Neil MacCormick - H.L.A. Hart

(p.iv)

• Stanford University Press
• Stanford, California
• 2008 by the Board of Trustees of the
• Leland Stanford Junior University
• All rights reserved.

• First edition Neil MacCormick 1981
• Originating publisher: Edward Arnold (Publishers) Ltd., London, 1981

• No part of this book may be reproduced or transmitted in any form or
• by any means, electronic or mechanical, including photocopying and
• recording, or in any information storage or retrieval system without
• the prior written permission of Stanford University Press.

• Library of Congress Cataloging-in-Publication Data

• MacCormick, Neil.
• H.L.A. Hart / Neil MacCormick. 2nd ed.
• p. cm. (Jurists : profiles in legal theory)
• Includes bibliographical references and index.
• ISBN 9780804756785 (cloth : alk. paper)
• ISBN 9780804756792 (pbk. : alk. paper)
• 1. Jurisprudence. 2. Hart, H. L. A. (Herbert Lionel Adolphus),
• 1907 3. Hart, H. L. A. (Herbert Lionel Adolphus), 1907
• Bibliography. I. Title.

• K230.H3652M3 2008
• 340.Idc22 2007044945

• Printed in the United States of America
• on acid-free, archival-quality paper

• Typeset by Newgen in 10/13 Galliard

If this book has one particular message, it is a message about method in legal study. Law is an aspect of human society, and human society is a society of persons (p. below) whose activities and institutions are understandable only through interpretation of their meaning to those engaged in them. The method of understanding legal and other human institutions by reference to their meaning from an insider's or an internal point of view is central to Herbert Hart's work. That method I argue to be the correct one. Where I criticize more detailed aspects of his theories about law, I do so mainly on the ground that he has not always taken his own method far enough. The corrections and extensions which I propose, as against other critics, involve pressing Hartian arguments further than Hart pressed them.

His work has fascinated me since I first read The Concept of Law and attended his lectures in Oxford in the years 196365 while adding legal studies to my prior studies at Glasgow in philosophy and literature. As a Fellow of Balliol College from 1967 till 1972, I got to know Hart as a senior Oxford colleague whom I had cause both to like and to admire. If as a result my Judgment of his work is flawed by the bias of friendship, there may be some offsetting gain by way of insight into his line of thought.

He very kindly gave me advice about the biographical part of the first chapter. I then had the pleasure of giving him a copy not only of that chapter but of the whole typescript, but this was not done with a view to my seeking nor, from his point of view, to his giving any kind of imprimatur. The book stands or falls as its author's, not its subject's, view of a leading contribution to jurisprudence.

(p.viii) As well as to Herbert Hart, I have other large debts of gratitude. To William Twining as general editor; to Sarah Cohen and Helen Tuschling as publisher's editors; to Michael Machan, Robert Moles, David Nelken, and Jes Bjarup as acute critics and advisers; to Sheila Macmillan, Sheila Smith, Kim Chambers, Annette Stoddart, and Moira Seftor as clear typists of obscure manuscripts; and to my family as tolerant victims of neglect, I owe and give unstinted thanks.

Neil MacCormick

Edinburgh, February 1981

This is a chronological list of the works of H. L. A. Hart most frequently cited in this book. For convenience of citation, the abbreviations [in brackets] are used in the text. Number 12 is printed also as chapter (respectively) of E.J.P.

A full bibliography of Hart's publications (and of most of the significant commentaries on them) appears in N. Lacey, A Life of H.L.A. Hart: The Nightmare and the Noble Dream (Oxford Univ. Press, Oxford, 2004), pp. 394403.

1. The Ascription of Responsibility and Rights. (1948/1949) 49 Proceedings of the Aristotelian Society, 17194.

2. Definition and Theory in Jurisprudence (Inaugural lecture, Clarendon Press, Oxford, 1953) . Also published in ( 1953) 70 Law Quarterly Review , 37 [D.T.J.; page references are to the Oxford edition.]

3. Are There Any Natural Rights? (1955) 64 Philosophical Review, 17591. Also published in Political Philosophy, ed. A. Quinton (Oxford Univ. Press, Oxford, 1967), pp. 5366. [A.A.N.R.?;page references are to the Quinton volume.]

4. Analytic Jurisprudence in Mid-twentieth Century; a Reply to Professor Bodenheimer. (1957)105 Univ. of Pennsylvania Law Review, 95375 [A.J.M.C.]

5. Positivism and the Separation of Law and Morals. (1958) 71 Harvard Law Review, 593629. [P.S.L.M.]

6. Causation in the Law, jointly with A. M. Honor (Clarendon Press, Oxford, 1959; 2nd ed., by Honor, 1986). [Causation]

7. The Concept of Law (Clarendon Press, Oxford, 1961; 2nd ed., with Postscript, edited by P. P. Bulloch and J. Raz, 1994) . [C.L.;page references are to the second edition. The Postscript is cited as Postscript.]

8. (p.x) Law, Liberty and Morality (Oxford Univ. Press, London, 1963) . [L.L.M.]

9. The Morality of the Criminal Law (Magnes Press, Hebrew Univ., Jerusalem; Oxford Univ. Press, London, 1965) . [M.C.L.]

10. Social Solidarity and the Enforcement of Morality. (1967/1968) 35 Univ. of Chicago Law Review, 113. [S.S.E.M]

11. Punishment and Responsibility: Essays in the Philosophy of Law. (Clarendon Press, Oxford, 1968) . [P.R.]

12. Bentham on Legal Rights, Oxford Essays in Jurisprudence, Second Series, ed. A. W. B. Simpson (Clarendon Press, Oxford, 1973), pp. 17191. [B.L.R.]

13. Between Utility and Rights, The Idea of Freedom, ed. A. Ryan (Oxford Univ. Press, Oxford, 1979), pp.7798. Also published in (1979) 79 Columbia Law Review, 82746. [B.U.R.]

14. Essays on Bentham: Jurisprudence and Political Theory. (Clarendon Press, Oxford, 1982) . [E.o.B.]