A Puzzle About Hart’s Theory of Internal Legal Statements

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.