How and Understanding of the Second Personal Standpoint Can Change Our Understanding of the Law: Hart's Unpublished Response to Exclusive Legal Positivism


This Article describes recent developments in moral philosophy on the “second personal standpoint,” and argues that they will have important ramifications for legal thought. Moral, legal and political thinkers have, for some time now, understood important distinctions between the first personal perspective (of deliberation) and the third personal perspective (of observation, cause and effect), and have plumbed these distinctions to great effect in their thought. This distinction is, in fact, implicit the law and economics movement’s “rational actor” model of decision, which currently dominates much legal academic thought. Recent developments in value theory due to philosopher Stephen Darwall suggest, however, that there is another distinct and irreducible standpoint that we commonly employ in our social interactions: the second personal standpoint. This is the standpoint from which we address one another with claims and grievances, or respond to such claims with apology, excuse or justification. The standpoint employs a distinctive grammatical person, which is as old as our specifically-human capacities for language, and which allows us to ask and answer a distinctive class of practical problems. These are inherently relational problems, which concern how to navigate, manage, repair—and sometimes dissolve—important human relationships.

This Article begins by identifying distinctive features of the second personal standpoint. It then illustrates the potential reach of these new developments for legal theory with three examples. Specifically, these developments might help us better diagnose problems that a number of other legal theorists have recently been raising, including, (1) the potential loss involved with silencing criminal defendants (Natapoff), (2) the potential loss inherent in moving from traditional common law uses of precedent to more formalistic approaches (Tiersma), and (3) the inability of economic theories to capture important aspects of tort law’s duty of care (Coleman, Perry, Weinrib).

The Article then turns to its central thesis, which is stated in deliberately provocative terms: these new developments will allow us to decipher Hart’s undeveloped but inchoately understood response to exclusive legal positivism, thereby clarifying important aspects of the genuine relationship between law and morality. According to received views, Hart involved himself in inconsistency when he absorbed Raz’s important observations about legal authority into his own jurisprudence. This Article argues, to the contrary, that Hart sensed there was no genuine inconsistency, and for roughly the right reasons. What Hart lacked—and what we have all lacked until now—is a clear account of the second personal standpoint in order to develop and articulate this sense. Using contemporary work, this Article develops a more robust account of legal authority and legal obligation, and defends it against concerns raised by Raz and Shapiro. It argues that Hart would (or at least should) have acknowledged this account as an appropriate elaboration of his views, and as representing the best available framework from within which to further refine legal positivist doctrine. The account should be of independent interest Dworkineans, and other non-positivists, as well, because it suggests that we cannot ultimately resolve these debates on the basis of facts about of legal authority.


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Date of this Version

August 2005