Are Fundamental Legal Reasons Internal? A Few Remarks on the Hartian Idea of the Internal Point of View
© Springer International Publishing Switzerland 2015Michał Araszkiewicz, Paweł Banaś, Tomasz Gizbert-Studnicki and Krzysztof Płeszka (eds.)Problems of Normativity, Rules and Rule-FollowingLaw and Philosophy Library11110.1007/978-3-319-09375-8_17
17. Are Fundamental Legal Reasons Internal? A Few Remarks on the Hartian Idea of the Internal Point of View
Jagiellonian University, Krakow, Poland
The fundamental reasons for officials to apply the criteria of validity available within the system’s rule of recognition, according to a basic reading of The Concept of Law, could be of various provenience (moral, conventional, traditional, other). However, to think of these criteria as genuine reasons it must be supposed that they are internal reasons that refer to agents’ motivational set. In this paper, the idea of the internal point of view is juxtaposed with the notion of “internal reason” as introduced by B. Williams. It is argued that if fundamental legal reasons are to be normative (authoritative)—at least in a conceptual sense—they must be internal reasons, which are moral in character. It is just another way to build an argument that Hart simply presented an “over-weak” theory of the internal point of view.
KeywordsInternal reasonsExternal reasonsB. WilliamsInternal point of viewH.L.A. HartLegal positivism
There is an old philosophical claim (i.a. ascribed by S. Kierkegaard to G. W. F. Hegel) according to which what is “inner” turns out to be “outer,” and vice versa (Kierkegaard 2011). This claim cannot, however, be interpreted independently of the discussion on the role of dialectics in metaphysical investigations and cannot be considered as a premise in an argument against the potential usefulness of this distinction in other fields of philosophy. It seems that the strict, analytical distinction between these two categories—the inner (the internal) and the outer (the external)—could be very useful, especially in such fields as the investigation of human motivation, knowledge, truth and practical reasoning. Actually, the field of practical, normative reasoning is the one I’d like to focus on initially. Indeed, we should first briefly consider the nature of practical, normative reasons, especially the difference between internal and external reasons, before we turn to legal theorizing.
17.2 Internal and External Reasons
The difference between internal and external reasons appears to be sound, as far as reasons of the first type are somehow connected with the agents’ motivation for taking a certain kind of action, and therefore can be equated with normative reasons (and not explanatory or theoretical ones). On the contrary, external reasons are reasons that cannot be considered to involve any interesting dependence on the facts about the subjects’ motivation (Finlay and Schroeder 2012). The most popular version of such an approach is probably Humean1 internalism: an agent has no reason to do A if she has no desire that could motivate her to do A. However, for the sake of brevity and simplicity, I introduce a broad understanding of motivation here and leave the question of whether it is fundamentally dependent on desires or some other type of inner feelings open (and even whether the famous discrimination2 of B. Pascal in this matter can be considered true). The “internal” explanation of the normativity of reasons is rejected by externalism. In fact, it is sometimes suggested that external reasons, which are not dependent upon the subject’s motivational states, are themselves normative. Such a claim is characteristic of some versions of moral absolutism, according to which some actions are morally wrong for any agent, no matter what motivations and desires the agent has (Finlay and Schroeder 2012). Externalism tries to justify the normativity of practical reasons without reference to the subjects’ motivation. It is usually construed by reference to certain presuppositions about the possibility of human moral cognition, but it is enough to say that if the external reasons are not desires, they are simply beliefs (about what ought to be done)—and mere beliefs by themselves cannot motivate someone to act. External reasons are like hypothetical imperatives that are made categorical by substantial, cognitivist moral theories. In contrast, internalism can be connected with a variety of views about the nature of morality, e.g., G. Harman’s relativism, or the error theory of J. Mackie. It can also be complementary with some versions of moral non-cognitivism. The only thing that is presupposed here is that the normativity of reasons is dependent on their relation to the agents’ actual motivations.
I take for granted the (revised) reading3 of internalism proposed by B. Williams in his famous article “Internal and External Reasons” (Williams 1981). In this paper, Williams claims that practical reasons have an “explanatory dimension,” which contributes to the “meaning of our thoughts and claims about practical reasons, where the possibility of an error and ignorance about them is simply excluded” (i.e., the agent’s actual reasons are the explanation of the agent’s behavior only if our agent is not somehow mistaken)4. In brief, the core of Williams’ argument is that practical reasons must be able to explain actions, and one cannot explain actions without reference to one’s motivations. Explanations that adduce to the set of subjects’ motivations are internal. I think this is plausible5. Moreover, I suppose that many leading legal theorists build their theory of law’s normativity by implicitly referring to basic intuition as developed by Williams in the context of the analysis of moral reasons. According to Williams there are no external reasons, but for the purpose of this paper I will interpret his statement as claiming that external reasons are just not genuine, normative reasons, and cannot play any explanatory role in explaining normativity (both in morality and law).
