We discussed three aspects of Hart’s positivism.
Hart sometimes explains this distinction with another one: the distinction between a participant in a social practice who accepts the rules of the practice and an observer who does not accept the rules. For instance, the former makes internal statements about rules while the latter does not (p. 80).
There’s something to that, but it’s worth emphasizing that even an external observer will need to understand that there is an internal aspect of rules. Without understanding that, the external observer’s observations won’t be accurate.
Jonathan and Alison persuaded me that Hart left room to accommodate this point. I think I was worried by his description of Austin as both occupying the external position and also as failing to notice the internal aspect of rules at all. It’s that combination that I wanted to split apart.
According to Hart, we use the rule of recognition to answer the question “what is the law?” We laid out a wide variety of cases in which that question comes up. The legal realists will dispute Hart’s claim for at least some of those cases. They maintain that the question “how will judges rule?” is the question that we’re really interested in. We’ll have to compare their view with Hart’s.