Ayn Rand argued that altruism is a moral evil, because it violates principles of reciprocity and leads to social decay.

The philosophy of Objectivism includes the idea that all actions and choices are ultimately motivated by self-interest; people do things for their own benefit, whether they realize it or not. One problem I have with this idea is that it rules out the possibility of any actions that are altruistic (selfless, or purely for another’s benefit).

I recently attended a conference where the presenter, C. Bradley Thompson, defended the philosophy of Objectivism. During a question and answer session, someone asked him, “What single philosophical idea do you believe has caused the most damage to human society?” He responded immediately and confidently, “Altruism.” He argues that human beings consistently forgo actions that are in their best individual and collective interests for the sake of an unobtainable ideal that usually does more harm than good. Mutual exchange, based upon mutual self-interest, does for more good in the world than encouraging free-loaders and laziness by giving valuable time and resources to those unwilling or unable to reciprocate.

Psychologists and biologists continually debate whether true, genuine altruism is even possible in a species that is the product of biological evolution. Is it possible for a genetic trait to be passed on through the generations if this trait did not, in some way, improve the individual’s ability to reproduce? Even if this is possible, it would make the “trait” of altruism a genetic accident, an aberration in the normal course of evolution.

Most psychological paradigms treat altruism as a kind of selfishness in disguise. As Nathan Richardson explains, “[From the traditional psychological perspective], the main purpose or intent behind each action then becomes maximizing personal gain. There are two ways to do this: ignoring the desires of others, or giving space for others’ desires to increase the odds of obtaining your own desires.” In other words, we help others because doing so, in some way (either directly or indirectly), benefits us. Thus, from this perspective, altruism is simply a form of long-range self-interest. We love others because we ultimately love ourselves.

Turning the Debate Upside Down

Some would say that all actions are self-interested, and altruism is merely a self-interested act with the illusion of being other-centered. But perhaps all acts are actually other-centered, and self-interest is the illusion.

It seems that the debate has always centered on two questions: Is genuine altruism even possible? If so, is it necessarily better than rational self-interest? Both questions, however, presume the existence of genuine self-interest. I would like to turn the debate on its head and ask a new question: Is genuine self-interest even possible?

To clarify, when I speak of self-interest, I question the possibility that the soul may be interested, focused, attentive to its own well-being to the exclusion of others. I do not dispute the fact that the self may have interests. For example, the self may pursue pleasure, enjoy music, or seek to help others, and all these things may be categorized as the “interests of the self.” However, I intend to argue that the self may not be the object of its own interests, and it is this kind of self-interest that I refer to. In a sense, it is psychological egoism that I critique.

Background: The Call of the Other

In order to lay some groundwork for why I ask this question, I’ll need to review some ideas I have previously written about. Earlier this year, I wrote a series of posts outlining Terry Warner’s ideas about self-deception and self-betrayal. These ideas are outlined in literature published by the Arbinger Institute and in Warner’s book, Bonds That Make Us Free. If you are not at all familiar with Arbinger’s work or with Warner’s ideas, I recommend that you read this series before continuing with this post. This series contains some anecdotal examples that I will reference in this post.

Simply put, Warner argues that we are constantly receiving signals from our fellow human beings about how we should treat them. In other words, we are constantly and inevitably aware of the humanity of those around us, and this humanity beckons us in general and often specific ways. These beckons present us with a choice: we can either respond to them, or we can resist them. When we resist the beckon of another person’s humanity, we do them wrong.

However, not only do we do them wrong, be we rewrite the world we see and react to in such a way that makes our wrongdoing seem right. We invent rationales and justifications for our wrongdoing, and by so doing create for ourselves a world in which our actions seem to us the only right course of action. These rationalizations often take the form ofaccusations. We often use the faults of those whom we are wronging (or we even invent faults for them) as an excuse for our wrongdoing. We cloak or mask the humanity we are resisting through accusations. For example, I recited the story of Marty, who resisted the call to help his wife by tending the baby. As he resisted this call, he also mentally and emotional accused his wife of wrongdoing towards him, citing her wrongdoing as a justification for his own.

