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Jurisprudential debate concerning the nature of law is often thought of as a lo

The term intellectual property refers to a loose cluster of legal doctrines that regulate the uses of different sorts of ideas and insignia. The law of copyright protects various “original forms of expression,” including novels, movies, musical compositions, and computer software programs. Some commentators have defended copyrights as natural rights under Locke’s labor-desert theory of property. That facially plausible extension of Locke’s theory does not, however, withstand close scrutiny. His labor-desert justification of property gives an author clear title only to the particular tangible copy in which she fixes her expression–not to some intangible plat in the noumenal realm of ideas. The first justification for IP is John Lockes’ labor desert theory. In short it is: People own themselves, and derived from this they also own the fruits of their labor, as otherwise they would still be slaves. Now creating or inventing things can be considered labor. And therefore works of the intellect are property, just like the goods manufactured by a workman. This justification is what philosophers would call a deontological justification, in the sense that it is a rights-based approach, and that it does not take the consequences of the exercise of these rights into account. The labor theory of property does not work if one subscribes to a pure “eureka” theory of ideas. Therefore, the initial question might be framed in two different ways. First, one would want to determine if society believes that the production of ideas requires labor. Second, one might want to know whether or not, regardless of society’s beliefs, the production of ideas does require labor. The aim of my study is to find out if labor is the only criteria for copyright.

In many quarters, property is viewed as an inherently conservative concept, it is a social device for maintaining the status quo. Much intellectual property is produced only after considerable financial investment, whether it be in the research laboratory or in the graduate education of the scientist using the facility. A universal definition of intellectual property is by identifying it as nonphysical property, whose value is based upon some idea or ideas. Furthermore, there must be some additional element of novelty. The element of novelty is not necessary to be absolute. The important thing is while at the time of propertization the idea is thought to be generally unknown. The law of copyright protects various “original forms of expression,” including novels, movies, musical compositions, and computer software programs. In the final analysis, intellectual property shares much of the origins and orientation of all forms of property. At the same time, intellectual property is however, more neutral institution than all the other forms of property: The main objective of copyright is not to reward the labor of authors, but to promote the Progress of Science and useful Arts. To this end, copyright guarantees authors the right to their original expression, but at the same time encourages others to build freely upon the ideas and information conveyed by their work. This result is neither unjust nor unlucky. It is by this means copyright advances the progress of science and art. – Justice Sandra Day O’Connor, writing for the majority, in the case of Feist Publications, Inc. v. Rural Telephone Service Co., (1991).

Locke’s Interpretations :

Locke’s theory of property is itself subject to slightly different interpretations. One interpretation is that society rewards labor with property purely on the instrumental grounds that we must provide rewards to get labor. In contrast, a normative interpretation of this labor theory says that labor should be rewarded. [1]

LOCKE’S THEORY OF LABOR

The second of the four approaches that currently dominate the theoretical literature springs from the propositions that a person who labors upon resources that are either unowned or “held in common” has a natural property right to the fruits of his or her efforts – and that the state has a duty to respect and enforce that natural right. These ideas, originating in the writings of John Locke, are widely thought to be especially applicable to the field of intellectual property, where the pertinent raw materials (facts and concepts) do seem in some sense to be “held in common” and where labor seems to contribute so importantly to the value of finished products. [2]

A good example of this perspective is Robert Nozick’s brief but influential discussion of patent law in Anarchy, State, and Utopia. [3] After associating himself with Locke’s argument, Nozick turns his attention to Locke’s famously ambiguous proviso — the proposition that a person may legitimately acquire property rights by mixing his labor with resources held in common only if, after the acquisition, there is enough and as good left in common for others. [4] Nozick contends that the correct interpretation of this limitation (correct in the senses (a) that it probably corresponds to Locke’s original intent and (b) that, in any event, it is entailed by an adequate theory of justice) is that the acquisition of property through labor is acceptable if and only, others do not suffer any net harm. Net harm for these purposes includes such injuries as being left poorer than they would have been under a regime that did not permit the acquisition of property through labor or a constriction of the set of resources available for their use — but does not include a diminution in their opportunities to acquire property rights in unowned resources by being the first to labor upon them. Construed in this fashion, the Lockean proviso is not violated, Nozick argues, by the assignment of a patent right to an inventor because, although other persons’ access to the invention is undoubtedly limited by the issuance of the patent, the invention would not have been into existence at all without the efforts of the inventor. In other words the consumers are helped by the grant of the patent. Nozick contends, however, that fidelity to Locke’s theory would mandate two limitations on the inventor’s entitlements. First, person who has invented the same device independently must be permitted to make and sell it. Otherwise the assignment of the patent to the first inventor would leave him unhappy. Second, for the same reason, patents should not last longer than, on average, it would have taken someone else to invent the same device had knowledge of the invention not disabled them from inventing it independently. Although Nozick may not have been aware of it, application of the first of these limitations would require a substantial reform of current patent law, which, unlike the copyright law, does not contain a safe shelter for persons who dream up the same idea on their own.

