Michael S Green (William & Mary Law School) has posted A Puzzle About Hart's Theory of Internal Legal Statements (Francesca Poggi & Alessandro Capone (eds.), Pragmatics and law: practical and theoretical perspectives, 195-221 (Springer Verlag 2017)) on SSRN. Here is the abstract:
In this essay, I describe a puzzle concerning Hart’s theory of internal legal statements and the internal point of view from which such statements are made. The puzzle is tied to a commonly assumed requirement for an adequate theory of law (the Requirement, for short). According to the Requirement, a theory of law must explain why participants in legal practices should justify their decisions by appeal to legal norms, rather than pointing solely to how practice-independent norms, such as morality and prudence, are triggered by social facts about legal practices. Theories of law that are dissimilar in other respects — such as Scott Shapiro’s planning theory, Ronald Dworkin’s interpretive theory, and Hans Kelsen’s pure theory — all satisfy the Requirement. The American legal realists’ prediction theory of law does not.
Hart argues that law cannot exist unless officials justify their decisions through internal legal statements (ILSs). In an ILS the existence of legal practices and moral or prudential judgments about the appropriateness of following the standards used in those practices are presupposed. An official justifying his decisions solely by examining legal practices in the light of moral or prudential norms is not making an ILS. This is an important reason that Hart rejects prediction theories of law.
But Hart’s theory of law fails to satisfy the Requirement. Hart provides no account of why officials should justify their decisions through ILSs rather than solely on moral and prudential grounds. As a result, Hart fails to explain why law vanishes when officials stop making ILSs and begin justifying their decisions solely by reference to morality and prudence. I end with a brief discussion of a different, albeit speculative, reading of ILSs, under which Hart’s theory of law satisfies the Requirement.