UniversityofH.Oxford
L. A. ofin Hart
1952.Oxford
At thatwas
timeappointed in 1952. to At the that Chair time of Jurisprudence few academic
few academic
lawyers outside England had ever heard of him. This was due to the
fact that he had published very little. Indeed, prior to his appointment,
he seems to have published only two papers, and these were in philosoph-
ical journals.1 If, however, he did not bring a swag of articles and
books to the Chair he certainly brought a rich background of classics,
law, and philosophy. As an undergraduate at Oxford, he had been
awarded a much coveted first in Greats. He then read for the
Bar, and upon being admitted, practiced as a Chancery barr
until the outbreak of war some nine years later. After spending
war years in the War Office, he returned to Oxford as a philosophy
There he was at the center of certain important developments in con
porary British philosophy which we will consider presently.
Since 1952, a stream of articles and books has come from Prof
Hart's pen,2 injecting new life and vigor into British analytical
prudence. A discipline that had almost become a subversive acti
has been reactivated and given new tasks to perform. Legal positi
which was limping badly after the massive bombardments it ha
ceived over the preceding forty years, found a staunch defender
persuasive advocate. Indeed, it seems no exaggeration to say
Professor Hart has revolutionized British jurisprudence with his wri
of the past ten years. Like all revolutionaries, he has been lavis
praised and as scathingly criticized. He has claimed much for his wor
but many dismiss it as trivial. Some hear him as singing the "s
* Senior Lecturer in Law, University of Melbourne.
1 Hart, The Ascription of Responsibility and Rights , in Proceedings of the Aris-
totelian Society 1948-1949, 171 (1948-51) ; Hart, A Logician's Fairy Tale , 60 Phil-
osophical Rev. 198 (1951). He also edited the posthumous publication of H. W.
B. Joseph, Knowledge and the Good in Plato's Republic (1948).
2 Since many of Hart's papers are published in out-of-the-way places, a bibliogra-
phy of his more important works will be found at the end of this article.
16 Journal of Legal Ed. No.4 379
380 Journal of Legal Education [Vol. 16
song of analytical jurisprudence," 3 while oth

ticing "conservative politics in the guise of anal
An American critic has even suggested that
reason in the choice of ends which the legal orde
In order to appreciate the impact and gauge

Harťs contributions to legal philosophy, tw
preliminary consideration. The first is the st
dence when Hart was appointed to the Oxfor
ond is the nature of certain developments in Br
greatly influenced his thinking.
When John Austin died in 1859, he bequeathed two fundamental

ideas that have subsequently dominated British legal thinking. One
was the passionate belief in the necessity for distinguishing between fact
and value, or the law as it is from the law as it ought to be. The other
was the view that lawyers were far better occupied in analyzing the
nature of basic legal conceptions than in speculating about such things
as the social effects of law or its ultimate moral aims. These were
questions of value that could be left for study by the "science of legis-
lation/' (No special professional skill was required for that discipline !
Lawyers, however, were the only people capable of analyzing such con
cepts as law, sovereign, duty, right, possession, ownership, act, obliga
tion, and the rest. Bentham had defined jurisprudence as "the art of
being methodically ignorant of what everybody knows," and this epito-
mizes what Austin was advocating.6 Every lawyer uses legal concepts
in his everyday practice and thinks he knows what they mean. But in
fact, he does not really understand them at all.7 The task for the ana
lytical jurist, according to Austin, was to throw light on their real
nature and operation.
Throughout the rest of the nineteenth century and during the early
part of the twentieth century, the Austinian tradition dominated Englis
3 Bodenheimer, Modern Analytical Jurisprudence and the Limits of its Usefulness,

104 U.PAX.Rev. 1080, 1085 (1956).
4 Cohen, Symposium: Definition and Theory in Jurisprudence , in Proceedings op
the Aristotelian Society (Supp. Vol. 29) 215, 235 (1955).
® Auerbach, On Professor H. L. A . Harťs Definition and Theory in Jurisprudence ,
9 J.Legal Ed. 39, 48 (1956).
6 "The elements of a science are precisely the parts of it which are explained least
easily." John Austin, The Province of Jurisprudence Determined 61 (Hart ed.
1954).
? Remember St Augustine's answer to the question, "What is time? " "what then
is time? If no one asks me, I know ; if I wish to explain it to one that asketh, I
know not." Confessions of Saint Augustine 11.14.7.
1964] Analytical Jurisprudence 381
jurisprudential writing. The books writt

land,10 Clark,11 Pollock,12 and Salmond
eschewing any consideration of morality
be sampled in the following statement ta
book, Jurisprudence: 14
The purpose of analytical jurisprudence is to an

to their historical origin or development or
validity, the first principles of the law.
Although these men directed their energies

concepts, it is often forgotten that nearly
that a complete understanding of law as an
depended upon a study of many other di
exception to this was Sir Thomas Erskine
unparalleled in its narrow-minded pedantic
After the appearance of Salmond's boo

came to an abrupt standstill in England
old textbooks were published, but little
Outside England, a brief resurgence of
resulted from the work of Hohfeld in t
short by his untimely death. In Europe,
kept the analytical fires burning, but Eng
able for some time.
With the publication of C. K. Allen, Law in the Making (1928),

jurisprudential writing in England took a new turn. This book was the
precursor of those omnibus surveys of legal theory that have become so
common. They purport to digest the various theories about the nature of
8 William Markby, The Elements of Law (1871).

9 Sheldon Amos, A Systematic View of the Science of Jurisprudence (1872) ;
The Science of Law (1874).
io Thomas Erskine Holland, The Elements of Jurisprudence (1880). It was in
this work that Holland gave his famous definition of jurisprudence: . . the
formal science of positive law." Id. at 15.
ii Clark, Practical Jurisprudence (1896).
12 E.g. Frederick Pollock, A First Book of Jurisprudence (1896).
13 John William Salmond, Jurisprudence (1902).
14 Id. at 5.
is E.g., "Law must be studied in a University, not merely as it has resulted from
the exigencies of society, but in its general relations to several parts of the same
system, and to other systems." Markby, op. cit. supra note 8, at 4. "It is quite
impossible to contemplate law as an isolated social phenomenon." Sheldon Amos,
A Systematic View of the Science of Jurisprudence, 18 (1872). "A complete
treatise of jurisprudence would deal fully with all three branches of the subject, i.e.
analytical, historical, and ethical." Salmond, op. cit. supra note 13, at 5.
1« And as such it is often cited by hostile critics as typical of the arid nature of
analytical studies.
17 E.g., Salmond's Jurisprudence is now in its 11th edition. Holland's Elements
went through 13 editions.
law that men have entertained from the time of Homer onwards. Into
this category fit the works of Paton,18 Stone,19 Friedman,20 Diaz and
Hughes,21 and Lloyd.22 These books are exercises in the potted history
of legal theory; in addition, many contain an attack on the value of
analytical studies as such. Julius Stone, The Province and Func-
tion of Law (1950) and several books by Professor Wolfgang Fried-
man,23 for example, roundly criticize analytical jurisprudence for having
nothing to contribute to the great social and economic changes that law
has dealt with in the Twentieth Century.
With this background in mind, we can let Professor Hart speak for
himself : 24
In 1952 when I became Professor of Jurisprudence at Oxford, I formed the

