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 BOOK REVIEW
(RE)TAKING HART

A LIFE OF H.L.A. HART, THE NIGHTMARE AND THE NOBLE

DREAM. By Nicola Lacey. Oxford: Oxford University Press. 2004.
Pp. xxii, 422. $35.00.

Reviewed by Frederick Schauer*

H.L.A. Hart was one of the giants of twentieth-century jurispru-

dence, and the publication of Nicola Lacey's definitive biography has
as a result become somewhat of a jurisprudential event. It is true that
part of the immediate and widespread attention to the book stems
from Lacey's extensive use of Hart's own diaries.' And even more
controversial has been the extent to which Lacey examines how Hart
dealt with his sexual identity, with his marriage, and with being Jewish
at a time when Jews in the academy were still a bit of a curiosity.' Yet
it is neither Lacey's use of private sources nor her exploration of pri-
vate topics that makes the publication of this book noteworthy.
Rather, the book's importance is a function of Hart's exalted status
within twentieth-century legal theory and the skill with which Lacey
locates within Hart's career many of the recent changes in the goals
and methods of jurisprudence itself. Lacey's book is thus not only
about Hart, but also about the practice of jurisprudence, and the occa-
sion of the book's publication provides an opportunity to reflect on
that practice and on Hart's place within it.
One of Lacey's major themes is the key role that Hart played in the
transformation of jurisprudential methodology. Prior to Hart, juris-
prudence was, to be sure, a theoretical topic, but it was only rarely a

* Frank Stanton Professor of the First Amendment, John F. Kennedy School of Government,
Harvard University, and Daniel R. Fischel and Sylvia M. Neil Distinguished Visiting Professor of
Law (Fall 2005), University of Chicago. I am grateful that Larry Alexander, Brian Bix, Brian Le-
iter, James Nickel, Vlad Perju, and Kenneth Winston took time out from their own work to com-
ment on mine, and equally appreciative of research support from the Joan Shorenstein Center on
the Press, Politics and Public Policy and from the University of Chicago Law School, where the
final stages of this essay were completed.
1 See especially the review by Thomas Nagel, The Central Questions, LONDON REV. BOOKS,
Feb. 3, 2oo5, at 12, and the various responses it elicited: Simon Blackburn & Jeremy Waldron,
Letter to the Editor, LONDON REV. BOOKS, Feb. I7, 2005, at 4; and Joanna Ryan, Letter to the
Editor, LONDON REV. BOOKS, Feb. 17, 2005, at 4. For Nagel's rejoinder to these responses, see
Thomas Nagel, Letter to the Editor, LONDON REV. BOOKS, Feb. 17, 2005, at 4.
2 See Samantha Besson, Deconstructing Hart, 6 GERMAN L.J. 1093, 1102-05, 1107 (2005)
(reviewing A Life of H.L.A. Hart); Carlin Romano, A Philosopher's Humility, CHRON. HIGHER
EDUC., June io, 2005, at Bio (same); A.W.B. Simpson, Stag-hunterand Mole, TIMES LITERARY
SUPPLEMENT, Feb. ii, 2oo5, at 6 (same).
2oo6] BOOK REVIEW

philosophical one. Hart's own philosophical proclivities and training,

however, combined with his close connection to the Oxford philosophi-
cal community, led him to reconceive the methodology of jurispru-
dence almost exclusively in analytic philosophical terms. But although
this methodological transformation has helped to assure Hart's endur-
ing importance, Lacey is hardly convinced that this metamorphosis has
been an unqualified good. To her, the shift of jurisprudence from a le-
gal subject to a philosophical one has too often removed from juris-
prudential inquiry those empirical dimensions whose examination re-
mains crucial to understanding the phenomenon of law (pp. 259-6o).
Lacey's book is largely an admiring biography, but her admiration is
tempered throughout by her persistent - albeit usually gentle - cen-
sure of Hart's vision of jurisprudence and his role in what it has
3
become.
Yet although the philosophication of jurisprudence has had, for
better or worse, lasting significance, the same cannot be said for many
of Hart's substantive contributions. Largely as a result of the chal-
lenges of Ronald Dworkin, Hart's successor as Professor of Jurispru-
dence at Oxford, much of Hart's work has been called upon to support
one or the other side of debates about adjudication and about the ex-
planatory virtues of different versions of legal positivism. Yet Hart
himself was less focused on these topics than is now assumed, and they
only make brief appearances in his major works. Lacey is thus right
to emphasize Hart's often neglected contributions, for in doing so she
helps us take from Hart's work important lessons about the nature of
law that have little to do with many of the contemporary debates.
My goal here is to focus on these two central features of Lacey's
Hart: his transformation of jurisprudence into a philosophical disci-
pline and his attention to the largely nonadjudicative but importantly
systemic features of law. In stressing these themes I hope not only to
call attention to the significance of Lacey's book, but also to offer
somewhat of my own retrospective on Hart's importance. As I will
make clear, Lacey helps us see Hart more broadly than many of the
current debates that Hart has inspired would have us view him. And
in thus grasping the broader Hart we can take a step toward reclaim-
ing some of the profound but now neglected aspects of his work.

I. HART IN BRIEF
Lacey's book is many things. For one, it is an engaging account of
the Oxford environment in the twentieth century, especially from the
late 1920S through the 197os. Even those uninterested in jurispru-

3 Indeed, Lacey announces at the outset that she has "come to take a more critical view" of
Hart's "vision of the distinctively philosophical boundaries of legal theory" (pp. xviii-xix).
 HARVARD LAW REVIEW [Vol. II19:852

dence would profit from reading this story of student life, faculty re-
sponsibilities, the role of the colleges, and the numerous social and po-
litical undercurrents that surrounded this highly visible and influential
institution. And the book also portrays well, albeit with an Oxford fo-
cus, the special character of wartime England, the psychological and
political dimensions of homosexuality, and the omnipresent but often
subtle anti-Semitism that pervaded even the allegedly most tolerant of
academic circles.
Yet for all of this, Lacey's book is primarily about Herbert Lionel
Adolphus Hart, "Herbert" to his friends (and to Lacey), and "H.L.A."
only, as was the British style of the times, in the author identification
of his books and articles. It is a book about an intellectually gifted
Jewish young man from a comfortable but decidedly trade background
who, after shining at Oxford, embarked on a career as a practicing
lawyer. Indeed, unlike most of those who now (or did then) fancy
themselves as legal theorists, Hart had an extensive and successful ca-
reer practicing law (pp. 43-5 I), spending more than eight years as a
full-time member of the chancery bar doing most of the things - giv-
ing informal advice and formal opinions on issues of property and es-
tates, preparing elaborate pleadings, arguing in court, assisting senior
members of his chambers, and toadying to the solicitors who could
provide him with work - that were characteristic of English barris-
ters with an equity practice. It was only after wartime intelligence
service that Hart, by then almost forty years old, confronted his dissat-
isfaction with the practice of law and belatedly took up the entreaties
to an academic career that had been held in front of him since his stu-
dent days.
Upon returning to Oxford, Hart found himself in the midst of the
movement commonly known as ordinary language philosophy. Under
the influence of J.L. Austin, philosophers like Stuart Hampshire, Gil-
bert Ryle, and many others came to believe that most of the traditional
problems of philosophy - and not just or even primarily problems in
the philosophy of language - could be illuminated and occasionally
solved by close attention to the nuances and distinctions embedded in
everyday talk. Hart was Austin's friend and colleague at Oxford, and
just as Hart was influenced by these new philosophical trends, so too
was Austin influenced by his discussions with Hart (pp. 144, 147-48,
i68). In identifying what he then called "performative utterances" -
words whose very utterance did not describe or state something, but
rather did something4 - Austin was almost certainly assisted by Hart

4 See J.L. AUSTIN, PHILOSOPHICAL PAPERS 220-39 (JO. Urmson & G.J. Warnock eds.,
1961 ) [hereinafter AUSTIN, PHILOSOPHICAL PAPERS]. See generally J.L. AUSTIN, HOW To Do
THINGS WITH WORDS (JO. Urmson ed., 1962) (providing Austin's broader theory of speech
2006] BOOK REVIEW

in seeing law as a primary locus for just this kind of speech act. For
instance, when a contract or other legal instrument uses the word
"hereby," it means not to describe a distant legal act but to emphasize
the legal consequence of these words. And when the justice of the
peace pronounces people married they are married, just as the word
"guilty," when uttered by the jury foreman, makes the defendant guilty,
at least in the eyes of the law.5
Ordinary language philosophy, along with its philosophical fellow
traveler, the work of the later Wittgenstein, 6 has had something of a
mixed history. But there can be little doubt that it flourished in late-
194os and 1950s Oxford (and in the case of Wittgenstein, in Cam-
bridge), and equally little doubt that it had a major effect on Hart. Its
effect on Hart, however, was not simply in its influence on how he
himself thought about law. The larger consequence was in persuading
Hart that legal theory itself could and should be an essentially phi-
losophical enterprise in just the linguistic and analytic sense that
dominated the philosophical environment in which he lived and
worked. Lacey is somewhat ambivalent about whether Hart was truly

acts); J.L. AUSTIN, SENSE AND SENSIBILIA (G.J. Warnock ed., 1962) (discussing ordinary lan-
guage philosophy).
5 In his first published academic article, Hart was influenced by Austin's account of perfor-
matives to such an extent that he characterized much of legal language as ascribing legal conse-
quences to actions rather than describing those actions. See H.L.A. Hart, The Ascription of Re-
sponsibility and Rights, in 49 PROCEEDINGS OF THE ARISTOTELIAN SOCIETY NEW SERIES
171, 17 1-72 (Harrison & Sons, Ltd. 1949). As several critics pointed out, however, legal performa-
tives such as a jury pronouncement of guilt are descriptive as well as prescriptive because the per-
formative verdict presupposes the determination that the defendant did in fact commit the acts
supporting the conclusion of guilt. See PT. Geach, Ascriptivism, in ETHICS 22, 25-26 (Judith J.
Thomson & Gerald Dworkin eds., 1968); George Pitcher, Hart on Action and Responsibility, 69
PHIL. REV. 226, 226 (196o). In the face of this criticism, Hart eventually recanted his earlier posi-
tion. See H.L.A. HART, Introduction to ESSAYS IN JURISPRUDENCE AND PHILOSOPHY i, I-2
(1983) [hereinafter HART, Introduction]. Yet Hart's analysis may have more to it than his per-
haps too-hasty concession suggests. Although it is true that a verdict of guilty is in part a descrip-
tive factual statement, the verdict also serves definitively (questions of appeal aside) to make the
defendant guilty for legal purposes. The descriptive presupposition of the ascriptive statement is
worth noting, therefore, but detracts only slightly from the fundamental idea of ascriptivism. In
H.L.A. Hart, Definition and Theory in Jurisprudence, 70 LAW Q. REV. 37 (1954), reprinted in
ESSAYS IN JURISPRUDENCE AND PHILOSOPHY, supra, at 2 1, Hart no longer talked of ascrip-
tivism as such, but his characterization of legal language in significantly performative terms made
it clear that Hart's close intellectual ties to Austin continued to influence him. See also Timothy
A.O. Endicott, Law and Language, in THE OXFORD HANDBOOK OF JURISPRUDENCE AND
PHILOSOPHY OF LAW 935, 960-66 (Jules Coleman & Scott Shapiro eds., 2002) (discussing Hart's
shifting views about the performative aspects of legal statements).
6 See LUDWIG WITTGENSTEIN, ON CERTAINTY (G.E.M. Anscombe & G.H. von Wright
eds., Denis Paul & G.E.M. Anscombe trans., Harper & Row 1972) (1969); LUDWIG
WITTGENSTEIN, PHILOSOPHICAL INVESTIGATIONS (G.E.M. Anscombe trans., 3 d ed. 1958);
see also LUDWIG WITTGENSTEIN, REMARKS ON THE FOUNDATIONS OF MATHEMATICS
(G.H. von Wright et al. eds., G.E.M. Anscombe trans., rev. ed. 1983); LUDWIG WITTGENSTEIN,
ZETTEL (G.E.M. Anscombe & G.H. von Wright eds., G.E.M. Anscombe trans., 2d ed. I98i).
 HARVARD LAW REVIEW [Vol. 119:852

convinced of the merits of an analytic philosophical approach to juris-

prudence, or whether, as a late-starting insecure Jewish academic in
what was thought by the Oxford heavyweights to be a decidedly non-
intellectual field, he was seeking to attach himself to a particularly in-
fluential group of Oxford scholars (pp. 142-44).7 But whatever the
motivation, the results were clear. Hart was little interested in system-
atically cataloguing the main strands of common law thought, and
thus distanced himself from the jurisprudence treatise writers of the
time - scholars whose work relied heavily on reported cases, whose
goal was to organize uncritically the themes in those cases, and whose
books thus contained chapters like "negligence," "possession," "owner-
ship," and "responsibility.'' 8 And Hart was equally uninterested in his-
torical, sociological, anthropological, or psychological accounts of the
phenomenon of law. For Hart, to do jurisprudence was to philoso-
phize about legal phenomena in a language-focused and analytical
style. Hart's approach was sufficiently unique that even his beginning
efforts in this direction attracted considerable local attention, and he
was elected, on a scanty publication record but with great support
from the philosophers and much acclaim for his intelligence and in-
sight, as the Professor of Jurisprudence at Oxford in 1952 (pp. 149-5 i).
With the publication of The Concept of Law 9 in 1961, Hart's repu-
tation was assured. Although some of the book built on themes from
his debates with Lon Fuller 0 and on his earlier writings about legal
language, the book represented Hart's first comprehensive effort to
understand the phenomenon of law from a philosophical perspective.
This effort yielded numerous insights about the nature of rules, the
structure and foundations of a legal system, the sources of law, and the
character of legal obligation. It was Hart's lasting achievement, and
although he also did pathbreaking work on the legal enforcement of