The premise of the third approach derived from the writings of Kant and Hegel, is that private property rights are very important to attain the satisfaction of some fundamental human needs; the makers of the policy should thus endeavor to create and allocate entitlements to resources in the fashion that best enables people to fulfill those needs. From this standpoint, intellectual property rights may be justified either on the ground that they shield from appropriation or modification artifacts through which authors and artists have expressed their wills (an activity thought central to “personhood”) or on the ground that they create social and economic conditions conducive to creative intellectual activity, which in turn is important to human flourishing. [5]

In perhaps the most fully developed argument of this sort, Justin Hughes derives from Hegel’s Philosophy of Right the following guidelines concerning the proper shape of an intellectual-property system. (a) We should be more willing to acquire legal protection to the fruits of highly expressive intellectual activities, such as the writing of novels, than to the fruits of less expressive activities, such as genetic research. (b) Because a person’s persona — his public image, including his physical features, mannerisms, and history — is an important receptacle for personality, it deserves generous legal protection, despite the fact that ordinarily it does not result from labor. (c) Authors and inventors should be permitted to earn respect, honor, admiration, and money from the public by selling or giving away copies of their works, but should not be permitted to surrender their right to prevent others from mutilating or misattributing their works. [6]

The labor desert justification is mostly held in Europe and is included in the Berne Convention. In France it is specifically encoded in the so called ‘droits moraux’, or moral rights, that French authors have in addition to economic rights. The moral rights involve things such as the right to decide whether something is to be published, the right to withdraw it from the market, and the right of attribution. They cannot be sold by the author, and are perpetual. The interests that the labor desert justification centers on mostly are those of authors and publishers. [7]

RELATIONSHIP BETWEEN ‘LABOR’ AND ‘SWEAT OF THE BROW’ DOCTRINE.

To get a protection under the copyright Act the writing should be original. [8] Berne Convention, in context of collection of works, identifies the selection and arrangement as elements of “intellectual creations”, which in turn, more broadly characterizes ‘literary work and artistic works’ protected under that multinational organization. The agreement on TRIPs provides that the copyright protection shall extend to expressions and not to the ideas, procedures and methods of operations. [9] The Trade Related Aspects of Intellectual Property’ annexed to the World Trade Organization treaty and the 1996 World Intellectual Property Organization Copyright. Treaty also adopts the “intellectual creation” standard in connection with the compilation. [10]

Thus originality is the basic requirement for the copyright, even in case of compilation also. In order to have originality, there should be “modicum of creativity”. [11]

In general rule where the compilations of facts are copyrightable, but the facts are not. In due course of time, a doctrine of “Sweat of The Brow” was developed. This doctrine discouraged the requirement of the creativity, in works. It only protected the sweat and labor of the compiler, without the usage of creativity in it. Anything which is mechanical and automatic task without having any amount of creativity in it, is also copyrightable under this doctrine.

For example, a person collected various articles of a famous author, whose articles were already in public domain. He published a book of these articles just by the method of compilation. He neither used his judgment nor creativity for the compilation of the book. In this case he cannot claim copyright for his book. If the person would have added his own views and comments in the book, regarding the articles mentioned in it then copyright could have been given to him.

But if we apply the doctrine of “sweat of the brow” in the abovementioned example, the case would have been different. The work would have been subject to protection of copyright. The labor spent in compilation of the articles in the book, without any creativity, has been enough to get the protection of copyright, under the “sweat of the brow” doctrine.