view that analytical enquiries into the nature of law and legal concepts had
come to a premature standstill. This was in part due to the perfectly legiti-
mate and beneficial diversion of juristic attention to the many problems pre-
sented by the fact that legal rules are vague at their periphery, and so, often
fail to determine uniquely a court's decision. Emphasis on this phenomenon
had led some jurists (the "rule skeptics") to doubt in more or less exaggerated
terms the very possibility of describing a legal system in terms of rules; others
had been stimulated to make perhaps more fruitful enquiries as to the criteria
which courts should use if reasonable decisions were to be given in various
situations when they were faced with what are in a sense "gaps" in the legal
system. Others still had seen that the rational treatment of problems of the
penumbra involves the consideration of purposes "behind" the law and had in-
voked the traditional terminology of Natural Law - sometimes also with some
of its traditional confusions- to express their views. . . . Yet it seemed
to me patent that questions remained concerning those facts of law which are
relatively stable and certain and which constitute the conceptional framework
of legal thought. . . . [Tļhese remained to be revealed by a more
patient enumeration of legal concepts and legal language with new tools and
with a new sensitivity to logical and linguistic distinctions.
This new sensitivity to logical and linguistic distinction was to come

from an appreciation of some important developments that had taken
place in British philosophy. Before briefly glancing at the nature of
those developments, one further thing needs to be said about Hart's
reaction to the recent trends in British jurisprudential writing. Not only
18 George W. Paton, A Textbook of Jurisprudence (1946).

19 Julius Stone, The Province and Function of Law (1946).
20 Wolfgang G. Friedmann, Legal Theory (1947).
21 Reginald W. M. Dias & Graham B. J. Hughes, Jurisprudence (1957).
22 Dennis Lloyd, An Introduction to Jurisprudence (1959).
23 Wolfgang G. Friedmann, Law and Social Change in Contemporary Britain
(1951) ; Law in a Changing Society (1959).
24s Hart, Analytical Jurisprudence in Mid-Twentieth Century: A Reply to Pro-
fessor Bodenheimer , 105 U.PaX.Rev. 953, 957-58 (1957).
is he convinced of the need for a renewed

but he is extremely critical of the brief
that have become so popular. In a review
Graham B. J. Hughes, Jurisprudence (1
. After the early circumnavigation of th
tours round the world of jurisprudence in 5
sary? . . . Would it not be better to make s
farther and deeper into a single territory?
What purpose can these tabloids (supplied in

one great writer) serve save that of enabling
himself into the third class by writing "short
. ?"
It goes without saying that the work of a man who holds these views
must confine itself to small areas that are examined in great detail. An
example is the 441-page analysis of the concept of legal causation that
Professor Hart, together with Professor Honore, published in 1959.a6
As we shall see, it is a characteristic of the whole of his writing.
At the end of the nineteenth century, Hegelianism ruled the philosoph-
ical roost in England.27 Men like Bradley, Bosanquet, and McTaggert
set themselves to discover philosophical truths about the universe as a
whole, about Reality in its ultimate nature. Their quest was vague, but
their ambitions grandiose. They sought the Absolute and pondered
such questions as, what is time? When McTaggert answered this ques-
tion by declaring that time was unreal, it so startled a young philosopher
named G. E. Moore that he began to question the very foundations of
Absolute Idealism, as this English Hegelianism was called. He found
the proposition "perfectly monstrous" as it was so much at variance
with common sense.28
Moore's studies showed him that philosophers had been embarking

upon grand searches for the answers to important-looking questions
25 Hart, Dias and Hughes on Jurisprudence , 4 J.Soc.Pub.Teach.Law (New Se-
ríes) 143, 147 (1958). In the preface to Herbert L. A. Hart, The Concept of Law
(1961), he has criticized the "belief that a book on legal theory is primarily a book
from which one learns what other books contain."
Hart has also questioned the value of books containing short extracts from the
works of the great theorists. "What good can one page of Hegel do any man?
Though some extracts may spark off a genuine interest, will not the presentation
of this vast and variegated array encourage a form of intellectual name-dropping
as base as its social counterpart? " Hart, Book Review, 77 Law Q.Rev. 123, 124-25
(1961).
2« Herbert L. A. Hart & Antony M. Honoré, Causation in the Law (1959).
27 For a lawyer, the most interesting accounts of the history of British philosophy
since the latter part of the nineteenth century are: Frederick V. Warnock, Eng-
lish Philosophy Since 1900 (1958) ; Urmson, James O., Philosophical Analysis ;
Its Development Between the Two World Wars (1956).
28 The Philosophy of G. E. Moore 14 (Schlipp ed. 1957).
without any consideration of the exact natur

were trying to answer.20 His philosophical tec
a monstrous proposition that someone had de
found question.30 He then analyzed the ques
precise nature and to show how its verbal for
trying to answer it. An example will illustra
expressions that are grammatically similar lik
and "It goes on to infinity". We can ask ques
pression such as, "What is London?", "Where
is London?". But if we ask the same question
bound to come up with absurdity. The similar
provides a strong temptation, but we must re
error.31
From this insight, that grammatical resemblances and contrasts may

be logically misleading, has stemmed the recent concern of British philos-
ophy with language. The thesis that grammatically respectable sentences
may be logically disreputable was taken up and developed by many dis-
tinguished philosophers in the years before World War II. The move-
ment was presided over by Ludwig Wittgenstein, an eccentric genius who
lived most of his life on the border of sanity.32 From his pen came
these cryptic utterances :33
4.003 Most questions and propositions of the philosophers result from the fact
that we do not understand the logic of our own language.
4.0031 All philosophy is "Critique of Language !"
Philosophy became a sort of suicidal discipline. It devoted itself

to dissolving the traditional questions of philosophy in linguistic acid
29 "it appears to me that in Ethics, as in all other philosophical studies, the diffi-
culties and disagreements, of which history is full, are mainly due to a very simple
cause: namely to attempt to answer questions, without first discovering precisely
what questions it is you desire to answer." G. E. Moore, Principa Ethica 222
(1908).
30 As the criteria of monstrosity was the degree to which a proposition affronted
common sense, Moore is often referred to as the "Common Sense Philosopher." A
non-philosopher should not take this at face value. For an example of a poet who
tried valiantly to understand Moore, and failed, see W. B. Yeats & T. S. Moore:
Their Correspondence (Bridge ed. 1953).
31 Remember in Through the Looking Glass when the King asks Alice whether
she can see his scouts?
" 'I see nobody on the road,' said Alice.
" 'I only wish I had such eyes,' the King remarked in fretful tone. 'To be able to
see Nobody! And at this distance too! Why iťs as much as I can do to see real
people by this light ! ' "
32 See for a pen picture of Wittgenstein, Von Wright, Ludwig Wittgenstein: A
Biographical Sketch , 64 Philosophical Rev. 527 (1955). As most of Wittgenstein's
writing was never published during his lifetime, it is difficult to gauge his in-
fluence. However, it seems generally agreed that he was a dominating figure in
British philosophy.
33 Ludwig Wittgenstein, Tractatus Logico Philosophicus (1922).
rather than solving them. Indeed, in 1932, Pr

