The Tale of Two Harts; A Schlegelian Dialectic

Abstract

This essay, written for a symposium honoring John Henry Schlegel, is part intellectual history, part philosophical polemic. It first briefly compares the thought and work of two lions of legal thought, Henry Hart (1904-1969) and H.L.A. Hart (1907-1992). It then argues that although the Hart & Sacks Legal Process course materials have conventionally been interpreted as offering an “internal” account of legal practice, that framing itself reflects the influence of H.L.A. Hart’s (ordinary-language) philosophical approach to studying legal phenomena. Hart’s distinction between “internal” and “external” points of view has now become entrenched in legal theory, but Henry Hart would have rejected it. The essay thus asks what it would it mean to do the reverse — that is, to interpret H.L.A. Hart’s theory of law in the terms of Henry Hart’s (pragmatist) philosophical approach. What would legal theory and scholarship look like today? I suggest that, somewhat ironically, Schlegel’s recent writing on law teaching, legal history, and academic disciplines gives us some indication.

Keywords: Legal Process, Legal Positivism, Hart, Critical Legal Studies, Pragmatism