Secondary Rules, the Internal Point of View and the Foundations of a Legal System: a Re-understanding to H. L. A. Hart's Theory of Legal System

摘要

By reflecting Austin's description of "general habitual obedience", Hart examines the difference between two characters, validity and efficacy, of legal systems and so, by this clarification, discusses the possibility that these two characters can be connected under certain social situation through what he calls "the internal point of view". According to this possibility, "Thesis of Rules" claims that the composite character of a legal system should be described as officials must generally hold the internal point of view to secondary rules, while ordinary citizens, along with officials themselves, are generally obedient to primary ones. And these can be considered as the necessary conditions and foundations of the actual existence of a legal system.