that the main, if not the only, business of ph
of the sources in linguistic idioms of recurre
surd theories." 34
After 1945, the tone of this analytical philo

of philosophers at Oxford began to take an int
far beyond the dissolution of philosophical
all-out attack on the view that words either stated facts or described
emotions. This view had come from the writings of Bertrand Russell
and the logical positivists, represented in England by Professor A. J.
Ayer.36 Language, the Oxford group contended, performed many
additional functions. The meaning of words cannot be laid down in
advance by stating that they are either descriptive or emotive. One must
examine the role a word plays in its normal usage. When this is done,
the great variety of roles language performs stands revealed.
A few examples taken from the work of the late Professor J. L. Austin,
who seems to have been the dean of the Oxford group, will illustrate this
point. Professor Austin argues that when a person says, "I know it
is a goldfinch," he does far more than merely describe certain facts. A
person who says "I know" gives his word, or stakes his reputation, upon
the fact that it is a goldfinch. This differentiates the phrase from "I
think" or "I guess," for example. Similarly, when one says, "I promise"
to do something, he does more than describe his present mental intention.
He asks someone to rely on his word. Or to take another example, when
the words "I do" are said in the course of a wedding ceremony, they
perform an act rather than describe a fact. The same can be said of
"I name this ship the Queen Elizabeth." Professor Austin calls this
use of language "performatory utterance." 37
This sort of language study takes philosophy to the borders of philol-
ogy. In order to demonstrate the variety of uses of language, Professor
Austin and the Oxford group are very much concerned with the nuances
of meaning that separate similar words. Why for example, they ask,
do we use "deliberately" instead of "intentionally," "on purpose," "know-
34 Proceedings of tiie Aristotelian Society 1932-1933, 121 (1933).
35 Sea generally, Logic and Language (Flew ed., 1952) ; Alfred J. Ayer et AL.,
The Revolution in Philosophy (1953) ; Weitz, Oxford Philosophy, 62 Philosoph-
ical Rev. 187 (1953) ; Mehta, Onward and Upward with the Arts, New Yorker, De-
cember 9, 1981, p. 59.
36 Russell's early writings in this area were devoted to an attempt to discover
the basic components, or logical atoms, of the English language. These atoms would
state facts and all other words would be made up of them. On "Logical Atomism,"
as it was called, see James O. Urmson, Philosophical Analysis ; its Development
between the two World Wars (1956) ; Alfred J. Ayer, Language, Truth and
Logic (1936).
37 The most important of Professor Austin's papers have been collected and
posthumously published in John Langsiiaw Austin, Philosophical Papers (1961).
ingly," or 'Voluntarily" ? Conversely why

instead of "by mistake," "negligently," "inadv
ally" ? The reason why it is important to kn
us, is because 38
our common stock of words embodies all the distinctions men have
found worth drawing, and the connections they have found worth making,
in the lifetimes of many generations : these surely are likely to be more numer-
ous, more sound, since they have stood up to the longest test of survival of
the fittest, and more subtle, at least in all ordinary and reasonably practical
matters, than any that you or I are likely to think up in our armchairs of an
afternoon - the most favoured alternative method.
This new sensitivity towards language is reflected in several recent studies

not only of general philosophy,39 but also of ethics 40 and political sci-
ence.41 Professor Hart, who has been a leading member of the Oxford
group, has also applied it, as we shall see, to analytical jurisprudence.
II
The task of analytical jurisprudence, according to Professor Hart, is

to provide 48
. a clearer conspectus or map of those features of legal concepts

which differentiate them from ordinary, relatively well understood types of
concepts, and exhibits clearly their distinctive mode of functioning.
It is his belief that little progress will be made towards the understanding
of law and legal reasoning until the logical geography of legal language
has been mastered. Most of his work over the past ten years has consist-
ed of a series of variations on this central theme. We will examine
five of these variations here.
A. The Open Texture of Language

Like many other twentieth-century legal theorists, Hart has consist-
ently stressed the vagueness inherent in the use of language. An illustra-
tion he is fond of using to demonstrate the point is to suppose a legal
rule that forbids the taking of a vehicle into any public park. Plainly
this forbids an automobile, but what about bicycles, aeroplanes, toy auto-
38 id . at 130.
39 Gilbert Ryle, The Concept of Mind (1949).
40 Nowell-Smith, Ethics (1954).
41 Weldon, The Vocabulary op Politics (1953). This is a very disappointin
little book. •
42 Hart, Analytical Jurisprudence in Mid-Twentieth Century: A Reply to Profes-
sor Bodenheimer, 105 U.Pa.L.Rev. 953, 972 (1957).
mobiles, scooters, electric wheelchairs, or r

be treated as "vehicles" for the purpose of th
Fact situations do not await us neatly labelled, cre
legal classification written on them to be simp
stead, in applying legal rules, someone must take
that words do or do not cover some case in han
quences involved in this decision.43
This penumbra of uncertainty is characteri

language generally. No matter how clear t
phrase or rule seems, there is always a fringe
it.44 One of Professor Harťs Oxford colleag
has called this feature of language its "open
voidable price we must pay for the use of g
any form of communication. The jurispru
pecially in the United States, has been almost
these penumbral areas of the law. The "re
the wide discretionary powers wielded by
cases involving these questions. Others have
principles that would assist judges in reachi
All have agreed that the existence of such un
futility of analytical jurisprudence. John A
were accused of ignoring these obvious facts
ing that law was a self-contained science in
logically from preordained premises. It wa
disposition of penumbral questions could on
social, moral and economic considerations. The
factors on legal decisions became the focus
diction of how a court would decide cases,
study of the ingredients of judicial decisions.
Hart has defended Austin against this attack
extracts from his writings, that he was pe
texture of language.46 His defense, howev
Austin recognized, it is true, that wide areas
in the administration of English law at the be
century.47 But Austin thought this a grave d
43 Hart, Positivism and the Separation of Law and
607 (1958).
44 The only exception to this are the minutely defined concepts used in science
and mathematics.
45 Weismann, Verifiability, in Essays in Logic and Language 117 (Flew ed. 1952).
46 Hart, op. cit. supra note 43, at 608-15 (1958).
47 E.g., "I cannot understand how any person who has considered the subject can
suppose that society could possibly have gone on if judges had not legislated. . .
John Austin, The Province of Jurisprudence Determined 191 (Hart ed. 1954).
See also pp. 205, 207, 371.
the power of judges by codifying the law. He

of language probably made it impossible to abol
but he wanted to reduce it to the barest possibl
the other hand, sees in the open texture of lang
Mgal life, but also an ideal we should cherish
the question of its application to a particular
would be anathema to Hart. For Austin, it w
Put shortly, the reason is that the necessity for suc

