The Central Questions

Letters

Vol. 27 No. 4 · 17 February 2005

From Joanna Ryan

Thomas Nagel’s review of Nicola Lacey’s biography of my father, H.L.A. Hart, is full of inconsistencies (LRB, 3 February). He makes gossipy and inaccurate personal insinuations about my mother, Jenifer Hart, whom he seems rather fascinated with, while at the same time criticising this very rich and full biography for being too personal. To bolster his position of academic noseholding he spins a story – ‘something else is going on as well’ – to the effect that Lacey wrote the book at my mother’s behest and was therefore doing her supposedly self-justifying work. In fact it was Lacey who suggested herself as the biographer, not the other way round, and if anything my father’s diaries do not portray my mother in a very good light but rather show him as suffering from her personality. My mother had no idea what was in the diaries when she handed them to Lacey.

Of course there are serious issues as to how much intimate material it is right to use in a biography, but their discussion is not advanced by Nagel’s contemptuous reduction of Lacey’s portrayal of my father’s inner turmoil to an instance of the general that he would rather not know about. Lacey has succeeded not only in giving an accessible account of my father’s work – which was a large part of my mother’s motivation in wanting a biography written – but also in showing something of the complex emotional structures that underpinned and sustained his pursuit of philosophical knowledge.

Joanna Ryan
London N16

From Simon Blackburn & Jeremy Waldron

We were puzzled and depressed to read Thomas Nagel’s patronising review of Nicola Lacey’s biography of Herbert Hart. In particular, his sweeping claim that the author is ‘lost’ when it comes to philosophical issues is both ungenerous and unsupported. Nagel adduces two pieces of evidence, one of which is a glancing reference to the paradox of analysis, and the other some remarks to which he takes exception (calling them ‘absurd’) about the difference between J.L. Austin and Wittgenstein. On each point, Lacey is right and Nagel wrong.

It is a brave philosopher who would undertake to state exactly what the ‘paradox of analysis’ is, as is apparent from the fact that many philosophers deny that there is any such thing. Its core is the idea, attributed to Frege, for example, by Michael Dummett, that if two expressions have the same sense, and one understands each of them, then it should be transparent that they have the same sense. The practice of analysis has an uneasy relationship with that principle: it is constantly poised between saying only what is trivial but true, and saying things that may be exciting but false. Lacey states this as the problem that ‘if language speaks for itself, it is not clear that philosophical analysis is either necessary or capable of being applied to linguistic usage without doing violence to its meaning.’ This is a perfectly adequate account. It is not the last word in this problem area, but it is enough for her purpose and for the reader. It illuminates an important difficulty: how can Hart’s analysis tell us anything new about law or about the legal use of concepts like causation, if it promises to do nothing more than elucidate ordinary usage?

The other problem Nagel alludes to is Lacey’s discussion of the difference between J.L. Austin’s approach to meaning and that of Wittgenstein. Nagel can hardly deny that there is a difference: whereas Wittgenstein is always, clearly, doing something of great importance, every student of philosophy is puzzled by the point of Austin’s minute investigations of English usage. Many think that whatever point it purported to have was largely undermined by H.P. Grice, but nobody could say that about Wittgenstein. Lacey locates the difference between the two men as that between confining attention to evidence derived from language and the dictionary, on the one hand, and extending it to thoughts about the genealogy of social and institutional practices and their purpose – what Wittgenstein would have called ‘the form of life’ that gives rise to the language – on the other. This is again a perfectly serviceable diagnostic, explaining, for example, why Wittgenstein is still a force in the philosophy of social science in a way that Austin is not. It is certainly nearer the truth than Nagel’s own claim that Austin’s was a more empirical approach than Wittgenstein’s. Again, this is important for Lacey’s estimation of Hart’s jurisprudence: an account of the different verbal contexts in which we use terms like ‘rule’ and ‘obligation’ will tell us something about the law; an account of the different social contexts (including contexts of power) in which those terms are heard will tell us something else. Hart’s jurisprudence oscillates back and forth but comes to rest more on the Austinian side. Lacey offers a perfectly reasonable hypothesis to explain this.

There are already some excellent books devoted to close analysis of the published writings of this great legal philosopher: Neil MacCormick’s H.L.A. Hart (1981) is a fine example. Lacey’s book is philosophically illuminating, but it is also about philosophy and what it is like to do philosophy (as a particular form of life in a particular social context). It is a biography, not a textbook. Nagel wrinkles his nose at Lacey’s probing beneath the published surface to reveal the underlying preoccupations of Hart’s life. Well and good; opinions differ on this, as Lacey acknowledged. But is it then fair of him to respond with his own unkind speculations about the hidden agenda of the book (that Lacey cannot do philosophy, that she prefers sociology, and that that’s why she rebukes Hart for siding with Austin)?

