Kirby, Michael --- "H L a Hart, Julius Stone and the Struggle for the Soul of Law" [2005] SydLawRw 14; (2005) 27(2) Sydney Law Review 323

• Review Essay
• H l a Hart, Julius Stone And The Struggle For The Soul Of Law†

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Review Essay

H L A Hart, Julius Stone and the Struggle for the Soul of Law[†]

THE HON JUSTICE MICHAEL KIRBY AC CMG[*]

1.	Two Notable Lives

Books on the lives of judges and other lawyers are comparatively few — for the obvious reason that those who succeed in the law usually lead dull lives. The practice of law extracts a cost. It tends to impose a limitation on publishable extracurricular activities that would otherwise add spice to a life, so as to make it worth reading about. If this is so of the actors who take part in the dramas of courtrooms, how much truer it is of scholars who spend their lives in classrooms, teaching often ungrateful students and snatching moments to write down their analysis of the underlying foundations of law and obedience to law. Such people will usually be viewed as poor prospects for an interesting life story. If we want to read their theories, we can go directly to their writings, without troubling ourselves about their personal circumstances.

Yet, in the past decade, two books have been written on notable legal philosophers. Nicola Lacey’s new biography of Herbert Hart[1] complements Leonie Star’s 1992 work Julius Stone — An Intellectual Life.[2] Professor Lacey’s recent study is a more substantial one. It is more than half again as long and more intensive in the description of the inner life of the subject. However, for Australians, Julius Stone is probably regarded as having enjoyed a greater impact. He lived and worked amongst us for most of his professional life. Hart visited Australia but once, in 1971. Yet both of them continue to be, for Australians, leading expositors of the principles of legal philosophy. They seem somehow larger than life.

The new biography of Hart confronts us with an insight into the rivalry between these two very different scholars. Nicola Lacey helps us to see the similarities and differences in their views, which, in turn, grew out of the contrasting stories of their external and internal lives.

Inspired by Lacey’s eminently readable account of Hart’s life, I want to collect some of the similarities and differences between Hart and Stone. By any account, each was an important writer and thinker in the field of jurisprudence, especially for English-speaking people. The core of Hart’s professional work was performed as Professor of Jurisprudence in the Oxford Law Faculty — a post he held from 1953 until 1969. Julius Stone, after a controversial start, served as Challis Professor of Jurisprudence and International Law at the University of Sydney from 1941 to 1972. Both of them held academic and other appointments before and after these central assignments in distinguished universities on the opposite sides of the world. Stone, for instance, after finishing at Sydney University was quickly welcomed into the newly established Law School at the University of New South Wales. It was to prove a safe haven, in many ways more welcoming and congenial than the Sydney Law School had been for him. But it was around their primary professional appointments that both scholars built a great deal of national and international activity in teaching and writing about jurisprudence. Both were to play important parts in the development of an understanding about the law, and not only within the legal profession.

2.	Study in Similarities

The similarities between Stone and Hart are not difficult to find. Each was born into a family of Jewish immigrants who had settled in England in the nineteenth century before the Aliens Immigration Act 1905 (UK) placed restrictions upon such immigration. Stone’s family had fled intensified anti-semitism in Lithuania. Hart’s family derived from East Prussia, in what is now part of Poland. When, years later, Hart was confronted by a boastful matron who said that her forebears were robber barons from the border country of England, Hart gently responded, that his forebears were ‘robber tailors in the East End’.[3]

Stone’s father was a cabinet-maker who had settled in Leeds where he raised his large family that included the gifted Julius. Hart’s father was also ‘in trade’. Sim Hart, given like his son to periods of deep introspection and depression, was a furrier. He was to end his life in suicide.

From their earliest days, the two young Jewish boys, each born in 1907, were to taste anti-semitism. During the Great War, a mob of anti-German locals gathered outside Stone’s family business, threatening damage and mayhem. Stone’s father confronted them, bravely pointing out that he had sons fighting for the King in France and promising to kill them if they touched his property, even if he were to hang for it. The mob retreated. These events in Leeds left a bitter memory and a scar on Stone’s psyche. Hart, whose family were rather better off, was to taste serious racial discrimination later in his life, when perhaps he could cope with it more readily.

Both boys won scholarships that helped them to advance their education and to lift them out of the economic and social circumstances into which they were born. Hart received more encouragement in his education from his family. One suspects that Julius continued to advance only through the power of his considerable will and a frenetic energy that was to continue all his days.

