A distinction commonly drawn in legal scholarship deserves scrutiny. To begin to see why, consider this question: What do the following claims by legal scholars have in common?
(1) That economic explanations of tort law which interpret it as an instrument for achieving social goals, such as compensating victims or deterring unreasonably risky conduct (or both), are defective in part because such explanations do not “work through” the concepts that judges invoke in their opinions when deciding cases.
(2) That historical accounts of judicial decisionmaking that explain case outcomes by reference to judges’ ideologies or economic self-interest do not threaten normative interpretations of legal practice because such explanations do not offer courts any concrete guidance as to how to decide future cases.
(3) That political scientists’ criticisms to the effect that legal scholars commonly make fallacious inferences miss their mark because they fail to understand that legal scholars have rhetorical goals not shared by political scientists.
(4) That the arguments of philosophers and neuroscientists about the existence or nonexistence of free will are irrelevant to “all the participants in the legal system” because the criminal law assumes that people are morally responsible for their actions irrespective of whether those actions were causally determined.
(5) That when lawyers write history they ignore evidence and distort the facts in order to rationalize and legitimize legal practice.
There are really two answers to this question. The first is that legal scholars have framed all of these claims around a distinction between “internal” and “external” forms of explanation, criticism, or argument. In each case, the suggestion made is that a particular kind of analysis is flawed or misguided because it is not of the right sort. It is “external” when what is required is an “internal” analysis, or vice versa. That all of the above claims have been conceptualized in this way may at first seem odd since they otherwise seem to be about quite unrelated issues.
From a broader perspective, however, each of these arguments can be seen as making judgments about what counts as a “legal” argument or critique and what does not. That is the second thing these claims have in common. They are all efforts to draw the boundaries of law. Each seeks to distinguish, for one reason or another, the aims and methods of law from those of other academic disciplines. In particular, they seek to distinguish law from those disciplines whose methods are aimed at better understanding the natural or social world, whether in the humanities, sciences, or social sciences. Here I do not mean “law” in the sense of those rules or principles that are (or properly ought to be) enforced by the state, but rather “law” in the sense of those materials, methods, and values that influence the form and content of those rules and principles. In other words, each makes a claim about the nature and boundaries of what John Chipman Gray called the “sources” of law.
Such an effort does not alone warrant criticism. To the contrary, questions about which materials and values judges and other legal decision makers ought to rely on are foundational ones. So, too, are questions about which materials, methods, and values they actually do rely on, whether they should do so or not. Moreover, the internal/external distinction captures well a powerful intuition. Some forms of scholarship—say, traditional doctrinal analyses—do seem to be in some sense launched from within the legal enterprise, whereas others—such as empirical studies of judicial behavior—appear to offer descriptions or critiques from outside it.
In part for these reasons, the internal/external distinction has now become so entrenched in the consciousness of legal scholars that recently a pair of prominent scholars has felt compelled to call out various judges and legal theorists for having committed what they call the “inside/outside fallacy.” According to Professors Eric Posner and Adrian Vermeule, these theorists suffer from “methodological schizophrenia” because they adopt “internal” and “external” perspectives simultaneously. The point of their article, they explain, is not that one type of scholarship is better than the other, but rather simply that the two perspectives are fundamentally incompatible and so must be kept separate. Although they recognize that the inconsistency they identify could be framed in other terms, they dub it the “inside/outside fallacy” on the ground that the internal/external distinction has been “traditionally a central issue for legal theory.”
And that is true. Or at least it is true if by “traditionally” one means “for the past few decades.” For most of the twentieth century, legal theorists did not conceptualize philosophical, historical, or sociological investigations as “outside” of, or “external” to, law. Although a version of the distinction has a long history in the philosophy of the human sciences (or what are today called the “social sciences”), its introduction into legal theory is relatively recent. H.L.A. Hart famously invoked the distinction between two “points of view”—one “internal,” the other “external”—in his 1961 jurisprudential classic, The Concept of Law. But the distinction did not really take hold as a way of interpreting theoretical claims about law until after Ronald Dworkin made use of a similar distinction in his 1986 opus, Law’s Empire.
The distinction’s recent popularity thus invites at least three sorts of questions. The first is historical or explanatory: Why has the distinction come to play such a leading role in legal theory? Why does it today seem so natural? The second is conceptual or analytic: Is there really just one internal/external distinction or are there several going under the same name? And if there are multiple distinctions, what are they and how do they relate to each other? The third set of questions is evaluative or normative: What functions does the distinction serve? And are those functions useful ones for legal theory, practice, or education?
The aim of this Article is to offer some answers to these questions. It argues, in brief, that the distinction has taken hold as a result of both intellectual and institutional changes in the legal academy in the last few decades of the twentieth century. These changes created a need for, and a method of, reconciling increasingly popular forms of interdisciplinary scholarship with more traditional legal scholarship. The internal/external distinction has largely met that need, which contributes to its popularity. But it has done so in part by trading on a crucial ambiguity—between a substantive distinction, on the one hand, and various methodological distinctions, on the other. That ambiguity first appeared in Hart’s work and has clung to the distinction ever since. Thus, distinguishing among, and clarifying the meaning of, the different versions of the distinction is a worthwhile endeavor in itself.
Moreover, even when its meaning is clear, today the various methodological versions of the distinction do more harm than good. When used as a methodological criterion, the distinction rarely serves as a useful conceptual tool to clarify issues or open up avenues of inquiry. Instead, it operates mainly as a rhetorical weapon whose function is to insulate particular substantive views from arguments deemed to be threatening to it. Its tendency has thus been to cabin scholarly debate about the nature and purposes of law, rather than to widen it, and to dampen original thinking about such questions, rather than to stimulate or provoke it.
The burden of this Article is to support these broad claims. It will do so in four Parts. Part I will seek to identify and distinguish among the three main versions of the distinction as they first appeared in the jurisprudential writings of H.L.A. Hart and Ronald Dworkin. It will also describe the historical context in which Hart and Dworkin wrote in an effort to explain why the distinction may have appeared when it did. The primary aim of Part I, however, is to show the role that the “internal point of view” played in each theorist’s philosophy of law and, more specifically, to show how the methodological versions of it enabled both thinkers to obscure or evade difficult questions. In other words, the point is to show that the trouble with the internal/external distinction began at its inception.
Parts II through V will then analyze and evaluate each of these three versions of the distinction in more detail. In each case, the particular version of the distinction that Hart and Dworkin drew has been applied in other contexts by scholars who have then modified it in subtle ways. For this reason, it is possible to see Hart’s and Dworkin’s particular distinctions as instances of more general dichotomies. I will give each of these more general versions a new name in order to distinguish them more clearly from each other. Part II will take up the Genuine versus Instrumental Rule Follower distinction, which is a substantive one about how legal actors use (or fail to use) rules in guiding their conduct. This is the least objectionable use of the distinction, though even here I will suggest that framing the distinction as one of “point of view” or “perspective” is misleading and results in confusion. Part III will then consider the first methodological version of the distinction. I call this the Participant Perspective versus Non-Participant Perspectives distinction, which distinguishes between a variety of different ways of understanding or explaining social (and hence legal) phenomena. I will argue that only a commitment to very controversial epistemological or metaphysical views could justify adopting either the Participant Perspective or any of the Non-Participant Perspectives to the exclusion of other methods and that, instead, the defense of any method of social inquiry should lie in the adequacy of the explanations it offers.