Continuing from part one on “Positivism and the Separation of Law and Morals” (1958) and The Concept of Law (1961), ch. 5 and 6.
If law is not based on morality, then why obey the law? Hart claims that it’s just a fact that most of us feel most of the time that we should obey the law. If this isn’t the case, then Hart says there is no law in that society at all, whatever the government might say.
We talk more about what makes a legal system extant, and how laws relate to the rules of custom. Maybe some laws aren’t so much invented via legislation (i.e. posited) but “found,” either by a legislature trying to encode what people already do or by judges who use background mores and assumptions to figure out the spirit of the law.
We also talk about the theory that Hart argues against identifying a law as some sort of predication of how people will behave (e.g. people normally stop at red lights, therefore it’s a law to do so), or what police will actually enforce, or what judges will say is the law. All of these behaviorist ways of defining law ignore what Hart calls the “internal point of view,” which says that officials (at least) and citizens recognize themselves as obliged to obey law even if there’s no likelihood of punishment. This is very much like how we might feel ourselves bound by rules of etiquette, and part of Hart’s reason for distinguishing law from morality is because he wants to distinguish all the various ways in which norms act on us: ethically, legally, through etiquette, and sometimes just through custom, because “that’s the way it’s done” even though wouldn’t think ourselves actually “obligated” to do it that way. Even when held at gun point one is “obliged” to obey, but that’s different than being “obligated” in the sense that it’s a duty to obey.
We conclude by talking about Hart’s “rule of recognition” that ultimately grounds the law for a given society; this is covered in more detail in the supporter-exclusive part three.