A version of this paper was presented at the Pacific Division Meetings of the American Philosophical Association. The author would like to thank David Adams for the helpful and incisive criticisms he made of that presentation. Thanks also to David Henderson, Dennis Holt and J. Ciaude Evans for their comments on various drafts of the current work.

1. The literature that has grown up around The Concept of Law is far too large to list here. The Hart literature includes five major books – Martin, Michael, “ The Legal Philosophy ofH.LA. Hart (Philadelphia: Temple University Press, 1987);Google Scholar Issues in Contemporary Legal Philosophy: The Influence of H.L.A. Hart Gavison, Ruth ed. Oxford: Clarendon Press, (1987); Google Scholar MacCormick, Neil H.L.A. Hart (Stanford: Stanford University Press, 1981);Google Scholar Law, Morality, and Society: Essays in Honor or H.L.A. Hart, Hacker, P.M.S. and Joseph, Raz, eds. Oxford: Clarendon Press, 1977);Google Scholar Moles, Robert, Definition and Rule in Legal Theory: A Reassessment of H.L.A. Hart and the Positivist Tradition (Oxford: Blackwell–s, 1987) Google Scholar

2. It should be noted that while both MacCormick and Martin address the issue of Hart’s methodology in some degree, neither does so extensively. MacCormick discusses Hart’s “hermeneutic methodology” (pages 33- 40) but he does not address the internal tension that such a methodology creates for Hart. Martin devotes a few pages to the internal point of view (pages 20-25) and, while he clearly notes that the internal point of view “indirectly connects Hart’s theory with the Verstehen tradition in the social sciences” (page 21) he does not raise the methodological issue presented here.

3. Hart, H.L.A., The Concept of Law (Oxford: Clarendon Press, 1961) at 5.Google Scholar

4. Hart, , Essays in Jurisprudence and Philosophy (Oxford: Clarendon Press, 1983) at 13.CrossRefGoogle Scholar

5. Hart, , Comment Google Scholar, in Gavison, supra note 1, at 39.

6. MacCormick,supra note 1, at 34-9.

7. MacCormick,H.L.A. Hart, at 38.

8. MacCormick,id.

9. Martinsupranote 1, at 21-2.

10. Dworkin, R., Law’s Empire (Cambridge, MA: Belknap Press, 1986) at 420,422.Google Scholar

11. Hart, “Comment”, in Gavison, supra note 1, at 39.

12. I take Hart’s hesitation to embrace the verstehen thesis to be a by-product of his philosophical positivism.

13. See generally, Winch, Peter, The Idea of a Social Science (London: Routledge and Kegan Paul, 1958);Google Scholar “Understanding a Primitive Society” (1964),1 American Philosophical Quarterly, 307,Google Scholarreprinted in Understanding and Social Inquiry, Dallmayr, and McCarthy, eds., (Notre Dame: University of Notre Dame Press, 1977), 159–188.Google ScholarAll citations are to Dallmayr and McCarthy.

14. Wittgenstein, Ludwig, Philosophical Investigations 3rd ed., Anscombe trans. (New York: MacMillan, 1968) at p223e.Google Scholar

15. Thick description is a context laden description in which motives, beliefs, etc play a central role in the analysis of an episode. Ryle's classic example of thick, as opposed to thin, description compares a purely observational report of one boy rapidly twitching his right eyelid with a report of one boy giving a conspiratorial wink to another. For Ryle and Geertz, the former description is thin while the latter is thick. Ryle insists that one mark of thick description is that is necessarily incorporates reference to motives - statements about why an action is performed. See, Geertz, Clifford, The Interpretation of Cultures chapter 1 “Thick Description: Toward an Interpretive Theory of Culture” (New York: Basic Books, 1973)Google Scholar. Ryle, Gilbert Collected Papers: Volume 2 Collected Essays 1929-1968 chapters 35“Thinking and Reflecting” and 36 CrossRefGoogle Scholar “The Thinking of Thoughts: What is ‘le Penseur’ doing?” (New York: Barnes and Noble, 1971).Google Scholar

16. Ryle, Collected Papers, vol 2, pages474–479 and 481 -483.Google Scholar

17. Weber’s basic ideas on verstehen are contained in“ ‘Objectivity’ in Social Science and Social Policy,” in Methodology of the Social Sciences ed. Shils, E.A. and Finch, H.A. (Glencoe, IL Free Press, 1949) and in 1 Google Scholar of Economy and Society ed. Roth, G. and Wittich, C. New York: Bedminster Press, 1968) Google Scholar

18. “Interpretive understanding” is one of Weber’s basic sociological terms, in fact, it is the object of the science of sociology. Weber, Economy and Society at 4.

