Internal Point Of View Role Harts Theory Philosophy Essay

Internal Point Of View Role stags Theory Philosophy EssayJurisprudential debate concerning the nature of legal philosophy is often thought of as a long-running battle between two schools of thought the rival camps of natural faithfulness and efficacious positivism. The natural law tradition has always emphasised laws grounded ness in justice and the common good, while effective positivism had tended to emphasise laws basis in authority.Legal positivism emerged from the work of Jeremy Bentham and his disciple hindquarters Austin. John Austin famously claimed t assume the idea of sanctions is the key to the science of jurisprudence.1Thus, he held efficacious regularises to be threats backed by sanctions and statements of legal agreements as predictions that the threatened sanctions will be carried out.Furthermore Hans Kelsen sought to explicate legal commands and obligations in terms of norms, he understood these norms to be directives to courts requiring that sanctions be applied. Splitting the difference between Austin and Kelsen, Alf Ross conceived of legal rules as norms addressed to courts directing the use of sanctions and statements of legal validity as predictions that these norms will be followed.However, iodin 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 Law2, stag 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 murder so.3Therefore the central claim of legal positivism is that law is separate and distinct from morality. However, Hart showed that sanction-centred accounts of every stripe ignored an essential shoot a line of law. This feature he termed the infixed take aim of view. Though the internal dapple of view is perhaps Harts greatest contri thoion to jurisprudential speculation, this concept is also often and comfortably misunderstood. Seen from the internal auspicate of view, the law is non simply sanction-threatening, directing, or -predicting, but rather obligation-imposing.Therefore, what, exactly, is the internal point of view? What role (or roles) does it play in Harts theory?Briefly the internal point of view is the practical attitude of rule- dealance it does not imply that population who accept the rules accept their moral legitimacy, only that they argon abandoned to guide and evaluate make out in accordance with the rules.The internal point of view plays four roles in Harts theory (1) it specifies a particular type of pauperism 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.At one poin t, Hart observes 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 is4Hart argues that the command theorists emphasised force as the main component of all law and have looked only on one side of the affect the external element of law which compels people to act out of fear. This may be the mischievously mans view of the law and Hart argues that it does not present a balanced picture. A positivist theory of law essential 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 command s of a sovereign and the actions of officials in imposing sanctions, the command theorists have ignored the internal element which characterises all law. This is known as the internal point of view which make people feel a sense of obligation to obey the law. There is a distinction between the two aspects of law, to be obliged that is to be pressure to act in a certain way because of some threat, such as when an armed man orders a person to hand over money, and to be under an obligation that is to feel within oneself a sense of duty to act in a certain way without some external stimulant drug compelling such action.Hart also argues that the command theories explain law only in terms of the premiere notion, and that to this extent they are inadequate, because the law operates both(prenominal) in an external and an internal fashion to induce compliance.According to Stephen Perry, for example, the world(a) idea of the internal point of view is that an adequate jurisprudential acco unt moldiness at some point take into consideration how the practice looks to at least some of the practices participants, from the inside.5Likewise, Gerry Postema writes The law, like other similar social practices, is constituted not only by intricate patterns of demeanoral interactions, but also by the beliefs, activities, judgments and understandings of participants. The practice has an inside, the internal point of view of participants.6On this reading, Harts doctrine of the internal point of view is a methodological prescription which demands that legal theories resonate with the shared experiences of legal natives. Jurisprudence must take the point of view of the insider, and come in contrast with those theories that ignore the beliefs and attitudes of those who perish under the law. Hart used the internal point of view to discredit sanction-centred theories of law, such as those proposed by Oliver Wendell Holmes and Hans Kelsen. Hart argued that these theories are myopic f or they ignore or mask the range of attitudes that people typically have towards the law. The problem with hard man theories such as Holmes is that they assume that people are motivated to follow the law solely in order to avoid sanctions, rather than for the reason that rules require such behaviour. These theories, Hart says, define the internal point of view outof existence. The problem with Kelsens theory, he claims, is that it focuses exclusively on one technique that the law uses to motivate conduct to the exclusion of all others. The law not only directs officials to punish those who dont comply with the rules, but provides guidance for those who want to live up to their obligations. Holmes bad man is an insider himself,namely, one whose curiosity about the law is horny solely by his aversion to sanctions. The problem with Holmes theory, rather, is that he privileges one type of insiders point of view over another. By focusing solely on the spot of the bad man, sanction-cen tred theories define the other point of view, namely, the internal point of view, out of existence.What, then, is the internal point of view? As Hart used the term, the internal point of view refers to the practical attitude of rule-acceptance. Someone takes this attitude towards a social rule when they accept or endorse a convergent pattern of behaviour as a standard of conduct. Whereas the phrase the internal point of view is univocal it refers to a specificpractical attitude. With respect to the practical point of view, thither are two attitudes the insider can take towards the rules acceptance and non-acceptance. Anyone who accepts the rules has, according to Hart, taken the internal point of view. Anyone who does not accept the rules, either because they are like the bad man and take the practical, but non-accepting, point of view, or because they are merely observing and hence dont take a practical stance at all, has taken the external point of view.Harts internal point of v iew, therefore, is the practical attitude of rule-acceptance.But what exactly does it mean to accept a social rule?Hart says 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. It is to treat existence of the rule as a reason and justification for action, as the basis for claims, demands, admissions, criticisms or punishment, as establishing the legitimacy of these demands and criticisms. Hart is quite clear that one does not have to believe in the moral legitimacy of the law in order to accept its authority. Given that the internal point of view is not the moral point of view, what does Hart mean when he characterizes it as acceptance of a rule as a standard of conduct? When one takes the internal point of view towards a rule, one acts according to the dictates of the rule. Of course, there must be something more to the internal point of view, given that the bad man also conforms to the rules. The second way in which the internal point of view is expressed is through critical evaluation. Thus, participants who accept the rules criticize others, and perhaps in time themselves, for failing to conform to the rules. Finally, the internal point of view is usually expressed by statements that use normative terminology such as ought, must, right, and wrong.22 Thus, 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. Hart calls these statements internal statements, because they normally express the internal. point of view.23 Hart contrasts 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. Hart calls these external statements because they usually ex press the external point of view.24 They are statements that a particular group accepts certain rules normally made by those who do not accept those rules themselves.Harts 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 ones criticism using evaluative language.At first impression Hart intention of law, as a symbiotic relationship between primary and secondary rules, and more importantly the internal aspect seems valid. Hart concept of the internal aspect distinguishes between social rules and social habits. A crucial distinguishing feature 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. Deviation from the convergent behaviour makes criticism and the ru le legitimate, and often is manifested through normative language such as you ought to or you should do, a certain type of behaviour. The internal aspect and therefore rules is an important constituent for Hart conception of law, because essentially law is the union of primary and secondary rules. 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 gr oup 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.Indeed the mosaic of the internal aspect, a primary and secondary rule as law is very attractive, for Hart 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 impose and amend the laws. However Hart analysis