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This doctrine was in application for a long time and it accompanied various factual compilations, totally ignoring the essence of creativity in copyright law, and just awarding the labor done to compile a work. In 1991, the U.S. Court gave a amazing judgment of Feist Publication v. Rural Publication, [12] which clearly rejected the sweat of the brow doctrine and held that merely use of effort does not amount to protection. The Supreme Court promoted creative originality theory and tried to abolish this doctrine of sweat of the brow. “Sweat of the brow” is a doctrine which protects factual compilations. According to this doctrine, labor done in compilation overcomes the requirement of creativity in a work, to make it copyrightable. To determine the place and time of this doctrine is not viable, but this can be said that it has originated while interpretation of earlier statutes, and thus to prohibit second-comers from free riding on the labor of others. [13]

Federal copyright in U.S. emphasizes the work to be creative in order to attain copyrightable standard. It allows for the protection of compilations, provided there is a creative or original act involved in such a compilation, such as in the selection (deciding which things to include or exclude), and arrangement (how they are shown and in what order). The previous statutes of the U.S. also encouraged the sweat of the brow doctrine. The law stressed on protecting the stress work than the work of fancy. [14] At that time, the belief was that the access of facts is in the betterment of public interest and thus will promote the progress. Since its inception, United States copyright law has protected factual compilations. [15] “maps, charts and books” were protected under U.S. Copyright act 1790. [16] This showed the intent to protect utilitarian collections of information like directories and other informational works. [17]

In the case of Key Publications, Inc. v. Chinatown Today Publishing Enterprises, Inc. [18] Key Publication published an Annual Classified Business Directory for New York City’s Chinese- American community. In 1990, Galore Publication published the Galore Directory, a classified directory for the New York Chinese American community. Key brought a suit against Galore Directory charging that Galore Directory infringed Key’s copyright in the 1999-90 Key Directory. The United States Court of Appeal held that individual components of compilation are generally within the public domain and thus available for public.

Directory is subject to copyright protection, but that the Galore Directory does not infringe Key’s copyright. The court concluded that this arrangement was not mechanical. Instead, it showed creativity and was thus copyrightable. It was not typical, garden variety, routine, or obvious. There are three requirements for a compilation to qualify for copyright protection:

(1) the collection and assembly of pre-existing data;

(2) selection, coordination or arrangement of the data; and

(3) the resulting work that comes into being is original, by virtue of the selection, coordination or arrangement of the data contained in the work.

The “sweat of the Brow doctrine”, rewarded compilers for their efforts in collecting facts with a de facto copyright to those facts and this doctrine would prevent, preclude the author absolutely from saving time and effort by referring to and relying upon prior published material. For originality, the work is not required to contain novelty. It extended copyright protection in compilation beyond selection and arrangement – the compiler’s original contribution – to the facts themselves drawn on sweat of the brow is a copyright protection to the facts discovered by the compiler. The court discarded sweat of the brow notion of copyright law.

In BellSouth Advertising &Publishing Co. v. Donnelley Information Publishing, [19] it was held that Compilation is work formed by collecting and assembling pre existing materials or data, so selected, coordinated, or arranged that the resulting work as whole constitutes original work of authorship. Thus, in action in which publisher alleged that competitor had infringed its copyright on phone directory, trial court properly entered summary judgment for publisher where directory was afforded copyright protection as compilation and competitor had violated copyright; directory was compilation due to fact that publisher had performed several acts of selection, had coordinated all current informational components of particular business into one complete business listing, and had arranged coordinated listings according to various categories. The court first held that the company’s acts of selection in deciding what to include, such as determining the directory’s geographic scope, setting the closing date after which changes could not be made, and its marketing techniques to generate the data, did not meet the required level of originality. These were techniques for the discovery of facts, not acts of authorship. The court held that the directory of Bellsouth, as a whole, may be copyrightable, but the act of the defendant will not amount to infringement of the Bellsouth’s copyright.

Section 13 of Indian Copyright Act, 1957 provides, inter alia, that copyright shall subsist in every original literary, dramatic, musical and artistic works. Thus originality is the cardinal requirement for getting protection of copyright. But the term “original” is nowhere defined in the Act; hence it is uncertain what amounts to originality.

