National Law Institute University

A Project
On
“Hart on Internal and External Aspects of Law”

Submitted by: Robin Quadros

Roll No. – 2007 BA.LL.B.-07
Enrollment No. – A-0695
Class – 4th Year
Trimester – Tenth Trimester
Subject – Jurisprudence
 Declaration

The text reported in this project is the outcome of my own efforts and no
part of this report has been copied in any unauthorized manner and no part
in it has been incorporated without due acknowledgement.

Name: Robin Quadros

Signature:

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 Introduction

The Concept of Law  is the most famous work of the legal philosopher H. L. A. Hart. It
was first published in 1961 and develops Hart's theory of legal positivism (the view that
laws are rules made by human beings and that there is no inherent or necessary
connection between law and morality) within the framework of analytic philosophy. In
this work, Hart sets out to write an essay of descriptive sociology and analytical
jurisprudence. The Concept of Law provides an explanation to a number of traditional
jurisprudential questions such as "what is law?", "must laws be rules?", and "what is the
relation between law and morality?". Hart answers these by placing law into a social
context while at the same time leaving the capability for rigorous analysis of legal terms.
As a result Hart's view has remained one of the most influential in jurisprudence.
The Concept of Law (1961) is an analysis of the relation between law, coercion, and
morality, and it is an attempt to clarify the question of whether all laws may be properly
conceptualized as coercive orders or as moral commands.

Hart draws a distinction between a social habit (which people follow habitually but where
breaking the habit does not bring about opprobrium - going to the cinema on Thursday
for example) and a social rule (where breaking the rule is seen as wrong). We feel in
some sense bound by social rules and laws frequently appear to be types of social rule.

There are two perspectives to this: the external aspect, which is the independently
observable fact that people do tend to obey the rule with regularity, and the internal
aspect which is the feeling by an individual of being in some sense obligated to follow
the rule, otherwise known as the critical reflective attitude. It is from this internal sense
that the law acquires its normative quality. The obedience by the populace of a rule is
called efficacy. No law can be said to be efficacious unless followed by the majority of
the populace. Though an average citizen in a modern state with a developed legal system
may feel the internal aspect and be compelled to follow the laws, it is more important for
the officials of the society/peoples to have the internal aspect since it is up to them to
follow the constitutional provisions which, if they wish, could ignore without

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accountability. Yet, the officials must use the internal aspect and accept the standards as
guiding their behavior in addition to also guiding the behavior of other officials.

But laws are more than rules of conduct. Laws can be divided up into two sorts: primary
rules (rules of conduct) and secondary rules (rules addressed to officials and which set
out to affect the operation of primary rules). Secondary rules deal with three problems:
first the problem of uncertainty about what the law is (the secondary rule for this
dilemma is called the rule of recognition and states the criteria of validity of a law),
second the problem of rigidity of rules (which requires rules of change allowing laws to
be varied), and third the problem of how to resolve legal disputes (from which rules of
adjudication arise). A legal system is "the union of primary and secondary rules."

Lastly, Hart lets us know that laws are much broader in scope than coercive orders,
contrary to the "command theory" of Austin. Frequently laws are enabling and so allow
citizens to carry out authoritative acts such as the making of wills or contracts which have
legal effect.

Internal and External Aspects of Law

Hart distinguishes between the "external" and "internal" points of view with respect to
how the rules of a legal system may be described or evaluated. The external point of view
is that of an observer who does not necessarily have to accept the rules of the legal
system. The external observer may be able to evaluate the extent to which the rules of the
legal system produce a regular pattern of conduct on the part of individuals to whom the
rules apply. The internal point of view, on the other hand, is that of individuals who are
governed by the rules of the legal system and who accept these rules as standards of
conduct.

The "external" aspect of rules may be evident in the regular pattern of conduct which may
occur among a group of individuals. The "internal" aspect of rules distinguishes rules
from habits, in that habits may be viewed as regular patterns of conduct but are not

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usually viewed as standards of conduct. The external aspect of rules may in some cases
enable us to predict the conduct of individuals, but we may have to consider the 'internal'
aspect of rules in order to interpret or explain the conduct of individuals.

Hart argues that the foundations of a legal system do not consist, as Austin claims, of
habits of obedience to a legally unlimited sovereign, but instead consist of adherence to,
or acceptance of, an ultimate rule of recognition by which the validity of any primary or
secondary rule may be evaluated.1 If a primary or secondary rule satisfies the criteria
which are provided by the ultimate rule of recognition, then that rule is legally valid.

In The Concept of Law, H.L.A. Hart defined rules (laws) as having an external and
internal aspect. The external aspect involves what can be observed from an outsider's
point of view, for example, that drivers consistently stop at red traffic lights. The internal
aspect concerns the motivation people have for obeying law -- that is, how it acts as a
sign or reason for behaving one way or another. These external and internal aspects of
law appear to correspond to Shaw's paradigms of a set of propositions about the
custodianship of land and the relationship people have to it (although his concept of oral
history is far thicker than this). Shaw has the least to say about the third paradigm he
identifies. However, this paradigm underscores an important, and seemly overlooked,
point: there are two distinct kinds of facts to be established here. One kind of fact
concerns what the law is; the second kind of fact is the determination of who has what
rights. This second kind involves a speech act.

