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| Nicola Lacey’s A Life of H.L.A. Hart: The Nightmare and the Noble Dream has attracted a great deal of attention, some controversy, and, deservedly, much acclaim. For me, reading this superb book was a painful experience. It tells a sad, at times tragic, story of a brilliant and attractive person who never fully enjoyed the respect and success that he earned. Indeed, it is a story of a conflicted individual who struggled with deep ambivalences about his Jewishness, his sexuality, his marriage, and his political commitments. Herbert Hart was also tormented by self-doubt. Such doubts and ambivalences affected his professional life. It is mainly for this reason that this intimate biography sheds light on his work as a jurist.
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| Hart was as ambivalent about the law as Jeremy Bentham, and as ambivalent about Bentham as John Stuart Mill, to whom he was, in important ways, a twentieth-century analogue. Each was a progressive intellectual not completely detached from, but not wholly at home in, the centers of power in his society. A Marxist might say that these inner conflicts mirror the internal contradictions of liberalism; others might find both thinkers attractive just because they were involved in honest struggles with conflicting ideas, such as the tensions between liberty and equality.
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| The saddest part of the story concerns The Concept of Law. It is important to bear in mind that this book was intended as a prolegomenon rather than as a magnum opus. It was included in Oxford University Press’s Clarendon Law Series, which Hart edited. This was intended to be a series of “general introductions” — the kind of book that undergraduates might be encouraged to read at the start or end of a course. Hart was surprised, indeed “baffled,” by his work’s reception. Within a few years he indicated that he was tired of discussing “that wretched book.” After The Concept of Law he made some significant contributions, but he never settled down to an agenda worthy of his talents. Unfortunately, he became obsessed with Ronald Dworkin’s criticisms and got sucked back into a round of increasingly repetitious debates, as both spectator and participant. During his later years he struggled with a reply to his critics. This ended unhappily in the unfinished “Postscript,” published posthumously, which dealt unconvincingly with only one critic, Dworkin. If Hart had broken free from this obsessive concern, he might well have provided intellectual leadership for legal scholarship generally rather than for an important, but narrow, form of abstract legal philosophy. Jurisprudence, so interpreted, has largely become a subject apart. In my view, jurisprudence, as the theoretical or more abstract part of law as a discipline, should both feed off and feed into more particular legal scholarship.
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| Frederick Schauer’s review of The Nightmare and the Noble Dream is both judicious and insightful. I agree with his general assessment of Lacey’s book and its value in judging both Hart’s historic achievements and the continuing significance of his work. We also concur on a number of specific points. Especially significant is the suggestion that a focus on the “philosophically interesting” may have led to the marginalization (and I would add caricature) of some jurists, who were not philosophically inclined but who contributed insights to understanding law. In legal theory there are many issues that are juridically interesting to which philosophers can usefully contribute — even if many such issues are not philosophically interesting — if they take the trouble to acquire relevant legal knowledge. Understanding law is not, and cannot be, solely or even mainly an abstract philosophical enterprise.
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| Schauer and I have somewhat different perspectives, however, on the following four themes: Hart’s legal positivism; the narrowness of “theories of adjudication”; the relationship between analytical jurisprudence and socio-legal studies; and Hart’s conception and vision of jurisprudence.
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Suggested citation: William Twining, Schauer on Hart, 119 Harv. L. Rev. F. 122 (2006), http://www.harvardlawreview.org/forum/issues/119/jan06/twining.pdf
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