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The Scattergun and the Owl: Brian Simpson on Herbert Hart

Published online by Cambridge University Press:  20 July 2015

Richard Mullender
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While recognizing that H.L.A. Hart’s The Concept of Law has exerted a powerful and continuing influence on general jurisprudence, Brian Simpson finds it wanting. Simpson argues that Hart’s determination to make broad generalizations about the nature of a legal system deflected him from the important task of attending to the particularities of actually-existing law. Moreover, he identifies Hart as a ‘hedgehog’ in Isaiah Berlin’s sense: a thinker whose work gives expression to a ‘single central vision’ (in Hart’s case, law as a system of rules). This critique of Hart leads Simpson to argue for an approach to legal philosophy that is more attentive to the details of existing legal systems. But Simpson fails to present his readers with the theoretical approach for which he argues. This essay seeks to make good this deficiency in his response to The Concept of Law. To this end, it uses the writings of two philosophers on whom Simpson draws (Berlin and Michael Oakeshott) with the aim of enriching Hart’s contribution to general jurisprudence. Moreover, it finds in this Hart-Oakeshott-Berlin-based interdisciplinary theory (HOBBIT) a basis on which to throw much light on Britain as a distinctive form of politico-legal life.

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Critical Notice
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Canadian Journal of Law & Jurisprudence , Volume 26 , Issue 2 , July 2013 , pp. 491 - 513
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Copyright © Canadian Journal of Law and Jurisprudence 2013

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References

I owe thanks to the CJLJ referees and, likewise, to TT Arvind, Tom Bennett, Emilia Mickiewicz, Patrick O'Callaghan, and Ole Pedersen for their criticisms of earlier drafts of this essay. I am also grateful to those who offered criticisms when I presented earlier versions of this essay in a seminar organised by the Newcastle Ethics, Legal, and Political Philosophy Group in November 2012, and in a symposium, led by Professor Geoffrey Samuel, on the question ‘Is Legal Knowledge Cumulative?’ (Newcastle Law School, February 2013).

1. Simpson, AWB, Reflections on The Concept of Law (Oxford: Oxford University Press, 2011) at 124 CrossRefGoogle Scholar [Reflections]. See also Berlin, I, The Proper Study of Mankind: An Anthology of Essays , ed by Hardy, H (London: Pimlico, 1998) at 436.Google Scholar

2. Passages in Simpson’s book suggest a degree of ambiguity on the question as to whether Hart’s concern with legal rules or his concern with law as a system makes him a hedgehog. See Reflections, supra note 1 at 116 (on legal rules as Hart’s ‘central’ concern) and 138 (on legal systematicity). However, other passages in Simpson’s book make it clear that he regards legal rules and systematicity as the centre of gravity in Hart’s exposition. This is because legal systems come into existence as a result of the relationship between particular types of rule. Ibid at 140.

3. Ibid at 125,138-40.

4. While we cannot pursue the point in detail, Simpson makes responses to the later writings of Wittgenstein that make plain his desire to prompt a downward revision in his standing as well as that of Hart. See, for example, ibid at 49 (on the ‘Wittgenstein industry’), at 102 (on Wittgenstein’s ‘ridiculous’ view that games exhibit ‘family resemblances’) and 152, n 21 (‘Wittgenstein had virtually nothing of interest to say which might be applied to the law’).

5. Ibid at 1. Simpson’s references (and those in this response to him) are to Hart, HLA, The Concept of Law, 2d ed (Oxford: Clarendon Press, 1994, with a Postscript edited by Bulloch, A & Raz, J)Google Scholar. (In 2012, Clarendon Press published a third edition of Hart’s book, with an introduction by Leslie Green).

6. Reflections, supra note 1 at 204-06.

7. Ibid at 204.

8. See, for example, ibid at 176-77 (where Simpson argues that Hart’s account of the transition from the pre-legal to a legal world is ‘derivative’ since it bears ‘striking’ similarities to that in John Locke’s account of movement from a state of nature to civil society). See also 78, 172.

9. Ibid at 153.

10. Ibid at 8, 12.

11. Ibid at 6.

12. Ibid at 158. See also 149.

13. Ibid at 78.

14. Ibid at 6.

15. Ibid at 6, 140-41, 183.

16. Ibid at 3.

17. Ibid at 18. See also Collini, S, Public Moralists: Political Thought and Intellectual Life in Britain 1850-1930 (Oxford: Clarendon Press, 1991) at 266-68Google Scholar.

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20. Reflections, supra note 1 at 28ff. See also Simpson, AWB, ‘Herbert Hart Elucidated’ (2006) 104 Michigan LR 1437, 1443, n 31Google Scholarand associated text.

