Law and Morals: Proceedings of the Special Workshop held at the 28th World Congress of the International Association for Philosophy of Law and Social Philosophy in Lisbon, Portugal, 2017 9783515122788, 9783515122795, 9783848759606

Citation preview

Law and Morals Proceedings of the Special Workshop held at the 28th World Congress of the International Association for Philosophy of Law and Social Philosophy in Lisbon, Portugal, 2017 Edited by André Ferreira Leite de Paula and Andrés Santacoloma Santacoloma

ARSP Beiheft 158 Franz Steiner Verlag

Archiv für Rechts- und Sozialphilosophie

Law and Morals Edited by André Ferreira Leite de Paula and Andrés Santacoloma Santacoloma

archiv für rechts- und sozialphilosophie archives for philosophy of law and social philosophy archives de philosophie du droit et de philosophie sociale archivo de filosofía jurídica y social Herausgegeben von der Internationalen Vereinigung für Rechts- und Sozialphilosophie (IVR) Redaktion: Dr. Annette Brockmöller, LL. M. Beiheft 158

Law and Morals Proceedings of the Special Workshop held at the 28th World Congress of the International Association for Philosophy of Law and Social Philosophy in Lisbon, Portugal, 2017 Edited by André Ferreira Leite de Paula and Andrés Santacoloma Santacoloma

Franz Steiner Verlag

Bibliografische Information der Deutschen Nationalbibliothek: Die Deutsche Nationalbibliothek verzeichnet diese Publikation in der Deutschen Nationalbibliografie; detaillierte bibliografische Daten sind im Internet über abrufbar. Dieses Werk einschließlich aller seiner Teile ist urheberrechtlich geschützt. Jede Verwertung außerhalb der engen Grenzen des Urheberrechtsgesetzes ist unzulässig und strafbar. © Franz Steiner Verlag, Stuttgart 2019 Druck: Druckhaus Nomos, Sinzheim Gedruckt auf säurefreiem, alterungsbeständigem Papier. Printed in Germany. Franz Steiner Verlag: ISBN 978-3-515-12278-8 (Print) Franz Steiner Verlag: ISBN 978-3-515-12279-5 (E-Book) Nomos Verlag: ISBN 978-3-8487-5960-6

Table of Contents Introduction

7 Part I – Law and Practical Reason

André Ferreira Leite de Paula On the Unities of Law, Practical Reason, and Right: Foundations of the Unity of Reason beyond the Plurality of Knowledge and of Normative Orders 15 Bruce Anderson / Michael Shute Is There a Unity of Practical Reason that Embraces Law and Morals?

117

Gabriel Alejandro Encinas Duarte Is Argumentation Theory Applicable for Legal Pluralism?

129

Héctor A. Morales Zúñiga On the Moral Foundations of a Fair Trial

145

Giulia Terlizzi The New Role of Extra Legal Principles: A Comparative Overview

179

Part II – Conceptual Approaches on Law and Morals Lorenz Kähler What Constitutes the Concept Of Law? Potentialism as a Position Beyond Positivism and Natural Law Theory

195

Andrés Santacoloma Santacoloma Rethinking the Practical: The Migration Background of Thick Concepts

219

6

Table of Contents

Part III – On Legal versus Moral Normativity João Andrade Neto On the (dis)Similar Properties of Legal and Moral Duties

239

João Maurício Adeodato Law and Morals According to a Realistic and Rhetorical Philosophy: The Brazilian Case Revisited

257

Part IV – Morals and Legal Positivism Jing Zhao On the Relation between Law and Morality: From the Separation to the Connection Thesis in Gustav Radbruch’s Legal Philosophy

269

Wei Feng Non-Positivism and Encountering a Weakened Necessity of the Separation between Law and Morality – Reflections on the Debate between Robert Alexy and Joseph Raz

305

Yanxiang Zhang The Separation Thesis and H. L. A. Hart’s Legal Positivism

335

Henrique Neves The Minimal Content of Natural Law: In What Sense is it Really Natural?

351

Marin Keršić Is There a Moral Obligation to Obey the Law? Separation Thesis and Legal Theory in Croatia

367

About the Authors

375

Introduction This book is about the relationship between law and morality. Although the topic in itself is definitely not new, it receives especial importance and attention in contemporary societies, especially those characterized by a dominant commitment to what can be called a ‘liberal democracy’, where the law is supposed to regulate a highly pluralized and fragmented society. Under conditions of plurality of values, many social forces and legal theories require a certain kind of neutrality from the legal system, a means of compatibilization of the many ‘world views’ and ‘moral systems’ that are present within the same social space. Such a conciliating commitment sounds especially relevant in times of the doctrinal ubiquity of ideas such as ‘peace based on human rights’. This was the title of the 28th World Congress of the IVR in Lisbon, which the special workshop ‘Law and Morals’ was part of and from which this book arose. After the experience of the political regimes of the twentieth century that justified themselves by means of positive and non-positive claims about the nature of law but used positive law for diverse immoral actions, social movements and legal scholarship became moralized to a great extent. They required from the legal system the commitment to values such as human dignity, non-discrimination and many other precepts of political correctness. In this way, the normative tenet of legal scholarship at the beginning of the twenty-first century is ambiguous: on the one hand, law should be morally neutral in order to be able to compatibilize many individual and collective world views, but on the other hand it must be committed to the right values in order not to fall into the uneasiness of the past – values that only some individuals and groups agree upon. This is the social and doctrinal context in which debates about the necessary, possible or desirable connection and separation of law and morality have taken place in the last decades. Can (or should) law be defined in exclusively non-moral terms? What does it mean to be a legal positivist in this context? More interestingly, what is the normative nature of the answers to these very questions: is the very definition of law a matter of practical or of theoretical reasoning? Can there be a definite answer to the question of whether law and morality are connected or separated? If law is at least not synonymous with morality, is there a moral obligation to obey the law? These are some of the many questions addressed by the contributors to this volume, which is divided into four chapters: part one is devoted to the discussions about the law and practical reason, part two covers some conceptual approaches to law and morals, the third part offers some thoughts on legal versus moral normativity, and the final part addresses the problem of morals and legal positivism.

8

Introduction

The volume begins with a historical and conceptual account of the relationship between law and morality by André Ferreira Leite de Paula. In ‘On the Unities of Law, Practical Reason, and Right: Foundations of the Unity of Reason Beyond the Plurality of Knowledge and of Normative Orders’, the reader will be provided with an overview of the historical development of the increasing specialization of normative orders (law, morality, religion, politics) since pre-Hellenic times, passing though Roman law, the middle ages and modernity. The author presents the patterns of justification and critique of moral and legal claims related to the many epistemic paradigms adopted in each era. While in pre-modernity the metaphysical view of essentialism was dominant, early modernity substituted essentialism with voluntarism, which was in its turn moderated by many claims of the autonomy of fields of knowledge in the twentieth century, as morality and law began to be seen as ‘autonomous normative orders’ among others. The article shows how the very meaning of legal positivism changed in the transition from the nineteenth to the twentieth century. While until the nineteenth century most positivisms were moral and political defenses of a legal order considered to be just, the ‘delegitimation-positivisms’ of the twentieth century were theoretical attacks on the legal and political order of the nation state and its elites on the basis of liberal morality and politics. After laying the ground for a robust ontological realism for all kinds of things and facts, including normative ones, the author analyzes the many possible antinomies between law and morality, and holds that in each situation there is a right behavior to be carried out, even if different normative orders state diverging norms for the same behavior. The paper by Bruce Anderson and Michael Shute tackles the question “Is There a Unity of Practical Reason that Embraces Law and Morals?” to which the authors deliver an affirmative answer by drawing on the work of two philosophers: Garret Barden and Bernard Lonergan. In agreement with Barden, they maintain that all practical decisions (including legal decisions) are moral decisions since they are the result of deliberation and choice. The unity of practical reason which embraces law and morals lies in the cognitional activities of deliberation and choice. With Lonergan the authors reinforce this idea, since Lonergan also sees deliberation and choice as the centre-piece of moral decision making, and reach further by claiming that practical reasoning is a distinct mode of reasoning that is different from the reasoning that is employed in science, history, art, religion, and philosophy. For Lonergan, the strength of practical reasoning is that it specializes in dealing with concrete and particular events, situations, and problems that call for immediate and practical solutions; in practical reasoning, knowing exists for the sake of doing something. Anderson and Shute argue that both the unity and the diversity of law and morality rest on the specialized aim, method, and cognitive operations that constitute practical reasoning and its limitations. The challenges for practical reasoning arising from the pluralism of modern society make up the background of Gabriel Alejandro Encinas Duarte’s paper ‘Is Argumentation Theory Applicable for Legal Pluralism?’. Here the author not only explores many possibilities of compatibilization of legal pluralism and normative universalism, but makes the strong claim that pluralism even enhances the role of universalist morality in

Introduction

9

law rather than diminishing it. Tensions between state law and law beyond the state are treated in an analytical and historical manner. Contemporary law works must be seen, according to the author, as a historic consequence of the Second World War and the subsequent focus on human rights and human dignity. The pluralism of answers of competing legal orders in the same space, which is often approached in a merely sociological way, is considered from a normative perspective that combines historical contextualization and universalism, and which includes necessarily assuming the challenge of incommensurability of values and solving it with a discursive approach to constitutionalism. Morales Zúñiga’s paper ‘On the Moral Foundations of a Fair Trial’ offers an approach to the discussions of fair trial and the moral background to this. The author departs from the debates concerning the concept of the rule of law, in which there is a revitalized interest in the place of fair trial, and his paper seeks to lay bare the moral foundations of this. In order to achieve his goal, Morales Zúñiga reconstructs the very social context in which a fair trial operates, which is characterized by legal adjudication. His arguments focus on legal disagreements as a hurdle for performing the judicial function. Two methods of settling legal disagreements are set out: the first of these is morally wrong, while second one is not. This latter method is that of a fair trial. In her article ‘The New Role of Extra Legal Principles: A Comparative Overview’ Giulia Terlizzi discusses the way in which the role and content of morality and morality clauses are to be understood in our contemporary, secularized and pluralistic society. She analyzes the application of moral clauses by legal officials within legal systems in order to show the abandonment of a deontological conception of morality, which seems to be linked to the risk of an excessive subjectivism in the process of interpretation. Terlizzi argues that the task of applying these clauses becomes increasingly difficult in contemporary legal systems that are based on ethical and social pluralism on one hand, and on the increased power of individual autonomy on the other. She also addresses the ways in which legal systems are transforming morality clauses in order to restrain this subjectivism, a process of “juridicization” of morality through the incorporation of common moral standards in rules and principles formulated by the legal system by way of codes and constitutions. In the second part of the volume, Conceptual Approaches on Law and Morals, we present the papers of Lorenz Kähler and Andrés Santacoloma Santacoloma. In his contribution ‘What Constitutes the Concept of Law? Potentialism as a Position beyond Positivism and Natural Law Theory’, Kähler argues that it is impossible to provide an a priori valid answer to the question of whether there is a necessary connection between law and morality, since the concept of law is totally fixed neither by linguistic conventions nor by social facts. In order to even address the question regarding what the law is, a variety of moral as well as empirical reasons becomes decisive, not only to define the law but also to determine its borders. Here Kähler introduces the theory of moral potentialism, which emphasises that the concept of law depends on moral reasons that vary with the empirical circumstances under which the concept is to be applied. Most important among these circumstances are the consequences that the concept of law brings about. The theory also emphasises that under certain circumstances it is possible to state

