HART ON THE INTERNAL ASPECT OF RULES

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1 HART ON THE INTERNAL ASPECT OF RULES John D. Hodson Introduction, Polycarp Ikuenobe THE CONTEMPORARY AMERICAN PHILOSOPHER John Hodson, examines what H. L. A. Hart means by the notion of internal aspect of rules and its role in his account of the nature of law and legal obligation. The notion of the internal aspect of a rule is important in Hart s theory of legal positivism because it is the basis on which he accounts for legal obligation. He wants to account for legal obligation on the basis of validity in a way that distinguishes it from moral obligation and efficacy. Hart also wants to avoid John Austin s position that legal obligation derives solely from the ability of a sovereign to use threat and force to demand obedience. Hart argues that legal obligation cannot be sustained solely on the basis of force, hence he relies on the notion of internal aspect of a rule. Hodson points out that this notion is not clear. He examines some of the features in Hart s use of the notion. Hart distinguishes between an internal aspect of a rule and habit of obedience, which for Austin is the basis for legal obligation. The idea of a habit as a basis for legal obligation, which Hart refers to as the predictive theory, suggests that one can make predictions regarding how people will behave and which valid laws will be enforced by courts. Internal aspect requires that a social rule exists, in that it demands certain behavior, is accepted as a common standard of behavior, is generally followed, is considered justified from a critical and reflective perspective and expressed in normative language as indicating what ought to be done, and is used as a basis for criticizing behaviors that deviate from it. Hodson distinguishes between two claims that Hart is making regarding the internal aspect of a rule: that a rule exists and demands certain behavior, and that such a rule is justifiably used to criticize those who deviate. To sharpen the idea of the internal aspect, Hart distinguishes between internal and external points of view on the one hand, and internal and external statements on the other. One adopts an external point of view if one is concerned with social rules as an observer who does not accept the rules and is not a participating member in the society; this person only observes the regularly of people s behavior. The internal point of view expresses the idea that there

2 HART ON THE INTERNAL ASPECT OF RULES is an internal aspect of the rule, and this view indicates that of someone who is a participating member and accepts the rule as a basis for regulating conduct and criticizing that of others. Hudson points out that this description is not clear: we do not know whether accepting the rule is a condition for being a member of the society or whether being a member of a group in which some people accept the existing rule is a condition for being an accepting member of the group. It is not clear whether it is individual acceptance or acceptance by some in the group that is necessary to have an internal aspect. Hart s contrast is that the external point of view, which is the view of the predictive theory of obligation, sees only how the rule functions in the society with respect to those who reject it. This view of obligation is problematic because it misses the unique perspective of how people and officials who belong to the group and accept the rule view the rule, and the role of the rule in their critical judgments. Hudson suggests that the internal point of view must refer to the fact that individuals in the group accept and use the rule. And Hart wants to explain legal obligation in terms of those who mutually share the attitude of acceptance and see their conduct and that of others in relation to the rule from such an internal point of view. Hart talks about the different social rules in a legal system: one such rule, the rule of recognition, is the criterion for determining what is a valid rule in the society, on the basis of which the duty of officials to apply the law and that of people to obey is demanded. Hart states that two different statements internal and external statements, which reflect the internal and external points of view could be made regarding such validity. Moreover, someone may make an internal statement about the validity of a law in the context in which the efficacy of the system is presupposed. Hudson points out that this characterization and contrast are misleading and do not help Hart to adequately make his point, which is that someone can make a statement about the validity of a law without saying anything about its efficacy. Hart s points are to specify the necessary conditions for the existence of a legal system, and to show that the existence of a legal system, validity, and legal obligation do not imply general obedience and efficacy. A law exists if it is valid, which implies that there is a legal system that has social rules including a criterion for validity. The validity of a law does not depend on its efficacy and general obedience, but the existence of social rules do depend on efficacy, general obedience, and acceptance. Hudson argues that Hart should not be misunderstood to be saying that every valid law must be generally obeyed for a legal system to exist. People only have to

