Revision essay - internal point of view PDF

Preview

Summary

Download Revision essay - internal point of view PDF

Description

Critically evaluate the significance of the Internal and External point of view in H.L.A Hart’s jurisprudence? A crucial element of Hart’s of jurisprudence is his distinction between the external and internal aspect of the rules of conduct within a social group. He criticises the reductionist accounts of law for reducing law to social fact, being the presence of sanctions, and therefore failing to account for the normativity of law. Purporting to fill this lacuna, in the Concept of law he elucidates the importance of this distinction, without which he argues there would be a ‘lack of ability to speak of the existence of a single legal system’. In this essay I will begin by clarifying this distinction presented by Hart and examine his claims to resolving the issues he felt the reductionist account of law presented. I will then discuss the significance of its role in Hart jurisprudence, showing the disagreement in the academic debate regarding whether it has a negative or positive significance on Hart’s theory; to some it is Hart’s ‘greatest contribution to jurisprudential debate’1 , the others it completely undermines his project. I will also regard those who claim that it plays no significance at all, because to them, it fails to address the very thing it purports to. In regards to all of this, I will argue that although the distinction between the internal and external point of view is significant in Hart’s theory of law, it does not play the role that critics have ascribed to it; Hart never intended it to be the total explanation of normativity, but instead the distinction plays the more limited role of permitting the intelligible discussion of the nature of obligation in law. Before going any further, a brief explanation of the distinction is required and its place in Hart’s project. Hart aimed to develop a theory of law that was both general, in the sense that it could explain the law in any given polity, and descriptive, being that it could explain the law as it is without making reference to substantive claims. Any true account of law must offer an account of the nature of law-making authority, but a positivist account, in order to remain true to the separability thesis, must do so without making reference to moral obligation to obey the law. Therefore Hart’s theory purports to explain how a legal obligation to abide by rules arises, i.e. legal validity, which is quite separate from the moral obligation to obey it. In fact, Hart states that once legal validity is in place, it is irrelevant to its validity, whether the general populace feel morally obligated to it. Hart argued that the understanding of law would be better conceived as social rules. According to him, rules have two aspects being the internal and external perspective. The external point of view is the account of the outside observer who does not personally accept the rules, but describes the behavioural pattern and conduct of a particular group who accept the rules. This observer will be able to predict and assess the regularities of conduct, and make predictions regarding the nature of deviance, but cannot explain the normative aspect of the rules, i.e. the reason the rules provide an obligation to comply. This observer will therefore be unable to distinguish a habit from a rule, or the notion of being obliged from being under an obligation (a notion I will return to later in the essay). The internal point of view on the other hand, is the critical reflective attitude to certain patterns of behaviour as common standard in a society which displays itself in conformity of individuals in the system, acknowledging the rule as a guide for their actions, and a justification for the criticisms (including self-criticism) of deviant behaviour. It is the manifestation of both these aspects in a rule that Hart uses as the basis of explaining law-making authority, and it is this that is the source of their significance. 1 Shapiro

I will now turn to discuss Hart’s rejection of the reductionist accounts of law, particularly Bentham and Austin’s. According to Hart, the sanction-centred accounts of his predecessors ignore an essential feature of law, being the internal point of view. This reductionist view treats statements about sovereignty, rights and obligations as mere observable social facts. Austin’s theory defined law as the commands of a sovereign, backed by the threat of sanctions, habitually obeyed by the bulk of the population. In this sense, his account reflected the external perspective, with no account of the normative force of the ‘commands’. To explain this further, Hart makes a distinction between habits, which are central to Austin’s conception of sovereignty, and rules. Shapiro gives a clear account of the distinction between habits and rules. Whilst rules and habits share the notion of behavioural regularities followed by the majority (an external observation), rules are different in that there is critical attitude dimension of rules, expressed by criticism of deviance, which is taken as justified by shared conduct. Moreover those manifesting a habit need not be aware of engagement with the behaviour, whilst a group of individuals abiding by a rule must treat the pattern of conduct as a common standard of behaviour. Hart also makes a related distinction between being obliged to follow a rule and being under an obligation. He notes that the failure of his predecessors to acknowledge the internal perspective prevents the distinction, between those who readily accept the rule as justified in directing and guiding their actions and those who do so out of fear of the imposition of sanctions, to be made. This therefore gives no account of legitimacy or validity of law, which should be central to any account of law, and instead presupposes these characteristics. The second issue to be discussed in the significance of this distinction between internal and external point of views. I will first discuss what I have termed, its positive significance. Firstly, as discussed, it considers the normative attitude, in other words, the acceptance, of the individuals towards a pattern of social conduct, which necessary in explaining legal authority and validity. How it explains the latter is shown through the existence of union primary and secondary rules. According to Hart, ‘the most elementary manifestation of the internal point of view’, is seen in primary rules, which are the basic rules used by members of a society to justify criticism of deviance; they are rules that impose duties and obligations on individuals. These rules in turn, are justified and normative, because they are internally accepted as valid through their recognition by the secondary rules, particularly the rule of recognition. The secondary rules, known as powerconferring rules, on the other hand are directed towards the officials of a legal system. The rule of recognition, the ultimate rule, according to Hart, is the internally accepted practice of officials, acknowledging a rule as valid; it is not a particular rule itself. Therefore the validity of primary rules is dependent on the rule of recognition, and the existence of this explained by the manifestation of a social practice. The second significance of the internal/external dichotomy is according to Hart, providing for ‘the existence of a single legal system’. Shapiro states that ‘it constitutes on of the main existence conditions for social and legal rules’. Clearly, if not for the rule of recognition, as an internally accepted practice, the validity and reality of a legal system, according to Hart’s theory, would not exist. A third crucial significance I would like to argue is that it provides for the explanation of different legal systems with their own idiosyncrasies. The internal perspective, by acknowledging what

