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Reflections on 'The Concept of Law'$

A. W. Brian Simpson

Print publication date: 2011

Print ISBN-13: 9780199693320

Published to Oxford Scholarship Online: January 2012

DOI: 10.1093/acprof:oso/9780199693320.001.0001

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(p.207) Bibliography with Annotations

(p.207) Bibliography with Annotations

Reflections on 'The Concept of Law'
Oxford University Press

Bibliography references:

This is not a comprehensive bibliography, but a collection of notes placed here so as not to clutter up the text, and provide guidance on further reading.

Allen, CK, Law in the Making. Seven editions from 1926, the last in 1965, but the one most relevant is that of 1939. At one time it was widely used in American law schools.

Austin, J, The Province of Jurisprudence Determined (1832) and The Uses of the Study of Jurisprudence (1863) with an Introduction by HLA Hart (1954). The first of these works was first published in 1832 and the second in 1863. The author John Austin (1790–1759) is not to be confused with John Langshaw Austin (1911–1960). Austin’s Lectures on Jurisprudence or the Philosophy of Positive Law were reconstructed by his widow Sarah Austin and published in 1863. There is some suspicion that she was not above some creativity in this.

Austin, JL, How to Do Things with Words: The William James Lectures delivered at Harvard University in 1955 (JO Urmson ed 1962). This was put together from notes after Austin’s death. It is therefore not entirely clear that Austin himself would have approved of the text.

Ayer, AJ, Language Truth and Logic (1936). This was the book which established Ayer’s reputation. It purveyed the doctrine of logical positivism, which Ayer later repudiated.

—— WC Kneale, GA Paul, DF Pears, PF Strawson, GJ Warnock, RA Wollheim, The Revolution in Philosophy (1960). With Introdution by Gilbert Ryle. The revolution discussed was not the post war Oxford movement but extended over the whole of the 20th century.

Baker GP and Hacker MS, Wittgenstein: Understanding and Meaning, Volume I of an Analytical Commentary on the Philosophical Investigations. I think there is also a volume two either now available or about to be published. I mention this as it is the latest volume to contribute to what I have called the Wittgenstein industry.

Buckland, WW, Some Reflections on Jurisprudence (1949). Buckland trained as an engineer and then studied law in Cambridge, becoming Regius Professor of Roman Law. His Textbook of Roman Law (1926) remains the most outstanding study ever to have been produced by an English scholar, and has grown in reputation. His Reflections was published when he was 85, but is based on some earlier lectures. It is described by Honoré in BDCL as ultra-positivist, which (p.208) I think is going a little too far, but it certainly is the case that he did adopt a positivist line. He wrote for example that ‘There have been wicked laws (and it is enough for the argument that there may have been). Such things are none the less laws’. He also wrote ‘To introduce goodness into the definition of law is like introducing the ability to trot into the definition of a horse. A horse that cannot trot is still a horse, but a bad horse’. It is a brilliant book, and it is surprising that nobody has brought out a modern critical edition.

Conradi, PJ, Iris Murdoch. A Life (2001). This remarkable book gives is own picture of the world of Cambridge and Oxford philosophy and Iris Murdoch’s place in it. The author does however adopt positions which not everyone would accept, so it needs to be read both admiringly and critically.

Dancy, J, Walter Oakeshott: A Diversity of Gifts (1988). Oakeshott was Rector of Lincoln College throughout my time there; he became Vice-Chancellor and although not all his plans succeeded he was in my view an outstanding incumbent of the position. Some of the material in Dancy’s book was provided by me.

Diamond, AS, Primitive Law (1935, 1950, 1971). Abraham Sigismud Diamond (1897–1978) was a Leeds grammar school boy who became senior scholar at Trinity Cambridge, and practised at the bar from 1921. He wrote a book on master and servant and eventually became a Master in the Queen’s Bench 1962–9. A person of enormous industry, his work on Primitive Law was extensively revised in the 1971 edition. The edition of 1950 is cited by Hart. It develops a chronology which relates evolving human societies to their state of economic development, and seeks to identify the legal institutions of such societies. As a work of synthesis it is impressive, but it contains some errors and has no doubt been superseded. It is difficult to believe that Hart actually read it.

