Law and the Ordinary:

Hart, Wittgenstein, Jurisprudence

Alexandre Lefebvre

It is often observed by H. L. A. Hart, and also by his friends and interpret-
ers, that when he accepted Oxford’s Chair of Jurisprudence in 1952 his
field was in a bad way. Looking back in an interview, Hart remarks that at
the time British jurisprudence “had no broad principles, no broad faith; it
confronted no large questions. . . . It focused on technical, legal problems.
There were no large-scale inquiries into the philosophical dimensions of
law. . . . There was no legal philosophy. Jurisprudence had become a kind
of closed subject, and very few people had ever thought of revising it.”
Indeed, shortly after he took the Chair, J. L. Austin sent a congratulatory
note: “It is splendid to see the empire of philosophy annex another prov-
ince in this way—not to mention the good you’re going to do them.”
I have no wish to dispute these assessments; I only want to point out
a certain irony of them. If Hart brings “philosophy” to jurisprudence, he
does so through a tradition based on criticism and reevaluation of what it
means to do philosophy: ordinary language philosophy. Take its two main
expositors, Austin and Wittgenstein. In Austin’s hands, ordinary lan-
guage is fastidiously used to dismantle the leading traditions of his time,
whether logical positivism in Sense and Sensibilia and How To Do Things
With Words, skepticism and traditional epistemology in “Other Minds,”

.  H. L. A. Hart, “Hart Interviewed: H. L. A. Hart in Conversation with David Sugar-
man,” Journal of Law and Society 32, no. 2 (2005): 275.
.  Cited in Nicola Lacey, A Life of H. L. A. Hart: The Nightmare and the Noble
Dream (Oxford: Oxford UP, 2004), p. 149.
.  Hart names J. L. Austin and Wittgenstein (and perhaps surprisingly, not Bentham
and not John Austin) as the two most important figures in his philosophical development.
Hart, “Hart Interviewed,” p. 275.
99
Telos 154 (Spring 2011): 99–118.
doi:10.3817/0311154099
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100   Alexandre Lefebvre

or deontology in “A Plea for Excuses.” In Philosophical Investigations,

Wittgenstein dramatizes the tension between ordinary and metaphysical
language by the professed goal of his later philosophy—to achieve peace
from the problems of philosophy by analysis of the ordinary. The irony I
wish to register is that the philosophy to which Hart is most indebted, and
which he brought to jurisprudence, is in a strong sense bent on releasing us
from philosophy, or at least from a certain dispensation of it.
That Hart is deeply indebted to ordinary language philosophy is not
news. His early essay “Definition and Theory in Jurisprudence” (1953),
which argues against a definition of law per genus et diffentiam, positively
drips with it. Moreover, his first major work, Causation in the Law (with
Tony Honoré), has been called “the pinnacle of the Austin school’s pub-
lished achievements.” More to my purposes, the importance of ordinary
language philosophy to The Concept of Law not only rings out in its very
title (which pays homage to Gilbert Ryle’s The Concept of Mind), but in
crucial passages Hart twice affirms Austin’s guiding intuition of “a sharp-
ened awareness of words to sharpen our perception of the phenomenon.”
But the point of this essay is not to trace these broad influences.
Instead, I concentrate on the opening chapter of The Concept of Law (“Per-
sistent Questions”) and claim that Hart’s vision of jurisprudence, as found
in chapter one of The Concept of Law, is a powerful adaptation of the
relationship Wittgenstein establishes between ordinary and metaphysical
language. In other words, I argue that Hart’s conception of jurisprudence
is representative of Wittgenstein’s conception of philosophy. By confin-
ing my attention to Wittgenstein, I do not engage Hart’s milieu of Oxford
ordinary language philosophy. My reason, as will become clearer, is that
Wittgenstein articulates a depth and persistence of philosophical perplex-
ity that I take to be reflected in The Concept of Law (a depth absent from
its Oxford variants). To date, commentary on Hart’s debt to Wittgenstein

.  Lacey, H. L. A. Hart, p. 215.

.  H. L. A. Hart, The Concept of Law, 2nd ed. (Oxford: Oxford UP, 1994), pp. vi,
14. Cited parenthetically hereafter as CL followed by the page number. Hart paraphrases
J. L. Austin’s “A Plea for Excuses,” in Philosophical Papers (Oxford: Oxford UP, 1979),
p. 182.
.  Unfortunately, neither do I assess Hart’s simultaneous commitments to legal posi-
tivism and ordinary language philosophy, nor his reply to his critics in the 1994 postscript
of The Concept of Law.
.  On this point of comparison between Oxford ordinary language philosophy
(specifically, J. L. Austin) and Wittgenstein, see Stanley Cavell, The Claim of Reason:
 Law and the Ordinary: Hart, Wittgenstein, Jurisprudence   101

has almost exclusively focused on the question of rule-following and the

open-texture of law. But while this debt is undeniable, it is also local, and
assessment of it is necessarily confined to a particular region of Hart’s
and Wittgenstein’s thought. What such accounts miss, and what this essay
undertakes to provide, is a perspective on Wittgenstein’s influence on Hart
as illimitable, as constitutive of his very concept of jurisprudence and the
potential for its practice. This is not to say that Hart was a mere cipher for
an imported methodology but that he provocatively extends Wittgenstein’s
later thought to law. The essay is divided into three sections. The first sec-
tion argues that jurisprudence emerges as a denial of ordinary language in
its pursuit of a definition of law. The second section traces Hart’s use of
ordinary language to identify idleness or emptiness in jurisprudence. The
third section presents Hart’s conception of his work as therapeutic in its
attempt to lead jurisprudence back to the everyday.

