[*] Visiting Assistant Professor, Chicago-Kent College of Law. B.A., Oberlin College, 1985; J.D., Northwestern University School of Law, 1988; Ph.D., Loyola University Chicago, 1996. This Essay amplifies various themes explored in my book, Postmodern Philosophy and Law (1997). Return to text.

[1] For recent scholarship on the internal/external distinction, see Randy Barnett, The Internal and External Analysis of Concepts, 11 CARDOZO L. REV. 525 (1990), Richard L. Schwartz, Internal and External Method in the Study of Law, 11 LAW & PHIL. 179 (1992), and Brian Z. Tamanaha, The Internal/External Distinction and the Notion of a "Practice" in Legal Theory and Sociolegal Studies, 30 L. & SOC'Y REV. 163 (1996). This line of inquiry can be traced to the groundbreaking work of legal philosopher H.L.A. Hart, who first articulated the distinction between internal and external perspectives:

When a social group has certain rules of conduct . . . it is possible to be concerned with the rules, either merely as an observer who does not himself accept them, or as a member of the group which accepts and uses them as guides to conduct. We may call these respectively the "external" and the "internal" points of view.
H.L.A. HART, THE CONCEPT OF LAW 89 (2d ed. 1994) [hereinafter HART, CONCEPT]. Hart later acknowledged a third perspective—which he called hermeneutic—that is neither strictly internal nor external. According to Hart, the hermeneutic perspective allows a non-participant in a social practice to comment on the internal rules accepted by participants without sharing their commitment to the legitimacy of such rules. See H.L.A. HART, ESSAYS IN JURISPRUDENCE AND PHILOSOPHY 13-15 (1983) [hereinafter HART, JURISPRUDENCE]. This Essay draws from Hart's articulation of the hermeneutic perspective and suggests how this perspective might be understood as a way of mediating the excesses of purely internal and external approaches to law.

As a matter of intellectual history, it is worth noting that while Hart was the first legal scholar to speak at length about internal and external perspectives, German sociologist Max Weber forged a similar distinction between what he called "legal" and "sociological" points of view:

When we speak of "law," "legal order," or "legal proposition" (Rechtssatz), close attention must be paid to the distinction between the legal and the sociological points of view. Taking the former, we ask: What is intrinsically valid as law? . . . But if we take the latter point of view, we ask: What actually happens in a community owing to the probability that persons participating in the communal activity (Gemeinschaftshandeln), especially those wielding a socially relevant amount of power over the communal activity, subjectively consider certain norms as valid and practically act according to them, in other words, orient their own conduct towards these norms?
MAX WEBER, MAX WEBER ON LAW IN ECONOMY AND SOCIETY 11 (Max Rheinstein ed. & Edward Shils & Max Rheinstein trans., 1969) (emphasis added). Return to text.

[2] The internal/external distinction has a parallel in anthropological theory where a distinction is drawn between insider versus outsider perspectives. Anthropologists face a methodological problem of orientation in explaining a foreign practice or institution—such as witchcraft, cannibalism, or totemism—because the foreign behavior can be understood with either an emic approach that mirrors the native's self-understanding or an etic approach that explains the native's behavior in terms of forces unknown and unavailable to the native, such as social solidarity, prohibition against incest, or economic necessity. See DAVID KAPLANS & ROBERT MANNERS, CULTURE THEORY 22-24 (1972). Because the "internal/external" terminology finds wider acceptance within legal studies than the "emic/etic" terminology favored by anthropologists, this Essay follows the accepted usage. Return to text.

[3] See RONALD DWORKIN, LAW'S EMPIRE 14 (1986). Return to text.

[4] Id. Return to text.

[5] Id.Return to text.

[6] See HUGH COLLINS, MARXISM AND LAW 1-2 (1982); see also Alan Hunt, The Critique of Law: What is "Critical" about Critical Legal Theory?, in CRITICAL LEGAL STUDIES 5 (Alan Hunt & Peter Fitzpatrick eds., 1987); DOUGLAS E. LITOWITZ, POSTMODERN PHILOSOPHY AND LAW 7-19 (1997). Return to text.

