A Socio-Legal Methodology for the Internal/External Distinction: Jurisprudential Implications

Fordham Law Journal, Vol. 75, 2006

St. John's Legal Studies Research Paper No. 06-0060

31 Pages Posted: 1 Dec 2006  

Brian Z. Tamanaha

Washington University in St. Louis - School of Law

Abstract

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.

Suggested Citation

Tamanaha, Brian Z., A Socio-Legal Methodology for the Internal/External Distinction: Jurisprudential Implications. Fordham Law Journal, Vol. 75, 2006; St. John's Legal Studies Research Paper No. 06-0060. Available at SSRN: https://ssrn.com/abstract=947580

Brian Z. Tamanaha (Contact Author)

Washington University in St. Louis - School of Law ( email )

Campus Box 1120
St. Louis, MO 63130
United States

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