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Hart’s “internal point of view”, seen from a courtroom in Lahore

Hamza Qureshi Fellow
· 3 replies
LawAnalytic#legal-positivism#rule-of-recognition
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Hart distinguishes being obliged to do something (as when a gunman demands your money) from having an obligation (as under a legal rule). The difference lies in the internal point of view: officials, especially judges, accept the rule of recognition as a standard for identifying valid law.

In Pakistan we've tested this the hard way. In State v. Dosso (1958), the Supreme Court used Kelsen's theory of revolutionary legality to validate a coup: a successful revolution creates a new legal order. In Asma Jilani (1972), the Court rejected that reasoning. Later courts invoked a "doctrine of necessity" to validate further military takeovers.

What does this do to Hart's idea? If judges "accept" a new rule of recognition because a general has seized power, is that the internal point of view, or a gunman situation dressed as law?

3 replies

  1. Deepa Nair

    Contributor

    Kelsen himself would say it doesn't matter what judges feel: the basic norm is presupposed whenever a legal order is by and large effective. That's what made his theory so convenient for coup courts. Hart at least requires that officials actually accept the rules.

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  2. Javier Morales

    Fellow

    Spain went the other way in the 1970s: the transition to democracy was carried out through Franco's own legal channels, with the Law for Political Reform of 1977 approved under the old rules. People call it going "from law to law". Legal continuity was used to dismantle the regime rather than to legitimise a new one.

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    1. Hamza Qureshi

      Fellow

      That's fascinating, Javier. So the same mechanism, formal legal continuity, can serve opposite purposes. Maybe the internal point of view is necessary but tells us nothing about legitimacy, which is exactly what positivists would say.

      Helpful · 3

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