I. Definition
I want to start by raising three themes announced by the opening sentence
of The Concept of Law: “Few questions concerning human society have
been asked with such persistence and answered by serious thinkers in so
many diverse, strange, and paradoxical ways as the question ‘What is
law?’” (CL 1).
1. Lostness. Hart begins his book with a scene of confusion. On the
one hand, students of jurisprudence are confronted with proliferating
definitions of a subject that can’t seem to get settled. On the other hand,
it appears that jurists are unintelligible to each other (and to themselves).
Of course, opening a great work with a picture of lostness is common
to Dante, Emerson, Nietzsche, amongst others. But, closer to Hart, it is
also how Wittgenstein conceives of the beginning of, or impulse to, phi-
losophy: “A philosophical problem has the form: ‘I don’t know my way

Wittgenstein, Skepticism, Morality, and Tragedy (Oxford: Oxford UP, 1999).

.  On rule-following see Brian Bix, “H. L. A. Hart and the ‘Open Texture’ of Lan-
guage,” Law and Philosophy 10, no. 1 (1991): 51–72; Brian Bix, Law, Language, and
Legal Determinacy (Oxford: Oxford UP, 1993); Neil MacCormick, H. L. A. Hart, 2nd ed.
(Stanford, CA: Stanford UP, 2008), p. 42. On criticism of Hart’s interpretation or develop-
ment of Wittgenstein, see Lacey, A Life of H. L. A. Hart, pp. 217–19; Allan Hutchinson, “A
Postmodern’s Hart: Taking Rules Sceptically,” The Modern Law Review 58 no. 6 (1995):
788–819; Peter Goodrich, “Law and Language: an Historical and Critical Introduction,”
Journal of Law and Society 11 no. 2 (1984): 185–86.
102   Alexandre Lefebvre

around’.” We will explore why jurisprudence and philosophy begin this

way. But already we can glimpse the kind of solution acceptable to Hart’s
depiction of the situation. If the answers jurists give darken our view of
the subject, perhaps what is needed is not another attempt at an answer
but another approach. I mean that the goal of Hart’s jurisprudence is not
to move us from ignorance to knowledge about the nature of law if that
means providing another theory or definition of it. Instead, his hope is to
guide jurists from confusion to clarity by releasing them from the need to
pose the question “What is law?” in expectation of a definition.
2. Terms of Criticism. In his opening line Hart introduces new catego-
ries of criticism to jurisprudence: its answers are “diverse, strange, and
paradoxical.” On first impression, these terms don’t seem impressive; in
fact, they may not even look critical. But I suggest that they partake of
an insight that originates with Kant and is systematized by ordinary lan-
guage philosophy. That is, misfortunes other than contradiction or mistake
(say, hasty generalization, empirical falsehood, etc.) can befall human
thought.10 In Critique of Pure Reason, “dialectic” signals empty utterances
that have strayed beyond the conditions of meaningful human utterance;
in Philosophical Investigations, “metaphysics” or “philosophy” signals
empty utterances that have strayed beyond the language games that give
them sense. We will see that for Hart “jurisprudence” emerges in this same
way. Utterances that characterize law are stripped of their language games
when pressed to answer the question “What is law?” Paradox and strange-
ness, unremarkable though they may seem, become terms of criticism to
indicate emptiness in jurisprudence.
3. Definition. The persistence of the question “What is law?” and the
paradoxicality of the answers it elicits appear to be functions of one another.
That is, the demand for the essence of law, if taken as a request for a defini-
tion, is a source of confusion: addressing it in this way commits jurists
to answers they cannot, upon (grammatical) investigation, mean. Here,
one recalls Wittgenstein’s warning, “If you do not keep the multiplicity of
language-games in view you will perhaps be inclined to ask questions like:

.  Ludwig Wittgenstein, Philosophical Investigations, trans. G. E. M Anscombe, 3rd

ed. (Oxford: Blackwell, 2001), §123. Cited parenthetically hereafter as PI, followed by
section reference.
10.  J. L. Austin acknowledges Kant on this point in How To Do Things With Words
(Cambridge, MA: Harvard UP, 1975), pp. 2–3. See also Austin’s “The Meaning of a Word,”
in Philosophical Papers, pp. 55–75.
 Law and the Ordinary: Hart, Wittgenstein, Jurisprudence   103

‘What is a question?’” (PI §24). We will see that Hart ties the approach
that seeks a definition of law, above or beyond the various everyday ways
we speak about it, to a denial or trivialization of ordinary language. We
will further see how the cost of such a denial relates back to the two previ-
ous themes: jurists become lost, and jurisprudence needs terms diagnosing
idleness or emptiness, when they expect to get to the bottom of things with
a definition of law. At this stage, however, it is important to see that Hart
does not discourage attempts to arrive at the essence or nature of law. He
does not abandon the concept of essence but reframes it along the lines of
Wittgenstein: “Essence is expressed in grammar” (PI §371). Anticipating
our discussion, description of how the concept of law is (ordinarily) used
will replace attempts to proffer definitions of it.
I propose to develop this last theme by focusing on what is perhaps
the most famous definition of law: John Austin’s command theory. This
theory occupies a privileged position in Hart’s jurisprudence, one in many
ways reflective of Wittgenstein’s use of Augustine in the Investigations.
For, like Wittgenstein’s treatment of Augustine, Austin is important for
Hart less because of his particular theory of law, however influential that
has been, and more because he exemplifies a style of thought underpinning
jurisprudence generally.
It is clarifying to call Austin’s style of thought modernist. By this I
mean to extend Clement Greenberg’s famous definition of modernism to
jurisprudence: “The essence of modernism lies, as I see it, in the use of
characteristic methods of a discipline to criticize the discipline itself, not
in order to subvert it but in order to entrench it more firmly in its area
of competence.”11 Greenberg’s account in a nutshell is that in the mid-
nineteenth century, the major arts were threatened with being assimilated
to the status of entertainment. The response of the arts was to dedicate
themselves to providing a quality and intensity of aesthetic experience
unavailable elsewhere. Alongside this general tendency, each individual
artistic medium (painting, theater, sculpture, music, dance, etc.) endeav-
ored to discover the “effects exclusive to itself” necessary to secure its
continued existence.12 In other words, modernism is defined by a critical
tendency on the part of each medium or discipline to define and occupy a
territory irreducible to all others.