Both Hart and Stone went up to Oxford where their dazzling intellectual gifts were quickly recognised. Stone was soon attracted to the lectures in international law given by JL Brierley, who enlivened the young man’s interest in the potential of the League of Nations to protect ethnic minorities, a matter naturally close to Stone’s interest. The banishment of Jews from various parts of Europe, which was to herald even worse events in the 1930s, engaged Stone’s concern. It led to the extra string to his bow, namely his deep interest in international law. If Hart was to develop a second string, it lay in the fields of civil liberties and causation in the law. Hart’s engagement with the unresolvable philosophical quandary of causation was to produce (with his friend Tony Honoré) the masterpiece Causation in the Law[4] — a book often cited by courts in all parts of the world when they are confronted with vexed problems of this kind.[5]

Whereas Hart welcomed his absorption into the Brahmin world of Oxford of the 1930s, Stone was more critical of that environment. Each of them had an outsider’s scepticism about the self-satisfaction and unquestioning privilege of the Oxonian outlook; but Stone was to do more about it. Pursuing his interests in international law, he took up a Rockefeller Fellowship to further his studies in that discipline at Harvard University. There he came under the eye of Professor Manley O Hudson. Stone had by now determined to follow the life of a legal academic. Hart stayed in England and, being more Anglophile, was more quickly absorbed. For a time he pursued quite a successful career as junior counsel at the Chancery Bar in London. However, it was a career that left him unsatisfied. He yearned for a return to Oxford and to scholarship in the field of jurisprudence.

At Harvard, Stone fell under the spell of the sociology school of jurisprudence. That school had been cultivated at Harvard by Dean Roscoe Pound, who held successive appointments there between 1913 and 1937. Karl Llewellyn and Jerome Frank were other contributors to the Harvard commitment to viewing law as a social discipline. They rejected the purely analytical approach of the legal positivism and verbal analysis taught at the English universities. For a restless, critical outsider, like Stone, Harvard must have seemed a breath of fresh air. It afforded an injection of legal realism at a critical phase in Stone’s intellectual development, that Hart was to miss. Years later, in 1956–57, in the ‘jurisprudence year’ of the Harvard Law School, Stone and Hart were to come together to teach their separate classes to the fortunate Harvard students. Stone was in the mainstream of the jurisprudential theories of the Harvard School. He fitted naturally into that place, where he had once, still in his twenties, almost received appointment as Dean. Hart was less comfortable and attracted smaller classes. But he received greater accolades and was honoured by the invitation to deliver the O W Holmes Lectures — a privilege that was thought to engender envy in the ambitious Stone.

In striking out on their careers, both Stone and Hart suffered burdens of discrimination because of their Jewish ethnicity. In Stone’s case, it was immediate and powerful. It is now known that his numerous attempts to secure academic appointments were frustrated, despite his brilliant scholarly achievements on both sides of the Atlantic, by referee reports that cautioned about his Jewish background and attitudes and his Zionist inclinations. Because Hart was more ambivalent about his Jewish origins, and unattracted by Zionism, he suffered less in this respect. However, in Nicola Lacey’s book there is one instance that shows the prejudice that ran deep and may have been replicated in unknown ways during Hart’s career.

After serving many years within New College at Oxford University, Hart applied to be elected principal of Hertford College. By this stage (1971) he had a beautiful house in Oxford where, with his wife Jennifer, he had raised their children. He did not want to move to the principal’s lodgings within Hertford College and raised this issue only to be assured that it would not create a difficulty. Later he was told that the College constitution obliged the principal to live within the College, residing outside ‘only in cases of emergency’. On this footing, Hart, with a little encouragement, withdrew.

Years later, when the Chancellor of Oxford University, the former Prime Minister Harold Macmillan, was sitting next to Hart at a College feast, they fell into talk about Macmillan’s role as Visitor to Hertford College.[6] Macmillan disclosed that he had only experienced one problem. It concerned a proposal to appoint a lawyer as principal of the College, who was a Jew. Macmillan said that the appointing committee had not realised this fact and was concerned that it would not look good to turn down ‘a perfectly reputable man because he was a Jew’. Yet ‘luckily’ they discovered the requirement of the College constitution that the principal should live in the lodgings. So they used this as the excuse to turn the candidate away, without mentioning his religion.

Little did Macmillan know that Hart was the person of whom he was speaking. Hart did not embarrass Macmillan by revealing the truth. He said later, on telling the story, that it would have been too painful to have done so. Hypocrisy triumphed. In this as in other things, Hart was to regret his silence and to regard it as wrong. One can be absolutely sure that Julius Stone would not have kept the secret to himself. But then, Macmillan would have never raised the issue with Stone for whom Jewishness was a central, and never private, aspect of his being.

Both Hart and Stone felt themselves strangers in the law schools to whose chairs they were appointed. Hart, who had turned his back on the practice of law which he regarded as restricting, never truly viewed himself as a teacher of law. For Hart, his discipline was philosophy, with particular attention to legal applications. Stone was not particularly happy in the environment of the Sydney Law School. His arrival had been tumultuous. Unable to secure appointment to academic positions in Britain or North America, because of the offending references, Stone had ultimately accepted a Chair at the University of Auckland, in New Zealand. It was from there, in 1941, that he was recruited to the Challis Chair in Sydney. His appointment was attacked in the press and in the Sydney University Senate. It became a public controversy. There were many who urged that the post should be filled by an Australian, specifically an ex-serviceman or someone who had done his patriotic duty.

