HLA hard

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HLA hard

HLA Hart ( Herbert Lionel Adolphus Hart; * 18th July 1907 in Harrogate , England ; † 19th December 1992 in Oxford , England) was a British philosopher of law , who from 1952 to 1968 as a professor of General Theory of Law ( Jurisprudence ) at the University of Oxford taught. Alongside Hans Kelsen, he is considered to be the most influential representative of legal positivism .

Life

Grave of HLA Hart in Wolvercote Cemetery, Oxford (2017)

HLA Hart was the son of a wealthy Jewish tailor of German and Polish descent. He spent his school and study years at Cheltenham College , Bradford Grammar School and New College, Oxford . He studied history and philosophy .

It was not uncommon in Britain at the time to work in the judiciary without a law degree. After completing his studies, Hart was therefore able to practice as a lawyer in London from 1932 to 1940 . "Unfit" for military service, he then worked for the British secret service MI5 during the Second World War .

After the end of the war, he turned his back on the legal profession to instead accept a teaching position in philosophy at New College in Oxford from 1946 to 1953 , where he joined an informal working group led by JL Austin .

In 1953, Hart was appointed professor to the chair for general legal theory ( Jurisprudence ) in Oxford . He spent the academic year 1956/1957 at Harvard . During this time, the first major preparatory work for his main work The concept of law , published in 1961, arose , namely the essay Positivism and the separation of law and morals , which was published in the Harvard Law Review in 1958 and which was published together with the reply by Lon L. Fuller in the same issue triggered the so-called Hart-Fuller debate between right-wing positivists and natural rights activists. Another preparatory work had been Hart's inaugural lecture at Oxford. The essay Definition and Theory in Jurisprudence, on the importance of the philosophy of language for jurisprudence, first appeared in the Law Quarterly Review in 1954 and also gave rise to lively debate.

From 1959 to 1960 Hart was President of the Aristotelian Society . Since 1962 he was a member ( fellow ) of the British Academy . In 1966 he was elected to the American Academy of Arts and Sciences ,

In 1969 Hart retired . His student Ronald Dworkin was appointed as his successor to the vacant chair .

From 1973 to 1978 HLA Hart was President of Brasenose College, Oxford .

Act

Hart's approach to legal philosophy in general

Endeavoring to recast the legal theories of Jeremy Bentham and John Austin in a contemporary manner, Hart applied the instruments of modern analytical philosophy - in particular the analytical philosophy of language - to problems of law. In these efforts he was mainly influenced by the ideas of John Austin and Ludwig Wittgenstein .

The Pure Theory of Law Hans Kelsen exercised a not inconsiderable influence on Hart. However, he criticized two decisive aspects of Kelsen's legal theory: the idea that the concept of law is necessarily linked to sanctions (1) and Kelsen's neo-Kantian thesis that norms cannot be adequately derived from facts but only from other norms (2) . By denying the “pure legal theory” also its “purity” - which for Kelsen himself (not just in name) the decisive element of his legal theory - Hart finally distanced himself from his teaching. As a result, there was not only purely professional animosity between Kelsen and Hart.

It is regarded as a particular merit of Hart to have brought Anglo-Saxon law "on an equal footing" with contemporary philosophy. His critical writings on the relationship between law and morality influenced legislation in Great Britain and, among other things, ensured an end to legal discrimination against homosexuals in Great Britain.

Hart's main work: "The Concept of Law"

HLA Hart's most important work is The Concept of Law (title of the German translation: The Concept of Law ), the first edition of which was published in 1961. A second edition - expanded by a "postscript" produced by Hart (a response to critics) - was published posthumously in 1994. Hart, whose doctrine was influenced by analytical philosophy , developed a modern version of the Anglo-Saxon variant of legal positivism founded by Jeremy Bentham and John Austin , the so-called Analytical Jurisprudence . In addition, he dealt with general political philosophy .