11.  Clement Greenberg, “Modernist Painting,” in The Collected Essays and Criticism,
vol. 4, Modernism with a Vengeance (Chicago: Univ. of Chicago Press, 1993), p. 85.
12.  Ibid., p. 86.
104   Alexandre Lefebvre

This account of the internal logic of modernism is pertinent to Austin’s

Province of Jurisprudence Determined. In this work there is a palpable
sense that law threatens to be swamped and subsumed under morality or
religion or the natural sciences. We might say, following Greenberg, that
the very medium of law found itself at a crossroads, vulnerable to being
“blended and confounded” with any number of pretenders.13 Hence the
object of his lectures: “To describe the boundary which severs the prov-
ince of jurisprudence from the regions lying on its confines.”14 In a quite
exact sense, Austin provides a modernist (or critical, if that is taken in
its Kantian meaning) jurisprudence intended to entrench the discipline in
its proper area of competence. This motivation accounts for his defini-
tion of law as a “command” and of positive law as a command “set by a
sovereign person . . . to a member or members of the independent political
society wherein that person or body is sovereign or supreme.”15 With this
definition Austin gives to jurisprudence an irreducible subject (positive
law) distinct from the preoccupations of theology (divine law), ethics
(positive morality), and the natural sciences (laws of nature). “The science
of jurisprudence (or, simply and briefly, jurisprudence) is concerned with
positive laws, or with laws strictly so called, as considered without regard
to their goodness or badness.”16

13.  John Austin, The Province of Jurisprudence Determined (New York: Hackett,
1998), p. 1. See also his “The Uses of the Study of Jurisprudence,” in The Province of
Jurisprudence Determined (New York: Hackett, 1998), pp. 363–93. “Till [we exhibit the
resemblances and differences between various classes of laws], the appropriate subject
of Jurisprudence is not discernible precisely. It does not stand out. It is not sufficiently
detached from the resembling or analogous objects with which it is liable to be confounded”
(ibid., p. 371).
14.  Austin, Province of Jurisprudence Determined, p. 2. Kant also describes his criti-
cism as establishing a “land” or an “island” that philosophy can hold “securely against all
hostile claims.” Kant, Critique of Pure Reason, trans. Paul Guyer and Allan Wood (Cam-
bridge: Cambridge UP, 1998), A236/B295.
15.  Austin, The Province of Jurisprudence Determined, pp. 13, 9.
16.  Ibid., p. 126. A further similarity between Austin and Kant is that they both under-
take their critique for practical or moral ends. Toward the end of lecture 5, Austin says: “To
prove by pertinent reasons that a law is pernicious is highly useful, because such process
may lead to the abrogation of the pernicious law. To incite the public to resistance by deter-
minate views of utility may be useful. . . . But to proclaim generally that all laws which are
pernicious or contrary to the will of God are void and not to be tolerated, is to preach anar-
chy . . .” (ibid., p. 186). That Austin’s motivation to establish a criterion of source (rather
than of content) to determine the validity of a law is moral is a point Hart both acknowl-
 Law and the Ordinary: Hart, Wittgenstein, Jurisprudence   105

I will not enter into the details of Austin’s definition because it is my

sense that it is something of a stalking horse for Hart. Certainly, Hart is
concerned to challenge the specific thesis that behind every law lays a
command. But there is in Austin’s jurisprudence a more distressing if
less readily identifiable tendency for him: the drive toward a definition of
law. To see what troubles Hart with Austin’s definition (or rather, with his
approach to definition), it is helpful to revisit the first page of The Concept
of Law. Despite seeming paradoxical or strained, Hart observes that the
definitions of law advanced ever since Austin have been urged “as if they
were revelations of truths about law, long obscured by gross misrepresen-
tations of its essential language” (CL 1, emphasis added). It is illuminating
to compare the kind of “revelatory” account jurists seek with the kind of
account philosophers undertake according to Wittgenstein:

They see in the essence, not something that already lies open to view
and that becomes surveyable by a rearrangement, but something that lies
beneath the surface. Something that lies within, which we see when we
look into the thing, and which an analysis digs out. “The essence is hid-
den from us”: this is the form our problem now assumes. We ask: “What
is language?”, “What is a proposition?” (PI §92)

A little later in the Investigations, Wittgenstein describes the impression

that an investigation of language demands that we “grasp the incompa-
rable essence of language. That is, the order existing between the concepts
of proposition, word, proof, truth, experience, and so on. This order is a
super-order between—so to speak—super concepts” (PI §97). I suggest
that for Hart the definitions that characterize, indeed constitute, jurispru-
dence are of the order of super-concepts: attempts to provide deep, unheard
of, and revelatory elucidations of the nature of law.
This is why Austin is so illustrative. Hidden beneath the surface of what
are called laws—moral, religious, positive—lies an essential or simple
form: command. And hidden beneath the surface of every kind of positive
law lies a command set by a political superior to a political inferior. Not
content to survey how we ordinarily talk and classify law (indeed, starting
from the dissatisfaction that our ways of talking are confused to the point
that law lacks a definition proper to itself), Austin brings what can only be
called news (a theory, a deep explanation, a revelation) to jurisprudence.
edges and admires. See “Positivism and the Separation of Law and Morals,” in H. L. A.
Hart, Essays in Jurisprudence and Philosophy (Oxford: Oxford UP, 1983), pp. 53–54.
106   Alexandre Lefebvre

