The Force of Norms? The Internal Point of View in Light of Experimental Economics

• Author: Leonard Hoeft
• Date: 01 September 2019
• Published date: 01 September 2019
• DOI: http://doi.org/10.1111/raju.12250

© 2019 The Author. Ratio Juris © 2019 John Wi ley & Sons Ltd.

Ratio Juris. Vol. 32 No. 3 September 2019 (339–362)

The Force of Norms?

The Internal Point of View

in Light of Experimental Economics

LEONARD HOEF T*

Abstract. Setti ng aside its conceptual issues, it remai ns an open question whether t he internal

point of view is a good desc riptive tool for the behaviour of ordinar y citizens or if a sanct ion-

based explanation of lega l compliance is sufficient. Thi s paper will discuss strai ns of experi-

mental literature cor roborating Hart ’s criticism of sanction-bas ed accounts and suggest ing

that compliance with nor ms is indeed a shar ed practice sensitive to soc ial influenc e. Legal

institution s can interact with t his shared pract ice in a way that cannot be re duced to pure

incentives. Sanct ion-based theorie s cannot account for norm compli ance: They face a chal-

lenge in explain ing the complex behavioural patterns ob served in the minim alistic setting of

laboratories.

1. The Internal Point of View

Legal scholars have debated the nature of legal r ules and compliance for centuries,

oscillating be tween views focusing on a h ierarchical and sa nction-based under-

standing and others st ressing the normative and moral foundat ions of legal rules.

While the latter se em ill-suited to explain c learly immoral rules, the former st rug-

gle with accounting for the normat ive side of law, its capacity to give reasons for

action. Hart stresse d this inadequacy by h ighlighting thei r explanatory shortcom-

ings with regard to normative lang uage as well as deliberate, socially embedded

compliance. Instead, he proposed an inter mediate account: Laws are social norms,

best understood if at least its officia ls take an intern al point of view with respect

to certain rule s, which presupposes a more complex and interdependent set of be-

haviours than tr ying to obey a sovereign in a hierarchical r elationship. Social norms

constitute a shared standa rd. Failure to meet these shared standards enge nders crit-

icism, and criticism base d on the shared standard w ill be accepted as legiti mate

(Hart 2012). This internal point of view is the substa ntial distinction Har t introduces

to contrast the attitude of the “bad man” (Holmes 2009).

This is an ope n access articl e under the terms of t he Creative Commons At tribution-NonCom mercial-NoDerivs Li cense,

which permit s use and distr ibution in any medium, provided the origi nal work is properly cited, t he use is non-

commercial a nd no modification s or adaptations are m ade.

* I would like to than k Richard Holton for his cont inued support in concept ualizin g and

improving thi s paper.

Leonard Hoeft340

Ratio Juris, Vol. 32, No. 3© 2019 The Author. Ratio Juris © 2019 John Wi ley & Sons Ltd.

This approach was complemented by a methodological dist inction: Traditional

positivists tried to emulate t he predominant social s cientific approach of be-

haviourism, thereby avoiding seemi ngly vague concepts such as normativity. This

led to a reductionist account of law that focuse d on observable variables, mostly

converging behaviour, sanction, and power asymme tries. Investigating the internal

point of view in such a framework seemed impos sible (Tamanaha 2006), and it is no

wonder that Hart decried them as “useless” and “questionable, indeed blinding”

for describing more than empi rical regular ities (see Hart 1983, 162). In an attempt

to overcome their limitations, Hart u sed ordinary language analysis, working i n an

often-criticiz ed limbo between conceptual an alysis and “descriptive sociology.” The

social sciences, however, have changed quite fundamental ly since then. The criti-

cism is still well ta ken for classical economic thought that mirrors reduct ionist pos-

itivists by focusing on i ncentives and description through “as-if models” (Friedman

2008). Today, however, these dogmas are often calle d into question as economists

converge with psychologists in their intere st in mental processes as underpinni ngs

of decision-making. Modern economics (and soc ial science in general) is not reduc-

ible to any single externalist met hodology (Barzun 2015).

This development warrants a new look at Hart’s internal point of view. Even

though subject to debate, his description s of the internal point of view ca n be read

as behavioural and psychological hypot heses: They pertain to “a practical atti-

tude of rule acceptance” (Shapiro 2006, 1157), a “Point of View Internalised i n the

Brain of the Believers” (Pattaro 2005, sec. 8.1.3.2), a “psychological fact” (Hill 1990,

125), and an “element of volition or will,” comprehending “some wish or prefere nce

that the act, or abstention from acti ng, be done when the envisaged circum stances

obtain” (MacCormick 2008, 47; italics in origina l). The aim of this paper is neither to

present another conceptual a rgument as to which exegesis of Hart is correct nor to

justify the us e of empirical social science for jurispr udential aims in general. Instead

of an abstract discus sion regarding the natura lization of jurisprudenti al claims, it

discusses i ndividual hypotheses of Hart ’s internal point of view in light of experi-

mental research i n behavioural economics.

Thus it will weigh in on an ongoi ng debate about the function of modern legal

systems: Recently, Schauer (2015) claimed that Hart caus ed an inappropriate infatu-

ation with the idea of basing law on considerations other th an force. He argues that,

while perhaps a conceptual neces sity, the internal point of view is of little descr ip-

tive value with regard to modern legal systems. Although bas ed on the same litera-

ture, his reading st ands in sharp contrast to the traditiona l lessons taken from social

psychology: Subjects cite legitimac y and moral concerns, as well as social norms, as

a motivation for legal compliance (Tyler 2006). This disagreement has ramif ications

on theoretical and practica l levels: On the one hand, even primarily conceptual lega l

philosophy often claims to of fer an adequate description of real legal i nstitutions

and related human behaviour. This a mbivalence traces through Hart’s work in par-

ticular, and is part of the i nterpretative disagreement regard ing the internal poi nt

of view. On the other hand, there seems to be a grow ing enthusiasm about using

nondeterrent legal regulation to ach ieve social goals (Thaler and Sunstein 200 8).

There are several reasons to oppo se Schauer’s reinterpretation of the social-

scientific evidence. His somewhat contentious re ading of the observational l itera-

ture has been cr iticized elsewhere (Tyler 2016). It is worth adding that most of the

experimental work cited by Schauer (2015, 64ff.) shows the influence of extra-legal