3 HART ON THE INTERNAL ASPECT OF RULES generally recognize the existence of a rule that officials accept and use to determine valid laws. Officials voluntarily accept and use the rule because they think it is right a justified. Hudson rejects two of the necessary conditions that he claims Hart specifies for the existence of a legal system. These are that officials must accept the secondary rules, an idea which is equivalent to regarding the rules as justified, proper, and desirable, and criticize others for deviation. The first two conditions are not clear. There is more than one plausible sense of acceptance and a person may accept something without considering it justified. Hodson argues that the second condition is not necessary and provides a logically possible legal system that does not require the two conditions. Hudson concludes that Hart does not adequately establish many of his claims embedded in the internal aspect of a rule as necessary for the existence of a legal system. As you read Hodson, consider and reflect on the following questions: What does Hart mean by internal point of view and internal statements? How is the internal point of view different from the external point of view? Why is the internal point of view necessary to account for legal obligation? What are Hart s necessary conditions for the existence of a legal system? Which of Hart s conditions for the existence of a legal system does Hudson reject, and why? HL. A. Hart s The Concept of Law 1 has been recognized as perhaps the single most important contemporary contribution to analytical jurisprudence. Yet significant aspects of Hart s theory, such as the notion of law as the union of two fundamentally different types of rules, can be found in the earlier work of Hans Kelsen. One feature of Hart s theory which distinguishes it from that of Kelsen is Hart s claim that the rules of a legal system have an internal aspect. This internal aspect of rules and the internal attitude it requires are viewed by Hart as necessary features of legal rules and as such they play a vital role in his criticism of rule scepticism or legal realism. Yet a critical examination of this notion reveals, I think, that it is neither clear nor, as Hart presents it, acceptable. To show this, I shall consider Hart s presentation of the internal aspect of rules, attempting to point out the difficulties with it and to assess Hart s claims in light of these difficulties. Hart on the Internal Aspect of Rules, by John D. Hodson, reprinted from Archiv für Rechts und Sozial Philosophie, Vol. 62, No. 3, Copyright 1976 Franz Steiner Verlag GmbH.

4 HART ON THE INTERNAL ASPECT OF RULES Hart introduces the notion of an internal aspect of rules in the context of a discussion of the differences he sees between social rules and habits. In the case of habits, Hart claims that no member of the group in which the habit exists need think in any way about the behavior of any other member of the group i.e., about the general behavior. This is to be contrasted with what is required in order for a social rule to exist. According to Hart, if a social rule is to exist some at least must look upon the behaviour in question as a general standard to be followed by the group as a whole (p. 55). 2 Looking upon the rule as a standard to be followed by the group as a whole involves regarding the existence of the rule as a good reason for criticism of deviation from it and apparently also involves, on Hart s view, the actual criticism of those who do deviate from it: These views are manifested in the criticism of others and demands for conformity made upon others when deviation is actual or threatened, and in the acknowledgement of the legitimacy of such criticism and demands when received from others (p. 56). Hart claims that this internal aspect of rules is not a matter of the feelings of those subject to the rules. It is not a matter of feeling compelled to abide by the rules. Instead Hart claims that what is required is that there should be a critical reflective attitude to certain patterns of behaviour as a common standard, and that this should display itself in criticism (including self-criticism), demands for conformity, and in acknowledgements that such criticism and demands are justified, all of which find their characteristic expression in the normative terminology of ought, must, and should, right and wrong (p. 56). Here problems begin to surface. Hart writes as though he were making only one claim here, that in order for social rules to exist some members of th group must have the attitude he describes toward the rules. Yet surely Hart is making more than a single claim. He is saying, for one thing, that in order for social rules to exist, some members of the group must look upon a certain sort of behavior as a standard to be followed by the entire group. This, I take it, is to say that some people must see the rule as a rule which makes certain demands upon the behavior of members of the group. If no one saw the rule as any more than a mere description of the actual behavior of members of the group, no social rule of that sort would exist. Nor would a social rule exist if no one saw it as making demands on the behavior of others. If everyone who recognized the rule saw it as applying only to himself, it would not be a social rule. But this is not the only claim made in Hart s description of the internal aspect. He also claims that the internal aspect involves taking a certain atti-

5 HART ON THE INTERNAL ASPECT OF RULES tude toward violations of the rule. Violators are to be subjected to criticism, and this criticism is to be regarded as justified. In making this claim, Hart is apparently assuming that some people must regard the rules as making a justified and proper demand on behavior. If he were not making this assumption, his talk of criticism of deviation would be uncalled for. But this claim is distinct from the first. It is possible to recognize that a rule makes demands on behavior without regarding that rule as justified. So there are at least two distinguishable claims made here. I shall consider later whether Hart is correct in making both of them, but at this stage I wish merely to point out that they are distinguishable. In Chapter V Hart again brings up the internal aspect of rules, and at this point he draws the distinction in a somewhat different way. In this context, Hart uses the internal aspect of rules as part of his criticism of what he calls the predictive theory of obligation. According to this theory, a statement of obligation is a prediction of the likelihood that a certain sort of behavior will be met with critical reaction. Until we understand the inadequacy of this theory and the importance of his own, says Hart, we cannot properly understand the whole distinctive style of human thought, speech, and action which is involved in the existence of rules and which constitutes the normative structure of society (p. 86). This style is the style which is involved in the internal aspect of rules. This time Hart draws the internal/external distinction in this way: The external point of view, as Hart puts it here, is that of someone who is concerned with the rules... as an observer who does not himself accept them (p. 86). The internal point of view is that of someone concerned with the rules as a member of the group which accepts and uses them as guides to conduct (p. 86). This contrast may initially appear unexceptionable, but, in fact, it conceals some ambiguities. The external point of view is that of an observer who does not himself accept the rules. The contrasting point of view would then be that of someone who does himself accept the rules. But Hart s description is ambiguous. If one is a member of a society which has rule R, and in which some members of the society accept R and use it to guide their conduct, is one then the member of a group which accepts and uses R? Or is membership in such a group to be determined by whether or not the individual accepts and uses R? That is, is the group in question just the set of those individuals who do accept the rule and use it, or is the group the set of individuals who are members of a society which has the rule? Either of these is a possible description, but the latter says nothing about