[7] See, e.g., Ronald Dworkin, Sex, Death, and the Courts, N.Y. REV. OF BOOKS, August 8, 1996, at 44. Return to text.

[8] See EVGENY B. PASHUKANIS, LAW & MARXISM: A GENERAL THEORY 175-76 (Chris Arthur ed. & Barbara Einhorn trans., 1978) (1929) (arguing that, were it not for the existence of classes in a capitalistic society, there would be no need for a penal system). Return to text.

[9] See id. at 177-78 (noting that in a non-bourgeois system criminal liability is shared by the collective society and treatment for an offender is required to protect society and instill responsibility). Return to text.

[10] PETER WINCH, THE IDEA OF A SOCIAL SCIENCE AND ITS RELATION TO PHILOSOPHY 89 (1958). Notably, H.L.A. Hart provides notations referencing Winch in THE CONCEPT OF LAW. See HART, CONCEPT, supra note 1, at 289, 297. Return to text.

[11] See UNDERSTANDING AND SOCIAL INQUIRY 77-80 (Fred Dallmayr & Thomas McCarthy eds., 1977). Return to text.

[12] See ALBERT CAMUS, THE MYTH OF SISYPHUS AND OTHER ESSAYS 1 (Justin O'Brien trans., Alfred A. Knopf 1955) (1942). Return to text.

[13] See id. Return to text.

[14] See EMILE DURKHEIM, SUICIDE: A STUDY IN SOCIOLOGY 326 (George Simpson ed. & John A. Spaulding & George Simpson trans., 1951). Return to text.

[15] See id. at 241-76. Return to text.

[16] Id. at 255. Return to text.

[17] See id. at 258. Return to text.

[18] See id. at 299 ("The victim's acts which at first seem to express only his personal temperament are really the supplement and prolongation of a social condition which they express externally."). Return to text.

[19] See id. at 152-60 (discussing the general structure of Protestant, Catholic, and Jewish religious communities and their relationship to suicide). Return to text.

[20] See id. at 159-60 (finding a particular bond in various Jewish communities in which smaller self-contained societies exist out of the need to escape the hostility of the larger Christian society). Return to text.

[21] The hypothetical case was assembled from a variety of holdings regarding burglary. See generally State v. Spearman, 366 So. 2d 775, 775 (Fla. 2d DCA 1978) (holding that, for the purpose of proving burglary, entry can be established by the perpetrator's insertion of only a part of his body into the victim's residence); State v. Whitaker, 275 S.W.2d 316, 319 (Mo. 1955) (holding that "[t]he least entry of any part of the body is sufficient" to establish an entry); State v. Crawford, 80 N.W. 193, 194 (S.D. 1899) (holding that an entry can be established where an instrument is used to break into a building with the intent to commit a crime inside the building with the same instrument). But see R.E.S. v. State, 396 So. 2d 1219, 1220 (Fla. 1st DCA 1981) (holding that the use of an instrument to siphon gas from an automobile did not constitute burglary). For further discussion of this hypothetical case, see LITOWITZ, supra note 6, at 23-25. Return to text.

[22] For convenience and clarity, a discussion of attempted burglary in this hypothetical case was omitted. However, the point about internal disputes could be made just as effectively by looking at whether this is a case of burglary or attempted burglary. Return to text.

[23] This attitude toward the law is expressed in The Communist Manifesto:

But don't wrangle with us so long as you apply, to our intended abolition of bourgeois property, the standard of your bourgeois notions of freedom, culture, law, etc. Your very ideas are but the outgrowth of the conditions of your bourgeois production . . . just as your jurisprudence is but the will of your class made into a law for all.
Karl Marx & Friedrich Engels, The Communist Manifesto, in THE MARX- ENGELS READER 349 (Robert C. Tucker ed., 2d ed. 1978). Return to text.

