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Legal Theory

Hart’s Posthumous Reply

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Introduction

Professor Hart left, at his death, an unfinished manuscript of a Postscript which he had intended for a new edition of his best-known and most influential book, The Concept of Law. (In the last edition of that book, printed in 1972, he said that he hoped “on some future occasion” to add to the book “a detailed discussion” of various criticisms of the book that had been written over many years.) The Postscript was meant to contain two parts, the longer first part of which was to be a response to my own arguments directed to his work, and the second, shorter, part a discussion of other criticisms, and of revisions he thought might be necessary in the light of the criticisms he accepted. At his death, only the first part had been written, and this has now been published in a new edition of the book.1×1. H.L.A. Hart, The Concept of Law (2d ed. 1994) [hereinafter CL].

I do not know how long before his death he ceased working on the manuscript, or how far he thought the part that he had written complete. It must, I think, be read as a draft, bearing in mind that the author might well have wanted to change or rewrite parts of it. But even as it stands, it reminds us of Hart’s own comment about his predecessor as Professor of Jurisprudence, Arthur Goodhart, who was, Hart said, wrong clearly even when he was clearly wrong.2×2. Hart took the phrase from Henry James, whom he described as the greatest writer of America, Professor Goodhart’s country. That compliment is more distinctly true of Hart than of any other philosopher I have known. And it is characteristic of all his work that his descriptions of my own views are not only scrupulously fair and for the most part very accurate, but that they are often presented with a concision and clarity that I have never myself achieved for them.

We cannot be sure, as I said, that Hart would have published the first part of the Postscript in its present form had he been able to complete the whole. I believe I should nevertheless answer the very detailed arguments and criticisms of my work in the draft he left, even though, for the first time, I must write without the fear and pleasure of hearing his judgment. Hart’s Postscript is divided into sections and sub-sections, and, in the interests of clarity though at the price of some minor repetition, I have arranged this response in the same way, so that I can comment on each section in turn. I also use the present tense to describe what Hart now “says,” in order to distinguish the Postscript from earlier work.

The full text of this Essay may be found by clicking on the PDF link below.

 


* The text that follows is based upon a typescript circulated by Professor Dworkin for the New York University Law School Colloquium on Legal, Political, and Social Philosophy in September 1994. The typescript was edited by Professor Nicos Stavropoulos. Research assistance was provided by Harrison Tait. Minor corrections to the text have been made where necessary, and the references have been filled where Dworkin left appropriate suggestions. At notes 48, 49, 69, and 72, Dworkin made reference to particular authors without indicating a specific work. Relevant works have been identified in each case. Several editorial comments have been made in the notes and are enclosed by square brackets. Several citations, enclosed in brackets, have been added where appropriate.