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History, Law and Language; or, What Can Foxes Teach Hedgehogs?
Abstract
HLA Hart revived the philosophical study of law in England. Since his concern was with a particular set of philosophical issues, it is unfair to criticise him (as some do) for not addressing different questions, such as how judges have or should work. The jurist should rather explore the flaws at the centre of Hart's project, and this is what Brian Simpson does in his final book, Reflections on 'The Concept of Law' (2011). Hart aimed to provide a definition or description of law which any person working within the practice would recognise. But if we try to get into the minds of lawyers from different times and places, we will find that Hart's 'concept' would not describe a world they would recognise.
This chapter opens with a consideration of William Wordsworth’s “The Solitary Reaper” to suggest the utility of a law and literature paradigm in interpreting Romantic poetry and to argue for a fundamental link between poetry and law through their shared concern with subjectivity and the capacity to judge, to make meaning from signs. The chapter then explores the development of the rule of law and the attempts of various legal institutions to house and contain interpretive expression in acts of legal judgment, a concern felt from the Medieval all the way to the Romantic period.
HLA Hart's The Concept of Law is one of the most influential works of philosophy of the 20th century, redefining the field of legal philosophy and introducing generations of students to philosophical reflection on the nature of law. Since its publication in 1961 an industry of academic research and debate has grown up around the book, disputing, refining, and developing Hart's work. Under the sheer volume of competing interpretations of the book the original contexts - cultural and intellectual - that shaped Hart's project can be obscured. This book attempts to sweep aside the volumes of academic criticism and return to 'Troy I', revealing the world of post-war Oxford that produced Hart and his famous book. Drawing on personal experience of studying and teaching in Oxford at the time Hart developed The Concept of Law, this book recreates the social and intellectual culture of Oxford philosophy and the law faculty in the 1950s. It traces Hart's early work and influences, within and outside Oxford, showing how Hart developed his picture of philosophy and its potential for enriching the understanding of law. It also lays bare the painful shortcomings of post-war Oxford academia, depicting a world of eccentric dons and intellectual Cyclopses - isolated and closed to broad, interdisciplinary exchange - arguing that Hart did not escape from the limitations of his intellectual world.
This chapter addresses the question of what legal history is a history of. It begins by drawing the more or less conventional division between external legal history and internal legal history. It then focuses on internal legal history, which deals with law on its own terms. Its sources are predominantly those drawn up by the legal process -in England, that is, records of courts, law reports, and legal treatises -and its practitioners are as often as not trained lawyers, or at least scholars whose discipline is law. On the face of internal legal history there cannot be any doubt that it is the history of law, but the real problem is to decide what we mean by law.
Times Literary Supplement 17 It is 'customary' in the sense of Hart's 'primitive' law; it is not like the 'long customary practice' which (along with legislation and precedent) Hart felt could be accommodated by his rule of recognition ((n 4) 92). 18 JH Baker, The Law's Two Bodies
- Leslie Green
- Brian Leiter
Leslie Green and Brian Leiter, 'HLA Hart and The Concept of Law', Times Literary Supplement, 11 March 2005, 15. 17 It is 'customary' in the sense of Hart's 'primitive' law; it is not like the 'long customary practice' which (along with legislation and precedent) Hart felt could be accommodated by his rule of recognition ((n 4) 92). 18 JH Baker, The Law's Two Bodies (Oxford University Press, 2001) 59–90.
) 3 ('[I]n almost every part of the world which is thought of as a separate “country” there are legal systems which are broadly similar in structure')
- Hart
Analytical Jurisprudence
- Hart