Hart on Social Rules and the Foundations of Law: Liberating the Internal Point of View

Abstract

The internal point of view is a crucial element in H.L.A. Hart’s theory of law. Hart first introduces the notion by pointing out that, within a social group which has rules of conduct, “it is possible to be concerned with the rules, either merely as an observer who does not himself accept them, or as a member of the group which accepts and uses them as guides to conduct.”1 Those who are concerned with the rules in the latter way have, Hart tells us, adopted the internal point of view towards the rules. Hart thus defines the internal point of view in a very specific manner, by reference to the notion of “accepting and using a rule.” Furthermore, as Hart’s more general discussion in The Concept of Law makes clear, he has in mind quite specific and closely related conceptions both of what a rule is and of what it means to accept and use a rule. A rule is, according to Hart, a certain kind of complex social practice that consists of a general and regular pattern of behavior among some group of persons, together with a widely shared attitude within the group that this pattern is a common standard of conduct to which all members of the group are required to conform. To use the rule is to conform one’s own conduct to the relevant pattern, and to accept the rule is to adopt the attitude that the pattern is a required standard both for oneself and for everyone else in the group. The existence of such “social” rules, as Hart calls them, thus consists of these very facts of acceptance and use. Since the internal point of view is just the perspective of those who accept the rule, it follows that, as a conceptual matter, a social rule does not even exist unless a sufficiently large number of people within the requisite group adopt the internal point of view with respect to some regular pattern of behavior.