Sunday, May 11, 2008

Hart and the Internal Aspect of Rules: A Summary

While formulating his theory of law, it was one of Hart’s primary concerns to address the deficiencies in John Austin’s “command theory.” Austin and the positivist school viewed statements of obligation not as psychological statements, but as predictions of chances of incurring punishment or evil. To this Hart put forth two fundamental objections: first, that deviations from obligations are not only grounds for prediction that harm will follow, but also grounds for justification for that harm. And second, that evasion of obligation does not necessarily mean dissolution of the obligation itself, something that would be a necessary (and absurd) corollary of the Austinian definition.

According to Hart, rules are conceived and spoken of as imposing obligations when the general demand for conformity is insistent, and the social pressure brought to bear upon those who deviate, or threaten to deviate, is great.

It is crucial to distinguish rules from mere habits, or convergence of behaviour, and this is the point at which Hart departs from the Austinian viewpoint. Hart argues that the predictive theory looks merely at the external aspect of rules, and makes statements about habit (somewhat similar to the American legal realist concept of the bad man). However, there exists a second aspect of rules, namely, the internal aspect. Rules are viewed as standards governing behaviour, and therefore, deviation is a reason for criticism, and not merely the basis for a prediction. For Hart, therefore, the concept of rules encapsulates not only convergence of behaviour (the external viewpoint), but also the convergence of attitudes.

Using the internal viewpoint, people within the legal system judge, evaluate and criticise their conduct and that of their peers. While the external viewpoint is purely descriptive, made by an observer outside the system (“In England, they recognize as law…”), the internal viewpoint is evaluative (“It is the law that…”).

Hart connects the concept of “efficacy” with external statements about the legal system – for instance, an external observer would obviously talk about the legal system from the point of view of its practical working. Similarly, the concept of “validity” is connected with the internal statement, where rules are viewed as standards, and deviation is a reason for criticism. There is, however, a contextual connection between the internal statement of validity and the external statement of efficacy. This is because if within a legal system, internal statements cease altogether, this will have so great an impact upon efficacy, that for all practical purposes, the legal system may as well be treated as dissolved and extinct.

Having developed this concept of the internal aspect of rules, Hart now ascribes to it its place in a legal system. Law is a union of primary and secondary rules; primary rules confer obligations upon citizens, and secondary rules are directions to officials authorizing them to change, recognize (create) or adjudicate upon the primary rules. Hart argues that it is a sufficient condition that the citizenry, which is subject to the primary rules, need only take an external viewpoint towards primary rules. They may not view the rules as standards; they may not consider themselves obligated to obey them; and they may not even make a moral commitment to follow the law. All that, however, is irrelevant with regard to the existence of a legal system. All that is needed is the existence of the external viewpoint, so that the detached observer can look upon the behaviour of the citizenry, and on that basis alone, find the legal system to be in good, practical working order.

It is at the level of secondary rules that the internal aspect comes in. Hart argues that it is a necessary condition for the existence of the legal system that the officials directed to identify and apply the primary rules through the means of secondary rules, take the internal viewpoint towards those. This is so because it is the only way in which reasons or justifications of enforcing, creating or changing obligations can be given, a concept which is parasitic upon Hart’s idea of the “social rule.”

Two powerful criticisms have been made to Hart’s idea of the internal aspect of rules. The first is by John Finnis. Finnis argues that when Hart uses the idea of primary and secondary rules to distinguish a developed legal system from a primitive legal system, he is using a philosophical tool called “the central case” (an idea bearing close resemblance to the Weberian ideal type). The central case is one which, within a certain paradigm, best fulfills the characteristics of that paradigm. Finnis then argues that Hart should not have stopped at the level of the existence of the internal aspect of rules as a means of differentiating the central case from other, peripheral cases. He should have further differentiated the notion of the internal aspect itself. What this means is that there are many reasons or motivations behind people viewing rules as standards (using the internal point of view), including self-interest, a detached interest in the well-being of others etc. Finnis argues that all these are “watered-down” notions of the internal aspect of rules: the central case is the viewpoint of the moral man, the one who views the law as a moral standard. Finnis does not explain further as to why the moral man standard is to be the central case for legal systems, and this is a weakness that has been pointed out by some scholars.