Important theses and concepts of the book are:

  • A Critique of John Austin's Legal Theory . In the 19th century he represented the so-called “command theory” of the law (cf. also his most well-known sentence: “Every law is a command”), according to which the law can be described as orders of the sovereign to his subjects based on threatened penal sanctions. Hart tries to take this theory of Austin to absurdity with the remark that a legal system in this case would be nothing more than the greatly enlarged variety of the demand " money or life" during a bank robbery ("the gunman situation writ large").
  • The distinction between primary and secondary legal rules . While Hart understands primary norms to be the total amount of all (legal) behavioral norms , the term "secondary norms" means all legal rules that authorize persons (the legislature, but also private individuals within the scope of the exercise of their private autonomy ) to create, modify or add primary legal obligations "destroy".
  • The distinction between an “observer” and a “participant perspective” of law ( external and internal point of view ). In this aspect of his theory, Hart was influenced by Max Weber , who differentiates between a “sociological” and a “legal” approach to law. The German legal philosopher Robert Alexy also ties in with Hart's conceptual tools in his work “Concept and Validity of Law ” (1992).
  • The conception of a general “ rule of recognition ”. This "empirical basic norm" (Alexy) is intended to provide the possibility of distinguishing valid from non-valid legal norms. Hart regards his “rule of recognition” as a further development of Hans Kelsen's “basic norms theory” and insists on the pure factuality of the “rule of recognition”, which he considers to be a social fact to be empirically researched (“its existence is a matter of fact "). Kelsen normativistic tables formulation of the norm that you behave like that should , as the historically first constitution prescribes this is rejected by Hart unnecessary duplication.
  • A strict conceptual separation of “law” and “morality”. In this regard, Hart expressly follows his predecessors Jeremy Bentham and John Austin and advocates a positivist legal concept. For Hart, however, this is not associated with an obligation to obey, for example, in the sense of Radbruch's formula, extremely unjust norms: He recognizes the possibility of refusing to obey an unjust law for reasons of conscience, but insists on it as a right for reasons of conceptual clarity to designate . Rational legal criticism in particular demands the possibility of differentiating between statements about the law “as it is” and about the law “as it should be”. Therefore, the legal term must be defined in a morally neutral way. It should be pointed out that Hart considers a rationally based moral criticism of law - in contrast to Kelsen, for example - to be actually possible. Unlike Kelsen, he does not base his positivistic separation thesis on the premise of ethical relativism .

reception

A not inconsiderable number of the currently more well-known legal philosophers were recruited from among Hart's former students. John Finnis, Joseph Raz and his successor at Oxford Ronald Dworkin , who criticized Hart's right-wing positivist position as untenable and developed the concept of a post-conventional legal system, are just examples . Hart also influenced the young John Rawls , who was a visiting professor at Oxford in the 1950s shortly after receiving his doctorate .

Fonts (selection)

  • Causation in the law . Clarendon Press, Oxford 1959, OCLC 460647466 (English).
  • The concept of law . Oxford University Press, New York 1961, OCLC 855917927 (English, 2nd edition posthumously 1994, 3rd edition 2012; German editions: HLA Hart: The Concept of Law . Translator: Alexander von Baeyer. Suhrkamp, ​​Frankfurt am Main 1973, ISBN 3 -518-06379-0 . As well as: HLA Hart: The concept of law. With the postscript from 1994 and an afterword by Christoph Möllers . Translator: Alexander von Baeyer. Suhrkamp, ​​Frankfurt am Main 2011, ISBN 978-3-518-29609 -7 .).
  • Law, liberty, and morality . London, Oxford University Press 1963, OCLC 1086787949 (English, Harry Camp lectures at Stanford University, 1962).
  • Punishment and responsibility. Essays in the philosophy of law . Clarendon Press, Oxford 1968, OCLC 422543704 (English).
  • Law and morality. Three essays . Ed .: Norbert Hoerster. Vandenhoeck & Ruprecht, Göttingen 1971, ISBN 3-525-33311-0 , urn : nbn: de: bvb: 12-bsb00048107-7 . - Therein: Positivism and the Separation of Law and Morals , first in: Positivism and the Separation of Law and Morals , Harvard Law Review 71 (1958), 593, JSTOR 1338225 ; Prolegomena to a theory of punishment , first in: Prolegomenon to the Principles of Punishment , Proceedings of the Aristotelian Society 60 (1959/60), 1, JSTOR 4544619 ; Social bond and the enforcement of morality , first in: Social Solidarity and the Enforcement of Morality , University of Chicago Law Review 35 (1967), 1, JSTOR 1598946 .
  • Essays on Bentham. Studies in jurisprudence and political theory . Clarendon Press, Oxford 1982, ISBN 0-19-825348-6 (English).
  • Essays in jurisprudence and philosophy . Clarendon Press, Oxford 1983, ISBN 0-19-825387-7 , doi : 10.1093 / acprof: oso / 9780198253884.001.0001 (English).