because we are men, not gods. It is a feature of t
so of the legislative one) that we labour under two c
ever we seek to regulate, unambiguously and in ad
duct by means of general standards to be used witho
tion on particular occasions. The first handicap
fact : the second is our relative indeterminancy of a
The rule forbidding the taking of a vehicle in

serve to illustrate Hart's point. The languag
that the peace and quiet of parks is to be mai
cluding such things as motor cars, buses, and
as the general aim has not been put into conj
cases (electric wheelchairs, scooters, etc.) it
those cases arise, the question can only be se
between competing interests. The choice onc
initial aim and determine the meaning, for the
a word. This approach, according to Hart, is
adopt in a world where human invention and n
throw up such variants on the familiar. It do
very different attitude to Austin's and one n
that account.50
Holding these views, it is not surprising th

and Charybdis of juristic theory in "formalism
Formalism seeks to minimize the necessity for c
the meaning of rules. It seizes on certain feat
48 No code could ever be complete, but "it may be less i

law, and (if well constructed) free from the great def
in the latter." 2 John Austin, Lectures on Jurisprudence 666 (Campbell ed.
1885).
40 Herbert L. A. Hart, The Concept of Law 125 (1961).
50 The reason for Hart's spirited defense of Austin on this point in the Holmes
lecture, supra note 43, was to counter an argument that Austin's failure to recognize
the open texture of language weakened the merit of his strict separation between
fact and value. The question of what Austin thought of this phenomenon did not
really arise.
case and refuses to extend them no matter

of such a decision. This approach, Hart beli
. achieves a measure of certainty or p

blindly prejudging what is to be done in a rang
composition we are ignorant. We shall thus
but also in the dark, issues which can only
arise and are identified.
Rule skepticism in all of its varied forms doubts whether there are ever
clear cases of the application of legal rules. It goes to the opposite ex-
treme and at times insists that words have no core of meaning. All that
exists is the uncontrolled whim of a judge or some other official. Hart
dismisses this as being a complete exaggeration. As he puts it, occupa-
tion with the problems of the penumbra is one thing, but to be preoccupied
by it is quite another. He insists that all concepts have a paradigm, or
standard use, in the context in which they are found. Even concepts as
vague as "fair rate," or a "safe system," or "reasonable" will have this
hard core of meaning. For example, a power delegated by the legislature
to a board to fix "reasonable wages" for bus drivers will be clear at both
ends and vague in the middle. A wage that is not enough for the drivers
to live on will be as unreasonable as a wage that is so high that it keeps
them in luxury. The meaning of the word "vehicle," on the other hand,
is fixed in the middle and vague at the edges.52
Professor Hart is, therefore, very conscious of the fringe of vagueness
that surrounds all legal rules. His interest, however, is not so much
in observing the manner in which these problems of the penumbra are
resolved, but in demonstrating the fact that analytical jurisprudence is
not antagonistic to such studies. Indeed, he has suggested that the
analyst has an important task to perform in this area. The analyst can
establish the features of a rule or concept that constitute its paradigm case
and then examine the various motives that incline us one way or the
other in dealing with the borderline case. It is not enough, Hart believes,
for the analyst to excuse himself when core ends and the penumbra
begins. Legal reasoning in penumbra areas is not an arbitrary hunch.
The analyst needs to show the varied types of reasoning that courts use
51 Herbert L. A. Hart, The Concept of Law 126 (1961). "Decisions made in

a fashion as blind as this would scarcely deserve the name of decisions. . . ."
Hart, op. cit. supra note 43, at 611.
52 Professor Fuller seems to have challenged this theory of the paradigm case in
his article, t Positivism and Fidelity to Law - A Reply to Professor Hart , 71 Harv.
L.Rev. 630, 661-69 (1958). I can't say that I understand Fuller's point very clearly,
but if he challenges the view that a legal rule must have at least some definite
instances I think he is wrong. See Stoljar, More Thinking on Law and Morals , 1961
Current Legal Problems 140, 149 n. 10; Tammelo, On the Lawyer9 s Search for
Contract with the Philosopher , 13 J.Legal Ed. 441, 445, n. 15 (1961).
in exercising the creative function left to them b

law. As he puts it : 53
I doubt if the answer in most cases is simply that

moral principles. This does not do justice to the c
conceals the multiplicity and variety of independ
suffice to support a single decision though separatel
reveal that when "ethical" principles are invoke
the received ideals of the legal system ; it sugges
ethical or political principles are generally detailed
. ; it hides what is revealed by the actual desc
such cases as having "weight" or "force" (deductiv
viz,, that the judge does in the end weigh (albeit
under many influences) conflicting consideration
of convenience, conceptions of the object of part
ogies with other branches of the law, and is not sim
principles.
Professor Hart has shown the kind of contribut

make in the monumental study of the causation
collaboration with his Oxford colleague, Pro
work, the authors trace, with meticulous detail
mon law courts have handled the concept. Th
the view that judges merely use causal langu
judgments of policy. They demonstrated tha
that in fact, serviceable commonsense principle
deal with most of these questions.
B. Ambiguity
Words are not only vague; they are someti
to say, they have more than one well-settled us
leaves his vessels to his son. If the question is w
flying boat, it is the vagueness of "vessel" t
trouble; but if the question is whether the beque
boats or his drinking cups, ambiguity is resp
guage generates many problems. It tempts u
for just one thing or quality for which a wo
In this situation, Professor Hart views the f
the examination of different usages in order to
are linked by varying relationships to some c
ra Hart, Symposium: Definition and Theory in Jurisprudence , in Proceedings of

the Aristotelian Society (Suppl. Vol. 29) 239, 261 (1955). What a horrendous sen-
tence!
54 Herbert L. A. Hart & Antony M. Honoré, Causation in the Law (1959).
gued that such concepts as justice and righ

as a result of such analysis.
Hohfeld, while not purporting to be exhausti
ways in which lawyers use the word "right/'
he proposed to distinguish these meanings we
and immunity.55 His approach constituted a g
much previous confusion. Hart, however,
left off; he has tried to show why these four
ally referred to as "rights." He argues that
radiate from one focal point - namely, t
choice : 56
The unifying element seems to be this : in all four cases the law recognizes the
choice of an individual either negatively by not impeding or obstructing it
(liberty and immunity) or affirmatively by giving legal effect to it (claim and
power). In the negative cases there is no law to interfere if the individual
chooses to do or abstain from some action (liberty) or to retain his legal posi-
tion unchanged (immunity) ; in the affirmative cases the law gives legal effect
to the choice of an individual that some other person shall do or shall abstain
from some action or that the legal position of some other person shall be
altered.
Other concepts have a structural complexity that, when understood,