7 As Lacey notes, "he was drawn to the dry, commonsensical Englishness of Austin's version
of linguistic philosophy - an upper class, establishment Englishness which plugged a gap in his
own sense of identity, born of his searing Cheltenham experiences as a Jewish boy from a trade
background" (p. 142).
8 See, e.g., C.K. ALLEN, LAW IN THE MAKING (3d ed. 1939); R.W.M. DIAS, JURIS-
PRUDENCE (5th ed. 1985); JOHN SALMOND, JURISPRUDENCE (Glanville L. Williams ed., ioth
ed. 1947). For an extensive account of the state of jurisprudence at the time, see generally Neil
Duxbury, English Jurisprudence Between Austin and Hart, 91 VA. L. REV. i (2oo5). Although
Hart also dealt with similar topics, they were for him only starting points for a more philosophical
analysis of the broader dimensions of the law itself.
9 H.L.A. HART, THE CONCEPT OF LAW (2d ed. 1994).
10 See Lon L. Fuller, Positivism and Fidelity to Law - A Reply to ProfessorHart, 71 HARV.
L. REV. 630 (1958); H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 HARV. L.
REV. 593 (1958).
2oo,6] BOOK REVIEW

4
morality,'1 on causation, 12 on Bentham, 13 on the nature of authority,
5
on punishment,' and on various other topics, it is The Concept of Law
that is his signal work. Indeed, it is The Concept of Law that explains
why Hart can be the subject of a lengthy biography and why that
lengthy biography can be the topic for an essay in the Harvard Law
Review.

II. THE PHILOSOPHIZING OF JURISPRUDENCE

It is fashionable these days to equate jurisprudence with the phi-
losophy of law, and for this Hart deserves much of the credit - or
blame. As Lacey emphasizes throughout, Hart was committed to -
some might say obsessed with - making jurisprudence a subject for
philosophers, and developing his own jurisprudence in a way that pre-
served a philosophical distinctiveness reflecting the conceptual analytic
style of 1940S, 195OS, and i96os Oxford philosophy. And by bringing
the methodology of analytic philosophy so heavily into the jurispru-
dence of the times, Hart took the study of jurisprudence in a signifi-
cantly new direction.
If we understand jurisprudence as the not-necessarily-philosophical
study of the nature of law and its processes, and if we understand the
philosophy of law as the branch of philosophy that uses philosophical
tools and concepts to examine law's nature, goals, and methods, we
can see that the two overlap but are not congruent. And from this
vantage point, we can best understand Hart's achievement in making
jurisprudence a philosophical discipline by reflecting on the terrains of
both jurisprudence and philosophy at the time that Hart began to
bridge the gap between them. Prior to Hart, jurisprudence was not
generally understood as a philosophical discipline, certainly not in the
sense of being connected with the largely analytic, nonspeculative,
nonempirical, and language-focused style of philosophy that character-
ized much of Anglo-American philosophy from Bertrand Russell
through the time that Hart did his most important work. Indeed, al-
though many of the early theorists of law - from Plato, Aristotle, and

11 See generally H.L.A. HART, LAW, LIBERTY AND MORALITY (1963).

12 See generally H.L.A. HART & A.M. HONOR9, CAUSATION IN THE LAW (1959).
13 See generally JEREMY BENTHAM, AN INTRODUCTION TO THE PRINCIPLES OF
MORALS AND LEGISLATION (J.H. Burns & H.L.A. Hart eds., 1970); JEREMY BENTHAM, OF
LAWS IN GENERAL (H.L.A. Hart ed., 197o); H.L.A. HART, ESSAYS ON BENTHAM (1982).
14 See generally H.L.A. HART, Commands and Authoritative Legal Reasons, in ESSAYS ON
BENTHAM, supra note 13, at 243 (introducing the idea of content-independent reasons for action).
15 See generally H.L.A. HART, PUNISHMENT AND RESPONSIBILITY: ESSAYS IN THE
PHILOSOPHY OF LAW (1968).
 HARVARD LAW REVIEW [Vol. 119:852

Cicero to Thomas Aquinas, Jeremy Bentham, and John Austin 16 -

were philosophers, they were also political theorists, moralizers, and
more wide-ranging thinkers, and none flourished at a time when phi-
losophy was thought to be a distinct technical discipline with its own
characteristic methods. From the time that philosophy became a more
or less professional and specialized discipline - sometime around the
late nineteenth century - not a single truly major philosopher was es-
pecially interested in law. Neither Russell nor Wittgenstein, nor G.E.
Moore, Gottlob Frege, or A.J. Ayer, nor any other professional phi-
losopher of that stature, had any particular interest in philosophizing
about law. And this is because they largely thought law a practical
discipline with few features of deep philosophical interest. Sort of like
dentistry. Or plumbing. The major philosophers of the first half of
the twentieth century used logic and precise analytic argumentation to
explore the nature of truth, mind, action, and language, but they rarely
trained these increasingly technical analytical tools on everyday human
institutions such as law. Although J.L. Austin, largely through his
friendship with Hart, came to see some of the philosophical issues
raised by law and legal institutions, Anglo-American analytic philoso-
phy before Hart was not particularly concerned about law.
The gap between law and philosophy was not only a product of the
disdain in which many philosophers of the time held lawyers, aca-
demic and nonacademic alike, but was also nurtured by even those
academic lawyers with intensely theoretical interests. With the excep-
tion of Hans Kelsen, trained as a lawyer but steeped in some aspects of
technical philosophy, the most prominent legal theorists of the first
part of the twentieth century - Roscoe Pound, Karl Llewellyn, Max
Radin, Arthur Goodhart, Julius Stone, Lon Fuller, and others - were
lawyers with a speculative and theoretical bent, and were at times in-
terested in and knowledgeable about some aspects of philosophy.'7
But they had at most a passing interest in the intricacies of the increas-
ingly technical, specialized, and professional discipline of analytic phi-
losophy.'8 To be sure, they thought more broadly and deeply about the

16 No relation to J.L. Austin, and roughly a century his senior. His major work is JOHN
AUSTIN, THE PROVINCE OF JURISPRUDENCE DETERMINED AND THE USES OF THE
STUDY OF JURISPRUDENCE (Isaiah Berlin et al. eds., 1954).
17 I do not want to overstate the point. Kelsen did have an enduring and sophisticated immer-
sion in neo-Kantian themes and was thoroughly familiar with Logical Positivism. Fuller was se-
riously interested in (now) less well-known philosophers such as Morris Cohen and Hans Vai-
hinger, and even earlier there was Holmes's close connection with American Pragmatism.
18 See Michael S. Moore, Introduction to H.L.A. HART, THE CONCEPT OF LAW 3, 4 (Legal
Classics Library i9go) ("Much of what passed for legal philosophy [prior to Hart] consisted of the
vague gesturings towards grandeur of lawyers or judges who ... put their feet up on their desks
and pontificated about law, or common law, or judging, in general.... [Even] when they were not
explicitly anti-philosophical .... they were at best dabblers in the philosophy of their time.").
200o6] BOOK REVIEW

nature of law and its processes than most of those who wrote treatises
on jurisprudence. Still, the major figures of early-twentieth-century
legal theory tended to believe that fundamental thinking about law's
functions, methods, institutions, and decisions was better informed by
extensive knowledge of law than by anything that philosophy could
add. For example, Arthur Goodhart, Hart's predecessor as Professor
of Jurisprudence at Oxford, was a titan of English law and an impor-
tant theorist of broad common law themes - especially the nature of
precedent, the sources of legal authority, and the character of common
law reasoning. But he was no philosopher (p. 158), a characteristic not
lost on the Oxford philosophers and those who wished to travel in
their circles.
Against this background, it is easier to appreciate the substantial
transformation represented by Hart's successful efforts to make juris-
prudence more philosophical. What caused Hart to spur the philoso-
phizing of legal theory is a complex question, but Lacey persuasively
shows that it was some combination of Hart's longstanding interest in
and commitment to philosophy, Austin's recognition both of Hart's
philosophical talents and of the importance of legal examples to speech
act theory, the rising prestige of philosophy at Oxford in the 195os, and
Hart's own felt need to be accepted within Oxford philosophical cir-
cles (pp. 127-78). For all of these reasons, and possibly others, Hart
reached out to the philosophers in ways that Goodhart had never con-
sidered, and the philosophers reciprocated the attention. Indeed, the
obvious and presumably intentional parallel between the titles of
9
Hart's The Concept of Law and Ryle's The Concept of Mind punctu-
ates Hart's efforts to bridge the gap between the lawyers and the
philosophers.
Seeing jurisprudence as an essentially philosophical discipline
drove Hart's own jurisprudential approach. Like his philosophical
colleagues of the time, he examined ordinary usage closely for the dis-
tinctions it embodied and rigorously analyzed and defined the terms
used to mark legal concepts. He also worked at puncturing the pre-
tensions of overarching theories to focus on the real questions that
prompted them and to identify the important features of law as he
knew it. Throughout his analyses he drew upon then-current philoso-

The major exception to this picture is represented by the Scandinavian Realists - most fa-
mously Alf Ross, Axel Hhgerstr0m, Vilhelm Lundstedt, and Karl Olivecrona - legal philosophers
inspired by 192OS Logical Positivism who sought to apply its lessons to law. For a recent and
valuable discussion of the Scandinavian Realists, see Gregory S. Alexander, Comparing the Two
Legal Realisms - American and Scandinavian, 50 AM. J. COMP. L. 131, 148-62 (2002). Hart
himself discussed their work in H.L.A. Hart, Scandinavian Realism, 17 CAMBRIDGE L.J. 233,
235-4 G(959).
19 GILBERT RYLE, THE CONCEPT OF MIND (1949).
 HARVARD LAW REVIEW [Vol. i i9:852

phical ideas but also relied heavily upon his own pure insight. So al-
though The Concept of Law opens with the announcement that it is a
work of "descriptive sociology," 20 the identification is one that few so-
ciologists would be able to fathom. The claim of doing descriptive so-
ciology most likely refers to the empirical dimensions of ordinary lan-
guage philosophy, in which perceptive observation of the distinctions
embedded in language enables the observer to draw conclusions about
nonlinguistic phenomena.2 1 And to some extent it may also be a claim
resting on Hart's substantial experience as a practicing lawyer, which
gives some empirical credibility to his perceptions of the central char-
acteristics of legal systems.2 2 Finally, and perhaps less self-consciously,
Hart's claim to be doing descriptive sociology might be an implicit
recognition that to explain the concept of law is to engage in a descrip-
tive practice ultimately grounded in observation of actual legal sys-
tems.2 3 Conceptual analysis, as Hart surely must have recognized, in-
evitably rests at least in part on empirical observation, and this

