Title Pages University Press Scholarship Online Oxford Scholarship Online The Legacy of H.L.A. Hart: Legal, Political, and Moral Philosophy Matthew H. Kramer, Claire Grant, Ben Colburn, and Antony Hatzistavrou Print publication date: 2008 Print ISBN-13: 9780199542895 Published to Oxford Scholarship Online: January 2009 DOI: 10.1093/acprof:oso/9780199542895.001.0001 Title Pages LEGAL, POLITICAL, AND MORAL PHILOSOPHY (p.ii) THE LEGACY OF H.L.A. HART The Legacy of H.L.A. Hart (p.iv) Great Clarendon Street, Oxford OX2 6DP Oxford University Press is a department of the University of Oxford. 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Hart, H. L. A. (Herbert Lionel Adolphus), 1907– I. Kramer, Matthew H., 1959– K235.L434 2008 340'.1—dc22  2008023430 ISBN 978–0–19–954289–5 1 3 5 7 9 10 8 6 4 2 Preface University Press Scholarship Online Oxford Scholarship Online The Legacy of H.L.A. Hart: Legal, Political, and Moral Philosophy Matthew H. Kramer, Claire Grant, Ben Colburn, and Antony Hatzistavrou Print publication date: 2008 Print ISBN-13: 9780199542895 Published to Oxford Scholarship Online: January 2009 DOI: 10.1093/acprof:oso/9780199542895.001.0001 (p.v) Preface This book arises from a British Academy Symposium on ‘The Legacy of H.L.A. Hart’ held at Churchill College, Cambridge, in July 2007, under the auspices of the Cambridge Forum for Legal & Political Philosophy. Early versions of the essays in this volume were written as papers for presentation at that Symposium. We are very grateful to the British Academy for their support and generous sponsorship; we owe special thanks to Onora O'Neill, Angela Pusey, and Joanne Blore. We are likewise greatly indebted to the contributors to this volume for their fine essays and for their admirable cooperativeness at the Symposium and in the preparation of this book. Also deserving of warm thanks are Trevor Allan, Tony Honoré, Serena Olsaretti, Onora O'Neill (again), and Quentin Skinner, who chaired panels at the Symposium. We are delighted that Hart's son Charlie and grandchildren Justin and Tanya were able to attend part of the proceedings. We are much obliged also to Hart's daughter Joanna for her kind and enthusiastic support of the venture. We are likewise extremely grateful to the numerous people who attended the Symposium as delegates, and we extend our apologies to the many people who could not be taken off the waiting list. The presence of delegates at the Symposium from every continent except Antarctica is indicative of the Page 1 of 2 Preface global reach of Hart's influence. We extend glad thanks as well to four Cantabrigians who handled a number of logistical matters: Christopher Arias, Kiersten Burge-Hendrix, Rupert Gill, and Mark McBride. Many people at Churchill College helped to make the Symposium a great success. We are especially grateful to the bedmakers, catering staff, handymen, and porters, and we owe particular thanks to the following individuals: Paul Barringer, Alison Barton, Shirley Blackley, Jillian Blaine, Tim Cooper, Ian Douglas, Dean Flack, Martin Haydon, Paul Howitt, Rosetta Kyriakou, Ivan Martin, Richard Mee, Sandra Parsons, Angela Railton, Steve Ridyard, Carol Robinson, Michelle Tuson, and Paul Willimott. We are also much obliged to several people at the Cambridge University Law Faculty for their extremely valuable assistance: Elizabeth Aitken, Daniel Bates, Matthew Martin, David Newton, and Norma Weir. Hearty thanks are due as well to several people at the Cambridge Centre for Research in the Arts, Social Sciences, and Humanities: Catherine Hurley, Mary Jacobus, and Michelle Maciejewska. At the Oxford University Press, John Louth and Alex Flach and Lucy Stevenson have been gratifyingly enthusiastic and adroit in their handling of this book. We (p.vi) are very pleased that the OUP, as the publishers of every one of Hart's books, have been so helpfully supportive of this project. Matthew H Kramer Claire Grant Ben Colburn Antony Hatzistavrou September 2007 List of Contributors University Press Scholarship Online Oxford Scholarship Online The Legacy of H.L.A. Hart: Legal, Political, and Moral Philosophy Matthew H. Kramer, Claire Grant, Ben Colburn, and Antony Hatzistavrou Print publication date: 2008 Print ISBN-13: 9780199542895 Published to Oxford Scholarship Online: January 2009 DOI: 10.1093/acprof:oso/9780199542895.001.0001 (p.ix) List of Contributors R A Duff is a Professor of Philosophy at the University of Stirling, where he has taught since 1970. His research interests lie in philosophy