Hart's Posthumous Reply
2017; Harvard Law Review Association; Volume: 130; Issue: 8 Linguagem: Inglês
ISSN
2161-976X
Autores Tópico(s)Legal principles and applications
ResumoINTRODUCTION Professor Hart left, at his death, an unfinished manuscript of Postscript which he had intended for new edition of his best-known and most influential book, The Concept of Law. (In the last edition of that book, printed in 1972, he said that he hoped some future occasion to add to the book a detailed of various criticisms of the book that had been written over many years.) The Postscript was meant to contain two parts, the longer first part of which was to be response to my own arguments directed to his work, and the second, shorter, part discussion of other criticisms, and of revisions he thought might be necessary in the light of the criticisms he accepted. At his death, only the first part had been written, and this has now been published in new edition of the book. (1) I do not know how long before his death he ceased working on the manuscript, or how far he thought the part that he had written complete. It must, I think, be read as draft, bearing in mind that the author might well have wanted to change or rewrite parts of it. But even as it stands, it reminds us of Hart's own comment about his predecessor as Professor of Jurisprudence, Arthur Goodhart, who was, Hart said, wrong clearly even when he was clearly wrong. (2) That compliment is more distinctly true of Hart than of any other philosopher I have known. And it is characteristic of all his work that his descriptions of my own views are not only scrupulously fair and for the most part very accurate, but that they are often presented with concision and clarity that I have never myself achieved for them. We cannot be sure, as I said, that Hart would have published the first part of the Postscript in its present form had he been able to complete the whole. I believe I should nevertheless answer the very detailed arguments and criticisms of my work in the draft he left, even though, for the first time, I must write without the fear and pleasure of hearing his judgment. Hart's Postscript is divided into sections and sub-sections, and, in the interests of clarity though at the price of some minor repetition, I have arranged this response in the same way, so that I can comment on each section in turn. I also use the present tense to describe what Hart now says, in order to distinguish the Postscript from earlier work. I. THE NATURE OF LEGAL THEORY In this first section, Hart turns immediately to the most profound disagreement between us, which is about the status of theoretical descriptions of intellectual domains. He was concerned only about the status of legal theory, but the issues he raises in this section have much more general application. They are central, I now believe, to the whole question of how far philosophical studies of some domains, including morality and art and science as well as law, can be Archimedean with respect to those domains; how far, I mean, they can regard themselves as about but not of them. Much recent skepticism and reductionism, particularly but not only about morality, has purported to be Archimedean in that way. Philosophers who say that moral judgments are only the expression of particular emotion, or only proposals for conventions, for example, take themselves not to be making internal, skeptical moral judgments, as someone does who says that heroes are subject to no moral constraints, but to be describing (or re-describing) morality from the outside. That is crucial methodological claim because, if sound, it allows these philosophers to exempt their own opinions from their characterizations of the domain these opinions are about: philosopher can say that morality is only emotion without conceding that that very statement is itself only the expression of an emotion. My own view, which I have argued elsewhere, (3) is that Archimedean philosophy is impossible so far as it purports to challenge or qualify or even to re-state judgments internal to the domain it studies. …
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