Richard Wright, ‘The Nightmare and the Noble Dream: Hart and Honoré on Causation and Responsibility’

In Causation in the Law (1959), Hebert Hart and Tony Honoré attempted to set forth a set of allegedly causal principles, supposedly deeply embedded in ordinary thought, for identifying causes and attributing legal responsibility. This attempt is quite puzzling given the remarkable contradiction between its premises and the strict positivist theory of law that Hart was simultaneously engaged in elaborating and defending, which insists on the lack of any necessary connection between law and morality.

What accounts for this remarkable contradiction? I believe that it was generated by Hart’s attempt, in both Causation in the Law and his writings on legal positivism, to defend law and legal reasoning against the rule skepticism and legal nihilism that he (erroneously) attributed to the American legal realists. Hart initially rejected the argument, which he described as a noble dream (but later partially accepted), that the nightmare of legal nihilism could be avoided or reduced by resort to the purposes or principles that underlie legal rules and judicial decisions. He instead attempted to apply his own version of the noble dream in Causation in the Law. As a recent and devout convert to J.L. Austin’s “ordinary language analysis” approach to philosophy, he hoped to rebut the claims of the legal nihilists by identifying and articulating, through analysis of ordinary language as employed in and outside the law, “common sense” principles of causation embedded in ordinary thought that encompass not only the issue of natural causation but also attributions of legal responsibility.

The abject failure of this attempt was clearly perceived by philosophers and no doubt lead to the rapid decline of ordinary language philosophy. Unfortunately, it was not perceived by many in the legal community, but rather continues to engender confusion regarding the concept of causation and its relation to moral and legal responsibility.

Wright, Richard W., The Nightmare and the Noble Dream: Hart and Honoré on Causation and Responsibility (February 15, 2008). THE LEGACY OF H.L.A. HART: LEGAL, POLITICAL AND MORAL PHILOSOPHY, M. Kramer, C. Grant, B. Colburn & A. Hatzistavrou, eds., Ch. 9, Oxford University Press, 2008.

First posted 2011-09-19 06:51:00

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