[24] See PASHUKANIS, supra note 8, at 175-78. Return to text.

[25] See COLLINS, supra note 6, at 50-51. Return to text.

[26] DWORKIN, supra note 3, at 14. Return to text.

[27] Id. This pronouncement is preceded by a more balanced statement: "Both perspectives on law, the external and the internal, are essential, and each must embrace or take account of the other." Id. at 13-14. Return to text.

[28] See id. at 225-27. Return to text.

[29] See id. Return to text.

[30] See id. at 239. Return to text.

[31] 22 N.E. 188 (N.Y. 1889). In Riggs, an heir murdered his grandfather and then sought to collect under the grandfather's will. See id. at 190. Return to text.

[32] See DWORKIN, supra note 3, at 15-20. Return to text.

[33] See Ronald Dworkin, Hard Cases, 88 HARV. L. REV. 1057, 1089 (1975). Return to text.


[35] To his credit, Dworkin engages with Critical Legal Studies, but his analysis never recognizes the importance of critical concepts such as ideology, legitimation, and hegemony. See DWORKIN, supra note 3, at 271-75. Return to text.

[36] Mark Tunick captured this point nicely: "The power of the radical critic is that some who would have said before reading him that they were at home will say afterward that really they aren't. Or he may incite us, get us mad, lead us to take a critical stance from the inside (while he remains outside)." MARK TUNICK, PUNISHMENT: THEORY AND PRACTICE 64 (1992). Return to text.

[37] In some cases, it might be possible to advocate radical reform from within the legal system itself, for example to advocate the abolition of inheritance on the grounds of equality or fairness. For an example of this argument, see D.W. Haslett, Is Inheritance Justified?, 15 PHIL. & PUB. AFF. 122 (1986) (formulating an argument for abolishing inheritance and offering an alternative system of lifetime gift quotas). Return to text.

[38] Hunt, supra note 6, at 10. Return to text.

[39] David M. Trubek, Where the Action Is: Critical Legal Studies and Empiricism, 36 STAN. L. REV. 575, 587 (1984). Return to text.

[40] David Kairys, Introduction, in THE POLITICS OF LAW 4 (David Kairys ed., 2d ed. 1990). Return to text.

[41] Id. at 8.

[42] Friedrich Engels, Letter to Joseph Bloch, September 21-22, 1890, in THE MARX-ENGELS READER, supra note 23, at 763. Return to text. Return to text.

[43] Howard Zinn, The Conspiracy of Law, in THE RULE OF LAW 21 (Robert Paul Wolff ed., 1971). Return to text.

[44] DONALD BLACK, SOCIOLOGICAL JUSTICE 19 (1989). Return to text.

[45] Donald Black, The Epistemology of Pure Sociology, 20 L. & SOC'Y REV. 829, 869 (1995). Return to text.

[46] See Marx & Engels, supra note 23, at 345. Return to text.

[47] FRIEDRICH NIETZSCHE, BEYOND GOOD AND EVIL 117 (Walter Kaufmann ed. & trans., Vintage Books 1989) (1886) Return to text..

[48] See Douglas E. Litowitz, Foucault on Law: Modernity as Negative Utopia, 21 QUEENS L.J. 1, 23-25 (1995). Return to text.

[49] LUDWIG WITTGENSTEIN, PHILOSOPHICAL INVESTIGATIONS § 49 (G.E.M. Anscombe ed. & trans., Basil Blackwell 1953). Return to text.

[50] MICHAEL WALZER, THE COMPANY OF CRITICS 207 (1988). Return to text.

[51] NIETZSCHE, supra note 47, at 147-48; FRIEDRICH NIETZSCHE, ON THE GENEALOGY OF MORALS 154 (Walter Kaufmann ed. & trans., Vintage Books 1989) (1887).Return to text.

[52] That is, they may have a Nietzschean conception of the "Will to Power" in the back of their minds when they are deciding whether to pass a particular law. Return to text.

[53] HILARY PUTNAM, REASON, TRUTH, AND HISTORY 216 (1981) (parentheses omitted). Return to text.