19. Id.at 8

20. Id.at 6-14.

21. Id.at 7.

22. Winch adapts the Wittgensteinian claim that ordinary language is alright as it is and that it is a mistake to assume that ordinary language attempts to embody some theory. Winch's view is that schemes of social action are alright as they are and that social behaviors should not be assumed to embody theory, and definitely not our (western scientific) theories. For an excellent discussion of this point see Henderson, David K. “Winch and the Constraints of Interpretation: Versions of the Principle of Charity” (1987),25 Southern Journal of Philosophy 153 CrossRefGoogle Scholar

23. The problem of verstehen is but one side of the debate in the social sciences about rationality and what constitutes rational behavior. Is it necessary to assume the beliefs of an actor in order to determine whether her actions are rational? For several excellent discussions of this issues see, Henderson, “A Solution to Davidson’s Problem of Irrationality” (1987),27 Erkenntnis 359– 69;Google Scholar — “The Principle of Charity and the Problem of Irrationality” (1987),73Synthese 225.Google Scholar

24. The problem thus becomes that unless the subjects under study are willing to participate in the observer’s world-view, the observer, in order to generate a basis for explanation, must participate in the subject’s

25. To adopt a set of beliefs or attitudes conditionally is, to borrow from the phenomenologists, to bracket one’s own views (to hold them in abeyance) for a set period of time or for a given purpose. Frequently the field researcher in anthropology needs to bracket her views–and to conditionally adopt the views of the natives– in order to gain access to a group. But such conditional adoption (an adoption that is subject to revocation) has precisely the effect of denying the research the ability to separate questions of meaning from the questions of validity for she has accepted, conditionally, the validity of the views adopted.

26. As will become clear, the need to adopt the views being studied comes from Hart’s rejection of a behaviorist legal theory. For Hart, if attitudes were discoverable from the regularities of behavior alone, then a behaviorist account of law would be adequate. However, Hart emphatically rejects behaviorism in legal theory. Accordingly, so I argue, the only way to gain access to attitudes is to adopt them and, in effect, give first person reports.

27. Habermas, Juergen Theory of Communicative Action, vol 1, (New York Beacon Press 1984) p. 138.Google Scholar

28. Hart’s basic statement of the separability thesis can be found in“Legal Positivism and the Separation of Law and Morals” (1958), 71 Harv. L. Rev. 598.Put briefly, the separability thesis states that whatever overlap there is between morality and legality (e.g., murder is both immoral and illegal), is purely coincidental. That an act is immoral is not a sufficient condition for that act being illegal, and vice versaGoogle Scholar

29. Raz, Joseph“Legal Positivism and the Sources of Law”CrossRefGoogle Scholar and “Legal Rules, Sources, and Gaps”in The Authority of Law chs. 3 and 4 (Oxford: Clarendon Press, 1978); — “Authority, Law, and Morality (1985), 68 The Monist 295.Google Scholar

30. Material reductionism is to be distinguished from formal reductionism. The former tries to eliminate all normative discourse from a legal theory in favor of factual discourse. The latter, characterized by Jeremy Bentham, Alf Ross, Ota Weinberger, J. W. Harris, and Hans Kelsen, seek to reduce all normative discourse to one normative modality, usually the command. Hart finds fault with formal as well as material reductionism, but his arguments against the formal reductionist are beyond the scope of this paper.