20 HART, supra note 9, at v.

21 Thus, Hart quotes J.L. Austin for the proposition that it is possible to use "a sharpened
awareness of words to sharpen our perception of the phenomena." Id. The quotation is a para-
phrase from AUSTIN, PHILOSOPHICAL PAPERS, supra note 4, at 130.
22 See Frederick Schauer, The Limited Domain of the Law, go VA. L. REV. 1909, 1912 (2004).
23 This is a tricky issue, for it is a subject of continuing jurisprudential debate (and one con-
nected to a larger debate in philosophy about conceptual analysis generally, see FRANK
JACKSON, FROM METAPHYSICS TO ETHICS: A DEFENCE OF CONCEPTUAL ANALYSIS 28-86
(1998)) whether those who purport to explain the concept of law or to do what is usually called
"general jurisprudence" are theorizing about all possible legal systems in all possible worlds, only
about all actual legal systems, only about all modern legal systems in advanced societies, or only
about the legal systems of certain families of modern legal cultures. So although it is widely ac-
cepted that to describe the concept of law is to describe our concept of law now, see Brian H. Bix,
Raz on Necessity, 22 LAW & PHIL. 537, 546-49 (2003); Jules L. Coleman, Incorporationism,Con-
ventionality, and the Practical Difference Thesis, 4 LEGAL THEORY 381, 393 n.24 (1998); Joseph
Raz, Can There Be a Theory of Law?, in THE BLACKWELL GUIDE TO THE PHILOSOPHY OF
LAW AND LEGAL THEORY 324, 331-32 (Martin P. Golding & William A. Edmundson eds.,
2005), there remains the question of whether we develop our concept of law on the basis of what
we have observed in all legal systems or only some of them. Compare W.W. BUCKLAND, SOME
REFLECTIONS ON JURISPRUDENCE 69-70 (1945) (questioning the enterprise of general juris-
prudence), with JULIE DICKSON, EVALUATION AND LEGAL THEORY 15-25 (2001) (restricting
the enterprise of analytical jurisprudence to the identification of all necessary features of the law).
And in the course of refusing to provide a definition of "law," Ronald Dworkin has made clear
that he is describing and theorizing about the behavior of legal actors in certain modern legal cul-
tures. Ronald Dworkin, A Reply by Ronald Dworkin, in RONALD DWORKIN AND CONTEMP-
ORARY JURISPRUDENCE 247, 250-52 (Marshall Cohen ed., 1984); Ronald Dworkin, Legal The-
ory and the Problem of Sense, in ISSUES IN CONTEMPORARY LEGAL PHILOSOPHY 9,16 (Ruth
Gavison ed., 1987); Raz, supra, at 332 (noting that Dworkin's views seem to be parochial in their
intended scope). Of course, to the extent that Dworkin's playing field is smaller than that of oth-
ers, the risk of theorists talking past each other is increased. See Matthew H. Kramer, Coming to
Grips with the Law: In Defense of Positive Legal Positivism, 5 LEGAL THEORY 171, 172 (1999).
2006] BOOK REVIEW

empirical foundation of conceptual analysis could

24
also implicitly un-
dergird his claim to be doing descriptive sociology.
But although Hart commandeered the word "sociology," he was in-
sistent throughout his career on developing his own theory of law - as
well as the enterprise of legal theory in general - in a way that would
distance it from down-in-the-weeds, get-your-fingernails-dirty empiri-
cal inquiry (pp. 260-62). In The Concept of Law, Hart takes the Real-
ists to task for overemphasizing prediction, concentrating excessively
on the "bad man," and obsessing about the uncertainty of law.2 5 The
real divide, however, is located between the largely empirical mission
of the Realists and the largely nonempirical conceptual goals that Hart
was committed to promoting.2 6 Time and again Lacey shows Hart
stressing that philosophical theorizing about law in general and the
concepts it incorporates - duty, obligation, responsibility, authority,
rules, and many others - could and should be pursued without re-
course to empirical inquiry into the contingent features of actual legal
systems.
Yet Hart's interest in doing jurisprudence philosophically is only a
small part of the story. Hart's methods did substantially influence his
own approach and conclusions, largely for the better, and set him
apart from those legal dilettantes who would merely include philoso-

24 On this understanding of the sociological claim and on why real sociologists would resist it,
see NEIL MACCORMICK, H.L.A. HART 3, 5, 39, 78 (ig8i). On the strongly empirical dimensions
of conceptual claims about the nature of law, see William Twining, Have Concepts, Will Travel:
Analytical Jurisprudence in a Global Context, I INT'L J.L. CONTEXT 5 (2005), which shows the
problematic nature of general jurisprudence through international analysis of legal concepts.
25 HART, supra note 9, at 136-54.
26 See Brian Leiter, Legal Realism and Legal Positivism Reconsidered, iiI ETHICS 278, 279
(2001) (arguing that Hart overlooked the empirical dimension to the rule skepticism of the Real-
ists). Although Lacey's larger critique of Hart's antiempirical approach is sound, she seems mis-
taken in attributing Hart's resistance to Wittgenstein to the empirical implications of a Wittgen-
steinian approach (p. 219). Although it is true that understanding the social and institutional
context of an utterance requires knowledge of the world, there is no more reason to believe, pace
Lacey, that Wittgenstein's essentially philosophical points about the contextual nature of language
demand historical or social knowledge of particular contexts than that philosophical arguments
about epistemology demand knowledge of the history of true and false propositions. Given that
Hart relied heavily on F.M. Waismann, one of Wittgenstein's principal disciples, for his discussion
of the "open texture" of law, HART, supra note 9, at 127-36, 297 (citing Friedrich Waismann, Veri-
fiability, in ESSAYS ON LOGIC AND LANGUAGE I 17, '17-30 (Antony Flew ed., 95 )); see also
BRIAN BIX, LAW, LANGUAGE, AND LEGAL DETERMINACY 7-17 (1993), and appeared sympa-
thetic to Wittgensteinians like John Wisdom and Peter Winch, see HART, supra note 9, at 277-78,
289, Hart was likely not averse to basic Wittgensteinian ideas. Much more likely is that Hart's
attraction to Austin and distance from Wittgenstein were largely a function of Hart's distaste for
Wittgenstein's aphoristic and opaque writing style (p. 218), partly a function of an Oxford-
Cambridge divide in which Austin was a central Oxford figure while Wittgenstein's orbit centered
around Cambridge, and partly a function of the fact that Wittgenstein was notoriously moody,
short-tempered, dismissive, impatient, unpredictable, and mercurial - and that was on his good
days.
 HARVARD LAW REVIEW [Vol. 1i9:852

phy in an extensive portfolio of nonlegal interests and inspirations.

But more noteworthy than the effects of Hart's methods on his own
work is the extent to which his philosophical predilections proceeded
to transform the field of jurisprudence.27 Some of this transformation
was a function of the explanatory and analytic power of Hart's own
work. Yet part of the explanation must also lie with the rising from
the ashes of normative moral and political philosophy within a decade
after the publication of The Concept of Law,28 with Hart's fostering of
a talented group of students who went on to become influential legal
philosophers in their own right (p. 158), with the various conditions
that caused North American law schools to become attractive places
for philosophically trained students and faculty, with the growing in-
terdisciplinarity of legal education and legal scholarship worldwide,
and with the personal generosity and attractiveness of Hart himself.
For all of these reasons and more, Hart's effort to make jurisprudence
into a philosophical field has succeeded far beyond what he reasonably
could have expected.

III. THE COSTS OF PURITY

Bringing philosophical sophistication to the theoretical study of the
phenomenon of law has yielded great benefits. The clarity of lan-

27 This seems the appropriate place to offer a crucial terminological excursus and disclaimer.
Although no one would deny that the philosophy of law is both a philosophical subject and a
branch of philosophy (just like the philosophy of mathematics and the philosophy of science), the
relationship between the philosophy of law and the not necessarily philosophical field of jurispru-
dence is far more debatable. Thus, the real issues are twofold. First is the question whether the
philosophy of law, strictly understood, can include the genuine insights of those as philosophically
unsophisticated as, for example, Goodhart and Fuller. And second is the question whether the
very subjects that philosophers of law examine require or would at least be substantially assisted
by empirical inquiry. To the extent that empirical inquiry of some sort is necessarily a part of phi-
losophy itself, see Brian Leiter, Beyond the Hart/Dworkin Debate: The Methodology Problem in
Jurisprudence, 48 AM. J. JURIS. 17, 43-51 (2003), it follows that Hart's aspirations for largely
nonempirical philosophical purity are destined to failure. But the argument from philosophical
naturalism is slightly beside the point, or at least beside my point, for the issue of the empirical (or
not) dimensions of philosophy is philosophy's problem or maybe even the philosophy of law's
problem, but not necessarily jurisprudence's problem. If we understand jurisprudence as the kind
of theorizing about law that encompasses both the very idea of law as well as the transdoctrinal
and transnational features of law and legal thought, then jurisprudence's problem is how best to
use the insights from various perspectives and disciplines to advance our understanding of the
phenomenon of law. The concern expressed by Lacey in this book, and a concern with which I
sympathize, is not that the philosophy of law in the strict sense is or is not sufficiently empirical.
Rather, it is that the potentially hegemonic tendencies of modern analytic philosophy of law will
ignore or undervalue many genuinely important jurisprudential contributions that may not be
strictly (or even not-so-strictly) philosophical.
28 Here, the watershed event is surely the publication of JOHN RAWLS, A THEORY OF
JUSTICE (1971). Stephen Darwall calls the late i96os and the 197os the "Great Expansion" of
normative ethics. Stephen Darwall, Learningfrom Frankena: A Philosophical Remembrance, 107
ETHICS 685, 685 (1997).
2006] BOOK REVIEW

guage, precision of argument, and rigor of analysis that are common to

much of the best of modern philosophy - and not just the ordinary
language version that Austin and his compatriots practiced - have
helped us to better understand legal reasoning, legal argument, the re-
lationship between law and morality, the normative force of law, and
the nature of law itself. Moreover, drawing on the best philosophical
learning about causation, free will, responsibility, actions, intentional-
ity, obligation, promising, and language has facilitated tackling many
of the enduring and pervasive problems of law. And still further, our
understanding of law's greater goals has benefited from consulting the
developments in moral and political philosophy of the past thirty
years.
Yet these benefits have not come without costs, some of which in-
volve the insufficient attention to important theoretical insights pre-
sented without philosophical sophistication, and others which come
from the traditional tension between philosophical method and empiri-
cal inquiry. Turning to the first, we have witnessed the increasing ex-
clusion from the jurisprudential canon of those genuinely deep insights
about the operation of the law that may not be matched by their au-
thor's knowledge of, talent in, or sympathy for philosophy. There are
many examples, but a widely held negative view of Fuller is a good il-
lustration of the problem.2 9 To assess that view, we can reprise the
30
1958 debate in the pages of this journal between Hart and Fuller,
which is actually composed of two debates. One of the two, famously,
concerns natural law and positivism. Writing when Nazi atrocities
were a vivid and recent memory, Hart and Fuller agreed that societies
would be better off were citizens to refuse, unlike most Germans under
Hitler, to obey morally odious official directives. For Hart the positiv-
ist, such morally justified disobedience would most likely occur if citi-
zens understood that law and morality were distinct, and that a direc-
tive's status as law said nothing whatsoever about the citizen's (or
official's) moral obligation to obey it. 3 1 But for Fuller, then in the
midst of developing his own procedural version of natural law, 32 it was
too late in the day to expect people to accept this distinction. If some-
thing is designated as "law," Fuller believed, then people are going to

29 Leslie J. Green & Brian Leiter, Letter to the Editor, TIMES LITERARY SUPPLEMENT, Mar.
II, 2005, at I5 (referring to Fuller as "famously muddled").
30 See Fuller, supra note Io; Hart, supra note io. The debate also includes parts of The Con-
cept of Law, especially pages 200-12, Hart, supra note 9; Fuller's chapter A Reply to Critics in
LON L. FULLER, THE MORALITY OF LAW 187-242 (rev. ed. 1969); and H.L.A. Hart, Book Re-
view, 78 HARV. L. REV. 1281 (1965) (reviewing FULLER, supra).
31 Hart, supra note xo, at 620 ("[L]aws may be law but too evil to be obeyed.").
32 See FULLER, supra note 30, at 96-97.
 HARVARD LAW REVIEW [Vol. 11i9:85 2

