contests Brian Simpson's claim that HLA Hart's book, The Concept of Law, is that of a 'hedgehog,' that is, a monistic thinker. It is not. Hart's work is pluralist both in its explanatory concepts and in its evaluative background. Some conjectures are offered as to why Simpson so misunderstood Hart, and as to why analytic legal philosophy is misunderstood, or distrusted, more generally.Simpson argued that -
Hart’s general analysis of the structure of a legal system was not based on a prolonged study of complex legal arrangements, with a dawning awareness that beneath complexity there could be discerned simplicity ... Instead the simplicity he discerned existed in the very nature of things; given the fact, if that is what you call it, that the USA has a legal system, it follows that its legal system conforms to Hart’s simple model. This plainly identifies Hart as a hedgehog.Green comments
This is not just a classificatory comment; it is a criticism. Simpson distrusts simplicity, especially simplicity that ignores the contingent, local variability in law to which the historian or comparativist is sensitive. Perhaps he does not wholly reject the possibility that after ‘prolonged’ empirical inquiry we may be able to say some true and important things about law in general, but he thinks the odds are against it. And the notion that analytical jurisprudence might turn up anything of that sort he treats as utterly fanciful. ...
Some people find analytic jurisprudence impossibly boring. If Simpson was among their numbers he was hardly to blame; we all have limited sensibilities. Reflecting on his own life, David Hume wrote, ‘My studious disposition, my sobriety, and my industry, gave my family a notion that the law was a proper profession for me; but I found an insurmountable aversion to everything but the pursuit of philosophy and general learning….’ No doubt others have the opposite reaction. They are misguided only if they think this reflects badly on the subject that puts them off. Hume would never have drawn that inference: he knew that his ‘insurmountable aversion’ to the study of law was not a feature of the law but of his own outlook and dispositions.
When I began studying jurisprudence in Oxford the worst we could say of a theoretical claim was that it was ‘confused’ or ‘false’. (A few preferred ‘pernicious’, but they were mostly the sort who held confused or false views.) Nowadays, a popular epithet of condemnation is ‘irrelevant’ or ‘boring’, especially among the practically-minded for whom a really interesting question is one a client might pay you to answer. Simpson reports, ‘In my own long experience as a teacher and to some modest extent a practitioner of law I have never once been asked the question “What is law?”(RCL, 80) Not only did no one ever ask him, he never felt moved to ask himself. ‘Why anyone should worry about this is beyond me…’ (RCL, 81) In all, the central questions of jurisprudence strike him as utterly boring. But as the old linguistic philosophers might have put it, ‘boring’ is not a simple predicate but a relational term, here tantamount to ‘I am bored by this,’ or maybe, ‘I don’t know how to get interested in this’—to which an acceptable reply might be, 'I’m so sorry.’
The important theses of Hart’s book are abstract and general, quite unlike the concrete and parochial facts that Simpson found fascinating and about which he wrote so well, especially in his stories of famous common-law cases. All the same, Hart’s theses were manifestly not the expression of any kind of sweeping monism. Just the opposite: both his explanatory apparatus and his normative outlook are pluralistic. There are hedgehogs and foxes in every subject, in philosophy as much as in history. I find it sad to think that an aversion to philosophy may have made Simpson unable to recognize in Hart a fellow fox. If so, it may have made Simpson intellectually more lonely than he had to be. But then neither foxes nor hedgehogs are very social animals to begin with.There's more analytical bite - as distinct from the prickle of hedgehog quills - in Mark Burton's 1997 'The Song Remains the Same: The Search for Interpretive Constraint and Rhetoric of Legal Theory in Hart and Hutchinson', 20(2) UNSW Law Journal, 407.