According to section 14 of the Act, only author of the work, subject to sec.17 of the Act is entitled to have copyright protection and can enjoy the exclusive rights therein. So the person who devotes his labor, skill and judgment can have a monopoly right over the work.

In respect of compilations, the Copyright Act, 1957 does not limit protection only to compilations which “by reason of the selection or arrangement of their contents constitute intellectual creations”. Nor does it mandate supplementary criteria to selection and arrangement expressly. India is a common law country and therefore it follows the “sweat of the brow” doctrine. [20]

It was held that a compilation of addresses developed by any one by devoting time, money, labor and skill though the source may be commonly situated amounts to a ‘literary work’ wherein the author has a copyright. [21]

In the case of Indian Express Newspaper (Bombay) Pvt Ltd. v. Jagmohan, [22] the Bombay High Court has emphatically stated that there is no copyright for happenings and events which could be news stories, and a reporter cannot claim any copyright over such events because he/she reported it first. The Court said that the ideas, information, natural phenomena, and events on which an author expends his/her skill, labor, capital, judgment and literary talents are common property and are not the subject of copyright. Hence, there is no copyright in news or information per se. However, copyright may be obtained for the form in which these are expressed because of the skill and labor that goes into the writing of stories or features and in the selection and arrangement of the material.

THE GROWTH OF INTELLECTUAL PROPERTY

Firstly there has been a hard-wearing and widespread popular commitment in the United States to a labor-desert theory of property. The belief that a person deserves to own something that he or she has created through productive labor has long had considerable currency in America. [23] This was even more appropriate in the era of nineteenth century, but social psychologists tell us that, even now, most of the Americans sign oneself to the closely related equity theory of distributive justice — the notion that each person who contributes to a collective enterprise deserves a reward in proportion with the extent of his or her contribution to the enterprise. [24]

Since the late eighteenth century, the attitude of first to establish and then to expand intellectual property rights are contributed to the willingness of legislators and judges. Thus, for example, the committee that caused to believe the Continental Congress to recommend to the states that they adopt copyright laws justified the offer partly on the ground that nothing is more properly a man’s own than the fruit of his study. [25] Analogous statements may be found throughout American history by other lawmakers. For example, in 1837 Henry Clay argued that it is incontestable that authors and inventors have, according to the practice among civilized nations, a property in their respective productions . . . ; and that this property should be protected as effectually as any other property is, by law, follows as a legitimate consequence. [26] More recently, Justice O’Connor justified her narrow reading of the fair use doctrine on similar type of grounds: The rights conferred by copyright are designed to assure contributors to the store of knowledge a fair return for their labors. [27]

Secondly, relation with the system of ideas and ideals has been the widespread popular suspicion in the United States of governmental participation in the process of recognizing and appreciating good works of art and socially precious inventions. In the middle of the nineteenth century, Americans were accepting to the notion that governments could advance the interest of the public by recognizing and supporting all sorts of socially valuable ventures. This general disposition had many events in early American legal and economic history — including, for instance: selective grants of corporate charters to enterprises that, in the legislators’ view, promised to redound to the public welfare; Mill Acts, which empowered landowners who wished to install mills on streams running through their property to build dams that flooded their neighbor’s property (provided they paid compensation); and generous delegations by state legislatures of the power of eminent domain to private railroads. [28]

CONCLUSION

Copyright law is about expression, not about ideas. So the main objective of copyright should not only be to reward the labor of authors but to protect expression while encouraging others to build freely upon the ideas and information conveyed in the expression. The amount of creativity needed to meet the originality requirement should not be remarkable, but creativity should be visible. According to Fiest, nothing substitutes for creativity. The author cannot win protection by showing that he invested considerable resources. But even after coming of Feist, the degree of originality is not fixed and still the “Doctrine of the Sweat of the Brow” is prevailing either directly or under the guise of other term.