Stone’s Jewishness was repeatedly raised, as if it were a disqualification for the appointment. Supporters in Sydney sprang to his defence. One hinted obliquely that Stone had performed work for the security service in New Zealand, of importance to the war effort there. Stone immediately let it be known that this was false. He refused to compromise. For him, the motion for recision of his appointment was pure anti-semitism. In the end, the recision was not carried. Stone took up the post. But from the beginning, his welcome at the Sydney Law School was less than warm. Even in the 1950s, when I was there as a student, he was housed in tiny quarters with his loyal secretary Zena Sachs and his surrounding group of scholars — a kind of intellectual Siberia with few connections with the teachers of the common law. Substantially, Stone was an alien in the Sydney Law School. His subjects jurisprudence and international law were viewed as separate and distinct — not quite legal subjects.

To some extent, Hart suffered a similar fate; but in his case it was of his own choosing. Hart was intensely irritated by the excessive deference shown by legal scholars in Britain to the judiciary and practising legal profession. He refused to sprinkle his essays, referring to recent judicial decisions, with the usual phase of ‘with great respect’. For him, ideas were either supportable or insupportable. He felt that there was no need to show the forced deference exhibited to the judiciary in those days.

Both Stone and Hart recognised that a point was reached where law ran out. Each understood that, ultimately, law was a social construct, with a vital function to perform in society. Obedience to the law could not be explained solely from within the law’s own paradigm. Whereas Hart sought to find explanations for most of law’s binding force within the structure of primary and secondary rules, Stone emphasised the need to look beyond law’s rules to social forces to explain the ultimate principles and the fact of obedience and the limits to which those considerations could be pushed.

Both Stone and Hart were greatly influential with their students. Each of them had a gift and predilection to choosing particular students and encouraging them in their studies. Hart did so, to a very large extent, as examiner for many postgraduate degrees. Stone selected students whom he regarded as especially talented. He then engaged them in his own prolific writings. This is how I came to know Julius Stone.

In my late years at the Sydney University Law School, Stone was heavily involved in the rewriting of his monumental work Province and Function.[7] The three successor volumes, which were to be published in the 1960s, required extensive new work. Stone engaged me to analyse a vast mass of written material provided by his colleague Ilmar Tammelo, with translations from the original Russian, on the then current Soviet view of the Marxist theory of the withering away of the State. I clearly remember sitting in Stone’s study at his home on the north shore of Sydney, where, under a reproduction of Rembrandt’s masterpiece de Staalmeesters, we laboured over our differences. In the end, my valiant efforts were rewarded with a single sentence acknowledgment in the preface to one of the new volumes.[8]

At the time, I viewed it as an unequal reward for heroic labour. However, as I look back, I can see that my true reward was working closely with this dynamic and energetic intellectual. Then, it seemed as if I was part of Stone’s slave labour. Now, I can see that he was doing me a big favour. It was not so clear at the time. But Stone’s choice of his students and the rewards he offered us have left insights that last our lives. So it was also with Hart’s students. Interestingly, however, as recounted by Professor Lacey, Hart’s students tended to have more than profound respect for their master. Hart somehow won deep personal affection. He was a more spontaneous, excited man. He was constantly sharing the wonder of experience and of thoughts and legal analysis. With Stone, one always felt that there was a rush of time. Time was precious. Stone could spare us only so much. Respect rather than affection was the feeling that I believe most of Stone’s students felt towards him.

Both Stone and Hart were to have an impact on the society in which they worked that went far beyond that normal to a philosopher or professor of jurisprudence. In Hart’s case, the impact could probably be seen most clearly in the exchange of opinions with Lord Devlin over the role of law in upholding public morality.[9] In Stone’s case, his influence on public dialogue was wide and longstanding. Often as a boy and young man I listened to him broadcast ‘News Commentary’, just before the national news on the Australian Broadcasting Commission. Stone was a prolific writer in the popular media. He frequently contributed to discussion about international law and the United Nations. But for the appointment of Sir Percy Spender to fill a seat available to Australia on the International Court of Justice, Stone might well have received the appointment to that august judicial body. Such was not to be. Stone and Hart were public intellectuals. Each was engaged with his society. Each contributed to the world of ideas beyond the academic cloisters.

