h l a hart and the concept of law and ronald dworkin and taking rights seriously

Well, I finally have to do it. I have put off so long reading and thinking about Hart's and Dworkin's work that it finally hit me in the last few days that I need to do "justice" to some of their writing. They are, by most accounts, the most significant names in late 20th century jurisprudence/philosophy of law, and I thought I would look at them closely to see what all the fuss was about. As it turns out I think you will find, as I review their significant works in the next many pages, that they are mostly outdated in their thinking (especially the works I will examine), tilting at windmills that certainly were standing and whirring 30 or 40 years ago but surprisingly silent today.

This in itself brings out an interesting point about reading literature and scholarship that is "dated:" whether the conceptions stimulating a work were so confined to the time of authorship that anyone who picks up the work a generation later comes upon, as it were, a silent battlefied strewn with corpses that once were alive and fighting about something that is no longer clear to the current explorer. This is most evident as you read their leading works, The Concept of Law (for Hart) and Taking Rights Seriously (for Dworkin). I would estimate that 60% or more of it seems directed to intramural debates that have very little resonance today. In addition, I would say that even the framing of the questions of what law is for them may be so indebted to/bound by the time in which it was written that they simply are not our questions in 2005.

Limitations of the Works

The notion of the time-bound character of scholarship became clearer to me when I decided to write some detailed essays on the structure of Plato's argument in Republic. I was actually astonished as I read the text closely, and wrote about it, how much "extraneous" material there is, or how much material in the argument seems so reflective of another time that it is quite useless for us today. Only some of the larger themes still seem to touch us today, and they sometimes seek to stick out of the rest of the narrative like stumps of trees out of a desolate waste after a volcanic eruption.

One may look at this point also from the perspective of fashion. In the Fall 2005 NYU Law School Magazine, where Dworkin is featured, there are many pictures of him from his present and his past. One endearing shot shows him playing kickball with his young son late in the 1960s at Yale. What is striking to me about that picture are the fashions. He, who has always been known for his sartorial splendor, is looking very "60s Yale" in the picture--the turtle neck, the pipe, the thick black-rimmed glasses, the plaid pants and loafers. In other words, we look at his picture from the late 1960s and smile immediately. He was very fashionable for the times but, in fact, the fashion has faded and the photo is simply a frozen moment of a time long ago.

Scholarly writing from the past is something like this, I think. It is like wearing a fashion from another time. Very few people would think of trying to "put on" his turtleneck today or smoke his pipe (pipes gave way to cigarettes and then no smoking materials by the 1980s in academia). So why read his writing? Well, I read the writings, I confess, not for insight into the way one ought to do jurisprudence or even to derive principles that might be helpful for my own thinking, but largely as an archaeological endeavor. That is, I seek to unearth what people were thinking at the time. Why do I do it? Because the "field" has said these folks are important. Are they important? Sure. They are cited all the time and some people therefore must think they are important. But my focus is on just trying to understand how they have articulated their ideas. I think the world of 2005 is so significantly different from the worlds of 1961, when Hart's book came out, or the mid 1970s, when a lot of Dworkin's ideas in Taking Rights Seriously were written, that their books are only a sort of distant echo now.

Conclusion

In these and the following essays, then, I propose to go through their major work, a chapter at a time, focusing on how they define their issues and giving my 21st century "take" as I go along. This is ultimately my way of doing justice to the world--to listen to a person and try to present what s/he has said, adding my own comments or questions along the way.

The next essay begins my treatment of Hart. My Dworkin essays, also on this page, begin here. In my treatment of Hart I will attempt not only to recite his major points in The Concept of Law and the flow of his argument, but also, when appropriate, to connect the dots from his life, neatly told in Nicole Lacey's 2004 biography (A Life of HLA Hart (Oxford, 2004)) to the work.

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