The path not taken: H.L.A. Hart's Harvard essay on discretion

It is an extraordinary privilege to be able to introduce a previously unpublished essay by H. L. A. Hart, one of the most distinguished figures in twentieth-century legal philosophy, alongside a fine commentary by Geoffrey Shaw, the scholar whose intellectual imagination and meticulous archival research has brought the essay to light. It is particularly apt that H. L. A. Hart's essay should be published by this Review, appearing fifty-seven years after it was written in the early months of his visit to Harvard, thus joining a distinguished tradition of posthumously published scholarship of the 1950s, most notably Lon Fuller's The Forms and Limits of Adjudication, (1) and Henry Hart and Albert Sacks's The Legal Process. (2) Its publication is also timely, albeit long delayed, in that it comes hard on the heels of a period in which the intellectual history of legal thought has been the subject of wide interest and some very powerful scholarship. (3) Hart's year at Harvard significantly shaped the course of his subsequent work. (4) The essay now being published, entitled Discretion, (5) helps to explain why that was the case, for it is a testimony to the intensity of his engagement with colleagues in the Law School. During the course of the year, he laid the foundations for the vast majority of his work over the next decade: for Causation in the Law, (6) for The Concept of Law, (7) and for Punishment and Responsibility. (8) The stimulating American context, as he later put it, 'relaxed one's neuroses'; '[i]deas started pullulating at a rather alarming rate. I thought, 'Am I going mad?': I was getting so many different things inside.' (9) In his Essay, Shaw presents a searching analysis of the paper's argument as well as a persuasive assessment of its overall significance, and I do not propose to tread the same ground. In this brief introduction, I shall rather reflect, from a biographer's viewpoint, on the significance of Discretion for our understanding of the trajectory of Hart's ideas and on the significance of his year at Harvard. I shall then move on to consider the intriguing question of why Hart did not subsequently publish or build on some of the key insights in the paper itself. Here I highlight the fact that, almost uniquely in Hart's work, Discretion features a notable emphasis on the significance of institutional factors in our understanding of the nature of legal decision-making; and I argue that Hart's failure fully to develop this insight in the essay, or to build on it in his subsequent work, derives from the fact that such a development would have necessitated a diversion from the philosophical issues that were his core intellectual concern, and moreover would have presented certain dangers to his conception of legal positivism. I shall conclude by considering what contribution the essay makes to our overall interpretation and evaluation of Hart's legal philosophy.
I. H. L. A. HART AND HARVARD'S 'YEAR OF JURISPRUDENCE' I should set out by confessing that when Geoffrey Shaw told me two years ago that he intended to work [...]