Nicola Lacey (April 2005)

Prof. Nicola Lacey was educated at University College London and Oxford before going on to teach at these schools as well as at Yale, the Humboldt University Faculty of Law, New York University Global Law School and the German Institute of Advanced Study. In 1997, she was named Professor of Criminal Law and Legal Theory at the London School of Economics, and since 1998 has also been an Adjunct Professor at the Australian National University. An expert on criminal law and legal theory, Prof. Lacey was elected a Fellow of the British Academy in 2001. Her book on one of the foremost legal philosophers of the twentieth century, A Life of H.L.A. Hart: The Nightmare and the Noble Dream, won the 2004 Swiney Prize for best published work on jurisprudence, and was shortlisted for the James Tait Black Memorial Prize for biography. The Legal History Project interviewed Prof. Lacey in April 2005.

Jurisprudence can be a forbidding subject with its abstruse debates, dense language and occasionally oversized personalities to match the doorstopper texts. Neither Hart nor his work, however, conforms to such images despite his being, in your words, "quite simply, the pre-eminent English-speaking legal philosopher of the twentieth century." Why in your view is Hart so different from his fellow theorists as to be worthy of his pre-eminent place in the field?

This is a question which has puzzled some of Hart's critics! As – obviously – one of his admirers, my answer would be that his pre-eminence derives not only from the clarity, economy and elegance with which he was able to formulate his theory of law, but also from the way in which his theory seeks to capture key aspects of social reality – aims, in his words, to "fit the facts". This may seem an obvious precept for a "descriptive" theory of law, but in his view the more rigidly conceptual positivist theories of John Austin and Hans Kelsen failed to respect it, either bundling inconveniently shaped legal phenomena into the straitjacket of their definitions, or "banishing them to another discipline". Good examples would be Austin's view of international law as "positive morality"; or Kelsen's interpretation of invalidity in contract law as a form of "sanction".

Among its other accomplishments, Hart's 1961 book The Concept of Law revived the Benthamite and Austinian tradition of legal positivism (meaning, roughly speaking, the study of law as the command of the sovereign). Why did this early school of thought fall into neglect until Hart came around and, more generally, why had English jurisprudence fallen into such a slough in the nineteenth and twentieth centuries that Hart's "work broke over the gloomy landscape ... like a new dawn of intellectual enlightenment"?

For a fascinating analysis, I recommend Neil Duxbury's recent book on Frederick Pollock, several chapters of which engage with precisely this question. Duxbury's book shows that analytical jurisprudence of the Austinian school did not exactly disappear, but became the object of critique among more historically oriented scholars like Pollock. But in so far as the tradition did fade from view, I would attribute this to two facts. The first is accessibility: Bentham's analytical jurisprudence was not published in satisfactory form until well into the 20th Century, while Austin's was a relatively uninviting read in literary terms. The second, more seriously, would be the intellectual tenor of English legal education, with Law Faculties maintaining a relatively un-intellectual and vocational orientation until the 1960s.

How did Hart perceive his intellectual relationship to Bentham and Austin? Did he consciously undertake at any point to build upon and reshape their theories? Also, how did Hart engage with Benthamite utilitarianism in his own work?

Hart's engagement with Benthamite utilitarianism was extensive, as is vividly reflected not only in his Essays on Bentham (1982) but also Punishment and Responsibility (1968). Throughout his career – from "Are There Any Natural Rights" in the mid-1950s through to "Between Utility and Rights" in the 1970s, he worked to articulate a distinctive and restricted form of utilitarianism capable of giving a place to the distinct role of other values, notably fairness.

Both Hart's Holmes lecture, "Positivism and the Separation of Law and Morals" (1958) and The Concept of Law (1961) explicitly seek to build on and revise Austin's and Bentham's theories of law. Interestingly, however, his working notebooks for The Concept of Law suggest that the formulation of his ideas was more abstract, less grounded in dialogue with Austin, than the form of the book would suggest. My feeling is that the critique of Austin's command theory in the early chapters of the book – a demolition from whose remains his own theory appears to be constructed – was primarily a pedagogical device (the book was originally delivered as student lectures). But there can be no doubt that his critical engagement with Austin's and Bentham's analytical jurisprudence was a decisive influence on his work.