Accusations are not the only rationalization for wronging others. Just as frequently, we cloak our wrongs in terms of self-interest. We cite our own needs as an excuse for not responding to the call of need of the Other. Again, in the story of Marty, he also determined that his own need for sleep outweighed the needs of his wife. The pressures of his job required him to sleep. I have numerous anecdotes from my own life where I have used my own needs as an excuse not to meet the needs of others. I have, for example, decided that getting to class on time was more important than holding the elevator door for someone. I have used homework as a rationale for not performing simple acts of service for roommates or friends. In every instance, I have put my own needs ahead of the needs of others, but I excused it by believing I was acting in my own best interest.

Consider: when we resist the call of the Other, either by masking the Face of the Other in an accusation or by placing our own needs ahead of the needs of the Other, we are doing them wrong. This isn’t just a passive sin of omission. When we neglect the call of the Other, we actively reinvent the world in order to justify doing it. Resisting the humanity of another person is an action, not a lack of action. An analogy is helpful here. When we push away the hand of someone who has offered a handshake, we aren’t simply neglecting to shake the person’s hand, we are actively pushing it away. According to Warner and Levinas, when the Face of the Other beckons, simple neglect is impossible. Failure to respond is active resistance.

I would like to attach a label to this wrongdoing: malice. When we actively resist the Face of the Other, we do the opposite of love: we experience malice towards the Other. Although the word is most frequently used in the passive tense (as something we experience), I mean it here in an active sense. In other words, when Faced by the Other, we have two real choices. We can either respond with love, or we can respond with malice. Simply ignoring the Face of the Other and doing neither is not an available option.

The Role of Reason in Our Lives

Emmanuel Levinas, the philosopher on whose writings many of Warner’s are based, argued that reason itself is a response to the Face of the Other. For example, to use Warner’s terminology we put our rational capacities to use in one of two ways: we can seek and discover ways to respond to the call of another’s humanity, or we can seek and invent ways to justify our resistance to the another’s humanity. Both possibilities use human reason, but for different purposes. In either case, reason was called into action in response to an obligation: either as a means of responding to it, or as a means of explaining it away.

If these are the only two responses to the call of another person’s humanity, then what of the third option, self-interest? If these are really the only two genuine options, then self-interest is simply the justification or rationale we invent for resisting the call of another person’s humanity. Simply put, altruism is not disguised self-interest. Rather, self-interest is disguised malice. It is putting reason to work in excusing our response to our fellow human beings.

In defense of this claim, I would like to recall another claim made by Warner: those who do no wrong need no rationale or justification for their actions. They need only to find the best way to do it. For example, when those who risk their lives to rescue a child from a busy street are asked why they did so, they most often respond, “Because it just felt like the right thing to do.” They certainly used reason to determine the speed of the cars on the road, how much time they had to rescue the child, or the fastest way back to the sidewalk. However, they did not use reason at all to invent a reason for their actions.

However, when someone is asked why did not help someone in need, they’ll almost always have a rationale for their inaction. Those who do wrong (and everyone fits in this category) constantly use reason to explain why they do the things they do. We invent reasons for our actions only when we feel the need to justify them. Self-interest is a reason for action. The pursuit of rational self-interest is a sophisticated, ancient philosophy that provides criteria for when we should or should not help other people, based upon the sophisticated calculus of long-term goals and desires. Those who genuinely do no wrong do not need any such sophisticated calculus to motivate their lives or to rationalize their behavior.

The Soul as a Flashlight

Just as the flashlight cannot illuminate its own self (just as the eye cannot see itself), the soul can never experience itself as an object of obligation, attention, or interest. What we typically see as self-interest is really a justification for wronging others.

A standard flashlight can never shine light onto its own self. It can shine light outwards onto the surrounding environment, but it can never illuminate itself. I believe that the soul is much the same way: it can never be the object of its own attention, love, or interests. The soul can attend to things or people in the world around it, but never to itself. It can love things or people in the world around it, but never itself. It can be interested in things or people in the world around it, but never itself.

