Worst case reliability analysis of PNoCs

The third problem, according to Hart, is concerned with the nature of rules and how law is an affair of rule. For Hart, whether one views law as analogous to orders backed by threats or to morality, one thinks of it, or a large part of it, as consisting of rules.²⁴ He believes the understanding of sanctions in the imperative theory of law distorts the function of rules as means to social control.

The concept of command in the Austinian sense, Hart argues, provides an inadequate account of all the various kinds of laws, in particular, those which grant powers for making wills, contracts, and so on. Again, according to the Austinian theory, the sovereign cannot be legally bound, order or command herself, but in many legal systems, as Hart points out, legislators are subject to the laws they make.

More still, the command theory ignores a source of law important in some systems.

Commands or orders require a person or persons who issue them, so the theory focuses on a legislature or sovereign as the source of law; but in common-law systems, customs is often an important source of law. Hence, the Austinian theory of law as commands unduly restricts the content, range, and origin of laws.

On account of this, Hart argues that law is an affair of rules. There are difficulties and uncertainties concerning the concept of rules, for there exists a broad class of legal rules that differ in function and kind from orders backed by threats. Orders and laws, on the Austinian sense, primarily impose duties with the threat of a sanction (evil) if one fails to comply, but many laws do not have sanctions. Instead, they provide facilities for a person to realize her desires by conferring powers to create structures of rights and duties.²⁵

Some legal philosophers have held that judges do not decide cases according to rules but according to their prejudices, dispositions, and views of the moment.²⁶ But Hart thinks that part of the basis for this claim emanates from the obscurity of the concept of a person using or following a rule.

Furthermore, the complexity that is associated with following a rule, he says, is partly derived from the obscurity about what a rule is. In Hart‟s understanding, there are different kinds of rules. Some prescribe behaviour; others confer powers or establish conditions for engaging in certain kinds of activity such as making wills and contracts. The existence of these various types of rules might depend on different conditions; hence the question: What does it mean to say a rule exists and to what extent is law a matter of rules?

It is Hart‟s intention that the understanding of law as a matter of rule is the most profitable way to start. To guide against a shallow cognition of rule in relation to behavior, he isolates social habits which are not rules in the strict sense of the word but which can be confused with them. Social habits, according to Hart, have to do with a convergence of behavior.

Thus a “mere convergence in behavior between members of a social group may exist; for

instance, all may regularly drink tea at breakfast or go weekly to the cinema, yet there may be no rule requiring it.”²⁷

Besides, when a recruit in the army wakes up at 5 o‟clock every morning because the law says so, he is not performing a habitual behavior. Instead, Hart remarks that the difference between people habitually going to the cinemas and a recruit getting up by 5am everyday even demonstrates itself in our language.

Therefore, in describing social habits, Hart argues, we do not wish to express an obligation. No doubt, we can criticize people for some habits when they exhibit some awkward behavior, it does not mean that when it happens, we are doing so with a view of claiming that they are liable to punishment. Social habits and social rules similarly refer to conduct in question generally, though not invariably. Hence social habits refer to objective fact in the world. In his statement, Hart argues that it is a performance understood within its environment of occurrence, as in a game. It cannot be reduced to truth conditions.²⁸

In The Concept of Law, Hart pushes the game-analogy further as an elaboration of the method of elucidation. According to this game theory, to understand a rule is to come to appreciate how it operates within the system that gives rise to it. Hence legal rules ought to be understood from their internal aspect. It is Hart‟s conviction that “if a social rule is to exist, some at least, must look upon the behavior in question as a general standard to be followed by the group as a whole.”²⁹

This is an appeal to contextual elaboration since it involves the attitude of those who know what it means to use the rules as standards of evaluation. Hart illustrates this as an attitude of those, for example, who play within certain rules of the game, like chess. Chess players play within certain rules and make the relevant moves within certain conditions. Thus, those who adopt the internal aspect of rules have “a reflective critical attitude to this pattern of behavior:

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 property of all moving the Queen in that way.”³⁰ Feelings, according to Hart, are neither necessary nor sufficient for the existence of „binding‟

rules. What is necessary rather is a critical reflective attitude, as we have indicated.³¹

By way of summary, Hart‟s concern in introducing the internal aspect of rules is to establish the normativity of rule among those who take the rule as a standard of behavior. Since to understand a rule, it is necessary and sufficient to understand it from the point of view of those

who accept it as a criterion of behavior, (for there lies the normativity of rule), so also legal concepts should be understood and elucidated within a certain legal environment in which they occur.

On this account, what this implies is that the insider‟s viewpoint is not logically equivalent to non-legal judgements of the spectator—the external point of view. Instead, a reporter can describe the internal point of view itself. Hart therefore urges that his The Concept of Law be understood as an essay in descriptive sociology where his appeal to the internal viewpoint, as one of his linguistic tool, is a suggestion that we listen to the insiders‟ view within the context of usage.