Hart was of course not working in a jurisprudential vacuum in the mid-twentieth century, English-speaking world. How did he react to the theories of the Realists like Holmes and to those of the natural-law theorists like Fuller?

His views on Realism were unflattering, to say the least – as his critique in The Concept of Law reveals. His argument was that the fundamental problem with Realism lay in its essentially predictive view of law – law as what the judges will decide, shaped by their politics, to take a familiar caricature – which failed to account for law's genuinely normative, action-guiding quality. As against Fuller's "natural law" theory of law as shaped by an "inner morality", he argued that law could be identified without reference to moral values, and that the questions "what is the law?" on the one hand, and "what ought the law to be?" or "should I obey the law?" on the other, were – and should be – quite separate. This positivist "separation thesis", though analytic in intent, was arguably related to his liberal political morality: Hart saw it as a key feature of liberalism that citizens should reserve to themselves the right, and responsibility, to judge whether or not the state's demands for obedience to particular laws were justified.

Throughout your book, you discuss Hart's affinity and support for linguistic philosophy, as well as his reactions to the ideas of such philosophers as J.L. Austin and Wittgenstein. How did this conjunction of modern philosophy and legal theory go down at Oxford and at Harvard when Hart was teaching at those schools?

When Hart became an academic in 1945, linguistic philosophy as developed by not only J.L. Austin but also Gilbert Ryle and (in a somewhat different way) A.J. Ayer was very much in the ascendancy in Oxford. But it was not clear that the majority of the Law Faculty, which Hart joined in 1952, were ready for an infusion of linguistic (or, with a few honorable exceptions, any!) philosophy. One can get a sense of the sort of philosophical imperialism resented by the lawyers in Austin's congratulatory note to Hart in 1952, which exulted in philosophy annexing the terrain of law! (The attitude to Wittgenstein among Oxford philosophers was somewhat more complicated, though several of them recognised him as an "explosion of genius" in the discipline.) Hart's strategy in the Law Faculty was not to spend time trying to convert sceptical colleagues but rather to build strong links with a small group of gifted enthusiasts – Rupert Cross and Tony Honoré notable among them.

At Harvard, the influence of Quine in the philosophy department, along with the greater currency of Realism, sociological jurisprudence and a variety of cross-disciplinary approaches in the Law School made Hart's blend of linguistic philosophy and legal theory seem less epoch-making. However, Hart's status at Harvard was reflected in his invitation to give the Holmes lecture and in the award of the Ames Prize for The Concept of Law.

Did Hart feel that he was always in pursuit of a purely "objective" theory of the law as it is, or did he instead at some points consciously craft theories to promote his normative views of what the law, and even specific laws, should be?

Hart certainly had, and articulated, strong normative views about what specific laws should be: the most vivid example would be his impassioned arguments against the legal enforcement of sexual and other forms of conventional morality in Law, Liberty and Morality (1963). But he regarded this normative work as separate from his descriptive/analytic work. The case for a purely descriptive, universal theory of law is made yet more strongly in the posthumously published Postscript to The Concept of Law than in his original formulation; indeed in the Postscript, even the liberal arguments for positivism evident in both the Holmes lecture and the original book (mentioned in my answer above about the "separation thesis") have more or less disappeared. Whether Hart was truly able to maintain this separation has been debated, and one could certainly argue that in some of his special jurisprudence – his work with Honoré on causation, or his work on punishment and responsibility – the projects of analysis and advocacy are intimately linked: the analysis, for example, of how ideas of "mens rea", justification and excuse operate in criminal law is tied up with a view of what justifies them. And in his preparatory notes for the Postscript, he struggled with his recognition that even a descriptive theory had to be based on a selection of criteria to be given priority. He maintained, however, that this selection did not have to be based on moral criteria.

Hart's colleagues and students over the years could fill out a Who's Who of modern jurisprudence, with Dworkin, Fuller, Raz, Finnis and many others making appearances in your book. Despite Hart's reputation and apparent affability, he often had strained or simply cold professional relationships, most notably with Dworkin, who succeeded to his Chair in Jurisprudence at Oxford. Was this just a function of the rivalries and quarrelsome character of the jurisprudence field, or were other philosophical or personal factors at work?