As Wittgenstein says, “we feel as if we had to penetrate phenomena” (PI,

§90). This cast of mind is so obvious and so natural that it becomes dif-
ficult to see what else jurisprudence could be if not providing a theory or
explanation of what law is beneath its apparent diversity. And this is what
Hart wants to make us see: Austin’s significance is that his approach to
jurisprudence (again, not his conclusions) appears so unobjectionable that
it is likely to be found in any investigation of law. It is the approach any-
one is likely to take. But it is at this point that Hart is stopped in his tracks
and urges consideration as to the costs of this procedure. This is to praise
Hart’s philosophical bent of mind: like Wittgenstein stunned by the most
plain-looking passage in Augustine, Hart is alert to what we have taken to
be commonplace. We could say Hart recognizes Austin’s approach—i.e.,
investigating the nature of law by providing a simple and comprehensive
definition of it—as what Wittgenstein would call a “picture,” as one way
of seeing or proceeding that has captivated us (PI §115). And, in so doing,
Hart shows us that this picture is our own—a responsibility, adopted and
not inevitable—and that it is perhaps a constraint to our thinking about
law.

II. The Ordinary

If Austin’s picture is a constraint, with what is it contrasted? Hart is so up
front with his answer that it is easy to miss. An extraordinary feature of
The Concept of Law is that Hart describes his entire mature vision of law
in a single paragraph on the second page, only to (preliminarily) reject it
as a “useless” answer to perplexed jurists.17
Hart starts off by contrasting the plurality of definitions of law in juris-
prudence with the massive agreement around our ordinary use of the word,
as demonstrated by the ability of most everyone “to cite, with ease and
confidence, examples of law if they are asked to do so” (CL 2). (Without
pausing here, we see an unmistakable Wittgensteinian theme: philosophy
(jurisprudence) drives us toward privacy, ordinary language toward attun-
ement.) Indeed, he undertakes to show how supple and sophisticated our
ordinary concept of law is:

Any educated man might be expected to be able to identify these salient

features in some such skeleton way as follows. They comprise (i) rules

17.  Compare Hart’s approach with Wittgenstein’s statement, in the very first section
of the Investigations, that “[e]xplanations come to an end somewhere” (PI §1).
 Law and the Ordinary: Hart, Wittgenstein, Jurisprudence   107

forbidding or enjoining certain types of behavior under penalty; (ii) rules

requiring people to compensate those whom they injure in certain ways;
(iii) rules specifying what must be done to make will, contracts or other
arrangement which confer rights and create obligations; (iv) courts to
determine what the rules are and when they have been broken, and to fix
the punishment or compensation to be paid; (v) a legislature to make new
rules and abolish old ones. (CL 3)

If we include the rule of recognition, which Hart mentions a few lines

earlier (CL 2), all of The Concept of Law is here: (i) and (ii) designate
primary rules, public and private (CL 80); (iii) designates secondary rules
(CL 80); (iv) designates rules of adjudication (CL 97); and (v) designates
rules of change (CL 95). It would miss the point to complain that Hart’s
ordinary man is, in fact, a careful student of his book. It is the other way
around: Hart’s ambition is to describe how it is that we (ordinarily) speak
about, call out, categorize, and use law (“law”). That is what constitutes the
concept of law; that is its essence. What Hart describes is the grammar of
“law” (law): he unwrinkles before our eyes how we extend and apply this
concept. If Hart keeps from Austin the title of “analytical jurisprudence”
to designate his own efforts, it is with a decisive difference: the point is
not to dig out something beneath the surface (definition) but to describe
what “already lies open to view” (PI §92). And it is important to recognize
that the grammar of law is in plain view; acquisition and analysis of its
grammar do not require special expertise or training. Neither Hart nor the
jurists with whom he is in dialogue are concerned with technical legal
terms, such as estoppel or usufruct. That would take training. But to know
that “law” forbids certain things and enables others, that it is passed by
legislatures and decided by judges, is something we as competent speakers
of the language cannot fail to know. As Stanley Cavell says of the kinds of
objects with which Wittgenstein is occupied in the Investigations—read-
ing, sitting in a chair, expecting someone, counting in a series—all that is
necessary to know such things is to know “how to talk.”18
At this point in his text, Hart moves to bring his whole inquiry to
an abrupt close. Given our widely shared ability “to recognize and cite
examples of laws . . . it might seem that we could easily put an end to the
persistent question, ‘What is law?’, simply by issuing a series of reminders
of what is already familiar. Why should we not just repeat the skeleton

18.  Cavell, The Claim of Reason, p. 134.

108   Alexandre Lefebvre

account of the salient features of a municipal legal system . . . ?” (CL 4–5,

emphasis added). I assume that Hart intends to echo an important descrip-
tion Wittgenstein gives of his own practice: that it “consists in assembling
reminders for a particular purpose” (PI §127). I take Wittgenstein to mean
that, insofar as philosophical problems emerge through a denial of the
criteria and grammar of ordinary language (such that, e.g., I can wonder
whether another person can have “my” pains), release from these prob-
lems is achieved by reminding ourselves how on specific occasions we in
fact use our words. I further assume that Hart adopts the practice of issuing
reminders throughout his work, whether he addresses Austin (“oblige”),
legal realism (“choice”), Fuller (“ought”), and so on. That is, I assume
that for Hart the provision of reminders as to how we speak about a phe-
nomenon has the same liberating powers with respect to the problems of
jurisprudence as it does with respect to the problems of philosophy for
Wittgenstein. If my trio of assumptions is warranted, then it is cause for
wonder that Hart rejects this way of proceeding out of hand in the opening
pages of The Concept of Law.
The reason he gives is that these reminders bring no news to jurists: “it
is clear that those who are most perplexed by the question ‘What is law?’
have not forgotten and need no reminder of the familiar facts which this
skeleton answer offers them. The deep perplexity which has kept alive the
question, is not ignorance or forgetfulness or inability to recognize the
phenomena to which the word ‘law’ commonly refers” (CL 5). And in an
earlier essay, Hart says much the same: “those who ask these questions
are not asking to be taught how to use these words in the correct way.
This they know and yet are still puzzled.”19 The fact that jurists very well
know the ordinary meaning of law, and yet continue to be perplexed or
disappointed with that meaning, is significant. For if jurists write precisely
out of a sense of dissatisfaction with ordinary language, with a sense that
our usage is muddled and that we fail to reach the unique essence of law,
it would be dogmatic to insist on that ordinary sense, i.e., it would fail to
address the concern that raised the question in the first place. The jurist
knows that sense; for him, it is not enough.
This can be put more forcefully. The jurist who tells us, e.g., that law
is really only a prediction of what officials will decide, is not offering a
definition that can safely run parallel to the ordinary one. He is saying that

