External Internal Normative Statements

“Raz’s distinction between committed and detached normative statements is a valuable supplementation to my own distinction between external statements about the law and internal statements made by those who accept the law” (Hart).

It is tempting to adopt Hart’s statement which is essentially to regard the Raz approach to normative statements as an endorsement and possibly a refinement (“valuable supplementation”) of his own. However, an analysis of each approach and a comparison with that of certain other commentators reveals this to be fallacious. Indeed, Raz himself has directly refuted Hart’s claim.

Raz defines normative statements thus:

“Belief-based explanations usually divide normative statements about the law into two groups. Some are made by people who believe in the validity of the legal point of view; they make such normative statements to assert what valid reasons for action there are. The second group consists of statements about people’s beliefs and attitudes to norms.”

Raz acknowledges that it is difficult to apply such reasoning to statements as to what ought to be done according to law. It is important to distinguish between a statement of the law as requiring or prohibiting a particular course of action and the underlying reason for behaving in accordance with a stipulated legal norm. Accordingly, a statement that there is an obligation to pay income tax or that one is prohibited from parking within a particular area may represent an accurate statement of the law but does not imply endorsement of the requirement to comply with it. The distinction between committed and detached normative statements is usefully illustrated by a non-legal example, namely vegetarianism. A non-vegetarian may state to a vegetarian that the latter should not eat meat but the vegetarian will be aware that the maker of the statement is stating a known principle without committing to the code of conduct which it reflects. Such an instance is therefore to be distinguished from a situation in which the statement emanates from a fellow vegetarian.

Hart’s categorisation of norms is therefore at first sight superficially similar if not identical:

“When a social group has certain rules of conduct, this fact affords an opportunity for many closely related yet different kinds of assertion; for 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 a group which accepts and uses them as guides to conduct. We may call these respectively the ’external’ and the ’internal points of view’ [emphasis supplied].”

He cautions, however, against the recognition of a purely external perspective. If such an observer remains entirely detached from the social group upon which he is commenting, there is a danger that he will come to regard the rules or laws of the group as merely predictive of behaviour and sanctions imposed for non-compliance as simply a hostile reaction to non-conformity. There is, of course a difficulty in differentiating between the internal and external approaches. The adoption of an obligation will in most societies beyond the very primitive manifest itself as legislation and a formalised system of justice. These outward manifestations of the internal can then easily be interpreted by the external observer as evidence that there is simply compliance with a legal code as a result of its existence and the sanctions which will be applied in the event of an infraction of the rules. It is submitted that this is fallacious. The processes of legislation and adjudication should be regarded as the product of acceptance by society of the need to conform to a particular code of behaviour and the existence of sanctions is properly to be regarded as a legitimate mechanism by which the potentially aberrant behaviour of a minority may be regulated.

The fact that there is a genuine distinction between the normative philosophies of Hart and Raz may be demonstrated by an examination of the work of Kelsen and Raz’s endorsement thereof. Kelsen postulates the theory of a basic norm because he regards it as necessary to explain the coherence and consistency of legal systems. Such systems are not an accidental coincidence of the existence of such norms; a legal system is a system precisely because it contains such norms. Raz comments:

“Thus, though every law is created by human action, it derives its validity not from the act, but from another law authorising its creation. Ultimately, all positive laws owe their validity to a non-positive law, a law not created by human action. Only a non-positive law can be the ultimate law of a legal system; only it does not presuppose another norm from which it derives its normatively. This non-positive law is the basic norm.”

In 1961, Hart had the opportunity of debating this theory of norms with Kelsen at the Law School of the University of California and expressed particular difficulty in understanding the italicised sections (Hart’s emphasis) of the following passage from Kelsen’s General Theory:

“…statements, by means of which the science of law represents law must not be confused with the norms created by the law-making authorities. It is preferable not to call these statements norms, but legal rules. The legal norms enacted by the law-creating authorities are prescriptive; the rules formulated by the science of law are descriptive. It is of importance that the term ‘legal rule’ or ‘rule of law’ be employed here in a descriptive sense.”

