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Peter Winch and H.L.A. Hart: Two Concepts of the Internal Point of View

Published online by Cambridge University Press:  13 April 2016

Veronica Rodriguez-Blanco
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Extract

In his book The Concept of Law, Hart advances an arresting idea: the internal point of view. The idea immediately captured the imagination of legal theorists and was envisaged as a step forward in understanding both the nature of law and its practices. There is, however, lack of clarity and ambiguity on understanding Hart’s important notion and its role in different key jurisprudential problems such as the normativity of law and the methodology of legal theory. This article reconstructs the intellectual roots of the internal point of view and argues that although the seeds of Hart’s idea can be found in Winch’s seminal book The Idea of a Social Science, there are striking differences between Hart’s and Winch’s notions of the internal point of view. Winch endeavors to explain the participant’s viewpoint in terms of what the participants are doing. On the other hand, Hart aims to provide an explanation of how the law enables judges and law-abiding citizens to determine what they ought to do. This difference has been often overlooked by legal scholars; however, it provides the key to understanding Hart’s connection between the internal viewpoint and the normativity of law, i.e., the idea that legal rules provide reasons for action and, in some circumstances, create and impose duties and obligations. The distinction also illuminates the demarcation in the methodology of legal theory between an explanation from a detached perspective, namely the second or third-person standpoint of the practical point of view and, on the other hand, either a theoretical or hermeneutical explanation of the participant’s point of view. I argue that the non-recognition of the practical/participant distinction has been pervasive in two ways. First, there has been an overemphasis on the distinction between the internal and the external point of view. Second, a more fundamental distinction between an ‘engaged’ and ‘detached’ viewpoint which is a predominant feature of the practical point of view has been under-researched.

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Research Article
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Canadian Journal of Law & Jurisprudence , Volume 20 , Issue 2 , July 2007 , pp. 453 - 473
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 2007

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References

I am grateful to the Alexander Von Humboldt Foundation and the Faculty of Law at Heidelberg University, Germany for funding this research.

1. Hart, H.L.A., The Concept of Law (Oxford: Clarendon Press, 1961).Google Scholar

2. Winch, Peter, The Idea of a Social Science and its Relation to Philosophy (London: Routledge, 1998).Google Scholar

3. See Raz on the distinction between normative (guiding) and explanatory reasons. Raz, Joseph, Practical Reason and Norms (Oxford: Oxford University Press, 1999 CrossRefGoogle Scholar, first published in 1975) at 15-20; Dancy, Jonathan, Practical Reality (Oxford: Oxford University Press, 2000) at 1–25 Google Scholar; Moran, Richard, Authority and Estrangement (Princeton, NJ: Princeton University Press) at 128 Google Scholar; Railton, Peter, Facts, Values and Norms (Cambridge: Cambridge University Press, 2003) at 300–09 CrossRefGoogle Scholar; Scanlon, Thomas, What We Owe To Each Other (Cambridge, MA: Harvard University Press, 1998) at 55–64 Google Scholar.

4. Hart and Kelsen share the view that an explanation of what law is should include an explanation of the normative character of law. See Kelsen, Hans, The Pure Theory of Law (Berkeley: University of California Press, 1967) at 34–35 Google Scholar.

5. Coleman, Jules, The Practice of Principles (Oxford, Oxford University Press, 2001) at 76 Google Scholar, 83; Finnis, John, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980) at 3–22 Google Scholar; Postema, Gerald, “Jurisprudence as Practical Philosophy” (1998) 4 Legal Theory 329 Google Scholar; Joseph Raz, supra note 3; Simmonds, Nigel, “Protestant Jurisprudence and Modern Doctrinal Scholarship” (2001) 60 Cambridge L. J. 269 CrossRefGoogle Scholar are exceptions. They recognise a distinction between the participant’s and the practical viewpoints.

