To Hart, law appears as a system of rules. Hart explains that when an accepted rule exists, the regular pattern of conforming behavior is accompanied by an ‘internal’ aspect. People regard the rule from an internal point of view’ treating it as a basis for evaluation and criticism of action. To elaborate on this further, Hart distinguishes ‘convergent habitual behavior’ from ‘rule prompted behavior.’
In following a habit such as in the example favored by the theorist MacCormick, where most people go to the cinema on a Saturday night, this regular conduct does not demonstrate that there is an accepted rule that one ought to go to the cinema on a Saturday night. There can be no criticism for a failure to maintain a habit.
When an accepted ‘rule’ is followed, such as that motorists should stop when approaching a red light, there exists the further feature of the subjects possessing an ‘internal point of view’. That is, the perspective of those living ‘internally’ to the legal system and applying its rules. This is the internal aspect and such people will display a ‘critical reflective attitude’ towards the maintenance of the rule which is to be looked to as a standard by which behavior can be assessed and deviance therefrom criticized. Legal rules are then distinguished from social rules by the existence of the “rule of recognition” through which the laws of a particular legal system are identified.
In the context of law, the parallel runs like this: It is necessary to approach rules from the vantage point of someone within the society and not that of a Martian who simply observes behavior. A Martian, ignorant of the concept of law, possesses sufficient understanding to
make a comment such as “law is that which is posited by a sovereign.” This is a straightforward matter of observation, but the alien would not be capturing the true meaning of law as we (or rather as Hart believes we should) understand it. When we as people living internally
to a legal system, use the word law, we have in mind a far more complex picture, involving say, Hart’s union of primary and secondary rules. This is something which the alien lacks the experience and understanding to perceive.
The problem for the reader of Hart’s Concept of Law, is that Hart chooses not to describe in detail the exact nature of the ‘internal aspect’. He does at face value though appear to have destroyed the command theory and differentiated between the situation of the gunman and that of rules containing an internal dimension which render the rules obligatory.
However, as will now be illustrated, Hart’s approach has been the subject of much debate with some critics questioning whether or not Hart has even improved on Austin. The basis for this is that a closer examination of Hart reveals that while he has sought to offer an account of law that is something more than the gunman situation writ large, his argument consistently asserts that legal obligation is independent of any moral obligations. It is this attempt to steer a middle course between the command theory as propounded by the likes of Austin and Bentham, and natural law theory that has caused some to argue that Hart’s account of the law is in fact but a variation of the ‘orders backed by threats’ analysis. In order to grasp this, it is
necessary to delve deeper into Hart’s account of law.
According to Hart, a legal system can be said to exist where two conditions are present. First, officials must accept and apply a basic rule of recognition. ‘Accept,’ in the sense that they should regard it from an internal point of view, i.e. as the standard that needs to be complied with. Secondly, the populace at large must generally comply with primary rule though there is no need to ‘accept’ the primary rules or a rule of recognition: only the officials really need to
adopt this internal point of view. As Hart explains, ‘The law which he obeys is something which he knows of only as the law. He may obey it for a variety of reasons and be aware of the general likely consequences of disobedience so long as the laws which are valid by the system’s test of validity are obeyed by the bulk of the population this is surely all the evidence we need’Hart then goes on to stress that ‘the rules of recognition must be effectively accepted as common
public standards by its officials.’ The officials are where the ‘internal aspect’ is crucial.
Now, we must understand why Hart develops this argument. It is plain that he is keen in his role as a positivist, to develop the rule of recognition to provide for a body of ascertainable rules that do not require a reference to empirical facts or moral judgements. For Hart, the separation of law and morality is essential to law’s basic function. Moral value may be relevant to legal validity depending on the context of the particular rule but it is not a necessary
connection flowing from the concept of law itself3. This desire to avoid bringing morality into play is what gives room for criticism.
To develop this criticism of Hart further, it is useful to refer to the arguments of Raz. Raz criticizes Hart’s Practice Theory of Rules4. In order to come to terms with Raz’s critique, we must briefly analyze the reasoning which leads him to his conclusion. Raz begins from the premise that rules are reasons for action. ‘The fact that rules are normally stated by using normative terms indicates that they are operative reasons.5’ Thus, when I say “you ought to x
because of the rule y”, I am asserting a reason for action. The problem that Hart amongst others seeks to respond to is the differentiating of these rules from other reasons for action. The
various attempts at doing so are describes as either content dependent or content independent explanations. While the former type emphasizes factors from within such as the nature of the subjects of the rule or the strength of the rule, the latter look outside of the rule itself to other factors such as where the rule emanates from. Hence the command theory is content-independent describing rules as posited by the sovereign. Hart’s account is another example, in his case the
rules are based on practices.
The practice theory of norms is flawed, argues Raz. The practice theory i.e. Hart’s characterization of the internal aspect of law, fails to capture the normative nature of laws generally. If rules are practices, i.e. because others conform to the rule and criticize deviation from it, they will only rarely be a reason for action. Rather, they are merely normative statements so for example ‘you ought to do x because of rule y’ is the same as simply saying ‘you ought to
do x.’ you are stating that there is a reason, but you are not actually providing a reason for action. Hence, as Raymond Davern bluntly puts it, ‘Hart’s account is no real improvement on Austin’s
‘gunman’ account of the law. To act because it is a rule/practice is to act essentially because there is pressure from others (maybe the ‘officials’.)
It follows from the above discussion that Hart may well have attempted to resolve the problems so obvious with the Austinian model, however, as Raz in particular is keen to point out, Hart’s theory appears to collapse into the same type of command theory, if a little different.
At the heart of this is the fact that although Hart is profoundly critical of the legal theories offered by Austin and Bentham, he shares with them the general aspiration to construct a theory of law that keeps morals and law separate.