[55] See PUTNAM, supra note 53, at 216. Return to text.

[56] Catharine MacKinnon, Feminism, Marxism, Method, and the State: Toward Feminist Jurisprudence, in CRITICAL LEGAL STUDIES 61 (Allan C. Hutchinson ed., 1989).Return to text.

[57] MacKinnon led the way for courts to adopt sexual harassment as a legal theory of sex discrimination. Not only did MacKinnon contribute to the brief for Mechelle Vinson in Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986), MacKinnon's work has been cited by several federal courts deciding sexual harassment cases. See, e.g., Bryson v. Chicago State Univ., 96 F.3d 912, 915 (7th Cir. 1996) (citing CATHARINE MACKINNON, SEXUAL HARASSMENT OF WORKING WOMEN: A CASE OF SEX DISCRIMINATION (1979)). Return to text.

[58] See, e.g., Nadine Taub & Elizabeth M. Schneider, Women's Subordination and the Role of Law, in THE POLITICS OF LAW, supra note 40, at 151. Return to text.

[59] This is true of behaviorist accounts in general. See B.F. SKINNER, SCIENCE AND HUMAN BEHAVIOR 35 (1953) ("The objection to inner states is not that they do not exist, but that they are not relevant in a functional analysis. We cannot account for the behavior of any system while staying wholly inside it. Eventually we must turn to forces operating upon the organization from without."). Return to text.

[60] See PASHUKANIS, supra note 8, at 174 ("'Society as a whole' does not exist, except in the fantasy of the jurists. In reality, we are faced only with classes, with contradictory conflicting interests. Every historically given system of penal policy bears the imprint of the class interests of that class which instigated it."). Return to text.

[61] See Michel Foucault, The Dangerous Individual, in FOUCAULT: PHILOSOPHY, POLITICS AND CULTURE (Lawrence Kritzman ed. & Alain Baudot & Jane Couchman trans., Routledge 1988). Return to text.

[62] See generally Gerald E. Frug, The Ideology of Bureaucracy in American Law, in CRITICAL LEGAL STUDIES, supra note 56, at 181. Return to text.

[63] This is the perspective of the person whom Justice Oliver Wendell Holmes called "the bad man": "If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience." Oliver Wendell Holmes, The Path of the Law, in THE MIND AND FAITH OF JUSTICE HOLMES 74 (Max Lerner ed., 1989). Despite this passage, Holmes generally took an internal perspective on the law when deciding cases, working within the cases and statutes before him. Return to text.

[64] 347 U.S. 483 (1954). Return to text.

[65] Plessy v. Ferguson, 163 U.S. 537, 547 (1895). Return to text.

[66] See Brown, 347 U.S. at 488. Return to text.

[67] Duncan Kennedy, Legal Education as Training for Hierarchy, in THE POLITICS OF LAW, supra note 40, at 47. Return to text.

[68] J.M. Balkin, Understanding Legal Understanding: The Legal Subject and the Problem of Legal Coherence, 103 YALE L.J. 105, 110-11 (1993). Return to text.

[69] HANS- GEORG GADAMER, TRUTH AND METHOD 306 (Joel Weinsheimer & Donald G. Marshall trans., 2d ed. 1989). Return to text.

[70] Id. at 379. Return to text.

[71] In the Hegelian notion of dialectic advanced in this Essay, contradictions at a given level of analysis are resolved when opposites are sublated into a larger whole that negates, yet preserves, each opposition: "The dialectical moment is the self-sublation of these finite determinations on their own part, and their passing into their opposites." G.W.F. HEGEL, THE ENCLYCOPAEDIA LOGIC 128 (T.F. Geraets et al. eds. & trans., 1991). Similarly, one can transcend the internal/external distinction by translating and mediating between the two perspectives, which would result in a theory that deals with both aspects of legal doctrine and practice. Return to text.