Hart argues that a judgment of law, for example, whether a person has certain rights,
involves more than knowledge of the rules. A judge, like an umpire in a game, interprets
the rules, and makes an authoritative determination about the status of something. If an
umpire calls 'out', that player is out, regardless of whether a television replay shows that
the umpire may not have based their decision on perfect knowledge; similarly a judge. A
judge does not make up the rules, but makes a determination in accordance with them,
and this determination is an institutional or social fact. Authoritative interpretations and
determinations of rights in law are made by those people 'with authority' -- in the

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Australian legal system by judges, and in the Aboriginal legal system by those who are
elders and have the right to decide.

The expert witnesses in a native title case cannot be said to be historians and
anthropologists. These professionals can corroborate Indigenous claims about what the
law is through observing patterns of behaviour that correspond to the external aspects of
law, through recording the associations of people, its internal, motivational force, and
through recording the judgments that elders have made. The real expert witnesses are
Aboriginal people with the authority to make judgments about rights. If the Australian
legal system is honestly to recognise Aboriginal law, without subsuming and 'colonising'
it within its decisions about who has what rights, it must also recognise the judgments of
those Aboriginal people with the authority to determine the distribution of rights. If
acting consistently, the legal system can no more find this evidence 'unreliable' than
judges can find their own judgments irrelevant. In the determination of law, who speaks
counts.

In writing The Concept of Law, Hart set out to rehabilitate the concept in the aftermath of
positivism. He succeeded brilliantly. The tough-minded sceptic is forced to recognise
problems he cannot dismiss, and cannot solve so long as he takes up an exclusively
external point of view. He has to recognise the internal aspect of the law, if he is to
understand how it functions, at least so far as officials are concerned. And the tough-
minded sceptic is the readier to be led by Hart to this recognition in as much as Hart is
evidently sympathetic to the aims of the Austinian analysis, and anxious to go along with
it so far as possible. His criticisms are telling, because they are reluctant. In the end the
sceptic is forced to concede that laws must be construed as rules of conduct, and, that
jurisprudence must be, as Vinogradoff terms it,1 a moral science, to be understood and
reasoned about from the inside. This point once adequately established, Hart goes on to
elucidate many of the difficulties which have hitherto beset philosophers who have
sought to expound the nature of law. But he draws back from giving full weight to the
internal aspect of law, and is led, largely owing to the confused distinction between
1
.P. Vinogradoff, Common Sense in Law (Oxford, 1946), p. 13.

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primary and secondary rules, to place too much emphasis on a rule of recognition too
formally construed, and to deny the conceptual connections between law on the one hand
and morality and social custom on the other. The distinction between rules imposing
duties and rules conferring powers is not one between primary and secondary rules
properly so called, but is one that throws enforceability into focus as the characteristic
feature of a legal, as opposed to a moral or social, system. The distinction between rules
and meta-rules is a distinction between what is primary and what is secondary. It serves
to characterize what Hart counts as a legal, in contrast to a pre-legal, system, but implies
that the centre of gravity of a legal system is not in its meta-rules, but in the primary rules
of the pre-legal system and the social mores it embodies. If we concentrate too much on
format meta-rules, we shall abstract too much. If we concern ourselves only with formal
criteria of legal validity, we shall fail to see that these arise out of the law's fulfilling a
social function, and presuppose that the substantive law is in line with social customs and
moral principles. Moreover, even if we wanted to, we could not give an entirely formal
definition of law, for whereas rules imposing duties and rules conferring powers may be
explicitly formulated in words, and usually become more fully formulated with the
passage of time and the growing sophistication of a legal system, meta-ruies, and
especially the rule of recognition, are not, and cannot be, fully formulated, but must
always be at least in part implicit in a diffused recognition of what is rationally
acceptable. They thus cannot provide completely adequate criteria of legal validity, since
the crucial question---whether the meta-rules are operated in such a way as to produce
results that are by and large rationally acceptable---is one that no formal
decisionprocedure can always settle. The concept of law, therefore, cannot be given too
tidy a definition. It can be elucidated, but only as a social phenomenon that arises when
men, who are rational but not very rational, and moral but not very moral, live their lives
together.

A situation is then compatible with Hart’s concept of law in which most citizens do not
accept and follow the law but merely comply with it, pulled by motivations which are
altogether irrelevant from the perspective of legal theory insofar as the condition of
efficacy is sustained. Hart claims explicitly that the relationship of ordinary citizens to

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law may in fact be characterized as one of “habitual obedience” and prudence rather than
as an internalized application of standards of behavior.10 It must be added in fairness to
Hart that he readilyacknowledges that other (yet secondary) motives such as the
normativity that stems from the internal point of view – the fact that the existence of a
rule is a sufficiently motivating reason for action – may have a share in compliance as
well.

