The importance of point of view for jurisprudence

Before examining the arguments that may be offered on behalf of viewing law from the lawyer’s or judge’s point of view, we must address a more fundamental question: Why does point of view matter at all?

Hart first brought this question to the surface by drawing the distinction between the internal and external points of view on systems of rules.

Of course, like the insider, the outsider may at times use the rules as guides to conduct; when in Rome, it is both expedient and courteous to do as the Romans do. But the participant-observer does not obey the rules because she accepts the rules. They have no normative grip on her. The insider’s practical reasoning is simple and straightforward: “I do it because the rule prescribes it.” The participant-observer reasons more indirectly: “I do it because my hosts respect the rule, and I prefer not to offend my hosts.” If the hosts don’t care, the guest need not care either. In when-in-Rome cases, there may be no behavioral difference between those who take the internal point of view toward rules and those whose point of view is external. But the rela­tionship between the agent and the system of rules differs dramatically. From the internal point of view, these are my rules; from the external point of view, these are theirs (not mine).

Hart observes that an even more austere external point of view is avail­able, namely that of the mere observer of behavioral correlations, who may not recognize them as instances of rule-governed conduct at all. A Martian visitor to Earth might notice a strong correlation between green stop lights and onrushing traffic, and guide her own patterns of walking accordingly, even before she realizes that human beings are intelligent enough to engage in rule-governed practices.¹² So there are at least two distinct external points of view: the austere external point of view fastens on observable regularities, without necessarily concluding that they represent rules; and the less austere external point of view regards them as rules, but someone else’s rules, not one’s own. By contrast with both of these, the internal point of view is that of someone who regards the rule-system as her own - as a system regulating a practice in which she is a participant.

Notice that in reality we are liable to shift rapidly back and forth between the internal point of view and the (less austere) external point of view. Some rules we obey out of commitment and obligation; some only out of fear of sanctions; some from unreflective habit; and some from a when-in-Rome sense of courtesy or propriety. Hart points out that in the developed legal systems of complex societies it would be unrealistic to suppose that all compliance results from a sense of obligation.^[238] But it is crucial to Hart’s account that those responsible for the functioning of the legal system adopt the internal point of view toward the rules governing their own practice; and any account that neglects the internal point of view will simply be unable to account for legal systems as we know them.

Hart therefore offers “two minimum conditions necessary and sufficient for the existence of a legal system”:^[239] first, private citizens must by and large obey the rules “from any motive whatever” - a sense of moral obligation, fear of sanctions, or sheer inertia - and second, the officials of the system must adopt the internal point of view toward at least the rules that apply to officials (what Hart calls “secondary” rules).^[240] In other words, the internal point of view can be unevenly dispersed through the society, heavily concentrated among legal officials but rarefied or even non-existent among the general population.

Unfortunately, this conclusion lies in some tension with Hart’s overall line of argument. One of his principal targets is the Austinian view of laws as “commands backed by threats,” modeling the legal system on the armed robber demanding our money. A fatal problem with the “gunman writ large” model of law, Hart argues, is that the gunman can oblige us to hand over our money, but he cannot obligate us to do so, and as a result Austin’s theory leaves us without a satisfactory account of legal obligation.^[241] As Hart elab­orates the notion of legal obligation, the main feature Austin omits consists of the internal aspect of rules, the fact that the rules are adopted as standards for judging behavior.^[242] Legal obligation can be recognized only by those who take the rules as standards of evaluation and criticism of their own conduct and the conduct of others. To regard rules as obligatory comes from adopting the internal point of view toward them.

If so, however, a legal system in which only officials adopt the internal point of view (and only toward the behavior of other officials) while ordinary citizens obey for any reason, including coercion, simply reproduces the gunman writ large. The only difference lies in the fact that now we confront a many-headed, many-handed gunman - a mafia, perhaps, or a warlord and his minions - rather than a single armed robber. The only thing that converts the mafia into a legal system, on Hart’s account, is the fact that the mafiosi take the internal point of view toward the rules they enforce. They regard the rules as obligatory, but, in Hart’s terminology, they cannot obligate private citizens to obey, only oblige them to do so. Yet Hart emphatically insists that this, too, is a legal system: “In an extreme case the internal point of view... might be confined to the official world... The society in which this was so might be deplorably sheeplike; the sheep might end in the slaughterhouse. But there is little reason for thinking that it could not exist or for denying it the title of a legal system.”^[243]

Little reason except that it returns us to the very model Hart rejects.