10

Introduction

a connection between law and morality. Hence, all one can say a priori on a theoretical level is that there is a potential relationship between law and morality, i. e. a relationship that depends upon a variety of empirical as well as moral reasons. This explains, at least in part, why positivism and non-positivism have more in common than their opposition suggests. They both assume an essential nature of law which moral potentialism denies. In this same fashion, in his contribution ‘Rethinking the Practical: The Migration Background of Thick Concepts’ Santacoloma Santacoloma argues against the idea of a general question regarding the nature of law and morality and an a priori answer to the connection between these orders. Since many legal scholars appear to have taken very complex matters for granted in addressing these questions and have thus embraced a kind of reductionism, Santacoloma proposes a different approach to the subject matter, utilizing the theory of thick concepts and explaining that because of the ubiquity of these concepts and their nature (descriptive/evaluative) and a migration phenomenon inside and between normative orders, a completely independent existence of one of these orders seems implausible. To rule out a possible counterargument emerging from a theory which holds that the law is a special case of the more general practical discourse, he introduces and explains the phenomenon of the Migration Background of Thick Concepts, stressing the importance of the independent but nevertheless overlapping nature of normative orders. The volume continues with the topic of legal versus moral normativity, addressed by João Andrade Neto and João Maurício Adeodato. In ‘On the (dis)Similar Properties of Legal and Moral Duties’, João Andrade Neto addresses the question of whether the idea that there are prima face and definite moral duties has its correspondent in law, which would result in the existence of prima facie and definite legal duties. More specifically, the author investigates whether this distinction in law would correspond to the distinction between rules and principles, or more broadly, between kinds of legal norms; for that, whether the idea of prima facie legal duties is at all tenable is discussed. Andrade Neto argues that although this distinction is conceptually possible, only definite duties are to be regarded as law, especially from a participant’s point of view. Arguing against a common morality and the very possibility of objective values, Adeodato begins his ‘Law and Morals According to a Realistic and Rhetorical Philosophy: The Brazilian Case Revisited’ with a reconstruction of some of the possible mental attitudes assumed by philosophers approaching the law/morals debate: the separation thesis, which he holds to be implausible. Taking an analytical/descriptive attitude, he discusses the rhetoric underlying the legal and moral discourses, explaining the differences between and the scope of utilizing rhetoric in a dynamic (material, existential), technical (practical, strategic) or epistemological (analytical, scientific) sense, in order to incorporate or to advance a certain moral perspective both inside and through the law. Adeodato shows the force of his argumentation in the light of some examples from the Brazilian political situation regarding the lack of legal controlling instances in the country and the consequences of this for democracy. The final section of the volume, dedicated to the debates about Morals and Legal Positivism, begins with the contribution of Jing Zhao. Through a reinterpretation of

Introduction

11

Radbruch’s concept of justice, Zhao’s paper ‘On the Relation between Law and Morality: From the Separation to the Connection Thesis in Gustav Radbruch’s Legal Philosophy’ aims to provide stronger arguments for the thesis of a non-positivistic position within Radbruch’s legal philosophy, arguing that while there are connections between law and morals, these however do not necessarily lead to a natural law position. On the one hand morality plays a role for the correctness of law, and on the other hand it supplies the reason for the validity of law. There is also a relationship between the concepts of law and of justice: justice is understood in an epistemological sense, but also as a regulative ideal. Only in this way can Radbruch’s formula be understood as a further development of his early theory of justice. However, taking into account Radbruch’s relativism and his exclusion of the internal point of view regarding legal validity, the connection between law and morals is weak. Zhao stresses that this implies neither an abandonment of Radbruch’s basic methodological relativistic position, nor that the recognition of human rights would be a return to natural law. In ‘Non-Positivism and Encountering a Weakened Necessity of the Separation between Law and Morality – Reflections on the Debate between Robert Alexy and Joseph Raz’, Wei Feng throws light on the debate between Alexy and Raz, and highlights the possible ways in which law can be connected with morality. By fulfilling one of the analytic tasks of philosophy, which consists of clarifying concepts and their logical relationships in order to clarify the points of a theoretical struggle, Wei Feng holds that there are only three possible relationships between law and morality: a necessary, an impossible or a contingent connection. In order to back up this claim, he analyzes a realm of modal notions of necessity that have long been neglected in legal theory. The very notion of necessity can vary considerably, and can mean for example ‘natural necessity’, ‘analytical necessity’, and ‘coercive necessity’ among others. Certainly, what it means for law to be or not to be ‘necessarily’ connected with morality depends on the clarification of these concepts. Wei Feng characterizes the possible positions with the help of modal logic and represents them with Venn diagrams, demarking in this way the set of argumentative strategies that positivists and non-positivists can follow. In a more close regard to legal positivism, in his article ‘The Separation Thesis and H. L. A. Hart’s Legal Positivism’ Yanxiang Zhang explores the meaning of positivism in general as well as its presuppositions and consequences for the specific kind of positivism that is held in law. He carries out an extended analysis of the naturalistic fallacy in G. E. Moore’s sense, and its meanings within positivism in general, including positivism within natural sciences, and reflects about the consequences for legal positivism. According to Yanxiang Zhang, legal positivists attempt to cut passion away from experience; they attempt to hold a position that can be seen as a local version of the more general style of classical positivism. Concretely, Zhang explores H. L. A. Hart’s positivist presuppositions from the point of view of scientific positivism in general, especially empirical and naturalist sciences of the 18th to 20th centuries in Great Britain. According to Zhang, at the end of the day Hart’s theoretical enterprise aimed at standing positivist, but regarded morality as a necessary condition for the existence of a legal order. This led

12

Introduction

to the collapse of his theory due to the internal tensions arising from its philosophical sources. Still in regard to H. L. A. Hart’s legal theory, in ‘The Minimal Content of Natural Law: In What Sense is it Really Natural?’ Henrique Neves presents the argument that the minimal content of natural law in Hart’s account can be understood as (and is supported by) collective intentionality in the sense of John Searle’s institutional theory of law. According to Neves, this opens the possibility of deriving the ought of natural law from the is of factuality, i. e. the is of collective intentionality. This is also why Hart’s conception of the minimal content of natural law should not be understood as just ‘one more theory’ within the framework of traditional natural law theories, for it does not even raise a claim to justice. In this sense, according to Neves “the minimal content of Natural Law represents the basic institutional structure of a society” and this implies a necessary connection between law and morals. The final contribution of this volume addresses conceptions of law and morality within Croatian legal theory, a region and style of legal scholarship that has not received the deserved attention in international debates. In ‘Is there a Moral Obligation to Obey the Law? Separation Thesis and Legal Theory in Croatia’, Marin Keršić shows the remarkable influences that Croatian legal theory received from the Austrian legal education system, and later from monarchist Yugoslavia with its analytical approaches and the Marxist approach of post-second world war Yugoslavia. Keršić focuses on the ‘integral theory of law’ advanced by Nikola Visković, which combines elements of social relations, values and norms, thus also combining sociological, axiological and normativist methodologies. Visković himself has been influenced, among others, by Miguel Reale’s ‘tridimensional theory of law’, one of the most important contributions to legal philosophy in twentieth century Brazil. One of the tenets of this hybrid legal theory can be seen, as Keršić shows, in the conceptual separation of law and morals as the non-existence of an a priori moral obligation to obey the law. With this volume we are pleased to present an extraordinarily competent analysis of the most central questions concerning this debate, as well as some solid results. In contrast to many companions on law and morality, this volume is not confined to the aspects of one legal tradition such as the Anglo-Saxon, but it rather integrates the richness of Continental European, Anglo-Saxon, Latin American and Asian experiences and reflections about the subject matter, as the variety of the scholars’ backgrounds shows. Last but not least, we would like to express our gratitude to the authors of this volume and the participants in the workshop for their helpful feedback and wonderful discussions, which are now available as this ARSP Supplement. André Ferreira Leite de Paula Andrés Santacoloma Santacoloma

Part I – Law and Practical Reason

On the Unities of Law, Practical Reason, and Right Foundations of the Unity of Reason beyond the Plurality of Know­ ledge and of Normative Orders André Ferreira Leite de Paula1

Introduction The problem that will be addressed here is the relationship between law and morality. It is asked (1) to what extent law and morality are connected and separated and (2) since when has it been so. To the extent that law and morality are distinct normative orders, it is asked (3) whether they rule exactly the same behaviors or whether each order rules different kinds of behaviors. If they rule at least some of the same behaviors, it is asked (4) whether there can be antinomies (contradictions) between them. If there are antinomies, it is asked (5) whether the antinomies are only apparent (prima facie) and are therefore mistakes of human reason, or are definite and real. If the antinomies are apparent or real, it is asked (6) whether law or morality prevails (or should prevail) in the case of an antinomy. If one of these prevails, it is asked (7) whether this is always so, or whether law sometimes prevails (and should prevail) over morality and vice versa. In the case of existing coherence or at least solvable antinomies between law and morality, it is asked (8) whether the consequent achieved unity of practical reason is a specifically moral unity and whether it is a matter of cognition, of institutionalization, of individual or collective construction, or of consensus. In order to answer these questions, it will be necessary to consider the normative order of politics, for politics is sometimes said to pertain to the field of morals, sometimes it is said to be a different normative order that nonetheless has relationships with law. In any case, if a specifically political action collides with the normativity of morality or law (e. g. if a behavior is immoral and/or illegal but politically reasonable), the questions posed above apply also to the relationship between, on the one hand, law and politics, 1

I thank the German Academic Exchange Service (DAAD) and the National Council for Scientific and the Technological Development – Brazil (CNPq) for the financial support that made this research possible.