Perhaps relationships with direct intellectual and institutional successors are always complicated. Hart was generally reluctant to get involved in jurisprudental quarrels, and I think that his difficult later relationship with Ronald Dworkin was prompted by a mixture of intellectual and personal incompatibilities. One fascinating aspect of their story is the way in which Hart was following Dworkin's career from a very early stage (he kept Dworkin's Oxford exam papers and quoted from them in an after-dinner speech years later; he also noted in his diary Dworkin's presence at Harvard in 1956-7 and at his debate with Kelsen in 1961). From an early stage, he felt that Dworkin's theory posed a serious challenge to his position: a fact which increases one's admiration for the way in which he put intellectual judgment over amour propre in encouraging Dworkin to apply for the Oxford Chair, and in actively promoting Dworkin's candidature.

It is surprising that while The Concept of Law reads like the genteel discourse of an Establishment English thinker, Hart also had many counter-cultural qualities. As you point out, he was of Jewish extraction, an atheist and tormented by his homosexual proclivities. Moreover, prior to marrying his wife Jenifer, he openly cohabited with her in London prior to and during World War II. How did these characteristics and lifestyle choices affect Hart's general approach to jurisprudence, as expressed for example in Law, Liberty and Morality and Punishment and Responsibility?

Biographers have to beware of overly reductive interpretations of the links between a person's life and their work, even though the tracing of such links is one of the excitements of intellectual biography. However, I think that the passionate eloquence of Law, Liberty and Morality, and in particular Hart's uncharacteristically sweeping denunciation of the enforcement of sexual morality as a form of "cruelty", are very strong evidence of just such a link. The general question of the influence of his psychology and experience are hard to pin down, though I speculate on them in the biography, invited in part by his own speculations in his diaries. These included the thought that his repressed sexual persona sometimes inhibited the full articulation or development of his ideas. His strong view that his ethnicity was entirely his own business, and irrelevant for most practical purposes, is reflected in his particular brand of individualist and formally egalitarian liberalism. But it is interesting to note that in later life he developed a significant interest in Israel and, when asked by an Israeli interviewer what he thought of Israel's decision to send specific aid to the Jewish victims of the Ethiopian famine, even expressed the view that it would be too much to ask that the ties of "kith and kin" be ignored. This is a surprising view of the proper stance of a state given Hart's secular liberalism.

As portrayed in your book, Hart seems rather like the title character in Saul Bellow's Herzog, in that he suffered not only from self-doubt and emotional repression, but also from his wife's Bloomsbury-style sexual mores and her approach to relationships which culminated in her affair with Hart's friend Isaiah Berlin. Was the Harts' relationship on balance constructive or destructive for Hart's career and theoretical work?

In his biography, I argue that the relationship was important to his career, not least because it provided a framework of family routines which gave him – despite his complexities – a sense of belonging, and soothed his intermittently acute anxieties. It was also undoubtedly the case that his fascination with and respect for Jenifer survived the various ups and downs of their life together. There must, however, have been some measure of repression in his attitude to Jenifer's relationship with Berlin, of which he "knew" in a distinctively "English" kind of way (which is to say, that he both knew and didn't know!), and I suspect that he tried to compensate for his complicated feelings about it.

In addition to all of his other woes, Hart harbored a deep ambivalence to his Jewish heritage throughout his life. In another parallel to the fictional Herzog, he categorized his opinions of his fellow Jews by their class and location, for instance looking down on ostensibly lower-class "Leeds Jews." He also seems to have strongly favored assimilation despite being acutely conscious of his Jewishness while attending elite schools and in other situations. Did the classical Jewish quandary he faced affect his jurisprudential work, and did his being Jewish hinder the rise of his reputation and professional standing in any way?

