What is the internal point of view?

Fordham Law Review

Volumn 75, Issue 3, 2006, Pages 1157-1170

  Shapiro, Scott J ^a  

^a UNIVERSITY OF MICHIGAN   (United States)

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[No Author keywords available]

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EID: 33846562008     PISSN: 0015704X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (62)

1. John Austin, The Province of Jurisprudence Determined and the Uses of the Study of Jurisprudence 13 (1954).
2. See Stephen R. Perry, Interpretation and Methodology in Legal Theory, in Law and Interpretation 97, 99 (Andrei Marmor ed., 1995).
3. Gerald J. Postema, Jurisprudence as Practical Philosophy, 4 Legal Theory 329, 332 (1998);
4. see also Brian Leiter, Rethinking Legal Realism: Toward a Naturalized Jurisprudence, 76 Tex. L. Rev. 267, 295 n.126 (1997).
5. See, e.g., Donald Black, The Behavior of Law 6-8 (1976).
6. I discuss the matter in much greater detail in my reply to Stephen Perry.
7. See Scott J. Shapiro, The Bad Man and the Internal Point of View, in The Path of the Law and Its Influence: The Legacy of Oliver Wendell Holmes, Jr. 197 (Steven J. Burton ed., 2000).
8. H.L.A. Hart, The Concept of Law 91 (2d ed. 1994).
9. See id. at 40.
10. Id. at 89.
11. Id.
12. H.L.A. Hart describes his methodological approach as " hermeneutic" in the introduction to his Essays in Jurisprudence and Philosophy.
13. See H.L.A. Hart, Essays in Jurisprudence and Philosophy 13 (1983) ("[W]hat is needed is a "hermeneutic' method which involves portraying rule-governed behaviour as it appears to its participants....").
14. Hart, supra note 6, at 56.
15. Id. at 11 (emphasis omitted).
16. Id. at 90.
17. Id. at 56.
18. Hart notes that to take the internal point of view is not to experience particular "feelings of compulsion." Id. at 57, 88. Rather, it is to possess a "critical reflective attitude." See id. at 57.
19. Id. at 203 (emphasis added).
20. Id. at 56-57, 88-91.
21. For an excellent discussion of Hart's practice theory of rules, see Joseph Raz, Practical Reason and Norms 49-58 (2d ed. 1990).
22. Hart, supra note 6, at 55-56.
23. Id. at 55.
24. Id. at 55-56.
25. Id. at 57.
26. Id. at 102-03 (emphasis omitted).
27. Id. at 103 (emphasis omitted).
28. Id. at 255.
29. Id. at 257.
30. Id. at 40.
31. See id. at 91.
32. Id. at 55-60.
33. See id. at 55.
34. Id.
35. Id.
36. Id. at 55-56.
37. Id. at 56.
38. Id. at 56-57.
39. Id.;
40. see also id. at 88-91.
41. See, e.g., id. at 58 ("The acceptance, and so the existence, of such a rule will be manifested during Rex I's lifetime in part by obedience to him, but also by acknowledgements that obedience is something to which he has a right by virtue of his qualification under the general rule." (emphasis added));
42. see also id. at 109-10.
43. See id. at 107-10.
44. Jules L. Coleman & Brian Leiter, Legal Positivism, in A Companion to Philosophy of Law and Legal Theory 241, 247 (Dennis Patterson ed., 1996). Jules Coleman and Brian Leiter go on to offer an argument for the reason-giving nature of the internal point of view. Regardless of whether these arguments are successful, I don't think that they represent an accurate interpretation of Hart's theory (and, judging by Coleman's later work,
45. see Jules L. Coleman, The Practice of Principle: In Defence of a Pragmatist Approach to Legal Theory 103 (1998), neither does Coleman).
46. "Legal actor" refers to anyone who intends to do what the law requires him or her to do.
47. See Hart, supra note 6, at 56.
48. Note that Hans Kelsen's theory escapes this general criticism insofar as it treats the law as consisting of norms. See generally Joseph Raz, Kelsen's Theory of the Basic Norm, in The Authority of Law: Essays on Law and Morality 122-45 (1979).
49. Hart, supra note 6, at 88.
50. See, e.g., Axel Hägerström, Inquiries Into the Nature of Law and Morals (Karl Olivecrona ed., C.D. Broad trans., 1953);
51. Karl Olivecrona, Law as Fact (2d ed. 1971);
52. Alf Ross, On Law and Justice (1958).
53. For a general overview of Scandinavian Legal Realism, see Jes Bjarup, The Philosophy of Scandinavian Legal Realism, 18 Ratio Juris 1 (2005).
54. For Hart's critique of this jurisprudential school, see Hart, Scandinavian Realism, in Hart, supra note 10, at 161.
55. Hart, supra note 6, at 102-03.
56. Id.
57. See id. at 103.
58. See id. at 102.
59. See id. at 102-03.
60. See id. at 110.
61. For a similar interpretation of Hart as an early norm-expressivist, see Kevin Toh, Hart's Expressivism and His Benthamite Project, 11 Legal Theory 75 (2005).
62. Kelsen's theory escapes this objection as well. See supra note 41.