16

André Ferreira Leite de Paula

and on the other hand, morality and politics, in particular in regard to the order of prevalence between all of them. Obviously, some criterion must be found in order to establish the above-mentioned conceptual and normative relationships, if only in regard to particular cases. Therefore, it will also be asked (9) what is the normative nature of the criterion according to which one normative order prevails over the other; for example, whether it is in itself a moral criterion (from which it follows that morality would be the hierarchically highest normative order), or a political, legal, or even religious criterion, or (10) whether the good is a matter of teleology (purpose-orientedness) that transcends the deontology (rule-establishing) of all normative orders. In this case, it is asked (11) what the relationship between ought and good, i. e. between deontology and teleology is, especially (12) whether there can be contradictions between them and (13) whether either the ought or the good should prevail in the case of a contradiction. Part One: The Historical Transition from Natural Law to the Genealogical Critique of Normativity I. The Teleology of Nature as the Original Unity of Practical Reason The simplest providence for the preservation of life in the case of a conflict between two individuals is the appeasement of their animosities in order to prevent violence and to prevent, at the end of the conflict, that their body integrity should be seriously damaged or, worse, that one or both lives are lost. If a body is seriously damaged or if an individual life ceases to be, the chance of reproduction of these individuals, the preservation of their race, species, genes and, hence the continuity of life, decreases.2 For the purpose of the preservation of life, an event or action that fulfills this providence is good. If the action is carried out by a rational being who is able to consciously follow rules and purposes,3 the action is not only good and not only teleological, but also normative: it is just (or right). Since its most immediate aim is to conserve physically and organically organized matter, this providence can be called material justice.4 For the immediate 2 3

4

In sociobiological terms, “… mercy is ‘good for the species,’ since it allows the greatest number of individuals to remain healthy and uninjured”, Edward O. Wilson, Sociobiology: The New Systhesis (Cambridge: Harvard UP, 2000), at 129. Due to the brain size and capabilities present in most ancient human groups, human agency has most probably always been normative in the sense of containing at least some rule-following behavior, which does not exclude the fact that many life-maintaining actions have been carried out spontaneously, without normative reflexion. According to Walter Kargl, “Selbst die frühesten Jäger kennen Mythen, die Moralität vermitteln. Es fragt sich daher, ob es bei Menschen überhaupt die phylogenetische Stufe des ‘prämoralischen’ Zustands der bloßen Handlungsgewohnheit gibt. … Ein solcher Zustand wäre aus erkenntnisbiologischer Sicht ein ‘unmenschlicher’”, Walter Kargl, Handlung und Ordnung im Strafrecht. Grundlagen einer kognitiven Handlungs- und Straftheorie (Berlin: Duncker & Humblot, 1991), at 411. From the German “materielle Gerechtigkeit” according to Johann Jakob Bachofen, Das Mutterrecht: Eine Untersuchung über die Gynaikokratie der alten Welt nach ihrer religiösen und rechtlichen Natur, 3rd ed. (Basel: Benno Schwabe, 1948), § 66, p. 377.

On the Unities of Law, Practical Reason, and Right

17

purpose of preservation of life, the previous actions of the disputing individuals are irrelevant, i. e. the history of their conflict is irrelevant. The guilt and merits of the individual are equally irrelevant. Their bodies must only be separated and the possibilities of material action against each other must be excluded. Disengagement from a conflict and mere appeasement can be exercised instinctively, since the purpose of the preservation of life is inscribed into the entelechy5 or, in contemporary terms, into the genetic program of living beings. Thus, the pursuit of good actions and the exercise of material justice do not require the conscious processing of a great amount of information. They do not presuppose a highly complex stage of development of reason and culture.6 But 5

6

Entelechy (Gr. ἐντελέχεια) or internal teleology is the movement of a living being toward a certain purpose such as self-preservation, preservation of the group, of the species, and, thereby and by reproduction, preservation of life. About entelechy in general, see Aristotle, 1050b, in: Aristotle, Metaphysik, 6th ed. (Hamburg: Rowohlt, 2010), 9th book, 1050a, 1050b; Georg Wilhelm Friedrich Hegel, Vorlesungen über die Geschichte der Philosophie II, 2nd ed. (Frankfurt am Main: Suhrkamp, 1993), at 174–181; Phänomenologie des Geistes, 2nd ed. (Frankfurt am Main: Suhrkamp, 1989), 195–197. Teleology is based on the possibility of actions in one or in other way, which is opposed to the idea of mechanical causality. About this point, see Aristotle, Lehre vom Satz (Hamburg: Felix Meiner, 1958), at 104 (19a); Aristotle, Metaphysik, 9th book, 1045b, 1046a, 1047b. In contemporary terminology, the entelechy of living beings is called a self-organizing ‘system’ that exchanges energy and nutrients with the environment with the purpose of self-preservation. See Gerhard Roth, Wie einzigartig ist der Mensch? Die lange Evolution der Gehirne und des Geistes (Heidelberg: Spektrum Akademischer Verlag, 2010), at 42; Irenäus Eibl-Eibesfeldt, Grundriß der vergleichenden Verhaltensforschung: Ethologie, 7th ed. (Munich: Piper, 1987), at 619. For contemporary views about living beings as functional systems, see also Mossio and Moreno: “the relationship between a biological organization and its environment is asymmetrical: the organization acts on the environment to promote its own maintenance, while perturbations generated by the environment on the system are monitored in accordance with its own needs. The interaction is asymmetrical because it is guided by one side only, which imposes its own norms and aims on the other”, Alvaro Moreno and Matteo Mossio, Biological Autonomy. A Philosophical and Theoretical Enquiry (Dordrecht: Imprint Springer, 2015), at 90–91; “We will refer to this interactive dimension as agency. A system that realizes constitutive closure (metabolism) and agency, even in a minimal form, is an autonomous system, and therefore a biological organism”, ibid., at 89. See also David S. Oderberg, ʻTeleology: Organic and Inorganic’, in Ana Maria González, ed., Contemporary Perspectives on Natural Law. Natural Law as a Limiting Concept (Burlington: Ashgate, 2008), 272–279. The purposiveness of the movement of living beings is real, independently of what is the most basic unity of evolution (whether the individual, the group, the species, or ‘the gene’). According to many scholars, the most basic unity of selection throughout evolution is neither the individual nor the species, but “the gene”. See Charles Crawford and Catherine Salmon, ʻEvolutionary Psychology: The Historical Context’, in Charles Crawford and Dennis Krebs, eds., Foundations of Evolutionary Psychology (New York u. a.: Lawrence Erlbaum Associates, 2008), 1–21 and Richard Dawkins, The Selfish Gene, 40th ed. (Oxford: Oxford UP, 2016), at 16. As is well known, modern science normally denies the existence of teleology of nature. Nevertheless, it maintains in its descriptions of living beings and processes some indispensible concepts such as ‘functions’, ‘instincts’, etc., which are nothing else than local teleologies. For a critical discussion about the many attempts by modern science to comprehend of nature without teleology, see Marco Solinas, From Aristotle’s teleology to Darwin’s genealogy. The stamp of inutility (Houndsmill, Basingstoke, Hampshire: Palgrave Macmillan, 2015). For a defense of teleology, see Robert Spaemann, ʻDie Unvollendbarkeit der Entfinalisierung’, in S. J. Follon and James McEvoy, eds., Finalité et Intentionnalité: doctrine thomiste et perspectives modernes. Actes du Colloque de Louvain-la-Neuve et Louvain 21–23 mai 1990 (Paris: Éditions de l’Institut Supérieur de Philosophie Louvain-la-Neuve, 1992), 305–324 and Reinhard Löw, ed., Die Frage Wozu? Geschichte und Wiederentdeckung des teleologischen Denkens (Munich: Piper, 1981). As Friedrich Nietzsche points out, “die längste Zeit der menschlichen Geschichte hindurch – man nennt sie die prähistorische Zeit – wurde der Werth oder der Unwerth einer Handlung aus ihren Folgen abgeleitet: die Handlung an sich kam dabei ebensowenig als ihre Herkunft in Betracht …”, Friedrich

18

André Ferreira Leite de Paula

material justice can be also exercised within a higher level of rational and cultural development in which there is already the binding force of a promise, or in more recent times, rights, duties and positive law. Under civilized circumstances, material justice is the equitable justice (naturalis aequitas7) or the outcome justice that assumes the violation of the given word, the violation of previous agreements and norms, if this is necessary in order to satisfy the moral feelings of appeasement and, finally, to stop a conflict for the sake of the security of bodies here and now.8 Material justice is very simple. It is quite often the intuition of solving a conflict by simply dividing the disputed object into two parts9 and giving half to each party, regardless of their arguments, proof, and burdens, previous agreements, rights and duties, merits and guilt, and hence establishing peace hic et nunc and preserving life in a conscious, but less intellectual way.10 Due to its simNietzsche, Jenseits von Gut und Böse: in: Kritische Studienausgabe (eds. Giorgio Colli, Mazzino Montinari, Munich: DTV, 1999), § 32, p. 50. 7 ‘Natural equity’. See Bachofen, Das Mutterrecht (n. 4), § 66, p. 378. 8 The conception of material justice in this close-to-natural sense was present in many legal cultures and mythologies of the pre-Hellenic world. According to Johann Jakob Bachofen, “läßt sich nun auch in manchen … Fällen der Zusammenhang des ius naturale mit dem Gesetz des stofflichen Lebens nicht in der gleichen Unmittelbarkeit erkennen, so ist es doch immer eine der Materie immanente Ordnung, welche als Naturrecht bezeichnet wird. So die Alimentationspflicht der Kinder. Die stoffliche Zeugung trägt dies Gebot in sich, wie sie die naturalis cognatio erschafft. … Daher der Ausdruck natura docuit. Dieser zeigt uns das Recht als ein in der Materie ruhendes, mit dem Stoffe selbstgegebenes, von jeder menschlichen Satzung unabhängiges Gesetz, das daher an der Göttlichkeit der Natur selbst teilnimmt und mit der mütterlichen Aequitas zusammenfällt. Von Seite der Stofflichkeit hat das ius naturale innere Verwandtschaft mit dem, was man im Gegensatz zum formellen Recht als materielle Gerechtigkeit bezeichnet”, ibid., § 66, p. 377. Furthermore, it has strong correspondences in sociobiology: “a science of sociobiology, if coupled with neuropsychology, might transform the insights of ancient religions into a precise account of the evolutionary origin of ethics and hence explain the reasons why we make certain moral choices instead of others at particular times”, Edward O. Wilson, Sociobiology. The New Synthesis, 25th ed. (Cambridge, Mass.: The Belknap Press of Harvard UP, 2000), at 129. 9 See for example the central meaning that the numeral 2 has for justice within ancient mythologies: “Das weibliche Naturprinzip als Ausdruck und Quelle des Rechts ist keine Aegypten ausschließlich angehörende Auffassung. Neben Isis erscheinen auch andere Naturmütter in derselben Bedeutung. Das gleiche Prinzip, das an der Spitze der stofflichen Schöpfung steht, muß auch als Quelle und Grundlage des Rechts erscheinen, das ja seinem Gegenstande nach ausschließlich dem stofflichen Leben des Menschen angehört. Diese Auffassungsweise tritt in der pythagoreischen Zahlensymbolik hervor. Grundzahl der Iustitia ist nämlich die weibliche Zwei, wie dies Favonius Eulogius hervorhebt: duas vero, ut theologi asserunt, secundus est motus. … ab hoc (numero) iustitia, naturalis virtus, librata partium aequalitate diluxit. Hier wird die Zwei als Bezeichnung der Gerechtigkeit zurückgeführt auf die librata aequalitas partium, d. h. auf die Teilbarkeit in gleiche Hälften. Derselbe Gedanke wiederholt sich bei Macrob in Somn. Scip. 1, 5, 17 Pythagorici vero hunc numerum (octo) iustitiam vocaverunt: quia primus omnium ita solvitur in numeros pariter pares, hoc est in bis quaterna, ut nihilominus in numeros aeque pariter pares divisio quoque ipsa solvatur, id est in bis bina. eadem quoque aequalitate contexitur, id est bis bina bis. cum ergo et contextio ipsius pari aequalitate procedat et resolutio aequaliter redeat usque ad monadem, quae divisionem iustitiae nomen accepit”, Bachofen, Das Mutterrecht (n. 4), § 64, p. 362. 10 The notion of material justice presented here is very similar to what Roberto Mangabeira Unger calls the “ethic of sympathy”, as its immediatism stands between rule-following and consequentialism: “It is the ethic of sympathy, the expression of love, that leads the shepherd to place the safety of the stray lamb above the welfare of the flock. It values the present and immediate person more than the future or distant one, and it breaks all moral rules on behalf of the loved one. Such an act always seems irrational, for our very conception of rationality has become identical to the idea of following rules. Because all human love is a particular relationship among particular persons, it must rebel against the universalizing tendencies

