Legal obligations and the internal aspect of rules

Fordham Law Review

Volumn 75, Issue 3, 2006, Pages 1229-1253

  Zipursky, Benjamin C ^a  

^a FORDHAM UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 33846636366     PISSN: 0015704X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (55)

1. H.L.A. Hart, The Concept of Law 82-91 (2d ed. 1994).
2. Id. at 38-42 (discussing "[d]istortion as the price of uniformity").
3. Id. at 18-19.
4. Oliver Wendell Holmes, Jr., The Path of the Law, 10 Harv. L. Rev. 457, 458 (1897),
5. reprinted in 110 Harv. L. Rev. 991, 992 (1997).
6. Id.
7. Hart, supra note 1, at 210-11.
8. Id. at 2-3 (describing ordinary citizens' common sense knowledge of law).
9. See Hart's reference to the "puzzled man" and the "ignorant man" in Hart, supra note 1, at 40.
10. Contra Ronald Dworkin, Hart's Postscript and the Character of Political Philosophy, 24 O.J.L.S. 1 (2004) (criticizing Hart's methodology as one aspiring to occupy an Archimedean perspective).
11. Hart's connection to Oxford's philosophical community is illuminatingly examined in Nicola Lacey, A Life of H.L.A. Hart: The Nightmare and the Noble Dream (2004) and Neil MacCormick, H.L.A. Hart (1981).
12. See also Frederick Schauer, (Re)Taking Hart, 119 Harv. L. Rev. 852 (2006) (reviewing Nicola Lacey, A Life of H.L.A. Hart: The Nightmare and the Noble Dream (2004)).
13. The analysis offered by MacCormick of Hart on legal obligations and Hart on the internal point of view is nuanced and critical, raising a number of the concerns indicated below. See MacCormick, supra note 10, at 33-40, 55-70.
14. Similarly, Michael Martin's analyses of legal obligations and of the internal point of view are very helpful in displaying several of the difficulties and apparent contradictions. See Michael Martin, The Legal Philosophy of H.L.A. Hart: A Critical Appraisal 15-39 (1987).
15. This is the source of one Dworkin's criticisms of Hart in his chapter "The Model of Rules II." See Ronald Dworkin, Taking Rights Seriously 46-80 (1977).
16. Hart, supra note 1, at 90 ("The external point of view may very nearly reproduce the way in which the rules function in the lives of certain members of the group ....").
17. Id. at 240.
18. Id. at 102.
19. Hart, supra note 1, at 256-57 (distinguishing enacted legal rules from judicial customary legal rules and stating that the practice theory is inapplicable to the former).
20. Id. at 88.
21. Id. at 257.
22. Stephen R. Perry, Holmes versus Hart: The Bad Man in Legal Theory, in The Path of the Law and Its Influence: The Legacy of Oliver Wendell Holmes, Jr. 158-96 (Steven J. Burton ed., 2000);
23. 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., supra, at 197-210.
24. Hart, supra note 1, at 90-91.
25. Perry, supra note 19, at 162-65.
26. Id. at 164-65.
27. Id. at 165.
28. Id. at 165-76.
29. Id. at 191-92.
30. Shapiro, supra note 19, at 203.
31. Id. at 208-09.
32. This sentence should not be read to suggest that Shapiro believes Perry's normative turn would be helpful to Hart.
33. Hart, supra note 1, at 88.
34. Scott J. Shapiro, What Is the Internal Point of View?, 75 Fordham L. Rev. 1157, 1166 2006)
35. Id. at 56-57 (introducing the "internal aspect of rules").
36. Hart's conflation of these closely related ideas is interestingly seen in a passage that Shapiro quotes in his response to Perry: One of the difficulties facing any legal theory anxious to do justice to the complexity of the facts is to remember the presence of both these points of view and not to define one of them out of existence. Perhaps all our criticisms of the predictive theory of obligation may be best summarized as the accusation that this is what it does to the internal aspect of obligatory rules. Hart, supra note 1, at 91 (emphasis added). In the first of the two sentences quoted above, Hart is referring to the "difficulty" (or challenge) of not defining "one of" these "points of view" out of existence. He then concludes by suggesting that his critique of the predictive theory is summarized by saying that "this is what it does," presumably to "the internal point of view." However the noun phrase at the end of this passage is not "the internal point of view" but "the internal aspect of obligatory rules." Id.