19.  H. L. A. Hart, “Definition and Theory in Jurisprudence,” in Essays in Jurispru-

dence and Philosophy, p. 22.
 Law and the Ordinary: Hart, Wittgenstein, Jurisprudence   109

when we use the word law (when, so to speak, we wash it clean in cyni-
cal acid),20 what we really mean is the definition he puts forward. Here,
to repeat the same old definitions of law would be worse than useless; it
would be a repudiation of the methods of ordinary language philosophy.
Why? Because these methods are based on acceptance and agreement by
any mature speaker of what we should say when, of what is an appropriate
use or extension of a concept. As Cavell puts it, “the very power of the
ordinary language procedures resides in its insistence that any master of a
language can respond to his request to ‘say what we should say when . . . ’;
and so we must have some convincing explanation of how a master of a
language may not know that he has changed the meaning of a word or has
emptied it of meaning altogether.”21 To appeal to the fact that this is how
we use the word law, as if that fact could overcome or refute the disappoint-
ment registered by the jurist, forcefully and illegitimately presupposes the
basis of agreement that would legitimize that appeal.22 Such a resolution,
offered in absence of a close examination of the jurisprudence in ques-
tion, and without a specific determination of its potential emptiness, would
be polemical or political, just the kind of solution Wittgenstein writes to
avoid (see PI §133).
For Hart, then, an immediate recourse to the ordinary usage of law in
order to quiet the perplexities of jurisprudence is premature and unavail-
able. The predicament charted by the first pages of The Concept of Law
is one where the definitions of law put forward by jurists can be neither
ignored (for they are meant to confront ordinary usage) nor straightfor-
wardly dismissed (for that would undermine the method seeking the
dismissal). It is at this junction, then, that Hart proposes to “defer giving

20.  Oliver Wendell Holmes, “The Path of Law,” in Collected Legal Papers (New
York: Harcourt Brace, 1920), p. 174. See also Holmes’s wish to reform language so as to
coincide with the nature of law: “For my own part, I often doubt whether it would not be
a gain if every word of moral significance could be banished from the law altogether, and
other words adopted which should convey legal ideas uncolored by anything outside the
law. . . . By ridding ourselves of an unnecessary confusion we should gain very much in the
clearness of our thought” (ibid., 179).
21.  Cavell, The Claim of Reason, p. 166.
22.  It is a grave error to claim that Hart “straightforwardly [asserts] the existence of
a social consensus as to meaning” (Goodrich, “Law and Language,” p. 186). To the con-
trary, how the “we” is manifested and contested in requests of what to say when, and how
agreement is challenged and undermined in jurisprudence are guiding themes of Hart’s
jurisprudence.
110   Alexandre Lefebvre

any answer to the query ‘What is law?’ until we have found out what it is
about law that has in fact puzzled those who have asked or attempted to
answer it. . . . What more do they want to know and why do they want to
know it?” (CL 5).

III. Responsiveness and Therapy

To see what kind of response can be made to the definitions of law put
forward by jurists, it is helpful to review Hart’s depiction of jurisprudence.
It has three main features:
1. Difficulty of phenomenon. The essence of law is hidden and hard to
get a hold of. “[We] imagine that we have to describe extreme subtleties,
which in turn we are after all quite unable to describe with the means at our
disposal” (PI §106). At the root of this picture is an estimation of ordinary
language as average, crude, and equivocal; in other words, as not up to the
job of grasping the concept of law. Accordingly, ordinary language is seen
as an obstacle to an adequate apprehension of law.
2. Conflict with the ordinary. Viewed as an impediment, ordinary lan-
guage comes into conflict with jurisprudence. “Some of [the paradoxical
assertions of jurisprudence] seem to conflict with the most firmly rooted
beliefs and to be easily refutable” (CL 2). Such is the general view the
ordinary and jurisprudence have of one another. The former complains
that jurisprudence is outrageous. The latter admits the charge, maybe with
a smile, for it knows its conclusions to be reached by “emphasizing some
aspect of law . . . obscured by ordinary legal terminology” (CL 277n). The
exile of jurisprudence from ordinary language is a direct consequence of
arriving at conclusions by turning away from the ordinary.
3. Seriousness of perplexity. Hart is quick to defend jurisprudence
from the accusation of frivolity, as if it sought to deny and surprise for
its own sake: “These seemingly paradoxical utterances were not made by
visionaries or philosophers professionally concerned to doubt the plainest
deliverances of common sense. They are the outcome of prolonged reflec-
tion on law . . . ” (CL 2, emphasis added). The comparison to philosophy is
unflattering and snide, for it looks as though philosophical doubt is pro-
fessionally motivated—that it is not genuine but a routine, a trick of the
trade. If this is a view that Hart holds, he is far from alone.23 But what is