literature

  • Peter Cane (Ed.): The Hart-Fuller debate in the twenty-first century . Hart, Oxford; Portland, Oregon 2010, ISBN 978-1-84113-894-7 (English, proceedings, Australian National University, December 2008).
  • Div .: Homage to HLA Hart . In: Université Saint-Louis (ed.): Revue Interdisciplinaire d'Etudes Juridiques . tape 59 , no. 2 , 2007, ISSN  0770-2310 (French, commemorative publication; conference publication).
  • Peter Michael Stephan Hacker, Joseph Raz (Eds.): Law, morality, and society. Essays in honor of HLA Hart . Clarendon Press, Oxford 1977, ISBN 0-19-824557-2 (English, Festschrift).
  • Thomas Henkel: Hart, Herbert Lionel Adolphus: The Concept of Law . In: Kindler's Literature Lexicon in 18 volumes . 3rd, completely revised edition. Metzler, Stuttgart / Weimar 2009, ISBN 978-3-476-04000-8 (online edition).
  • Matthew H. Kramer: The legacy of HLA Hart: Legal, political, and moral philosophy . Oxford University Press, Oxford 2008, ISBN 978-0-19-954289-5 (English).
  • Matthew H. Kramer: HLA Hart. The nature of law . Polity Press, Newark 2018, ISBN 978-1-5095-2072-5 (English).
  • Nicola Lacey: A life of HLA Hart. The nightmare and the noble dream . Oxford University Press, Oxford 2004, ISBN 0-19-927497-5 (English).
  • Neil MacCormick: HLA Hart . 2nd Edition. Stanford University Press, Stanford, CA 2008, ISBN 978-0-8047-5678-5 (English).
  • Michael Martin: The legal philosophy of HLA Hart. A critical appraisal . Temple University Press, Philadelphia 1987, ISBN 0-87722-471-4 (English).
  • César Rodríguez Garavito (Ed.): La decisión judicial: El debate Hart-Dworkin . Siglo del Hombre, Santafé de Bogotá 1997, ISBN 958-665-004-9 (Spanish, Festschrift).
  • Juan Ramon de Páramo: Hart's 'Concept of Law' after thirty years. An interview with the author . In: Legal Theory . tape 22 , no. 4 , 1991, pp. 393-414 (Spanish: Entrevista a HLA Hart . Alicante 1988. Translated by Ruth Zimmerling, in Doxa. Cuadernos de Filosofía del Derecho . Núm. 5, 1988, Biblioteca Virtual Miguel de Cervantes, online ).
  • Johannes Saurer: The Hart-Dworkin debate as a fundamental controversy of Anglo-American legal philosophy: attempt at a reconstruction after five decades . In: ARSP: Archiv für Rechts- und Sozialphilosophie / Archives for Philosophy of Law and Social Philosophy . tape 98 , no. 2 , 2012, ISSN  0001-2343 , p. 214-232 , JSTOR : 24769088 .
  • Frederick Schauer: (Re) Taking Hart . In: Harvard Law Review . tape 119 , no. 3 , 2006, ISSN  0017-811X , p. 852-883 , JSTOR : 4093593 (English).
  • Thorsten Ingo Schmidt: Primary and secondary rules at HLA Hart . In: Journal of Legal Philosophy . 2007, p. 44-52 .
  • David Sugarman, HLA Hart: Hart Interviewed: HLA Hart in Conversation with David Sugarman . In: Journal of Law and Society . tape 32 , no. 2 , 2005, ISSN  0263-323X , p. 267-293 , JSTOR : 3557228 (English, preprint [PDF]).
  • Csaba Varga: The 'Hart Phenomenon' . In: ARSP: Archive of Law and Social Philosophy / Archives for Philosophy of Law and Social Philosophy . tape 91 , no. 1 , 2005, ISSN  0001-2343 , p. 83-95 , JSTOR : 23680760 (English).