How then do we explain or describe self-love or self-image? James Faulconer, a respected philosopher and professor at BYU, explains, “Since by definition an image is not the real thing, the self placed at the center when one is concerned about self-image isn’t even a real self. … This is a corollary of the fact that love is necessarily of something other than ourselves: love of self is love of something that is not really our self.” In other words, love must be directed outwards, towards something in the outside world, something that is not the person who is doing the loving.

We can invent for ourselves an image of what we think we are, and direct our time and energies focusing on, fine-tuning, or serving the needs of this invented image of ourselves. By doing so, however, we are not actually focusing on our actual self, but only an image of ourselves that we have invented in our minds. We can never directly experience the presence of the self in the same way that we experience the presence of another person, and thus we can never experience an obligation to the self in the same way that we experience an obligation to another person.

In fact, I argue in this post that when we focus on serving the needs of this invented image, we are doing so as a rationale for resisting the Face of the Other. Even when we help others based upon a sophisticated calculus of self-interest, we are masking the face of the Other with an invented image of the self. And, since resistance is an active experience, not a passive one, and since resistance can best be categorized as malice, this kind of self-interest is simply a mild form of malice (although pernicious in its clever disguise). For this reason, I turn the traditional academic debate about altruism on its head and ask instead, “Is genuine self-interest even possible?”

Emmanuel Levinas was a Lithuanian Jew who lived from 1906 to 1995, and studied under some of the most influential thinkers in Europe. He later moved to France and authored one of the most exciting and original philosophies of the 20^th Century. He lived for a time as a prisoner of war during World War 2. After the war he responded with force against what he saw as the movement of western philosophy.

In Contrast with Western Philosophy

What is Western philosophy? Western philosophy traces its ancestry to ancient Europe, to countries such as Greece and Rome. It is the philosophy that you and I are already familiar with. It permeates our thoughts, ideas, and even how we make sense of the world. In Western philosophy, truth is generally considered to be the unchanging, foundational principles of the Universe. Philosophy itself is thought to be the method of reducing the flux of everyday experience to a set of static principles. For Western philosophy, there is no loss in this “reduction,” because we are making the world intelligible, or reducing the chaos we find in experience to unchanging unity.

In simple terms, in order to be truth, it has to be true everywhere, all of the time. Mathematical abstractions are the perfect example of Western truth. The equation c² = a² + b² seems to be true everywhere and everytime, regardless of the particular circumstances, and thus Pythagoras and subsequent Greek philosophers regarded it as truth. Thus, for Western thinking, all things that are dynamic, that are in motion, and that change can be accounted for by the few things that fundamentally do not change. The few things that are always the same govern or explain the many things that are in flux.

A perfect example of this Western way of thinking is in the scientific discipline. Scientists observe change in the world—be it objects falling or creatures evolving—and attempt to discover the unchanging principle to account for that change. For example, they develop a law of gravity to explain why things fall, and thus all the many instances of falling objects can be explained by the one law of gravity. They also formulate the law of natural selection to explain why creatures evolve. Both these laws are considered unchanging and static. Because these principles never change, scientists assume that they are more fundamental than what does change.

We can see that this idea of truth is everywhere in our society. Of course, this does not perfectly capture the thoughts of all Western philosophers. There are many variants and deviations from this worldview. We have summarized enough, however, to see what it is that Levinas responds to in his writings.

Reducing the Other to a Totality

Levinas claimed that there are two ways to know the world, or two ways that we can approach a phenomenon. Another way to say this is that there are two ways that we can know what is Other. The first way of knowing the world is the way that Western philosophy has adopted since its beginning. In order to describe this way of knowing the world, it may be best to use a metaphor. Consider a fruit, like an apple. The apple, upon first encounter, is not part of me; it is something other than me. However, when I eat the apple, it then becomes a part of me. When we consume food, we make it part of us, or part of the Same.