Admittedly, Hart’s hypothetical society in which the internal point of view is confined to officials does not have to be a mafia society. It might be one in which the official class, far from being mafiosi, are actually conscientious public servants whose laws are wonderful, and where the citizens fail to share the internal point of view only because of their own wickedness. This, per­haps, is always the fantasy of colonialists, imperialists, and missionaries. But the problem with Hart’s argument is not that the society in which only officials take the internal point of view toward law must always be a mafia­like system. The problem is that Hart’s conditions do not rule out the mafia system. (In any event, the system with good officials enforcing excellent laws on bad men and women will, in real life, almost certainly need to be maintained through force and oppression, so that in the end it will probably differ only slightly from the mafia system.)

It isn’t hard to see what has gone wrong here. The mafiosi lack the legitimacy of real legal officials, which is another way of saying that, pace Hart, in a genuine legal system it isn’t enough for the internal point of view to be confined to the official world.

The difference between the mafia “legal” system and a legitimate legal system lies in the fact that, in the former, ordinary citizens regard the law as nothing more than a coercive structure imposed on them by officials. Lon Fuller refers to such structures as “one-way projection[s] of authority,” and his fundamental objection to Hart concerns Hart’s willingness to accept them as legal systems.^[246] Perhaps, however, the distance between Hart and Fuller is not as great as either of them supposes. For, if I am right, Hart’s inclusion of one-way projections of authority among legal systems undercuts his own insight about the centrality of the internal point of view in the concept of legal obligation. Acknowledging that ordinary citizens, not officials alone, must for the most part share the internal point of view toward legal rules would push Hart in the direction of three of Fuller’s leading ideas: that relations between lawgivers and citizens must be at least minimally reci­procal (or, as Fuller says, “interactional”^[247]); that governing through rules rather than commands or directives requires lawgivers and citizens to share “notions of the limits of legal decency and sanity”; and thus that reciprocity requires legal rules to be communicated intelligibly to citizens and to impose reasonable expectations on them.^[248] Hart himself explains why: laws, as opposed to “individuated face-to-face orders,” require “that the members of society are left to discover the rules and conform their behaviour to them”^[249] - the very argument Fuller offers for why officials and citizens must share notions of legal decency and sanity.

Of course, shared notions of the limits of legal decency and sanity by no means imply shared detailed understandings of the law and legal reasoning. As Hart notes, “ordinary citizens - perhaps a majority - have no general conception of the legal structure or of its criteria of validity. The law which he obeys is something which he knows of only as ‘the law’.”^[250] The ordinary citizen may take an internal point of view toward rules without knowing exactly what those rules prescribe, or even how to find out on his own. That, indeed, is Hart’s reason for focusing on officials and insisting that they share “critical common standards” for determining what is and what is not law.^[251] It is too much to expect that non-officials share those standards - what Hart calls the rule of recognition - which are technical and recondite.

But what Hart says of ordinary citizens holds for most officials as well. Why should we suppose that pest-control officers, driving examiners, building inspectors, police detectives, and state pension administrators grasp the rule of recognition? Why suppose that the President of the United States grasps it? It seems most likely, in fact, that they have no better knowledge of the structure of precedent or the canons of statutory interpretation than do other, ordinary citizens. The vast majority of officials have little or no legal training.^[252]

These observations bring to the surface an assumption so natural it might pass us by: the people in government whom we expect to master the rule of recognition in the legal system are not “officials” in general, but lawyers in particular. If other officials know the laws and regulations most pertinent to their jobs, it is because lawyers write the protocols and training manuals that the building inspectors and pest-control authorities follow. Now it may be that these officials, simply by virtue of their job descriptions, adopt an internal attitude toward the protocols they follow. But that is not essential. They may follow the protocols because they have to, or merely by rote. In this respect, most officials differ not at all from ordinary citizens as Hart describes them. The officials who can utilize “critical common standards” for identifying the law will be those with legal training, not the large majority without it.