On the Unities of Law, Practical Reason, and Right

19

plicity and immediate maintenance of the stability of bodies, material justice is closer to physical nature11 and to the non-intellectual part of humankind’s nature: the natural tendency of preservation of life is an instantiation of the more general principle of nature of prevalence of “the stable”, which is valid both for organic and for inorganic nature.12 For the many reasons mentioned, material justice has probably been the dominant way of practicing (natural) law in the earliest and longest phase of human development since the beginning of the human species. According to the most elaborate antiquity research on the issue, the predominance of thinking patterns of material justice comprises supposedly the entire legal history before Hellenism and Roman law.13 Material justice corresponds to the natural tendency of females in the distribution of goods and in conflict resolution,14 and accounts for the basic patterns of ethical thought within cultural matri-

of consequentialist or rule-bound ethics. The suppression of any of the three moralities would pervert the moral life by disregarding a basic feature of human existence. Nevertheless, the forms of moral conduct conflict with each other, and their conflict becomes especially acute in the rivalry between the universalist and the particularist ethics”, Roberto Mangabeira Unger, Knowledge and Politics (London: The free press, 1984), at 141–142. 11 Strictly speaking, discussion about a ‘physical nature’ is pleonastic, since Gr. φύσις and Lat. natura are, to a large extent, synonyms. See Maxence Hecquard, Les fondements philosophiques de la démocratie moderne (Paris: Pierre Guillaume de Roux, 2016), at 87–90. The reason that the two words are synonyms is not that nature would be only matter, as the materialist reductionist conception of physics and nature in modernity normally presupposes, but because both φύσις and natura actually embrace much more than matter; they include energy, directions of movement (τέλη), etc. Above, the phrase ‘physical nature’ is meant as inorganic nature. 12 “Darwin’s ‘survival of the fittest’ is really a special case of a more general law of survival of the stable. The universe is populated by stable things. … The things that we see around us, and which we think of as needing explanation – rocks, galaxies, ocean waves – are all, to a greater or lesser extent, stable patterns of atoms. Soap bubbles tend to be spherical because this is a stable configuration for thin films filled with gas. In a spacecraft, water is also stable in spherical globules, but on earth, where there is gravity, the stable surface for standing water is flat and horizontal”, Dawkins, The Selfish Gene (n. 5), at 15–16. See also Aquinas: “because in man there is first of all an inclination to good in accordance with the nature which he has in common with all substances: inasmuch as every substance seeks the preservation of its own being, according to its nature: and by reason of this inclination, whatever is a means of preserving human life, and of warding off its obstacles, belongs to the natural law”, Thomas Aquinas, Summa theologiae, prima secondae (Lander (Wyoming): The Aquinas Institute for the Study of the Sacred Doctrine, 2012), question 94, article 2. 13 Bachofen, Das Mutterrecht (n. 4), § 66, p. 379, with historical sources overwhelmingly from Europe, India, North-Africa and the Middle-East. 14 Material justice is a natural thinking tendency of females because females are (1) the sex that invests more energy in the embryo (and is, therefore, more interested in its success) and (2) the sex that is courted and, therefore, does not participate in many circumstances of competition (having, by reflex, a restricted interest and comprehension of its rules). About the sociobiological aspects of courting, see Wilson, Sociobiology (n. 2), at 320. As to female investment in the offspring: “the egg possesses the yolk required to launch the embryo into an advanced state of development. Because it represents a considerable energetic investment on the part of the mother the embryo is often sequestered and protected, and sometimes its care is extended into the postnatal period. This is the reason why parental care is normally provided by the female, and why most animal societies are matrifocal”, ibid., at 317. At the latest in Helenism, it was clearly in the consciousness at least of educated people that male and female natural tendencies in thinking about justice are different. See Aristotle, Politik (Hamburg: Felix Meiner, 1958), at 28–29 (book 1, ch. 13, 1259b-1260a). About the differences of content of male and female thinking about justice from a cultural perspective, see Bachofen, Das Mutterrecht (n. 4) and Georg Simmel, Zur Philosophie der

20

André Ferreira Leite de Paula

archy, a cultural feature that was very common in antiquity.15 In general, we can say that in the most ancient times of human history and pre-cultural times of human ancestors, practical reason either in the mode of natural tendencies (teleology) or in the mode of normative behavior (material justice) was overwhelmingly unified towards a common good and common justice: the good and justice of life maintenance.16 Due to the lower degree of complexity of life, the teleological and normative behavior of ancient human groups was not divided into categories such as (positive) law, morality, religion, or politics. The only existing normative order was custom17, which can be called morals (Lat. mos, mores) in a very broad sense and which was combined with patterns of justification of natural law. Geschlechter: Das Relative und das Absolute im Geschlechter-Problem (1923), in: ibid., Philosophische Kultur. Über das Abenteuer; die Geschlechter und die Krise der Moderne (Berlin: Klaus Wagenbach, 1986). 15 Cultural matriarchy is the prevalence of female patterns of ethical thought in culture even if authority positions within family and society are overwhelmingly exercised by men. Therefore, cultural matriarchy is not about who rules, although this was originally decisive for the emergence of these patterns of thinking, especially in hunter-gatherer societies, but about what type of criteria were used to interpret the world, to understand and resolve conflicts and to distribute resources. For an analysis of matriarchy in the cultures of pre-Hellenic peoples, see Bachofen, Das Mutterrecht (n. 4) and Julius Evola, Rivolta contro il mondo moderno, 3rd ed. (Rome: Edizioni Mediterranee, 2010), at 54–55. Uwe Wesel has criticized Bachofen’s analysis of ancient cultural matriarchy on the basis of a different and more strict understanding of the meaning of matriarchy, which means for him either matrilinearity (i. e. definition of kinship in the lineage of the mother) or, simply, female ‘dominance’ in family and society (Uwe Wesel, Der Mythos vom Matriarchat: Über Bachofens Mutterrecht und die Stellung von Frauen in frühen Gesellschaften, 7th ed. (Franfkurt am Main: Suhrkamp, 1980), at 33–35 and 151). However, Wesel’s concept of matriarchy does not focus sufficiently on the cultural level at which matriarchy was existing in ancient times. In order to avoid misunderstandings, the most appropriate term to refer to the predominance of female world views in culture is ‘cultural matriarchy’. 16 As Marcus Tullius Cicero summarized, “justice has its source in nature; thence certain things came into custom by reason of their utility; afterwards the things which emanated from nature and were approved by custom, were sanctioned by fear and reverence for the law” (Marcus Tullius Cicero, De Invent. Rhet., II, quoted after Thomas Aquinas, Summa Theologicae (Lander, Wyoming: The Aquinas Institute for the Study of Sacred Doctrine, 2012), vol. 16, p. 206 (Prima Secundae, Question 91, Article 3). About the natural origins of morality, Djacir Menezes points out that “a moral, conjunto de crenças coletivas (mores) traçando normas à atividade dos indivíduos, limita-lhes a luta pela vida dentro de certas esferas de ação. Como necessidade de defender o meio social contra os desajustamentos de certos indivíduos, exprime reação biológica de defesa que, com a evolução social da mentalidade, tende a socializar-se, exercer-se por meio de órgãos, de funções sociais: tais são as primeiras organizações do direito penal. Tais normas, porém, começam a diferir das normas puramente morais, porque implicam certo conteúdo (jus cogens). Mas as leis tendem sempre a traduzir certa média do critério moral dominante na comunidade”, Djacir Menezes, Introdução à ciência do direito, 4th ed. (Rio de Janeiro: Livraria Freitas Bastos, 1964), at 53. In the context of Hellenism, Aristotle for example had not distinguished law from morality and had treated justice at the same time as normative content and as a virtue. See Joaquim Carlos Salgado, A Idéia de Justiça no Mundo Contemporâneo: Fundamentação e aplicação do direito como maximum ético (Belo Horizonte: Del Rey, 2006), at 50. 17 Law and morality originally arose from custom: “die Sitte steht zum Rechte und zur Moral nicht in einem systematischen, sondern in einem historischen Verhältnis. Sie ist die gemeinsame Vorform, in der Recht und Moral noch unentfaltet und ungeschieden enthalten sind, der “Indifferenzzustand”, der die Form des Rechtes und der Sittlichkeit nach verschiedenen Seiten hin aus sich entläßt (Georg Simmel). … Die Bestimmung der Sitte ist, vom Rechte und der Moral aufgezehrt zu werden, nachdem sie das Recht sowohl wie die Moral erst vorbereitet und ermöglicht hat”, Gustav Radbruch, Rechtsphilosophie: Studienausgabe, 3rd ed. (Heidelberg: CF Müller, 2003), § 6, p. 51.

On the Unities of Law, Practical Reason, and Right

21

II. The Autonomization of Law After the emergence and development of civilization in some regions of the Earth, the first major overcoming of the natural law of material justice was Roman law.18 Roman law was the first major endeavor in history, later influenced by Greek Hellenism and followed by English systematizations of common law and late-modern continental European codifications, of apprehending law not only in the dimension of moral feelings and customs, not only submitted to the political purpose of life maintenance of the group against aggressions from other groups, but rather case-oriented, and at the same time systematically19 and conceptually.20 The many legal documents from the Roman period such as the classical period of Republican law or, later on, the Justinian’s iura et leges (later known as Corpus Iuris Civilis), were long-term efforts of systematization of a huge amount of prudential knowledge about practical conflict resolution, with a unique connection between what is practically due in a concrete situation and the idea of legal form that specified the correct behavior of the citizen and, by extension, the correct decision of the praetor in the concrete case. The idea of legal form in that context comprised the observance of a rite that conferred enhanced validity and binding force to certain declarations of will, such as promises, and of the duty to compensate a wrongdoing in tort law. Roman law experienced a solemn awe towards the form in decision practice, and in this way developed a very accurate sense of formal justice. This means (1) the acknowledgment of the high value of the fulfillment of a given promise in some selected situations of ordinary life, and thereby the acknowledgment of the binding force of men’s word (pacta sunt servanda); consequently (2) the consideration of the norm agreed upon by the parties of a contract for an eventual posterior conflict resolution,21 (3) the enforcement of precisely these rules by authorities within a procedure in the case of violation, and (4) the observance of proportionality in the distribution of goods, honors and sanctions according to merits (suum cuique tribuere). Formal justice is not only legal certainty and not only the equal treatment of equal cases, as modern 18 According to an argument by Bachofen, Das Mutterrecht (n. 4), § 66, at 379. 19 As Celsus stated in the Digest, ex quae forte uno aliqiio casu accidere possunt, iura non constituuntur. Discussion and contextualization in Salgado, A Idéia de Justiça no Mundo Contemporâneo (n. 16), at 44. 20 See Bachofen, Das Mutterrecht (n. 4), § 66, p. 379. According to Joaquim Carlos Salgado, “do ponto de vista ideal, a jurística romana expressou o direito no seu conceito, embora no tempo seja anterior a outras formas de expressão do direito, menos desenvolvidas. … Essa racionalização foi possível em virtude da necessidade da unidade das soluções jurídicas, dada a complexidade da sociedade e seus negócios. Isso porque era necessário um instrumento para as soluções dos conflitos, ainda que não imediatamente para dar-lhes a mesma solução justa, mas para tornar possível ao pretor uma solução eficaz e tecnicamente mais fácil, pois dominando a técnica de solução de conflitos tornaria seu trabalho homogêneo, célere e eficaz, capaz de atender a variedade e quantidade de casos que se lhe ofereciam para solução. Daí então a estruturação do processo e o descobrimento dos conceitos jurídicos nesse plano mais abstrato, capazes de oferecer a compreensão de um número indeterminado de casos, ou seja, de conceitos universais, a par da lex, cuja universalidade já havia ganho foros desde a Lei das XII Tábuas”, Salgado, A Idéia de Justiça no Mundo Contemporâneo (n. 16), at 42. 21 Consensus, conventio, or pactum. See Aldo Schiavone, Ius. L’invention du droit en Occident (transl. Geneviève and Jean Bouffartigue, Paris: Belin, 2008), at 205.