According to Levinas, Western philosophy does the same thing when it encounters the Other. It makes sense of the Other in a way that turns it into the Same. It destroys the otherness of the Other by reducing it to the Same. When we describe the Other in words or abstractions, we turn it into something that we can grasp, understand, encapsulate in words, and remake it in our own image. We use the idiomatic phrase, “I get it!” or, “I’ve got it!” to describe the way we know the phenomenon we’ve encountered. We thus take possession of the Other, and it thus becomes part of us. We become masters of the Other, because the Other has surrendered to us and has lost its alterity. The word alterity means “the state of being other, or different.” “Percieved in this way,” said Levinas, “philosophy would be engaged in reducing to the Same all that is opposed to it as other.” In essence, the goal of Western philosophy is to turn that which is alien into that which is familiar. Levinas continued, “Western philosophy coincides with the unveiling of the other in which the Other … loses its alterity. Philosophy is afflicted, from its childhood, with an insurmountable allergy: a horror of the Other which remains Other.”

There are many experiences that are perfectly compatible with this way of knowing the world. For example, descriptions of how things fall, mathematical principles, even bacterial infections are encounters with the world that are not distorted when enframed into a Totality.

Approaching the Other as the Infinite

However, there are many experiences where this process of subsuming the Other does distort the reality of the Other. For example, people are foremost and always an irreducible Other that must be approached differently. The second way Levinas said that we can know the world can be illustrated with another metaphor. Like the apple, when we drink from a spring, that which we drink becomes a part of us. But unlike the apple, we cannot drink all of the water that flows from the spring. Not only is there more to the phenomenon than we can consume, but there will always be more than we can consume, because it is an inexhaustible source. Thus, the Other is not something that we can encapsulate in words, take possession of, or make part of ourselves. There will always be something genuinely and irreducibly Other about it.

Levinas said, “The relation with infinity cannot, to be sure, be stated in terms of experience, for infinity overflows the thought that thinks it.” Let’s consider another example: when we think of the ocean, we have an idea what the ocean is and what it is like. However, there is always more about the ocean that we do not know. There will likely always be more in the ocean than what we know. Perhaps an even better metaphor is an idea of the cosmos: no matter what is contained in our idea, the reality of the cosmos is inexhaustible. It can never be fully encapsulated into words. The reality of the infinite will always be able to shatter whatever conceptions we make about it. We can never make the Infinite into a Totality. It can never be fully consumed, tamed, mastered, or made a part of us. In this mode of approaching the Other, we cannot make the Other into the Same. The Other is always in flux, because of its inexhaustible nature.

Because people are foremost and always an irreducible Other, they escape any attempt to  reduce them into a totality or to make them into the Same. C. S. Lewis wrote that when his wife died, he would remake the images and memories he had of her in his own image. He said, “Although ten minutes—ten seconds—of the real Helen would correct all this, the rough, sharp, cleansing tang of her otherness [was] gone. … The reality is no longer there to check me, to pull me up short, as the real Helen so often did, so unexpectedly, by being so thoroughly herself and not me.” This experience shows that there is something about the Other that is always in flux, that will always shatter whatever conceptions we form about it, that is inexhaustible in its presence as a spring of water. C. S. Lewis described God in a similar way: “My idea of God … has to be shattered time after time. He shatters it Himself. He is the great iconoclast. Could we not almost say that this shattering is one of the marks of His presence?” Levinas described this shattering as the other’s face: “The way in which the other presents himself, exceeding the idea of the other in me, we here name face. … The face of the Other at each moment destroys and overflows the plastic image it leaves me.” In other words, the Otherness of the Other cannot be made perfectly familiar without destroying its alterity.

When we make the Other into a Totality, the Other surrenders to us, and we take possession of it. When we approach the Other as the Infinite, something different happens; the Other inevitably pulls us into a relationship of obligation. “The face resists possession, resists my powers.” When we totalize another person, we do violence to that person. Only when we approach the Other as Infinite can we reduce the violence we do to them.