The second criticism is one made by Joseph Raz. Raz argues that Hart’s dichotomy between internal and external aspects of rules commits him to a position where either one must be a detached observer commenting upon the efficacy of the legal system, or an internal actor who is endorsing the law’s moral authority. According to Raz, however, there is a third category of statements, that of lawyers, or law teachers explaining the law to others. This allows an internal statement to be made without espousing it as a normative standard; for instance, I may be a vehement opponent of capital punishment, but within the framework of my country’s legal system, I may end up writing a legal opinion with the statement, “Given the law on this point, he ought to be hanged.” The use of the word ought in this sentence does not commit me to an endorsement of the moral content of the rule itself.

This supposed contradiction in Hart’s theory of rules has been elegantly explained by Neil MacCormick. MacCormick argues that understanding, and not will, determines the internality of a statement. It is possible to understand a norm, to be able to frame judgments in terms of it, and yet remain hostile or indifferent to it. Therefore, according to MacCormick, the internal point of view should be further classified into two categories: merely an understanding of what the rule requires, and volitional commitment to upholding the rule. MacCormick concludes with the reasonable assumption that no legal system can exist without at least some people who do care about the maintenance of patterns of conduct, who do have volitional commitment towards the rule.

In summation, therefore, Hart views the internal aspect of rules as providing reasons, or justifications for criticism in case of deviation, as opposed to the external aspect, which merely predicts consequences. In a legal system, it is a necessary condition that officials take an internal view towards secondary rules. Such an internal view, however, may be restricted to only an understanding of what the rule requires, or could extend to a volitional commitment towards upholding the rule.

Monday, May 5, 2008

The Command Theory of Law: A Brief Summary, and Hart's Objections

This essay will focus on the nature and adequacy of Hart’s objections to Austin’s “command theory of law.” Austin defined the law as “the command of the sovereign, backed up by sanctions.” The three crucial components of this definition are the words command, sanction and sovereign. This essay will analyze, in turn, the scope and meaning of each of these terms, as envisioned by Austin, and Hart’s criticism of each of these conceptions.

Austin believed that law is a species of command. He further defined a command as “an intimation or expression of a wish to do or forbear from doing something, backed up by the power to do harm to the actor in case he disobeys.” Furthermore, the person to whom the command is given is under a "duty" to obey it, and the threatened harm is defined as a "sanction."

According to Hart, the idea that law consists merely of orders backed by threats is inadequate to explain modern legal systems. Modern legal systems have laws governing the formation and implementation of contracts, of wills, marriages and other executory instruments. Hart calls these types of laws “power conferring rules,” and argues that they are less in the nature of orders backed by threats, and more in the nature of rules creating a framework within which individuals can define the scope and limit of their rights, obligations and liabilities.

Hart also considers another variety of laws, laws which define the scope and limitations of judicial and legislative power, laws which confer jurisdiction upon courts and govern the functioning of governmental institutions. He argues that it is impossible to view these laws as mere orders backed by threats either.

Attempts, however, have been made to assimilate power-conferring rules within the broad ambit of orders backed by threats. According to the first of these theories, the nullity that is a consequence of not complying with the framework established by power-conferring rules is the Austininan sanction. However, Hart argues that the two are fundamentally different in nature: in a criminal statute, which is more in the nature of an order backed up by threats, the sanction is necessarily consequent upon the forbidden action (it is possible, for instance, to conceive of an order that prohibits something without imposing a sanction); however, in the case of power-conferring rules, the provision for nullity is part of the rule itself. For instance, it would be impossible to conceive of the provisions that govern how to make a valid will without conceiving that the will cannot exist without these provisions. Hart has a number of subsidiary objections as well, such as nullity not always being a source of evil (for instance, to the judge who rules without jurisdiction).

