Some Internal Points of View and the Study of Law
Webber, Gregoire C. N., Constitutional Commentary
THE VANTAGE OF LAW: ITS ROLE IN THINKING ABOUT LAW, JUDGING AND BILLS OF RIGHTS. By James Allan. (1) Farnham (Surrey), Ashgate. 2011. Pp. vii + 202. $124.95.
Law establishes reasons for action. Even when the lawmaker does not reproduce moral rules in legal form but instead creates new, truly positive laws, legal rules establish reasons for action, reasons which ground duties to legislate responsibly and to acknowledge and maintain, comply with, and apply positive law. These questions and their investigation have long been examined by classical natural law theorists, but it is to H.L.A. Hart that is owed the reception of law's relationship to reasons into contemporary jurisprudence. Situating reasons for action at the heart of jurisprudential inquiry is one of the many permanent acquisitions of legal philosophy articulated in The Concept of Law. (3)
True to his insistence on a non-evaluative methodology for the study of law, Hart's exploration of the relationship of law to reasons for action stands at some distance to those reasons. For the most part, The Concept of Law reports how persons and officials act if they take law as establishing reasons for action, but does not press why persons would do so or what those reasons are. We are told that to understand the role and place of legal rules, we must attend to the "internal aspect" of rules, understood from the "internal point of view" of participants within the community of persons whose rules they are. From that viewpoint, a rule serves as a "guide" and as a "reason and justification" for acting in accordance with it (and for frustrating those who do not). (4) Hart says little about those reasons and his sometime insistence that "acceptance" is what arbitrates between the internal and non-internal (external) points of view seems too weak to communicate the reason-giving quality of law. Notwithstanding this, Hart's focus on the relationship between the internal point of view and law's reasons for action charts a path to one's obligation to follow law and to how obligation relates--through reasons for action--to the authority of law. In other words, the reason-giving aspect of law sets jurisprudential investigation on a course from law-makers (who evaluate and act on reasons to create this new law) to law-appliers and law-enforcers (who maintain the law by understanding and acting in accordance with it and the reasons established by it).
Since the publication of The Concept of Law, studies in the philosophy of law have sought better to understand the internal point of view and its significance for our legal understanding. Many questions surfaced following Hart's important account, questions that continue to animate jurisprudential inquiry, including: Does law provide the same reasons for action to officials and subjects? Within the class of officials, do legislator, judge, and police officer all share the same internal point of view? Does a legal rule only provide a reason for action to the subject who agrees with its merits? If there are different internal points of view, is there reason to attend more to one than to another for our understanding of law? (5)
For these reasons and others, James Allah's The Vantage of Law: Its Role in Thinking about Law, Judging and Bills of Rights is an invitation to situate questions about vantage (synonymously: point of law, viewpoint) explicitly at the forefront of debates animating the philosophy of law. Allan examines how, by attending to different points of views we might better understand certain questions respecting the relationship of morality to law, adjudication, and the role and place of bills of rights, suggesting that these debates have a different significance and salience depending on one's vantage point. The book begins with a disclaimer that the author's aim is not "to construct an all-elucidating, philosophically sophisticated theory of law" (p. 1). That is true and, perhaps as a result, the invitation of the book to attend to different viewpoints is underexplored. …