One of my gripes about contemporary jurisprudence is that all too often it looks as though people think it started in 1961. Consider three examples of ideas nowadays associated with Hart:
(1) The distinction between the internal and the external point of view.
(2) The distinction between the core and penumbra of legal rules.
(3) What has been described recently as “the most famous hypothetical in the common law world,” the statute banning vehicles in the park. (This one is actually from Hart’s 1958 article “Positivism and the Separation of Law and Morals.”
The Internal and the external points of view
The most modest, the most purely descriptive logical arrangement of the rules of cases therefore always is broad enough to cover more cases than you start from. As to such further cases, and when viewed still as a system of description, your logical setup now remarks to you as follows “If I am a correct description of the cases, then the future cases a and b will be have the outcome x, as have past cases a and b; and cases a' and b' will also have that outcome; but the future cases c and d will like their predecessors have the outcome y; so will the cases c' and d'.
But in law your logical system refuses to remain on the level of description, of arranging existing observation. Backed by the fact and doctrine of precedent, your logical system shifts its content to the level of Ought; (this does not affect the logic). Its remarks change in tone and substance. Now they run: “If I am a correct description of the accepted doctrine, the future cases a and b are to have the outcome x—they should have that outcome, and if the judge is on the job he will see to it that they do.” For your logical system has now incorporated into each of its initial data—into each decision from which it is built up—the Ought idea. No longer are these initial data statements merely of how courts have held on given facts. They have—thanks to the addition of precedent—become each one a statement simultaneously of how a court has held, and in addition of how future courts ought to hold. To describe the one is to announce the other, by description and authoritative command to future officials given by the precedents.
The rules that you derive from putting cases together are therefore rules not merely of description but of Ought, major premises from which one concludes that if the rule is correct, a particular further cases ought to be so decided and not otherwise, to which is added an implication in fact that the judge in the future case will be on his job.
There is more:
You will … cut the raw material of your single cases according to your expectation about how courts will handle each one of them as precedent. So far, in your role as a non-participant, a business adviser, a man figuring what courts will do, in order to arrange his affairs to suit.
But as an advocate, as one about to argue to a court, the matter is somewhat different. There, the rule which you derive by induction [from past cases] is a rule which has one striking characteristic absent in the observer’s work. In addition to the cases which are given in the books it must cover the case which you have in mind, and must cover it cogently, and must decide it as you need it decided.”
This is from The Bramble Bush, Llewellyn’s set of lectures for first-year law students. This discussion comes in the course of describing to his student how different roles require looking at the raw materials differently. After the passages quoted he goes on to talk about the way the judge deals with those materials, which, Llewellyn argues, is different from that of the advocate. In a way, then, Llewellyn has more than one internal point of view. This is not identical to Hart, but that is explicable, in part at least, by the different context of their respective discussions. For Llewellyn what drives the discussion here is whether you need to do something with the law or whether it is enough for you to take it as it is. Still, the basic point—the difference between the descriptive prediction of the “adviser” and the approach of the participant who must add “the Ought idea”— is clearly similar to Hart’s distinction between the external and the internal points of view.
Core and Penumbra
with every [legal] rule there are three elements at play: a core of complete fixed content, made up of what has already existed and what is already concretely intended; next, a fluctuating borderline area of possible expansions, which is determined in part by the way the rule happens to read; and, finally, a “trend” affecting these possibilities, which is determined in part by the fixed core, in part by neighboring legal rules, in part by extralegal conditions, and in part by the needs of those affected by the law at a given time.
This quote comes from Llewellyn’s The Case Law System in America, a book published in German in 1933 and in English translation in 1989. The third element mentioned by Llewellyn, and not found in Hart, improves on Hart’s account.
Vehicles in the park
Remember again the infinite diversity of fact situations in life. Remember again, in the court’s decision, the level of “interpreting the raw evidence.” Remember, finally, that even when the evidence has been interpreted as to what it means—in fact—there remains the job of seeing what it means in law: of putting the individual facts or groups of facts into those legal abstract categories which are the terms of legal rules: “motor-car” or “vehicle”; “road” or “public highway”—and the rest. What shall we do with a scooter in private park?
This one too is from The Bramble Bush.
Cute anecdotes, you might say, but unimportant. What matters is that Hart had a theory, and Llewellyn did not. I actually think this is not true. I am working on something which may (or may not) appear someday that aims to show that Llewellyn had a very interesting theory of law. But this is something for another occasion.