Simon Blackburn & Jeremy Waldron
Trinity College, Cambridge & Columbia University, New York

Thomas Nagel writes: I agree with the writers of both these letters that the use of intimate material presents difficult issues, and that reasonable people can differ. My review expressed a personal view, that their use should be more restricted than is now customary, without the subject’s express or implied consent, until a substantial time after his death.

I am moved by Joanna Ryan’s strongly felt letter. In reply let me say that Nicola Lacey has already corrected my misinterpretation of her statement that Jenifer Hart ‘offered me the opportunity’ to write a biography. I regret the mistake, and recognise that it undermines my opening speculation. But I don’t know what to make of Ryan’s statement that her mother had no idea what was in the diaries when she handed them to Lacey. Lacey says that Jenifer ‘was shocked by the depth of anxiety and despair recorded in the diaries when she read them after his death’. This refers to one particular period; perhaps Ryan has personal knowledge that her mother didn’t read most of them. Ryan says I seem rather fascinated with Jenifer Hart. How could I not be? She is a force of nature, as her autobiography and Lacey’s book reveal.

Simon Blackburn and Jeremy Waldron explain the paradox of analysis as I would understand it, and then quote a sentence from Lacey that they think encapsulates it. What seems to me to make that interpretation impossible are the next two sentences: ‘For philosophical analysis is itself a (distinctive) form of usage. How, then, can linguistic philosophy criticise the incoherence of the linguistic practice which it takes as its material?’ Perhaps it’s a problem of obscure writing, but I don’t see what this has to do with the paradox of analysis.

I was a student of J.L. Austin, and cannot help having a different view of his philosophical temperament and a different understanding of his influence on his contemporaries from what one could gather from his meagre published writings. (He died at the age of 48.) He was not a deep philosopher like Wittgenstein, indeed he distrusted depth; but he had a large intellectual appetite and interest in the world which is not adequately reflected in the refined studies of linguistic usage and the theory of speech acts for which he is best known. He had none of the flavour of philosophical purity characteristic of Wittgenstein. When I was beginning to write on altruism he was very helpful in directing me to the literature in motivational psychology. I also remember his class on excuses, which used legal case material to great effect, with no sense of dry verbal nitpicking. Hart was influenced by both Wittgenstein and Austin, and both were important, but I still think there is nothing in the idea that Wittgenstein would have moved him in a more empirical direction, and that this frightened him off.

Blackburn and Waldron refer to my ‘unkind speculations about the hidden agenda of the book’, but my response to Lacey’s repeated complaints about Hart’s neglect of sociology refers to nothing hidden. She looks for unacknowledged reasons for his neglect, and I simply say this shows that she undervalues the philosophical approach which was the source of his contributions.

Vol. 27 No. 6 · 17 March 2005

From W.G. Runciman

May I add two comments to the correspondence about Nicola Lacey’s biography of H.L.A. Hart (Letters, 17 February)? Although Hart called The Concept of Law an essay in descriptive sociology, it is, as he seems subsequently to have accepted, not strictly descriptive nor very much of a sociology. But in arguing that judicial decisions involve the application to second-order rules of primary rules, he was making a case, by which many of his readers were persuaded, to the effect that judicial decisions, whatever exactly they may be, are neither the execution of sovereign commands nor exercises in moral philosophy. The puzzle is that, as Nicola Lacey documents, he owned a heavily annotated copy of the English translation of Max Weber’s sociology of law, but claimed that it was by Peter Winch’s book The Idea of a Social Science that he was influenced in his account of the ‘internal aspect of rules’. His references to Winch, however, are not to either of the two places where Winch cites what he calls Weber’s ‘important’ paper on Rudolf Stammler in which the concept of ‘following a rule’ is discussed in detail.

On Hart’s own view of the book, I offer a reminiscence which may be of marginal relevance. I attended one of the Oxford seminars to which Nicola Lacey refers, on John Rawls’s A Theory of Justice, of which I had been the then anonymous front-page reviewer in the Times Literary Supplement. I was too much in awe of Hart to open my mouth in the discussion, which he conducted with the combination of courtesy and lucidity for which he was celebrated. But at dinner after the seminar, where he seated me next to him, he surprised me by saying that he admired the second part of Rawls’s book more than the first. He meant, as I understood him, that Rawls’s device of the ‘original position’ doesn’t quite work, but Rawls’s vision of the kind of society he would himself choose from behind a ‘veil of ignorance’ is intuitively appealing. Might there be a parallel to what was by then his own attitude to The Concept of Law?

W.G. Runciman
Trinity College, Cambridge