Q.

3 - What did hart mean by the difference between the “internal” and “external” points
of view? How important do you think such a distinction is in the explanation of legal
systems?

The internal/external dichotomy espoused by Hart first emerged in response to Austin’s

command theory. It’s in this context both it’s meaning and pertinence can be best
extrapolated. While the internal/external distinction undoubtedly advanced the positivist
approach to the study of legal systems, it’s application is still far from being universally
accepted.

Without floundering too greatly within the sea of Austinian examples it is adequate to
summarise his command theory as a series of orders, backed by the threat of sanctions,
made by a supreme sovereign. This assessment of law is instantly unappealing and
draconian in it’s outlook. It’s this evaluation that Hart challenges in three salient ways.

The first one proposed is that Austin ignores that laws can work together. He accordingly
highlights the need for both primary – duty-imposing – and secondary – power-
conferring – rules in order to prevent a society devoid of progress and characterised by
inefficiency. Another doubt is voiced via an allusion to the common law, highlighting
that not all laws are passed by a sovereign. Yet even more fundamental and compounding
to his rejection of Austin is the importance he gives to internal and external perspectives.
This final distinction will remain the focus of this essay.

In using the eye of a minimalist, it’s possible to adduce that the worth Austin attaches to
the Predictive Theory is irrevocably linked to most of his theory of law. He recognises
that an obligation may exist regardless of whether it is agreed with or not and thus omits
any personal attitudes from his argument. He fittingly purports to identify all obligations
as being simply based on the legal actor’s chances of incurring punishment. However, his
endorsement of this approach leads him to overlook an important facet of obligations and
rules.
Austin’s analysis of legal systems is far too linear and holds little sway. Hart
convincingly argues that in using only a predictive analysis, a central aspect of the law is
missed completely. Austin’s view is exclusively external. By observing a legal system
from the outside, akin to an anthropologist, one can merely provide a descriptive account
of the law, noting regularities in behaviour without comprehensively understanding the
legal system. Predictions can be made, often accurately, from the external point of view
but laws can never be truly understood. The internal perspective comes to prominence in
elucidating this problem. This perspective encapsulates not only the function of a legal
norm but also the attitude of those affected by it, adding a vital dimension in clarificatory
jurisprudence. It shows as Hart says, “the way in which rules function as rules”,
something that the external commentator cannot reproduce. An example of typical
conduct when driving offers an helpful précis: A commentator operating from a purely
external point of view will note that a car is likely to stop at a red light. For an actor
internally involved in this legal system, the red light will be the reason why he brings his
vehicle to a halt.
The emergence of the internal perspective has lead to polarised critical opinion. To
properly assess it’s importance, it will be examined against the backdrop of Austin’s legal
theory, Hart’s own legal theory as a whole and the resonance it holds within
jurisprudence today. While there are irrefutable merits of this distinction, it’s scope under
Hart has been categorically chartered, leaving it far less appealing than it’s potential
allows.

The impact of the internal point of view on Austin’s legal theory is profound. In proving
a dimension to legal theory has been neglected, it shows that Austin had been parochial
and panoramic in his assessment. He had provided a description of the law too focussed
on prediction. This crucially misses the critical distinction between mere habits and rule-
following. Without the internal point of view and the understanding it subsequently
endows one with, such an assessment can only be one about habits. A theory on legal
systems which is not calibrated with actual legal norms is naturally insufficient.
Austin’s theory had aligned itself with Bentham’s. The historical importance of
Hart’s internal point of view must not be undervalued. In adding this, he emended the
positivist approach at a time w

Goodness compounded by historical importance.

Miss the distinctions between rule-following and habit – vital in analytical jurisprudence.
After trashing Austin, he ends up close to Austin thus his own theory is shit. The most
common premise of the positivist legal theories of Bentham, Austin, Kelsen and Hart is
that the majority of legal subjects obey the law to avoid sanctions. Hart retains too much
of the sanction theory of obligations. I argue that most if not all legal subjects must have
at least a minimal sense of the internal aspect of legal rules.
Hart largely attacks his own theory in saying that in modern society “the bulk of society”
is not generally aware of the existence of secondary rules or even adopt the internal point
of view when they follow even primary rules. “the reality of the situation is that a great
proportion of the ordinary citizens – perhaps a majority – have no general conception of
the legal structure or of its criteria of validity”.
State the importance of the rule of recognition – the basis of legal validity, source of rights.
Exclusion from this amounts to a large. Alludes to a controlling elite. Maybe when written more true than
now. It alludes to a controlling elite which in the 60’s was topical, with blacks and women disenfranchised.
Internal rules – we can talk of rules as having an internal aspect to them when we take a particular attitude
towards them. The central feature of the internal attitude is that it is critical and engages the agent in
thought process and gives them a reason for acting in such a way. Contrast the external point of view –
behavioural patterns of a group, statements about likelihood which spawned the unappealing and
rudimentary predictive theory. It is characterised by prediction and language of regularities. Scientific
approach is used. Concede that there is an undeniable (synonym) link between the internal &external and
that they made able to accurately predict behaviour but as hart says cannot be reproduced. They
correspond to linguistic expressions. His fatal flaw, Hamartia, is exposed – the distinction between
int.&ext. is so vital yet he mitigates it by saying it plays such a limited role in the criterion he provides for a
legal system. He should have spread it out to cover all of society. So it doesn’t have any essential
implications for our understanding of law and detracts from own position. So he convergences with
Austin’s habitual obedience malarkey.
Fitting
Seminal
Symptomatic
Hamartia (fatal flaw) in virtue
Milieu
- Historical importance – it advanced shit Bentham and copycat Austin. It is ultimately flawed – by
bounds of law.. legal officials recognise as law is law so as
- Margaret Davies says, its application is limited and ultimately an air of futility. 1. Working at a
theoretical level, different on a practical when only benefits a minority of white middle-class
judges. Defeats himself by saying the bulk of the populace don’t understand the internal
distinction. 2.shoots himself in foot.