Explanation Of The Internal Point Of View

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. The latter famously claimed that the idea of sanctions is “the key to the science of jurisprudence.” [1] Therefore he held that legal rules are to be threats backed by sanctions and statements of legal obligations, so as the threatened sanctions to be carried out.

Another great ‘legal positivist’, Hans Kelsen, tried to explain legal rules and obligations in terms of norm, to be directives to courts requiring them to apply sanctions. In addition Alf Ross separating the difference between Austin and Kelsen, understood of legal rules as norms addressed to courts guiding the use of sanctions and statements of legal validity as predictions that these norms will be followed.

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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. Also, Hart showed that sanction-centred accounts ignored an essential feature of law. This feature was termed “the internal point of view.” Harts’ internal point of view claims that the law is seen not just sanction-threatening, directing, or predicting, but imposing obligations.

Therefore, what, precisely, is the internal point of view? And hence, what role does it play in Hart’s theory?

In short, the internal point of view is the practical attitude of rule acceptance. It does not suggest that people accept their moral legitimacy, but only that they are willing to guide, and evaluate their conduct according to the rules. As for its importance to Hart theory, it plays four roles: ‘(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.’ [4] This concept perhaps is Hart’s greatest contribution to jurisprudential theory but it is often easily misunderstood.

To begin with, Hart dictates 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.” [5] He argues that the ‘command theorists’ [6] explain force as the main component of law and have looked only on one side of the coin ‘the external element of law’. It compels people to act only 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 and actions of a sovereign in imposing sanctions, the command theorists have ignored the internal aspect which characterises all law. This is element is ‘the internal point of view’ which make people feel a sense of obligation to obey the law. In fact, as Hart explains there is a distinction between the two aspects of law, ‘to be obliged’ thus to act in a certain way because of some threat or by force, such as when an armed man orders a person to hand over money, and ‘to be under an obligation’ thus to feel in yourself a sense of duty to act in a certain way without some external factors such as threat or sanctions. Therefore, for Hart the command theories try to explain the law only in terms of the first notion, therefor they are inadequate, because the law has both an external and an internal fashion to induce compliance.

According to Stephen Perry, for example, “the 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.” [7] Similarly, 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.” [8] 

In regard to the above, Hart’s doctrine demands that legal theories to become across with the shared experiences of legal natives. Jurisprudence must take the insider’s point of view, and have a conflict with those theories that ignore the attitudes and beliefs of the people that are under the law. Therefore the internal point of view came to question sanction-centred theories of law, such as those suggested by Hans Kelsen and Oliver Holmes. Hart claimed that these theories are lacking insight because they ignore or conceal the range of attitudes that people have in the direction of the law. The problem in Kelsen’s theory, is that the law directs officials to punish those who don’t comply with the rules instead of providing guidance for those who want to live according and under their obligations. Also the difficulties with “bad man” theories such as Holmes’ is that they assume that people are driven to follow the law merely in order to avoid sanctions, rather than because that rules require so. In addition, Holmes’ who is an insider himself, his curiosity about the law is explained only by his aversion to sanctions. He benefits one type of insider’s point of view over another. So as Hart says, theorists by focusing only on the perspective of the bad man, sanction-centred theories define, only the other point of view, particularly, the internal point of view out of existence.

Thus for Hart the ‘the internal point of view’ is actually the practical attitude of rule-acceptance. It happens when people accept or endorse a convergent pattern of behaviour as a standard of conduct towards a social rule. Therefore when the phrase “the internal point of view” has one meaning, it refers to a specific practical attitude. Moreover practical point of view has two attitudes that an insider can follow towards the rules: acceptance and non-acceptance. According to Hart, if someone accepts the rules have taken the internal point of view. In reverse, if someone does not accept the rules, either because they accept the bad man point of view, or because they are just observing, they don’t take a practical attitude at all, it is just the external point of view.

However, what does he mean to accept a social rule? Hart claims 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.” [9] It is to treat existence of the rule as a “reason and justification” for action, as the “basis for claims, admissions, demands, punishment or criticisms,” as establishing the “legitimacy” of these demands and criticisms. [10] Hart clears out that the moral legitimacy of the law does not needed in order to accept its authority. Hence the standard of conduct meant by Hart is certainly not the moral legitimacy of law. Therefore as he said “is that when one takes the internal point of view towards a rule, acts according to the commands of the rule.” [11] But since this can be comfort by ‘the bad man’s’ theories Hart added, “The second way in which the internal point of view is expressed is through critical evaluation.” [12] So as people who accept the rules criticize others even themselves for not conforming to the rules.

In the end, the internal point of view is often expressed by words such as “must”, “ought”, “wrong”, and “right.” As Scott J. Shapiro in his Journal said “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.” [13] These statements are “internal” statements as described by Hart. [14] Therefore, Hart compares 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.” [15] For Hart, these are the external statements since they express the external point of view. [16] 

To sum up, as Scott J. Shapiro said in his Journal 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.” [17] Basically, Hart concept of the internal aspect distinguishes between social rules and social habits. A crucial difference 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. However, as it is seen, the internal aspect and therefore rules is an important ingredient for Hart conception of law.

At first impression Hart conception of law, is a symbiotic relationship between primary and secondary rules, and more importantly the internal point of view seems valid. 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. There is also a strong connection with the rule of adjudication and the rule of recognition “because, if the courts are empowered to make authoritative determinations of the fact that a rule has been broken, these cannot avoid being taken as authoritative determination of what the rules are.” [18] 

Indeed the mosaic of the internal aspect, the primary and secondary rule as law is very attractive for Hart because he 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. The power conferred to the individual is not a duty, but merely powered conferred to identify rules and the breach of obligation, this is justified by inextricably linking the rules of recognition and the rule of adjudication. The existence of secondary rules, giving amendment ability and the creation of new rules, has an exacted resemblance of a legal system. However Hart analysis is open to scrutiny. One element that can be objected to is his assumption on why individuals obey law. For Hart, people obey rules hence law, because of the internal aspect. Individuals obey, not habitually or because of some sense of reason, but because other are doing so. The internal aspect also makes an assumption that a society where the internal aspect is at large is one that is duly homogenous. The individuals in this society all think in a similar fashion, they share the same morals, ethics and perspective and because of this they know rather instinctually know. Hart idea of the internal aspect is an explanation of why people obey and follow laws, but the implications of this theory is that the individuals under sovereign rule are completely oblivious and unthinking to law and the creation of laws is largely reactionary, where there are no presupposed principles of the social group in question. Hart points out that that there is no necessary conceptual connection between law and morality. He supports that there can be legal rights or duties that have no moral justification or force. On the other hand Dworkin which occupies a theoretical position somewhere between natural law and legal positivism maintains that there must be moral grounds for the assertions of the existence of legal rights and duties. That is, legal rights are a species of moral rights. Hart points out that his theory enables the identification of the law based on a relatively straight forward application of a rule of recognition. Dworkin’s theory on the other hand, requires a complex moral calculation and interpretation to identify even the simplest rule as a rule of law. The notion that the internal aspect is the main and only reason for people’s compliance and obedient nature to law is insulting to the population’s intelligence and the diversity of peoples, morals, ethics and thought.

To conclude by the combination of primary and secondary rules Hart believes that he has found a significant weapon for the analysis of much that puzzled both the jurist and the political theorists, namely, the heart of a legal system. He believes that this approach is greater than his predecessors to explain the nature of law. He rejects the sanction-centred theories because they are based only on the motivation that people will obey only through fear. Also Hart allows us to see legal phenomena, not in terms of isolated precepts with not meaningful link to social reality but as a unified system upon the concept of rule of recognition.