From methodology to theory construction: the case of the point of view in legal theory

Abstract

In this paper, the methodological character of the internal point of view (IPoV) will be examined. That the IPoV is a method of legal philosophy is not disputed. What is disputed is which point of view a theorist needs to occupy in order to successfully theorise about law. However, the choice between different points of view is based on the participant the theory chooses to study. This means that the participant’s viewpoint is not a method of our theory but an epistemic point through which the object of our study becomes available. If this is the case, different theories simply aim to study different participants. Hence, the criticisms raised on methodological grounds against theories not taking the IPoV or not taking the correct IPoV lose their force. Here, to demonstrate this point, the paper will offer a definition of method from a theory-construction perspective and examine the uses of the IPoV in Hart’s theory since it is the one that introduced the notion in legal philosophy. I will argue that the IPoV cannot play a methodological role for reaching main epistemic aims, but it can be a method for identifying the object of study.