of criminal law, especially in issues concerning the grounds and structures of criminal liability and the aims of criminal punishment. With three colleagues (Lindsay Farmer, Sandra Marshall, Victor Tadros), he recently completed an AHRC-funded project on criminal trials; with the same colleagues he is starting a new AHRC-funded project on criminalization. Cécile Fabre holds the Chair of Political Theory at the University of Edinburgh. She has published extensively on rights and distributive justice and is currently writing a book on the ethics of war. She is the author of Social Rights under the Constitution (Oxford University Press, 2000), Whose Body is it Anyway (Oxford University Press, 2006), and Justice in a Changing World (Polity, 2007 ). John Finnis is Professor of Law and Legal Philosophy at the University of Oxford, a Fellow and Tutor in Law of University College Oxford, Biolchini Professor of Law at the University of Notre Dame du Lac (Indiana), and a Fellow of the British Academy. John Gardner is Professor of Jurisprudence at the University of Oxford. He has also Page 1 of 4 List of Contributors held positions at King's College London, Yale Law School, Columbia Law School, Princeton University, the University of Texas, and the Australian National University. He is the author of Offences and Defences (Oxford University Press, 2007), and recently prepared a new edition of H.L.A. Hart's Punishment and Responsibility (Oxford University Press, 2008). Claire Grant is Reader in Social and Political Philosophy at the University of Warwick. Her many publications deal with issues in legal philosophy and the philosophy of criminal law. She was a founding Editor-in-Chief of the journal Criminal Law and Philosophy. Leslie Green is Professor of the Philosophy of Law at the University of Oxford, where he is a Fellow of Balliol College. He has held visiting professorships at NYU, Berkeley, and the University of Texas at Austin, and remains a part-time faculty member at the Osgoode Hall Law School of York University, Toronto. He publishes widely in jurisprudence and political theory. Brad Hooker is a Professor of Philosophy at the University of Reading and the author of Ideal Code, Real World: A Rule-Consequentialist Theory of Morality (Clarendon Press, 2000). Matthew H Kramer is Professor of Legal & Political Philosophy at the University of Cambridge; Fellow of Churchill College, Cambridge; and Director of the Cambridge Forum for Legal & Political Philosophy. Among his many books, the most recently published is Objectivity and the Rule of Law (Cambridge University Press, 2007). David Lyons taught philosophy at Cornell University from 1964 to 1995, and in 1979 joined the law faculty. He has since been a member of the law and philosophy faculties of (p.x) Boston University. His publications include Forms and Limits of Utilitarianism (Oxford, 1965), In the Interest of the Governed (Oxford, 1973), Ethics and the Rule of Law (Cambridge, 1984), Moral Aspects of Legal Theory (Cambridge, 1993) and Rights, Welfare, and Mill's Moral Theory (Oxford, 1994). Susan Mendus is Professor of Political Philosophy and a member of the Morrell Centre for Toleration at the University of York. Her main area of research interest is modern political philosophy and especially theories of toleration. She has recently completed a book entitled Politics and Morality, and is currently preparing her 2007 Freilich Lectures on Tolerance for publication under the title Religious Toleration in an Age of Terrorism. Philip Pettit is L S Rockefeller University Professor of Politics and Human Values at Princeton University. His recent books include Republicanism (Oxford University Press, 1997), The Economy of Esteem (Oxford University Press, 2004) with Geoffrey Brennan, and Made with Words: Hobbes on Mind, Society and Politics (Princeton University Press, 2007). He is currently working on a book on group agency with Christian List. Common Minds: Themes from the Philosophy of Philip Pettit appeared in 2007, edited by Michael Smith, Geoffrey Brennan, Robert Goodin, and Frank Jackson (Oxford University Press). Page 2 of 4 List of Contributors Gerald J Postema, Cary C Boshamer Professor of Philosophy and Professor of Law at the University of North Carolina at Chapel Hill, is the author of Bentham and the Common Law Tradition, editor of Philosophy and the Law of Torts, and associate editor of Treatise of General Jurisprudence and Philosophy of Law (eight of twelve volumes published). He is currently writing