6 HART ON THE INTERNAL ASPECT OF RULES whether or not the individual accepts the rules, and refers only to the acceptance of the rules by the group of which the individual is a member. The external point of view, Hart goes on to say, allows for at least two different concerns. One is that of the observer who refers to the way in which the group views it rules, i.e., he refers to the fact that they accept them and use them as guides to conduct. A second possible concern from the external point of view is that someone who does not refer to this view of the rules held by the group, but merely records the regularities of observable behaviour in which conformity with the rules partly consists and those further regularities, in the form of the hostile reaction, reproofs, or punishments, with which deviations from the rules are met (p. 87). This latter point of view Hart calls the extreme external point of view (p. 87). This point of view is one from which an observer will miss out a whole dimension of the social life of those whom he is watching (p. 87), viz., the dimension of following rules. This is essentially the point of view of the predictive theory and so the fault of this point of view the fact that it ignores the way in which the group views rules is also the fault of the predictive theory. Hart s criticism of the predictive theory thus depends on the importance of the internal point of view. Here Hart goes on to make a further point that reveals that he must have intended that the internal point of view be that of individuals who accept the rules, not that of a member of a group which accepts the rules. He claims that the external point of view may very nearly reproduce the way in which the rules function in the lives of certain members of the group, namely those who reject its rules and are only concerned with them when and because they judge that unpleasant consequences are likely to follow violation (p. 88). Since Hart here contrasts the point of view of one who rejects the rules with the internal point of view, even when such a person is a member of the society, consistency demands that the internal point of view be defined by reference to the individual s acceptance and use of the rules in question. The difference between the points of view is that obligation talk is required only by those who see their own and other person s conduct from the internal point of view (p. 88). So now we see that Hart must have meant the internal point of view as that of an individual who accepts and uses the rules. Hart concludes this discussion by pointing out that within a society there may be a tension between those who, on the one hand, accept and voluntarily co-operate in maintaining the rules, and so see their own and other person s behaviour in terms of the rules, and those who, on the other hand,

7 HART ON THE INTERNAL ASPECT OF RULES reject the rules and attend to them only from the external point of view as a sign of possible punishment (p. 88). This looks like a contrast between two groups of persons, both of which recognize that rules exist, one of which accepts the rules and one of which rejects them. But Hart says two sentences later that all our criticism of the predictive theory of obligation may be best summarized as the accusation that (it defines out of existence) the internal aspect of obligatory rules (p. 88). But the problem with the predictive theory was that it fails to recognize the existence of social rules at all and thus misses out on a whole dimension of social life. But this is not the external point of view, as that is described in the first quotation of this paragraph; the external point of view does not ignore the rules completely, but recognizes their existence while rejecting them. Thus, the predictive theory takes not the external point of view as just described, but the extreme external point of view. Hart s contrast is again misleading. Such problems with Hart have been noticed by Frederick Siegler in his article Hart on Rules of Obligation. 3 As Siegler points out, Hart needs (at least) two separate distinctions: (A) between simply regularities in behaviour and rule-following behaviour, and (B) between recognizing that rules are in operation and accepting the rules. 4 The two distinctions provide the basis for two criticisms of the predictive theory. Using the first distinction, it can be charged that the predictive theory fails to account for rules which do play a role in a legal system. 5 Using the second, it can be charged that the predictive theory cannot account for the use of certain language characteristic of those who accept the rules. It is only those who take this point of view who will need to say such things as I have an obligation or you have an obligation. Such talk implies the acceptance of a rule. So Hart s distinction between internal and external points of view hides at least two distinctions. These two distinctions serve to clarify the two separate claims we say in Hart s earlier discussion of the internal aspect of rules (pp ), where he claims that this involves recognizing rules as making demands on behavior and regarding the demands made by these rules as justified and proper. Keeping in mind the fact that Hart conflates these two distinctions, let us now go on to consider the further claims that Hart makes based on his views about the internal aspects of rules. Hart makes use of the internal aspect of rules primarily in two other contexts. One is his discussion of the validity of a law; the other is his discussion of the existence of a legal system. I shall first consider his discussion of validity. In any complex social setting, Hart claims, there is a rule of

