Mr. Sayak Banerjee
Before understanding the ‘internal aspect’ of rules, I think it is necessary to draw our attention to a hypothetical example that Prof. Hart uses in his book, The Concept of Law. Suppose in a society where there is an absolute monarch, who follows the Austinian way of governing people, through general commands. These commands are habitually obeyed by people. However, the community does have unity to allow the absolute monarch to be called as a state. The unity is coming from the fact that obedience is towards the same person, even though the validity is unquestionable. Now, suppose that monarch dies and his successor son starts issuing general orders, would still not validate habitual obedience. Hence, a continuity of obedience as a problem emerges, because whether the habit of obedience to increase, is a dilemma for the successor son. But situation becomes different in a democracy, where the legislator, unlike a successor to the monarch, on the basis of general social practice, is accepted as the rightful successor in accordance with the acceptance of the rule. This as Prof. Hart states is “the special case of legal rules.”
A. Demarcating a social rule from habit- Prof. Hart’s view
It, therefore, warrants us to have an understanding of the difference between a social rule and habit to understand Prof. Hart’s internal point of view of rules.
First, a group’s habit is in fact convergence of behaviour, and criticisms are not attached with it. Same is not the case for rules, as when there are deviations, it increases conformity pressures, which differ with different types of rules.
Second, where there are such rules, the deviations from the standards are accepted as a good reason for making it. However, for a group it may be problematic when the minority refuse to look at rules as a standard and thereby do not make critical assessment of it.
Third, is when habit is a general behaviour observable in being a member of a group, yet behave in a way another member of that group does. However, a social rule has an aspect of internalization that consists in a uniform standard that gets developed for the observer to understand and practise.
This internal aspect is analogous to having a critical attitude to assess the behavioural pattern of a group, and should not be confused with feelings. Psychological necessities should not be kept in mind to ensure the existence of the binding nature of rules. As Prof. Hart points out, the necessity lies in having “… a critical reflective attitude to certain patterns of behaviour as a common standard, and that this should display itself in criticism (including self-criticism), demands for conformity, and in acknowledgements that such criticism and demands are justified, all of which find their characteristic expression in the normative terminology of ‘ought’, ‘must’, and ‘should’, ‘right’ and ‘wrong’.” This classification is applicable to a tribal society, with the existence of a succession rule giving legislators the right to legislate.
But in a modern state, situation is more complex and different. As it involves officials and experts, like lawyers who are part of courts. It operates like a dependency chain, where the officials of a legal system accept the fundamental rules to create a legislative authority, then the legislators make laws in accordance with the rules empowering them to do so, then the courts identify laws to be applied by legislators, and experts like lawyers guide ordinary citizens with regard to the laws so made. This chain is ultimately created for citizens to provide their acceptance of these operations conducted in such operations. Though, it often gets obscured in accepting the Austin’s way of thinking about consequences of disobedience. In this obscurity, the function of law-making; law-identification; and, law-application by legal officials get lost. So, both the foregoing systems/societies need to be kept in mind to understand the social phenomenon.
Now, Prof. Hart has stated that, “the following contrast again in terms of the ‘internal’ and ‘external’ aspect of rules may serve to mark what gives this distinction its great importance for the understanding not only of law but of the structure of any society.” For a social group exercising and practising rules of conduct, the assertion that it is possible to be concerned with the rules from the observer’s perspective who himself does not accept them, or as a member of the group who accepts them and uses those rules as standard guides to conduct. Yet if the group accepts the rules from the internal point of view, even with exceptions of members, the consensus remains intact for those members who are not obligated to accept the rules from internal point of view.
B. Prof. Dworkin’s objection
The objection primarily takes in this way, the fact that Prof. Dworkin points out a difference between “ought and duty.” Be it a private citizen, an official or a judge, they all merely ought not to do or forbear to do something, but at times it is their duty to do or forbear to do something. However, in this process, for a judge he may still exercise discretion, but as Prof. Dworkin agrees that it is “for the express reason that the law requires that decision.” Prof. Dworkin summarizes Prof. Hart’s argument by stating that duties “exist when social rules exist providing for such duties. Such social rules exist when the practice-conditions for such rules are met. These practice-conditions are met when the members of a community behave in a certain way; this behaviour constitutes a social rule, and imposes a duty.” This co-existence of duty and social rule is a matter of fact. It is for this reason that Prof. Hart would envisage that it is the duty of the judges when the practice conditions are met in a legal system to apply a social rule, as in a particular community, as a matter of fact, officials/judges apply rules thereby following the legislature. On following the legislature, a social rule of this sort emerges, that binds the judges as an obligation to exercise it. He further elaborates with the help of his church-goers example, wherein he presents a situation that there is a social rule that each man must remove his hat before entering the church, this social rule is justified for punishment on non-compliance, to suggest that it imposes a duty not to wear hats in the church.