Both Stone and Hart were blessed with loving wives and talented children. Mrs Reca Stone was a fiercely loyal companion to Julius. She shared the triumphs and the disappointments. Their highly talented children have continued to play a role in Australian society and beyond. Members of the family have gone on to contribute to the law.[10] Of course, they saw Stone as a loving father and grandfather. They would have seen the softer elements of his personality. Perhaps another book needs to be written to supplement Leonie Star’s biography on the public life of Stone. It would be a book that told more of his inner-workings. These are displayed, warts and all, in Nicola Lacey’s book on Hart. In some senses, Lacey’s is a psychological study. But it does reveal more of Hart’s inner-being — and especially in his relationship with his highly talented wife, Jennifer. The occasional tensions and difficulties in their relationship are disclosed, in a way that is not identified in the case of Stone. One gets a feeling that Stone’s home life was tranquil and private — a refuge of loyal support that he did not always enjoy in his professional life. But both Hart and Stone had a considerable support system that is essential to public figures, whoever they may be.

Jennifer Hart wrote her own biography.[11] It gives her own story, in a way that Reca Stone never did or would have done. We get comparatively few insights into the Stone family life from Leonie Star’s book. It is not coincidental that throughout that book Julius Stone is described by his biographer as ‘Stone’ whereas throughout the book on HLA Hart, he is described as ‘Herbert’. Stone was reputed to have had a special empathy for migrant students studying law at the Sydney Law School. But because this was not my minority, it was not a side of Julius Stone that I ever saw. To the Anglo-Celtic majority, Julius was impressive, talented, energetic — but always the professor; always a little remote. Never once, that I recall, did he mention in lectures, say, the subject of homosexuality.[12]

3.	Study in Contrasts

So the similarities of Hart and Stone were profound, but so were the differences. It is now necessary to mention some of the chief of these.

Gustav Mahler once said ‘I am thrice homeless, as a native of Bohemia in Austria, as an Austrian among Germans and as a Jew throughout all the world. Everywhere an intruder, never welcomed’.[13] Whilst Hart and Stone shared a double exclusion — their Jewishness and comparatively modest social origins — Hart, like Mahler, added a third layer. It is brought out with great sympathy and sensitivity in Nicola Lacey’s biography.

Hart came to accept himself as basically homosexual. In 1937, at the time of his appointment to his first substantive academic post in New College, Oxford, he confided to his friend Christopher Cox: ‘I am or have been a suppressed homosexual (I see you wince) and would become more so (I mean more homosexual and less suppressed) in Oxford’.[14] As with his Jewishness, Hart was conflicted about his homoerotic feelings. He was also acutely conscious of the social prejudices about homosexuality, and especially at his time of reaching sexual maturity.

It was a painful journey for Hart to come to terms with this aspect of his nature, assuming that he ever fully did. His sexual orientation did not mean that he loved his wife, Jennifer, any the less. On the contrary, in every realm except the physical, their personalities complemented each other. But he told her, quite candidly, from the start, that hers was ‘the only woman’s body I’ve ever loved’. The only one from which he had ‘any physical pleasure’. As Lacey puts it, the revelation, in a letter, illuminated ‘the stunted nature of Herbert’s emotional life and his ambivalent sexual feelings’. Almost certainly it had led to bullying at school and teasing during Hart’s early years at Oxford.

Marriage, and a physical sexual life with Jennifer, was not impossible for Hart. So, in the manner of many in those times, he proceeded to marry her and to father their children. He attempted self-analysis about both his diminishing interest in sex and his feeling emotionally closed.[15] He confided his anxieties in letters and in his diaries from which Lacey quotes extensively.

As a human story, it is tragic to read the suffering and denial evident in the quoted passages. Physical expression of Hart’s sexual identity is mentioned or hinted at. But it is not developed and appears less significant than the frustration of deprivation and constant pretence. However, one very good thing came out of this denial and for it a wider world of ideas must be thankful. The events must be placed in their historical context.

In Britain, a committee under Sir John Wolfenden embarked upon the inquiry that led to the recommendation of substantial changes in the criminal laws against adult consensual homosexual acts.[16] This proposal was published in September 1957. In 1959, Lord Devlin gave the Maccabean Lecture in Jurisprudence to the British Academy. He used the occasion to attack the general principle of the Wolfenden Report. According to Devlin, social morality was a seamless web. Once the law withdrew from the support of a distinctively Christian morality, the result would be a breakdown in the British social order. Thus, society had the right to punish with criminal sanctions private immorality that caused indignation or disgust to the majority.[17]

Patrick Devlin’s views were anathema to Hart’s liberal principles and to his own most private feelings. In response, in July 1959, he gave the talk ‘Immorality and Treason’ on BBC radio. It was later published in The Listener.[18] Hart drew upon the principle of John Stuart Mill that the only justification for invoking the coercive power of the state — especially in criminal law — was the necessity of preventing harm to others. Hart did not publicly associate himself with the homosexual law reform campaign that was established to support the Wolfenden proposals.[19] Doing so was not only contrary to his British dedication to understatement, avoidance of public reference to sexual matters and sense of privacy but also to his professional sense of uninvolvement. At the time it would have been a difficult step for a man to take who, at the very least, was bisexual, whilst maintaining his own peace of mind and personal relationships. In those bad old days homosexual people usually liked to deceive themselves that ‘nobody knows’ whereas, of course, everyone actually did know or suspected the truth and many gossiped about it, as they did of Hart.