However, there are cases demonstrating the protection bestowed upon the labor of the compiler who took pain in doing collection. The intent of legislature in U.S. is clear on the fact of compilation definition, Feist can be easily applied in the cases arising there. But in other countries Like Canada, and India, the notion of Sweat of the Brow is still a matter of debate. In India, the legislature does not outline the boundary of the originality. The status quo on the requirement of amount of creativity is still ambiguous even though the need of creativity is recognized. Many of the cases have affirmed the doctrine of the sweat of the brow, paying no regard to the importance of creativity. Although the court in some of the cases have rejected the sweat of brow doctrine, lack of certainty with regard to the degree of originality required – the ambiguous nature of the terms “flavour” and “substantive variation” seem to leave the Courts with an exit option in terms of allowing interpretation which could tend towards either of the doctrines of originality. This justification depicts more element of sense than the three main alternative “Lockean” theories of Intellectual property . Productive labor theory justifies the lay intuition that Lockean labor theory does provide a justification for the control rights protected in patent and copyright law. Yet its not critical enough about the conditions that must be satisfied before an intellectual work deserves to be protected by the control rights characteristic of patent and copyright. Specifically, lay Lockeanism threatens significant labor interests of non-authors and non-inventors by arguing for infinite patent or copyright terms.

This should be made clear in mind that purpose of copyright is protection of the creative work and not to entertain the person who just compile the already known fact. Initiative on part of The legislature of the country must be instituted to sketch the boundary by defining the term compilation, so that it can be useful for the court to determine what amount of originality is required in a work, to make it copyrightable.

BILBLIOGRAPHY

Online resources:

Research papers/articles

William Fisher, Theories Of Intellectual Property

http://cyber.law.harvard.edu/property00/iptheory.html

William W. Fisher , The Growth of Intellectual Property: A History of the Ownership of Ideas in the United States.

http://cyber.law.harvard.edu/property99/history.html

Locke on Copyright

http://www.intellectualprivilege.com/blog/2007/12/locke-on-copyright.html

Labour Desert

http://en.logilogi.org/Intellectual_Property/Justifications/Labor_Desert=Wybo_Wiersma_57

Justin Hughes, The Philosophy of Intellectual Property

Stanford Encyclopedia of Philosophy

http://plato.stanford.edu/entries/desert/

Stephen R. Munzer, A Theory of Property, Vol. 100, No. 2 (Apr., 1991), pp. 300-302

http://www.jstor.org/stable/2254879

David B. Annis & Cecil E. Bohanon (1992), Desert and Property Rights, Journal of Value Inquiry 26 (4). Property Rights in Social and Political Philosophy

BOOKS REFERRED

• Hugh Laddie, Peter Prescott & Mary Vitoria, ‘The Modern Law of Copyrights and

Designs’ (London: Buttersworth Publications, 1995).

• N.S. Gopalkrishnan & T.G. Agstha, ‘Principles of Intellectual Property’ (Lucknow: Eastern

Book Company, 2009).

• R. Anita Rao & V. Bhanji Rao, ‘Intellectual Property Rights- A Primer’ (Lucknow: Eastern

Book Company, 2010).

• Rajshree Chandra, ‘Knowledge as Property: Issues in the Moral Grounding of IPRs’ (New

Delhi: Oxford University Press, 2010).

• Paul Torremans, ‘Holyoak and Truemans Intellectual Property Law’ (New York:

Cambridge University Press, 2008).

• T. Ramappa, ‘Intellectual Property Law in India’ (Hyderabad: Asia Law House, 2010).

• Copinger and Skone James on Copyrights, vol. 1 (London: Thompson Sweet and

Maxwell, 2008).

STATUTORY COMPILATIONS

The Copyright Act, 1957.

TRIPS Act, 1994

ng-running battle between two schools of thought – the rival camps of “natural law” and “legal positivism”. The natural law tradition has always emphasised law’s grounded ness in justice and the common good, while legal positivism had tended to emphasise law’s basis in authority.

Legal positivism emerged from the work of Jeremy Bentham and his disciple John Austin. John Austin famously claimed that the idea of sanctions is “the key to the science of jurisprudence.” [1] Thus, he held legal rules to be threats backed by sanctions and statements of legal obligations as predictions that the threatened sanctions will be carried out.

Furthermore Hans Kelsen sought to explain legal rules and obligations in terms of norms, he understood these norms to be directives to courts requiring that sanctions be applied. Splitting the difference between Austin and Kelsen, Alf Ross conceived of legal rules as norms addressed to courts directing the use of sanctions and statements of legal validity as predictions that these norms will be followed.

