Morality and the Law

Punishment and Responsibility: Essays in the Philosophy of Law

by H.L.A. Hart
Oxford, 284 pp., $2.50 (paper)

H. L. A. Hart became Professor of Jurisprudence in Oxford in 1952, and since that time he has dominated and transformed legal theory. He has persuaded a generation of academic lawyers to face issues of legal and moral principle that their predecessors had ignored, and to attack these issues with the precision and skills of contemporary moral philosophy. I shall try to explain what these issues of principle are, and why Hart’s work has made so great a difference, but in order to do so I must describe the subject of jurisprudence itself, and the theories of jurisprudence that held the field at the time Hart began.

When lawyers argue cases, or advise clients, or draft laws to meet specific social goals, they face problems that are technical, in the sense that there is general agreement within the profession as to what sort of argument or evidence is relevant. But sometimes lawyers must deal with problems that are not technical in this sense, and there is no general agreement on how to proceed. One example is the ethical problem that is presented when a lawyer asks, not whether a particular law is effective, but whether it is fair. Another example is the conceptual puzzles that arise when lawyers try to describe the law in concepts that are unclear. A lawyer may want to say, for instance, that the law of torts holds men liable only for damage caused by their faults. Another lawyer may challenge this statement, and the issue between them may be a disagreement not about fact or doctrine, but about what fault means. Or two lawyers may disagree whether the Supreme Court, in the 1954 segregation case, was following established principles or making new law; and the issue between them may turn on what principles are and what it means to apply them. It is unclear how conceptual issues like these are to be resolved; certainly they lie beyond the ordinary techniques of the practicing lawyers.

Lawyers call these recalcitrant questions “jurisprudential,” and they disagree, as one would expect, on whether it is important to resolve them. Law schools generally provide special courses, called “Jurisprudence” or “Legal Theory” or something of the sort, devoted to their study, but since the distinguishing mark of these issues is just that there is no agreement on what sort of issues they are, and what techniques of study they require, these courses vary widely in the methods they use. The method chosen, moreover, influences the choice of the particular issues selected for study, though this choice is also affected by intellectual fashion and public affairs. Just now, for example, the question of whether men have a moral obligation to obey the law figures prominently in jurisprudence courses throughout the country; but a decade ago almost no one mentioned that issue.

In the 1950s, the dominant approach to jurisprudence in England and America was what one might call a professional approach. The lawyers who taught jurisprudence recognized that jurisprudential questions, like …

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