Nevertheless, driven by events and his own deep feelings, Hart began giving a number of lectures on the differences between himself and Devlin. They attracted large audiences. They took Hart into profound questions concerning the limits of democratic law-making and the ways in which those limits could be spelt out, respected and maintained. These were ideas he was later to express in his most famous work, The Concept of Law.[20] But for the public in Britain, it was his work as a gentle, reasoned advocate of reform of the law on homosexual conduct that had the larger impact.

Hart gave expression and dignity to the cause which Wolfenden had advanced on pragmatic grounds. He gave a principled basis for supporting the reforms that eventually made their ways into the statue books in England in the Sexual Offences Act 1967 (UK). It seems unlikely that the passage of such significant changes in the criminal law would have had so easy and swift a course in England, in the face of powerful conservative opposition, had it not been for the strong intellectual engagement of Herbert Hart. Of course, he spoke from his own feelings. But he presented his views in the language of philosophy and reason. As the opinions of a married man with three children, they doubtless assumed the respectability of apparently total neutrality. As it happened, the stated opinions were fully consistent with Hart’s general views on liberty and the role of law. Hart’s world view had a unity. But his opinions had an edge to them and this gave them a rare conviction and sense of urgency which struck a chord in the British public mind.

An English reviewer, Thomas Nagel,[21] after reading Nicola Lacey’s book, has questioned why Hart did not destroy his diaries before he died. He suggests that everyone has a private world and that the book on Hart has ‘defects of taste’, presumably the revelation of Hart’s struggle with his sexuality. I could not disagree more. It is this insight into a central occupation of Hart’s mind that reveals his struggle and brings mind and man to life. Fairly clearly, by the end of his life, Hart perceived that his personal struggle was shared with millions and that generations would come — including amongst lawyers — who would value his contributions to enlightenment and wonder at the nightmare that society had so unjustly inflicted on him and so many others.

We are given few, if any, similar insights into the most private thoughts of Julius Stone in Star’s biography. Never in all my dealings with him did Stone ever intrude the slightest reference to his personal or sexual life. So far as we know, Stone kept no telltale diaries to reveal to a later generation intimate personal thoughts of this character. His marriage to Reca was revealed in public as close, mutually supportive, loyal and traditional. No windows are opened by Star, or anyone else, into the private persona of Julius Stone.

The closest that Stone came to a passion of the heart, was his fierce loyalty to the State of Israel. For Stone, this was a cause touching his emotions. His feelings grew out of his own experiences of anti-semitism, his witness to Jewish people’s sufferings in the Holocaust and his belief that the creation of a homeland for the Jewish people was both timely and necessary. It led some of his colleagues to express fear even to discuss Israel with him. However, in a letter in August 1967, Stone asserted that his writings demonstrated not bias towards Israel but bias towards justice. For justice, he was unwilling to suppress a ‘passion’.[22] Zionism was to split the small Jewish community in Australia during the Second World War and thereafter. Some Australian Jews, such as Sir Isaac Isaacs, past Justice and Chief Justice of the High Court and Governor-General, were opposed to Zionism. Stone was appalled. He wrote an open letter to Isaacs which later grew into an extended essay Stand Up and be Counted!.[23]

Upon these matters, and Zionism generally, Hart was much closer to the views of Isaacs. He was ambivalent about his Jewishness and sceptical concerning the creation of a new state in the middle of the Arab world. Upon this matter, he felt and thought more as an Englishman than as an English Jew. When, eventually, in later years, he travelled to Israel for the first time to give a lecture, he was tackled by one of his hosts on why he had not come earlier. For Hart, this presented a difficult question to answer without causing offence.

During the visit to Israel, Hart was invited to attend a meeting at the Palestinian University of Bir Zeit. Several of the western scholars present, but not the Israelis, accepted the invitation. Hart did not.[24] He did not want to upset his hosts. As with his reaction to Harold Macmillan, this portrayed Hart not so much as a Jewish scholar, or man of principle, as one manifesting the attitudes of an English gentleman. There would be little doubt that Stone would have felt aggrieved and angry about Hart’s neglect of Israel and his failure to rally to its cause. Amongst gay men and lesbians, there are similar controversies. Some regard the issue as a wholly private one. Others reject that notion and insist that wrongs and stigmatisation will never disappear until all who are affected nail their colours to the new mast and reveal reality as it is. For Julius Stone, Zionism was undoubtedly an affair of the heart. For his ‘rival’, the closest he came to such a public motivation was on the deeply personal and still secret issue of his homosexuality.