21. Reflections, supra note 1 at 29-30.

22. Ibid at 30.

23. Ibid at 114 (discussing J Salmond, On Jurisprudence, 11th ed by G Williams (London: Sweet & Maxwell, 1957)).

24. Ibid at 114 (discussing J Salmond, The First Principles of Jurisprudence (London: Stevens & Haynes, 1893) at 219-20).

25. Ibid.

26. Ibid at 114-15 (where Simpson also conveys the im Pression that Hart grudgingly acknowledged the value of Salmond’s contribution by describing his ‘conception of “ultimate legal principles”‘ as ‘insufficiently elaborated’). See also Hart, supra note 5 at 292.

27. Ibid at 147-48.

28. Simpson states that the distinction between core and penumbra ‘seems to originate with Hart’. See Reflections, supra note 1 at 117. Cf Bix, B, Law, Language, and Legal Determinacy (Oxford: Clarendon Press, 1993) at 10 Google Scholar, n 21 (noting that this distinction may have its roots in Russell, B, ‘Vagueness’ in Collected Papers of Bertrand Russell, ed by Slated, J (London: Unwin Hyman, 1988), vol IX at 149)Google Scholar.

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30. Ibid at 124.

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33. Ibid at 125.

34. Ibid.

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36. Reflections, supra note 1 at 125. (Berlin’s misgivings about the hedgehog/fox distinction appear in the paragraph following the one from which Simpson takes the quotations we noted earlier (supra notes 30, 32, 33, 34).

37. Ibid at 125.

38. Ibid at 128.

39. Ibid at 128, 146.

40. Ibid at 146.

41. Ibid at 156.

42. Ibid at 156.

43. Ibid at 140.

44. Ibid at 79 (discussing Hart, supra note 5 at 239 (Postscript)).

45. Ibid at 50, 71, 92.

46. Ibid at 123, 130. (As well as criticising Hart on account of his hedgehogesque tendencies, Simpson excoriates Grant Gilmore on the same ground. See ibid at 128-29.)

47. Ibid at 125. Simpson identifies his detailed studies in legal history as exercises in ‘foxiness’. See 133-34 (discussing Simpson, AWB, Cannibalism and the Common Law: A Victorian Yachting Tragedy (Chicago: University of Chicago Press, 1984)Google Scholar, Simpson, AWB, In the Highest Degree Odious: Detention Without Trial in Wartime Britain (Oxford: Clarendon Press, 1994)CrossRefGoogle Scholar and Simpson, AWB, End of Empire: Britain and the Genesis of the European Convention (Oxford: Oxford University Press, 2001)Google Scholar).

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52. Reflections, supra note 1 at 173. (Simpson’s identifcation of anthropology as a corrective to Hartian jurisprudence bears similarities to the use made by Ernest Gellner of Evans-Pritchard’s writings in his assault on ‘Oxford philosophy’. See Hall, JA, Ernest Gellner: An Intellectual Biography (London: Verso, 2011) at 117-19Google Scholar.)

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55. Reflections, supra note 1 at 68.

56. Ibid at 69-70.

57. Ibid at 70 (where Simpson also finds in Oakeshott’s exposition ‘an element of the fraudster and the charlatan’). In light of this outpouring, we might conclude that Simpson sees Oakeshott as a purveyor of ‘bullshit’ in the sense specifed in Frankfurt, HG, On Bullshit (Princeton: Princeton University Press, 2005) at 56 Google Scholar (identifying the bullshitter as one who ‘does not care whether the things he says describe reality correctly’).

58. See supra note 42 and associated text.

59. Berlin, supra note 35 at 8, 201. For a more precise definition of uncombinability, see Gray, J, Post-Liberalism: Studies in Political Thought (Routledge: London, 1993) at 301.Google Scholar

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80. Oakeshott, supra note 78 at ch 58. See 257. (Oakeshott does, however, trace civil association (or ‘civitas’) back to the ancient Jewish nation. See Oakeshott, supra note 76 at 316.)

81. Oakeshott, supra note 78 at 259.

82. Oakeshott, supra note 73 at 312-13. See also Oakeshott, supra note 76 at 31 (on the ‘preeminently fluid’ character of tradition).

83. Franco, P, Michael Oakeshott: An Introduction (New Haven: Yale University Press, 2004) at 169.Google Scholar

84. In bringing Hart together with the two political philosophers we have been considering, we might talk of a Hart-Oakeshott-Berlin-based interdisciplinary theory (or HOBBIT). (See Table below).

85. Hart, supra note 5 at 94-95.

86. Reflections, supra note 1 at 198-99. See also Hart, supra note 5 at 3, 17.

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89. Ibid at 96.