23.  See, for example, J. L. Austin’s comparison of the “wily” metaphysician with a
conjurer, and Richard Rorty’s characterization of skepticism as the history of bad ideas,
a tradition taught primarily to infect and relieve each new generation of students of their
 Law and the Ordinary: Hart, Wittgenstein, Jurisprudence   111

important here is not philosophy but the seriousness of the perplexities of

jurisprudence. And it is that seriousness that the contrast with philosophy
reveals: the paradoxical utterances of jurisprudence are not prima facie
spurious if that means trivial or contrived. They are, as Wittgenstein would
say, “deep disquietudes” (PI §111).
The previous section left off at the predicament established by this
seriousness: jurists challenge the ordinary concept of law and they cannot
be dismissed by a simple reminder of it. And so, for Hart, the only way to
respond is to hear out the perplexities and explanations of jurisprudence.
This brings us to a fundamental point of intersection between Hart
and Wittgenstein: responsiveness. Throughout his writings on Wittgen-
stein, Cavell claims that a defining virtue of philosophy is responsiveness:
“What makes it philosophy is not that its response will be total, but that it
will be tireless, awake, when the others have all fallen asleep. Its commit-
ment is to hear itself called on, and when called on—but only then, and so
far it has an interest to speak.”24 The role that Wittgenstein envisages for
philosophy is not to speak first but to attend to each occasion where the
temptation toward ideality (or precision, or depth) leads to empty asser-
tion. It is this commitment to responsiveness that gives the Investigations
its peculiar discontinuous organization. Whether the response is directed to
the perplexities of someone else (and it is significant that this book opens
with the words of another person), or whether the voice from which one
seeks peace is one’s own, philosophy arises only in the particular muddles
in which it finds itself.
I claim that Hart explicitly shares this practice of responsiveness, such
that jurisprudence is occasioned only in response to specific temptations or
bewitchments. I further claim that The Concept of Law is as discontinuous
a text as the Investigations, if that is taken to mean that its cast is system-
atically one of specific engagement and response. To approach these two
claims, I cite Hart’s mature reflections on his method:

doubts. J. L. Austin, “Other Minds,” in Philosophical Papers, pp. 87–88; Richard Rorty,
Consequences of Pragmatism (Minneapolis: Univ. of Minnesota Press, 1982), p. 181.
24.  Stanley Cavell, This New Yet Unapproachable America: Lectures after Emerson,
after Wittgenstein (Albuquerque, NM: Living Batch Press, 1989), p. 74. See also his Philo-
sophical Passages: Wittgenstein, Emerson, Austin, Derrida (Oxford: Blackwell, 1995),
pp. 128–29; Philosophy the Day After Tomorrow (Cambridge, MA: Harvard UP, 2005),
p. 114; Claim of Reason, pp. xii–xiii; Cities of Words: Pedagogical Letters on a Register of
the Moral Life (Cambridge, MA: Harvard UP, 2004), pp. 241, 324.
112   Alexandre Lefebvre

An understanding, however sophisticated or profound, of the workings

of language could only yield significant results for jurisprudence where
difficulties had arisen from a failure to identify the way in which some
particular use of language deviated from some tacitly accepted para-
digm, or where radically different forms of expression were mistakenly
assimilated to some familiar form.25

These reflections, written twenty years after the publication of The Con-
cept of Law, help make explicit the organization of that work. In his first
chapter, Hart observes that the general question “What is law?” has in fact
always revolved around “certain recurrent main themes. . . . Speculation
about the nature of law has a long and complicated history; yet in retro-
spect it is apparent that it has centered almost continuously upon a few
principal issues” (CL 5–6). These issues are: the obligatory nature of law;
the distinction between law and morality; and the essence of a rule. What
is important to notice is that these are the perplexities to which Hart’s
jurisprudence responds: these are the particular sites where he identifies
tendencies toward emptiness; and these are the regions where words must
be led back to the ordinary for jurisprudence to regain its sense. If we
survey the structure of The Concept of Law, it becomes clear that it is
structured according to three responses. Chapters 2 through 5 respond to
Austin and to the perplexity around obligation; chapters 6 and 7 respond to
realism and the perplexity around rules; and chapters 8 and 9 respond to the
natural law tradition and the perplexity around morality. In short, this text
is made up of three grammatical analyses. Not surprisingly, we find that
the first chapter anticipates this organization. In a half-dozen pages, Hart
summarizes the three founding perplexities of jurisprudence, articulates
the definitions proposed to resolve them, and outlines the grammatical
analyses that will reveal their emptiness (CL 6–13).
If I am correct in identifying this structure, it would appear that The
Concept of Law is as closely responsive to human unhappiness as the
Investigations. At the close of a famous and controversial remark, Witt-
genstein writes, “There is not a philosophical method, though there are
indeed methods, like different therapies” (PI §133). I propose that Hart
sets for himself a similarly therapeutic ambition. For both authors, the
need for therapy is demonstrated time and again by showing that we do not
know what we say; that whether engaged in philosophy or jurisprudence,

25.  H. L. A. Hart, “Introduction,” in Essays in Jurisprudence and Philosophy, p. 5.

 Law and the Ordinary: Hart, Wittgenstein, Jurisprudence   113

we bend words in ways we cannot mean in order to reach explanations we

do not understand.
For the remainder of this essay, I focus on two features of Hart’s
jurisprudence that emerge from seeing it as therapeutic: the pursuit of
self-intelligibility and discontinuity of response. We begin with self-intel-
ligibility. In urging a responsive practice and in advancing a therapeutic
vision of it, we must not think that Hart wishes to forbid deviation from
the ordinary. His claim is rather that we cannot deviate from it without
assuming costs (incomprehensibility, privacy, nonsense, etc.). Put other-
wise, ordinary language is binding for philosopher and jurist alike, not
because an everyday or commonsense perspective is in itself normative but
because ordinary language is their own, the only one in which they “write”
(think, feel, mean, hope, want, etc.). And so the intelligibility sought by
Hart concerns not simply an object of analysis (say, rules or obligation)
but enhanced self-awareness, of what we should say when.
Let us turn to a specific grammatical analysis or therapy. It concerns
the claim on the part of legal realism that law is not made up of rules.