A big change came over Stone’s career with his effective banishment to the Antipodes. Of course, he maintained his links with scholars in Britain and North America. But his daily work for most of his life in Sydney, before the advent of fast and cheap transportation, meant that inevitably he was cut off to some extent from the intellectual mainstream of his discipline. Hart, on the contrary, was at the centre of it, in Oxford. Moreover, he was there at a time in legal developments when the writings of the leading scholars at Oxford, like the writings of the leading judges in the English courts, had a profound and continuing influence in all parts of the Commonwealth of Nations and in the United States.

If today HLA Hart is cited frequently in United States judicial opinions and scholarly texts, it is probably because of the fact that Hart remained at a global hub of intellectual endeavour. Stone, to a large extent, was sidelined. Yet it was the great fortune of Australia and New Zealand that Stone came to this part of the world. In a sense, he brought with him the school of jurisprudence that Roscoe Pound had built at Harvard.

Indeed, Stone was a vital antidote to the established school of legal positivism that had taken root in Australia and whose finest expression occurred in the commitment of Chief Justice Sir Owen Dixon to the resolution of great disputes by ‘strict and complete legalism’.[25] At such a time, the powerful instruction of Stone concerning the legal categories of indeterminate reference, the leeways for judicial choice, and the manner in which the ratio decidendi of cases was found and extended, came to influence increasing numbers of Australian judges and lawyers.

Stone’s leeways for choice were not totally open-ended. He did not support the tyranny of judicial whim. He was a strong proponent of the rule of law. It would be a misstatement of his theory of law to suggest that he favoured unbounded judicial creativity. However, his central contribution was to teach that some creativity was inescapable, inevitable and desirable.

It is impossible to understand the creative period of the High Court of Australia in the 1990s, when Sir Anthony Mason was Chief Justice, without an awareness of the powerful impact of Stone’s teaching on at least three members of the High Court of Australia at that time — Mason, Deane and Gaudron.

If, for the time being, there has been something of a return to the commitment to ‘doctrine’ of earlier times, it seems unlikely, in the long run, that Stone’s message will not prevail in Australia. It is an accurate description of the way judges, especially in final courts, exchange private thoughts about issues of legal policy and principle. The most that Stone taught was that judges should be honest and transparent in their exposure of the considerations of legal policy and principle, as well as the legal authorities, that influence their decisions. They should be aware of the way such considerations influence their approaches to ambiguous expressions in the Constitution, contested legislation and disputed principles of the common law. The furtherance of these ideas will remain Stone’s great achievement in the Antipodes. If he, rather than Hart, has had the greater impact amongst us, it is, perhaps, because we had the greater need for his instruction.

There were differences between Hart and Stone in their attitudes to the world and its ways. Hart absorbed more closely the techniques and habits of English expression. To some extent he seemed, consciously or unconsciously, to play the role of the absent-minded English professor. He was more urbane, witty, less intense and less apparently driven than Stone. He was given to understatement, where Stone would often err on the side of overkill. Famously, Stone’s writings are full of the most copious footnotes in which he details the sources of his ideas with total honesty. This is done, not only from a personal sense of truthfulness, but to provide the reader who is interested with material that can back up his propositions and expand knowledge on the particular point, if that is desired. Hart’s writings, by way of contrast, are briefer, more discursive and less given to references and citations.

The understatement of Hart’s writings was the product of his disdain for the sociology of jurisprudence that Stone had learned from Roscoe Pound and others at Harvard. If jurisprudence is an analytical discourse involving the examination of rules, by verbal techniques designed to reduce propositions to their absolute core and essence, the manner of writing apt to that view will inevitably differ from that appropriate to one who sees the complexities of law as a social discipline, serving various societal functions. Thus, the different modes of writing that Stone and Hart exhibit is partially the result of the different schools of jurisprudence to which they respectively belonged.

Hart was placed squarely in the English analytical school of verbal discourse and analysis. Stone crossed over. He was aware of that school and, where necessary, could perform legal analysis as well as the next.[26] Like Hart, Stone was most comfortable in the legal speculations of jurisprudence. He simply used different tools. They took him to a wider ambit of source materials. They led to writing that was at once more diffuse and less sharp; more detailed and sometimes less precise. But for those of Stone’s school, declarations are not necessarily convincing, even when the writer is as distinguished a mind as Herbert Hart. Stone was an encyclopaedist. In his writings he gathered all the most important views. He was more diffident in pressing his own and this has been suggested as a reason why his writings have less impact now than those who developed their own schools of thinking.

Stone loved honours. In his lifetime, he was honoured by society and the academy. Hart, on the other hand, was ambivalent about such things. He often displayed a republican attitude to the symbols and trappings of worldly success. The disdain that he felt for the excessive deference amongst English academics to the judiciary flowed into his attitude to civil honours. He was critical of his friend, Isaiah Berlin for accepting a knighthood.

