Hart's positivism Notes for January 25

Main points

Hart claims that the core of every legal system is the union of primary and secondary rules.

Primary rules are prohibitions on individual behavior.

Secondary rules are rules about the primary rules. They include: rules of recognition (which rules are obligatory?), rules of change (how can the primary rules be changed?), and rules of adjudication (how are disagreements about the primary rules settled?).

These secondary rules often involve appointing officials to make and judge rules. This isn’t necessary: any of the rules could be “look it up in the Rules for Dummies”. But in most cases, the rules identify authorities, that is, officials whose decisions count as making, modifying, or interpreting the rules.

Hart makes a compelling case for thinking that there are powerful reasons for having at least these secondary rules.

Hart on obligation

Alex pressed me to explain why Hart wasn’t simply identifying obligation with social pressure. I think my answer exaggerated the distinction between the “internal” and “external” aspects of rules. So I want to take another crack at it.

The fact that a society enforces its rules is good evidence that they are regarded as generating obligations. But that is not sufficient for showing that the rules generate obligations. That’s the sort of thing that we criticized about Austin’s views on the relationship between command, obligation, and sanctions.

So how does Hart propose to do better?

Well, first, he points out that rules are mandatory. Whoever breaks the rules does something wrong according to those rules.

That’s already an advance over Austin’s position, which assimilated obligations with the victim’s predicament in the “gunman” situation. But it isn’t far enough. The rules of chess don’t generate obligations. You aren’t obliged to move your bishop diagonally even though the rules only permit that kind of movement for that piece. So we need to do more to distinguish the rules that generate obligations from those that do not.

A good place to start is by looking at how people think about the rules. Do they react with shame or guilt when they violate them? Do they accept punishment for violating the rules (no matter how grudgingly) as legitimate? What do they become angry with those who violate the rules?

For moral rules, I think that the answers to these questions are “yes”.

But we are trying to identify legal rules, and it is presumptuous to treat them as the same as moral rules (some think they are; some think they aren’t). Still, I think we should look for similar attitudes, with some differences.

For instance, as Ben pointed out, I don’t really feel guilty or ashamed of speeding (though I would feel that way if I did something more dangerous, like driving drunk). But if I’m caught, I wouldn’t resent getting the ticket: I wouldn’t think it was unfair or arbitrary in the way that I would if I were just pulled off of the sidewalk and written up for something I hadn’t done. In general, I think that Hart is right to say that moral rules are more wrapped up with feelings of guilt and shame than legal ones are.

In other words, people who have internalized the legal rules of their society will tend to follow those rules, feel that others should follow them too, and accept their punishment when caught violating them. There are probably other conditions as well, but that will do for a start.

The point I’m driving at is that this is a way of identifying the rules that generate obligations that does not rely on social enforcement alone.

Now, what does this have to do with the internal and external aspects of rules? Well, it’s connected. The feelings that I talked about are all ones that someone who had internalized the relevant rules would have: guilt or shame for having broken the rule, resentment of those who do break the rules, accepting punishment when caught.

Someone who had only the external perspective on the rules wouldn’t have those feelings. I may understand that in the society I’m studying it’s forbidden to say “rooster” three times in the morning. But I won’t feel guilty for doing it. Not in the slightest. I haven’t internalized that rule.

That said, if I were describing a society’s rules, even from the ‘external’ perspective, I would probably have to rely on the feelings I described. I wouldn’t have those feelings myself, but I would have to refer to them in my description of the rules. That’s how I would identify the rules that generate obligations in the society I am describing. In other words, I would have to understand what the internal point of view on those rules is like in order to describe them, even from the external point of view.

Finally, Alex sometimes suggested another point: that Hart hasn’t shown how obligations are really created. He has shown what happens when the members of a particular society think they have an obligation. But that isn’t the same thing as their actually having one. People are mistaken about obligations all the time, after all.

I think that’s right. Hart is trying to describe legal obligations. They are generated by primary rules. Which rules? The rules that have passed the secondary rules of recognition in a given society. That’s all that is involved in having a legal obligation.

Most people in that society will internalize those primary rules, as I described earlier.

But does it follow that they are morally obliged to obey them? No. That’s a further claim. So those who haven’t internalized the legal rules of their society are not necessarily doing anything morally wrong, though they may well break their legal obligations.

In other words, whether legal obligations and moral obligations are the same thing or even overlapping is a further issue. It’s still open, for all we have said so far.

Sovereignty again

One more point is worth adding. Austin held that the source of law, the sovereign, cannot be legally bound. The sovereign does not habitually obey anyone else, remember, and so does not have a higher (human) sovereign.

But Hart is not committed to saying that. The rules can apply to the authorities who make or interpret the laws. The people who occupy the relevant legal positions then can be bound by the laws.

That’s one of the points that Hart makes in his discussion of “constitutional” governments.

This page was written by Michael Green for Philosophy of Law, Philosophy 34, Spring 2007.
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