Legal Theory Essay

H.L.A. Hart’s Lost Essay: Discretion and the Legal Process School

Vol. 127 No. 2 This Essay analyzes an essay by H. L. A. Hart about discretion that has never before been published, and has often been considered lost. Hart, one of the most significant legal philosophers of the twentieth century, wrote the essay at Harvard Law School in November 1956, shortly after he arrived as a visiting professor. In the essay, Hart argued that discretion is a special mode of reasoned, constrained decisionmaking that occupies a middle ground between arbitrary choice and determinate rule application. Hart believed that discretion, soundly exercised, provides a principled way of coping with legal indeterminacy that is fully consistent with the rule of law. This Essay situates Hart’s paper – Discretion – in historical and intellectual context, interprets its main arguments, and assesses its significance in jurisprudential history.
Legal Theory Essay

Discretion

Vol. 127 No. 2 In this field questions arise which are certainly difficult; but as I listened last time to members of the group, I felt that the main difficulty perhaps lay in determining precisely what questions we are trying to answer. I have the conviction that if we could only say clearly what the questions are, the answers to them might not appear so elusive. So I have begun with a simple list of questions about discretion which in one form or another were, as it seemed to me, expressed by the group last time. I may indeed have omitted something and inserted something useless: if so, no doubt I shall be informed of this later.
Legal Theory Essay

The Path Not Taken: H.L.A. Hart’s Harvard Essay on Discretion

Vol. 127 No. 2 It is an extraordinary privilege to be able to introduce a previously unpublished essay by H. L. A. Hart, one of the most distinguished figures in twentieth-century legal philosophy, alongside a fine commentary by Geoffrey Shaw, the scholar whose intellectual imagination and meticulous archival research has brought the essay to light. It is particularly apt that H. L. A. Hart’s essay should be published by this Review, appearing fifty-seven years after it was written in the early months of his visit to Harvard, thus joining a distinguished tradition of posthumously published scholarship of the 1950s, most notably Lon Fuller’s The Forms and Limits of Adjudication, and Henry Hart and Albert Sacks’s The Legal Process. Its publication is also timely, albeit long delayed, in that it comes hard on the heels of a period in which the intellectual history of legal thought has been the subject of wide interest and some very powerful scholarship.