The rule-skeptic is sometimes a disappointed absolutist; he has found that

rules are not all they would be . . . in a world where men were like gods
and could anticipate all possible combinations of fact. . . . The skeptic’s
conception of what it is for a rule to exist, may thus be an unattainable
ideal, and when he discovers that it is not attained by what are called
rules, he expresses his disappointment by the denial that there are, or can
be, any rules. (CL 138–39, emphasis added)

The realist’s thesis has the trappings of jurisprudence as Hart portrays it:
disappointment and revelation. On the one hand, we see that the disappoint-
ment the realist registers is not directed to the conclusion that law is not
rule bound. To the contrary, for many realists this was a liberating insight
that returned law back to human need and practice. Rather, the disappoint-
ment pertains to our sloppy ways of speaking, of improperly calling (and
so theorizing and practice) law “rules.” On the other hand, it is clear that
the realist’s thesis is in the nature of a revelation: it would overturn entire
regions of our grammar if, beneath surface appearance or rhetoric, law was
in fact not a rule-bound practice. Of course, the realist’s disappointment and
revelation are functions of one another: the skeptical conclusion comes as
a shock because it conflicts with or demystifies ordinary, imprecise ways
of speaking of law that, up until now, have obscured the essence of law.
114   Alexandre Lefebvre

Hart’s response to the realist is that his conclusion is incomprehen-

sible, that he does not know what he is saying. Earlier, I mentioned that
Hart should be credited for introducing new categories of criticism to
jurisprudence. His procedure is not to refute jurists, if that means to show
a position to be false or wrong or undesirable (refutation is, for instance,
Dworkin’s critical approach). Rather, by attending how, and with what
consequences, ordinary ways of speaking are being repudiated, Hart gives
to jurisprudence a new critical vocabulary, one closer to therapy or analy-
sis than to argument: “grotesque,” “distortion,” “obscurity,” “temptation,”
“illusion,” “emptiness,” etc. (CL 31, 28, 7, 145). Certainly, jurists before
Hart had reproached one another for obscurity; but never before had lack
of intelligibility been identified as the singular failing of jurisprudence, as
its constant temptation.
Let us look at the realist vignette. The realist starts with a concept of
a rule that is and is not recognizable. On the one hand, it is our ordinary
concept inasmuch as rules are designed to determine conduct within a par-
ticular activity or sphere with a measure of impartiality and predictability.
But, on the other hand, the realist’s rule is inhuman in its exactingness; it is
a picture that conflicts with our ordinary way of speaking. For the realist,
it looks as if a rule determines its own application—i.e., as if it works out-
side structures of human agreement and decision, and as if it disregards or
provides for future contingency. On this account, anything that falls below
the ideal is strictly speaking not a rule. Given this picture, the skeptical
conclusion comes of itself: if that is what a rule is, law, as we know it, is
not that. But in revealing the realist’s ideal of precision and objectivity as
idle or idol, i.e., in revealing that the ordinary concept of a rule has no need
for (does not have) such purity, Hart has already performed his criticism:
the short step the realist makes to his conclusion is an illusion created by
holding a hyperbolic conception of a rule.26 This is the negative aspect of
Hart’s therapy: to show that in adopting an “external perspective” to ordi-
nary language, i.e., in conceiving of jurisprudence as a confrontation with
the ordinary, jurists suffer from unintelligibility.27 The positive aspect is to

26.  On the objectivity requirement in rule-following in both ordinary language and

skepticism, see Alice Crary, Beyond Moral Judgment (Cambridge, MA: Harvard UP,
2007), pp. 19–29.
27.  It would be worthwhile to compare Hart’s “external perspective” with the kind
of outsideness that results from jurisprudence. Here, once again, Wittgenstein is the indis-
pensable reference inasmuch as he characterizes the philosopher as a kind of explorer, a
speaker of strange languages (e.g., PI §32).
 Law and the Ordinary: Hart, Wittgenstein, Jurisprudence   115

release or relieve jurisprudence from its problems, and, more significantly,

from its perplexing conclusions, by bringing “words back from their meta-
physical to their everyday use” (PI §116). In my conclusion I will briefly
address this second aspect.
At this point, I wish to address the second feature of Hart’s therapeu-
tic practice: discontinuity. My claim is that to the extent that Hart finds
jurisprudence called upon only in specific instances of puzzlement or loss,
so will its writing be discontinuous. This may seem counterintuitive with
respect to The Concept of Law. For does that book not postulate “the dis-
tinctive structure of a municipal legal system” (CL 17)? But what if it is
not Hart’s account per se but ordinary language that is systematic? And
what if, in our very urge to attribute the systematicity of the concept of law
to Hart’s treatment rather than to its ordinary usage, we reveal ourselves to
doubt the power (the suppleness, the presence of the systematic in absence
of closure) of the ordinary? It may be tempting to read Hart as if disclos-
ing the essence or the structure of law. But the cost or consequence of so
doing is that we show ourselves as skeptics, as situated in that long line of
jurists who approach ordinary language as too crude or diffuse to account
for something as structured or as systematic as law.
It is beyond the scope of this essay to explore how Hart takes a legal
system to be nothing other than the systematicity of the everyday concept
of law. It is possible, however, to show that he writes in aversion to the
spurious systematicity everywhere evident in jurisprudence. Nowhere is
this tendency better revealed than in attempts to define law. Hart’s objec-
tion to definitions is that they deny the concerns that give rise to them:

It seems clear, when we recall the character of the three main issues
which we have identified as underlying the recurrent question “What
is law?”, that nothing concise enough to be recognized as a definition
could provide a satisfactory answer to it. The underlying issues are too
different from each other and too fundamental to be capable of this sort
of resolution. This the history of attempts to provide concise definitions
has shown. (CL 16)