Conclusion

Human beings are inescapably an Infinity, not a totality. We see this in the way we approach others. Even when we are in a position to treat another person as an object, we inevitably acknowledge their humanity. For example, if a scientist wants to see what is inside a fruit, he simply slices it open and looks inside. However, few people would simply slice a living human being merely to satisfy a scientific curiosity. Even when we mistreat another person and treat them as objects, we acknowledge their humanity. We may laugh maliciously when we mischievously trip our friend, but no one laughs when a chair falls.

We see here a contrast between two different approaches: The reducing of the Other into a Totality, and the reverent approaching of the Other as the Infinite. Emmanuel Levinas worked to rupture the way we make sense of the world, to question the assumptions we make, and to create space for the second way of approaching the Other. According to Levinas, the reduction of what is infinite and Other to a totality and the Same is sometimes, if not often, a lesser and destructive method that mangles the phenomena we seek to understand. When we approach people as a totality, we can mask the genuine Otherness of those around us.

I recently encountered an incredibly well-thought out critique of philosophy. I actually agree with this man. This does not mean that I don’t see value in studying philosophy. It is incontrovertible that philosophers have profoundly affected the way we see the world, and there is value in studying their ideas and investigating alternative worldviews. I agree, however, that philosophy (as an intellectual pursuit of knowledge) will never bring us to eternal truth.

This, of course, does not change the mission of this site: to contrast, in a simple and understandable way, the philosophies of the world with revealed truth. I believe one of the best reasons to study philosophy is to provide a context for revealed truth. When we understand how revealed truth differs from ideas and worldviews invented by people, we can be more wise in our choices and decisions. However, philosophy itself will rarely lead us to revelation.

Jeffrey Thayne

Hayek begins his analysis of law by reminding us that the rule of law implies certain restrictions on government action. This makes the rule of law something distinct from legislation in general. Hayek explains: “From the fact that the rule of law is a limitation upon all legislation, it follows that it cannot itself be a law in the same sense as the laws passed by the legislator.” The conclusion here is that rule of law cannot be guaranteed or mandated by legislative enactment. In other words, when Hayek talks about the rule of law, he isn’t referring merely to constitutions or judicial procedures. Certainly, he says,

constitutional provisions may make infringements of the rule of law more difficult. They may help to prevent inadvertent infringements by routine legislation. But the ultimate legislator can never limit his own powers by law, because he can always abrogate any law he has made. The rule of law is therefore not a rule of the law, but a rule concerning what the law ought to be, a meta-legal doctrine or a political ideal. It will be effective only in so far as the legislator feels bound by it. In a democracy this means that it will not prevail unless it forms part of the moral tradition of the community, a common ideal shared ad unquestioningly accepted by the majority.

Thus, the rule of law is a meta-legal doctrine or ideal that places restrictions on a legislator’s actions.

The Difference Between Coercion and Administration

Hayek distinguishes between coercive activities of government and other administrative activities of government. Hayek felt that it is important to remember that “not every enactment of the legislative authority is a law.” He also noted that not every act of government is coercive. “It is equally important,” he said, “to remember that the rule of law restricts government only in its coercive activities.”

“The great majority of the so-called laws,” Hayek said, “are rather instructions issued by the sate to its servants concerning the manner in which they are to direct the apparatus of government and the means which are at their disposal.” Hayek suggested that some problems may be solved by separating the coercive aspects of government from other more administrative aspects of government. He continued,

Today it is everywhere the task of the same legislature to direct the use of these means and to law down the rules which the ordinary citizen must observe. This, though the established practice, is not a necessary state of affairs. I cannot help wondering whether it might not be desirable to prevent the two types of decisions from being confused by entrusting the task of laying down general rules and the task of issuing orders to the administration to distinct representative bodies and by subjecting their decisions to independent judicial review so that neither will overstep its bounds.

… The present arrangements help to obscure the fact that, though government has to administer means which have been put at its disposal (including the services of all those whom it has hired to carry out its instructions), this does not mean that it should similarly administer the efforts of private citizens. What distinguishes a free from an unfree society is that in the former each individual has a recognized private sphere clearly distinct from the public sphere, and the private individual cannot be ordered about but is expected to obey only the rules which are equally applicable to all. It used to be the boast of free men that, so long as they kept within the bounds of known law, there was no need to ask anybody’s permission or to obey anybody’s orders.