This is hardly surprising since Kelsen appears to defend the purity of norms and is determined to dismiss the particular laws of a society from this category by reducing them to the status of “mere rules”. By contrast, Hart’s internal/external approach seeks to embrace all as norms and explains the difference between what Kelsen would regard as “pure norms” and laws on the basis of the reaction to them of the observer/maker of the statement.

In seeking to distance himself from Hart, Raz prays in aid Kelsen’s approach. He complains that Hart, in explaining that statements as to norms are made either from the internal or external point of view, seeks to reconcile this method of categorisation with Raz’s “committed” and “detached” analysis. Raz continues:

“My claim that many such statements belong to a third type which is logically related to the basic ones, but is not identical with them, is closely related to Kelsen’s view.”

He concedes that “Kelsen’s position is admittedly very obscure and much of it is wrong and confused but he was right to insist on a third class of statements.”

There is a fundamental issue upon which Raz and Kelsen may be regarded as soul mates which sets them both apart from Hart and demonstrates that Hart cannot legitimately lay claim to Raz’s philosophy as a useful extension of his own. It has been pointed out by Himma that the “Razian Critique” turns on the claim that the law must be capable of being authoritative. Every legal system claims that it possesses legitimate authority thus “a normative system that does not claim authority is conceptually disqualified from being a legal system”. Raz claims that a system of norms must be capable of replacing or pre-empting the reasons and actions that would otherwise be employed by those subject to them and that such norms must be justified by showing that the subjects of them are more likely to comply with the reasons which apply to them if they accept such directives and try to comply with them rather than attempting to follow a moral rationale that they regard as applying to them directly even if the laws in question are simply a reflection of such moral imperatives. Thus Raz asserts the supremacy of laws as norms. When, therefore, he speaks of subjects as committed or detached, the law remains an absolute and the distinction lies in the objective adherence of the individual to such a standard.

This stands in stark contrast to the approach of Hart. When the latter speaks of the internal and the external there is a far greater sense of the perspective of the detached individual who is electing whether to commit to a particular stipulation or not. This is particularly apparent in Hart’s own critique of the external observer described above: taking the external perspective to the extreme, the subject is in danger of becoming a wholly detached observer who is regarding norms as merely benchmarks against which behaviour in society is judged and by reference to which the compliant behaviour of the majority may be predicted.

It may be concluded therefore that notwithstanding the apparent similarity of the respective committed/detached and internal/external approaches to norms evinced by Raz and Hart respectively and the fact that in certain situations they can be shown to be identical in their analysis of certain behaviour, the two approaches are in fact born of entirely different heritages each containing a fundamentally distinct version of the status of legal norms. In view of his well-publicised differences with Kelsen, one is tempted to wonder whether in making the remark which forms the title hereof, Hart was at best “tongue in cheek” and at worst seeking to denigrate the Razian approach by subsuming it into his own analysis.

Bibliography

Dalacroix, S., Hart and Kelsen’s Concepts of Normativity Contrasted, Ratio Juris (2004)(17)(4), pp.501 et seq.
Freeman, M., Lloyd’s Introduction to Jurisprudence, (6^th Ed., 1994)
Hart, H., Essays in Jurisprudence and Philosophy (1983)
Hart, H., The Concept of Law, (2^nd Ed., 1994)
Himma, K., Bringing Hart and Raz to the Table; Coleman’s Compatibility Thesis, Oxford Journal of Legal Studies (2001)(21)(4)
Kelsen, H., General Theory of Law and State, (1948)
Raz, J., Kelsen’s Theory of the Basic Norm, American Journal of Jurisprudence (1974)
Raz, J., Practical Reason and Norms, (1975)
Raz, J., The Authority of Law, Essays on Law and Morality (1979)
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