A Socio-Legal Methodology for the Internal/External Distinction: Jurisprudential Implications
Brian Z. Tamanaha
Washington University in Saint Louis - School of Law
Fordham Law Journal, Vol. 75, 2006
St. John's Legal Studies Research Paper No. 06-0060
A great deal of confusion exists over the internal/external distinction in jurisprudence because legal theorists have borrowed the distinction from the social sciences without recognizing relevant differences between the two discussions. Social scientists have used the distinction to mark alternative ways of viewing the social action being observed: paying attention to the internal orientation of the actors, versus merely observing external patterns of behavior. The jurisprudential discussion refers this same contrast, but the internal/external distinction is also invoked to mark whether the observer's standpoint is internal or external to what is being observed. Unfortunately, these two very different ways of making the distinction were mixed together by H.L.A. Hart, and the jurisprudential discussion has suffered as a result. This essay sets out a handful of sociological notions that will help clarify the application of the internal/external distinction in jurisprudence. To demonstrate the usefulness of these ideas, they will be applied to clear up the Hart-Dworkin debate over the appropriateness of a general jurisprudence, and to help make sense of Holmes' "prediction" view of law. They will also be used to suggest how social scientists can better tease out the influence of personal attitudes in judging.
Number of Pages in PDF File: 31
Date posted: December 1, 2006