Central to the rule of law, according to Hayek, is that government “must never coerce an individual except in the enforcement of a known rule” and “can infringe a person’s protected private sphere only as punishment for breaking an announced general rule.” For these reasons, “under the rule of law the private citizen and his property are not an object of administration by the government, not a means to be used for its purposes. … the principle of the rule of law, in effect, means that administrative authorities should have no discretionary powers in this respect.” On the question of the legal limits of administrative discretion, Hayek explained:

As Dicey has pointed out, ‘in the management of its own business, properly so called, the government will be found to need that freedom of action, necessarily possessed by every private person in the management of his own personal concerns.’ It may well be that legislative bodies are often overzealous in limiting the discretion of the administrative agencies and necessarily hamper their efficiency. This may be unavoidable to some degree; and it is probably necessary that bureaucratic organizations should be bound by rule to a greater extent than business concerns, as they lack that test of efficiency which profits provide in commercial affairs.

Again, Hayek tempers this claim with the provision that the private citizen is not considered an “object of administration” of the government.

Restrictions on Law

Hayek outlined several basic requirements for the rule of law.

1. Generality and Prospectivity. Hayek believed that laws need to be abstract in some sense. Some have claimed that this means that laws cannot contain proper nouns. The principle of generality does have this effect; laws cannot name particular people, places, etc. Heyek explained, “The general, abstract rules, which are laws in the substantive sense, are, as we have seen, essentially long-term measures, referring to yet unknown cases and containing no references to particular persons, places, or objects.” Lumped with the generality principle is the idea that “laws must always be prospective, never retrospective, in their effect.”

2. Publicity and Understandability. According to Hayek, “[another] chief attribute which must be required of true laws is that they be known and certain.” Some scholars, such as legal realists and Critical Legal Studies, claim that court rulings are never certain and often inconsistent. The claim is that the rules or principles on which judges base their decisions often differ from the written words of the law, and therefore the rules that really matter in a legal case are not public or understandable. Hayek believed that those who critique the certainty of law are mistaken. “The modern tendency to exaggerate this uncertainty,” he said, “is part of the campaign against the rule of law.” Laws are generally good at this: “It is the cases that never come before the courts, not those that do, that are the measure of the certainty of the law.”

Hayek did acknowledge, in response to these critical theorists, that judicial reasoning isn’t perfectly predictable. He said, “Psychologically, legal reasoning does not, of course, consist in explicit syllogisms, and the major premises will often not be explicit.” What is important, he said, is that the public is able to know what is expected of them, and if a judge’s decision can be reviewed and, in turn, replicated by an independent court, the rule of law can be preserved.

3. Equality. Hayek felt that there was no room for class distinctions in the rule of law. “That any law should apply equally to all,” he explained, “means more than that it should be general in the sense we have [previously] defined. A law may be perfectly general in referring only to formal characteristics of the persons involved and yet make different provisions for the different classes of people.” Hayek sees this as one of the greatest protection against infringements on individual liberty. This is because legislators and government officials often exempt themselves from the obligation to obey the laws they enact, thus creating for themselves a protected or special class. The equality principle forbids this kind of legislation, and requires that officials be subject to the same laws they enact.

4. Separation of legislative and judicial powers. This follows from the generality principle. Hayek explained, “Rules must not be made with particular cases in mind, nor must particular cases be decided in the light of anything but the general rule… This requires independent judges who are not concerned with any temporary ends of government.”

Summary

In summary, Hayek was firm defender of the rule of law, which he considered a political ideal. He understood the rule of law as a set of restrictions on the legislative powers of any government, and outlined a few of those restrictions. He strongly believed in a separation of the private affairs of the populace and the administrative affairs of the government. He did not believe that government should have any discretion to coerce private citizens, unless done by laws that meet the rule of law criteria.