37. Id. at 27.
38. See Joseph Raz, The Authority of Law: Essays on Law and Morality 153-57 (1979). Raz's argument that Hart needs the notion of a detached statement is supportive of the general approach I am taking, but the notion of a detached statement does not capture what I am referring to, for it (quite expressly) presumes that the speaker is withholding commitment from the internal point of view. What we need here is what is in common between the detached statement and an internal statement. Removing oneself (as opposed to accepting) is a direction to take. Similarly, accepting an assertion and rejecting an assertion are two different responses, but understanding the assertion is common to both. Critical, from a hermeneutic point of view, is grasping that the (putative) legal norm is enjoining conduct and grasping what it is enjoining. The compliant and the manipulative, the good and the bad, and the detached all see this aspect of primary rules.
39. Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 Harv. L. Rev. 1089 (1972).
40. See Jules A. Coleman & Jody Kraus, Rethinking the Theory of Legal Rights, 95 Yale L.J. 1335 (1986);
41. Dale A. Nance, Guidance Rules and Enforcement Rules: A Better View of the Cathedral, 83 Va. L. Rev. 837 (1997). This essay builds on my own critique of Calabresi and Melamed, which drew upon a Hartian conception of legal obligation.
42. See Benjamin C. Zipursky, Rights, Wrongs, and Recourse in the Law of Torts, 51 Vand. L. Rev. 1, 55-60 (1998).
43. See Lacey, supra note 10;
44. MacCormick, supra note 10.
45. Professor John Goldberg and I have elsewhere offered a Haitian, primary rule-oriented response to the critique of duty in The Path of the Law. John C.P. Goldberg & Benjamin C. Zipursky, Seeing Tort Law from the Internal Point of View: Holmes and Hart on Legal Duties, 75 Fordham L. Rev. 1563 (2006). Here, I present just our basic story: First, the nature of tort law is to predicate the imposition of liability upon the recognition of a power in the plaintiff, and to predicate the power upon a finding of a breach of a duty of conduct by the defendant. Hence, duties of conduct are critical. The second is that-as Austin himself recognized and as Hart and Raz have both recognized-courts are empowered to articulate law, including the articulation of primary rules of conduct. Third, Hart's rules of recognition render it coherent to suppose that primary rules exist within the law by virtue of being identifiable according to secondary legal rules that courts articulate and utilize.
46. See H.L.A. Hart, Are There Any Natural Rights?, 64 Phil. Rev. 175 (1955);
47. see also MacCormick, supra note 10, at 155-58.
48. Frederick Schauer, Playing by the Rules: A Philosophical Examination of Rule-Based Decision-Making in Law and in Life 199 (1993).
49. See Hart, supra note 1, at 40 (discussing the "puzzled man" and the "ignorant man").
50. Id. at 90
51. This leaves open the claim, made most forcefully by Scott Shapiro, that the conception of the "internal point of view" which entails norm acceptance is fundamental to Hart's treatment of legal officials, which is, in turn, fundamental to his entire explanation of how it is that a legal system could exist as the legal system of a community. Shapiro, supra note 30, at 1169-70.
52. See, e.g., John C.P. Goldberg & Benjamin C. Zipursky, The Moral of MacPherson, 146 U. Pa. L. Rev. 1733 (1998).
53. Jeremy Waldron, Normative (or Ethical) Positivism, in Hart's Postscript: Essays on the Postscript to The Concept of Law 411 (Jules Coleman ed., 2001).
54. Holmes, supra note 4.
55. See supra Part V.C.