Dias, RWM, and Hughes, GBH, Jurisprudence (1957) reviewed by Hart in (1958) 4 JSPTL 143. Hughes had published a treatise Jurisprudence; Dias complained that it was derivative of his lectures. The book, of which I own a copy, was withdrawn under pressure, and a committee of the Cambridge Law Faculty persuaded Dias and Hughes to collaborate on a rewritten treatise, which is the book Hart reviewed. Stories circulated that Glanville Williams then complained that Dias had based his views on his lectures.

Duxbury, N, Frederick Pollock and the English Juristic Tradition (2004) in Oxford Studies in Modern Legal History. I edited this series and this was I think the first contribution which related to the history of jurisprudence.

Dworkin, RM, Taking Rights Seriously (1977), A Matter of Principle (1985), Law’s Empire (1986), Justice in Robes (2006). Dworkin has also made many contributions to the New York Review of Books. His evolving views can be followed in these books and there is an extensive secondary literature.

Edmonds, D, and Eidinow, J, Wittgenstein’s Poker: The story of a ten–minute argument between two great philosophers (2001). This should be read in conjunction with Karl Popper’s Unended Quest. An Intellectual Biography. People will differ but my personal view is that it is not possible to establish just what did happen. Be that (p.209) as it may the book is something of a tour de force, and gives a wonderful picture of the strange world of the philosophers.

Finnis, J, Natural Law and Natural Rights (1980). This has been both re-issued and revised, and is one of the most successful books to appear in the Clarendon Law Series. The author is Catholic and presumably his book is much used in Catholic circles, but its readership must be much wider than this, and the intention was never to write a sort of primer of Catholic natural law doctrines. It was originally written as I understand it because of Finnis’ reaction to the picture of natural law in The Concept of Law, and in other writers, who were either dismissive or ill informed. Hart and Finnis were colleagues in University College, and Hart read and commented on the text; he was uneasy about the inclusion of Chapter XII, ‘Nature Reason God’ but did not insist on its removal. After this or indeed earlier they did not establish an ongoing working relationship. There is an extraordinary account in Lacey at 346–7 of them looking down together over the Temple Mount and the old City of Jerusalem, each with utterly different emotions, one an atheist Jew, the other a Christian, an event which induced them to hold, for the first and only time, a ten minute personal conversation. This was in 1983. Can it really be so?

Galligan, DJ, Law in Modern Society (2007). This is a volume in the Clarendon Law Series. The author is the Professor of Socio-Legal Studies in Oxford and directs the centre there. I include it here because it contains a very perceptive analysis of The Concept of Law, much of it related to the original text, and extensive discussion of the social scientific analysis of the working of social rules in society. Put at its simplest it differentiates the enterprise on which Hart was engaged from the enterprise which Galligan and other social scientist are engaged upon. It contains extremely helpful suggestions for further reading, covering relevant work published over the last half century.

Gluckman, M, The Judicial Process Among the Barotse (1955) is incidentally cited by Hart at 292, but it has no relevance to Hart’s pre-legal world and there is no reason to believe he read it. Gluckman also wrote The Ideas in Barotse Jurisprudence (1965) which can be accessed on-line. Readers should be aware of the fact that under some versions of British colonialism there was thought to be a special role for government anthropologists. The function of these anthropologists was to investigate and set down accounts of customary law and institutions, which could then be used by colonial governments to establish systems of indirect rule which operated through traditional institutions. Anthropologists could also offer advice on contentious issues, as did Rattray over the desecration of the Golden Stool of Ashanti.

Goodhart, AL, Essays in Jurisprudence and the Common Law (1931). This includes his ‘Determining the Ratio Decidendi of a Case’ (1931) 40 Yale LJ 161, at one time obligatory reading both in the UK and the USA. In the USA a theory such as Goodhart’s came to lose its status under the influence of the realist movement, and came to be associated with an outmoded formalism. At its most emphatic the (p.210) article was telling you how to find something which either did not exist or if it did was of no relevance to the process of judicial decision. I have no idea if American law students still read it. Goodhart was also an international lawyer, and a letter written by him to The Times was relied on by the UK government as justifying the 1956 Suez intervention. There is no evidence I know that he was put up to this, but there have to be suspicions. Goodhart, also wrote English Law and the Moral Law (1953).

