Through the Looking Glass

Here’s something harking back to 1st year, 1st sem, Legal Theory class with Prof. Fernando and his famous crossword puzzles and the report I had to do about Hart and Raz and their critics, their views on what the Law is and is not… =) I so loooove Legal Philosophy! If only I had paid more attention to it…

“The Concept of Law”: Comments and Criticisms

Rules and the internal aspect

According to the legal philosopher Neil MacCormick, Hart’s internal point of view contains distinguishable components ought to be distinguished, such as the “cognitively internal” point of view, from which conduct is appreciated and understood in terms of standards used by agents as guidelines: that which is sufficient for an understanding of norms and the normative. However, this outlook presupposes on the “volitionally internal” point of view: the view of the agent, who has a volitional commitment to observe a given pattern of conduct as a standard for himself and for other people or for both. Hart is criticized for not distinguishing between differences in levels of understanding and differences in degrees of commitment. MacCormick also maintains that by “feelings” Hart means emotional elements and these should not be a misrepresentation of the internal aspect. Between two types of psychological states, volitional and emotional, MacCormick allows that volitional can be treated as part of the internal aspect. Hart did not distinguish these two, consequently describing internal aspect as free from both.

Another legal theorist, Raz, discusses three fatal defects to the practice theory. On the first defect, it does not explain rules which are not practices. A rule is not a social rule unless it is practiced by a certain community, but it may still be a rule. Moral rules are perhaps the clearest example of rules which are not practiced. It is not necessary for the correctness of the belief that the rule is practiced. Also, a person may believe that a rule is valid though he does not observe it. Even if a person believes there can be a rule only if it is practiced the word “rule” does not mean “practice”, and hence the explanation of what a rule is cannot be in terms of the practice theory. The second major defect of the practice theory is its failure to distinguish between practiced rules and accepted reasons. According to the practice theory, whenever a reason is believed in, followed and acted on by the relevant person or group, then they have a rule. Raz says that we can distinguish between a rule and a reason regardless of whether they are acted on and followed in practice. We do not regard every practice of acting on a general reason as acting on a rule. The practice theory fails to draw this distinction and it thereby fails to capture the essential feature of rules. The third major defect of the practice theory is that it deprives rules of their normative character. A rule is a reason for action. The fact that rules are normally stated by using normative terms indicates that they are operative reasons. A practice as such is not necessarily a reason for action. It may be that there is a reason for all to behave as they do or if a certain person has, generally or in particular, reason to conform to the practice. But the practice theory fails to account generally for the normative character of rules.

The idea of obligation

The theorist Hoffmaster is of the opinion that Hart’s analysis of the general notion of obligation is derived from his view of moral obligation. “Moral rules impose obligations and withdraw certain areas of conduct from the free option of the individual to do as he likes.” The rule may not be a social rule because people either do not conform their behavior to the requirements of the rule or do not have the internal point of view towards the rule. Hart claims notions of duty and obligation are primarily legal notions, “both are almost always appropriate for whatever the rules of an existing legal system forbid.” On the other hand if the rule is a social rule then legal obligation is understood as a special case in obligation in general. Legal indicates the rule has a special formal status, namely legal validity, in addition to being a social rule of obligation. Hart’s view is that legal obligations are imposed upon officials by social rules, which exist by virtue of the behaviour and expectations of other officials in the system but that such social rules are not valid. Hoffmaster says that although this explains the sense in which an obligation is legal, it does not explain the obligation involved. In the case of customary rules that are made legally valid, the social rule that imposes the legal obligation exists by virtue of the behaviour and expectations of other officials in the same legal system.

Primary and secondary rules

Hart describes primary rules as ones that require human beings to do or abstain from certain actions, while secondary rules enable human beings to introduce new primary rules or eliminate or modify primary rules. Primary rules impose obligations and the more complex the society, the more the need for changing rules and establishing an authoritative way of telling whether any primary rule was broken, hence the need for secondary rules. However, Hart’s second construal of the difference between primary and secondary rules gives no account how rules that create obligations are recognized, changed or adjudicated. The distinction does not seem adequate to handle any rule that is secondary, let alone higher level rules that specify how they may be changed, modified or eliminated. The introduction of secondary rules is considered by Hart as a step from the pre-legal to the legal world.

However, this is contested by legal philosopher Michael Martin in that pre-legal systems or primitive societies have Hart’s concept of secondary rules in the form of marriage laws, which also create laws. Hart further says the crucial distinction between pre-legal and legal systems is the introduction of rules of change, adjudication and the rule of recognition. However, Hart does not cite evidence for the existence of societies that are the “nearest approximations” to societies without rules of change, adjudication and recognition. Martin also points out that it is one thing for one society to have some organ that administers or enforces the laws and another for society to have such rules that may be administered informally.

The rule of recognition

Hart says that a rule of recognition is a rule requiring officials to apply rules identified by criteria of validity included in it. It is in every legal system, is accepted and practiced by officials but need not be approved of as a morally good or justified rule. The other descriptions have already been modified or abandoned in that the unity of the system does not depend on its containing only one rule of recognition, it depends on the fact that it contains only rules which certain primary organs are bound to apply. The primary organs in following and applying the rules of recognition does not entail that they hold them to be morally jusitified. It is not only logically possible but also not uncommon for an official to follow its rules of recognition without regarding them as morally justified. The rule is only required to be held valid. Moreover, the official may follow the rule without having any beliefs why he is justified in doing so, or for prudential reasons, even for moral reasons which are based on his rejection of the system.

Legal rules and moral rules

Martin on the other hand, says that though Hart distinguishes legal and moral rules in that legal rules can be deliberately changed, whereas moral rules are not repealed and corrected, one can imagine a religious leader changing the moral rules as easily as a legislature could. Hart is misled in thinking all moral rules are like traditions. Hart also says legal rules unlike moral rules may be unimportant. An unimportant law remains law until repealed. However, a moral rule that is considered unimportant would not mean it is no longer a moral rule in this system, but rather that this rule is no longer considered important. Further, based on the rule of recognition, a rule would not be considered a legal rule of the system if it was not longer considered important. Hart also mentioned that it is always an excuse for someone breaking a moral rule that they could not keep it. But this is not the case in law, as some laws are based on strict liability and no excuse is possible. So in moral responsibility “ought” always implies “can” but in legal responsibility this does not always hold. However, if we understand legal liability as including all and only those things that the law requires the person to do or refrain from doing then “ought” does imply “can” even in strict liability.

Hart also distinguishes morals from laws in that legal pressure is characteristically exerted by fear of punishment, moral exerted by “reminder of the moral character of the action and the demand of morality.” However, one can imagine a moral system that imposes physical sanctions for breaking moral rules. Some moral systems also threaten sanctions after death, for example, in hell. Then it is also plausible to suppose that the pressure many moral systems characteristically exert is the fear of punishment. Many people in modern society follow the law as well because they believe they have the moral duty to do so, the fear of punishment does not enter into their motivation.

(So in other words: Hart, you lose. Hehe!)