'Jurisprudence for Foxes' (Oxford Legal Studies
Research Paper No. 22/ 2012) by Leslie Green -
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.