For Prof. Hart, as per Prof. Dworkin, practice-conditions for a duty imposing rule would be met, more so, this hat wearing issue would derail any issues arising on whether these men at the beginning ought to comply, by creating a duty. He also goes on to highlight the distinction between social rule and normative rule. The former gains acknowledgment from the community behaviour and the latter warrants normativity in what individuals as particular as church-goers ascribe to. He acknowledges that Prof. Hart understands the distinction between social rule and normative rule, by making us understand the existence of a rule and its acceptance by individuals of the community. So from a sociological perspective, the existence of a social rule is asserted merely by its existence, once the practice conditions for that rule are met. On the other hand, for a normative rule, its existence is asserted not only through the satisfaction of practice conditions, but also the acceptance of the rule as a guiding standard for both the individual’s conduct and the others. Prof. Dworkin then goes on to criticize the general social rule theory of Prof. Hart which involves the concept of obligation and duty vis-à-vis the duty of judges in enforcing the law.
So, Prof. Dworkin points out that in a developed legal system, the existence of social rules provides limits for the judges’ duty to recognize such rules as law. This would qualify as per Prof. Dworkin to state that “Hart advances this first thesis; in fact, his theory that a social rule of recognition exists in every legal system may be regarded as one of the most important contributions he has made to the positivist tradition.” And, the disagreement, as he reiterates, is on the issue of this first thesis, that he denies what Prof. Hart proposed- to state that, legal standards are bifurcated into two spheres in principle and as a community from moral or political standards. He further states that if “the first thesis is right, then in every legal system some commonly accepted test does exist for law, in the shape of a social rule, and this is enough to distinguish legal from moral rules and principles. But if the first thesis is false, then no such test exists.”
And for Prof. Hart to state that the governing treatment of all decisions of law by social rules would be enough, even if it is not up for dispute. The fact that if there are conflicting opinions of judges about the entrenchment of two rules of recognition, then that creates uncertainty, which would clearly not justify the traction to support the theory in the first place. In a nutshell, what Prof. Dworkin descriptively deconstructed is to point out that if judges have a duty to apply a rule or principle for determining the requirement of law, despite which if no social rule provides that duty, then the first thesis proposed by Prof. Hart becomes fallacious.
C. Demarcating Rule-based internal from external point of views
Quite interestingly, Prof. Hart has taken into account probabilities of situations when the need for demarcation ever arises between internal and external points of view. He claims that there are observers who are “…content merely to record the regularities of observable behaviour in which conformity with the rules partly consists and those further regularities, in the form of the hostile reaction, reproofs, or punishments, with which deviations from the rules are met.”Yet as an external observer, he would be able to assess the deviations, successful measures, or any reprehensible consequences associated with this knowledge. Prof. Hart also accounts for an austere external observer, having no account of the behaviour of the members of the group, thereby being unaware of “the rule-dependant notions of obligations or duty.”
Prof. Hart also explains the difference with the help of the example of traffic lights to state that a person having an austere external point of view is like an observer who treats red light as a natural sign to expect the people to behave in a particular way-that is to stop. But by experiencing such situations, he is missing out on a dimension of social life of people who look at red light as signal for them to stop. The red light acts as a standard of behaviour and obligation, to account for the way in which the group internalizes its own behaviour, thereby referring to the internal aspect of rules which are seen from their internal point of view. What actually follows for persons with external point of view, are the difference between being obligated and obliged, for they find comfort in expressing through the latter. For such observers cannot find coherence with those who view rules as functioning their lives, such people are rather majorly present in the society. These people who are in majority number, are those who have an internalized point of view, are the officials, lawyers, private persons who use these standards as conduct of social life, the basis for it being claims, demands, admissions, criticisms, or punishments, in all transactions of life as per rules.
For these people, the violation of a rule is not based particularly on a basis for prediction that a hostile reaction will follow but is a reason for hostility. Prof. Hart quite subtly highlights the difference in both the point of views by stating that in any particular time for a society that “…lives by rules, legal, or not, is likely to consist in a tension between those who, on the one hand, accept and voluntarily co-operate in maintaining the rules, and so see their own and other persons’ behaviour in terms of the rules, and those who, on the other hand, reject the rules and attend to them only from the external point of view as a sign of possible punishment.”
Furthermore, he reminds us, that the tension between voluntarily cooperative people in following rules would exist alongside those who reject rules and from an external point of view, see it as a sign of possible punishment.
D. Prof. Hart’s view on changing legal systems
For a legal system to exist, Prof. Hart views it as officials accepting secondary rules, and the people obeying them. However, it needs to be kept in mind that for Prof. Hart the habit of obedience, though applied to bulk of the population, cannot therefore apply to officials, who manifest an internal point of view towards the rules of recognition, broadly, on the application of the power conferring rules-secondary rules. This internal point of view towards the ultimate rule of recognition propagates a common standard of the right judicial behaviour that the judge obeys as a duty on his part only. This allows the validity of rules through official acceptance by officials that distinguishes from what the order of sovereign, through coercive methods like a gunman would have done, in contrast to the obedience if not fulfilled, would render such laws as invalid.
HLA Hart, The Concept of Law, Oxford University Press, 55, [hereinafter “COL”].
Ronald M. Dworkin, Taking Rights Seriously, Harvard University Press, 49 [hereinafter, “TRS”]
The author is a 3rd year student at National Law University Jodhpur