Thinker · TH-0191
H. L. A. Hart
H. L. A. Hart was an English legal philosopher who practised at the bar, worked in intelligence during the Second World War and became…
On the Coordinates: 6.2 Philosophy of Law
Also known as Herbert Lionel Adolphus Hart
1907 – 1992 · Harrogate; London; Oxford
Traditions: Analytic
H. L. A. Hart was an English legal philosopher who practised at the bar, worked in intelligence during the Second World War and became Professor of Jurisprudence at Oxford. The Concept of Law renewed legal positivism by analysing law as a union of primary rules of conduct and secondary rules, including a rule of recognition that identifies valid law. His debates with Lon Fuller on law and morality, with Patrick Devlin on the enforcement of morals, and later with Ronald Dworkin shaped modern jurisprudence.
Key ideas
- A legal system is a union of primary rules imposing duties and secondary rules about making, changing and identifying rules.
- The rule of recognition, a social practice among officials, sets the criteria of legal validity.
- Law and morality are conceptually separate: an unjust law can still be law.
- The law should not enforce morality as such where no harm to others is in question.
Major works
- "Positivism and the Separation of Law and Morals" (1958)
- The Concept of Law (1961)
- Law, Liberty, and Morality (1963)
- Punishment and Responsibility (1968)
In the conversation
- Discussion Legal realism is not a claim about what exists, and lawyers should stop treating it as one
- Discussion Han Feizi’s case for clear law, read in Lahore
- Question Can a baby or an animal have a right if it cannot claim it? Interest theory versus will theory
- Discussion A company can be sued but cannot be tripped over. In what sense does it exist?
- Question Why did Hobbes think sovereignty could not be divided?
- Discussion My model has ‘the average borrower’. Nobody is the average borrower. What am I talking about?
- Question Where is Hart’s rule of recognition actually written down?
- Debate Whoever deploys an automated decision system should answer for its harms, fault or no fault
- Debate Judges make law in hard cases, and pretending they discover it does more harm than good
- Discussion Fuller’s King Rex, read by someone who spent thirty-one years in the courts
- Discussion Thirty-one years of watching courts decide what is ‘reasonable’, and no degrees of truth in sight
- Discussion Thirty-one years in the courts: legal causation is not physical causation, and should not be
- Question Accident or intent: how should a court decide what someone actually did?
- Discussion “But for the defendant’s act”: thirty-one years of counterfactuals from the courtroom
- Discussion Qiyās, kal va-chomer and legal analogy: defeasible reasoning with centuries of rules
In the Coordinates
The questions of philosophy where H. L. A. Hart takes a place, from The Coordinates of Thought.
- 6.2 Philosophy of Law Is an unjust law still a law?