Hart’s views were put to the test in the 1960s when he was informed of the intended offer of a knighthood. He declined on the basis that ‘such honours should be given in recognition of public service as distinct from academic merit or scholarship’. He said he was not qualified for the honour. If a similar honour had come in Julius Stone’s direction (as it well might in those days), I do not believe that he would have declined. There was greater insecurity in Stone’s personality in such matters than was the case with Herbert Hart.

Both Stone and Hart were appointed Queen’s Counsel and both enjoyed that professional honour. Whereas in England the appointments of academics were not unknown, in Australia small world provincialism intruded. The President of the New South Wales Bar, when told that the government was considering such an appointment for Stone, responded that doing so would devalue the appointment as a mark of professional success. This was a remarkable response given that the comment was made by one of Stone’s finest pupils, R P Meagher QC. Stone was sensitive to the issue. However, the State Premier of the day (Mr N K Wran QC), also a pupil and admirer of Stone, was insistent. The postnominals were added. When, at a celebration, Stone met one of his pupils who had also taken silk at the same time, he exclaimed ‘Oh, a real silk’.[27]

By the account of Lacey’s biography, Hart was a gentler, kinder and less abrasive personality than Stone could be. His devotion to his students, particularly those undertaking doctoral studies and preparing for academic life, was legendary. Stone, on the other hand, was more distant, at least if my experience is any guide. He perceived, quite clearly, the privilege and advantage that he extended to selected students by entering into intellectual dialogue with him them. In my experience, he never became personal or warm. His relationship with his pupils was that of the pedagogue and it did not much change with passing time.

Stone was hypersensitive. Certainly, he suffered many wrongs in his life. He was not a person simply to accept these. This, and a great self-confidence in his knowledge of the law and society, made him more direct and sharp in expression than was common in the somewhat Anglicised Australia of his lifetime. Hart, on the other hand, adapted to English habits which teach kindness in public exchanges (sometimes accompanied by hypocrisy and gossip behind the back). Living with Herbert Hart as teacher and mentor would have been an easier journey than living with Julius Stone. On one occasion, Hart unintentionally caused affront to Stone. He said that in Stone, English jurisprudence had at last found its Pound. Stone took this as a suggestion that he had copied his work from Pound and objected to the statement. But even Stone’s sympathetic biographer acknowledges that Hart had simply meant that Stone had managed to bring an understanding of sociological jurisprudence to the English scene.[28]

Although in earlier years, as ‘rivals’, Hart and Stone had shared a fragile relationship, in later times their association became less strained. When Hart came to Australia and New Zealand and met Stone in Sydney, he found him ‘thinner, nicer, less egocentric’.[29] Whether Julius Stone modified his assessment of Hart is unrecorded.

4.	Conclusions

By the test of citations in judicial and scholarly writings, Hart’s sparser texts out-perform today those of Stone in continuing influence. The latter died on 3 September 1985, after a long struggle with lung cancer which he faced with outstanding fortitude. Hart had a longer life, but the last years were full of gloom, melancholy, depression and self-criticism. In his eighties, Hart was subjected to electroconvulsive therapy, a treatment available for the disorders of depression at that time. He was confined for a short period to a mental hospital. Yet on his discharge he continued to write essays for the New York Review of Books, the last of them published in 1986. Hart was discouraged by his fading intellectual life but, in his last year, his emotional connections with his children were the source of most of his joys.

Hart was ultimately wheelchair bound, enveloped by the melancholy beauty of the late music of Schubert and Beethoven. He died in his sleep on 19 December 1992.

The passing of two such scholars would normally be privately mourned but go largely unremarked. Yet now we have Nicola Lacey’s outstanding book on the life of HLA Hart. For Australians, it provides a good companion to the earlier, briefer story by Leonie Star on the life of Julius Stone.

Although the perceptions that each of these highly individualistic writers had of law and its theories and operation were different, each knew, and taught, that a point is reached where law, as rules, runs out. The value of recording the lives of these men is that the subject of their fascinations is not one for lawyers only. Law is the essential lifeblood of a modern democracy. How it is found; what it means; how its ambiguities are resolved; why we obey it; when we should disobey it and with consequences — these are issues for citizens, not just lawyers, still less philosophers.

The world of the common law was lucky to find at the same moment two young Englishmen, of Jewish descent, who thought and wrote and argued on these subjects, sometimes with each other. They were both outsiders. Perhaps that gave them a capacity to stand beyond the circle and to look at the law derived from England more critically and without needless deference. These were precious qualities that they brought to their writings. If the clarity and comparative simplicity of Hart’s writing style ensures that his work endures with a continued impact throughout the world of our legal system, this is partly because he stayed in the northern hemisphere and partly because of the continuing fascination of analytical and linguistic jurisprudence wherever English law is taught and practised. For Australians, Stone was more important because he provided a precious alchemy that would enable us, after a long silence, to break the spell of the declaratory theory of the judicial function and to look for a better theory.