8 HART ON THE INTERNAL ASPECT OF RULES recognition which provides authoritative criteria for identifying primary rules of obligation (p. 97). The internal point of view is related by Hart to rules of recognition in this way: The use of unstated rules of recognition, by courts and others, in identifying particular rules of the system is characteristic of the internal point of view (p. 99). Those who take the internal point of view have an attitude of shared acceptance of rules (p. 99), while someone who takes the external point of view merely records the fact that a social group accepts such rules does not himself accept them (p. 99). The distinction in use here is clearly not that between an external observer who does not even recognize the existence of rules and those who do recognize that rulefollowing behavior is involved, for both parties to Hart s contrast here acknowledge that rules are in operation. Now we are introduced to a new contrast, that between an internal and an external statement. An internal statement manifests the internal point of view and is naturally used by one who, accepting the rule of recognition and without stating the fact that it is accepted, applies the rule in recognizing some particular rule of the system as valid (p. 99). An external statement is the natural language of an external observer of the system who, without himself accepting its rule of recognition, states the fact that others accept it (p. 99). But these characterizations of the two types of statement are unsatisfactory because they, like the characterizations of the internal and external points of view, conflate two different distinctions, although in this case it is not the same two distinctions. Here we have, on the one hand, the second of the two distinctions Siegler pointed out, that between recognizing that rules are in operation and accepting the rules, and, on the other hand, a distinction between a statement about a particular rule which satisfies a rule of recognition and a statement about the rule of recognition itself. This distinction, as Hart states it, is misleading, because it is surely possible to speak of a legal rule as valid, as meeting the criteria of a rule of recognition, without actually accepting that rule oneself. In other words, surely it is possible to speak of the validity of particular laws while speaking from the external point of view, i.e., that of an observer who records the attitudes toward rules of members of the group which accepts them. Similarly, one who takes the internal point of view, i.e., one who accepts the rules as proper guides to conduct, could surely state that the rule of recognition is accepted by the group of which he is a part. Hart s way of drawing the distinction, which ties together acceptance of rules and the sort of rule under discussion, ignores the possibility of these other combinations of point of view and type of rule under discussion.

9 HART ON THE INTERNAL ASPECT OF RULES Hart s view would seem to have the consequence that these other combinations are not even possible, or at least that there is something unusual about them. The natural expression of the internal point of view, according to Hart, is of the form It is the law that... (p. 99), while the natural expression of the external point of view is of the form In England they recognize as law... whatever the Queen in Parliament enacts... (p. 99). But what would Hart say about the external observer who does not accept the rules but describes their operation? Is it an unnatural expression for him to say In England it is the law that...? Or is it unnatural for a loyal Englishman in the United States to say In England we recognize as law... whatever the Queen in Parliament enacts...? Hart s use of the internal/external distinction is discussing validity and the rule of recognition is surely unfortunate because it ignores these possibilities. Hart could have made his point without this misleading contrast. He is concerned to point out that sometimes statements about particular laws occur in a context in which the general efficacy of a legal system is understood and accepted implicitly. Such statements may be made by someone who is a member of the group to which the legal system applies and who accepts it. But they may also be made by persons who are not members of the group which accepts the rules. What Hart seems to be trying to say is that one may make statements to the effect that a particular law is valid without stating that, and while taking it as understood that, the rule of recognition is, as a matter of fact, generally accepted. This allows for a distinction between the validity of any particular rule and its efficacy (p. 100), but the use of the internal/external contrast is not helpful here. Hart also uses the contrast of internal and external statements in his criticism of the common theory that to assert the validity of a rule is to predict that it will be enforced by courts or some other official action taken (p. 101). Hart points out that a judge who states that a rule is valid is not predicting his own or other official s actions but is making an internal statement recognizing that the rule satisfies the tests for identifying what is to count as law in his court (p. 102). But surely an external observer could also recognize that a rule satisfies the tests for identifying what is to count as law in his court (p. 102). But surely an external observer could also recognize that a rule satisfies the tests for its validity. Nothing about the position of the observer who records rule-following behavior prevents him from making such determinations. As with his criticism of the predictive theory of obligation, Hart s important point seems to be that this predictive theory of validity