Here we see that Hart admires the richness of reflection and avowal of
perplexity in jurisprudence. He affirms that the issues that occupy jurispru-
dence “naturally, at all times give rise to misunderstanding” and, as such,
deserve attention and dedication (CL 6). But, on the other hand, he wor-
ries that jurisprudence has evaded or disavowed these perplexities (not to
116   Alexandre Lefebvre

mention given rise to others) by imposing definitions. Put otherwise, Hart

finds the persistent problems of jurisprudence at once acknowledged and
denied: acknowledged because these sites give rise to reflection; denied
because these reflections provoke answers both empty and violent.
Take an exemplary passage summarizing Hart’s critique of Austin’s
command theory:

The originally simple idea of a threat of evil or “sanction” has been

stretched to include the nullity of a legal transaction; the notion of a
legal rule has been narrowed so as to exclude rules which confer pow-
ers, as being mere fragments of law; within the single natural person of
the legislator whose enactments are self-binding two persons have been
discovered; the notion of an order has been extended from a verbal to
a “tacit” expression of will, consisting in non-interference with orders
given by subordinates. (CL 48–49, emphasis added)

The gymnastics of this passage—stretched, narrowed, extended—gives a

sense of how Austin twists and bends to accommodate the simplicity of his
vision. Hart’s repeated criticism of the command theory is that it distorts
the different functions that different rules perform (CL 38–39). Much like
J. L. Austin, who raises performatives as a massive set of counterexamples
to logical positivism’s position that an utterance that is neither true nor
false is nonsense, Hart insists on a class of secondary rules irreducible to
the definition of law as command. By stressing this class of rules, we can
take Hart to criticize Austin as unfaithful to his (Austin’s) ambition for
analytical jurisprudence: “the elucidation of fundamental legal notions to
be achieved by the analysis of the distinctive vocabulary of the law . . . ”28
Ordinary language possesses criteria to distinguish between the different
kinds of rule: e.g., it calls one kind of unhappiness a sanction and another
a nullity; it speaks of one kind of rule as imposing duties and the other as
conferring powers (CL 81). And so, the cost of foisting a single definition
onto law, of treating the distinctions registered by ordinary language as
superficial, is to lose sight of the very distinctiveness of law that motivated
the inquiry in the first place. A rich systematicity of the ordinary is substi-
tuted by the spurious uniformity of definition.
It is significant that Wittgenstein said “therapies,” in the plural
(PI §133). Slightly earlier, he writes, “We want to establish an order in our

28.  H. L. A. Hart, “Introduction,” in Austin, The Province of Jurisprudence Deter-

mined, p. xv.
 Law and the Ordinary: Hart, Wittgenstein, Jurisprudence   117

knowledge . . . one out of many possible orders; not the order” (PI §132).

Hart’s objection to definition in law (and again, Austin is a perfect interlocu-
tor because his drive to definition is so open and pure) is that it attempts to
provide a single order, the order. In his notebooks preparatory to The Con-
cept of Law, Hart writes, “I have the dim—too dim—outline of this book
in my mind. My ambition in its most grandiose form is to dispel forever
the definitional will ‘o the wisps—the search for ‘definitions’ in law—by
showing that all that can be done and is important to do is to character-
ize the concept of law by identifying the main elements and organization
of elements which constitute a standard legal system.”29 It is ironic that
Hart’s response to Austin has been taken as another totalizing definition of
law30—ironic because Hart advances the description of a municipal legal
system precisely to show that law is too diverse and heterogeneous to be
captured in a definition. Definition in jurisprudence is, for Hart, a difficulty
that needs to be eliminated; it represents a problem that, wherever it arises,
must be responded to and resolved. Description represents for Hart just
that resolution.
The importance that Hart gives to description, as the path along which
analytical jurisprudence must be both confronted and renewed, again
strongly recalls Wittgenstein:

We may not advance any kind of theory. . . . We must do away with all
explanation, and description alone must take its place. And this descrip-
tion gets its light, that is to say its purpose, from the philosophical
problems. These are, of course, not empirical problems; they are solved,
rather, by looking into the workings of our language, and that in such
a way as to make us recognize those workings: in despite of an urge to
misunderstand them. (PI §109)

Cavell has described passages such as these in Wittgenstein as conversional

experiences, for they urge “a shift in what we are asked to let interest us,
in the tumbling of our ideas of the great and the important.”31 Perhaps the
major accomplishment of Hart’s and Wittgenstein’s therapies is to incite
us to reevaluate what is necessary, to reconsider what kind of account
is required. Hart calls the account he seeks “an improved analysis” and

29.  Cited in Lacey, A Life of H. L. A. Hart, p. 149.

30.  See Marianne Constable, Just Silences: The Limits and Possibilities of Modern
Law (Princeton, NJ: Princeton UP, 2005), pp. 31–32.
31.  Cavell, The Claim of Reason, p. xxi.
118   Alexandre Lefebvre

opposes it to “definition” (CL 17); Wittgenstein calls it “perspicuous rep-

resentation” and opposes it to “explanation” (PI §122). In both, we find
the claim that philosophy or analytical jurisprudence “leaves everything
as is it” (PI §124). In Hart, such an injunction is typically seen in its
contrast to censorial jurisprudence, which seeks to improve or to reform
law (CL v). A crucial feature of Wittgenstein’s philosophy, however, is
its refusal to separate practical philosophy as a special or distinct branch
of investigation; indeed, the motivation to philosophy is the pursuit of
self-intelligibility, peace, and order on the part of its practitioners. What I
suggest is that analytical jurisprudence too has practical tasks appropriate
and unique to itself. In demonstrating that the accounts jurists offer defeat
their purpose, in seeking to alter what they recognize as a problem, and in
proposing that jurisprudence leads words back to their everyday use, the
descriptive approach Hart brings to jurisprudence is practical philosophy
to the extent that it brings relief and clarity to a perplexed science.