The internal point of view is a crucial aspect of H.L.A. Hart’s influential theory of law. As we have noted in our previous posts, for Hart a valid legal system requires external convergence and internal acceptance. It is simply not sufficient for public officials to conform to a set of rules in practice. In addition to regularity of behavior, those officials must also subjectively accept the rules as legitimate or perceive them as obligatory. Or in the words of one scholar (Perry, 2006, p. 1173), “the internal point of view is nothing more than an attitude that a standard is binding …” (See Stephen Perry, “Hart on social rules and the foundations of law,” Fordham Law Review, Vol. 75 (2006), pp. 1171-1209, available here.) So far, so good, but I now want to pose several questions to H.L.A. Hart and to legal positivists generally. To begin with, why is the internal point of view essential to their theory of law? That is, why is the mental attitude of legal officials worth caring about? By way of example, when football (soccer) players are playing the beautiful game, or when a linesman is officiating a match, does it really matter whether they perceive the Offside Rule as obligatory or legitimate? Isn’t it enough that they simply conform to the Offside Rule in practice?
My next question is a practical one: how does Hart’s internal point of view solve the demarcation problem in law, i.e. how does it really help us distinguish legal norms from moral ones? Consider our soccer example again. Let’s say it turns out that linesmen and players actually accept the Offside Rule from an internal point of view. Even if this were the case, the Offside Rule is still only a rule of an athletic contest, a game, and not a legally valid norm, so what work does the internal point of view do? How does this aspect of Hart’s theory enhance our understanding of legal systems as opposed to games or other activities? Consider, for example, the situation of a judge who must enforce a rule that she personally disagrees with. Maybe the judge thinks the “war on drugs” is bullshit and that our draconian drug laws are inhumane and counter-productive. Yet the judge nevertheless dutifully sends convicted drug offenders to prison as required by law. Is this judge really accepting the law from an internal point of view? The fact that we could potentially answer this question either way indicates that we could dispense with the internal point of view if all we are after is a descriptive theory of law.
Lastly–and to my Humean mind, most importantly–, how could we ever test the truth value of this subjective aspect of Hart’s theory? For starters, we could ask legal officials whether they accept x norm or y standard from an internal point of view, but such surveys and self-reports are notoriously unreliable. People lie. Or we could try to observe whether legal officials are conforming to a particular rule in practice. If they are, then we could take this convergence as evidence of their mental states. The problem with this method, however, is circularity. If regularity of behavior is evidence of collective mental states, then the internal point of view becomes viciously circular. So, why not dispense with this mental requirement altogether? Of course, it takes a theory to beat a theory, so in my next few posts, I will outline a competing theory of law, one based on Oliver Wendell Holmes’s prediction theory of law.