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Morality, Law and the Fair Distribution of Freedom

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Abstract

Hart’s criticism of Devlin’s stance on the legal enforcement of morality has been highly influential in shaping a new liberal sensibility and in paving the way to many important legal reforms in the UK. After 50 years it is perhaps time to go back to Law, Liberty and Morality to see it in the perspective of the general evolution of Hart’s thought since the early 50s. This is a period of extraordinary creativity for the Oxford philosopher, in which he writes many important contributions to legal, moral and political philosophy. Prominent among these is ‘Are There Any Natural Rights?’, an article that sets the agenda for Hart’s subsequent work on liberty, fairness and rights, and provides the philosophical background for the liberal understanding of the relations between law and morality defended in Law, Liberty and Morality.

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Notes

  1. For an overview of the debate, see Green (2012).

  2. Annan’s statement is certainly inaccurate in describing Jurisprudence as moribund. On the state of the discipline in Britain when Hart became Professor of Jurisprudence in Oxford, see Duxbury (2005). For Hart’s assessment of the jurisprudential landscape in the early 50s, see Hart (1953b).

  3. See MacCormick (2008), Finnis (2011) and Green (2012).

  4. See Hennessy (2006), 504–508, Lacey (2004) and Ryan (2008).

  5. MacCormick points out that Hart was a friend, since undergraduate days, with Douglas Jay, one of the leading contributors to the theory of social democracy in Britain. MacCormick 2008, 21. There is also a remarkable similarity between the liberal view defended in Law, Liberty and Morality and Roy Jenkins’s statement that the State should ‘do less to restrict personal freedom. […] There is the need, independently of the State, to create a climate of opinion which is favourable to gaiety, tolerance and beauty, and unfavourable to puritanical restriction, to petty-minded disapproval, to hypocrisy, and to a dreary, ugly pattern of life’. Jenkins 1959, 135. See also Sandbrook 2007, 336–342.

  6. The Hart-Devlin debate is frequently hailed as the defining moment of the shift of current opinion towards a more liberal attitude in manners and morals. A change in the prevalent attitude in public opinion, however, is scarcely evidence of the stability of a new moral consensus. Increasingly vocal criticisms of liberal assumptions on law and order are a reminder of this fact. See Hennessy (2006), 505.

  7. An interest in legal concepts emerges occasionally in the writings of Gilbert Ryle and J.L. Austin (the latter presumably under the influence of Hart himself). See, for example, Ryle (1954) and Austin (1956–1957). Another Oxford philosopher interested in the law was Richard Wollheim. See Wollheim (1954).

  8. Del Vecchio’s book is already mentioned in Hart 1953b.

  9. Del Vecchio’s reading of Kant’s Transcendental Deduction ‘intended to demonstrate that justice has a “necessary” content and that this is the principle that human beings are entitled simply as human beings to respect in the pursue of their own ends’. Hart 1953c, 349. On Kant’s Transcendental Deduction, see Scruton (1982), 22–40.

  10. See Ricciardi (2008).

  11. See Hart (1953c), 349. Hart’s attitude is far from untypical among liberal thinkers. As Katrin Flikschuh points out, ‘admiration for Kant’s moral theory has always been tempered by discomfort regarding its underlying metaphysical presuppositions’. See Flikschuh (2000), 2–5 and 12–30.

  12. See Hart (1955), 88–89. Hart presumably alludes here to Strawson’s use of the notion of “presupposition”. Strawson 1952, 175–179. See also Hart (1953a).

  13. See also Hart (1953a).

  14. Hart 1953a, p. 35 and 1955. This is the fundamental tenet of Hart’s early version of the Choice Theory of Rights. See Simmonds (1998), pp. 215–217.

  15. His examples are the right of free expression of thought and the right of free worship.

  16. According to Leslie Green, ‘[l]ike his friend Isaiah Berlin, Hart thinks that what is good is irreducibly plural, and the world is such that genuine goods are often in conflict. Even a justified gain in one may come at the expense of another’. Green 2012, lii. See also Ryan (2008), 329.

  17. On Kantian rights and the harm principle, See Stewart (2010).

  18. See Flikschuh (2007) and Carter (2009).

  19. This exception is granted by an act that Hart describes as “special license”. Hart 1955, 87.

  20. I allude here to what Jonathan Bennett calls the “ascending” function of reason in Kant. See Bennett (1974), 260–264.