31. Austin, John The Province of Jurisprudence Determined lecture, vol 1, (London Weidenfeld and Nicolson 1955) Google Scholar

32. See generally Hart, John The Concept of Law, hereinafter cited as Concept) at 18–96 Google Scholar

33. Id.at 79-88.

34. Idat SI.

35. Id.

36. The expanded version of this argument is found in Hart,Conceptat 80-3.

37. Idat 83.

38. Hart,Conceptat 54–6, 84–8.

39. Idat 88.

40. Idat 54.

41. Id

42. Idat 55.

43. Idat 83.

44. Idat 55.

45. Hart is careful to note that the internal aspect involves a critical reflective attitude toward the behavior in question, not a mere feeling that the behavior is compelled or prohibited. Hart, Concept at 56. In fact, when Hart first introduces the distinction between rules and habits and the notion of the internal aspect, he cites with approval (in an unnumbered endnote) Winch’s criticism of Oakeshott–s behavioral theory of morality. Hart, Concept at 242. Winch argues that Oakeshott ignores the reflectiveness of moral behavior. Winch, Idea at 57-65

46. Winch, Peter The Idea of a Social Science and Its Relation to Philosophy, (London Routledge & Kegan Paul 1958) pp. 57–65.Google Scholar

47. Idat 63–64.

48. Hart,Conceptat 86ff.

49. Idat at 87.

50. Idat 87–8.

51. Idat 88.

52. Idat 88.

53. Hart takes predictive theories of law to task in chapters five and seven ofConcept

54. HartEssaysat 13.

55. HartCommentat 39.

56. HartConceptat 86-88,99,244,Issuesat 39.

57. Hart,Conceptat 86, 99,244.

58. Idat 99.

59. One of the few points of agreement that has emerged from the ‘unity of science’ debate is that, at the very least, the experimental methods of the social sciences are radically different than those of the natural sciences, whatever the logic of the various sciences may be

60. Hart may well be guilty here of drawing an untenable distinction between that which is observable and that which is psychological. Such a distinction would account for his view that observable regularities of behavior do not give one access to mental states and attitudes. Accordingly, Hart’s critique of material reductionism is directly on target. But if such a distinction underwrites his legal philosophy, there is serious need for reform

61. HartConceptat 87.

62. HartCommentat 39.

63. Here terminology begins to cloud the debate for, as will become clear shortly, this viewpoint could easily be called the moderate internal point of view, but then it would carry with it unacceptable (by Hart’s lights) methodological implications.

64. The distinction between an internal statement and an external one is set forth in HartConceptat 99.

65. Idat 99.

66. HartIssuesat 39.

67. Alchourron, C. and Bulygin, E. “Normative Knowledge and Truth” in Philosophical Analysis in Latin America, id="ref028" publication-type="book">Garcia, J., Rabosi, E., Villanueva, E., Dascal, M. eds. (Boston D. Reidel 1984)at 25–46.CrossRefGoogle Scholar

68. I should note that there are certain discrepancies between British and American law that might support the claim that there is not really a shared legal culture between those countries at all. The American doctrine of limited sovereign authority is alien to many British legal theorists - Hart being a notable exception. Thinkers no less impressive than Bentham have been utterly puzzled by the concept of limited sovereign authority. Bentham himself thought the very idea inconsistent with the concept of sovereignty at all

69. Assuming, of course, that some criteria for similarity of activity can be discovered.

70. Quine, “Epistemology Naturalized” in Ontological Relativity and Other Essays, (New York Columbia University Press 1969) at 80ff.Google Scholar

71. One must be careful here not to assume that behavioral access to attitudes involves a strict reduction of attitudes to behaviors or dispositions. All that one need be committed to is the belief that regularities of behavior provide adequate grounds for the attribution of particular mental states (rather as the detectors in modern physics provide adequate grounds for attributions of particles).

72. Not all participation is meaningful. Patrick McGoohan, as the Prisoner, participated in the rather bizarre behaviors of the group into which he was thrust, but it is most doubtful that he ever understood those behaviors.

73. MacCormick has noted that Hart's project stands or falls with the viability of what MacCormick calls the hermeneutic point of view. MacCormick is correct in has assessment, but he did not actively pursue the question of whether such a point of view was viable. See MacCormick, supra note 1, at 38.