Jeffrey Thayne

H. L. A. Hart criticized the theory that law is simply the coercive orders of the sovereign to his subjects. He shows that this theory cannot explain the many facets of modern law, and concludes that a fresh start is needed. He said that the reason that the “conception of law as the sovereign’s coercive orders” fails is because it does not include the concept of a rule.

The External and Internal Points of View

Some theorists have developed what Hart called the “predictive theory of law,” which claims that law is a way for human beings to predict the actions of the fellow beings, particularly which of their own actions will bring upon themselves a hostile reaction from their peers. Laws give them guidelines to follow that will help them evade potential punitive consequences.

Hart feels as though this is an inadequate theory of law. Let’s try a thought experiment. Imagine an alien race studying the human species as a naturalist would study the meanderings of a colony of ants. The alien creatures would, eventually, discover a pattern of behavior; everyone people performed a certain act, others would detain or hurt them in some way. Through observation, they could eventually discover a rule that governed this behavior—every time a person does X, others respond with punishment Y. Another example: every time a light turns red, people will stop.

The alien creatures would have thus discovered among the human species a law and its associated enforcement. They could predict human action, to an extent, based upon these laws. They could treat traffic lights as signals that help them predict the behavior of motor vehicles, in the same way that “clouds are a sign that rain will come.” Then could even conclude that if an individual does not want punishment Y, he should not perform X. Hart calls this predictive vantage point the external point of view.

From this external point of view, if a law is not enforced, it doesn’t really exist at all. It would be undetectable to the external observer. An external observer would conclude that legal obligation is inextricably tied to enforcement and coercion. If someone can get away with breaking the law, they are not obligated to follow it. This is the implication of the statement that law is merely the coercive commands of the sovereign.

Hart’s “fundamental objection” to this external point of view is that “the predictive interpretation obscures the fact that, where rules exist, deviations from them are not merely grounds for a prediction that hostile reactions will follow or that a court will apply sanctions to those who break them, but are also a reason or justification for such a reaction and for applying the sanctions.” Simply put, breaking a rule does not simply allow us to predict that punishment will follow, it gives us grounds to say that punishment should follow.

Hart described this perspective as the internal point of view. This insight is something that can never be discovered by someone from the external point of view. Hart said that someone from the external point of view “will miss out a whole dimension of the social life of those whom he is watching, since for them the red light is not merely a sign that others will stop: they look upon it as a signal for them to stop, and so a reason for stopping in conformity to rules which make stopping when the light is red a standard of behaviour and an obligation.”

In essence, Hart claimed that legal theorists need to acknowledge both the external and internal points of view, and that the predictive theory of law defines the internal point of view out of existence. A theory of law needs not only to describe law as it is, but also the existence of legal obligation. In other words, a legal theory needs to account for the fact that law gives us a reason for acting, and that reason for acting cannot just be coercion or the avoidance of punishment.

Obligation

Another reason that Hart criticizes legal theories that base obligation in coercion is that they fail to describe real obligation at all. “Let us recall the gunman situation,” he said. “A orders B to hand over his money and threatens to shoot him if he does not comply.” We often, mistakenly, describe this situation in terms of obligation because this situation is “certainly one in which we would say that B, if he obeyed, was ‘obliged’ to hand over the money.” This, however, fails to account for legal obligation. “It is, however,” he continued, “equally certain that we should misdescribe the situation if we said, on these facts, that B ‘had an obligation’ or a ‘duty’ to hand over the money.” Clearly, he concluded, “we need something else for an understanding of the idea of obligation. … To feel obliged and to have an obligation are different though frequently concomitant things.” Coercion cannot be the source of legal obligation.

Neither do prescriptive rules, simply by their nature, carry an obligation. Hart described some kinds of rules that do not seem to carry the weight of obligation, such as table manners, for example, or the rules of grammar. He said, “To use in connection with rules of this kind the words ‘obligation’ or ‘duty’ would be misleading and not merely stylistically odd. It would misdescribe a social situation.”