  21. The source of this idea might be John Stuart Mill. See Mill (1974), 141.

  22. See Steiner (2008).

  23. See Steiner (2008).

  24. Hart 1955, 80.

  25. Hart 1955, 78 n. 2 and 80–81.

  26. See Simmonds (1998).

  27. See Simmonds (1998), 214.

  28. The explanation for this puzzling choice, in line with his character, is disappointingly laconic: ‘its main arguments seem to me wrong and my errors are not sufficiently illuminating to justify the reissue now. The only part of the article which I think still deserves some consideration is where I invoke what was later called the “principle of fair play” as one of the bases of political obligation’ (Hart 1983, 17).

  29. Hampshire and Hart 1958. The distinction between internal and external statements is proposed in Hart (1958a), and further developed in Hart (1961). Hampshire 1959 is essential to the understanding of the wider philosophical background assumed in these writings by Hart.

  30. Hampshire’s Thought and Action (1958), Strawson’s Individuals (1959) and Hart’s The Concept of Law (1961) are the most representative documents of this stage in the development of Oxford Philosophy. Many years later Strawson will summarise his attitude to philosophy writing that ‘the philosopher labours to produce a systematic account of the general conceptual structure of which our daily practice shows us to have a tacit and unconscious mastery’. Strawson 1992, 7. The phrase is a perfect rendering of Hart’s agenda in The Concept of Law.

  31. Hart 1958b, 78–82.

  32. The basic outline of this understanding of morality is latent in the section of ‘Are There Any Natural Rights?’ on obligations and rights arising from “mutuality of restrictions”. The dependence of both moral and legal obligations from ‘the actual practice of a social group’ is affirmed explicitly in ‘Legal and Moral Obligation’, and further developed later in The Concept of Law.

  33. See Hart (1961), 183–184. See also Hampshire (1959), 223–269 and Strawson (1961), 41.

  34. For similar ideas, see Hampshire (1959), 236–237 and Strawson (1961), 41–42.

  35. See also Hart (1959b).

  36. See Hart (1967), 116–118.

  37. Hart writes that ‘[i]t does not follow from the fact that criticism of the accepted morality or other social arrangements in the name of liberty or equality is itself recognized as moral criticism that the rejection of it in the names of other values may not be also moral. The denunciation of restriction on liberty might be met by the claim that the sacrifice of liberty to social or economic equality or security was itself justified. Such differences of weight or emphasis placed on different moral values might prove irreconcilable. They may amount to radically different ideal conceptions of society and form the moral basis of opposed political parties. One of the great justifications of democracy is that it permits experimentation and a revisable choice between such alternatives’ (Hart 1961, 184). On the incompatibility between a liberal understanding of moral pluralism and Devlin’s arguments, see Wollheim (1959).

  38. On Turing’s trial in 1952, treatment, and subsequent death in 1954, see Leavitt (2006), 268–280. Lord Montague was prosecuted in 1954 for “indecent assault” on two boy scouts he had accused of theft. ‘The police altered the date in his passport which recorded a visit to France in an attempt to destroy his alibi. Montague was acquitted but was arrested at once with two of his friends and charged with offences against serviceman in the RAF. Telephones were tapped, searches made without warrant, the Crown committed forgery and the Director of Public Prosecutions, Theobald Mathew, assured the RAF men that however many offences they had committed they would not be prosecuted. Mathew later sat gloating in court when the accused were sentenced’. Annan 1990, 171. The use of agents provocateurs in public lavatories by the police was common at the time. The actor John Gielgud was perhaps the most notorious victim of this practice in the early 50s. See Kynaston (2009), 332–333.

  39. For the early reaction to Hart’s criticism of Devlin, see Dworkin (1965–1966), Mitchell (1967) and Caron (1969). A more balanced assessment is in Feinberg (1987), Cane (2006) and Bassham (2012).

  40. See Hart (1963), 47.

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Acknowledgments

I wish to thank Ian Carter, Massimo Renzo, Corrado Del Bò and Filippo Santoni de Sio for their helpful comments on a earlier draft of this article.

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Ricciardi, M. Morality, Law and the Fair Distribution of Freedom. Criminal Law, Philosophy 7, 531–548 (2013). https://doi.org/10.1007/s11572-013-9243-8

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