Belonging and not belonging
Carole Angier
THE NIGHTMARE AND THE NOBLE DREAM: A LIFE OF H. L. A. HART by Nicola Lacey OUP, £25, pp. 422, ISBN 0199274975 ,r) £23 (plus £2.25 p&p) 0870 800 4848 Nicola Lacey wanted to write an
'intellectual biography' of Herbert Hart, on the model of Hermione Lee's Virginia Woolf. It's a tall order. How to cope with the fact that the philosophy of law is even harder to understand than Virginia Woolf s novels? And though an academic lawyer like Lacey is the best person to understand Hart's ideas, is she the best person to explain them to us? Is she the best person, indeed, to write a biography which should be scholarly underneath but 'accessible' (Lacey's academic word for it) on the surface?
Since I raise these questions you will guess that I am not about to answer them all in favour of The Nightmare and the Noble Dream. So I should say first that I did very much enjoy reading this book. Partly that was because it included one of the best times of my own life, Oxford in the Sixties, where I had Jenifer Hart as a tutor. But I couldn't have enjoyed a really bad book — and this isn't a had book. But it's not an excellent one either.
First of all the balance between life and work seems to me wrong, at least for the general reader. There is too much exegesis of Hart's work, not always well placed: it was a good idea to sum up The Concept of Law early on, for example, but not such a good idea to explain it all over again when we get to 1961. Nicola Lacey fears the opposite: that some readers will feel she has said too much about Hart's sexuality and marriage. But her whole thesis is that he was driven, in both life and work, by conflicts over belonging and not belonging, as a closet Jew and a closet homosexual; and that his marriage to upper-class, Christian Jenifer, initially an answer to these conflicts, was increasingly part of them. Given this, there is if anything too little about his romantic friendships with young men: we arc left with statements, but very little evidence.
This is doubtless because everyone is still alive, including Jenifer Hart herself. But surely she would not have minded. Her own autobiography is more robust than this book., e.g. about Herbert as a father (he had an 'almost neurotic antipathy towards babies'.) She is franker about Herbert's early insecurities as a tutor too: where Lacey gives a euphemistic account of why he saw his best students on Monday and Tuesday, Jenifer says he did it 'so that he could repeat what they said during the rest of the week'. So far from being shameful, this is endearing; and witty too, since it came from Hart himself. Lacey is rarely witty. All the best lines in the book are Hart's (Mrs Thatcher was 'the worst head of government since Richard III), or someone else's: e.g. the anonymous Israeli who turned Hart's 'Contemporary British Philosophy and Jurisprudence' into 'Contemporary British Philosophy and Jewish Prudence' — which like all good jokes is true, most of the greatest legal theorists of the 20th century, such as Hans Kelsen and Hart himself, being Jews.
On the conflict between Hart's Jewishness and Englishness Lacey is more satisfactory. And what she does tell us of his life is fascinating. Hart's intense intellectuality and clumsy physicality; his extreme detachment, and yet kindness; his naivety and plain goodness; his increasing isolation, and his nervous breakdown towards the end: all strike me as typical of the ultrarational post-Enlightenment Jew, similar to the classic case, Primo Levi, even to their difficult marriages.
What about the work, finally? Despite Lacey's repeated explanations, I'm not sure I understood Hart's legal theory, or its relation to the book's title. But it's something like this. The 'Nightmare' is the extreme positivist position, that law is just a human invention. The 'Noble Dream' is the opposite extreme: law is a set of moral principles given to us by God or nature. Hart tried to find a middle way between these two. Law was a human invention, he argued, but not a mere set of orders, backed by punishments; rather it was a set of rules which communities recognised as valid, and which therefore generated obligations.
The problem with Hart's position, Lacey argues, lies in its insistence on pure conceptual analysis, rejecting social and historical considerations; and the danger that, if this problem is dealt with, the theory may collapse back into one or other of the two extremes. Oddly, despite her emphasis on the 'intellectual' in 'intellectual biography', she does not ask whether questions such as these might not have led to the anxieties and depressions of Hart's last years. Given his lifelong self-doubt, this seems to me all too likely. It suggests a tragic end to the story of 'the pre-eminent English-speaking legal philosopher of the 20th century'.
Correction The author of Nixon at the Movies, reviewed by David Caute last week, is Mark Feeney, not Mark Feeley as printed. We apologise for this error.
Previous page