10 HART ON THE INTERNAL ASPECT OF RULES fails to account for the role of rules in such judgments. Again the introduction of the notion of an internal statement, with its demands concerning the sort of rule in question and the approving attitudes of those making the judgments, seems to contribute only confusion. The internal/external distinction again comes up in Hart s discussion of the existence of rules, both particular rules and legal systems. With regard to the existence of particular rules or laws, it may be worthwhile to set out Hart s position, since he has been misinterpreted on this point. The misinterpretation of Hart stems from the following passage: To say that at a given time there is a rule requiring judges to accept as law Acts of Parliament or Acts of Congress entails first, that there is general compliance with this requirement and that deviation or repudiation on the part of individual judges is rare; secondly, that when or if it occurs it is or would be treated by a preponderant majority as a subject of serious criticism and as wrong, even though the result of the consequent decision in a particular case cannot, because of the rule as to the finality of decisions, be counteracted except by legislation which concedes its validity though not its correctness. It is logically possible that human beings might break all their promises: at first, perhaps, with the sense that this was the wrong thing to do, and then with no such sense. Then the rule which makes it obligatory to keep promises would cease to exist (pp ). J. Kemp, in his review of The Concept of Law, 6 and A. D. Woozley, in his article The Existence of Rules, 7 take this passage to mean that Hart thinks that for any legal rule to exist it must be generally obeyed. Kemp says that Hart seems to regard it as a necessary condition of the existence of any legal or moral rule that it should be generally observed.... But a law can remain on the statute book long after people have ceased to respect, or officials to enforce, it; the rule has become a dead letter, but it would not be incorrect to say that there is still such a rule. 8 Woozley, who criticizes Kemp on some points, follows him in this interpretation of Hart: Hart seems to think that there is a rule entails habitual conformity. 9 Both cite the passage from The Concept of Law quoted in the previous paragraph as their evidence. But this is a misinterpretation of Hart. Consider first the fact that Hart himself draws a distinction between the validity of a legal rule and its efficacy: there is no necessary connexion between the validity of any particular rule and its efficacy (p. 100). Even more explicitly, Hart claims that a subordinate rule of a system may be valid and in that sense exist even if it is generally disregarded (p. 107,

11 HART ON THE INTERNAL ASPECT OF RULES emphasis added). So Hart clearly recognizes the possibility that a legal rule may exist even if it is not generally obeyed. He does make the distinction between there is a rule... and as a rule... expressions. But then there is a passage cited by Kemp and Woozley; what are we to make of it? It is of course possible that Hart is simply inconsistent. But this would not be the most generous interpretation in this case, nor would it, in my opinion, be the most accurate. Notice that Hart, in the troublesome passage, does not say that there is a rule entails... ; he does say that there is a rule requiring judges to accept as law Acts of Parliament or Acts of Congress entails.... Hart is talking about a rule of recognition. The quoted passage occurs in the context of a discussion of what criteria judges must use in determining what to accept as law. This is determined by a rule of recognition in Hart s theory. Moreover, the rule in the passage that requiring judges to accept as law Acts of Parliament was used repeatedly by Hart as an example of a rule of recognition (e.g., pp. 100, 101, 103, 104). I conclude that the most reasonable interpretation of this troublesome passage is that Hart is there giving necessary conditions for the existence of a rule of recognition, not just any legal rule. Kemp and Woozley are therefore mistaken in their interpretation of Hart; he does not, in fact, hold the view for which they criticize him. Kemp and Woozley also disagree with Hart about what he says on promising. He claims that if everyone broke all their promises, eventually the rule which makes it obligatory to keep promises would cease to exist (p. 143). Kemp and Woozley both deny this. 10 They claim that people could have obligations to keep promises even if no one ever did so. This is probably true. At any rate I do not care to dispute it. The problem, though, is that Hart is unclear. He may mean that if everyone broke all their promises the social rule requiring the keeping of promises would cease to exist. If this is what he means, then he is right. The rule that one ought to keep his promises would not continue to be a rule of a particular group if no one in that group ever followed it. It could still be the case that, morally speaking, they ought to keep their promises, 11 but this rule would not exist as a social rule in that society. Hart thus does distinguish between the criteria for existence of particular subordinate legal rules and the criteria for the existence of other sorts of social rules and the legal rule of recognition. The former exist if they are valid, and thus their existence is dependent upon the existence of the legal system in which they are valid, but not upon general obedience to them. The latter exist