explains the surface variety of their usage. The idea of winning a game
is a simple example. A definition of this term might be winning more
points than an opponent in a competitive game. The rub, of course, is
that what constitutes points will vary with every different game played.
Hence, in understanding the idea of winning a game, we need to distin-
guish between a definition and the criteria for its application. The one
is static, while the other varies from game to game. Professor Hart has
used this method of analysis to elucidate some of the problems surround-
ing the concept of justice.57
He argues that of all the forms of moral criticism we employ, justice
has a special characteristic of its own. This may be seen in our reaction
to a man who has been found guilty of extreme cruelty to his child.
We would say that he had committed a moral wrong, that he was bad
or wicked, but not that he was unjust. The term "unjust" would become
appropriate if he had arbitrarily selected one of his children for more
brutal punishment than the others who had done precisely the same thing.
55 Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied

in Judicial Reasoning and Other Legal Essays (1920).
5® Hart, Definition and Theory in Jurisprudence , 70 Law Q.Rev. 37, 49 n. 15 (1954).
See also Hart, op. cit . supra note 42, at 968-70.
57 Hart's analysis of justice is to be found in chapter 8 of The Concept of Law
(1961).
The same is true of legal criticism. Justice

time with the way classes of individuals are tr
or burden falls to be distributed among th
compensation is claimed for some injury. Th
of the concept, but once this central idea is un
will be seen to derive from it. Professor Hart formulates the central
idea as being, "Treat like cases alike and different cases differently.,,
This must be supplemented by shifting criteria which will tell you
whether for any given person, cases are alike or different.
When the application of law to particular cases is the subject under
discussion, the resemblances and differences that are relevant are deter-
mined by the law itself. To say that a law is justly applied merely
means that it is impartially applied to all violators. Thus a hideously
immoral law can be as justly applied as a good one. However, when we
criticize a law itself as being just or unjust, there is great room for
dispute. Differences in political and moral opinions may lead to irrecon-
cilable disagreement as to what factors are relevant for the criticism of
law in terms of justice.
Professor Hart develops this analysis with a wealth of detail that
cannot be reflected here. The important thing, however, is to get a
taste of his methodology. His search is not for some common essence,
or form, that can be used as an answer to the question, "What is justice ?"
Rather he is examining the types of conditions in which we use the
just/unjust dichotomy to discover whether or not they are in some
way related to a central principle. This is very different inquiry. The
benefit to be derived from such an analysis is, of course, to dispel the
confusion created by the lingering temptation to treat the word "justice"
as having the same meaning in different contexts. It allows us to see
that the only relationship the usages of the word have to each other
is a varying relationship to a central principle.
C. The Ascriptive Character of Legal Concepts
Professor Hart has pointed out that when we say about a man that
he " trespassed on Smith's land," or " raped Molly Brown," or "owns an
apartment building," we are doing more than merely describing certain
facts. That is to say, we are not just stating that a man walked across
Smith's land without his permission, or that a particular name appears
on a certificate of title. In the one case, we are assigning responsibility
to him for his action and in the other we are attributing a right to him
in respect of the apartment building. Being ascriptive, these concepts
are also defeasible. To an allegation of rape, for example, it might
be said that the act was done under duress, while sleepwalking, or in
an insane fit. If the Internal Revenue Se

apartment building, he might argue that t
his vendor had no good title to pass, and
ascription and defeasibility are characte
concept.58
An important consequence of the defea

that they cannot be defined in terms of a s
conditions. This form of definition, acc
obscures their true character. A contract,
fined by saying that it requires at least
acceptance by the other, a memorandum
consideration. These conditions, althoug
sufficient because of the polyglot group of
contract, make it voidable, or extinguish
ceedings. As a result, Hart says : 59
It is plain, therefore, that no adequate characte

a contract could be made without reference to
defenses and the manner in which they respec
claims in contract. The concept is irreducib
ignore this is to misrepresent it.
It is, of course, possible to show "obstin

logical ideal and try to define concepts l
wisp of a general formula." Sir Frederic
when he tried to lump together various co
tional requirement for the existence of a va
of the parties be "true, full and free."
misleading" because it is only accurate w
reference to certain defenses. However,
a "spurious unity" by suggesting that ce
are required as the necessary conditions
not require a plaintiff to prove both his ow
58 Hart, The Ascription of Responsibility and Rights , in Proceedings of the Aris-

totelian Society 1948-3949, 371 (1948-51). Reprinted in Essays in Logic and Lan-
guage, 145 (Flew ed., 1952). Hart's major concern in this paper is to argue that these
characteristics of legal concepts are also found in normal verbs of action, like "I
did", "you did it", "he did it", and that consequently they are primarily utterances
with which we admit liability, make accusations, or ascribe responsibility. This as
he admits is a very controversial thesis, and it has not gone uncriticized. See Mackie,
Responsibility and Language , 33 Australian J. of Philosophy 143 (1955); Stol-
jar, Ascriptive and ' Prescriptive Responsibility , 68 Mind 350 (1959); Pitcher, Hart
on Action and Responsibility , 69 Philosophical Rev. 226 (1960). We are not
concerned here to discuss this aspect of Hart's paper. His thesis is certainly true-
in regard to most legal concepts.
59 Hart, op. cit. supra note 58, at 176, 150.
60 Frederick Pollock, Principles of Contract 442 (10th ed. 1946).
16 Journal of Legal Ed.No.4 - 2
ble defenses. If the defenses are not pleaded,

timeless sense of "is" appropriate to judicial d
negative defenses into positive conditions in
legal concepts in terms of necessary and suffici
mistake. The fact that legal concepts are defeasi
of definition from legal discourse.
In a series of recent papers, Professor Hart ha
tion of the ascriptive character of legal concept
damental questions of criminal responsibilit
contended that before an act can be treated as
of strict liability, it must be voluntary. By thi
must the actor have performed certain musc
that he must have willed them to have happene
lar contraction, plus an act of will, equalling a v
through Holmes,63 to Austin.64 Hart thinks
unsatisfactory theory because it ignores the asc
concept of action by defining it in purely descri
why St. Vitus's dance, physical compulsion,
automatism, and the rest, are treated as com
the actor lacks the ability to control his actions
of ability to control is always a good defense to
bility. Once this is perceived, all of the diffic
perienced in explaining an act of omission in te
traction plus an act of will vanish.66
Many English and American criminal lawye
ingly uneasy about negligence as a basis of crim
argue on many grounds that criminal punishme
on the basis that the actor thought that harm m
If he was inadvertent to the possibility of h
be held criminally responsible. Professor Har
a failure to perceive the distinction between a d
61 Hart, op. cit. supra note 57 at 182, 156.

