Punishment and Responsibility: Essays in the Philosophy of Law
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 those I have listed, were troublesome just because they were not amenable to ordinary legal techniques; but they proposed nevertheless to meet this difficulty by picking out those aspects of the questions that could be treated with these techniques while ignoring the rest. When lawyers deal with the technical questions I mentioned, they use a combination of three particular skills. Lawyers are trained to analyze statutes and judicial opinions to extract legal doctrine from these official sources. They are trained to analyze complex factual situations in order to summarize the essential facts accurately. And they are trained to think in tactical terms, to design statutes and legal institutions that will bring about particular social changes decided upon in advance. The professional approach to jurisprudence tried to reformulate jurisprudential issues so that one or more of these skills could be brought to bear. This approach produced only the illusion of progress, and left the genuinely important issues of principle in the law untouched.
To sustain this serious charge I must describe where jurisprudence stood at mid-century. In England the subject was taught out of standard textbooks like Salmond on Jurisprudence and Paton on Jurisprudence. Most of these texts were devoted to what they called analytical jurisprudence, which they carefully distinguished from “ethical jurisprudence,” or the study of what the law ought to be. By analytical jurisprudence they meant the careful elaboration of the meaning of certain terms (like “fault,” “possession,” “ownership,” “negligence,” and “law”) that are fundamental to law in the sense that they appear not just in one or another branch but throughout the range of legal doctrine. These concepts, like those I mentioned earlier, are troublesome because lawyers use them even though they do not understand exactly what they mean.
But the English texts attacked these concepts, not by elucidating their meaning in ordinary speech, but rather by using conventional doctrinal methods to demonstrate their specifically legal meaning as revealed in cases and statutes. They studied the opinions of judges and legal experts and extracted from them summaries of the various legal rules and doctrines in which these troublesome concepts appeared; but they did little to connect these rules with the various non-legal judgments about fault, possession, etc., that the layman makes.
If we ask why lawyers argue about these concepts, however, we can see why this emphasis on doctrine appears irrelevant. A lawyer worries about the concept of fault, not because he is unaware of how the courts have used the term, or what the rules for determining legal fault are, but because he uses the non-legal concept of fault to justify or criticize the law. He believes—as a matter of habit or conviction—that it is morally wrong to punish someone for something not his fault; he wants to know whether the law offends this moral principle in holding an employer liable for what his employee does, or in holding a negligent driver liable for the death of a man he ran down if the injury was slight but the victim was a haemophiliac. He knows these facts of legal doctrine very well, but he is unclear whether the facts clash with the principle. Is harm a man’s fault if it is committed by someone under his charge, or if it results from his act because of circumstances he could not possibly foresee? These questions call for an analysis of the moral concept of fault, not the legal concept that the lawyer already understands; but it is just the moral use of the concept that the doctrinal approach of English jurisprudence ignored.
The record of American jurisprudence is more complex. It devoted itself largely to one issue that English theory had, in comparison, neglected: How do courts decide difficult or controversial lawsuits? Our courts had played a larger role than the English courts in reshaping nineteenth-century law to the needs of industrialization, and our constitution made legal issues out of problems that in England were political only. In England, for example, the issue of whether minimum wage legislation is fair was a political issue, but in America it was a constitutional, that is, judicial, issue as well. American lawyers were therefore pressed harder to furnish an accurate description of what the courts were doing, and to justify this if they could; the call was most urgent when the courts appeared to be making new and politically controversial law instead of simply applying old law as orthodox legal theory required.
Early in this century, John Chipman Gray and, later, Oliver Wendell Holmes published skeptical accounts of the judicial process, debunking the orthodox doctrine that judges merely apply existing rules. This skeptical approach broadened, in the 1920s and ‘30s, into the powerful intellectual movement called “legal realism.” Its leaders (Jerome Frank, Karl Llewelyn, Wesley Sturges, and Morris and Felix Cohen, among others) argues that orthodox theory had gone wrong because it had taken a doctrinal approach to jurisprudence, attempting to describe what judges do by concentrating on the rules they mention in their decision. This is an error, the realists argued, because judges actually decide cases according to their own political or moral tastes, and then choose an appropriate legal rule as a rationalization. The realists asked for a “scientific” approach that would fix on what judges do, rather than what they say, and the actual impact their decisions have on the larger community.
The main line of American jurisprudence followed this call for realism, and avoided the doctrinal approach of the English texts. It emphasized the two other professional skills—the lawyer’s skills at marshalling facts and at designing tactics for social change. We can trace the later impact of realism more clearly if we distinguish these two techniques. The emphasis on facts developed into what Roscoe Pound of Harvard called sociological jurisprudence; he meant the careful study of legal institutions as social processes, which treats a judge, for example, not as an oracle of doctrine, but as a man responding to various sorts of social and personal stimuli. Some lawyers, like Jerome Frank and Pound himself, attempted to carry out this sort of study, but they discovered that lawyers do not have the training or statistical equipment necessary to describe complex institutions in other than an introspective and limited way. Sociological jurisprudence therefore became the province of sociologists.
The emphasis on tactics had a more lasting effect within the law schools. Scholars like Myres McDougal and Harold Lasswell at Yale, and Lon L. Fuller, Henry Hart, and Albert Sachs at Harvard, though different from one another, all insisted on the importance of regarding the law as an instrument for moving society toward certain large goals, and they tried to settle questions about the legal process instrumentally, by asking which solutions best advanced these goals.
But this emphasis on fact and strategy ended by distorting jurisprudential issues in much the same way as the English doctrinal approach distorted them, that is, by eliminating just those issues of moral principle that form their core. This failure emerges if we consider in greater detail the central problem that the sociologists and instrumentalists discussed: Do judges always follow rules, even in difficult and controversial cases, or do they sometimes make up new rules and apply them retroactively?
Lawyers have argued this issue for decades, not because they are ignorant of the sorts of decisions judges make or the reasons they give, but because they are unclear what the concept of following rules really means. In easy cases (when a man is charged with violating a statute that forbids driving over sixty miles an hour, for example) it seems right to say that the judge is simply applying a prior rule to a new case. But can we say this when the Supreme Court overturns precedent and orders the schools desegregated, or outlaws procedures that for decades the police have been using and the courts condoning? In these dramatic cases the Court gives reasons—it does not cite statutes, but it does appeal to principles of justice and policy. Does that mean that the Court is following rules after all, although of a more general and abstract quality? If so, where do these abstract rules come from, and what makes them valid? Or does it mean that the Court is deciding the case in accordance with its own moral and political beliefs?