3
obey it.A Consequently, he argued, it would be best to withhold the
label of "law" from those directives that are so procedurally defective
34
that they could not really be called law at all.
Revisiting this part of the Hart-Fuller debate leaves the reader with
little doubt as to whose argument was presented with greater philoso-
phical acumen and analytic precision. Fuller jumbles his procedural
version of natural law with the more traditional substantive one, mis-
characterizes the central strands of the positivist tradition, 35 and never
really makes clear what he means by the "internal morality of the
law,"'36 at times claiming that the procedures and methods of legality
have an empirical tendency toward substantive correctness, 37 and at
other times seeming to believe that what we now call the rule of law
inherently possesses an implicit morality.38 And while Fuller's position
is elusive and unsystematically presented, Hart's arguments are a con-
trasting model of clarity, precision, and logic.
But as we look back at the debate and recognize who was clearly
the better debater and the more rigorous philosopher, we are far less

33 Fuller, supra note io, at 632. Fuller's point is supported and developed further in Anthony
D'Amato, The Moral Dilemma of Positivism, 20 VAL. U. L. REV. 43 (1985).
34 It is noteworthy that both Fuller and Hart agreed that one reason for favoring a particular
concept of law was that desirable moral consequences would flow from accepting it. See Joseph
Mendola, Hart, Fuller,Dworkin, and Fragile Norms, 52 SMU L. REV. II, 111-2 1 (1999); Freder-
ick Schauer, Positivism as Pariah, in THE AUTONOMY OF LAW: ESSAYS ON LEGAL
POSITIVISM 31, 47 (Robert P.George ed., 1996) [hereinafter Schauer, Positivism as Pariah];Fre-
derick Schauer, Positivism Through Thick and Thin, in ANALYZING LAW: NEW ESSAYS IN
LEGAL THEORY 65, 76 (Brian Bix ed., 1998). However, when viewed through the lens of mod-
ern conceptual jurisprudential analysis, both Fuller and Hart were mistaken in thinking that the
beneficial moral consequences flowing from accepting or rejecting a particular concept of law
were even relevant, for the task, it is said, is simply to describe the concept of law and not to
evaluate whether the existing concept of law is a good one to have. See DICKSON, supra note 23,
at 84-93. It is intriguing that in The Concept of Law Hart abjures just the kind of argument on
which he relied so heavily in his debate with Fuller (pp. 351-52), thus providing some support for
Lacey's argument that Hart came to shy away from any argument that rested heavily on empiri-
cal claims. I argue that Hart got it right the first time around in Frederick Schauer, The Social
Construction of the Concept of Law: A Reply to Julie Dickson, 25 OXFORD J. LEGAL STUD. 493
(2005).
35 See Brian Leiter, Positivism, Formalism, Realism, 99 COLUM. L. REV. 1138, 1139, 1153
n.48 (1999) (reviewing ANTHONY J. SEBOK, LEGAL POSITIVISM IN AMERICAN JURIS-
PRUDENCE (1998)); Stanley L. Paulson, Lon L. Fuller, Gustav Radbruch, and the "Positivist"
Theses, 13 LAW & PHIL. 313, 342-44 (1994) (suggesting that Fuller confused generic legal positiv-
ism and statutory legal positivism).
36 FULLER, supra note 30, at 4 (internal quotation mark omitted); Fuller, supra note lo, at 645
(internal quotation mark omitted).
37 Fuller, supra note io,at 636 ("I also believe that when men are compelled to explain and
justify their decisions, the effect will generally be to pull those decisions toward goodness ....
").
For discussion of this claim, see SEBOK, supra note 35, at 163-67; and Brian H. Bix, Natural
Law: The Modern Tradition, in THE OXFORD HANDBOOK OF JURISPRUDENCE AND
PHILOSOPHY OF LAW, supra note 5,at 61, 81-82.
38 See Fuller, supra note io, at 644-48.
2006] BOOK REVIEW

certain as to who was actually right. Almost fifty years on, we still
have a well-entrenched rhetoric of obedience to law, so firmly embed-
ded in the public's understanding of law that subsequent theorists
more philosophically focused than Fuller have taken the existence of
such an obligation, or at least the widespread belief in its existence, as
the starting point for their accounts of the nature of law.39 And al-
though half a century after the Hart-Fuller debate we rarely talk
about the internal morality of law, we do refer to the rule of law in
ways that owe far more to Fuller than to Hart. 40 At least on this part
of the Hart-Fuller debate, which at its instrumentalist core was em-
pirical and not philosophical, it is hard to conclude that Hart's argu-
mentatively powerful and philosophically sophisticated arguments
have stood the test of time. The debate was an empirical one, but the
empirical preconditions necessary for Hart to have had the better of
the instrumental argument - the possibility that citizens will in fact
believe that law qua law imposes no moral obligations 4 1 - may not
have obtained then, and almost certainly do not obtain now.
Much the same can be said about the other component of the Hart-
Fuller debate: the controversy over the nature of legal interpretation
and the operation of legal rules. In ways that only loosely connect
with the disagreement about positivism and (procedural) natural law,
Hart, with his now-famous example of a rule prohibiting vehicles in

39 The chief example is Ronald Dworkin, who takes the obligation to obey the law as almost a
given for developing a theory of law. For Dworkin, as for Fuller, the empirical fact of the wide-
spread and essentially unchangeable view that law is justifiably coercive means that there is no
space between a satisfactory theory of law (or concept of law, if you will) and a justification of
law's obligatory force. For Dworkin and Fuller, developing a theory of law without including an
account of why law is obligatory is to omit from the theory a contingent but omnipresent feature
of law as we experience it, thus making the theory defective for just that reason. See RONALD
DWORKIN, LAW'S EMPIRE 33-35 (i986); Fuller, supra note io, at 631-33. Much the same ap-
proach is also apparent in PHILIP SOPER, A THEORY OF LAW 38-51 (1984). See also NEIL
MACCORMICK, H.L.A. HART 16i (g8I) ("[I]t seems simply inconceivable that appeals to law
... can ever shed their moral load.... Hence it seems inconceivable that it will ever be thought
other than virtuous. . . for a person to be 'law-abiding' .... ").
40 For example, Fuller is explicitly connected with modern rule of law talk in N.E. Simmonds,
Law as a Moral Idea, 55 U. TORONTO L.J. 61, 67 n.io (2005); and Jeremy Waldron, Normative
(or Ethical) Positivism, in HART'S POSTSCRIPT. ESSAYS ON THE POSTSCRIPT TO THE
CONCEPT OF LAW 411, 428 n.49 (Jules Coleman ed., 2ooi). The basic point is that we commonly
find the rule of law to be absent when a legal system does not include just the kind of procedural
desiderata that Fuller developed in The Morality of Law. See generally FULLER, supra note 30.
What is now called the "rule of law," therefore, is not too far from what Fuller called "law." And
although the two concepts are distinct, the connection between them remains close.
41 The empirical claim that citizens are unlikely to come to believe that the existence of law
and the duty to obey it are distinct is quite different from the philosophical claim that the two in
fact are distinct. In his debate with Fuller, Hart plainly adopted the latter position, one more
fully developed in, for example, A. JOHN SIMMONS, MORAL PRINCIPLES AND POLITICAL
OBLIGATIONS (I979); and M.B.E. Smith, Is There a Prima Facie Obligation To Obey the Law?,
82 YALE L.J. 950 (973).
 HARVARD LAW REVIEW [Vol. -19:852

the park, 42 argued that all rules have a core set of settled applications
despite also having a fringe or penumbra of uncertainty. As a result,
cars and trucks plainly count as vehicles for purposes of this rule, but
bicycles, baby carriages, and roller skates, for example, present diffi-
cult cases that require the exercise of discretion in application of the
rule. Moreover, through his use of the vehicle in the park example,
Hart also appears to be suggesting that the principal determinant of
what is in the core and what is in the fringe is the (largely acontextual)
meaning of the words actually used in the formulation of the rule. 43 In
response to this claim, Fuller provided his equally famous example of
a World War II truck placed in the park as a war memorial, 44 a vivid
example of a case that appeared to Fuller plainly within the literal
meaning of the rule formulation but equally plainly outside the reach
of any plausible interpretation of a legal rule. Law is shaped by pur-
pose and human agency, insisted Fuller throughout his career, and only
by bizarrely interpreting rules without reference to their purposes
could we draw the distinction between core and penumbra upon
which Hart had placed so much weight.
Once again Fuller's argument strikes us as philosophically unso-
phisticated and decidedly nonrigorous. He fails to distinguish among
the meaning of words, the meaning of a rule, and the question of what
a court should do with that rule. 45 He mistakes Hart's conceptual
point about the difference between the core and the penumbra for
Hart's ancillary implication about what determines cores and penum-
bras. He generalizes from the contingent interpretive methods of some
legal systems to what is necessarily true of law itself. And he misreads
the later Wittgenstein as maintaining that no word has meaning out-
side of the context of its particular use on a particular occasion - an
interpretation alien to Wittgenstein's thought, and one that would
make the functioning of language essentially impossible.
Although Fuller in this part of the debate again demonstrated his
shortcomings as an analytic philosopher, he may well have again been
descriptively and empirically correct about the actual functioning of
modern common law systems. Hart insightfully distinguished the core
and penumbral applications of any rule, yet Fuller was on target in
suggesting that purpose rather than language, or language subject to a
purpose constraint, is a far more accurate explanation of how modern

See Hart, supra note io, at 607-08.

42
Id. This focus on the meaning of the words themselves as distinguishing the core from the
43
fringe remains even in Hart's discussion in The Concept of Law. See HART, supra note 9, at 125-
27.
44 Fuller, supra note io, at 663.
45 See ANDREI MARMOR, INTERPRETATION AND LEGAL THEORY 136-37 (1992); Freder-
ick Schauer, Formalism, 97 YALE L.J. 509, 532-35 (i88).
2oo6] BOOK REVIEW

common law interpretation, for better or worse, 46 actually operates. 47

Indeed, it is noteworthy that Hart acknowledged as much some years
later.48 This was as it should be, for anyone reading Fuller's The Case
of the Speluncean Explorers4 9 cannot help but be struck by how in-
sightfully and accurately Fuller describes the various "moves" that
constitute the legal argumentative canon. Fuller may not have been a
professional philosopher or have operated in the philosophical style of
the day, but it is hard to deny the insight of his depiction of modern
common law argument.
Much the same can be said about Goodhart, who comes across in
Lacey's book as a relatively unsympathetic and antiphilosophical
character caught up in resentment of the philosophical incursion into
the (and his) English jurisprudential turf (pp. 149, 157-58, 170-71,
263). But while Goodhart's seeming lack of philosophical interest may
have put him on the outs with Hart and his philosophical companions,
there should be little doubt about the force of his jurisprudential -
indeed philosophical - contributions. For centuries common law
theorists have been attempting to understand, explain, and justify the
system and nature of precedent.50 Yet it is only a small exaggeration

