The Internal Aspect of Social Rules
(2015) 35 Oxford Journal of Legal Studies 283
22 Pages Posted: 26 Jul 2013 Last revised: 14 Jun 2015
Date Written: July 25, 2013
One of HLA Hart's main contributions to jurisprudence is his theory of social rules. Hart said, essentially, that a social rule exists if the members of a society act in some way and have a certain attitude. Most legal philosophers think that Hart's account of this attitude is too general, however, and that his theory is overinclusive as a result. In this article, I draw on recent work in the philosophy of action to propose a more precise account of the relevant attitude, and a revised version of Hart's theory. I claim that a social rule exists if the members of a society act in some way and ‘accept’ they ought to act this way, independent of their beliefs about the matter. One of the implications of this idea is that the attitude that underlies a social rule is closely analogous to a presumption or fiction about what ought to be done.
Keywords: Jurisprudence, HLA Hart, rules, norms, acceptance
JEL Classification: K00
Suggested Citation: Suggested Citation