A second theory argues that power-conferring rules are not genuine laws. This theory views as all laws as directions to officials to apply sanctions in case of non-compliance. A power-conferring rule, therefore, would be viewed as a direction to the requisite official not to confer validity upon a particular transaction if the rules of procedure are not adhered to. Hart argues, however, that such a theory achieves uniformity at the high price of distorting the true nature of laws. For instance, the point of criminal law is to establish certain standards of behaviour, which the citizens are expected to conform to. Sanctions are there only as ancillary measures in case the system breaks down. It is therefore misleading to consider criminal law as directions to officials to apply sanctions. The same logic applies to power-conferring rules as well.

The second basic objection Hart has to Austin is regarding the range of application of laws. As Hart points out, the word “command” implies a top-down stable hierarchy of men, with rules being purely other-regarding. However, this is not true in modern legal systems, as legislations often have a self-binding force. In an attempt to respond to this, it has been argued that a legislator has two personalities: his legislative personality, which gives the command, and his ordinary personality, as a citizen, which is bound to obey. However, Hart argues that such a complicated device is unnecessary to explain the self-binding nature of legislation. A legislation can be viewed as a promise, which creates obligations upon the promisor. And in any event, much of legislation is done under the ambit of pre-existing rules of procedure, which bind the legislators.

Hart’s third objection to Austin is with regard to laws such as customary laws, whose mode or origin excludes them from being treated as commands. To this, it has been argued that the validity of customs depends upon tacit acceptance by the sovereign; that is, if Courts are implementing customary law, and the legislature does not repeal such laws, then this might be said to be an implied command that customary law is to be followed. However, Hart argues that absence of objection does not mean implied consent. It could equally well mean a lack of knowledge, or a lack of awareness, or numerous other reasons.

On the three grounds of content of laws, range of application, and mode of origin, Hart rejects the idea that law is merely an amalgamation of coercive orders backed up by threats.

The third important prong of the Austinian definition is the term “sovereign.” Austin defines a sovereign as “someone to whom the bulk of the given society are in a habit of obedience; and he is not in a habit of obedience to anyone.” Hart’s criticism is directed both at the idea of “habitual obedience,” and at the idea that the sovereign is an “uncommanded commander” of the society.

Hart argues that habitual obedience, which is merely convergence of behaviour, is inadequate to explain the continuity of laws. Mere habits of obedience to orders given by one legislator cannot confer on the next legislator any right to succeed the old, or to give orders in his place. Why is the law made by the successor to legislative office already law before even he has received habitual obedience? To answer this question, it becomes essential to distinguish between a habit and a rule. Rules require not only convergence of behaviour, but also convergence of attitude. That is to say, rules are viewed as standards of behaviour, where deviance is considered as meriting criticism.

Habits of obedience also fail to explain the persistence of laws. That is to say, how can a law made by an earlier legislator, long dead, still be law for a society that cannot be said to habitually obey him? Once again, this requires us to replace the notion of habits of obedience with a concept of rules that delineate rights of succession.

Hart’s final objection to Austin is that the sovereign does not possess, as Austin believed, a “legally untrammeled will.” Most modern legal systems have legal limitations upon the power of the sovereign (and this is not inconsistent with his supremacy within the legal system as the highest known legislative authority). Recognizing such a problem, Austin had argued that in democracies, it was the electorate that formed the sovereign. However, according to Hart this leads to the absurd conclusion of the “bulk” of the society habitually obeys itself. It may be argued that legislators make rules in their official capacity, rules which then apply to them in their personal capacity. However, the very notion of official capacity presupposes the existence of rules that confer such official capacity. This, therefore, is again incompatible with the Austinian idea of sovereignty.

On all these grounds, therefore, Hart rejects Austin’s “command theory of law” as sufficient to explain the legal systems of modern societies.