[72] German social critic Jürgen Habermas has recently published a study of law that attempts to bridge the internal and external perspectives through discourse theory, which supposedly facilitates the incorporation of external social scientific data into internal normative discussions about the law. Although I disagree with Habermas' reliance on discourse theory to perform this mediating function, he brilliantly identifies the problem raised in this Essay:

The tension between normative approaches, which are constantly in danger of losing contact with social reality, and objectivist approaches, which screen out all normative aspects, can be taken as a caveat against fixating on one disciplinary point of view. Rather, one must remain open to different methodological standpoints (participant vs. observer), different theoretical objectives (interpretive explication and conceptual analysis vs. description and empirical explanation), the perspectives of different roles (judge, politician, legislator, client, and citizen), and different pragmatic attitudes of research (hermeneutical, critical, analytical, etc.).
JüRGEN HABERMAS, BETWEEN FACTS AND NORMS: CONTRIBUTIONS TO A DISCOURSE THEORY OF LAW AND DEMOCRACY 6-7 (William Rehg trans., 1996). Unfortunately, Habermas is not convincing in his claim that we need a discourse theory—a "theory of communicative action"—to bridge the internal and external approaches, and further, his approach relies unnecessarily on universal principles deriving from an idealized discourse. If I am correct that the internal and external perspectives can be translated and mediated in a dialectical fashion, then we do not need to borrow Habermas' complicated account of the transcendental terms, conditions, and suppositions for normative discourse. The elimination of this baggage makes for a more free-standing account of how the two perspectives can play off each other. Return to text.

[73] See HART, JURISPRUDENCE, supra note 1, at 13-15. Return to text.

[74] Id. at 14 (emphasis added). Return to text.

[75] See PAUL RICOEUR, FREUD AND PHILOSOPHY 32-33 (Denis Savage trans., 1970) ("Three masters, seemingly mutually exclusive, dominate the school of suspicion: Marx, Nietzsche, and Freud . . . . If we go back to the intention they had in common, we find in it the decision to look upon the whole of consciousness primarily as 'false' consciousness."). Return to text.

[76] 499 U.S. 585 (1991). Return to text.

[77] See id. at 588. Return to text.

[78] See id. at 587. Return to text.

[79] See id. at 587-88. Return to text.

[80] See id. at 596-97. Return to text.

[81] See id. at 593. A similar decision was handed down in Hill v. Gateway 2000, 105 F.3d 1147 (7th Cir. 1997), in which the court held that a small-print pamphlet inside a computer box constituted a binding contract for a consumer who could not read the contract until he had broken the seal on the package. The court reasoned that the consumer could have read the contract and returned the computer if he did not like the provisions. Return to text.

[82] See generally Arthur Allen Leff, Contract as Thing, 19 AM. U. L. REV. 131, 132-37 (1970) (arguing that standard contracts are best understood as objects to be regulated like other products). Return to text.

[83] See generally Todd Rakoff, Contracts of Adhesion: An Essay in Reconstruction, 96 HARV. L. REV. 1174, 1283-84 (1983) (concluding that generalizations in traditional contract law do not account for the actual experience of parties facing contracts of adhesion). Return to text.

[84] One could argue that if a court could incorporate these external insights into its opinion, they would not be truly "external" in any meaningful sense. This is true to some degree, yet it would be rare indeed for a court to analyze the law from a genuinely external approach, such as Marxism, postmodernism, and literary theory. Similarly, it is difficult to imagine a court engaging in an ideological critique of the existing rule of law. Nevertheless, since a court could look to external insights, we must concede that there is no bright-line demarcation of the internal and external perspectives, but rather degrees of internality and externality. This can also be expressed by pointing out that a court risks the loss of legitimacy if it wanders too far afield from the applicable precedents and the accepted mode of legal reasoning by analogy, so the internal perspective tends to perpetuate itself. Further, it is only the appellate courts that are free to seriously question the precedents in a broader context because lower courts are bound to the internal perspective by stare decisis. Return to text.

[85] HART, CONCEPT, supra note 1, at 91. Return to text.