particular groups regard as their process of validity, allows Hart to commit to and achieve his aim to provide a general theory of law. I will now regard those who believe Hart’s internal perspective has a negative or no significance to his project at all. I believe that a great deal of these criticisms are either misunderstanding the role Hart wanted the internal perspective to play, or ascribing to it a different role entirely. I will first regard those that argue the internal perspective has little significance. Perry argues that Hart does not fully escape the difficulties of the Austinian theory as he does not seem to take normativity seriously. For him, it is not enough to simply describe a social group’s adoption of the internal point of view, ‘we must inquire into their reasons for adopting the rule’. I believe on the other hand that it went as far as Hart wanted it to, he never intended to elucidate on the reasons for adopting rules. Perry may want it to go further, but as far as Hart’s jurisprudence is concerned, it is wholly unnecessary. Shapiro similarly argues that the representation of the internally accepted practice of the validity, as representing the rule of recognition, also reduces the validity and authority of law to a social fact. This practice has no explanation for the acceptance other than the externally observed practice itself. This argument would also suggest the internal/external dichotomy has made little contribution to Hart’s theory because instead of resolving the problems in the reductionist theory, he too has reduced law to fact: the fact of acceptance. In my view, Marmor’s reformulation of Hart’s claim in his postscript, that the rule of recognition is a convention duly deals with this. The practice does not constitute a social fact, as per Austin, but a convention. Marmor argues that often the reason for which conventions are adopted is not always known or considered by the participants; that however does not preclude the existence of reasons. To those that suggest that this reformulation still does not account for normativity, I argue that there is a difference between moral normativity and legal normativity. Hart is not trying to account for the former but the latter; the officials are legally bound to acknowledge the internally accepted practice of validating law. To try and determine the ‘beginning of it all’ as it were, which Marmor acknowledges may certainly have been for based on moral reasons, misses the point of Hart’s jurisprudence, which is to describe to nature of legal obligation in a neutral manner. I will now discuss the negative significance critics have argued the internal perspective contributes to Hart’s project. Finnis argues that the internal perspective undermines Hart’s theory as one committed to the separation thesis and methodological neutrality. He argues that when Hart is speaking of the internal perspective, there is a normative undertone, in the sense that Hart is revealing that ‘it seems true to him that there is a reason and value for the rules’. Holton similarly argues that it is a moral point of view, stating that ‘acceptance of the law, in Hart’s terms, requires the belief that there are normative reasons for acceptance’. McCormick also argues that Hart’s internal perspective defeats his claim to neutral jurisprudence. He argues that if one assumes the internal perspective, in order to capture the law, that perspective will also constitute the participants reasons for following the law, which will be substantive. Indeed, Shapiro points out that both Perry and Postema define the internal perspective with substantive terms such as beliefs and judgements of the individual.

It is claimed that McCormick rescued the Hartian project by introducing a further distinction. He argues that the internal aspect of Hart’s theory is too simplistic and can be subdivided in the two different types, namely, the volitional and the hermeneutic attitude. The former refers to the perspective of an individual who is morally committed to the rule, and the latter is someone who is not morally committed but puts themselves in the shoes of the other person. I believe that McCormick’s very need to make these additional subcategories, as well as the criticisms of all those that have been discussed above, represent a misunderstanding of or a disregard to the relevance Hart wanted his internal perspective to play. McCormick’s distinction suggests that he believed Hart was referring to the volitional attitude, for if he believed Hart meant the hermeneutic attitude, for what reason did he feel, respectfully, that the reformulation was necessary? If it was for clarification to the readers of Hart’s jurisprudence, it surely was not presented as such. In conclusion, in line with Shapiro, I argue that Hart has been misunderstood. Shapiro states that the internal point of view was never meant to provide the reasons people obey. Critics have magnified and distorted its role in the theory. Instead, ‘in specifying a particular type of motivation that someone takes to the law…it accounts for the intelligibility of legal practice and discourse’. Hart’s aim was to provide a theory which describes and allow others to discuss the nature of legal validity and legal obligation without making reference to morality, in a general manner. I believe he does achieve his aim to through providing an intelligible platform for jurists to discuss legal validity and normativity. Whether or not discussing it in this manner, ignoring any moral obligations people may have, is useful, is a different question entirely. Indeed the internal and external dichotomy is extremely significant to Hart’s jurisprudence; it just does not hold central significance several critics have ascribed to it....