22

André Ferreira Leite de Paula

legal philosophy almost unanimously assumes. The word ‘form’ (Lat. forma) means not only procedure, not only regularity of actions, but, in contrast to the feelings-relatedness of material justice, the observance of nature as the essence of the respective legal institute (e. g. of property, a contract, or testament), i. e. the acknowledgement of a binding force within counsciously conceptual thought, the binding force of rationally and freely settled rules. Formal justice is not a more or less accidental justice based on instincts, but a notion of justice that can be understood intellectually, grasped conceptually and fulfilled intentionally on the basis of reasons. Although this does not mean that life was given lesser regard in the Roman Monarchy, Republic, and Empire than previously and elsewhere, it was still the greatest counterpart of the previously predominantly practiced material justice, since conflict resolution ceased to be an almost exclusive function of the telos of immediate life and group preservation. Indeed, under conditions in which life is not any way threatened in ordinary legal conflicts,22 civilization could flourish and Roman law could develop a great sense of the memory of the past actions which gave rise to a particular conflict, i. e. a great interest in the lived history of the particular conflict in order to solve it.23 This requires a higher level of intellectuality and abstraction that was 22 As to the effects of civilizational conditions for morality, see Friedrich Nietzsche: “nachdem das Gefüge der Gesellschaft im Ganzen festgestellt und gegen äussere Gefahren gesichert erscheint, ist es diese Furcht vor dem Nächsten, welche wieder neue Perspektiven der moralischen Werthschätzung schafft. Gewisse starke und gefährliche Triebe, wie Unternehmungslust, Tollkühnheit, Rachsucht, Verschlagenheit, Raubgier, Herrschsucht, die bisher in einem gemeinnützigen Sinne nicht nur geehrt … sondern gross-gezogen und -gezüchtet werden mussten …, werden nunmehr in ihrer Gefährlichkeit doppelt stark empfunden … und schrittweise, als unmoralisch, gebrandmarkt und der Verleumdung preisgegeben”, Nietzsche, Jenseits von Gut und Böse (n. 6), § 201, p. 122. 23 As stated by Friedrich Nietzsche, “in den letzten zehn Jahrtausenden ist man hingegen auf einigen grossen Flächen der Erde Schritt für Schritt so weit gekommen, nicht mehr die Folgen, sondern die Herkunft der Handlung über ihren Werth entscheiden zu lassen: ein grosses Ereignis als Ganzes, eine erhebliche Verfeinerung des Blicks und Maassstabs, die unbewusste Nachwirkung von der Herrschaft aristokratischer Werthe und des Glaubens an ‚Herkunft‘, das Abzeichen einer Periode, welche man im engeren Sinne als die m o r a l i s c h e bezeichnen darf: der erste Versuch zur Selbst-Erkenntnis ist damit gemacht. Statt der Folgen die Herkunft: welche Umkehrung der Perspektive!”, ibid., § 32, p. 50. About the centrality of past actions for legal thinking, see also John Finnis: “… we can say that legal thinking (i. e. the law) brings what precision and predictability it can into the order of human interactions by a special technique: the treating of (usually datable) past acts (whether of enactment, adjudication, or any of the multitude of exercises of public and private ‘powers’) as giving, now, sufficient and exclusionary reason for acting in a way then ‘provided for’. In an important sense the ‘existence’ or ‘validity’ of a legal rule can be explained by saying that it simply is this relationship, this continuing relevance of the ‘content’ of that past juridical act as providing reason to decide and act in the present in the way then specified or provided for. The convenience of this attribution of authoritativeness to past acts is twofold. The past is beyond the reach of persons in the present; it thus provides (subject only to problems of evidence and interpretation) a stable point of reference unaffected by present and shifting interests and disputes. Again, the present will soon be the past; so the technique gives people a way of now determining the framework of their future”, John Finnis, Natural law and natural rights, Repr., with corrections (Oxford: Clarendon Press, 1989), at 269. For example, the notion of corrective justice in tort law is essentially backward-looking: “the function of the court is to preserve the initial equality by transferring from one party to the other the fixed quantity that marks the deviation from the transaction’s implicit rationality. This sum represents either the plaintiff ’s loss or the defendant’s gain, and in paradigmatic instances of restitution, gain and loss will be identical”, Ernest J. Weinrib, ʻLegal Formalism: On the Immanent Rationality of Law’, The Yale Law Journal, 97, 6 (1988), at 980. There is an exclusionary relationship between forward-oriented material justice and backward oriented formal justice: “the purpose cannot be necessarily limited to the interaction of the two parties to

On the Unities of Law, Practical Reason, and Right

23

not present within most other primitive peoples. Formal justice is therefore protonomic in the sense that one considers previous norms and agreements in order to solve a current conflict, rather than being teleonomic, i. e. purpose-oriented even in disaccordance with previously settled rules, or in contemporary terms, utilitarian or consequentialist in the same way that material justice is. The Roman rule of law was the rule of men,24 though not in the sense of arbitrariness, as the modern use of this expression usually insinuates, but on the contrary, in the sense of maleness and patriarchy: formal justice is, in contrast to material justice, a natural tendency of males in conflict resolution. It is a specifically male sense of justice, for it requires a higher degree of intellectual autonomy, stability of will and, due to abstraction, a higher capacity for detachment from sentimentality.25 As for intellectuality, the jurisconsults’ basic attitude in elaborating positive Roman Law was to grasp and to describe the reality of law systematically and thus conceptually, rather than, on the one hand, to express somatopsychic moral feelings, or on the other hand to make a new social construction for the political guidance of citizens in future cases toward some concrete political aim.26 For example, although Justinian’s Corpus had the specific political purpose of making of the Emperor the only source of the law and thus empowering Rome by reducing the flexibility within Roman casuistry,27 from the point of view of its content it was still not a political project working towards a substantial ideal of society; it was not preeminently a governmental statute consubstantiating the will of the sovereign or of the people, but a great compilation of hundreds of years old Roman practice.28 Conferring enhanced force to formal justice in conflict resolution was the specific element

24 25

26

27 28

the transaction. The purpose must embrace all those who fall under it; the immediate link between plaintiff and defendant is irrelevant. Since a transaction does not realize a collective goal, there is no necessary reason that the scope of the transaction should be coextensive with the operation of any purpose”, ibid., at 993. Oswald Spengler, Der Untergang des Abendlandes: Umrisse einer Morphologie der Weltgeschichte, vol. 2, 3rd ed. (Munich: Deutscher Taschenbuch-Verlag, 1972, reprint of the edition 1923), at 625. According to an analysis by Simmel, Zur Philosophie der Geschlechter (n. 14), at 84–85. See also Julius Evola, Metafisica del sesso, 2nd ed. (Rome: Edizione Mediterranee, 1976), at 222–223, and Evola, Rivolta contro il mondo moderno (n. 15), at 57–64. For a great amount of empirical data about biological sex differences and their influence on behavior and culture, see Steven Pinker, The Blank Slate. The Modern Denial of Human Nature (London: Penguin, 2002), at 343–348. “Nun ist aber bekanntlich gerade auf dem Gebiet des politischen Rechts das eigentliche Gesetz erst eine verhältnismäßig späte Erscheinung. Ursprünglich wird das Recht gefunden, nicht gesetzt. Die Frage, woher denn dies Recht bzw. Unrecht stammt, wird überhaupt nicht gestellt. … Auch auf der darauf folgenden Stufe der ersten Kodifikationen handelt es sich meist um eine Rechtssammlung, nicht um eine Neuschaffung des Rechts. So ist der Gesetzgeber ursprünglich nicht der Gesetzesschöpfer sondern der Übergbringer, ‚Geber‘, ‚Träger‘ des Gesetzes (cf. legem ferre, legislator, nicht: legem facere, ponere, constituere)”, Herbert Spiegelberg, Gesetz und Sittengesetz. Strukturanalytische und historische Vorstudien zu einer gesetzesfreien Ethik (Zürich et. al.: Max Niehans, 1935), at 264. Antonio Santos Justo, Direito privado romano I: Parte geral, 6th ed. (Coimbra: Coimbra Editora, 2017), at 77; Spengler, Der Untergang des Abendlandes (n. 24), at 630. Johann Jakob Bachofen, Politische Betrachtungen über das Staatsleben des römischen Volkes (1848/50), in: Gesammelte Werke, vol. 1 (Basel: Benno Schwabe & Co., 1943), 25–62, at 30–31. Although Justinian’s Institutes were an attempt at centralization of law-making in the person of the Emperor, they were at the same time a great compilation of already practiced law that, from the point of view of its content, had been valid for a long time. See Santos Justo, Direito privado romano I (n. 27), at 77–78.