62 See Legal Responsibility and Excuses. Determinism and Freedom 81 (Hook
ed., 1958) ; Acts of Free Will and Responsibility , in University op Sheffield, The
Jubilee Lectures of the Faculty of Law 115 (Marshall ed. 1960); Negligence ,
Mens Rea and Responsibility , in Oxford Essays in Jurisprudence 29 (Guest ed.
1961).
63 Oliver Wendell Holmes, The Common Law, 55 (1881).
64 John Austin, Lectures on Jurisprudence , in Lectures 18-19 (Campbell ed. 1885).
65 Hart, Acts of Free Will and Responsibility , op. cit. supra note 62.
66 The difficulty under the willed muscular contraction theory is that in an omis-
sion there is no muscular contraction, so how can there be an act !
67 See e.g., Jerome Hall, Principles of Criminal Law 149, 166-67 (1947) ;
Glanville L. Williams, Criminal Law 98-99 (1956) ; Turner, The Mental Ele-
ment in Crimes at Common Law , in The Modern Approach to Criminal Law 195
(1945).
tive concept.68 We punish a negligent m

but because it failed to measure up to a
a descriptive term at all. Take, for exam
on a roof tossing tiles down into a stre
that people are walking along that street, b
a pedestrian. It is not morally wrong to pu
blank. His negligence was gross and des
because the precautions he could have tak
What is crucial, Hart says 69
. is that those whom we punish should
normal capacities, physical and mental, for d
abstaining from what it forbids, and a fair o
pacities.
The issue, then, is not one of blank minds, but of a failure to "advert
to, and to think about and control, conduct and its risks." 70 This can
only be appreciated when the defeasible nature of criminal concepts is
recognized.
D. The Operative Use of Legal Concepts

Lurking behind the questions, "What is possession?" or "What is
a right?" is the suggestion that the type of answer they demand is the
specification of something or quality for which the word stands. This
form of question is innocuous enough when asked of concepts like a
chair, the color blue, or a cat, because they are directly aligned to some-
thing that has a factual existence. But when the "What is X" form
of question is asked of legal concepts, Professor Hart believes only
confusion can result. The reason for this is that words like corporation,
right, and duty do not have a 71
straightforward connection with counterparts in the world of fact

which most ordinary words have and to which we appeal in our definition of
ordinary words. There is nothing which simply "corresponds" to these legal
words and when we try to define them we find that the expressions we tender
in our definition specifying kinds of persons, things, qualities, events, and
processes, material or psychological, are never precisely the equivalent of these
legal words though often connected with them in some way.
Hart supports his view that the "What is X" form of question has led
analytical jurisprudence down blind alleys by what he calls the "familiar
triad" of answers given by analysts. Take as an example the question,
68 Hart, Negligence , Mens Rea and Responsibility , op. cit. supra note 62.
id. at 45.
to id. at 49.
Hart, Definition and Theory in Jurisprudence , 70 Law Q.Rev. 37 (1954).
"What is a right ?" The American Realists, a

plain fact, say that a right is a prediction of of
dinavian school states that a right is only an ide
inary power and nothing real at all. Yet anoth
a right is an "objective reality" - a sort of invis
from the behavior of men. Hart says this triad
ysis of legal personality, status, and innumerab
ming up in this way :72
Theories of one type tell us that a word stands f

of the familiar - a complex fact where we expec
simple, a future fact where we expect somethin
fact where we expect something external : theories
that a word stands for what is in some sense a f
(now unfashionable) type, tell us the word stand
from other things just in that we cannot touch it, h
The technique Hart suggests for avoiding th

cepts mean or stand for is to look at the functi
the operation of a legal system. This would di
fact that law is composed of rules and that con
with rules have distinctive characteristics tha
mind. Games and law are alike in this respec
fessor Hart draws so heavily on analogies fr
or card games. They illustrate in a simple w
rule-dependent concepts operate. Those wh
use of the game analogy completely fail to ap
gested technique for elucidating legal concept
which the concept has a characteristic use an
standard conditions in which it would be tr
as an example. A characteristic use of the sta
to be paid $20 by B" The first thing to notice
that it assumes the existence of a legal system.
a special connection with a particular rule of th
itself does not state either of these things. W
to perform a simple legal calculation : it record
cation by the speaker of a particular rule of a l
of a particular case.
Two other features of rule-dependent concept
The first is the different status that a stateme
be paid $20 by B," has when said by a judge
court. The judge's statement has an effect t
possess. Both, however, are conclusions of
72 Id. at 39 n. 2.
is that rules might attach identical consequ

A rule of baseball, for example, attache
being tagged, struck out, or caught. No
essentially what the word "out" means t
an important feature of rule-dependent
overlooked. Professor Hart suggests som
gard to possession and legal personality spr
ciate it. The distinctions between "possessio
possession" and the same dichotomy in reg
to be based on an attitude that certain w
are more "out" than others.
The critical point in all of this is that legal concepts do not stand for
anything. They do not state facts. Instead they are used to do some-
thing. A more dramatic example of this is to be found by comparing
the operative words of a conveyance with the descriptive words of
the recitals. The former operate with legal rules and do not describe
facts. They create obligations, confer and transfer rights, and bring
about legal changes. The same is true of the words "I hereby be-
queath" in a will, or "It is hereby enacted" in a statute. In these ex-
amples, the words are being used to do something to which a rule attaches
legal consequences. In our earlier example of "A has a right to be
paid $20 by 5," the person saying it was operating with a rule in a
different way. He was drawing a conclusion. It need hardly be said
that this technique of elucidation is completely neutral between all com-
peting value theories. Professor Hart is concerned to demonstrate
the function that legal concepts perform and not to defend or advance
any theories as to what content they should have.
E. The Internal Aspect of Legal Rules

One of the central theses of Professor Hart's recent book, The Concept
of Law, is that without an appreciation of the internal aspect of legal
rules, little progress will be made in understanding how law functions in
a society. He even goes so far as to say : 73
Indeed, until its importance -is grasped, we cannot properly understand the
whole distinctive style of human thought, speech, and action which is involved
in the existence of rules and which constitute the normal structure of society.
In order to appreciate what Hart means by the internal aspect of rules,

let us take an example he uses from the game of chess. Chess players
have far more than similar habits of moving a knight in a certain way.
A habit is something that we do without any thought about whether our
?3 Herbert L. A. Hart, The Concept of Law 86 (1961).
conduct is good, bad, or indifferent. Chess

common reflective, critical attitude towards th
the knight should be moved in a standard w
the game. If someone tries to move the kni
then certain demands for conformity would
guage would be employed, like "you mustn't do
and so forth. This language of "must," "sho
shows that people accept the rule as binding.
The acceptance of rules is a far more sophisti
a mere habit. It is also a far more complex phe
to rules for fear that some sanction will be im
Obedience to rules is a far more passive thin
the law, obedience will be seen in the follow
obliged to do it," "I am likely to suffer for
will do that to you if. . . ." This languag
person who rejects the rules and only obeys the
tion will subject him to some sanction. Peo
use them very differently. Professor Hart tells
These are the officials, lawyers, or private persons
tion after another, as guides to the conduct of
claims, demands, admissions, criticism, or punishm
transactions of life according to rules. For them th
merely a basis for the prediction that a hostile res
for hostility.
Professor Hart uses the phrases "external asp
nal aspect of rules" to distinguish between obe
ance of rules. He is aware that at any given
is likely to be living in a tension between thos
those who reject them in whole or in part.7
idea of acceptance is a very complex social fact
up until now has been overlooked in juristic
by which Hart came upon it was a classic app
of the late Professor J. L. Austin to who
adverted. Here was a factual distinction that had become embedded in
linguistic usage. Hart did not track it down by empirical research, but
by an examination of its reflection in our language.76
w/d. at 88.
75 He even goes so far as to say that it is enough to constitute a legal system
of the citizens merely obey the laws, as long as the officials of the system accept
and use the system's criteria of legal validity. That is, of course, if they can ef-
fectively subjugate the populace. See The Concept of Law 113-14. Hart argues
however, that in most systems the bulk of the populace will accept the rules too.
Certainly this will be the case in a healthy system. See id. at 114 et seq.
76 gee J. L. Austin, The Providence of Jurisprudence Determined 8 (Hart Ed.
1954).
Professor Hart has argued at some length in

