Hart’s Legal Positivism: Internal vs. External Statements
1.2. The Conception of Legal Science: Hart’s Internal versus External SetThere are two models of normative positivism; this is the second, the conception of legal science from Hart. This is a critique of analytical jurisprudence by J. Austin. Analytical jurisprudence focuses on the analysis of language to understand reality and, for Hart, to understand the law.
Hart is a normativist, as is Kelsen. Law is rules; standards are a direct use of language, seeking to control the conduct of those addressed. It orders, regulates, or guides behavior by imposing obligations, prohibitions, or permissions. Rules relate to duties or obligations for Hart and Kelsen; they are statements of norms. Hart’s theory understands the idea of a legal obligation by referencing the idea of a standard. Hart’s theory radically critiques J. Austin, who said the law is a set of commands backed by coercive, sovereign power with a legislative monopoly on force. Austin said that to explain legal obligation, one can use legal terms: an obligation is the likelihood of a sanction. According to Austin, this can be interpreted not in terms of probability but of being forced (I am obliged to pay taxes because I will be punished). This is used to predict something that will happen if I perform a certain behavior. For Hart, however, we cannot understand the concept of obligation by referring only to standards; there must be a habit of conduct governed by the rule. But there is another element: habit is the outward appearance, but there is also an internal aspect. This internal aspect means that such a pattern of behavior is accepted as a reason for our behavior. There is an acceptance that subjective reasons—moral, religious, social acceptability—can differ from the fear of constraint by failure.
For every rule, Hart posits a habit and that the rule is accepted as a reason or justification. This is the basis for any rule, not only for lawyers. Rules are reasons for action and serve to criticize the conduct of others. Rules are not only predictions; the fact that a culprit is not discovered and not punished does not mean there is no obligation because the norm exists. There are various standards and reasons. Hart distinguishes between how we can speak of or approach the law with external or internal statements. Legal science uses internal statements; external statements are made by an observer outside the system. The outside observer is limited to describing the system in terms of regularities of conduct. This would be the observer’s point of view—i.e., external statements. Internal statements would be made by someone who accepts the system as justification for their own actions or the actions of others.
External statements do not give us a complete picture to understand the functioning of the legal system. To do this, we need the element of acceptance to understand the idea of a rule and the system itself.
Hart emphasizes the distinction between the two statements. When a social group has rules regulating behavior, there is a mere observer, but the insider knows and uses (rules) to justify and criticize. External observers can be of two types: those who assume the group accepts the rules and speak from that point of view, or those who take a completely external point of view. The latter do not speak from an external perspective on the internal, as above, but externally and objectively collect standards to evaluate the system without any internal point of view. It is like the outside observer who focuses on a traffic sign and says a red light means stop and probably nothing else. The group, however, watches and assumes that the red light forces them to stop and that if they don’t, sanctions may be imposed. The rule explains that behavior; there are rules and habits, and individuals from the group accept them as guides. The problem is how we know that rules must be accepted for regulating our behavior. For Kelsen, a rule was valid if based on a superior rule in the order, which was a pyramid, with the Constitution—the hypothetical basic norm—at the top. For Hart, we refer to the rules; this rule allows us to identify invalid law. Hart’s primary rules establish obligations, rights, duties, etc. Secondary rules address the primary rules. The concerns of secondary rules are recognition (identifying standards), change (changing or creating rules—a moral system does not change rules easily), and adjudication (who can make decisions in particular cases by applying rules of conduct, i.e., judges). Recognition rules tell us which standards affect us; they establish the criteria for the validity of the system’s rules, such as those created today under the Constitution. For Hart, this would be the law created by Parliament. This is not hypothetical but a rule of law to account for in normative terms: the law consists of rules that guide our conduct. Hart, like Kelsen, is a normativist. This is a practice for all public officials who tend to identify valid law under the rule of recognition or the criteria for it. The rule of recognition is a use or practice of judges; if they apply it, the norm set will be valid. It combines external and internal validity. To discuss this, we must refer to the fact that the courts apply it or use an external statement about the use of a rule of recognition, while statements about the system’s validity are internal, laid down behavior as a reason for the subject’s conduct. The rule of recognition is not hypothetical (as in Kelsen); we can