'Plucking the Mask of Mystery from its Face': Jurisprudence and H.L.A. Hart
47 Pages Posted: 5 Apr 2007
Until recently, little was known of H.L.A. Hart's private life. That has now changed with the publication of Nicola Lacey's A Life of H.L.A. Hart: The Nightmare and the Noble Dream. Drawing on Hart's notebooks and correspondence, Lacey paints an illuminating portrait of Hart, which reveals that despite his public success he struggled with internal perplexities, including his sexual orientation, Jewish identity, intellectual insecurity, and unconventional marriage. Yet, as critics have noted, the connection between these revelations and the development of Hart's ideas is unclear. Moreover, one cannot help but wonder whether by focusing on these aspects of Hart's personal life, Lacey has missed an opportunity to explore certain basic questions about his jurisprudence and its link to wider intellectual currents. For example, linguistics, psychology, and the philosophy of language and mind are much different today than they were in the 1940s and 1950s, yet Lacey does not discuss how such familiar events as the overthrow of logical positivism, the demise of behaviorism, the rise of generative linguistics, or the broader cognitive revolution of which they were a part actually impacted Hart or should influence our understanding of his legacy. Surprisingly, none of these developments are taken up in this book, leading one to ponder the significance of their absence.
Likewise, one of the mysteries surrounding Hart is his attitude toward human rights. It is difficult to imagine a more direct repudiation of legal positivism than the Universal Declaration of Human Rights and the broader human rights revolution it helped to promote. Yet Hart never seemed to notice or care. None of his rights-related essays of the 1940s and 1950s gives the Universal Declaration so much as a passing reference. Meanwhile, the topic of human rights is completely absent from "The Concept of Law." We are therefore left with the following paradox: human rights is "the idea of our time" (Louis Henkin), yet the twentieth century's leading legal philosopher had virtually nothing to say about them.
Disappointingly, Lacey does not shed much light on these issues. Even after the publication of her biography of Hart, therefore, we lack a proper overall assessment of Hart's place in the recent history of ideas. This Essay attempts to take an initial step in that direction, by examining a few select themes of Hart's jurisprudence and Lacey's interpretation of them in light of recent developments in philosophy, linguistics, cognitive science, and law. The central argument I make is that a genuinely puzzling aspect of Hart's jurisprudence is how detached it now seems from many of the most important intellectual events of the past fifty years, including the modern revival of Universal Grammar, the cognitive revolution in the study of language and mind, and the human rights revolution in constitutional and international law, all of which would appear to have significant implications for the traditions of legal positivism, analytic jurisprudence, and epistemological empiricism with which Hart was associated.
Keywords: Hart, Lacey, Bentham, Austin, Devlin, Goodhart, Wittgenstein, Chomsky, Rawls, Ryle, Quine, jurisprudence, philosophy, linguistics, cognitive science, legal positivism, empiricism, moral grammar, universal grammar, universal jurisprudence, human rights
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