Hacker, PMS, Wittgenstein’s Place in Twentieth Century Analytic Philosophy (1996). Hacker is the premier Wittgenstein scholar currently in post in the UK. See too Hacker PMS, and Raz J (eds), Law, Morality and Society: Essays in Honour of H.L.A. Hart (1977). This contains a valuable bibliography.

Hart, HLA, The Concept of Law (2nd edn 1994). This was edited by Peter Cane, Tony Honoré, and Jane Stapleton, and includes the unfinished postscript. The main text is the same as in the original edition. Page references to the first edition are not precisely the same as those in the 1994 edition, which prints out at 237 pages instead of 231. There have been numerous translations of the book, none of which I have ever seen.

Hohfeld, WN, Fundamental Legal Conceptions (1923). There exists no comprehensive study of Hohfeld’s ideas, many of which are to be found tucked away in parts of the book nobody ever reads and in footnotes. Some of them were extremely strange. Many years ago I started work on such a study but gave it up on the ground that it was impossible to make sense of them and that the effort would prematurely drive me to drink. For a brief account see my BDCL.

Kelsen, H, ‘The Pure Theory of Law and Analytical Jurisprudence’ (1945) 55 Harv LR at 44, General Theory of Law and the State translated, presumably from a draft in German, by Anders Wedberg. Reprinted 1949. So far as I know there is still no study of Kelsen emanating from the common law world.

Kramer, MH, In Defense of Legal Positivism: Law Without Trimmings (1999). With others (eds), The Legacy of H.L.A. Hart. Legal, Political and Moral Philosophy (2008). This includes an excellent bibliography. The bibliography in Lacey is incomplete.

Lawson, FH, The Oxford Law School 1850–1965 (1968). This book seems to have been produced in something of a hurry, and does not make use of much of the archival material available, but it does contain much valuable material. The reality of the matter is that it is extremely difficult to discover details of the teaching in Oxford in the pre-war world, and the earlier position is even more obscure. It is however possible to discover at least the titles of lecture courses.

MacCormick, N, Institutions of Law: An Essay in Legal Theory (2007), Legal Reasoning and Legal Theory (1978), Rhetoric and the Rule of Law: A Theory of Legal Reasoning (2005), Jurists: Profiles in Legal Theory, H. L. A. Hart (2nd edn 2008). The first edition was published in 1981. MacCormick, who was a friend of Hart, has been perhaps the most influential expounder of Hart’s ideas, whilst not being in any way uncritical.

(p.211) Raz, J, Between Authority and Interpretation: On the Theory of Law and Practical Reason (2009), The Authority of Law: Essays on Law and Morality (1979),The Concept of a Legal System: An Introduction to the Theory of a Legal System (1970), Practical Reason and Norms (1990). Along with MacCormick, Raz is the leading scholar who has as it were built his ideas up through a critical approach to Hart, but this is something of a simplification and his publications are very extensive. Raz discussed with Hart his attempts to write his Postscript, and two articles of his are cited in it at 254 (‘Dworkin: A New Link in the Chain’ (1986) 74 Cal LR 1103 and ‘Legal Principles and the Limits of Law’ (1972) 81 YLJ 823). In the latter Hart accepts Raz’s point, which is related here to Riggs v Palmer. Apparently a similar point is made by Waluchow in (1985) 5 OJLS 5: 187 at 189 but I have not read this piece.

Riggs v Palmer (1889) 115 NY 506, 22 NE 180. This case features prominently in Dworkin’s writings and it may be useful to say something about it. Briefly one Elmer Palmer had been left property by his grandfather, Francis Palmer; the residuary legatees under this will were the testator’s daughters, Mrs Riggs and Mrs Preston, who had also been left small legacies. The grandfather remarried one Mrs Bresee, and Elmer thought that he was soon likely to change his will in favour of his new wife. So to prevent his grandfather executing a new will Elmer, who was 16 at the time, murdered him by poisoning him. For this he was convicted of second degree murder and sent to prison, probably imprisonment for life.

Through his guardians ad litem he started legal proceedings to recover the property under the will. His lawyers’ case was that the will was a valid will, conforming to the Wills Act of 1837, and it said nothing to the effect that such a will was defective or invalid or unenforceable by a murderer. The decision in the case was that Elmer and his administrator be enjoined from using any of the testator’s property for the benefit of Elmer, and that the provision in the will be declared ineffective to pass title to him.