24

André Ferreira Leite de Paula

that distinguished law as a normative order from other kinds of behaviors and norms, especially from morality, governmental politics, and from religions (most of which were for a long time generally tolerated by the Roman state). Roman law developed a sense for specific legal criteria that are connected with, but not reducible to moral, political, or religious ones,29 for example the idea that the recipient of a mistaken payment has a legal obligation to relinquish the benefit,30 since nemo cum alterius detrimento locupletari potest. Roman law developed contents of a specifically legal justice31 which were distinct both from moral customs, from immediate top-down governmental directives for a specific political project, and from specifically religious conceptions of holiness and divinity. From the ancient periods of systematizations of Roman law until English Common law and the systematizations of German Rationalism (e. g. by Samuel Pufendorf, Christian Wolff, and Hans Meier), jurisprudence as a systematic reflection about legal practice was not primarily concerned with transforming the sovereign’s will into a legal form in order to govern the people, but, as previously stated, was concerned with the search for just standards of conflict resolution on the basis of the nature or form of legal institutes. Since the time of the Roman Empire and until around the seventeenth century in Europe, jurisprudence adopted an essentialist way of thinking and consisted basically in the elaboration and compilation of legal topoi.32 Efforts of systematization were not overwhelmingly thought of as forward-oriented constructions of a new legal order, but as a cognitively necessary organization of the highly accumulated amount of legal matters, especially after the decay and ‘renaissance’ of Roman law. Glossators were proud of the heritage of a great period of highly regarded Roman jurisconsults who had intellectual access to the contents of formal justice. The lessons from Justinian’s Corpus have not been accepted merely ad auctoritas, since the content was not thought 29 “C’est à Rome seulement que le travail d’ordonnancement inévitablement présent dans toute communauté fut très tôt réservé, et de façon rigoureuse, à un grupe de spécialistes, puis se transforma en une technologie sociale au statut fort, qui, pour la première fois et pour toujours, allait isoler la fonction juridique et ses experts, les ‘juristes’ (un mot inconnu des langues anciennes, à l’exception du latin), la détachant de toute autre production culturelle ou centre institutionnel – de la religion, de la morale, de la politique même – pour en permettre une identification autonome, nette et définitive… La grande invention de la pensée romaine se révélait dans la capacité qu’elle avait eue d’associer dans um circuit unique la recherche d’um ordre juridique rigoreux et la découverte d’une métaphysique qui le justifiât d’un point de vue non pas étique ou de pouvoir, mais ontologique”, Schiavone, Ius. L’invention du droit en Occident (n. 21), at 14 and 280. See also Roland Maspetiol, ʻLe droit et la politique: deux visions partielles et fragmentaires d’une même réalité sociale’, Le Droit investi par la politique, Archives de Philosophie du Droit, 16 (1971), 37–62, at 43–44, and Michel Villey, Le droit et les droits de l‘homme, 2nd ed. (Paris: Presses Universitaires de France, 2014), at 33–35. 30 This is an example of a rule with a “specific juridical significance” according to Weinrib, ʻLegal Formalism: On the Immanent Rationality of Law’ (n. 23), at 979. 31 According to Joaquim Carlos Salgado, “A consciência jurídica romana formulou o conceito de justiça jurídica e, ao identificar direito e justiça, pôs o político a serviço da pessoa de direito, concebendo o direito como maximum ético. Para os gregos a justiça é assunto da ética, ao passo que para os romanos (o que Kelsen parece não ter percebido) é tema do direito; o conceito de justiça é jurídico”, Salgado, A Idéia de Justiça no Mundo Contemporâneo (n. 16), at 4. 32 See Jan Schröder, Recht als Wissenschaft: Geschichte der juristischen Methodenlehre in der Neuzeit (1500– 1933), 2nd ed. (Munich: Beck, 2012), at 10.

On the Unities of Law, Practical Reason, and Right

25

of as being right just because it was stated by a jurisconsult, but because of its inherent truth and justice whose discovery demanded the wisdom and erudition of a great jurist. In other words, contrarily to modern interpretations of legal thinking in the so-called Middle Ages, the content of the readopted Roman law was not justified as being right on the basis of the will or the greater legitimacy of the old Empire’s authorities for the guidance of actual legal practice, but due to the inherent properties of the contents of justice achieved by them. The essentialist jurisprudence maintained the relatedness to nature as essence and preserved a discoverer’s attitude towards law as something that must be found rather than created for purposes that go beyond the just solution of concrete cases. III. The Voluntarist Turn from Essence to Emergence Essentialist jurisprudence began to be abandoned after the rise of voluntarism. Voluntarism is the view that the reality of all or at least certain kinds of objects is determined by will, be it the will of God, as in the first centuries of voluntarism, or the will of men. Voluntarism was the basis of Duns Scotus’ philosophy and of William of Ockham’s nominalism and legal positivism.33 It provoked a decisive rupture with Greek essentialist philosophy that dominated philosophical and legal thinking in Europe until the thirteenth century. The change of the philosophical background from essentialism to voluntarism is important, because it led to a fundamental change in the patterns of justification and critique. In times of essentialist jurisprudence, there is no special incentive to explain causes of law empirically, besides justifying the justice of a legal decision or of telling the law’s history within mythology, poetry, and religion. Indeed, essentialism per se does not provide any special reason to investigate the empirical reality that influences the emergence of legal and moral beliefs, since essences are not spatial-temporal and are therefore not created by the will of an individual or influenced by empirical factors of the environment.34 For example, essentialist jurisprudence may be interested in what is 33 See Michel Villey, La formation de la pensée juridique moderne, 2nd ed. (Paris: Presses Universitaires de France, 2013), at 202–268. According to Louis Dumont, “on ne peut pas supposer qu’Occam ait directement influencé le développement moderne du droit, car ses écrits juridiques ne semblet pas avoir été largement connus. Toute son œvre pourtant est hautement significative. Parler de nominalisme d’une part, de l’autre de positivisme et de subjectivisme juridiques, c’est tout simplement marquer la naissance de l’individu dans la philosophie et dans le droit. Lorsqu’il n’y a plus rien d’ontologiquement réel au-déla de l’être particulier, lorsque la notion de ‘droit’ s’attache, non à um ordre naturel et social, mais à l’être humain particulier, cet être humain particulier devient um individu au sens moderne du terme”, Louis Dumont, Essais sur l’individualisme: Une perspective anthropologique sur l’idéologie moderne (Éditions du Seuil, 1983), at 87–88. 34 As Leibniz stated, “je demeure d’accord que la consideration de ces formes ne sert de rien dans le detail de la physique, et ne doit point estre employée à explication des phenomenes em particuliers. Et c’est em quoy nos scholastiques ont manqué, et les Medecins du temps passé à leur exemple, croyant de rendre raison des proprietés des corps, em faisant mention des formes et des qualités, sans se mettre em peine d’examiner la maniere de l’operation, comme si on se vouloit contenter de dire qu’une horloge a la qualité horodictique provenante de as forme, sans considerer em quoy tout cela consiste”, G. W. Leibniz, Discours

26

André Ferreira Leite de Paula

property, in how it relates to other legal forms and why it should be observed, but not in empirical research about which were the empirical factors from the environment, from human biology, or culture that led many peoples to ‘believe’ in property. Furthermore, according to many philosophies of the essentialist era of Christian natural law, God himself is submitted to ‘natural kinds’ or essences and to the reason of nature.35 Accordingly, the basic pattern of justification of truth and of normative judgments within essentialism is the conformity of the belief to nature (i. e. the thing’s quiditatis) as conformity to essence, and, consequently, the basic pattern of critique of an individual’s belief was that it does not correspond to the real nature of the thing. Thus, the discovery of atemporal causes or essential properties of concepts and norms was a major philosophical concern. Conversely, within voluntarism the character of something as something (e. g. of a horse as a horse, i. e. ‘as such’, of a horse as an animal or a horse as someone’s property), as being the instantiation of a universal or concept, is determined by will, since concepts are believed to be only in mens (in the mind). The very change in predominantly practiced vocabulary in the fourteenth century from ‘ideas’ or ‘essences’ towards ‘concepts’ was already an anthropomorphism, an approximation of ontology to human psyche and thus to epistemology.36 According to Ockham, the scope of natural sciences was not even the study of natural things themselves and of natural causality, but of intentiones (intentions) of men about natural things and about natural causality.37 The consequence of voluntarism for law is that in order to know what law is in general, or whether some particular behavior or decision is in accordance with the law, the correct method is not de Métaphysique, 2nd ed. (Paris: Libraire Philosophique J. Vrin, 1952), at § 6, p. 38–39. See also Thomasius: “quod Doctori juris naturalis non necessaria sit genuina doctrina de origine generis humani, quia hominibus hodiernis norma praescribenda est. Medicus vero in cura applicanda corpori aegroto, non inquirit in primam originem aegroti aut inconstitutionem corporis, qua praeditus suerit primus familiae stipes”, Thomasius, Fundamenta juris naturae et gentium ex sensu communi deducta, in quibus ubique secernuntur principia honesti, justi ac decori, cum adjuncta emendatione ad ista fundamenta institutionum jurisprudentiae divinae (Aalen: Scientia Verlag, 1979, reprint of the 4th edition of Halle 1718), at §XIV. 35 See Villey, La formation de la pensée juridique moderne (n. 33), at 205–206. 36 See Max Horkheimer’s criticism of the formalization of reason in modernity: “concepts have been reduced to summaries of the characteristics that several specimens have in common. By denoting a similarity, concepts eliminate the bother of enumerating qualities and thus serve better to organize the material of knowledge. They are thought of as mere abbreviations of the items to which they refer. Any use transcending auxiliary, technical summarization of factual data has been eliminated as a last trace of superstition. Concepts have become ‘streamlined,’ rationalized, labor-saving devices. It is as if thinking itself had been reduced to the level of industrial processes, subjected to a close schedule – in short, made part and parcel of production”, Max Horkheimer, Eclipse of Reason (London: Continuum, 2004), at 15. 37 “Nunc autem ita est, quod complexa, quae sciuntur per scientiam naturalem, non componuntur ex rebus sensibilibis nec ex substantiis, sed componuntur ex intentionibus seu conceptibus animae communibus talibus rebus. Et ideo proprie loquendo scientia naturalis non est de rebus corruptibilibus et generabilibus nec de substantiis naturalibus nec de rebus mobilius, quia tales res in nulla conclusione scita per scientiam naturalem subiiciuntur vel praedicantur. Sed proprie loquendo scientia naturalis est de intentionibus animae communibus talibus rebus et supponentibus praecise pro talibus rebus in multis propositionibus, quamvis in aliquibus propositionibus, sicut in prosequendo patebit, supponant tales conceptus pro seipsis”, William of Ockham, Physikkommentar, in: Texte zur Theorie der Erkenntnis und der Wissenschaft. Lateinisch/Deutsch, ed. and trans. Ruedi Imbach (Stuttgart: Reclam, 1984), at 30. “Ad primum istorum dicendum est, quod scientia realis non est de rebus, sed est de intentionibus supponentibus pro rebus, quia termini propositionum scitarum supponunt pro rebus”, ibid., at 33.

