As part of its commemoration of the 50th anniversary of H.L.A. Hart’s The Concept of Law, the Oxford University Press has put online the recordings of a substantive interview David Sugarman took with Hart, in 1988. (You have to scroll down to get to the audio links.) There’s a lot of interesting stuff there. Though much of what Hart tells there is covered in his biography by Nicola Lacey, The Nightmare and the Noble Dream, legal philosophy junkies will be happy to hear it, as the OUP’s title says, in his own voice.
A number of striking things come out of the interview, for example the fact that Hart became a successful barrister without having a law degree, an Oxford don without a single publication to his name, and Professor of Jurisprudence with about one. Times have changed, and I’m not sure it’s all for the better.
Another remarkable thing is this. Hart tells that his appointment as Professor of Jurisprudence was warmly welcomed by the Bar, because he had the practised law―unlike most of his predecessors and colleagues. Hart also tells of how he thought that jurisprudence, prior to his appointment, was not asking important, interesting questions. He wanted to change that. Well, he sure did change jurisprudence. Dan Priel credits Hart with “the Invention of Legal Philosophy” as it has been understood for the last 50 years. A course on legal philosophy, in the Anglosphere, is likely to be little more than a study of Hart, people who developed his ideas (like Joseph Raz) and those who opposed them (like Ronald Dworkin).
Yet as prof. Priel writes in another essay, the sort of legal philosophy Hart pioneered has resulted in a “separation of law and jurisprudence.” As he points out,
legal philosophy is largely uninterested in legal practice. It is not uncommon to find a book in legal philosophy that does not cite a single case or statute and seems little interested in the actual attitudes of legal practitioners. Indeed, the feeling one sometimes gets from jurisprudential work is that referring to actual legal practice is something of a philosophical sellout. (1)
This, the result of the work of a former barrister, whose training in the law was entirely practical rather than academic! And prof. Priel highlights a further irony. This abstract legal philosophy is of no interest to anyone but the narrow circle of its practitioners―neither to the lawyers (or legal academics) who practices it purports to illuminate, nor to philosophers whose methods it purports to use. This, the result of the work of a man who thought he would, at last, start asking interesting questions in the realm of jurisprudence!
It was, as Hart might have said, a noble dream. But the result turned out to be a nightmare. For all that, Hart was a giant, though a tragic one. Go listen to those recordings.