The extremely complicated legal and theoretical context in which the case was litigated has been explored in an outstanding article by Kim Scheppele which I shall not attempt to summarize here. It is ‘Facing Facts in Legal Interpretation’ in (1990) 30 Representations Special Issue: Law and the Order of Culture 42–77. In particular this article explores the relevance and complexities of the doctrine that a conviction for felony has the consequence that the felon becomes for some purposes treated as if he or she were dead. I shall add a few comments.

The first is that discussion of the case tends to proceed on the assumption that the power of testamentary succession is derivative of the Wills Act of 1837. This is a mistake; the Wills Act merely regulated a power of testamentary succession which long predated it. Hart for example makes this mistake. The complexities of the history of this power are explained in my History of the Land Law. In a broad sense the power was conferred by the common law.

(p.212) One judge, Gray, accepted the murderer’s lawyers’ argument. Attention has however focused on the majority opinion by Earl. It was in favour of the residuary legatees. My second comment is that modern commentary has tended to focus on the reliance in this opinion on the maxim:

No one shall be permitted by his own fraud, or take advantage of his own wrong, or to found any claim on his own iniquity, or to acquire property by his own crime.

And in an alternative version that:

All laws as well as contracts may be controlled in their operation and effect by general fundamental maxims of the common law. No one shall be permitted to profit by their own fraud, or take advantage of his own iniquity, or to acquire property by his own crime.

Two collections of maxims, Broom and Noy, were cited to the court.

The general fundamental maxim of the common law on which the majority relied has a long history. It is to be found in Book 50 of Justinian’s Digest (50, 17.134.1) in the form:

nemo ex delicto meliorem suam conditionem facere potest.

I have discussed the literature and significance of maxims in my ‘Rise and Fall of the Legal Treatise’ in (1981) UCLR 48: 632. The propositions set out in Book 50 came to be known as the Regulae Juris, and the subject is explored by Peter Stein in his Regulae Juris (1966). So far as I am aware nobody has attempted to produce a study of when Ulpian’s principle has been applied to control the operation of laws, or in other ways, which would be a massive undertaking.

My third comment is that counsel for the legatees presented an elaborate barrage of legal arguments, supported by citation of authority, in their favour, including one based on estoppel. And the majority opinion did not simply rely on the maxim, but also on a version of the long established doctrine of the equity of a statute. So this was not a case in which, as it was handled, it was supposed that the law was ‘silent’. Convincing or not there was plenty to say.

For an account of a Canadian case, but involving a joint tenancy, raising similar problems see my discussion in Annual Survey of Commonwealth Law 1972 at 230 where conception of a constructive trust was employed.

Schauer, F, Playing by the Rules: A Philosophical Examination of Rule–Bound Decision Making in Law and in Life (1991). This needs to be read in conjunction with ‘Is the Common Law Law?’ (1989) Cal LR 77: 455. Schauer at 212–3 defends Hart’s thesis that ‘There are core meanings of rules (clear cases under the rules) even though they may not always be congruent with the core meaning of the ordinary language of the rule’s canonical formulation. We must distinguish the conceptual possibility of literal interpretation as contrasted with its absurdity’. (p.213)

Stone, J, The Province and Function of Law: Law as Logic, Justice and Social Control. A Study in Jurisprudence (1946, reprinted 1950). This is particularly valuable since it contains a very comprehensive bibliography and discussion of more or less everything relevant in print at this time. Chapter IV has an analysis and critique of Kelsen; it is not very good but it was all there was from the common law world at the time. Chapter XIX deals with Maine, and in his writings note should be taken of his very strange conception of customary law (in the Everyman edition reprint of 1972 at 7). Malinowski’s polemics in Crime and Custom in Savage Society (1926) were directed against a picture of the nature of early society derived from Maine. I have explained this in my Legal Theory and Legal History in Chapter 17, dealing with ‘R. S. Rattray and Ashanti Law at 418–421’.

Wittgenstein, L, Philosophical Investigations (1953). Edited by GH von Wright, R Rhees, and GEM Anscombe is the edition I have used. Note however there is now a 3rd edition of 2001 with the German text, and a revised English translation by Anscombe.