On the Unities of Law, Practical Reason, and Right

27

to try to discover the essential properties or the nature of the legal norms and institutes that these behaviors or decisions are supposed to correspond or not correspond to, but to investigate from what source the norms arise. Depending on the issue, this is God’s, the sovereign’s, the people’s or the individual’s will, and hence the correct method is to investigate what source or will is the one that is entitled to provide directives for the behaviors in question.38 Accordingly, the basic pattern of criticism within voluntarism consists in showing that a claim does not arise from the correct source or legitimate will. Metaphysically speaking, the focus of philosophy and jurisprudence was shifted from atemporal causes (or reasons) that explain from an essentialistic perspective what law is, towards spatial-temporal causes that explain how law comes about. The reasoning pattern of essence was substituted by emergence. The view that essences and ideas are concepts and that concepts and norms can ultimately only emerge from an individual’s will led to a voluntarist comprehension of law, morality, politics, and religion. The first major political consequence of the detachment from essentialism was the comprehension of the state and its institutions as having legitimacy in the will of the sovereign, which was in many cases understood as being in accordance with the will of God. The voluntarist comprehension of the political community evolved, passing through contractualism,39 which reinterpreted the sovereign whose will is decisive as being the people, the only legitimate source of regulations and exercise of power. The legal topos of the ‘will of the legislator’, a “postulation of the moral integrity and rationality of the legislator as a creator of means”,40 be the legislator a king or a people, lies in voluntarist assumptions. The democracy installed in late modernity is also an inherently voluntarist form of government, since the justice of norms is not justified with recourse to the good in itself or to the essential truth of a political view, but by having its spatial-temporal origin in the will of the people, whether the people are a collective entity or the mere sum of individuals, whether their will is empirically accessible by polls and elections, guided and corrected by a political elite, or idealized (and, thus, falsified) by an intellectual elite. More precisely, democracy (in itself, thus 38 See the very representative and influential example of Duns Scotus’ philosophy in the middle ages: “La meurtre, le vol, l’adultère sont des péchés selon Duns Scot parce que Dieu l’a voulu ainsi (mala quia prohibita); ils ne sont pas proscrits parce que mauvais (prohibita quia mala), comme c’était le cas au contraire dans la doctrine de saint Thomas”, Villey, La formation de la pensée juridique moderne (n. 33), at 210. 39 See, for example, Immanuel Kant’s voluntarism according to which the ‘original contract’ was the ‘idea of reason’ that all legislators should make laws as if they could have emanated from the unified will of the people: “… bloße Idee der Vernunft, die aber ihre unbezweifelte (praktische) Realität hat: nämlich jeden Gesetzgeber so zu verbinden, daß er seine Gesetze so gebe, als sie aus dem vereinigten Willen eines ganzen Volks haben entspringen k ö n n e n, und jeden Untertan, so fern er Bürger sein will, so anzusehen, als ob er zu einem solchen Willen mit zusammen gestimmet habe. Denn das ist der Probierstein der Rechtmäßigkeit eines jeden öffentlichen Gesetzes”, Immanuel Kant, Über den Gemeinspruch: das mag in ther Theorie richtig sein, taugt aner nicht für die Praxis (1793), in: Schriften zur Anthropologie, Geschichtsphilosophie, Politik und Pädagogik (Darmstadt: Wissenschaftliche Buchgesellschaft, 1964), 125–172, at 153. The idea of contractualism was already a consequence of William of Ockhams nominalism and was implicitly present in his political philosophy. See Villey, La formation de la pensée juridique moderne (n. 33), at 240. 40 Csaba Varga, Reflections on law and on its inner morality, in: Law and Philosophy. Selected Papers in Legal Theory (Budapest: Faculty of Lórand Eötvös University, 1994), 77–89, at 77.

28

André Ferreira Leite de Paula

ancient and modern and both πολιτικά and δημοκρατία) is ultimately grounded on the explicit or implicit assumptions that (1) there is no objective common good (ontological premise41); (2) if there is an objective good, it cannot be known with certainty by any isolated individual or group, but only by the people (epistemological premise); and (3) even if there is a good that can be known with certainty by an individual or group, it would not be right to enforce it against the will of the people (pragmatic premise). If these premises are not the fundament and practice of a political regime, it is not a democratic regime.42 Similarly, political liberalism also is inherently voluntarist and is based explicitly or implicitly, but ultimately on the premises that (1) there is no objective good for an individual (ontological premise); (2) if there is an objective good for individuals, only the respective individual could know it (epistemological premise); and (3) if there is an objective good for the individual that could be known by somebody else, it would not be right to enforce it against the individual’s will (pragmatic premise). If a political regime does not endorse and apply these premises, it is not a liberal regime. Of course, democracy and liberalism are irremediably opposed in practice, since for every important political question whose regulation affects the life of all or most individuals in a community, either the will of an individual who eventually opposes the majority or the will of the majority should and will prevail;43 individual rights are a limitation of the power of the majority, majority rights are against the will of dissenting individuals. A consistent combination of liberalism and democracy, a “demoliberal”44 mixture or ‘liberal democracy’, is, in spite of the common use of the latter expression, absolutely 41 This is not only a premise of the field of ethics, but also of ontology because it is the negation of the contrary theses, which would consist in saying that there is an objective good, whereas there-is questions (and, by extension, there-is-not questions) are ontological. 42 This is especially important to recognize in order to avoid the hypostatization of the concept of democracy, which would occur if democracy is not interpreted as the government of the people based on its real will, but ‘substantially’, for example as the implementation of the set of conditions under which the citizens would have the possibility of active participation in the shaping of the political decisions of a community. The implementation of conditions such as public education, income redistribution and public benefits, and the choice of governants who accomplish this as a means for enlightened public deliberation, are not necessarily democratic measures. They are, rather, especially undemocratic if they violate the actual will of the people by substituting what the people really want now (e. g. according to polls) by an idealized or corrected will, by a preparation of the people for future enlightened deliberation, by something that the majority of the population should want if it were educated and rational enough according to the standards settled by an educated elite. A hypostatization of the idea of democracy occurs also when democracy is defined as a ‘compromise’ between majority and minority (see for example Hans Kelsen, The Essence and Value of Democracy (transl. Brian Graf, New York etc.: Rowman & Littlefield Publishers, 2013), at 69–76, who considered minority protection essential for ‘democracy’). In this case, conceptual clarity and intellectual honesty require, on the contrary, that protection of minorities and defense of other values against the will of the majority should be seen as undemocratic measures. 43 See Carl Schmitt, Der Begriff des Politischen: Mit einer Rede über das Zeitalter der Neutralisierungen und Entpolitisierungen (Munich: Duncker & Humblot, 1932), at 56. See also the example of the tension between positive and negative liberty: “(…) negative and positive liberty are not the same thing. Both are ends in themselves. These ends may clash irreconcilably. When this happens, questions of choice and preference inevitably arise. Should democracy in a given situation be promoted at the expense of individual freedom? …”, Isaiah Berlin, Liberty (Oxford: Oxford UP, 1969), at 42. 44 Radbruch, Rechtsphilosophie (n. 17), § 8, p. 68. For many contrasts between liberalism and democracy see ibid., § 8.

On the Unities of Law, Practical Reason, and Right

29

impossible under conditions of real disagreement about important questions of political life. In every particular contentious issue, either the majority’s or the individual’s will should and will prevail. From this it is clear that democracy and political liberalism share voluntarism as a common metaphysical45 fundament. The contrast with non-voluntarist (or non-decisionist) political thought is evident: if there is a common good that is accessible intellectually by one (a monarch) or a few (the aristocracy), the indirect via of democratic procedures of decision-making and convincement of the people or even of masses are not necessary, they are rather dysfunctional for the realization of the common good. On the basis of nihilistic ontological premises (negation of the existence of the good in itself) and relativistic epistemological premises (negation of the possibility of knowing the good), democracy and liberalism are political constructions that aim at the substitution of the good by legitimacy. Indeed, the basic justification pattern within voluntarism consists in the legitimation of the normative belief, i. e. in showing that it has the correct origin (in democracy: the people’s will; in liberalism: the individual’s will; in some versions of legal positivism: the legislator’s will; in theological voluntarism: God’s will). Accordingly, if a community or a philosophical system adopts voluntarism as its basic metaphysical world view, as is the case in Western philosophy and societies after the voluntarist turn in the fourteenth century, the basic form of critique starts to be delegitimation, i. e. challenging the origin of the normative claim. Instead of saying that someone’s claim on a certain normative issue is not a good solution due to some reasons, it is argued that it does not correspond to the (real or idealized) will of the people or is not or could not be accepted by the individuals involved, i. e. it did not or could not arise from their will. In any case, the content itself of what is being justified or criticized is not essential, i. e. it is neither important in the first place for the sake of legitimacy nor given by the nature of the good.

45 All political ideologies rest ultimately on metaphysical views about reality and human nature. According to Maxence Hecquard, “aucune théorie politique, aucune idéologie n’est indépendante d’une philosophie de lêtre ou du moin d’une philosophie de l’homme. En effet dans la mesure où il y a théorie, il y a quelque part universalité, c’est-à-dire vision globale, vision du globe. Cette vision de l’humanité en tant que groupe d’hommes ne peut être indépendante de celle de l’humanité en tant qu’essence. … ”, Hecquard, Les fondements philosophiques de la démocratie moderne (n. 11), at 81. For voluntarism as a hidden premise of liberal law, see Heinrich Honsell and Theo Mayer-Maly, Rechtswissenschaft. Die Grundlagen des Rechts, 7th ed. (Baden-Baden: Nomos, 2018), at 197. The normative fundament of political liberalism corresponds to the ethics of individual voluntarism, which states that the interference of one individual’s will in another individual’s will is unjust. About the fundaments of individualist volutarist ethics, see Schopenhauer’s explanation: “Der Wille des ersten [Individuums] bricht in die Grenze der fremden Willensbejahung ein, indem das Individuum entweder den femden Leib selbst zerstört oder verletzt, oder aber auch, indem es die Kräfte jenes fremden Leibes seinem Willen zu dienen zwingt, statt dem in jenem fremden Leibe erscheinenden Willen die Kräfte dieses Leibes entzieht und dadurch die seinem Willen dienende Kraft über die seines eigenen Leibes hinaus vermehrt, folglich seinen eigenen Willen über seinen eigenen Leib hinaus bejaht, mittels Verneinung des in einem fremden Leibe erscheinenden Willens. – Dieser Einbruch in die Grenze fremder Willensbejahung ist von jeher deutlich erkannt und der Begriff desselben durch das Wort Unrecht bezeichnet worden”, Arthur Schopenhauer, Die Welt als Wille und Vorstellung (according to the 3rd ed. 1859, Hamburg: Nikol Verlag, 2014), 4th book, § 62, p. 337.

