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More on H.L.A. Hart

1.

PLAN FOR TODAY’S LESSON: More on H.L.A. Hart
• Introduction. Thoughts on:
• Last in-class writing
• Reading
• Following a social rule and not acting according to a social rule:
• Examples
• Hart Reading/Discussion
• Following a social rule and not acting according to a social rule
• “External” and “internal” aspects of rules…
• In-class writing:
[1] Explain the internal aspect of rules.
[2] Come up with two questions about the internal aspect of rules.

2.

Thoughts on in-class writing
Overall, there was some interesting thinking
—including one creative picture!—
about social rules.

3.

Thoughts on in-class writing
I asked you to come up with some questions
about social rules.
Some of you did and some of you didn’t.

4.

Thoughts on in-class writing
If you did, keep asking questions!
Coming up with questions is
practice
in thinking for yourself.

5.

Thoughts on in-class writing
If you didn’t ask questions,
and you’re wondering
how to “come up with” some
when none come into your mind,

6.

Thoughts on in-class writing
Try taking another look at
what you have read,
or what you have written,
and ask yourself:

7.

Thoughts on in-class writing
“Do I really understand this?
Are there words whose meanings I could get clearer on?”

8.

Thoughts on in-class writing
This is like our exercises on
the Definition of Law and
Lawyers and the Rule of Law.

9.

Thoughts on in-class writing
It is easier to come up with questions
about something you read or wrote
if you’re interested in it,
and want to know more about it.

10.

Thoughts on in-class writing
But being especially interested is not essential.
Coming up with questions is a skill you can learn with practice.

11.

Thoughts on in-class writing
It’s a skill
lawyers
use
all
the time.

12.

Thoughts on in-class writing
“Lawyering…is actually less about the art of arguing and more
about the art of asking questions…
“Indeed, legal change often starts with a question…Of course,
questions won’t change the world on their own. But nothing
changes when no one asks.”
--Professor Daniel Hemel
https://www.law.uchicago.edu/news/good-lawyer-asks-good-questions

13.

This leads me to: Thoughts on reading
Reading Hart would not be easy even in Russian.
(Did anyone look at the Russian translation of Hart’s
Concept of Law that Maksud uploaded?)

14.

Thoughts on reading
Improving the ability to read difficult materials
is important for lawyers.

15.

Thoughts on reading
As lawyers,
you will have to read and understand difficult materials
on your own.

16.

Thoughts on reading
But how do you do improve that ability?
Today I will try to give you an introduction,
by reading with you.

17.

Thoughts on reading
First, it helps to know:
Why are we reading Hart?

18.

Thoughts on reading
Because he helps us understand parts of our Definition of Law.

19.

Definition of law.
Law is…
“…the system
of rules
which a particular country or community recognizes
as regulating the actions of its members and
which it may enforce
by the imposition of penalties.”

20.

Definition of law.
Law is…
Legal rules are a kind of social rule.

21.

Definition of law.
Law is…
Hart starts to explain legal rules,
by explaining what it is
to follow social rules in general.

22.

Definition of law.
Law is…
So, the first part of our definition of law
that Hart helps us to understand is…

23.

We start with rules: Hart’s going to tell us something about rules.
“…the system
of rules
which a particular country or community recognizes
as regulating the actions of its members and
which it may enforce
by the imposition of penalties.”

24.

Following a rule,
and acting without following a rule.
Our examples of each from last time?

25.

Following a rule,
and acting without following a rule.
When you take off your shoes as when you enter a home
you are following a social rule.
When you take a taxi to work you are not.

26.

Following a rule.
Acting without following a rule.
In both cases, people behave in a way that other people do.
What’s the difference between these cases?

27.

Following a rule.
Acting without following a rule.
Hart reading…

28.

What is Hart doing in this paragraph?
What is the point of this paragraph?
What, if anything, do you not understand here?
[1] …What is the acceptance of a rule? …To answer [this
question] we must…turn aside from the special case of legal
rules. How does a habit differ from a rule? What is the
difference between saying of a group that they have the
habit, e.g. of going to the cinema on Saturday nights, and saying
that it is the rule with them that the male head is to be bared on
entering a church?...

29.

What is Hart doing in this paragraph?
What is the point of this paragraph?
What, if anything, do you not understand here?
[2] There is certainly one point of similarity between social
rules and habits: in both cases the behaviour in question
(e.g. baring the head in church) must be general though not
necessarily invariable; this means that it is repeated when
occasion arises by most of the group… But though there is this
similarity there are three salient [=important] differences.