any legal theory that overlooks the internal
able to do justice to the facts. Such a theory
ways in which rules of law are used in a societ
in ways that never come before a court of la
Laws function in their lives not merely as habits
decisions of courts or the actions of other officia
ards of behavior. That is, they not only do with t
law requires of them, but they look upon it as
refer to it in criticizing others, or in justifyin
criticism and demands made by others.
This belief leads him to think that a better view of the social character
and function of law may be had through the eyes of a "goodman" rather
than Holme's "badman." It will be remembered that in a famous address,
Holmes advised law students to look at law as a prediction of what
courts would do when rules were broken.78 Professor Hart takes almost
an opposite position. He claims that 79
The principal functions of the law as a means of social control are not to be
seen in private litigation or prosecutions, which represent vital but still ancil-
lary provisions for the failures of the system. It has to be seen in diverse
ways in which the law is used to control, to guide, and to plan life out of court.
In The Concept of Law , Professor Hart uses the internal aspect of legal
rules as a central point in his persuasive criticisms of the legal theories
of Austin, Kelsen, and the American Realists. It is also a fundamental
ingredient in his own attempt to isolate and characterize a central set of
elements that will allow an improved analysis of the distinctive structure
of a legal system and its component parts.
Ill
The five aspects of legal rules and concepts that have just been exam-
ined will suffice to convey a general impression of the nature of Pro
fessor Harťs jurisprudential inquiries. It should be noticed that each
of the five inquiries are neutral in that they merely record facts about
legal language and do not concern themselves with questions of value.
Hart, for example, makes no attempt to tell us how judges ought t
decide particular cases, nor does he outline any method of evaluating
the operation of particular rules of law or of a whole legal system.
His major concern is to present a neutral analysis based on certain
TX Herbert L. A. Hart, op. cit. supra note 73, at 134.

78 Holmes, The Path of the Law , 1 Harv.L.Rev. 457, 459 (1897).
w Herbert L. A. Hart, op. cit. supra note 73, at 39,
inescapable facts about language and the way

concepts are actually used in a society.
These studies have led Hart to the conclusion
plex phenomenon, indeed. And yet, a recogn
was the very thing he found missing in the cl
he believes, is far more than a command of a s
of official action, or the primary norm that s
is all of these things and a good deal beside
classic legal theories is that they all try to r
form. As he says, "the itch for uniformity in j
This passion against reductionism is as centr
was to that of his philosophical mentor, the la
It can be summed up in one of the latter's pre
things, it's philosophers that are simple." 81
Because Hart's own studies have been prima
tral analysis, he is sometimes accused of reje
theorist ought to be concerned with questions
has been fixed with the view that law is a c
discipline that needs no recourse to other bo
proper operation.83 Indeed, in some quarters, h
something of a moral monster.84 None of this
truth. Most of Professor Hart's papers conta
utilitarian moral philosophy that give the li
concerned with questions of value. People m
so Id. at 32. "They (the classical theories) throw a light which makes us see
much in law that lay hidden ; but the light is so bright that it blinds us to the re-
mainder and so leaves us still without a clear view of the whole." Id. at 2.
81 John L. Austin, Philosophical Papers 239 (1961). To bring this message

home to legal theorists may be regarded as one of the major tasks Hart set himself
in 1952 when he became Professor of Jurisprudence at Oxford. As he said, "The
importance of preserving the distinctions marked by normal terminology and re-
sisting the reduction of the variety of different types of legal rules to a single type
. . . had never been clearly or convincingly stated ; and yet the logical and other
motives inspiring oversimplification or reduction needed to be explored before it
could be said that we had really understood even those parts of a legal system which
are relatively fixed and stable." Hart, Analytical Jurisprudence in Mid-Twentieth
Century , 105 U.Pa.L.Rev. 953, 959 (1957). See also Hart's attack on the reduction
of symbolic logic in Hart, A Logicians Fairy Tale , 60 Philosophical Rev. 198 (1951).
82 E.g., Auerbach, On Professor Hart's Definition and Theory in Jurisprudence , 9
J.Legal Ed. 39 (1953) ; Macguigan, Law , Morals and Positivism , 14 U. Toronto
L.J. 1, 20ff.
83 E.g., Bodenheimer, Modern Analytical Jurisprudence and the Limits of its Use-
fulness , 104 U.Pa.L.Rev. 1080 (1956).
84 E.g., Fuller, Positivism and Fidelity to Law - A Reply to Professor Hart, 71
Harv.L.Rev. 630 (1958). "There is something sub-human about a positivistic juris-
prudence." Macguigan, supra note 82 at 28.
teria of value, but that is an altogether d

to say that the major focus of his work is
But this certainly does not mean that he is
writers whose major focus is evaluative
the question whether law is a self-contain
such a view would be "quite fantastic" and
. even in England, even in Oxford, w
view that law for its proper functioning - whi
sions rendered by the courts are to be satisfac
course to other disciplines than law.
Another frequent criticism of Hart's in

with words and completely ignoring th
once answered such a criticism by using the
Suppose a man to be occupied in focusing th
lying in the harbor some distance away. A f
"Are you concerned with the image in the glas
well advised) the other would answer, "Both
image in the glass with the battleship in ord
me that similarly in pursuing analytical in
awareness of what we talk about when we u
Of far more importance than these crit

complete failure to understand what Har
Jonathon Cohen's that these analytical inqu
gone wrong, but not how to go right.8
puts it : 89
No amount of logical or semantic refining can eliminate the value choice be-
tween different policies, whether in the interpretation of a statute or in the
application of a common law precedent to the case at hand.
85 Time and time again in his writings on criminal responsibility Hart argues
that it is morally wrong to punish a man who couldn't control his actions. He has
stated at length his opposition to capital punishment in Hart, Murder and the Princi-
ples of Punishment: England and the United States , 52 Nw.U.L.Rev. 433 (1957). He
has even argued that all men have a natural right to he free. See Hart, Are there
any Natural Rights t 64 Philosophical Rev. 175 (1955).
86 Hart, Analytical Jurisprudence in Mid-Twentieth Century , 105 U.Pa.L.Rev.
953, 955 (1957). Later in the same paper he said, "I agree that there can and should
be no absolute severance of analytical enquiries from consideration of bodies of em-
pirical knowledge relevant to the criticism of social or legal institutions." Id, at
973.
87 Id. at 967.
88 Cohen, Symposium: Definition and Theory in Jurisprudence , Proceedings of
the Aristotelian Society (Supp. Vol. 29) 215, 238 (1955).
89 Friedmann, Legal Philosophy and Judicial Law Making, 61 ColumX.Rev. 821,
523 (1961). See also Bodenheimer, Analytical Positivism , Legal Realism , and the
Future of Legal Method , 44 Va.L.Rev. 365 (1958).
402 Journal öf Legal Education [Vol. 16
It seems to me that there can be no answer to these observations that

