Tracing Finnis’s Criticism of Hart’s Internal Point of View: Instability and the ‘Point’ of Human Action in Law

Abstract

Finnis, tells us, that the participant of the legal practice, e.g. the citizen, the judge, the lawyer, are engaged with the law and are interested in distinguishing between a good and a not so good norm, between a just directive and unjust directive, between a rational court-decision and a non-rational court decision. Hart’s internal point of view refuses to make further distinctions between the peripheral and central cases of law and this brings instability to the concept. Hart’s internal point of view as unstable can be traced to a more fundamental criticism, i.e. Hart’s internal point of view cannot be used to understand the point of human actions and therefore we cannot rely on Hart’s internal point of view to identify significance differences that any actor in the field can make. In the ‘methodology’ literature, this argument on instability is overlooked and its premises has not been carefully examined. In this chapter, I will try to show that the idea that the internal point of view is unstable is both key to understand the limits of Hart’s legal theory and shed further light on the view that law should be conceived in terms of a central or focal case.