90. Ibid.

91. Ibid at 131.

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100. Ernest Weinrib lends support to the analysis in the text. For he describes negligence law as ‘a system of negative duties of non-interference with the rights of others’. Moreover, he identifies corrective justice as giving this branch of private law its distinct character. See Weinrib, EJ, Corrective Justice (Oxford: Oxford University Press, 2012) at 11.CrossRefGoogle Scholar

101. See, for example, Invercargill City Council v Hamlin [1996] AC 624, 640-42 (PC)Google ScholarPubMed, per Lord Lloyd (approving statements made by judges in the Australian High Court, the Canadian Supreme Court and the New Zealand Court of Appeal, and finding in them support for the theme that judicial ‘imposition of a single monolithic solution’ in ‘different common law jurisdictions’ would be inappropriate).

102. Anns v Merton LBC [1978] AC 728, 751-52,Google ScholarPubMed per Lord Wilberforce. The ‘retreat’ from Lord Wilberforce’s approach to duty of care culminated in Murphy v Brentwood DC [1991] 1AC 398. See also Lunney, M & Oliphant, K, Tort Law: Text and Materials, 4th ed (Oxford: Oxford University Press, 2010) at 139.Google Scholar

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104. Ibid.

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106. Ibid at 156.

107. See Nagel, T, The View from Nowhere (New York: Oxford University Press, 1986) at 10 Google Scholar (on the pursuit of ‘non-local’ truth as an end of philosophy) and 6 (noting that ‘we can’t get outside ourselves completely’). See also Fish, SE, Save the World on Your Own Time (Oxford: Oxford University Press, 2008) at 128-29Google Scholar (on the fallibilist view that we should treat our understanding of the world with caution since it is (inevitably) ‘derived … from … local, limited perspectives’) and Raz, J, Between Authority and Interpretation (Oxford: Oxford University Press, 2009) at 32 CrossRefGoogle Scholar (arguing that ‘[w]hile the concept of law is parochial … our inquiry is universal in that it explores the nature of law, wherever it is to be found’).

108. Simmonds, supra note 103 at 158.

109. Ibid at 155, 157.

110. Ibid.

111. Berlin, supra note 63 at 171-72.

112. Oakeshott, supra note 73 at 115, 119, 157-58, 206, 264, 298, 316-17, 319. See also P Franco, supra note 83 at 170.

113. Annan, N, Our Age: The Generation that Made Post-War Britain (London: Fontana, 1990) at 371-78Google Scholar (Berlin) at 409, 414-15 (Hart) and ch 24 (Oakeshott).

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127. We can explain the weather-beaten appearance of Parliamentary sovereignty by reference to three ‘contemporary challenges’ to its status as the constitution’s highest-order norm. They are membership of the European Union (a supranational legal order), the incorporation into British law of fundamental human rights (by operation of the Human Rights Act 1998) and ‘common law radicalism’ (according to which judges may elaborate the law in ways that secure fundamental interests). See Turpin & Tomkins, supra note 125 at 61-74.

128. See Postema, supra note 123 at 421-22 (on Bentham), Austin, J, Lectures on Jurisprudence or the Philosophy of Positive Law, ed by Campbell, R (London: John Murray, 1911) at 634, 638, 649-52, 661Google Scholar and Reflections, supra note 1 at 152 (discussing Hart, supra note 5 at 274 [misidentified by Simpson as 273] (where Hart makes responses to Dworkin’s more developed account of judicial discretion)).

129. Wittgenstein, L, Philosophical Investigations, translated by Anscombe, GEM (New York: Macmillan, 1968) at para 90Google Scholar (describing ‘grammar’ as governing the possibilities of phenomena’ by regulating ‘the kind of statement that we make about phenomena’). See also Pitkin, H Fenichel, Wittgenstein on Justice: On the Significance of Ludwig Wittgenstein for Social and Political Thought, revised ed (Berkeley: University of California Press, 1972) at 116-39Google Scholar (describing ‘grammar’ as associated with learning from cases and as yielding criteria that are reliant on connections that we have already made between word and world).

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145. Simpson’s exposition becomes less engaging at those points where he directs ad hominem arguments at Hart. See supra notes 14-15 and associated text.

146. Many of the most arresting passages in Reflections on The Concept of Law have nothing to do with Hart: e.g., Simpson’s account of a tutorial in Oxford during which his ‘pupil’ persuaded him ‘to devote the allocated time to trying out a high performance car on the Oxford ring road’. We learn that this gave Simpson the opportunity (for the first time in his life) to drive a car at 100mph.

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151. Schopenhauer, A, The World as Will and Representation (New York: Dover, 1969) at ii, 353-54Google Scholar. For Schopenhauer, the exertions of the mole provide support for a much wider point than the (research-related) one made in the text. He sees the mole’s activities as emblematic of the futility of human existence. He tells us that ‘[t]o dig strenuously with its enormous shovel-paws is the business of [the mole’s] whole life’. He adds that ‘permanent night surrounds it’ and its ‘cares and troubles … are out of all proportion to the yield or profit from [them]’.