46 See John F. Manning, The Absurdity Doctrine, ii6 HARV. L. REV. 2387, 2431-54 (2003);
Frederick Schauer, The Practice and Problems of Plain Meaning, 45 vAND. L. REV. 715, 728-37
(1992).
47 See AHARON BARAK, PURPOSIVE INTERPRETATION IN LAW 2 18-59 (Sari Bashi trans.,
2005); Endicott, supra note 5, at 949 (focusing on the role of context in "[elvery sensible technique
of legal interpretation"); Jeffrey Goldsworthy, Legislative Intentions, Legislative Supremacy, and
Legal Positivism, 42 SAN DIEGO L. REV 493, 498-503 (2005); Richard Posner, Legal Formalism,
Legal Realism, and the Interpretation of Statutes and the Constitution,37 CASE W. RES. L. REV.
179, i86-9o(1986).
48 HART, Introduction,supra note 5, at 7-8; H.L.A. Hart, Problems of the Philosophy of Law,
in ESSAYS IN JURISPRUDENCE AND PHILOSOPHY, supra note 5, at 88, lo6.
49 Lon L. Fuller, The Case of the Speluncean Explorers, 62 HARV. L. REV. 616 (i949).
50 As Lacey makes clear, Hart thought that this kind of work on precedent and related topics
of legal argument and legal reasoning was of little theoretical interest and beneath the attention of
a serious legal philosopher (p. i58). But given that such topics lie at the core of the operation of
the legal systems that govern roughly half the world's population, it seems odd that they would
strike Hart as unsuitable for the philosophy of law, a judgment that subsequent scholarship has
plainly repudiated. See, e.g., ALVIN I. GOLDMAN, KNOWLEDGE IN A SOCIAL WORLD (i999)
(providing epistemological analyses of various problems of evidence and proof); Scott Brewer, Ex-
emplary Reasoning: Semantics, Pragmatics,and the Rational Force of Legal Argument by Analogy,
io9 HARV. L. REV. 923 (1996) (offering philosophical analysis of argument by analogy); David 0.
Brink, Legal Theory, Legal Interpretation,and Judicial Review, 17 PHIL. & PUB. AFF. 105 (1988)
(using modern philosophical semantics to address issues of legal interpretation); David 0. Brink,
Semantics and Legal Interpretation (Further Thoughts), 2 CAN. J.L. & JURISPRUDENCE 18i
(1989) (same); John F. Horty, The Result Model of Precedent, io LEGAL THEORY I9 (2004) (using
formal logic to analyze the operation of precedent); Grant Lamond, Do Precedents Create Rules?,
i I LEGAL THEORY I (20o5) (presenting a philosophical analysis of precedent); Michael S. Moore,
The Semantics of Judging, 54 S. CAL. L. REV. 151 (0981) (applying realistic semantics to legal in-
terpretation); Gerald J. Postema, On the Moral Presence of Our Past, 36 MCGILL L.J. 1153 (199)
(applying moral philosophy to justify reliance on precedent); Frederick Schauer, Rules and the
 HARVARD LAW REVIEW [Vol. 119:852

to say that the deepest and most fundamental discussion of the issue
- especially the question of what makes one decision a precedent for
another - came in a series of debates among Goodhart, J.L. Mon-
trose, and A.W.B. Simpson in the i95oS.5 It was a debate that would
have been even deeper and more connected with fundamental ques-
tions about the very nature of law had it been blessed with more aca-
demic philosophical illumination, but it is difficult to deny the endur-
ing importance and theoretical sophistication of the foundational issues
that Goodhart and his interlocutors explored.
To emphasize, none of the foregoing discussion should be under-
stood as downplaying the value of philosophy or expressing any sym-
pathy for those who sneer at it. Fuller and Goodhart would have been
better scholars had they more interest in or talent for the kind of phi-
losophy that inspired Hart, and Hart's efforts in making jurisprudence
philosophical have reaped huge benefits. But for Hart it was not only
the philosophy that was important, but also the philosophical purity,
and it is this antiempirical purity that represents another distinct cost
of Hart's legacy. As Lacey makes so clear, when a philosophical path
threatened to become empirical, Hart would head in a different direc-
tion. 52 And although this might have been good for philosophy (at
least on the understanding of philosophy to which Hart and many
since have subscribed 53), and perhaps even good for the philosophy of
law, it may not have been so good for jurisprudence.5 4 If we under-
stand jurisprudence as, roughly, the generalized and theoretical study
of law itself, rather than its particular doctrinal parts, then there is no
reason to believe that historical jurisprudence, sociological jurispru-
dence, economic jurisprudence, and many others cannot contribute in

Rule-Following Argument, 3 CAN. J.L. & JURISPRUDENCE 187 (199o) (examining uses and mis-
uses of Wittgenstein to understand legal rules and common law reasoning); Judith Jarvis Thom-
son, Liability and Individualized Evidence, in RIGHTS, RESTITUTION, AND RISK: ESSAYS IN
MORAL THEORY 225 (William Parent ed., 1986) (offering philosophical objection to use of statis-
tical evidence).
51 See Arthur L. Goodhart, Determining the Ratio Decidendi of a Case, 40 YALE L.J. 161
(193o); A.L. Goodhart, The Ratio Decidendi of a Case, 22 MOD. L. REV. 117 (1959); J.L. Mon-
trose, Ratio Decidendi and the House of Lords, 20 MOD. L. REV. 124 (1957); J.L. Montrose, The
Ratio Decidendi of a Case, 20 MOD. L. REV. 587 (957); A.W.B. Simpson, The Ratio Decidendi of
a Case, 22 MOD. L. REV. 453 (1959); A.W.B. Simpson, The Ratio Decidendi of a Case, 21 MOD. L.
REV 155 (958); A.W.B. Simpson, The Ratio Decidendi of a Case, 20 MOD. L. REV. 413 (1957).
The debate is reprised, updated, and made more philosophically sophisticated in Larry Alexander,
Constrainedby Precedent, 63 S. CAL. L. REV 1 (1989).
52 See supra p. 86i and note 34.
53 See supra note 27.
54 To this effect, see BRIAN Z. TAMANAHA, A GENERAL JURISPRUDENCE OF LAW AND
SOCIETY (2ooi); and Kenneth Einar Himma, Do Philosophy and Sociology Mix? A Non-
Essentialist Socio-Legal PositivistAnalysis of the Concept of Law, 24 OXFORD J. LEGAL STUD.
717 (2004). For a discussion of the relationship between conceptual and empirical jurisprudence,
see Brian Bix, Conceptual Jurisprudenceand Socio-Legal Studies, 32 RUTGERS L.J. 227 (2000).
200o6] BOOK REVIEW

important ways to what we know about law. Lacey is correct to praise

Hart as the leading figure in bringing serious analytic philosophy into
the jurisprudential canon. But Lacey is equally correct in chiding
Hart for also being the leading figure, at times unintentionally, in driv-
ing so many other disciplines out.

IV. THE HIDDEN HART

Hart achieved his methodological goal of making jurisprudence a
primarily philosophical discipline, but the ensuing history of his sub-
stantive contributions to legal theory is a more complex story. On the
one hand, his name and his work are everywhere in contemporary
jurisprudential discourse. But Hart's presence in today's jurispruden-
tial landscape is typically framed by debates in which he and his work
are at best passive participants. Some of these debates are about ad-
judication and legal sources, while others are about the nature of law
and which version of legal positivism best explains it. In both cases,
however, it was Ronald Dworkin's challenge to Hart that provided the
initial stimulus. Thus, the legacy of Hart finds itself substantially in-
fluenced by debates not only in which he was rarely and reluctantly a
direct contributor (pp. 349-54), but which have also strayed substan-
tially from the core of his own work. These debates have at times
been fruitful, but to the extent that they are carried on as interpreta-
tions of Hart, they come at the cost of fostering neglect of those argua-
bly more fundamental insights into the nature of law that were front
and center in Hart's thinking.
For this reason, an implicit but no less valuable feature of Lacey's
biography is the way in which the book tracks what actually interested
Hart, rather than following a path that starts with Hart but then pro-
ceeds in a direction very different from the central concerns of The
Concept of Law.5 5 A major accomplishment of Lacey's effort lies in
the way it so effectively recaptures the important themes of Hart's ju-
risprudence as Hart understood them and as Hart wrote about them,
themes that the debates of the past thirty years have often obscured.
So what then are these themes? There are many, to be sure, but
one of them is the idea of law as a system.5 6 And for law to be a sys-
tem it must, Hart argues, supplement its primary conduct-regulating
rules (the archetypes of which are the rules of criminal law and admin-

55 This type of divergence is neither unusual nor itself a cause for criticism, for scholarship
often heads in different and worthwhile directions from the canonical sources and ideas that cre-
ated the original inspiration. But to the extent that, as here, the original inspiration contains im-
portant ideas that get left behind, the progress of scholarly debate can come at a substantial cost.
56 Hart's influence in this regard is especially apparent in the early work of his most promi-
nent student, Joseph Raz. See especially JOSEPH RAZ, THE CONCEPT OF A LEGAL SYSTEM
(1970), which Raz originally wrote as a doctoral dissertation under Hart's supervision.
870 HARVARD LAW REVIEW (Vol.1I9:852

istrative regulation) with what Hart calls secondary rules. Among

these are the rules of change, which specify how the stock of primary
rules may be increased and how primary rules may be eliminated or
modified.5 7 And there are also rules of adjudication, which determine
how disputes about the application of primary rules of conduct will be
resolved.5 8 But most fundamental among the secondary rules are the
rules of recognition, which enable citizens and officials to ascertain
what the rules of law are,5 9 and thus to understand, for example, why
the prohibition on insider trading in section 16 of the Securities Ex-
change Act of 193460 is a rule of law while the moral prohibition on
being nasty to your elderly mother is not. A significant aspect of any
rule of recognition, therefore, is in marking the distinction between
what does and what does not count as law.61 Such rules of recogni-
tion, of course, need themselves to be recognized by further rules of
recognition in order to ground their validity. Consequently, a key
component of Hart's systemic account of law is in locating the status
as law of the entire legal system in the ultimate rule of recognition, the
master rule62 that exists by virtue of the fact of social acceptance and
not on account of any further rule of recognition. 63 Thus, although the
ultimate rule of recognition allows us to determine that the document
we find in the National Archives is the Constitution of the United

57 See HART, supra note 9, at 95-96.

58 See id. at 96-98.
59 See id. at 94-95.
60 15 U.S.C. § 78p (2ooo & Supp. II 2002).
61 I discuss Hart's understanding of the function of the rule of recognition extensively in
Schauer, supra note 22.
62 Hart referred to the ultimate rule of recognition as a rule, but it is better thought of as an
interconnected set of social practices not necessarily reducible to anything that resembles a rule.
See A.W.B. Simpson, The Common Law and Legal Theory, in OXFORD ESSAYS IN
JURISPRUDENCE (SECOND SERIES) 77, 82-88 (A.W.B. Simpson ed., 1973).
63 There is a more than slight structural similarity between Hart's notion of the ultimate rule
of recognition and Kelsen's Grundnorm. See HANS KELSEN, GENERAL THEORY OF NORMS
252-61 (Michael Hartney trans., Clarendon Press 199) (979); HANS KELSEN, INTRODUCTION
TO THE PROBLEMS OF LEGAL THEORY 55-65 (Bonnie Litschewski Paulson & Stanley L. Paul-
son trans., Clarendon Press 1992) (1934); HANS KELSEN, PURE THEORY OF LAW 193-221 (Max
Knight trans., Univ. of Cal. Press 1967) (196o). Although for Hart the ultimate rule of recognition
was a social fact and for Kelsen the Grundnorm was more of a transcendental philosophical un-
derstanding that informed the theorist of law, see Stanley L. Paulson, Continental Normativism
and Its British Counterpart:How Different Are They?, 6 RATIO JURIS 227 (993); Iain Stewart,
The Basic Norm as Fiction, 198o JURID. REV. 199, 221-22 (translating Kelsen's The Constitu-
tional Function), the systemic and structural aspects of the two are similar in providing the struc-
tural foundation (factual in Hart's case, conceptual in Kelsen's) for a normative system. Yet al-
though Hart in The Concept of Law distinguishes himself from Kelsen, HART, supra note 9, at
292-95, and although Hart later engaged directly with him (p. 25I), H.L.A. Hart, Kelsen Visited,
io UCLA L. REV 709, 709 (1963), there is unfortunately little in Lacey's book about the extent to
which Hart may have been more influenced by Kelsen than he ever acknowledged, which Kelsen
firmly believed (pp. 251-52).
2006] BOOK REVIEW