12 HART ON THE INTERNAL ASPECT OF RULES only if they are generally obeyed. Since the criteria here seem to be much the same for social rules as for the rule of recognition of a legal system, we may approach both by a consideration of the existence of a legal system. [W]hat is crucial for the existence of a legal system, according to Hart, is that there should be a unified or shared official acceptance of the rule of recognition containing the system s criteria of validity (p. 111). It is this, and not the notion of general obedience alone, that is needed to account for the existence of a legal system. The notion of general obedience is inadequate because obeying a rule... need involve no thought on the part of the person obeying that what he does is the right thing both for himself and for others to do: he need have no view of what he does as a fulfillment of a standard of behaviour for others of the social group (p. 112). All this is possible for the ordinary citizen, says Hart, but now we are given the necessary condition: This merely personal concern with the rules, which is all the ordinary citizen may have in obeying them, cannot characterize the attitude of the courts to the rules with which they operate as courts (p. 112). The existence of a legal system requires that the courts regard their system s rules of recognition from the internal point of view as a public, common standard of correct judicial decision, and not as something which each judge merely obeys for his part only (p. 112). This means that there are two minimum conditions necessary and sufficient for the existence of a legal system. On the one hand those rules of behaviour which are valid according to the system s ultimate criteria of validity must be generally obeyed, and, on the other hand, its rules of recognition specifying the criteria of legal validity and its rules of change and adjudication must be effectively accepted as common public standards of official behaviour by its officials (p. 113). Hart s statement of the first condition is unfortunate since it may be read as a claim that each and every valid rule must be generally obeyed in order for the system to exist. I have already discussed this in connection with the existence of particular laws; with respect to the existence of legal systems, such a claim is equally unacceptable. Taken literally, it would have the consequence that many, perhaps all, existing legal systems do not exist. For it seems likely that there could be, in any legal system, 12 a valid law that is not generally obeyed. Hart must have meant that, in general, valid laws of the system are generally obeyed, not that each and every law is generally obeyed. The second condition raises more serious questions. The first could be satisfied if each citizen merely obeys each for his part only and from any motive whatever (p. 113). But this is not enough for the second condition.

13 HART ON THE INTERNAL ASPECT OF RULES The officials may not obey each for his part only and apparently are restricted in their motives for obedience. Now this might all be quite unexceptionable had Hart been describing typical official attitudes. But he is not. Hart regards this as logically a necessary condition of our ability to speak of the existence of a single legal system (pp , emphasis added). But surely this is false. The problem here is that Hart is again including more than one claim in the internal point of view he requires of officials. His conflation of distinguishable claims leads him to miss the possibility of situations that would support a different conclusion. What are the claims that Hart is conflating? First, we have the two distinctions pointed out by Siegler to consider. Hart does not seem to make use of the external point of view as one which completely ignores the existence of rules. Those who fail to take the internal point of view are still looking at the rules as making demands on them, that is, as rules; they just do not accept the rules. So Hart is apparently making use of the distinction between recognizing that rules are in operation and accepting the rules. The officials, apparently, must accept the rules, while the ordinary citizen may merely recognize their existence. Now what is involved in accepting the rules for an official? There seem to be two claims made here. The official must not obey for his part only, and he cannot obey from just any motive whatever. To not obey for one s own part only seems to mean that the official must evaluate others behavior by the rules as well as his own; the official must regard the secondary rules as common standards of official behaviour and appraise critically their own and each other s deviations as lapses (p. 113). But even the requirement made in this quotation includes two distinguishable claims: one, that the officials regard the rules as standards for all officials, and, two, that the officials criticize deviation from the rules. These are separable claims because one can recognize that the rules apply to other officials without criticizing their deviations. What about the motive from which the officials obey the rules? Hart excludes obedience from fear of consequences of nonobedience. Apparently Hart thinks that the officials must obey because they choose (without duress?) to do so. The acceptance of the rules is to be voluntary (p. 197). This presumably means that those who accept the rules do so because they believe he rules to be right, justified, correct, or some such thing. They would choose to obey them even if no sanction were attached.

14 HART ON THE INTERNAL ASPECT OF RULES Hart thus makes several claims about the attitude of officials toward the rules. This attitude might be summarily characterized in the following way: In order for a legal system to exist, the officials of the system must: 1. recognize the secondary rules of the system as rules; 2. accept the secondary rules; 3. obey them voluntarily (not from fear of punishment); 4. regard the rules as applicable to the behavior of other officials; 5. appraise the official behavior of all officials by the rules; 6. criticize deviations from them; 7. regard the rules as justified, proper, desirable. There is some overlap in these requirements. I include them all because they are all mentioned by Hart, who, as I have tried to show, regards all of them as logically necessary for the existence of a legal system. I shall argue that Hart is mistaken with respect to all but two of these conditions. Condition (1) appears to be uncontroversial, at least if Hart is right in his general analysis of the concept of law as consisting of rules. Since I think such an analysis is generally correct, that claim will not be challenged here. The rules, then, must be recognized as such by some in order for a system of rules to function as such. No other conclusion seems possible. The first problem with (2) is knowing exactly what it means. Hart seems to take it as meaning that the officials believe the rules to be justified, right, good, i.e., Hart takes it as equivalent to (7). But it seems that one could speak of someone as accepting a rule without regarding it as right and desirable. The so-called voter s paradox provides an example. Jones, say, votes for A but the majority of voters choose B, so that B becomes the law. But Jones voted for A because he believed it to be the desirable course of action, and he regards B as undesirable, unjustifiable, and wrong. Nevertheless, Jones may accept B since it is the majority s preference. But this does not entail that Jones now regard B as desirable; he may still think it is objectionable even while he accepts it. Perhaps Jones s acceptance of B here is equivalent to (1), mere recognition. But it is not a misuse of the word accepts to say that Jones accepts B. Hart may take acceptance in the sense of (7), but care must be taken that no equivocation is made with this other sense. Hart, I think, fails to exercise the requisite care. Condition (4) is simply the recognition that the rules make demands not only on oneself, but on others as well.