As I relate in the book, he certainly did face some egregious examples of anti-semitism – notably his exclusion from the Oxford and Cambridge Club in the 1930s – but, with one possible and partial exception (in relation to a position as Head of an Oxford College) I think it would be hard to say that his Jewishness hindered his professional progress. His disposition to assimilation, as well as his generous and rationalist tendency to see prejudice as the result of ignorance rather than malice, militated to his ignoring and even denying experiences of discrimination: for example, he denied – quite implausibly in my view, given what we know of Oxford and indeed Britain at the time – that he encountered anti-semitism during his student days at Oxford. (One exception was a lunch at which a South African fellow student said he'd rather "sit down to lunch with a black than a Jew" – a story which is suggestive of Hart's assimilated persona even at this early stage of his life.) I think that Sartre's analysis of the psyche of the "inauthentic Jew" who identifies with the universal as a response to prejudice captures Hart with almost disturbing accuracy.

One other major factor in Hart's personal development was his work in British intelligence during World War II. He took very well to his tasks during this period, but was troubled by prosecuting a Scot who was ultimately executed for espionage despite the evidence against him being circumstantial. Did Hart's experiences in the shadowy world of espionage and counter-espionage play a significant role in the later development of his jurisprudence?

I doubt it, but I do think that the experience deepened his already strong liberal instincts.

Turning to your own experiences with this project, how did you come to be Hart's biographer? Your background is after all in criminal law, gender and social theory rather than in biographical writing. While Hart's thought has certainly influenced the fields in which you work, it hardly seems a natural leap to go from studying his theoretical works to researching his private life and professional relationships in such detail, even if he was a rather elusive and intriguing personality.

It was an impulsive decision! I was friendly with the Hart family, and on a social visit in January 2000, Jenifer Hart mentioned she was considering arranging for a biography to be written. She asked my advice on who should be approached. I suggested Ray Monk. She – ever the realist – replied that Herbert wasn't famous enough a subject for a well known biographer! As we drove back to London, my husband said, "You want to do that, don't you?"! I have always tried to alternate my academic work with writing for a broader audience – student texts or policy work – and I was looking for that kind of project. A close friend, now my literary agent, had suggested that biography would be a good genre for me, combining my research skills with my desire to do more creative writing. It has been a marvellously rewarding experience – though one which particularly in the early stages caused me many sleepless nights as I wondered if I was really capable of it! I remember one particularly searing moment when I received my agents' comments on the first two chapters. One of them said: "It's great – but there's still some way to go with the written style. For example: you know what Oxford looks like; I know what Oxford looks like; but with any luck you'll have some readers who don't. Show us!" An obvious enough point, but of course in academic writing we rarely have the opportunity – or need – to conjure up the visual world. As you can imagine, the emotional demands of writing a biography of someone who still has close family living are also a challenge, though I was infinitely fortunate in having the support, co-operation – and non-interference! – of the Hart family.

Hart's journal entries and letters over the course of decades show that he was in many ways a puzzle to himself. Do you believe that your close study of him has permitted you to understand him better than he perhaps understood himself, at least until his later years?

For me, one of the most moving moments in this project came when the Harts' daugher, Joanna Ryan, said in her speech at the Oxford launch of the book that it was quite a complicated thing to realise that someone outside the family knows your father, in some ways, better than you do. But it would be arrogant – and inaccurate – to suggest that I understand him better than he understood himself. Doubtless he understood some things much better than I can – here I would certainly include the origins of his homosexual orientation. Perhaps my more distant perspective however sheds light on aspects of his life in which he was too involved to be able to see – aspects of his attitude to being Jewish, for example.

Having produced a highly readable and prize-winning biography, are you planning or at least weighing another such project? I have seen your work described as a labor of love, but surely the talents displayed in the book must have been honed rather than used up in the writing process.

That's very kind! I'd love to take on another biography or intellectual history at some stage, but before I do so I had better complete the historical work on criminal responsibility which I had just begun when offered the Hart papers. I am also aware of the fact that it will be hard – perhaps impossible – to find another project as rich as this one. To have the chance to work on someone I knew, liked and admired and whose work was of deep interest to me, as well as to be offered the first and unrestricted access to fascinating personal papers (and there not being too many of them!) was a fantastic privilege for which I shall always be grateful.

Prof. Lacey was interviewed by Peter C. Hansen.

© Peter C. Hansen, The Legal History Project.