Legal Obligations and the Internal Aspect of Rules

Abstract

Legal theorists after Holmes have often regarded themselves as facing a dilemma: either embrace a morality-infused jurisprudence and abandon the impulses of legal positivism or reconceive of legal obligations in terms of a bad man's concern to avoid sanctions. H.L.A. Hart's The Concept of Law purported to thread the horns of this dilemma by carefully analysing the perspectives of certain participants in the legal system. From the point of view of certain participants, legal obligations are not principally understood in terms of sanctions, but in terms of a standard of conduct set out by rules of the system. Legal rules have an internal aspect which governs how many legal participants regard them, and which, in turn, gives a place to the notion of legal obligation that is quite different from that of the natural lawyer and that of the Holmesian bad man. By critically explaining, clarifying, and extending Hart's account of legal obligations, this article begins to shed light on questions in jurisprudence, legal ethics, and subtantive public and private law. All of these areas have suffered, and continue to suffer, from numerous distortions cause by the premature abandonment of the notion of legal obligation.