In his contribution to an academic event described as “Serious Fun: A conference with & around Schlegel!” Charles Barzun manages to meet all three expectations. Entitled The Tale of Two Harts; A Schlegelian Dialectic, Barzun’s article in the 2021 Buffalo Law Review delivers a number of serious reflections, combines them with some appropriate hilarity, and turns to the event’s honorand as an authoritative guide.
The serious stuff encompasses a comparative study of the influences of the two Harts (Henry and Herbert), an inquiry into the impact of prevailing intellectual culture on scholarship and how it is received, and an appraisal of disciplines (legal and other). It extends to a radical suggestion for legal education, observations on the CLS movement and legal historians, and constructing an academic profile. The fun is two-edged. Ultimately an invitation to have fun in one’s academic inquiries, it turns at times to poking fun at those who take themselves too seriously in their scholarly endeavours. That can easily be turned back as an injunction not to take oneself too seriously. Here too the honorand is taken to provide helpful guidance on striking the right balance.
The appeal of this article lies in the stimulating variety of topics covered and the way in which it weaves them together. The central idea to which much of the discussion returns is the “Essential Dilemma”. Barzun explains this as the problem of reconciling our “subjective” common-sense view of the world with an “objective” scientific view (P. 21). He considers that both Harts grapple with this dilemma. On one level, Henry Hart in The Legal Process is found to be pushing the objective scientific side in regarding “law as a ‘prudential’ or ‘judgmatical’ science” (P. 26), while Herbert Hart in The Concept of Law appears to be favouring the subjective side in advancing the “internal point of view” of the law (Pp. 15-16, 25).
Barzun’s analysis is, however, more subtle in two respects. First, he reveals that the philosophical approach adopted by each of the two Harts attempts not to resolve but to overcome the dilemma. Herbert’s ordinary language philosophy “dissolves” the Essential Dilemma by a careful explication of linguistic usage (Pp. 22-23). Henry’s pragmatism, on the other hand, embraces both horns of the dilemma by insisting that (objective) theoretical reasoning is “driven by [subjective] practical concerns”, which require an individual “decision about what to believe or what to do” (P. 23). So, it appears, “the dilemma just reflects a linguistic confusion, so neither horn need be (or ought to be) chosen.” Alternatively, “the dilemma is inescapable and yet irresolvable, so that, in some sense, both must be chosen.” (Pp. 23-24.)
Yet, secondly, he points out that neither attempt to dispose of the dilemma is credible, and this leads to its simply resurfacing as a conflict between “a theoretical problem about what to believe there is in the world or…a practical problem about what to do”. (P. 25.) Irrespective of how the dilemma is portrayed, the diagnosis that the dilemma has not gone away is convincing, as is Barzun’s insistence on the conflicting approaches adopted towards it by the two Harts. This brings us to another major theme developed in the article, the impact of a prevailing intellectual culture.
Barzun suggests that Herbert’s emphasis on an internal legal point of view became dominant and affected the reception of Henry’s understanding of law (Pp. 16-17), so as to lose sight of Henry’s ambition to provide “an ‘Olympian’ – one might even say a philosophical – perspective on law” (P. 18); and his insistence on treating law as a prudential science. (Pp. 26, 31.) This provokes Barzun to turn the tables and imagine how Herbert’s approach might have been received if it had been subjected to a prevailing view based on Henry’s priorities. (Pp. 20, 26.)
Having adopted Henry’s insistence on examining law’s capacity to provide practical guidance, the result of Barzun’s thought experiment is to conclude that Herbert’s work is shown to be “a work of profound ambivalence as to the power of law to compel obedience.” (P. 26.) In particular, Herbert is incapable of producing a sound account of legal obligation in normative terms. (Pp. 27-28.) And this is reinforced by Herbert’s own private doubts expressed in his notebooks. (P. 28.) However, Henry, judged by his own lights, fares little better, failing in his efforts “to accommodate both scientific and moral knowledge.” (P. 28.) Nevertheless, in Barzun’s judgement, Henry comes off the better for openly dealing with the problem, even to the point of making it integral to his pragmatist philosophy. (Pp. 28-29.)
At this point in the article, Barzun turns to Schlegel, and, in a nice vindication of his dominant intellectual culture thesis, Barzun illustrates how Schlegel’s viewpoint could be made compatible with Henry’s, despite the former’s recorded distaste for it. (Pp. 31-34, 41-42.) Barzun’s loose description for the culture he would prefer to dominate is humanist-pragmatist. (P. 42.) It is explained more through applications to the Essential Dilemma, enhanced by resources drawn from Schlegel. This expands the scope of the article to cover the nature of disciplines, and particularly the discipline of law (Pp. 29-33, 39); a reflection on what a good legal education might look like (Pp. 32-36); asides on the limitations of CLS scholarship (Pp. 35-36, 38-39); and a confrontation of the role of historians in legal history (Pp. 36-38). This opens up a broader profile of the academic as producing perspectives that are “partial and potentially distorted” while prone to mundane objectives in making a living (P. 38); yet capable of enjoying a kind of integrity within the “craft” of a discipline (P. 39), subject to admitting that academic pursuits “are all simultaneously decisions about what to do and what to believe.” (P. 40.)
From the pragmatist perspective he espouses, Barzun considers “the Essential Dilemma is just part of the human condition” but, as such, an opportunity for “productive and creative thought.” (P. 35.) However, confronting it in this way, according to Schlegel, can be disturbing for those who do, due to the dissonance between “deep moral convictions” and “equally deep doubts as to how they could ever rationally justify those convictions.” (Pp. 35-36.) Furthermore, any creative critique, given the implicit limitations on knowledge, is at best tentative: “the ground from which one launches the attack is always vulnerable to crumbling underneath.” (P. 38.)
So where is the fun in that? Clearly from the response of John Henry Schlegel at the same event, it lies in having the freedom to think in ways that might otherwise be prohibited by authorities with an interest in keeping established ways of thought unchallenged. Still, that might raise a secondary dilemma for those who have thus overcome the Great Dilemma. How can we be sure that our practice of this freedom of thought is creative and fruitful for others, rather than an exercise in mere self-indulgence? After benefitting from Barzun’s extensive discussion of the first dilemma in this article, it would be unfair to expect anything more on the second – but to regard that as a subject for further work might not be considered incompatible with the approach taken in the present article.