Primary and Secondary Rules

Hart described two basic types of rules. Under the primary type of rules, he said, “human beings are required to do or abstain from certain actions, whether they wish to or not.” Rules of the secondary type “provide that human beings may by doing or saying certain things introduce new rules of the primary type, extinguish or modify old ones, or in various ways determine their incidence or control their operations.”

Weaknesses in Primary Rules

Hart invited his readers to envision a primitive society without “a legislature, courts, or officials of any kind.” This society would certainly have customs, norms, and rules to live by, but they would all be rules of the primary type. Hart described three central weakness that these primary rules would have.

First, if doubts arise as to the actual nature of these rules, there would be no authority to turn to to settle those doubts. Thus, the rules would always be subject to an element of uncertainty.

Second, “there will be no means, in such a society, of deliberately adapting the rules to changing circumstances, either by eliminating old rules or introducing new ones.” Thus, the second defect of these primary rules would be that they are static.

Third, these primary rules would inevitably be applied inefficiently, because there is no one who can authoritatively discern if a rule has been broken. There is no way to diffuse the responsibility for enforcing them. For this reason, the third defect in these primary rules would be that they are inefficient.

Consequently, rules of an entirely different type are needed. Hart explains, “The remedy for each of these three main defects in this simplest form of social structure consists in supplementing the primary rules of obligation with secondary rules… The introduction of the remedy for each defect might, in itself, be considered a step from the pre-legal into the legal world.”

Secondary Rules that Remedy Them

The secondary rules that remedy uncertainty in primary rules are called rules of recognition. These rules describe the means by which rules become authoritative. In primitive societies, Hart explains, these may simply be that the rules are listed in a book, or a stone tablet. “In a developed legal system,” he continued, “This may be the fact of their having been enacted by a specific body, or their long customary practice, or their relation to judicial decisions.”

The secondary rules that remedy the static quality of primary rules are called rules of change. “The simplest form of such a rule,” said Hart, “is that which empowers an individual or body of persons to introduce new primary rules for the conduct of the life of the group … and to eliminate old rules.” These rules are closely connected with the first set of secondary rules, because the changes made in accordance with the rules of change must be authoritative according to the rules of recognition.

The secondary rules which remedy the inefficiency in primary rules are called rules of adjudication. These rules empower “individuals to make authoritative determinations of the question whether, on a particular occasion, a primary rule has been broken.” The reason these are secondary rules is because the don’t “impose duties” as primary rules do, but instead “confer judicial powers and a special status on judicial declarations about the breach of obligations.”

What the Realists Are Wrong

Hart disagreed with legal realists who claimed that law is made by judges, not legislatures. He said that realists fail to distinguish “between the ‘core’ and the ‘penumbra’ of a law.”¹ The core of a law consists of those particular circumstances known to the legislature and which the law was designed to address. On those issues, said Hart, the judges decision was bound by the written law. It is only in the ‘penumbra’ of a law, which consists in those “particulars which were not in the minds of the legislators but are offered later as new candidates for inclusion.”¹ It is only in those cases that the claims of the legal realists apply.

Summary

Hart felt that the distinction between primary and secondary rules helps resolve many confusions in legal theory. He said,

If we stand back and consider the structure which has resulted from the combination of primary rules of obligation with the secondary rules of recognition, change, and adjudication, it is plain that we have here not only the heart of a legal system, but a most powerful tool for the analysis of much that has puzzled both the jurist and the political theorist.

Hart believed that the reason that theorists have struggled to understand legal obligations is because “these essentially involve reference to what we have called the internal point of view: the view of those who do not merely record and predict behavior conforming to rules, but use the rules as standards for the appraisal of their own and other’s behavior.” Many theorists ignore the internal point of view because “there is a constant pull towards an analysis of these in the terms of ordinary or ’scientific’, fact-stating or predictive discourse. But this can only reproduce their external aspect.”

Notes:

1. Shirley Robin Letwin, On the History of the Idea of Law, (Cambridge: Camrbidge University Press, 2005).
All other quotations taken from H. L. A. Hart, The Concept of Law (Oxford: Clarendon Press, 1994).