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Internal Point Of View Role Harts Theory Philosophy Essay

Paper Type: Free Essay Subject: Philosophy
Wordcount: 2309 words Published: 1st Jan 2015

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Jurisprudential debate concerning the nature of law is often thought of as a long-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.

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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,

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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


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