However, one of the two greatest twentieth-century (the other one is Hans Kelsen) exponents of the “legal positivism’ was, without question, Hart. In his principal book The Concept of Law [2] , Hart describes the central thesis of legal positivism as “the simple contention that it is in no sense a necessary truth that laws reproduce or satisfy certain demands of morality, though in fact they have often done so.” [3] Therefore the central claim of legal positivism is that law is separate and distinct from morality. However, Hart showed that sanction-centred accounts of every stripe ignored an essential feature of law. This feature he termed “the internal point of view.” Though the internal point of view is perhaps Hart’s greatest contribution to jurisprudential theory, this concept is also often and easily misunderstood. Seen from the internal point of view, the law is not simply sanction-threatening, – directing, or -predicting, but rather obligation-imposing.

Therefore, what, exactly, is the internal point of view? What role (or roles) does it play in Hart’s theory?

Briefly the internal point of view is the practical attitude of rule-acceptance – it does not imply that people who accept the rules accept their moral legitimacy, only that they are disposed to guide and evaluate conduct in accordance with the rules.

The internal point of view plays four roles in Hart’s theory: (1) it specifies a particular type of motivation that someone may take towards to the law; (2) it constitutes one of the main existence conditions for social and legal rules; (3) it accounts for the intelligibility of legal practice and discourse; (4) it provides a naturalistically acceptable semantics for legal statements.

At one point, Hart observes that “the element of authority involved in law has always been one of the obstacles in the path of an easy explanation of what law is” [4]

Hart argues that the command theorists emphasised force as the main component of all law and have looked only on one side of the coin – the external element of law which compels people to act out of fear. This may be the “bad man’s view” of the law and Hart argues that it does not present a balanced picture. A positivist theory of law must offer an account of the nature of law-making authority. At the same time, positivists claim that the validity of a law does not entail an obligation to obey it. This means that the theory is quite independent of any theory about the basis of a moral obligation to obey the law. Bentham and Austin approached these problems by treating statements about sovereignty, rights and obligations as straight forward statements of observable social facts. Therefore in focusing only on the commands of a sovereign and the actions of officials in imposing sanctions, the command theorists have ignored the internal element which characterises all law. This is known as ‘the internal point of view’ which make people feel a sense of obligation to obey the law. There is a distinction between the two aspects of law, ‘to be obliged’ that is to be forced to act in a certain way because of some threat, such as when an armed man orders a person to hand over money, and ‘to be under an obligation’ that is to feel within oneself a sense of duty to act in a certain way without some external stimulus compelling such action.

Hart also argues that the command theories explain law only in terms of the first notion, and that to this extent they are inadequate, because the law operates both in an external and an internal fashion to induce compliance.

According to Stephen Perry, for example, “[t]he general idea of the internal point of view is that an adequate jurisprudential account must at some point take into consideration how the practice looks to at least some of the practice’s participants, from the inside.” [5] Likewise, Gerry Postema writes: “The law, like other similar social practices, is constituted not only by intricate patterns of behavioural interactions, but also by the beliefs, activities, judgments and understandings of participants. The practice has an ‘inside,’ the ‘internal point of view’ of participants.” [6]

On this reading, Hart’s doctrine of the internal point of view is a methodological prescription which demands that legal theories resonate with the shared experiences of legal natives. Jurisprudence must take the point of view of the insider, and come in contrast with those theories that ignore the beliefs and attitudes of those who live under the law. Hart used the internal point of view to discredit sanction-centred theories of law, such as those proposed by Oliver Wendell Holmes and Hans Kelsen. Hart argued that these theories are myopic for they ignore or mask the range of attitudes that people typically have towards the law. The problem with “bad man” theories such as Holmes’ is that they assume that people are motivated to follow the law solely in order to avoid sanctions, rather than for the reason that rules require such behaviour. These theories, Hart says, “define [the internal point] of view out

of existence.” The problem with Kelsen’s theory, he claims, is that it focuses exclusively on one technique that the law uses to motivate conduct to the exclusion of all others. The law not only directs officials to punish those who don’t comply with the rules, but provides guidance for those who want to live up to their obligations. Holmes’ bad man is an insider himself,

namely, one whose curiosity about the law is aroused solely by his aversion to sanctions. The problem with Holmes’ theory, rather, is that he privileges one type of insider’s point of view over another. By focusing solely on the perspective of the bad man, sanction-centred theories define the other point of view, namely, the internal point of view, out of existence.