15 HART ON THE INTERNAL ASPECT OF RULES Condition (5) may be ambiguous. In its weaker sense, it might mean that the officials must simply determine for themselves whether or not other s official behavior accords with the rules. in a second sense, it may mean that officials must make open appraisals of other s official behavior, i.e., in this sense it is equivalent to (6). I shall therefore take (5) in its weaker sense. Condition (6) appears to be clear as it stands, and so do (3) and (7). I should like to show that only the first and the fourth of these are logically necessary for the existence of a legal system. I shall attempt to do this by providing a logically possible example of a legal system in which the other conditions are not met. Consider the situation in Outlandia. Outlandia is ruled by an absolute monarch named Leviathan, who has ruled successfully for many years and has maintained his rule by sheer terror. The secret of Leviathan s success is this. In the brains of all the officials of Outlandia are implanted electrodes which, when activated by Leviathan, stimulate a portion of the brain, resulting in extreme pain for the person being stimulated. The pain so caused is so intense that any normal person will do virtually anything to avoid it. Leviathan uses this system to ensure that his officials obey the rules that define their official duties. Through an elaborate electronic surveillance system, Leviathan is able to monitor the behavior of all of his officials and if any of them disobeys, his brain is stimulated, causing intense pain. Now Leviathan has enacted many primary rules creating duties for his subjects and he has set up a system of secondary rules which, among other things, create official positions. There is even an ultimate rule of recognition: Whatever rules are enacted by Leviathan are law. Thus Leviathan s system consists of a union of primary and secondary rules. We may also suppose that the problems that make the existence of a legal system questionable in some totalitarian societies are absent here. Leviathan s laws may meet all the procedural requirements that might be placed on rules and his application of them need not be unfair. The officials of Outlandia obey Leviathan s rules out of fear and fear alone. They have all been given a taste of the pain Leviathan can inflict on them, and it is so exquisite that the guiding concern of each is to avoid ever being subjected to it again. This concern is so consuming that the officials give no thought at all to whether the rules are justified or desirable. They simply do what the rules require of them and are concerned only with avoiding the punishment.

16 HART ON THE INTERNAL ASPECT OF RULES Have we any reason to deny that a legal system exists in Outlandia? It seems that we do not. The only differences between the situation in Outlandia and that of some societies existing today or in the past are the technology through which Leviathan maintains his rule and the psychology of Outlandia s officials. As for the technology, we need only suppose that actually existing techniques are applied to all of Outlandia s officials. The only additional supposition needed is that all of Outlandia s officials are so constituted psychologically that the desire to avoid Leviathan s punishment dominates their concerns. While this may not be true of all persons, we may suppose that only such persons are allowed by Leviathan to become officials. Thus, since this system consists of a union of primary and secondary rules, and because the changes necessary to transform some actual legal systems into the Outlandian system are logically possible, I conclude that it is logically possible that a legal system such as that in Outlandia could exist. Let us now consider Hart s conditions for the existence of a legal system in the light of the Outlandian legal system. The first of Hart s necessary conditions, (1), is met. The officials do recognize the existence of the rules. Doing so is necessary to avoid Leviathan s punishment. So Hart seems to be right with respect to this condition. As for condition (2) and its equivalent, (7), there seems to be no reason to suppose that they must be present. The officials need not believe that the rules are justified or desirable. Indeed, in Outlandia, the officials do not even care; their only concern is avoiding the pain. Thus, the question of the desirability of the rules does not occur to them. This, of course, also rules out condition (3) for Outlandia s officials. They do not even give a thought to whether or not they would obey voluntarily. They do obey from fear. As for (4), it appears that this condition may indeed be necessary for the existence of a legal system. Suppose the officials did not see the rules as applying to the behavior of others but only to their own behavior. In such a situation, the behavior of everyone could be indistinguishable from the behavior that would occur if the rules were thought of as applying to others. The society might function in the same way in each case. But if no one saw the rules as applying to anyone but himself, it seems doubtful that we would speak of a legal system as existing in such a society. Or if we were concerned with a single rule and no one saw the rule as applying to anyone but himself, it seems doubtful that we would speak of the rule as a social rule of the society. This is because the notion of a social rule or a legal system seems to imply that there is some connection with a group, not just a set of individu-

