"The Internal Point of View in Private Law"

A superb piece close to the heart of my ongoing current project, Jeffrey Pojanowski and Paul Miller have co-authored The Internal Point of View in Private Law (download here). You can go to The Private Law podcast to listen to a discussion of the article if you'd like.

Taking issue with law-and-economics, law-as-sociology, and, implicitly, critical approaches to law, Pojanowski and Miller pick up where H.L.A Hart, Joseph Raz, John Gardner, and others have begun. In short, legal theory must take into account the internal perspectives of participants in a legal system (law makers/judges, lawyers, and parties). Legal actors do not understand themselves from the external point of view; they understand themselves as actors within a system of law, and it is explication of the law in which exponents of the internal point of view engage.

Pojanowski and Miller have their criticisms of the foregoing "internalists" as well. Legal actors have agency; their worldviews are not cabined by the law. They believe in the law and that they are engaged in a legal project oriented toward some goal. Legal actors are oriented toward a variety of ends through the law. Law has it own integrity but legal actors also have ends that transcend it.

But what ends?

Drawing on the the work of John Finnis, they fault Hart for his unwillingness to admit any purposeful aspect to an internal account of law. More recent theorists like Raz, who also focus on the internal perspective, recognize that law fits within a larger social imaginary that includes purpose but that the depth of law's purpose is little more than personal sovereignty. John Gardiner also argued that law has a telos but identified it with legal remedies and largely skipped over the larger ends of private law within which remediation for wrongs takes place.

Let me stop summarizing and let them speak for themselves:

Many leading private law theorists claim to analyze private law from an internal point of view; a vantage point within which private law doctrine, institutions and procedure enjoy pride of place. Private law theory of a generation ago distinguished the internal from external points of view, valorizing the former and criticizing the latter for ignoring the normativity of private law or for mistaking private law for public law or regulation. The New Private Law, by contrast, asserts the complementarity of internal and external points of view, partly by emphasizing the value of functionalist analyses of legal form. In this article, we canvas leading accounts of the internal point of view in private law ... and identify their shortcomings: notably, their inability to ground assertions about the normative and explanatory priority of the internal point of view, and about its relationship (whether of exclusivity or complementarity) to external points of view.

What solution do Pojanowski and Miller suggest?

We offer an alternative, and we think better, rendering of the internal point of view, drawing on the work of John Finnis. Amongst other things, our account vindicates the New Private Law’s alluring but elusive promise of perspectival integration, showing how private law may be understood as an interlocking set of practices of public practical deliberation equally concerned with reasoned compliance and behavioral conformity with practically reasonable laws.

Some might be concerned by analysis that draws on the new natural law of John Finnis. Many today are suspicious of anything that smacks of "natural ends" apart from maximizing personal sovereignty. Perhaps my draft of Person-Centered Pluralism for Contract Theory might be less off-putting.

In brief, The Internal Point of View in Private Law is a fine piece and deserves thoughtful reflection.