30.

What is Hart doing in this paragraph?
What is the point of this paragraph?
What, if anything, do you not understand here?
[3] First, for the group to have a habit it is enough that their
behaviour in fact converges. Deviation from the regular course need
not be a matter for any form of criticism. But such general
convergence or even identity of behaviour is not enough to constitute
the existence of a rule requiring that behaviour: where there is such a rule
deviations [=not following the rule] are generally regarded as lapses or
faults open to criticism, and threatened deviations meet with pressure
for conformity…

31.

What is Hart doing in this paragraph?
What is the point of this paragraph?
What, if anything, do you not understand here?
[4] Secondly, where there are such rules, not only is such criticism in
fact made but deviation from the standard is generally accepted as a
good reason for making it. Criticism for deviations is regarded as
legitimate or justified in this sense, as are demands for compliance with
the standard when deviation is threatened…. [But not everyone must
comply all the time.] …[T]he statement that a group has a certain rule is
compatible [=consistent] with the existence of a minority who not only break
the rule but refuse to look upon it as a standard either for themselves or others.

32.

What is Hart doing in this paragraph?
What is the point of this paragraph?
What, if anything, do you not understand here?
[5] The third feature… we shall call the internal aspect of rules. When
a habit is general in a social group, this…is…a fact about the
observable behaviour of most of the group. In order that there should
be such a habit…[it] is enough that each…behaves in the way that
others also in fact do. By contrast, if a social rule is to exist some at
least must look upon the behaviour in question as a general
standard to be followed by the group as a whole. A social rule has an
'internal' aspect, in addition to the external aspect which it shares
with a social habit and which consists in the regular uniform
behaviour which an observer could record.

33.

What is Hart doing in this paragraph?
What is the point of this paragraph?
What, if anything, do you not understand here?
[6] This internal aspect of rules may be…illustrated from the rules of any
game. Chess players do not merely have similar habits of moving the
Queen in the same way which an external observer, who knew nothing
about their attitude to the moves which they make, could record. In
addition, they have a reflective critical attitude to this pattern of
behaviour: they regard it as a standard for all who play the game. Each not
only moves the Queen in a certain way himself but 'has views' about the
propriety (=rightness) of all moving the Queen in that way. These views are
manifested in the criticism of others and demands for conformity made
upon others when deviation is actual or threatened, and in the
acknowledgement of the legitimacy of such criticism and demands when
received from others. For the expression of such criticisms, demands, and
acknowledgements a wide range of 'normative' language is used. 'I (You)
ought not to have moved the Queen like that', 'I (You) must do that', 'That
is right', 'That is wrong'.

34.

Hart excerpt summary
Two aspects of following a rule-the external aspect
and
the internal aspect.

35.

Hart excerpt summary
External aspect of following a social rule
People behaving in way that others do.

36.

Hart excerpt summary
Hart calls this aspect of rules “external,”
because
others can observe the similar behavior.

37.

Hart excerpt summary
Similar behavior is not enough,
by itself,
to say that people are acting
according to a social rule.
Something else is needed.

38.

Hart excerpt summary
That something else is:
when you follow a social rule that you accept,
Hart says,
you have a certain attitude towards what you are doing...

39.

Hart excerpt summary
Hart calls this attitude, the internal aspect of rules.

40.

Hart excerpt summary
Apply Hart’s analysis
of the internal aspect of rules
to taking off your shoes…

41.

Internal aspect of rules
[1] You know that people expect you to take off your shoes.
[2] You believe that taking off your shoes is the right thing
to do; it is something you should do…

42.

Internal aspect of rules
[3] If you did not take off your shoes, you believe other people
will disapprove of you, and, maybe, criticize you.
[4] Not taking off your shoes is a good reason
for disapproval and criticism.
--In other words: the criticism is justified, or, legitimate.

43.

“Other people will criticize you”

44.

Summary of elements of internal aspect of rules
• People expect you—
• To observe the rule.
• You believe:
• Observing the rule is:
• The right thing to do
• Something you should
do…
• If you do not observe the rule,
other people--
• Will disapprove of you
• Might criticize you.
• Not observing the rule is:
• A good reason for other
people’s disapproval and
criticism
• The criticism would be
justified, or, legitimate.