But of course the 100,000 or so government lawyers in the United States share that training with the more than 600,000 nongovernment lawyers. It seems, then, that what matters is not that these are government lawyers, but that they are government lawyers. The relevant fact is that they are trained in law - and, equally importantly, the fact that lawyers throughout the nation receive uniform training in the core legal doctrines. Arguably, a necessary precondition for a rule-of-law regime is the existence of a uniformly trained, politically independent, and suitably large and vigorous legal profession.^[253] Lawyers are, after all, the primary point of contact between private indivi­duals and institutions and the law.^[254]

Must lawyers take the internal point of view on the law? Why can't lawyers hate the legal system, or hate the state? The answer, of course, is that they can. There is nothing self-contradictory in the concept of a radical or oppositional lawyer. It would be a mistake to identify the internal point of view of rules with either psychological or political support for them. Admittedly, Hart's terminology of “accepting rules” and “adopting the internal point of view” sounds like he is talking about psychological states. For Hart, however, adopting the internal point of view toward rules means participating in an interpersonal linguistic practice - a language game - not holding a pro-attitude toward the rules. One takes the internal point of view by engaging in normative practices of evaluation, criticism, and practical argument using the rules.^[255]

Plainly, this is what lawyers do in the practice of law, even when they hate the rules. A personal recollection: about thirty years ago, I gave William Kunstler a ride to the airport after he had lost a political case before a federal judge in Cleveland. Kunstler slumped down in the passenger’s seat of my Plymouth and muttered, “Nothing’s going to change this country except armed struggle.” Two hours earlier, Kunstler and the judge had been debating fine points about the First Amendment and the values that the framers had attached to it. You might call this hypocrisy on Kunstler’s part, but Hart’s key insight about the separation of law and morals is precisely that engaging in practices of legal argument implies nothing about whether you love the law or hate it. Adopting the internal point of view toward rules requires only a reflective critical practice of evaluating the conduct of others by the standards the rules establish - another way of saying “legal argument.”³¹

Earlier, we saw that several different external points of view exist: the austerely behaviorist point of view that sees only stimulus-response corre­lations, not rule-following; the less austere point of view that observes or studies other people’s rules; and the point of view of the participant-observer who obeys rules only out of a when-in-Rome sense of propriety, without adopting them as her own rules. We now see that there can be more than one internal point of view as well, ranging between that of ordinary citizens or officials who adopt the law as their own, but know it only as “the law” without having any clear idea how to identify it or argue within its distinctive vocabulary and mode of reasoning, and that of the trained lawyer who maneuvers comfortably within it. The two lie on the ends of a continuum, with no sharp break. Legal reasoning is not rocket science, nor is it an arcane glass bead game played among adepts. Its distinctive methods are continuous with other forms of reasoning; but they are specialized enough, and require enough background knowledge, that lawyers’ arguments rather than lay arguments form the central case of the internal point of view.³²

Locating the internal point of view in the legal profession rather than in the judiciary or in some unspecified category of “officials” goes a long way

a psychological pro-attitude toward rules. Again, Hart writes: “If... the courts and officials of the system actually identify the law in accordance with the criteria it [i.e., the constitution] provides, then the constitution is accepted.” Ibid. at 293. Here, too, he identifies “acceptance” with participation in an official practice, not with a psychological attitude.

³¹ Hart, CL, supra note 10, at 57. Hart’s actual phrase is “reflective critical attitude,” which is ambiguous between a psychological state and a linguistic practice. But, as I have indicated, I believe that the linguistic practice reading better comports with the rest of Hart’s theory.

³² It is Finnis who notes that even the internal point of view must be internally differentiated, and that some cases of it are more central than others. Finnis, supra note 19, at 13. I argue against the theory that legal reasoning is a self-contained language-game sharply disconnected from everyday discourse in Luban, Lawyers Rule: A Comment on Patterson’s Theories of Truth, 50 SMU L. Rev. 1613 (1997).

toward solving the previously noted problem with Hart’s position, namely that it neglects the interactional, legitimacy-creating character of genuine legal systems (as opposed to ersatz legal systems like mafia rule). Lawyers, representing private clients before the law and advising clients about what the law means, serve a mediating and translating function between public and private interests (a point made long ago by Talcott Parsons).^[256] They make the interaction between state and citizen possible. The importance of the lawyer’s role, I might add, makes the problem of unequal and inadequate access to legal services a central challenge to the legitimacy of law. But that is another story for another day.^[257]