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November 25, 2007
MacCormick on Hart
An excerpt from the interview with Sir Neil MacCormick, the Regius Professor at the University of Edinburgh (who was, for a time, my part-time colleague at Texas in the 1990s, much to our good fortune), from Legal Philosophy: 5 Questions:
Hart's greatest and most enduring insight concerns the need to understand rule-governed conduct from the "internal point of view". This is essential to developing a clear and convincing theory of norms--but rules are only one kind of norm. The analysis of law as a union of primary and secondary rules, though full of valuable insight, is in the end incomplete and unsatisfactory. A fresh start is needed. A version of a "basic norm theory" is more satisfactory than a "rule of recognition" theory in explaining how a legal system comes together in the framework of a constitutionalist state. Legal institutions interface with politics and economics and are foundational for the state and also for civil society. Criminal iaw is one essential part of the foundations of social peace and thus of civil society. All this takes one quite far from the Hartian conception of law, though the development out of a Hartian position is easily traced. Law and morality are indeed conceptually distinct, but it remains also true that minimal elements of respect for justice are essential to the recognition of a normative order as "legal" in character.
I'd be curious to hear what readers make of this, especially those who have followed MacCormick's recent work more carefully than I have.
Posted by Brian Leiter on November 25, 2007 in General Jurisprudence | Permalink
Comments
I would like to hear MacCormick say more about both (a) what Hart really meant by the internal point of view, and (b) what role should be ascribed to the idea of an internal point of view in Hart’s clarification of the concept of ‘rule’. I agree that Hart’s contribution to the understanding of rules and rule-governed behavior was immense, but there are still some really fundamental puzzles left unanswered by his rather unclear remarks on the issue.
One thing that keeps puzzling me, a confessed outsider to the professional academic debate, is that many people seem to confuse the idea that the concept of a rule requires the internal point of view with the notion that the internal point of view explains why people follow rules, particularly non-moral rules.
It seems to me, for instance, that there is no argument in Hart against the idea that legal officials are in general motivated to follow legal rules because they fear the threat of sanctions. No argument that legal officials have to accept that the law is either legitimate or morally acceptable or something of the sort. Hart was concerned neither with “motivations” nor with “beliefs”. His point was rather conceptual. He believed that the notion of someone being “governed” by rules requires not only knowledge of the behavior described by the rule (the external point of view) but also of the directive embodied in the rule.
Posted by: Goncalo Ribeiro | Dec 2, 2007 11:04:44 PM
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