17.3 Law as Practical Reason
Having said this, we can move into the area of legal theory. There are theorists who claim that law is a social phenomenon that aspires to be normative in the most fundamental sense. What they have in mind is that the idea of legal obligation is strictly connected with the role legal rules are supposed to play in agents’ practical reasoning. Law purports to govern conduct as practical authority. As J. Coleman notices, “the distinctive feature of law’s governance on this view is that it purports to govern by creating reasons for action” (Coleman 2001, p. 71). J. Raz asserts that “the law claims that the existence of legal rules is a reason for conforming behavior” (Raz 1979, p. 30). The group of “legal rationalists” (philosophers who are convinced that “the law’s normativity is to be explained in terms of the law’s effect on the reasons of its subjects,” Essert 2013, p. 2) includes A. Marmor, S. Shapiro and many others. All of them are to some extent continuators (or constructive critics) of the refined version of legal positivism presented by H. L. A. Hart in The Concept of Law. We might say that their main concern is to construe a “full-fledged theory of law,” which not only gives an adequate picture of legal practice as a social fact, but also aims at convincingly explaining the very nature of the characteristic normativity of law (sc. its reason-giving character). However, it is quite controversial whether Hart’s own original theory had such character. There are some interpreters of Hart who claim that it was not Hart’s main aim to present any theory of legal obligation and, what’s more, any detailed account of law’s normative force. Rather, they say, Hart’s project was profoundly descriptivist (“descriptive sociology”)6 and any concerns about whether we should treat legal provisions as actually justified and reason-giving, binding norms, are a matter of normative, political philosophy justifying legal order, as opposed to descriptive legal theory. In this interpretation, Hart is supposed only to propose a general sketch of the relationships between the central legal concepts (obligation, sanction, legal practice, rules, etc.) as a “reflection of the composite character of a legal system” (Hart 2013, p. 117). With such an interpretation, to say that the criteria of legality are conventional, as Hart does, is simply to say that there is a widely shared agreement among officials who apply the same criteria to identifying law (i.e., the same rule of recognition)—and nothing more. Interpreted this way, Hart himself cut off political and normative deliberation in the context of law by simply evoking the concept of the internal point of view connected with the notion of “serious social pressure,” which does not need any further explanation.
I do not share this interpretation of Hart’s theory. In my opinion, if we want to perceive his theory as a full-fledged theory of law, the most important problem is to present such a general interpretation of his theory that would both save its descriptive value and present a coherent and plausible understanding of the internal point of view (on which almost the whole burden of law’s normativity rests) towards certain social rules (esp. the ultimate rule of recognition). I would like to stress that I do not make any historical claim about what Hart actually had in mind. My objective is different; namely, I would like to propose an interpretation of his theory that answers the normativity question also. Such a task would reveal some internal contradictions in Hart’s own theory, which would be the main reasons for further amendments. To clarify, my basic assumption is that post-Hartian positivism is not worth much if it does not aspire to be a “full-fledged theory of law.” Legal rationalists are trying to build such a theory by making serious amendments to Hart’s original project—by providing a better theoretical scaffolding for our understanding of the role legal reasons (norms) play in the practical deliberation of subjects and by analyzing the reasons for rule acceptance more carefully. The starting point is the assumption that the idea of the general acceptance of the foundational rule of recognition (which is a social rule that defines the ultimate criteria of legal validity) makes it a duty-imposing rule7. To allow this there must be a special sphere of the subjects’ own reasons for acceptance of the ultimate rule and, moreover, a “mechanism” constituting motivations for acceptance that should be dependable and not selective.
I think that Hart was generally inclined to be a legal rationalist, who, however, thought that one can combine both non-cognitivism in relation to moral reasons and values with the appreciation of the role of the agents’ personal motivations, which can only be used as an “explanation” for the acceptance of a rule. Simultaneously, Hart feverishly argued for the claim known as the “separability thesis” (the claim that roughly speaking, the meaning of legal “ought” need not be reduced to the meaning of moral “ought,” and vice versa. However, as I will briefly argue below, the latter claim is at odds with the former. Moreover, to think of Hart as a legal rationalist, we must interpret his work holistically, in the context of his other writings8. A basic reading of The Concept of Law can give an impression that Hart himself wasn’t a legal rationalist, and (while putting aside the problem of the plausibility and proper meaning of Hart’s critique of Austin and the realists9) may lead to the conclusion that the notion of the “general acceptance of the rule,” as strictly connected with the idea of the “internal point of view,” refers to nothing but a simple attitude of endorsement (Perry 2006). And the reasons observed within such an endorsement are at least external reasons that explain only the hypothetical, not the genuine, normativity of law. So, in this case, Hart would be viewed as not interested in providing a theory of why legal reasons are authoritative, but just in giving a description of law as an effectively endorsed social institution.