17 HART ON THE INTERNAL ASPECT OF RULES als. There is some unifying element that would be lacking if each person saw the the rules as making demands only on himself and no others. For example, suppose that everyone in a society believed that God had appeared to him in a vision and commanded him to do A. That is, God has appeared to Jones and said Jones, I want you to do A and has also appeared to everyone else, addressing them personally and commanding them to do A. Now even though everyone might actually do A and see himself as following a rule requiring the doing of A, that rule would not be a rule of the society. 13 It might be a rule of the society if God were believed to have appeared in the sky and said Citizens of the society, I want you all to do A. Then, individuals would see the rule as applying to others. But under the conditions described in the former case, it does seem odd to say that the rule Do A is a social rule. Thus I conclude that Hart may well be correct on this point. Unfortunately, he failed to distinguish it from the other claims. In the case of (5), it is possible that the officials would assess each other s behavior to determine whether it accords with the rules, but they need not do so. And since their consuming concern is the avoidance of punishment, they may very well not do so. So it looks like the need for appraisal of other s behavior is not present here. Condition (6) is surely not necessary either. The officials might well admire someone with the courage to risk receiving Leviathan s punishment. (6) would only be necessary if there were a rule requiring the officials to be critical of other official s deviations. While such a rule could exist, it need not, and so (6) is not necessary. If these considerations are correct, it is possible for there to exist a legal system without many of the characteristics Hart believes to be necessary. But this seems too easy. How could Hart deny the logical possibility of such a situation? He seldom gives arguments for these claims; his usual tactic with respect to them is the mere assertion of his position. However, he does provide something like an argument at one point: If only some judges acted for their part only on the footing that what the Queen in Parliament enacts is law, and made no criticisms of those who did not respect this rule of recognition, the characteristic unity and continuity of a legal system would have disappeared. For this depends on the acceptance, at this crucial point, of common standards of legal validity. In the interval between these vagaries of judicial behaviour and the chaos which would ultimately ensue when the ordinary man was faced with contrary judicial orders, we would be at loss to describe the situation (p. 113).

18 HART ON THE INTERNAL ASPECT OF RULES There are at least three problems with this argument. First, Hart is worried about what will happen if officials do not respect the rule of recognition, but he does not consider the possibility that all the officials might always respect it. Surely it is a logical possibility that no deviations from the rules by officials occur. And if this were the case, the consequences Hart points out would not occur. The second problem has to do with Hart s concern for the lack of common standards and the conflicting demands that would result. Here Hart is assuming that common standards can be maintained only through mutual criticism of deviation. This is not the case. It is possible that common standards could be maintained through, say, the fear of punishment for deviation by Leviathan. This is just as possible as it is possible for the ordinary citizen to obey from fear of punishment, and Hart recognizes this possibility. The third problem centers around the phrase the acceptance of common standards of legal validity. Hart claims that the officials must accept such common standards. There is a sense in which this is true. It is true in the sense in which it is equivalent to the conjunction of conditions (1) and (4). But Hart seems to mean by this phrase not just (1) and (4), but at least (7) as well, and probably also (3), (5), and (6). In other words, Hart includes all of these claims in one phrase, and then because his claim is true in one or two senses he concludes that it is true in every sense. He is able to do this because he does not keep them separate. But this is simply the fallacy of equivocation. The action of Leviathan in the example used here does not make Hart s case any stronger. With regard to (2) and (7), Leviathan need not regard his rules as desirable, except perhaps insofar as they promote his own interests. But this is not what Hart has in mind with these conditions. Hart takes them in some moral sense. The rules are to be believed to be morally right, not just for one s self-interest. Leviathan may be quite aware of the lack of desirability for others of his reign. He may simply not care. If this were the case, he would not regard the rules of justified in the sense Hart requires. Thus (2) and (7) are not required of Leviathan. Nor is (3). For there may not even be any rules which make demands on Leviathan himself. Conditions (5) and (6) might be regarded as being true of Leviathan. He evaluates officials behaviour by reference to the rules, and he punishes their deviations. But is even this logically necessary for the existence of a legal system? Is it not logically possible that there could exist a legal system in which all of the officials believed there was someone like Leviathan, but in