Each scholar was to some extent an alien to the common law. Yet each knew it well, with all of its foibles. Each could teach their theories from that viewpoint. Fortunate was Australia that Julius Stone devoted most of his professional life of writing and teaching in our midst. Fortunate is the whole common law world that Nicola Lacey has now written her tender, affectionate, insightful description of the personal and intellectual life of Herbert Hart.

Three centuries ago John Arbuthnot declared that biography was ‘one of the new terrors of death’. On this account Hart and Stone had no need for fear. They knew that, in all ages, ideas are the most enduring forces for change in the world. Stone and Hart. Hart and Stone. Each utilised to the full their great natural gifts of intelligence, perception and analysis. Whether they know it or not, every common lawyer is richer for the work of such scholars. Now we can seek to know both of them from the books that describe their lives and work. We can see the similarities. We can see the differences.

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[†] Derived from an address at a seminar on legal biography, Australian National University, Canberra, 17 December 2004. This review essay is part of a longer work that will be published later.

[*] Justice of the High Court of Australia.

[1] Nicola Lacey, A Life of H L A Hart — The Nightmare and the Noble Dream, OUP, Oxford, 2004, 422pp, ISBN 0–19–927497–5, RRP $69.95 (HB).

[2] Leonie Star, Julius Stone – An Intellectual Life, OUP & Sydney University Press, 1992, 300pp, ISBN 0–424–00174–8, RRP $60 (HB).

[3] Lacey, above n1 at 13.

[4] HLA Hart & Tony Honoré, Causation in the Law (1959).

[5] See for example, Chappel v Hart (1998) 195 CLR 232 at 243 [24] (McHugh J); at 270 [93.6] of my own reasons; at 283 [116] (Hayne J).

[6] Lacey, above n1 at 313.

[7] Julius Stone, The Province and Function of Law: Law as Logic, Justice and Social Control (1946).

[8] Julius Stone, Legal System and Lawyers’ Reasonings (1964).

[9] The debate between Hart and Devlin is described in Lacey, above n1 at 6–7 and 256–261. Hart’s lectures on ‘Law and Morals’ followed closely the argument in his Law, Liberty and Morality (1963). Hart also had famous debates with Professors Lon Fuller and Hans Kelsen, described in Lacey, above n1 at 197–202 and 252–253.

[10] Including his daughter-in-law, Margaret Stone, now a judge of the Federal Court of Australia and his grand-daughter Adrienne Stone, now a faculty member of the Australian National University.

[11] Jennifer Hart, Ask Me No More (1998).

[12] Compare Julius Stone, ‘Propensity Evidence in Trials of Unnatural Offences’ (1941) 15 ALJ 131. Nowhere in this article does Stone question or criticise the statutory ‘unnatural offences’. In this respect, he was a child of the Book of Leviticus. See ibid at Ch 18, 22, 20 and 23.

[13] Michael Kennedy, Mahler (2nd ed, 1990) at 2.

[14] Lacey, above n1 at 61.

[15] Lacey, above n1 at 111.

[16] Home Office, United Kingdom, Royal Commission into Homosexual Offences and Prostitution (1957).

[17] Patrick Devlin, Maccabean Lecture noted in Lacey, above n1 at 221.

[18] HLA Hart, ‘Immorality and Treason’ The Listener (30 July 1959) at 162.

[19] Lacey describes this above n1 at 221. She says that Hart was in later life to regret not publicly associating himself with the cause of homosexual law reform, as several of his colleagues did.

[20] HLA Hart, The Concept of Law (2nd ed, 1994).

[21] Thomas Nagel, ‘The Central Questions’ London Review of Books (3 February 2005) at 12.

[22] Star, above n2 at 189.

[23] Julius Stone, An Open Letter to the Right Hon Sir Isaac Isaacs PC GCMG on the 26th Anniversary of the Jewish National Home (1944).

[24] Lacey, above n1 at 345–346.

[25] Swearing in of Sir Owen Dixon as Chief Justice (1952) 85 CLR xi at xiv. See generally Philip Ayres, Owen Dixon: A Biography (2003) at 292. For differing views see John Dyson Heydon, ‘Judicial Activism and the Death of the Rule of Law’ (2003) 23 Aust Bar Rev 110; and a riposte by the author (2004) 24 Aust Bar Rev 219 based on Michael Kirby, Judicial Activism: Authority, Principle and Policy and the Judicial Method (2004). (Hamlyn Lectures, 2003).

[26] See eg, Julius Stone, ‘The Rule of Exclusion of Similar Fact Evidence: England’ (1993) 46 Harv LR at 954; Julius Stone, Precedent and Law: Dynamics of Common Law Growth (1985).

[27] Star, above n2 at 258.

[28] Star, above n2 at 159.

[29] Lacey, above n1 at 136.