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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 he accepts or endorses a convergent pattern of behavior as a standard of conduct. Thus, the internal point of view refers to a specific kind of normative attitude held by certain insiders ...
- Scott J. Shapiro
- 2006
- Introduction
- I. Models of The Internal Point of View in Private Law
- II. Conceptions of The Internal Point of View in General Jurisprudence
- III. Private Law as A Source of Normative Guidance
- Conclusion
- Acknowledgements
For much of the last century, American private law theory has trod along a path blazed by Oliver Wendell Holmes.1 Holmes’s thought is complex, and sometimes conflicting, but two general, interrelated views have informed legal realist and law-and-economics scholarship prominent in private law theory. First is that we should understand private law do...
Embrace of “the internal point of view” is a central theme in recent private law scholarship. As Andrew Gold argues, internalist revivalists take “legal concepts and reasoning to be central to the law rather than epiphenomenal.”7Legal concepts, including primary and secondary rules arrayed across procedural, substantive, and remedial law, are thing...
The writings of Weinrib and of Goldberg and Zipursky, respectively, best exemplify the turn toward the internal point of view in private law theory. They present the most influential accounts of what it might mean to understand private law from within and have contributed importantly to criticism of external perspectives that ignore or occlude the ...
Part I argued that current conceptions of the internal point of view in private law, while admirable advances on Holmesian reductivism, fail to explain how private law gives practically reasonable people decisive reasons for compliance with its norms, or for use of its enabling doctrines. Given this ellipsis, it is ironic but unsurprising that lead...
Contemporary private law theory valorizes the internal point of view and, on the whole, this has been much to the good. But the internal point of view is incompletely—or unsatisfactorily—theorized in private law theory, with the result that its implications for our understanding of private law doctrine and institutions have yet to be fully realized...
We are grateful for comments and criticism from Eric Claeys, Sharon Dolovich, Blake Emerson, John Goldberg, Jim Gordley, Adam MacLeod, Henry Smith, Jim Stoner, Andrew Verstein, Ben Zipursky, and audience members at a Faculty Workshop at the UCLA School of Law and a Distinguished Global Faculty Lecture at the Peking University School of Law.
The most discussed theory of law of the twentieth century – HLA Hart’s theory from The Concept of Law – is fundamentally psychological. It explains the existence of legal systems in terms of an attitude taken by legal officials: the internal point of view. Though much has been said about this attitude (what statements express it, what it is not, how Hart ought to have conceived of it ...
Nov 29, 2021 · In this article, we canvas leading accounts of the internal point of view in private law (provided by corrective justice and civil recourse theorists, respectively) and identify their shortcomings: notably, their inability to ground assertions about the normative and explanatory priority of the internal point of view, and about its relationship (whether of exclusivity or complementarity) to ...
- Jeffrey A. Pojanowski, Paul B. Miller
- 2021
By. 4. H.L.A. HART, THE CONCEPT OF LAw 124-54 (3d ed. 2012). rejecting the internal point of view, his theory of law, like the realists', presents an important challenge to traditional positivism. I. DISTINGUISHING CLAUS'S PREDICTION THEORY OF LAW FROM HIS PREDICTION THEORY OF LAWMAKING.
- Michael Steven Green
- 2014
Jan 21, 2021 · Rodriguez-Blanco clarifies John Finnis’s objection to legal positivism in the shape of Hart’s theory, namely, that it is unstable because it uses the notion of an internal point of view, which does not have sufficient discriminatory power to distinguish between good and less good legal norms, between rational and non-rational court decisions, etc. Finnis’s view is that understanding a ...
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Usually, people who adopt an internal point of view use a specific normative vocabulary, which in the case of the primary rules of obligation involves expres-sions like “You ought,” “You must,” “That is right,” and “That is wrong” (see Hart 1994, 55ff.). Now, in Hart’s view, the existence of a legal system requires an internal ...