States while one I could write and validly (according to its own terms)
ratify tomorrow is not,64 it makes no sense to speak of the ultimate
rule of recognition as legally valid - it just is, as a matter of social
fact.
Someone who internalizes an ultimate rule of recognition and its
subsidiary rules is thus able to make evaluative judgments from the
point of view of the system that those rules comprise. Hart called this
the internal point of view, and in explaining it he made good use of
analogies to games, for the tennis umpire who calls "out" is doing so
not on the basis of an all-things-considered judgment that it would be
good for Serena Williams to win this point, but from a perspective in-
side tennis and inside this particular rule. So too for the legal deci-
sionmaker who applies a legal rule, and Hart saw in both law and
games a particular form of rule-guided behavior in which committed
participants made their decisions entirely on the basis of the rules of
the particular systems in which they were operating. In successfully
theorizing important forms of rule-constituted and rule-guided behav-
ior, Hart also furthered the understanding of legal obligation, for to
him the fact of having an obligation from inside a rule or a system to
engage in some act was importantly different from being obliged as a
65
matter of force or other sanction to engage in the same act. More-
over, in explaining how law involves not only the directly conduct-
regulating rules that so absorbed Jeremy Bentham and John Austin,
but also the power-conferring rules which enable people to make wills
and contracts and which empower judges to resolve disputes, Hart
further explored the variety of rules which serve distinctive functions
66
and which collectively explain much of the phenomenon of law. In
depicting law as a system of rules that guides human behavior, Hart
helped us see why law is different not only from the state-sanctioned
application of force, but also from norms, values, habits, practices, and
a host of other determinants of behavior that, for all of their impor-
tance in shaping human conduct, remain crucially different from law.
It is of course impossible in a few paragraphs to capture everything
of importance that Hart said about rules, about obligation, about the
nonlegal foundations of any legal order, and about the systematic
character of law. And it is even less possible here to recount the vari-
ous criticisms of Hart's positions on these issues (pp. 230-32), for none
of his analyses were without flaws. Indeed, on some of these issues
many of the flaws are of precisely the empirical kind that, according to

64 See Frederick Schauer, Amending the Presuppositions of a Constitution, in RESPONDING

TO IMPERFECTION: THE THEORY AND PRACTICE OF CONSTITUTIONAL AMENDMENT
145, 152-53 (Sanford Levinson ed., 1995).
65 See HART, supra note 9, at 82-91.
66 See id. at 18-49.
 HARVARD LAW REVIEW [Vol. 1119:852

Lacey's perceptive analysis, Hart would have done well to consider.

So when Hart criticized the obsession with the "bad man" that explic-
itly informs Realist thinking and implicitly frames the theories of Ben-
tham and Austin, he asked his readers to consider the "puzzled man"
who wishes sincerely to do what the law requires just because the law
requires it, or the genuinely conscientious judge who internalizes the
rules out of obligation and not out of fear or ambition. But although it
is undoubtedly true that a theory aimed at the puzzled man is different
from one targeted at the bad one, the explanatory force of the resultant
theory is largely a function of the comparative size of the two groups.
It is all well and good to develop a theory that explains the perspective
and obligations of the puzzled man, but if most real legal systems are
populated by many who are bad and only a few who are puzzled, a
theory of the puzzled man will not be a very satisfactory account of
the phenomenon of law as it is actually experienced by judges and citi-
67
zens alike.
The important point, however, is not whether such criticisms are on
the mark. Rather, what is significant is that these various topics and
arguments, some more sound than others, have become largely invisi-
ble as a consequence of debates originally inspired by Dworkin's chal-
lenge. Because it plays such a prominent role in The Concept of Law,
Hart's idea of a rule of recognition became a natural target for
Dworkin's challenge to the law/nonlaw distinction. So when Dworkin
set out to understand and depict the nature of adjudication in (some)
advanced common law systems, his focus was on the rule of recogni-
tion, or what he called the "pedigree" of a legal rule. 68 There may well
be a set of legal rules recognized by a rule of recognition, Dworkin ar-
gued, but actual adjudication of hard cases is not restricted to the ap-
plication of such rules. Rather, such adjudication involves the applica-
tion of principles as well as rules, and no rule of recognition could
identify the principles - legal, political, and moral as an intercon-
nected whole - that play such a large role in the decision of actual
cases. The notion of a rule of recognition, argued Dworkin, thus turns
out to possess far less explanatory force than Hart had claimed.
Dworkin framed his attack as one on legal positivism, and he is
now best understood as having challenged a conception of positivism

67 For lengthier development of this point, see Leslie Green, The Concept of Law Revisited, 94
MICH. L. REV. 1687, 1703-04 (1996) (reviewing HART, supra note 9) (stressing the importance of
coercion to understanding law); Frederick Schauer, Book Review, 24 CAN. J. PHIL. 495, 501-07
(994) (reviewing ROGER A. SHINER, NORM AND NATURE: THE MOVEMENTS OF LEGAL
THOUGHT (1992)).
68 RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 17 (977) [hereinafter DWORKIN,
TAKING RIGHTS SERIOUSLY]. And see the subsequent elaboration of Dworkin's critique of
positivism in, for example, RONALD DWORKIN, A MATTER OF PRINCIPLE 131-37 (1985); and
DWORKIN, supra note 39, at 33-35, 3 7-43.
2006] BOOK REVIEW

in which a rule of recognition identifies a set of distinctively legal rules

that in turn produce legal decisions. For Dworkin, legal positivism
stands for the proposition that law is largely a set of its own rules, that
such rules can be identified by the rule of recognition on the basis of
their source (pedigree) and not of their content, and that the rules so
recognized determine the results in all cases except for the small num-
ber in which judges would exercise legally unconstrained discretion.
And because such a "model of rules" cannot explain what is actually
happening in a large number of hard and important cases, Dworkin
insisted, the positivist account of the nature of law turns out to be de-
scriptively false.
In the wake of this challenge, Dworkin's critics - and they are le-
gion - tended to take one of two tacks. First, Dworkin stood accused
of failing to understand that a rule of recognition can recognize princi-
ples as well as rules. 69 Dworkin, in challenging the descriptive value
0
of the rule of recognition, pointed to Riggs v. Palmers in which the
"no man should profit by his own wrong" principle dominated the
statute of wills rule, and to Henningsen v. Bloomfield Motors, Inc. ," in
which the principle of fairness trumped the previously recognized rules
of contract law. His critics, however, argued that principles like these
have indeed been recognized by a legal rule of recognition and thus
72
have become part of the legal canon. And because the actual rule of
recognition in advanced common law systems plainly allows use of

69 A side issue is whether Dworkin's very distinction between rules and principles is sound,
which it most likely is not. Dworkin understands rules as precise and nonoverridable, while prin-
ciples are vague and nonabsolute. But there are precise yet overridable rules all around us (as
when a police officer allows ignoring the speed limit in case of an emergency), as there are vague
yet absolute principles (like the golden rule), and thus Dworkin's distinction seems to collapse in
the face of the actual reality of rules and principles. See FREDERICK SCHAUER, PLAYING BY
THE RULES: A PHILOSOPHICAL EXAMINATION OF RULE-BASED DECISION-MAKING IN
LAW AND IN LIFE 12-14 (I99i); Joseph Raz, Legal Principles and the Limits of Law, in
RONALD DWORKIN AND CONTEMPORARY JURISPRUDENCE, supra note 23, at 73, 82. The
reason that this is only a side issue, however, and not crippling to Dworkin's entire theory, is that
the real distinction he wants to challenge is the distinction between pedigreed legal directives and
nonpedigreed and nonpedigreeable nonlegal ones. On his account, positivism is committed to this
distinction, and Dworkin believes this distinction is not reflected in actual judicial practice. For
Dworkin the real issue is the existence or not of a distinct domain of legal norms and legal sources
(and on this I agree with him about the specification of the issues, but not about his conclusion,
see Schauer, supra note 22, at 1914-18, 1933-42), and for this question the distinction between
rules and principles is immaterial. See Kenneth Einar Himma, Waluchow's Defense of Inclusive
Positivism, 5 LEGAL THEORY 10I, 113-15 (i999).
70 22 N.E. 188, i9o (N.Y. i889).
71 161 A.2d 69 (N.J. i96o); see DWORKIN, TAKING RIGHTS SERIOUSLY, supra note 68, at
23-24.
72 See, e.g., Rolf Sartorius, Hart's Concept of Law, in MORE ESSAYS IN LEGAL PHILOSOPHY
131, i56 (Robert S. Summers ed., 197).
 HARVARD LAW REVIEW [Vol. I 19:85 2

such principles, the idea of a rule of recognition and Hart's basic pic-
ture of law and legal positivism remain intact. 73
Another group of critics challenged Dworkin in a different way.
Dworkin was simply aiming at the wrong target, they argued, in un-
derstanding his argument as one against legal positivism. 74 Positivism,
these critics insisted, is agnostic about the actual content of a rule of
recognition. A social rule of recognition can, in theory, recognize as
law not only those rules (and principles) that are obviously "legal" in a
narrow sense, but also the full universe of a society's social, political,
and moral norms. 75 The important positivist claim, these critics in-
sisted, is that such recognition is a product of contingent human deci-
sion, a social fact, rather than being, as some versions of natural law
theory would have it, a necessary feature of any legal system. So even
if Dworkin were right to insist that moral and political norms play a
substantial role in actual American and English adjudication, the ar-
gument goes, and even if he were correct in maintaining that no set of
narrowly legal rules could ever conclusively determine the outcome of
any dispute, these conclusions still leave the proper conception of legal
positivism intact. Only if the inclusion of morality within legal deci-
sionmaking is a necessary feature of all possible legal systems in all
possible worlds can positivism be false, so the observation that moral-
ity is a contingent feature of legal decisionmaking in one, several, or
even all actual legal systems says nothing about the basic claims of le-
gal positivism.
These criticisms again produced further rejoinders, both from
Dworkin 7 6 and from positivists of a different stripe,77 but pursuing

73 See, e.g., NEIL MACCORMICK, LEGAL REASONING AND LEGAL THEORY 231-50
(1978); see also MACCORMICK, supra note 24, at 27.
74 See E. Philip Soper, Legal Theory and the Obligation of a Judge: The Hart/Dworkin Dispute,
75 MICH. L. REV 473, 498-501 (1977); David Lyons, Principles, Positivism, and Legal Theory, 87
YALE L.J. 415, 423-26 (I977) (reviewing DWORKIN, TAKING RIGHTS SERIOUSLY, supra note
68). This critique has been most extensively developed by Jules Coleman, first in Jules L. Cole-
man, Negative and Positive Positivism, ii J. LEGAL STUD. 139, 148-56 (1982), and then at
length in JULES L. COLEMAN, THE PRACTICE OF PRINCIPLE: IN DEFENCE OF A
PRAGMATIST APPROACH TO LEGAL THEORY 67-148 (2OO).
75 This position is now variously described as incorporationism, see Coleman, supra note 23;
Kenneth Einar Himma, Incorporationism and the Objectivity of Moral Norms, 5 LEGAL
THEORY 415 (ig9), inclusive legal positivism, see W.J. WALUCHOW, INCLUSIVE LEGAL
POSITIVISM (1994); Brian Bix, Patrolling the Boundaries: Inclusive Legal Positivism and the Na-
ture of JurisprudentialDebate, 12 CAN. J.L. & JURISPRUDENCE 17 (1999), and soft positivism,
see HART, supra note 9, at 250-54; Eleni Mitrophanous, Soft Positivism, 17 OXFORD J. LEGAL
STUD. 621 0997).
76 See Ronald Dworkin, Hart's Postscript and the Character of Political Philosophy, 24
OXFORD J. LEGAL STUD. I (2004); Ronald Dworkin, Thirty Years On, 115 HARV. L. REV. 1655
(2002) (reviewing COLEMAN, supra note 74) [hereinafter Dworkin, Thirty Years On].
77 The common designation in the jurisprudential literature is "exclusive legal positivism," and
it is developed in, for example, Joseph Raz, Authority, Law and Morality, 68 MONIST 295, 311-
2006] BOOK REVIEW

those debates further is not my goal here. Rather, the important point
in the present context is that these debates about the actual sources for
adjudication and about which version of legal positivism better ex-
plains law as we experience it - debates that are typically carried on
in Hart's name, at least in the sense of commonly claiming to be the
correct interpretations of a canonical Hart - are actually about sub-
jects with which Hart was comparatively unconcerned, especially in
The Concept of Law. So although a significant part of Dworkin's at-
78
tack is that Hart's account of adjudication is faulty, the key rejoinder
79
is that Hart simply did not have much of an account of adjudication.
Responding to the Realists in Chapter VII of The Concept of Law,
Hart did offer some observations about the determinacy of rules and
about the role of rules in legal decisionmaking, but these observations
and arguments were hardly central to Hart's claims about the nature
of law or about the idea of a rule of recognition and said little about
the actual character of adjudication. For Hart, unlike Dworkin and
unlike most twentieth-century American legal theorists, adjudication