6. On the hermeneutical interpretation of Hart’s internal point of view see Hill, H. Hamner, “H.L.A. Hart’s Hermeneutic Positivism: On Some Methodological Difficulties in the Concept of Law” (1990) III Can. J. Law & Jur. 113.CrossRefGoogle Scholar

7. Lacey, Nicola, A Life of H.L.A. Hart: The Nightmare and the Noble Dream (Oxford: Oxford University Press, 2004) at 230.Google Scholar

8. Peter Winch, The Idea of a Social Science, supra note 2.

9. For an analysis of the influence of Wittgenstein on legal theory see Halpin, Andrew, Reasoning with Law (Oxford: Hart, 2001)Google Scholar, Hershovitz, Scott, “Wittgenstein on Rule: The Phantom Menace” (2002) 22 Oxford J. Legal Stud. 619 Google Scholar, and Patterson, Dennis, ed., Wittgenstein and Law (Aldershot: Ashgate, 2004).Google Scholar

10. For a most illuminating discussion on ‘intention’ see G.E.M., Anscombe’s classical text Intention, 2nd ed. (Cambridge, MA: Harvard University Press, 2000) original 1957.Google Scholar

11. Winch’s seminal work influenced social scientist on the limitations of empirical investigations in the social sciences for explaining concepts such as ‘authority’ or ‘obligation’. See for example, Braybrooke, David, “Authority as a Subject of Social Science and Philosophy” (1959-60) Rev. Metaphysics 469 Google Scholar at 473-74.

12. Winch, supra note 2 at xviii.

13. Ibid. at 115.

14. As Raz has argued in a critique of Hart that applies equally to Winch, this is a mistake since the application or use of reasons does not always presuppose the application or use of rules. See Joseph Raz, supra note 3 at 353-58.

15. Winch, The Idea of a Social Science, supra note 2 at 119.

16. Ibid. at xviii.

17. Emphasis added.

18. Ibid. at XI.

19. Ibid. at 47.

20. Ibid. at 48.

21. Ibid. at 50.

22. Ibid. at 52.

23. Ibid.

24. Ibid. at 53.

25. Hart, supra note 1 at 9.

26. Ibid. at 10.

27. Ibid. at 83-87.

28. Ibid. at 84.

29. Hart, supra note 1 at 32-33. See also Hart, H.L.A., “Fuller: The Morality of Law” in Essays in Jurisprudence and Philosophy of Law (Oxford: Clarendon Press, 1983) at 358.CrossRefGoogle Scholar

30. See Raz, supra note 3.

31. See Dworkin, Ronald, Law’s Empire (Cambridge, MA: Harvard University Press, 1986)Google Scholar and Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1977).

32. Winch, Peter, “Can we understand ourselves?” (1997) 20:3 Phil. Investigations 193 Google Scholar at 197.

33. Winch, The Idea of a Social Science, supra note 2 at 123.

34. Let us recall that in Hart the internal viewpoint is the existence and identification condition of the rules of recognition, but also demarcates the appropriate methodological perspective for the analysis of concepts. See Hart, supra note 1 at 96.

35. Emphasis added.

36. Emphasis added.

37. Emphasis added.

38. Hart, supra note 1 at 98-99.

39. Recent literature in moral philosophy has advanced the notion of reflective endorsement to establish the normativity of morality. Hart, however, does not have this kind of deep endorsement or acceptance in mind to establish the normativity of law. See Korsgaard, Christine M. The Sources of Normativity (Cambridge: Cambridge University Press, 1996)CrossRefGoogle Scholar, Cf. Kolodny, Nico, “Why Be Rational?” (2005) 114 Mind 509.CrossRefGoogle Scholar

40. In Essays on Bentham (Oxford: Oxford University Press, 1982) at 158-61, Hart ex Presses skepticism about cognitive or objective explanations of reasons for actions.

41. For my own attempt to solve the dilemma, see my article “Law as Shareable Reasons” (unpublished manuscript with author).

42. See Raz, supra note 3; Dworkin, Law’s Empire and Taking Rights Seriously, supra note 31; Coleman, The Practice of Principles, supra note 5; Scott Shapiro, “Law, Plans and Practical Reason” (2002) 8 Legal Theory 387.