Web links

Individual evidence

  1. ^ A b Juan Ramon de Páramo: Hart's 'Concept of Law' after thirty years. An interview with the author . In: Legal Theory . tape 22 , no. 4 , 1991, pp. 393-414, 393 f . (Spanish: Entrevista a HLA Hart . Alicante 1988. Translated by Ruth Zimmerling, in Doxa. Cuadernos de Filosofía del Derecho . Núm. 5, 1988, Biblioteca Virtual Miguel de Cervantes, online ).
  2. ^ HLA Hart: Positivism and the Separation of Law and Morals . In: Harvard Law Review . tape 71 , no. 4 , 1958, ISSN  0017-811X , p. 593-629 , doi : 10.2307 / 1338225 , JSTOR : 1338225 .
  3. ^ German translation in: HLA Hart: Recht und Moral. Three essays . Ed .: Norbert Hoerster. Vandenhoeck & Ruprecht, Göttingen 1971, ISBN 3-525-33311-0 , p. 14–57 , urn : nbn: de: bvb: 12-bsb00048107-7 (English, Oliver Wendell Holmes Lecture, 1957).
  4. ↑ Lon L. Fuller: Positivism and Fidelity to Law: A Reply to Professor Hart . In: Harvard Law Review . tape 71 , no. 4 , 1958, ISSN  0017-811X , p. 630-672 , doi : 10.2307 / 1338226 , JSTOR : 1338226 (English).
  5. ↑ Nicola Lacey: Out of the Witches' Cauldron? Reinterpreting the Context and Re-Assessing the Significance of the Hart-Fuller Debate . In: Peter Cane (Ed.): The Hart-Fuller debate: 50 years on . Hart, Oxford 2010, doi : 10.2139 / ssrn.2126511 (English, here: Preprint, Oxford Legal Studies Research Paper No. 51).
  6. ^ HLA Hart: Definition and Theory in Jurisprudence . In: Essays in Jurisprudence and Philosophy . Oxford University Press, Oxford 1983, ISBN 978-0-19-825388-4 , doi : 10.1093 / acprof: oso / 9780198253884.003.0002 ( oxfordscholarship.com [accessed May 16, 2019] first in: 70 Law Quarterly Review 37 ( 1954)).
  7. ↑ Jonathan Cohen, HLA Hart: Symposium: Theory and Definition in Jurisprudence . In: Proceedings of the Aristotelian Society, Supplementary Volumes . tape 29 , 1955, ISSN  0309-7013 , pp. 213-264 , JSTOR : 4106640 .
  8. ^ Deceased Fellows. British Academy, accessed June 7, 2020 .
  9. ↑ Ronald Dworkin: Law's Empire. Harvard UP, Cambridge Mass. 1986.
personal data
SURNAME Hart, HLA
ALTERNATIVE NAMES Hart, Herbert Lionel Adolphus
BRIEF DESCRIPTION British legal philosopher and university professor
DATE OF BIRTH July 18, 1907
PLACE OF BIRTH Harrogate , England
DATE OF DEATH December 19, 1992
Place of death Oxford , England