22 Pages Posted: 16 Oct 2006
Date Written: October 14, 2006
In "The Concept of Law," Hart showed that sanction-centered accounts of every stripe ignored an essential feature of law. This feature he termed the internal point of view. Seen from the internal point of view, the law is not simply sanction-threatening, directing, or predicting, but rather obligation-imposing. Though the internal point of view is perhaps Hart's greatest contribution to jurisprudential theory, this concept is also often and easily misunderstood. This is unfortunate, not only because these misreadings distort Hart's theory, but, more importantly, because they prevent us from appreciating the true infirmities of sanction-centered theories and the compelling reasons why they ought to be rejected. In this paper, I try to address some of these confusions. What, exactly, is the internal point of view? What role (or roles) does it play in Hart's theory? And how does an adequate appreciation for the centrality of the internal point of view lead to the rejection of sanction-centered theories?
Briefly, my answers will be as follows. 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. Finally, sanction-centered theories are unacceptable for three reasons: (1) they are myopic in that they ignore one of the motivations that people might have for obeying the law; (2) they are unable to account for the existence of legal systems; (3) they cannot account for the intelligibility of legal practice and discourse.
Keywords: Jurisprudence, Hart, Internal Point of View, Sanctions, Rules
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