43. Baker and Hacker, as first commentators of Hart’s The Concept of Law emphasize, citing Hart at 38, the non-reductive character of law’s normativity. See Baker, G.P., “Defeasibility and Meaning” in Hacker, P.M.S. & Raz, Joseph, eds., Law, Morality and Society. Essays in Honour of H.L.A. Hart (Oxford: Clarendon Press, 1977)Google Scholar. See also Hacker, “Hart’s Philosophy of Law”, ibid.

44. Ibid. at 9.

45. MacCormick, Neil, H.L.A. Hart (London: Edward Arnold, 1981) at 25.Google Scholar

46. Sartorius, Rolf, “Positivism and the Foundations of Legal Authority” in Gavison, Ruth, ed., Issues in Contemporary Legal Philosophy: The Influence of H.L.A. Hart (Oxford: Clarendon Press, 1987) at 47.Google Scholar

47. See Dworkin, Law’s Empire, supra note 31.

48. Perry, Stephen, “Interpretation and Methodology in Legal Theory” in Marmor, Andrei, ed., Law and Interpretation (Oxford: Clarendon Press) 97 Google Scholar at 123.

49. Ibid. at 132.

50. See Finnis, supra note 5 at ch. I on Weber’s methodology. For a criticism of this view see my article “Is Finnis Wrong? Understanding Normative Jurisprudence” [forthcoming, in Legal Theory].

51. Dworkin advocates the participant’s viewpoint in Law’s Empire, supra note 31.

52. See Postema, “Jurisprudence as Practical Philosophy”, supra note 5.

53. In some of his writings, Hart refers to the guiding role of legal rules. Hart, supra note 1 at 35.

54. Cf. Halpin, Andrew, “The Methodology of Legal Theory: 30 Years Off the Point” (2006) XIX Can. J. Law & Jur. 67 CrossRefGoogle Scholar.

55. See Perry, supra note 48.

56. See Raz, supra note 3 at 20-48, 162. See also Raz, , The Authority of Law (Oxford: Clarendon Press, 1979) at 30–33 Google Scholar, 53.

57. Here ‘detached’ is not used in the sense used by Dworkin, in “Hart’s Postscript and the Character of Political Philosophy” (2004) 24 Oxford J. Legal Stud. 1 CrossRefGoogle Scholar. Dworkin distinguishes between detached and integrated points of view when analyzing values. It is a different terminology than that used to refer to values in terms of moral realism. The former deals with the value as detached from and fixed independently of our concern to live well. I use the word ‘detached’ as it is used by Nagel, Thomas in The Possibility of Altruism (Princeton, NJ: Princeton University Press, 1970)Google Scholar, The View from Nowhere (New York, NY: Oxford University Press, 1986), and “The Objective Self” in Ginet, Carl & Shoemaker, Sidney, eds., Knowledge and Mind (Oxford: Oxford University Press, 1986).Google Scholar

58. Raz, supra note 56 at 145.

59. Perry, supra note 48 at 114.

60. Ibid. at 128.

61. See my article “A Detached Viewpoint in Legal Theory” (unpublished manuscript with author).

62. See Moran, Richard, Authority and Estrangement (Princeton, NJ: Princeton University Press, 2001)Google Scholar for a different interpretation of Wittgenstein as defending the ‘practical’ or ‘deliberative’ point of view

63. For classical formulations see Aquinas, Summa Theologicae; for more contemporary interpretations, see Finnis, Natural Law and Natural Rights, supra note 5.

64. Hart, supra note 1 at 17.

65. See Section A of this article.

66. Hart, , Essays on Jurisprudence and Philosophy of Law (Oxford: Clarendon Press, 1986) at166 Google Scholar.

67. The view that Hart was eager to show the central features of the normativity of law; i.e., the reason-giving character of law, is supported by many of his commentators such as Coleman, Shapiro and Raz. Raz, for example, asserts: “Professor Hart, while accepting the sources thesis, mounted a most formidable criticism of reductivism. He argued that legal statements are deontic or practical. They are used to demand and justify action and thus function in discourse and argument in ways which no theoretical statements could.” Raz, supra note 56 at 53.

68. Winch, supra note 2 at 59-64.