analytical jurisprudence only sets the stage, as it were, for the theory
of legal values. I am almost certain that Professor Hart, too, would
acknowledge this to be the case. Every legal question has two sides. The
first is formal or analytical, and is concerned with the logic of the law.
The second is evaluative and must take into account whatever knowledge
we can glean from other disciplines - history, politics, ethics, econom-
ics, and the rest. If either side is ignored, then only confusion and dis-
tortion can result. Analytical jurisprudence would degenerate into bar-
ren scholasticism, and value theories would lack a sound basis in the
very discipline they purport to be about. Professor Hart would not
claim that his studies were the end-all of legal theory, although I fancy
he might claim that they are the begin-all.
1964] Appendix 403
APPENDIX
The Major Writings of Herbert L. A. Hart
Austin, The Province of Jurisprudence Determined (Hart ed.

1954).
Herbert L. A. Hart & A. M. Honoré, Causation in the Law
(1959).
Herbert L. A. Hart, The Concept of Law (1961).
Herbert L. A. Hart, Law, Liberty, and Morality (1963).
Hart, The Ascription of Responsibility and Rights, in Proceedings of
the Aristotelian Society 1948-1949, 171. Reprinted in Essay
in Logic and Language 145 (Flew ed. 1952).
Hart, A Logician's Fairy Tale, 60 Philosophical Rev. 198 (1951).
Hart, Philosophy of Law and Jurisprudence in Britain (1945-1952), 2
AM.J.Comp.L. 355 (1953).
Hart, Definition and Theory in Jurisprudence, 70 L.Q.Rev. 37 (1954).
Hart, Are there any Natural Rights?, 64 Philosophical Rev. 175
(1955).
Hart, Symposium: Definition and Theory in Jurisprudence, in Proceed-
ings of the Aristotelian Society, Supplementary Volume 29,
239 (1955).
Hart, Book Review: Kelsen, The Communist Theory of Law, 69 Harv.
L.Rev. 772 (1956).
Hart, Should the Death Penalty Be Abolished?, 55 The Listener 87
(1956).
Hart, Analytical Jurisprudence in Mid-Twentieth Century: A Reply to
Professor Bodenheimer, 105 U.PaX.Rev. 953 (1957).
Hart, Murder and the Principles of Punishment: England and the United
States, 52 Nw.U.L.Rev. 433 (1957).
Hart, Decision, Intention , and Certainty, 67 Mind 1 (1958).
Hart, Dias and Hughes on Jurisprudence, 4 J.Soc.Pub.T.L. 143 (1958).
Hart, Positivism and the Separation of Law and Morals, 71 Harv.L.Rev.
593 (1958).
Hart, Legal and Moral Obligation, in Essays in Moral Philosophy 82
(Melden ed. 1958).
Hart, Legal Responsibility and Excuses, in Determinism and Freedom,
81 (Hooded. 1958).
Hart, Scandinavian Realism , 1959 Cam.L.J. 23

Hart, Immorality and Treason, 62 The Listen
Hart, Prolegemenon to the Principles of Punish
of the Aristotelian Society (N.S.) 1959-
Hart, Acts of Free Will and Responsibility,
field, The Jubilee Lectures of the F
(Marshall ed. 1960).
Hart, Negligence, Mens Rea and Responsibili
Jurisprudence, 29 (Guested. 1961).
Hart, The Use and Abuse of the Criminal La
(1961).
Hart, Kelsen Visited, 10 U.C.L.A. L.Rev. 709

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PROFESSOR HART AND ANALYTICAL JURISPRUDENCE

PROFESSOR HART AND ANALYTICAL

song of analytical jurisprudence," 3 while oth

In order to appreciate the impact and gauge

When John Austin died in 1859, he bequeathed two fundamental

3 Bodenheimer, Modern Analytical Jurisprudence and the Limits of its Usefulness,

jurisprudential writing. The books writt

The purpose of analytical jurisprudence is to an

Although these men directed their energies

After the appearance of Salmond's boo

With the publication of C. K. Allen, Law in the Making (1928),

8 William Markby, The Elements of Law (1871).

In 1952 when I became Professor of Jurisprudence at Oxford, I formed the

This new sensitivity to logical and linguistic distinction was to come

18 George W. Paton, A Textbook of Jurisprudence (1946).

is he convinced of the need for a renewed

What purpose can these tabloids (supplied in

Moore's studies showed him that philosophers had been embarking

without any consideration of the exact natur

From this insight, that grammatical resemblances and contrasts may

Philosophy became a sort of suicidal discipline. It devoted itself

rather than solving them. Indeed, in 1932, Pr

After 1945, the tone of this analytical philo

ingly," or 'Voluntarily" ? Conversely why

This new sensitivity towards language is reflected in several recent studies

The task of analytical jurisprudence, according to Professor Hart, is

. a clearer conspectus or map of those features of legal concepts

A. The Open Texture of Language

mobiles, scooters, electric wheelchairs, or r

This penumbra of uncertainty is characteri

the power of judges by codifying the law. He

Put shortly, the reason is that the necessity for suc

The rule forbidding the taking of a vehicle in

Holding these views, it is not surprising th

48 No code could ever be complete, but "it may be less i

case and refuses to extend them no matter

. achieves a measure of certainty or p

51 Herbert L. A. Hart, The Concept of Law 126 (1961). "Decisions made in

in exercising the creative function left to them b

I doubt if the answer in most cases is simply that

Professor Hart has shown the kind of contribut

ra Hart, Symposium: Definition and Theory in Jurisprudence , in Proceedings of

gued that such concepts as justice and righ

Other concepts have a structural complexity that, when understood,

55 Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied

The same is true of legal criticism. Justice

C. The Ascriptive Character of Legal Concepts

an insane fit. If the Internal Revenue Se

An important consequence of the defea

It is plain, therefore, that no adequate characte

It is, of course, possible to show "obstin

58 Hart, The Ascription of Responsibility and Rights , in Proceedings of the Aris-

ble defenses. If the defenses are not pleaded,

61 Hart, op. cit. supra note 57 at 182, 156.

tive concept.68 We punish a negligent m

D. The Operative Use of Legal Concepts

straightforward connection with counterparts in the world of fact

"What is a right ?" The American Realists, a

Theories of one type tell us that a word stands f

The technique Hart suggests for avoiding th

is that rules might attach identical consequ

E. The Internal Aspect of Legal Rules