a history of Anglo-American jurisprudence and editing a collection of Sir Matthew Hale's jurisprudential writings. Alan Ryan has been Warden of New College, Oxford since 1996, and before that was Professor of Politics at Princeton University. He has written on the ethics and politics of a liberal society in many places, including particularly The New York Review of Books, and is the author of several books on J S Mill, Bertrand Russell, and John Dewey. Hillel Steiner is Professor of Political Philosophy at the University of Manchester and a Fellow of the British Academy. He is the author of An Essay on Rights (Blackwell, 1994 ) and co-author, with Matthew Kramer and Nigel Simmonds, of A Debate Over Rights: Philosophical Enquiries (Oxford University Press, 1998). His current research projects include ones on the concept of ‘the just price’ and the application of libertarian principles to global, and to genetic, inequalities. Judith Jarvis Thomson is Professor of Philosophy at MIT. Her many books and articles address a wide variety of topics in metaphysics, the philosophy of action, ethics, and political philosophy. Her most recently published book is Normativity (Open Court Publishing), which is an expanded version of her 2003 Carus Lectures. Jeremy Waldron is a University Professor at New York University. He has previously taught at Columbia, Princeton, California-Berkeley, Edinburgh, Oxford, and Otago. Among his many books, the most recently published is God, Locke, and Equality: Christian Foundations of Locke's Political Thought (Cambridge University Press, 2002). W J Waluchow has BA and MA degrees from the University of Western Ontario and a DPhil in Philosophy of Law from Oxford, where he studied under H.L.A. Hart. (p.xi) He is Professor of Philosophy at McMaster University. His research interests include Legal Philosophy, Ethics, and Political Philosophy. Among his publications are: Inclusive Legal Positivism; Free Expression: Essays in Law and Philosophy; The Dimensions of Ethics; and A Common Law Theory of Judicial Review: The Living Tree. Leif Wenar is Professor of Philosophy at the University of Sheffield. He is the author of ‘The Nature of Rights’, Philosophy & Public Affairs (2005), ‘The Value of Rights’, Law and Social Justice (MIT, 2005), ‘Epistemic Rights and Legal Rights’, Analysis (2003), and the entry on rights in the Stanford Encyclopedia of Philosophy. Richard W. Wright is a Professor of Law at the Illinois Institute of Technology's Chicago-Kent College of Law. He has been a visiting professor or fellow at the Universities of Canterbury, Melbourne, Oxford, Texas, and Torcuato di Tella. He is a member of the American Law Institute and the advisory boards of the Journal of Tort Law and the Center for Justice and Democracy. (p.xii) Page 3 of 4 Introduction University Press Scholarship Online Oxford Scholarship Online The Legacy of H.L.A. Hart: Legal, Political, and Moral Philosophy Matthew H. Kramer, Claire Grant, Ben Colburn, and Antony Hatzistavrou Print publication date: 2008 Print ISBN-13: 9780199542895 Published to Oxford Scholarship Online: January 2009 DOI: 10.1093/acprof:oso/9780199542895.001.0001 (p.xiii) Introduction Herbert Lionel Adolphus Hart was the world's foremost legal philosopher in the twentieth century, and was also a major figure in political and moral philosophy. Born in the first decade of that century and living until its final decade, he was centrally responsible for reviving the philosophy of law from the doldrums in which it had lain for many years. Both through his own brilliant work and through his mentoring of some of the twentieth century's other great jurisprudential thinkers, he exerted a far-reaching influence on legal philosophy that was comparable to the influence of his friend John Rawls on political philosophy. His work has often been tellingly criticized—indeed, one of the marks of his intellectual excellence lay in his encouragement of students who took strong exception to many of his ideas—but the magnitude of his achievements is beyond any reasonable doubt. 1 An especially impressive feature of Hart's writings is the breadth of the topics which they encompass. Unprecedentedly, the essays in this volume together cover all the main areas of his philosophical work: general legal philosophy and legal positivism; criminal responsibility and punishment; theories of rights; causation in the law; toleration and liberty; and theories of justice. Though Hart is most famous for his work in the first of Page 1 of 6