What, then, is the internal point of view? As Hart used the term, the internal point of view refers to the practical attitude of rule-acceptance. Someone takes this attitude towards a social rule when they accept or endorse a convergent pattern of behaviour as a standard of conduct. Whereas the phrase “the internal point of view” is univocal – it refers to a specific

practical attitude. With respect to the practical point of view, there are two attitudes the insider can take towards the rules: acceptance and non-acceptance. Anyone who accepts the rules has, according to Hart, taken the internal point of view. Anyone who does not accept the rules, either because they are like the bad man and take the practical, but non-accepting, point of view, or because they are merely observing and hence don’t take a practical stance at all, has taken the external point of view.

Hart’s internal point of view, therefore, is the practical attitude of rule-acceptance.

But what exactly does it mean to “accept” a social rule?

Hart says that to accept a social rule is to regard a pattern of behaviour “as a general standard to be followed by the group as a whole.” It is to treat existence of the rule as a “reason and justification” for action, as the “basis for claims, demands, admissions, criticisms or punishment,” as establishing the “legitimacy” of these demands and criticisms. Hart is quite clear that one does not have to believe in the moral legitimacy of the law in order to accept its authority. Given that the internal point of view is not the moral point of view, what does Hart mean when he characterizes it as acceptance of a rule as a standard of conduct? When one takes the internal point of view towards a rule, one acts according to the dictates of the rule. Of course, there must be something more to the internal point of view, given that the bad man also conforms to the rules. The second way in which the internal point of view is expressed is through critical evaluation. Thus, participants who accept the rules criticize others, and perhaps even themselves, for failing to conform to the rules. Finally, the internal point of view is usually expressed by statements that use normative terminology such as “ought,” “must,” “right,” and “wrong.”22 Thus, if someone accepts the rule that men must bear their heads upon entering a church, this practical attitude might be expressed by statements of the form: “You ought to take off your hat in Church” or “It was wrong of me not to take off my hat last Sunday.” Hart calls these statements “internal” statements, because they normally express the internal. point of view.23 Hart contrasts these practical statements with theoretical statements that others accept a particular rule. For example, someone might say, “Episcopalians accept a rule requiring men to take off their hats in Church.” Hart calls these external statements because they usually express the external point of view.24 They are statements that a particular group accepts certain rules normally made by those who do not accept those rules themselves.

Hart’s internal point of view must be understood as a commitment to act in all of the above ways. That is, one takes the internal point of view towards a rule when one intends to conform to the rule, criticizes others for failing to conform, does not to criticize others for criticizing and expresses one’s criticism using evaluative language.

At first impression Hart conception of law, as a symbiotic relationship between primary and secondary rules, and more importantly the internal aspect seems valid. Hart concept of the internal aspect distinguishes between social rules and social habits. A crucial distinguishing feature from a social habit and a social rule is that habit lack criticism from others in a group when the convergent behaviour is deviated from. Deviation from the convergent behaviour makes criticism and the rule legitimate, and often is manifested through normative language such as you ought to or you should do, a certain type of behaviour. The internal aspect and therefore rules is an important constituent for Hart conception of law, because essentially law is the union of primary and secondary rules. A primary rule imposes duties and prescribes how one must act by way of recognizing a general standard mode of behaviour. The secondary rules consist of the three important characteristics, which can be characterized as sub rules, which give the concept of rules as law and obligations, but more importantly, law as a system of rules. First is the rule of recognition, which helps to determine whether a rule is indeed a rule, this is determined by the influx of criticism for deviation of the rule and the existence of social pressures to conform. The second, denoted as the rule of change, which allows for the creation of new primary rules or the change and modifications of old rules for the group to live by, these rules are also subject to procedural standards. The final characteristic is the rule of adjudication that determines whether or not a primary rule has been violated and prescribes the procedure the courts must follow to apply sanctions.

Indeed the mosaic of the internal aspect, a primary and secondary rule as law is very attractive, for Hart is able to explain where Austin has failed. Primary rules are laws, because they are general and span over the territory in which the sovereign has authority, and secondary rules are a means to enforce and amend the laws. However Hart analysis