Table Of ContentTHE LEGACY OF H.L.A. HART
LEGAL, POLITICAL, AND MORAL PHILOSOPHY
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Th e Legacy of H.L.A. Hart
Legal, Political, and Moral Philosophy
Edited by
MATTHEW H KRAMER
CLAIRE GRANT
BEN COLBURN
and
ANTONY HATZISTAVROU
1
3
Great Clarendon Street, Oxford OX2 6DP
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British Library Cataloguing in Publication Data
Data available
Library of Congress Cataloging in Publication Data
Th e legacy of H.L.A. Hart : legal, political, and moral philosophy/edited
by Matthew H. Kramer . . . [et al.].
p. cm.
Includes bibliographical references and index.
ISBN 978–0–19–954289–5 (acid-free paper) 1. Law—
Philosophy. 2. Justice. 3. Causation (Criminal law) 4. Criminal
liability. 5. Hart, H. L. A. (Herbert Lionel Adolphus),
1907– I. Kramer, Matthew H., 1959–
K235.L434 2008
340’.1—dc22 2008023430
Typeset by Newgen Imaging Systems (P) Ltd., Chennai, India
Printed in Great Britain
on acid-free paper by
CPI Anthony Rowe, Chippenham, Wiltshire
ISBN 978–0–19–954289–5
1 3 5 7 9 10 8 6 4 2
Preface
Th is book arises from a British Academy Symposium on ‘Th e 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 fi ne 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 enthusias-
tic 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. Th e presence of
delegates at the Symposium from every continent except Antarctica is indicative
of the global reach of Hart’s infl uence.
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 , handy-
men, 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 sev-
eral 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
vi Preface
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
Table of Contents
Preface v
List of Contributors ix
Introduction xiii
Matthew H Kramer and Claire Grant
I. LEGAL POSITIVISM AND GENERAL
JURISPRUDENCE
1. On Hart’s Ways: Law as Reason and as Fact 3
John Finnis
2. Th e Legal Entrenchment of Illegality 29
David Lyons
3. Conformity, Custom, and Congruence: Rethinking the
Effi cacy of Law 45
Gerald J Postema
4. Hart and the Principles of Legality 67
Jeremy Waldron
5. Legality, Morality, and the Guiding Function of Law 85
W J Waluchow
II. CRIMINAL RESPONSIBILITY AND
PUNISHMENT
6. Responsibility and Liability in Criminal Law 101
R A Duff
7. Hart and Feinberg on Responsibility 121
John Gardner
III. CAUSATION IN THE LAW
8. Some Refl ections on Hart and Honoré, Causation in the Law 143
Judith Jarvis Th omson
9. Th e Nightmare and the Noble Dream: Hart and Honoré on
Causation and Responsibility 165
Richard W Wright
viii Table of Contents
IV JUSTICE
10. Fairness, Needs, and Desert 181
Brad Hooker
11. Th e Basic Liberties 201
Philip Pettit
V. RIGHTS
12. Posthumous Rights 225
Cécile Fabre
13. Are Th ere Still Any Natural Rights? 239
Hillel Steiner
14. Th e Analysis of Rights 251
Leif Wenar
VI. TOLERATION AND LIBERTY
15. On Being Tolerated 277
Leslie Green
16. Private Faces in Public Places 299
Susan Mendus
17. Hart and the Liberalism of Fear 315
Alan Ryan
Bibliography of Works Cited 331
Index 347
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 Th eory 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 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 Off ences 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 jurispru-
dence 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 Th eory 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