15 (1985); Joseph Raz, Incorporation By Law, io LEGAL THEORY i, I & n.3 (2004); Scott J.
Shapiro, On Hart's Way Out, 4 LEGAL THEORY 469, 475-76 (1998); Scott J. Shapiro, The Differ-
ence that Rules Make, in ANALYZING LAW: NEW ESSAYS IN LEGAL THEORY, supra note 34, at
33, 56-59; see also Brian Leiter, Legal Realism, Hard Positivism, and the Limits of Conceptual
Analysis, in HART'S POSTSCRIP. ESSAYS ON THE POSTSCRIPT TO THE CONCEPT OF LAW,
supra note 40, at 355.
78 1 say "significant part" because Dworkin's attack is also on the law/nonlaw distinction,
whether in an adjudicative context or not. But even if Dworkin were correct that this distinction
does not exist in hard cases, that conclusion may not say as much as Dworkin supposes about the
character of nonadjudicated and "non-hard" law.
79 See John Gardner, Legal Positivism: 5 Myths, 46 AM. J. JURIS. 199, 211-14 (2ooi); Leiter,
supra note 35, at 1150 & n.43. Dworkin's assumption that Hart did have an account of adjudica-
tion may be attributable in part to the tendency of American legal theorists, influenced as they are
by the enormous importance of adjudication to American law (and politics), to assume (errone-
ously) that any theory of law must be a theory of adjudication and legal reasoning. See Brian H.
Bix, Legal Positivism, in THE BLACKWELL GUIDE TO THE PHILOSOPHY OF LAW AND
LEGAL THEORY, supra note 23, at 29, 31. That said, however, insofar as a theory of law or an
account of the concept of law purports to build on the most important or essential properties of
law, it is worth asking whether a theory of law that does not include an account of adjudication
can be a satisfactory theory of law for advanced democracies in 2006. For many legal theorists, a
theory of law that does not account for law's normativity (or at least law's claim of normativity) is
simply an incomplete theory. See, e.g., Coleman, supra note 23, at 386 & n.io. The question then
arises whether the nature of adjudication is, like (or instead of) normativity, such a central part of
the nature of law that a theory's failure to explain it is fatal. So although it is common these days
to distinguish a theory of law from a theory of adjudication, such a distinction presupposes that
one can explain law without explaining adjudication, or explain adjudication without saying too
much about law. The extent to which this distinction is sound is at least partly a function of the
importance of adjudication to law as we know it, and on this inescapably empirical question it
may be far less clear now than it was to a former chancery barrister in 1961 that a satisfactory
account of, theory of, or even concept of law can largely avoid incorporating a theory of adjudica-
tion. On the relationship (or not) between a theory of adjudication and a theory of law, see Mi-
chael Steven Green, Legal Realism as Theory of Law, 46 WM. & MARY L. REV. 1915, 1975-81
(2oo5); and Leiter, supra note 26.
 HARVARD LAW REVIEW [Vol. i1i9:852

was interesting and important, but it was neither the defining nor the
most important feature of a legal system. 80 It is not so much that
Dworkin attributed an erroneous theory of adjudication to Hart, but
that Dworkin erroneously attributed any serious theory of adjudication
to Hart, thus committing an error that at least some of Hart's subse-
quent defenders have simply compounded."'
Similarly, the role and importance of legal positivism in Hart's
work is frequently exaggerated. Although Hart was not uncomfortable
aligning himself with important elements of the positivist tradition,,2
and although he defended legal positivism in his debates with Fuller,
legal positivism plays a surprisingly small role in The Concept of Law.
It is mentioned at the very beginning,8 3 and defended in a qualified
way at the end, 84 but in the intervening 176 pages - the substantive
core of the book - legal positivism is missing in action. 5 So although
The Concept of Law has spawned a voluminous literature examining
the soundness of positivism and the explanatory virtues of various
conceptions of legal positivism, the truth is that legal positivism,
whether sound or unsound, and in whatever variety, once again turns
out to be a relatively unimportant part of Hart's major work. Hart
was obviously operating within a positivist milieu, and there is no de-
nying that his outlook was positivist, but surprisingly few of The Con-

80 And this helps explain why Hart was somewhere between uninterested in and contemptu-
ous of even theoretical scholarship about the adjudicative dimensions of legal reasoning and legal
argument. See supra note 50. At first sight, this lack of focus on adjudication may seem odd for
someone who had spent almost nine years as a practicing barrister. Yet although Lacey does not
provide much detail about Hart's day-to-day practice at the chancery bar, it is likely that much of
his work on conveyancing, trusts, estates, and taxation was not contested and likely as well that
even those contested matters that brought Hart the barrister into court were highly technical.
Hart was a barrister, to be sure, and a very good one by all accounts, but it is almost surely a mis-
take to think that Hart's practice brought him anywhere near cutting-edge issues in the develop-
ment of the common law.
81 Notably, Joseph Raz has decidedly not made this mistake. He argues that "[Law's Empire]
is not so much an explanation of the law as a sustained argument about how courts, especially
American and British courts, should decide cases. It contains a theory of adjudication rather than
a theory of (the nature of) law. Dworkin's failure to allow that the two are not the same is one
reason for the failure of his conception of the tasks and method of jurisprudence." Joseph Raz,
Two Views of the Nature of the Theory of Law: A Partial Comparison, in HART'S POSTSCRIPT.
ESSAYS ON THE POSTSCRIPT TO THE CONCEPT OF LAW, supra note 40, at 1, 37.
82 See HART, supra note 9, at 8.
83 Id.
84 See id. at 185-86.
85 There is a more extensive discussion of positivism in Hart's posthumously published Post-
script to The Concept of Law, see id. at 238-76, but Lacey makes clear that this reply to Dworkin,
assembled from notes after Hart's death, hardly represents Hart's main interests or best work:
"[H]is notes became a painful, repetitious collection of thoughts circling round Dworkin's new
thesis ...... (PP. 349-53). Indeed, it is not unfair to characterize Hart as having been dragged
into this response by Dworkin, by subsequent scholarship, and by his admirable tendency to take
criticism seriously and confront it on its merits.
2006] BOOK REVIEW

cept of Law's major insights depend on his positivism. Most of what

Hart says about primary and secondary rules, duty-imposing and
power-conferring rules, the systemic character of law, the difference
between being obliged and having an obligation, the distinction be-
tween core and fringe applications of a rule, legal determinacy and in-
determinacy, the internal point of view, the content-independent nature
of authority, and even some of what he says about the rule of recogni-
tion is of significant value independent of positivism and would be as
illuminating to nonpositivists and antipositivists as it has been to the
positivist tradition. Unfortunately, the categorization of these impor-
tant insights as components of positivism has masked their independ-
ent value. It is true that these Hartian insights can be marshaled in
support of a positivist conception of law, as against a natural law view,
and Hart plainly used some of these tools in this way. But the fact
that these insights can be used to support positivism does not make
them part of positivism, and the fact that Hart developed some of
them in the course of building on (and criticizing) positivists like John
6
Austin does not mean that they presuppose positivism. The 176
pages in which positivism does not appear by name in The Concept of
Law are I76 pages in which positivism, even under different names
and even in different clothing, figures far less than is commonly
assumed.
It would be difficult to overestimate Dworkin's influence, both di-
rect and indirect, in refashioning our understanding of Hart. Because
Dworkin took a content-independent rule of recognition to be the
characteristic feature of the legal positivism he wished to attack,
Dworkin's characterization of positivism and his focus on adjudication
have dominated, shaped, and distorted our understanding of Hart's
contributions. This has had the beneficial effect of stimulating a series
of important debates, but at the cost of obscuring much of value in
Hart's own work.

86 There is a useful analogy here to the Doctrine (or Principle) of Double Effect. The doctrine
comes out of the Catholic theological tradition, see 3 ST. THOMAS AQUINAS, SUMMA
THEOLOGICA Pt. II-H, Q. 64, Art. 7, at 1465 (Fathers of the English Dominican Province trans.,
Christian Classics ig8I); F.J. Connell, Double Effect, Principle of, in 4 NEW CATHOLIC
ENCYCLOPEDIA 1020 (1967), and was developed solely to support Catholic views about respon-
sibility. Yet its distinction between intent and effect, as developed in its own literature, is of
enormous assistance in understanding central parts of criminal law, of torts, and of areas of con-
stitutional law as diverse as the dormant commerce clause, the Equal Protection Clause, state
taxation of the federal government, and the Free Speech, Free Exercise, and Establishment
Clauses. So too here, and it is a logical error to assume that Hart's own positivism, or his positiv-
ist goals in advancing some of his ideas, are of determinative importance in understanding the
value of many of his concepts and distinctions.
 HARVARD LAW REVIEW [Vol. 1I9:852

V. (RE)TAKING HART
The subjects to which Dworkin has shifted jurisprudential inquiry
are hardly without significance. Adjudication of important social, po-
litical, and moral issues is a fixture of American governance and is in-
creasingly so in most advanced liberal democracies, as well as in some
countries that are less advanced, less liberal, and less democratic. And
especially for that type of adjudication, theoretical accounts of the in-
terplay between legal and nonlegal sources and norms are a vitally
important enterprise and one that Dworkin, far more than anyone else,
has placed on the modern jurisprudential agenda. For numerous rea-
sons, including the longstanding centrality of adjudication to American
policymaking, the characteristic focus of American legal theory has for
generations been the nature of judicial decisionmaking (pp. 332-33).
At least as far back as the Realists, and forward to the Legal Process
school, to Fuller, to Critical Legal Studies, and to Dworkin, thinking
philosophically and empirically about how judges do and should de-
cide cases remains the signature contribution of American jurispru-
dence. In this sense, Dworkin has not so much changed the subject of
modern jurisprudence to his own concerns but instead has, with some
success, brought non-American jurisprudence somewhat more in line
with the central topics of American legal theory.
The significance of such inquiries, however, should not be confused
with their exclusive significance. For while American jurisprudence
has long been focused on judicial decisionmaking, much of non-
American jurisprudence, from Bentham and Austin to Kelsen and
Hart to Raz and Finnis, has been concerned with a host of issues other
than how judges decide hard cases. And here Hart's lessons are po-
tentially of great value in furthering our understanding of law's insti-
tutions and operation. For example, appreciating the internal point of
view helps us see how vast areas of rule-governed behavior function
and illuminates from a philosophical perspective the attitudes of those
who make, enforce, and follow rules. But even more central is Hart's
focus on the varieties of rules and the interplay among them. All of
constitutional law, all of the law of jurisdiction and procedure, and a
great deal of many other parts of the law are about secondary rules.
People who think that all legal rules are of the primary, conduct-
regulating variety will never truly understand constitutional law, will
never understand the law of procedure, will never understand the im-
portance of legal formalities,"7 and indeed will have difficulty under-
standing any part of the law at all. That rules look different from the
inside than from the outside is important, and so too is the philosophi-

87 See ROBERT S. SUMMERS, ESSAYS IN LEGAL THEORY 125-93 (2000).

2006] BOOK REVIEW

cal analysis of the varieties of rules, particularly the idea of a secon-

dary rule and the different types of secondary rules. But when Hart
identified the conjunction of primary and secondary rules as the hall-
mark of law, he gave us, in his words, a "powerful tool" 88 for under-
standing just what law is all about.
It is fashionable these days to talk about norms and to observe,
correctly, that nonlegal norms can and often do influence behavior.8 9
But norms are not law. They often arise from noninstitutional sources,
and there are rarely secondary norms that serve in any formal or sys-
tematic way to recognize which are the existing norms and which are
not, to organize and legitimize the process of adding to, subtracting
from, or changing the norms, or to resolve disagreements about the
content and meaning of the norms. 90 If Hart is right, there is thus
something highly important about the difference between a behavior-
governing array of primary norms and a behavior-governing system of
primary and secondary legal rules. Hart may not be right, but the
very topics on which Hart truly focused in The Concept of Law can as-
sist in trying to understand. the difference between norms and law, and
then to understand the relationship between the two.
These systemic aspects of law reach their apex in the ultimate rule
of recognition - the socially accepted criterion of legality that exists
notwithstanding its lack of conformity to any other rule of recognition
- which also has considerable contemporary importance. When the
international community needs to decide which legal system to ac-
knowledge under conditions of revolutionary change, 91 when transi-

