LAWS2820:Hart External Point of View
1- On p. 89, Hart speaks of an extreme external point of view. What is that point of view? Is there a less extreme external point of view that is not yet an internal point of view? In answering this question, consider Hart’s own point of view on legal systems and other social rules. Is Hart’s own point of view when writing the Concept of Law internal or external?
What’s the right way to look at a legal system? A distinction was etched out by H.L.A Hart that between the internal and external perspectives in relation to a legal system and deployed in his renowned book – ‘The Concept of Law’. Through this book, you will get a brief and concrete introduction that to the distinction, especially if you are a law student (1st year law student) and have a precise interest and thirst of knowledge about a legal theory.
Point of Views – External and Internal
What is the key difference between law’s external and internal perspectives?? This is a mere metaphor though, but the idea is that you can get an insight into the law from the external point of view or internal. Irrespective of the fact, whether you’ve ever encountered this kind of distinction or not, the intuitive idea is pretty clear and obvious. The internal aspect is based on the perspective of participants involved in the legal system. Therefore, the internal viewpoint is paradigmatically the viewpoint and opinion of legal officials, for example, judges. Then there is the external viewpoint, which is, an outsider’s perspective. Therefore, the external aspect is paradigmatically the opinion of either an anthropologist or a sociologist but from a viewpoint of a varying culture, who is deeply observant of the legal system.
The Internal Point of View – General Significance
The idea behind the internal point of view has a vital role to play in the theory of law of H.L.A. Hart. However, this particular post deal with a relevant yet distinct topic: The intensifying yet a generic role that external/internal distinction plays in a specific legal theory.
This distinction should not be unknown to new legal theorists, so that they can prevent serious errors in the development of the theory. The error is to glide to and fro from the external and internal point of view. This is an easy mistake to commit. The theorist operates within the contours of internal point of view. Thus, describing a specific type of legal doctrine based on the viewpoint of judges and lawyers who function within the constraints and limitations of the doctrine. The theorist gives an explanation on the origin the law, thereby, — determining economic pressures or operation of political. The theorist then slides back to the concerning doctrine and starts drawing a conclusion that there should be an interpretation of law done in a casual light of explanation. Causal explanations regarding the origin of the law are mostly irrelevant from the viewpoint of internal aspect.
The internal viewpoint might be inclusive of additional significance in respect to the legal theorists. There can be an argument about the legal rules and how they aren’t within the realm of pure external viewpoint. For example, imagine that you’re an anthropologist, hailing from the planet Mars and that you have been observing and analyzing Earth’s legal system. You will be capable of noting numerous behavioral regularities, as long as, you are within the realms of external viewpoint, you will require asking questions, like, ‘What do these actions and legal texts really mean?’ You would also require assuming something within the contours of internal viewpoint. You also require asking, ‘what these behaviors denote and mean to those involved in the practice of law?’
If this is a correct argument, the important consequences will follow. The legal theorists have real interest in legal theory. If the internal viewpoint is a vital prerequisite for the comprehension of the legal significance of the legal actors’ behavior, then it would mean that legal theory needs theorists to assume and understand the internal viewpoint at the stage where the description of the legal phenomenon are made by the theorists and they are the object of study.. Premier idea in this context is that the external viewpoint is capable of describing legal actors’ behavior. However, the internal viewpoint will help in the comprehension of the legal actions and their meanings.
The distinction present between the external and internal viewpoints is amongst the most basic of all ideas prevalent in legal theory. With the initial construction of law theories, you must keep in mind to ask yourself, whether the area you are looking into is from the internal viewpoint or external.
2- From the bottom of p. 118 to the top of p. 120, Hart speaks of an apparent paradox that results from the interruption of a legal system. What is the apparent paradox and why does Hart think it is not a problem? Is he right?
In philosophy, paradoxes have proven to be highly useful. This is because of the fact that they lead us to a deep thought process, unlike the ‘teasers’. The paradoxes also act as sources for both analysis and reflection for the process of revealing vital facts relevant to the world. Through this particular paper, we aim to make a paradoxical consideration that has been generated without any prior intention by the movement of Critical Legal Studies an as an integral part of its intuitive attack on legal reasoning and law’s orthodox and liberal accounts.
Irrespective of that, actors involved in the legal system are capable enough to make numerous successful predictions in many instances related to the outcomes of different cases. As per the opinion of one of the CLS scholars “the idea that judicial decision making is indeterminate, is rendered vulnerable by our experience of being able to speculate successfully about how at least some cases will come out”. The paper deals with insights and that paradox and in the process offers a valid source legal reasoning and the nature of the same.
HLA Hart of the English jurisprudence, works in a tradition that are within the contours of tension that with CLS, which was observed in the year 1961 and made it clear that the legal rules were indeterminately and a matter of positive virtue, as it allowed and enabled the legal system to constructively cope up with the future of the society. Hans Kelsen had made a comment on the legal norms’ indefiniteness. Though the CLS scholars are yet to give the indeterminacy thesis a head start in the helms of legal philosophy, till date they continue to maintain the status of the most active exemplars of the thesis. The movement consists of many differences of opinion, especially, on issues like, the nature of philosophy and the role of ideology based on the question of indeterminacy and seems to speak with a single voice.
We started with a paradox – Indeterminacy vs. the apparent predictability. Was the paradox capable of teaching us anything? In fact, the initial insight of the paradox provides us with a revelation that an indeterminacy thesis should only be a thesis primarily based on legal reasoning. Suggestions were made by us regarding the legal reasoning and how it can help in the production of several determinate outcomes due to the operation of conventions. Conventions remain intact, whereas the legal reasoning produces predictable and determinate results because the operation of rules is thoroughly understood by everyone.
When changes are made in conventions or when they are broken, the most affected parts present in the legal system treads into an indeterminacy period. Indeterminacy, as per our opinion, is not a predicate – unlike the views of few CLS scholars – we can ascribe every time to the law, without thinking over the place and time. Laws definitely enjoy sites and periods of determinacy. For this reason only, there is coexistence between predictability and indeterminacy and this coexistence is prevalent because of legal reasoning and its conventions.