Attitude of the General Public to determine rules

According to Hart’s theory, we can talk of rules as having an internal aspect when rule-
followers take a particular intentional attitude towards them. The central feature of this
internal attitude or point of view is that it is critical and can be fully characterized by the
specific way in which rules are used. In contrast to the assessment of mere regularities or
patterned collective forms of behavior, the critical attitude explicitly takes rules as
standards of behavior, which involves seeing them as guides for action – or as reasons for
choices – and, by implication, as sources of criticism and guidelines for correction of
deviant actions in oneself or in others. The external point of view, by contrast, is
concerned solely with the factual aspects of rule-following, e.g. with the behavioral
patterns of a group, with the likelihood that reactions such as punishment or approval, or
simply indifference, will follow a certain action, or more generally with the regular
exchanges among members of a given group. Roughly put, the characteristic use the
external point of view makes of rules is prediction and its language is that of regularities;
the characteristic use of rules made by the internal point is expressed in the claim that a
person’s case falls under a rule and its language is that of regulations.

Several observations about this key distinction are in order. First, the internal point of
view generates mutual and common expectations among rule-followers and hence, if
efficacious, creates regularities in their collective behavior. For this reason, the external
and internal points of view are connected; widespread attitudes linked to the internal
point of view translate into certain patterns of social behavior which are detectable
externally, and, correspondingly, an accurate external assessment of behavioral

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regularities may allow an individual to pass successfully as having an internal attitude,
and dwell more or less undisturbed and undetected among those who do have it. “What
the external point of view cannot reproduce”, Hart tells us nonetheless, “is the way in
which rules function as rules in the lives of those who normally are the majority of
society.”8 Second, the internal point of view may typically be accompanied by
psychological states such as apprehension or feelings of compulsion or fear, but these are
neither necessary nor sufficient for the adoption of the internal point of view. As far as
the concept is concerned, it does not matter whether the internal point of view is taken, so
to speak, coldly or hotly; the concept makes sense independently of the pull of specific
psychic motivations, just as chess players may move pieces correctly on a board
independently of any specific feelings of compulsion. Third, to the internal and external
points of view correspond distinct sets of linguistic expressions. The language of rights,
obligations and duties, but also of legislation, jurisdiction, and validity, belongs to the
internal point of view; the language of the external point of view has fear, shame, censure
and violence, but also degrees of likelihood, typical patterns of interaction and even
social forces and power, among its conceptual repertoire.
To repeat, and paraphrasing a key argument in Hart’s discussion of the difference
between the expressions ‘A is obliged to X’ and ‘A has an obligation to X’ (which runs
parallel to the distinction between external and internal statements of law), facts about
individual beliefs, motivations or feelings are not necessary for the truth of the statement
that the law demands X from A.11 Second, more controversially and at a causal level of
analysis, Hart makes the psychological, and to some extent sociological, claim that in
modern legal systems people for the most part and characteristically obey the law as an
habit of conduct, as it were only half aware or motivated by fear.

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 Conclusion

It is to some extent surprising that Hart’s powerful distinction between internal and
external statements of law, which carries so much weight in his theory overall and in his
rejection of the Austinian model in particular, plays such limited role in the criterion he
provides for the existence and operation of legal systems. With the concept of internal
point of view in place, Hart might very well have spread it out, so to speak, to cover all
society, thus providing a richer and, I shall argue, more accurate picture of the social life
of legal systems. In Hart’s own application of the concept we have instead that the
massive alienation of citizens from a legal system, which would be the case if “the bulk
of society” lacks an internal perspective over its laws, does not have any essential
implications for our understanding of law. In Hart’s view, it is a necessary condition for
the existence of legal systems that its officers have a critical attitude towards law – which
means that they must adopt the internal point of view and take the rule of recognition and
other secondary rules as standards of behavior; that they use them as guides and when
relevant as reasons for punishing or correcting actions within and outside the legal
profession broadly understood – but not that other social groups have this same attitude.
For Hart, if the condition of efficacy (i.e. widespread legal compliance, from whatever
reasons or motives) is added to that of internal perspective among officials, then the
existence of a legal system obtains; in other words, the conditions of internal point of
view only among officials and efficacy are necessary and sufficient for the existence of
legal systems.

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 BIBLIOGRAPHY

1. Austin, John. The Province of Jurisprudence Determined and

The Uses if the Study of Jurisprudence. London: Weidenfeld
and Nicolson, 1954.
2. Cohen, Marshall. "Herbert Lionel Adolphus Hart," in The
Encyclopedia of Philosophy. New York: Crowell, Collier and
MacMillan (1967) pp. 417-8.

3. Dworkin, Ronald. Law’s Empire. Cambridge: Harvard University

Press, 1986.

4. Hart, H.L.A. The Concept of Law. Oxford: Clarendon Press,

1994.

5. Coleman, Jules 2001. “The Conventionality Thesis”

Philosophical Issues, 11: 354-387

6. Cooter, Robert 1984. "Prices and Sanctions" Columbia Law

Review 84: 1523–59

7. Dworkin, Ronald 1977. Taking Rights Seriously. Harvard

8. Green, Leslie 1996. “The Concept of Law Revisited” Michigan
Law Review 94: 1687

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