88 HART, supra note 9, at 98.

89 A sampling of the recent literature can be found in Symposium, Law, Economics, and
Norms, 144 U. PA. L. REV. 1643 (I996); Symposium, Norms and Corporate Law, 149 U. PA. L.
REV. 1607 (2ooi); Symposium, Social Norms, Social Meaning, and the Economic Analysis of Law,
27 J. LEGAL STUD. 537 (1998); and Symposium, The Legal Constructionof Norms, 86 VA. L. REV.
1577 (2000).
90 Much the same can be said about the recent attention, especially among those who study
the law of cyberspace, given to code. See LAWRENCE LESSIG, CODE AND OTHER LAWS OF
CYBERSPACE 3-8 (1999). It is true that Internet protocols, hardware design, software architec-
ture, and many other features of the prelegal structural world can produce results similar to those
produced by the legal system with its legal rules. But this fact does not make code any more simi-
lar to law than teeth are to food processors, even though both can convert large pieces of food into
small ones, and even though better teeth would make food processors less necessary. So too with
norms and law, and it is a mistake to assume that anything that can produce the same effects as
law is more similar to law than it is different. By stressing the systemic aspects of law, Hart has
given us a tool to theorize this difference and to determine the circumstances under which using
the legal system would be preferable (or not) to producing similar results by other means.
91 See F.M. Brookfield, The Courts, Kelsen, and the Rhodesian Revolution, i9 U. TORONTO
L.J. 326, 340-47 (1969) (using Kelsen's concept of the Grundnorm to theorize the phenomenon of
competing but parallel legal systems each purporting to govern the same land and the same peo-
ple); J.W. Harris, When and Why Does the Grundnorm Change?, 29 CAMBRIDGE L.J. 103, 116-
31 (1971) (same). Similar issues are explored in J.M. Eekelaar, Principles of Revolutionary Legal-
ity, in OXFORD ESSAYS IN JURISPRUDENCE (SECOND SERIES), supra note 62, at 22, 37-43;
 HARVARD LAW REVIEW [Vol. 11I9:852

tioning countries must sort out how it is that some pretransformation

laws persist while others do not, 92 when we debate whether courts
should draw on sources of law from other nations, 93 or when Bruce
Ackerman talks of constitutional moments, 94 we are grappling with is-
sues that inescapably implicate Hart's analysis of the ultimate rule of
recognition. The dimensions and complexities of these issues would
thus be better understood were we to attend to those aspects of Hart's
analysis that are these days often ignored.
To an extent ever more unappreciated, therefore, Hart has provided
us with the conceptual tools necessary to understand the distinctive
place of law in the larger society. To read The Concept of Law, espe-
cially in conjunction with Hart's other writings on legal theory, is to
encounter a deep and eye-opening account of many of the characteris-
tics of legal systems and legal rules that help to differentiate law from
other mechanisms of social control and other determinants of human
behavior.
It is not at all apparent that The Concept of Law was very much
focused on actually delineating the concept of law. It is not even clear
that its goal was to provide any concept of law at all. As Lacey makes
so plain, the guiding force in much of Hart's thinking was J.L. Austin,
and even after Austin's death he remained as the omnipresent philoso-
phical conscience perched on Hart's shoulder. Yet Austin was no sys-
tematizer. He was a systematic thinker, to be sure, but he remained
highly skeptical of global philosophical theories. And seen in this
light, The Concept of Law, and indeed much of the entire Hartian cor-
pus, can be understood less as offering a unified theory or concept of
law and more as providing a series of somewhat less pretentious but
no less deep and no less important insights about legal systems.
Holmes famously noted that "I care nothing for the systems - only for
the insights,"95 and quite possibly Hart, and certainly Austin, would

and J.M. Finnis, Revolutions and Continuity of Law, in OXFORD ESSAYS IN JURISPRUDENCE
(SECOND SERIES), supra note 62, at 44. Although Kelsen's ideas were typically pressed into ser-
vice in this literature to help sort out the difficult issues involved when revolutions purported to
change a legal system, the key idea seems closer to Hart's empirically grounded social fact of the
ultimate rule of recognition than Kelsen's theoretical construct of the Basic Norm.
92 The problem is dealt with in, for example, RUTI G. TEITEL, TRANSITIONAL JUSTICE II-
26, 191-211 (2000).
93 See Vicki C. Jackson, The Supreme Court, 2oo4 Term-Comment: Constitutional Compari-
sons: Convergence, Resistance, Engagement, II9 HARV. L. REV. i09 (2005); Jeremy Waldron, The
Supreme Court, 2oo4 Term-Comment: Foreign Law and the Modern.lus Gentium, i19 HARV. L.
REV. 129 (2005); Ernest A. Young, The Supreme Court, 2oo4 Term-Comment: Foreign Law and
the DenominatorProblem, i19 HARV. L. REV. 148 (2005).
94 See I BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS 81-99 (i991); Bruce Ac-
kerman, ConstitutionalPolitics/ConstitutionalLaw, 99 YALE L.J. 453, 457-61, 5io-I5 (1989).
95 Letter from Oliver Wendell Holmes to Harold J. Laski (Jan. 5, 1921), in I HOLMES-LASKI
LETTERS 300, 3oo (Mark DeWolfe Howe ed., 1953).
200,6] BOOK REVIEW

have agreed. But although Assorted Insights About Law would have
been a far less felicitous title than The Concept of Law, the former
might have been more accurate. So just as we may have neglected
much that is important in Hart's work by saddling him too tightly
with a theory of adjudication and burdening him too heavily as a
standard bearer for legal positivism, so too may we have failed to ap-
preciate many of his insights by taking those insights as subservient to
some possible larger theory. Holmes and Austin would have preferred
it the other way, and perhaps much the same can be said about Hart
himself.

VI. AND BACK TO LACEY

Although I have concentrated in the foregoing pages more on Hart
than on Lacey, it is worth emphasizing that I am focusing on Lacey's
Hart. Although Lacey's book deals admirably with Hart's complex
and often distant relationship with Dworkin (pp. 330-35)96 and illumi-
nates the intellectual as well as the personal challenges that Dworkin
presented for Hart, one of its great virtues is that it does not limit itself
to the Hart that has been framed by the debates of the past thirty
years. The genealogy of these debates starts with Hart, proceeds to
Dworkin's critiques of Hart, then to the inclusive legal positivists' cri-
tiques of Dworkin, and. then to the exclusive positivists' critiques of
the inclusivists, and will likely continue on into the future. Like Witt-
genstein's ladder, however, the Hartian starting point appears almost
to have been kicked away, however much it was necessary to get the
contemporary debates off the ground.
I will leave to others 97 or to other times the evaluation of these sub-

96 "Herbert's sensitivity to Dworkin's criticisms was fuelled by a sense that there was some-
thing wilful or even lacking in honesty about Dworkin's reading of his work .... Herbert found
the experience of debating ideas with Dworkin increasingly frustrating .... Herbert's ambiva-
lence towards [Dworkin] may have been further exacerbated.., by a social discomfort with
Dworkin's personal style and frank enjoyment of his affluent lifestyle ...... (P. 330).
97 A number of prominent legal theorists have expressed frustration with the modern debates
among positivists. See, e.g., David Dyzenhaus, Positivism's Stagnant Research Programme, 20
OXFORD J. LEGAL STUD. 703, 715 (2ooo); Kent Greenawalt, Too Thin and Too Rich: Distin-
guishing Features of Legal Positivism, in THE AUTONOMY OF LAW: ESSAYS ON LEGAL
POSITIVISM, supra note 34, at i, 14, 24 (arguing that current debates among positivists do "not
seem very important for understanding the legal systems under which we live"); William Twining,
Imagining Bentham: A Celebration, in CURRENT LEGAL PROBLEMS 1998: LEGAL THEORY AT
THE END OF THE MILLENIUM 1, 21 (M.D.A. Freeman ed., 1998) (describing the current de-
bates as "repetitious, trivial, and almost entirely pointless"); Jeremy Waldron, The Irrelevance of
Moral Objectivity, in NATURAL LAW THEORY: CONTEMPORARY ESSAYS 158, 16o (Robert P.
George ed., 1992) (criticizing those who have redefined positivism in order "to secure a victory in
the descriptive debate for a position called 'legal positivism,' no matter what that position turns
out to be"). And Dworkin is even less charitable. See Dworkin, Thirty Years On, supra note 76,
at 1656, 1678. For my own part, I see much value in the contemporary debates but worry that
 HARVARD LAW REVIEW [VOL. 1I9:852

sequent debates. But it would be a mistake to understand Hart today

solely or even primarily in terms of debates he did not commence and
that deal with subjects and issues that for him were decidedly secon-
dary. Thus one of Lacey's primary accomplishments in this book is to
offer us a picture of Hart's intellectual life that is sufficiently broad
and deep that it allows us to see the modern debates in proper propor-
tion. And when we have the proportions right, we can appreciate
again some of the main themes in Hart's work that have been lost in
the wake of the contemporary controversies. 98 We therefore owe
Lacey a debt of gratitude for bringing back some of the lost Hart and
for helping to reintroduce Hart's main adjudication-independent and
positivism-independent contributions to contemporary theory.
Lacey's accomplishment in helping us recapture a lost Hart stands
alongside her skill in presenting the Hart who has transformed what it
is to do jurisprudence. But in the course of showing us both how some
of the contemporary debates have departed from Hart's primary con-
cerns and how Hart effectuated the philosophication of jurisprudence,
Lacey makes plain her own views on the state of contemporary legal
theory. In the process, it becomes clear that Lacey is an admirer of
Hart, both personally and intellectually, and that she is equally appre-
ciative of many of his jurisprudential contributions. Yet her biography
of Hart is also the occasion for her, often subtly but with considerable
cumulative effect, to reflect on the terrain of legal philosophy, about
which she is not nearly as appreciative as she is of Hart himself. For
Lacey the current state of jurisprudence is excessively provincial, ex-
cessively contemptuous of serious empirical inquiry,99 and too nar-
rowly focused on a certain kind of analytic philosophy. That Lacey

they have driven out important (and more normative) conceptions of positivism going back to
Bentham - conceptions that make positivism a serious contributor to numerous issues of current
theoretical, doctrinal, and methodological importance. See Frederick Schauer, Constitutional
Positivism, 25 CONN. L. REV. 797 (993); Frederick Schauer, Fuller's Internal Point of View, 13
LAW & PHIL. 285 (1994); Schauer, Positivism as Pariah, supra note 34; Schauer, supra note 22;
Schauer, supra note 67, at 498-509.
98 That this is so is no failing of the participants in these controversies, for it is no more their
task to draw on all or even most of Hart's work than it is the task of those who now discuss John
Stuart Mill's work on moral and political theory to pay close heed to his contributions to logic and
the theory of causation.
99 Those of us who are sympathetic to Lacey's empiricizing goals should be careful not to
place too much of the blame on the philosophy side of the philosophy-sociology (or political sci-
ence, or psychology, or empirical economics, or any of the other empirical social sciences) divide.
The sociology of the law (a field often quite distinct from mainstream sociology) has itself become
an increasingly politicized, increasingly antipositivist (in the scientific positivism and not legal
positivism sense), and occasionally postmodern discipline. At the same time, political science and
economic empirical researchers remain largely unwilling to understand how careful philosophical
work can help frame the correct questions for empirical examination. The resistance of contem-
porary analytic jurisprudence to empirical inquiry is a problem, but not more so than the resis-
tance of the contemporary social science study of law to jurisprudential analysis.
2006] BOOK REVIEW 883

can be so admiring of Hart yet so disturbed by part of what he has

wrought remains among the most intriguing dimensions of this impor-
tant book. We can respect Hart's legacy by attending to the important
but neglected substantive aspects of his work, but we can temper that
respect by asking, with Lacey, some hard questions about the net effect
of his methodological efforts.
 HARVARD
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