30

André Ferreira Leite de Paula

The idea that law can only have origin in the will was widespread after Scotus’ and Ockham’s fundamental voluntarist turn. For William Blackstone, for example, laws in general are rules of action for both nature and humans, and are necessarily prescribed by some superior being.46 Even laws of nature must be, according to him, artifacts of the will of the creator.47 In Jean Bodin’s political theory, law was understood to be the expression of the sovereign’s will.48 The Kantian ethics of the categorical imperative is also an important example of a voluntarist philosophy, since law is comprehended to be the set of conditions under which the many individuals’ wills (Willkür) can be compatibilized,49 thereby detaching the very concept of law from the essence of the good. In another vein, but still conforming with voluntarism, Hegel held that law is will or, more precisely, the Dasein of free will.50 For Arthur Schopenhauer, the whole world is will and representation, i. e. according to him, will is the most basic element of ontology.51 As for Central Europe in general, Schröder identifies strong voluntarist tendencies in jurisprudence around 1850 in the works of Bierling, Hölder, and Dernburg.52 The very focus of jurisprudence on norms (instead of focusing on legal concepts, institutions, or legal facts) is already a consequence of voluntarism if norms are comprehended to be the meaning of an individual’s will.53 In the nineteenth century, the detachment from the pre-existing essence of legal institutes by introducing will as the basic metaphysical principle was so profoundly present that legally regulated subjects and even social relations as such were often seen as not having any kind of existence before a legal regulation created them. For example, by means of the concept of imputation, the notion of person, which actually goes far beyond its mere explicit positivation within a legal order, 46 William Blackstone, Commentaries on the Laws of England (Chicago: Univ. of Chicago Press, 1996), at 38–39. 47 Ibid., at 39. 48 “Jean Bodin est l’annonciateur des temps nouveaux en liant souveraineté et pouvoir de ‘faire loix’ dans ses célèbres Six livres de la République (1576). Le pouvoir d’établir ou de casser la loi ‘est la première marque du prince souverain; toutes les autres marques de souveraineté sont comprises dans celle-ci; … la loi n’est autre chose que le commandement du souverain usant de sa puissance’. … Dans le transfert qui s’institue entre un régiume d’indépendence réciproque du droit et du politique et un système de dépendance du droit à l’egard du politique qui en arrive à s’arroguer le quasi monopole de la création de l’ordre juridique, le XVIIe siècle a une importance considérable, Il justifie idéologiquement cette mutation qui, lorsqu’elle s’était produite dans le passé, n’était qu’un simple fait ou un abus de la force”, Maspetiol, ʻLe droit et la politique: deux visions partielles et fragmentaires d‘une même réalité sociale’ (n. 29), at 46–47. About the effects of Jean Bodin’s voluntarism for law and state, see also Thomas Vesting, Rechtstheorie. Ein Studienbuch (Munich: Beck, 2007), marginal note 172. 49 Immanuel Kant, Metaphysik der Sitten, Rechtslehre (1797): in: Werke in sechs Bänden (Darmstadt: Wissenschaftliche Buchgesellschaft, 1963), at 337, A33. See also Otfried Höffe, Immanuel Kant, 2nd ed. (Munich: Beck, 1988), at 213–214, 217–218. 50 Georg Wilhelm Friedrich Hegel, Grundlinien der Philosophie des Rechts, 4th ed. (Hamburg: Meiner, 1955), at § 28. 51 Schopenhauer, Die Welt als Wille und Vorstellung (n. 45), vol. 1, § 1, p. 33. 52 Schröder, Recht als Wissenschaft (n. 32), at 282. See also Rudolf Stammler, Theorie der Rechtswissenschaft, 2nd ed. (Halle: Scientia Verlag Aalen, 1970, reprint of the edition 1923), at 42–69. 53 Schröder, Recht als Wissenschaft (n. 32), at 282. According to Hans Kelsen’s voluntarist legal philosophy, for example, norms are the ‘objective meaning’ of a will. See Hans Kelsen, Reine Rechtslehre, 2nd ed. (Vienna: Verlag Österreich, 1960, reprint 2000), at 10.

On the Unities of Law, Practical Reason, and Right

31

was substituted within liberal codifications in Continental Europe as in Spain by the notion of individuals being defined as a ‘center of normative imputations’, i. e. as a legally constructed entity that unifies the plurality of rights and duties.54 The consequence was that the very individuals who participated in a normative practice were no longer seen as a pre-existing reason for positive law’s regulations, but were themselves the very product of positive law.55 Later, at the end of nineteenth and the beginning of the twentieth century, voluntarism was radically adopted within many self-described ‘pure theories’ of law, including both neo-Kantian pure theories of Rudolf Stammler and Hans Kelsen. Within voluntarism in general, as we have seen, universals are only in mens, not in re or in seipsa. Accordingly, Kelsen’s voluntarism states that legal norms are schemes of interpretation (Deutungschemata), schemes of attribution or imputation (Zurechnung) of meaning to ‘brute facts’ of the world, such as the act of killing someone, which can be naturalistically described as ‘A has killed B’ or, legally, as ‘A has committed homicide against B’; likewise, the rough fact that ‘people gather in a room’ can receive the meaning of a ‘session of a parliament’ by means of imputation.56 Therefore, the fact that some action is a homicide is, for Kelsen’s neo-Kantianism, not an essential property of the action, but a schematically constructed meaning that begins to be the case by means of a will in this sense. Thus, whether an action is an homicide does not depend on it being a correct medical or biological description of someone’s death and the action of others as its cause; it does not depend on it being an instantiation of a natural kind or of a legal statute that states the conditions of the crime of homicide, but on someone’s will, normally on the will of the legal official who applies the law. In general, for Kelsen all ought is originated not in practical reason, but in someone’s will.57 IV. Genealogy The voluntarist turn inaugurated the trend of genealogical inquiry. It brought the will into the agenda of philosophy and discovered the principle that not only material things and events such as a storm or a corporal disease have spatial-temporal causes, but that universalia in mens, concepts, men’s beliefs, and hence, institutions and norms are also susceptible to this kind of causation. If, according to voluntarism, universals exist only in the mind, and law, due to its abstraction and generality, is a universal, law exists only in the mind. If universals have a spatial-temporal cause in the will, so does law. This huge finding of the causative effects of external factors on the mind provoked the suspicion that there might also be, beyond will, other factors that also cause the appearance of 54 According to a study by José Antonio Doral and Miguel Pasquau Liaño, ʻUnidad y pluralidad en el derecho civil’, Metodologias y derecho privado. Anales de la catedra Francisco Suarez, 1982/22 (1982), at 15. 55 Ibid., at 15. 56 This is the difference between external event (“äußerer Vorgang”) and internal meaning (“rechtliche Bedeutung”) in Kelsen’s Pure Theory of Law. See Kelsen, Reine Rechtslehre (n. 53), at 1–2. 57 According to Kelsen, Sollen is “der Sinn, den gewisse menschliche Akte haben, die intentional auf das Verhalten anderer gerichtet sind”, ibid., at 4. See also ibid., at 18.

32

André Ferreira Leite de Paula

these entities in the minds of the people. After the dissemination of the idea of causative effects on universals in the mind, the climate of the nineteenth century was characterized both by (1) a profound suspicion that all our beliefs and reasons about normative issues such as law and morality would be only apparently true,58 and correspondingly by (2) a search for the more basic empirical reality that causes the appearance of ideas and the impression that normative beliefs and reasons for action could be true. Genealogical inquiries do not aim primarily to justify actions or decisions, but aim to criticize those who act and decide by means of revealing causes of their actions which they are not aware of, and hence challenging their reasons for action by means of delegitimation, i. e. by means of indicating that the real origins of one’s normative beliefs and actions are not what one has rationally considered or are not any objective good, but something that is beyond the sphere of rational apprehension of the individual and that does not justify the belief. These factors can be, for example, sentiments, anthropological needs, brain processes, psychological properties, or economic class. All these are normally causes, but not justifications of beliefs. If they provide the correct explanation of why someone considers something to be true or right, the truth or rightness of the claim seem to be undermined. Thus, a typical genealogical critique challenges actions and their reasons not by means of showing their falsehood directly (which is rather presupposed by the critique), and hence not by showing affirmatively what is true instead of that, but by means of indicating their causes that are not, at the same time, justifications and, hence, are not part of the set of beliefs that is argued by the criticized person in order to justify his action.59 In its strongest form, “genealogical explanations concern the relations between the act or state of believing and the content that is believed. A genealogy explains the advent of a belief, in the sense of a believing, an attitude, in terms of contingencies of its etiology, appealing exclusively to facts that are not evidence, that do not provide reasons or justifications, for the truth of what is believed.”60 In other words, genealogy 58 “For one can take it that what the genealogists dug down to is not just causes distorting our reasons, but causes masquerading as reasons … Genealogy in its most radical form seeks to dispel the illusion of reason”, Robert Brandom, ʻReason, Genealogy, and the Hermeneutics of Magnanimity’, available at http:// www.pitt.edu/~brandom/downloads/RGHM%20%2012-11-21%20a.docx (last visited 11 July 2018), at 3. See also Carl Schmitt, Politische Romantik, 6th ed. (Berlin: Duncker & Humblot, 1998), at 19 and Herbert Schnädelbach, Vernunft (Stuttgart: Reclam, 2007), at 111–116. 59 “Das Argumentieren hinter dem Rücken und durch den Kopf des Gegners hat in der modernen Kritik Schule gemacht. Die Geste der Entlarvung prägt den Argumentationsstil der Ideologiekritik – von der Religionskritik im 18. Jahrhundert bis zur Faschismuskritik im 20. Jahrhundert. Überall entdeckt man außerrationale Mechanismen des Meinens: Interessen, Leidenschaften, Fixierungen, Illusionen. … De facto bedeutet Ideologiekritik den Versuch, eine Hierarchie zwischen entlarvender und entlarvter Theorie aufzubauen; es geht im Bewußtseinskrieg um die obere Position, das heißt die Synthese von Machtansprüchen und besseren Einsichten”, Peter Sloterdijk, Kritik der zynischen Vernunft, 1st ed. (Frankfurt am Main: Suhrkamp, 1983), at 58. 60 Brandom, Reason, Genealogy, and the Hermeneutics of Magnanimity (n. 58), at 4. Further: “In this sense, when it occurs to the young person that he is a Baptist because his parents and everyone they know are Baptists, and that had he been born into a different community he would have with equal conviction held Muslim or Buddhist beliefs, that is a genealogical realization. As is evident already in this mundane example, the availability of a genealogical explanation for a constellation of beliefs can have the effect of undercutting its credentials as something to which one is rationally entitled. The genealogy asserts coun-

On the Unities of Law, Practical Reason, and Right

33

is an analysis (mostly frequent a criticism) on the basis of causal explanations ‘behind the backs’ of the knowing subject.61 It is a “way of attacking the objectivity of ethics” by suggesting “that an understanding of the origins of our moral judgments casts doubt on their reliability.”62 The widespread suspicion that normative beliefs are caused by factors that do not justify them led the Western philosophy of the nineteenth century to develop extremely realist positions about these factors. The genealogical attitude produced the new genre of struggle ontology (“Kampfontologie”63). Struggle ontology was the basis of skepticism about the capabilities of human reason within romanticism,64 and consisted in the disclosure of the allegedly more basic part of reality that causes political, religious, or moral beliefs, but do not justify them. The Western thinking of the nineteenth and early twentieth century was very insightful in finding such factors. For example, despite Hegel’s essentialism and optimism about the possibility of metaphysical truths, he too comprehended human institutions as being embedded in a history of (teleological) causes that shape them and that most individuals are not aware of.65 By comprehending individuals within time and submitted not only to an individual rational apparatus, but also to universal teleological reason and to the particularities of their local culture, Hegel’s philosophy had the practical historical effect of detranscendentalization of the individual subject.66 Another example of genealogy is given by the Hegelian Karl Marx,

61

62

63 64 65 66

terfactual or subjunctive conditionals linking the possession of certain beliefs (attitudes of believing) to contingent events whose occurrence does not provide evidence for what is believed. If the believer had not had a bourgeois upbringing, were not driven by resentment, or had not had that childhood trauma, she would not have the beliefs about the justice of labor markets, Christian ethics, or conspiracy theories that she does. None of those events, upon which, the genealogist asserts, the holding of the beliefs in question are counterfactually dependent, provide evidence for what is believed”, ibid., at 4. “Globalized genealogical arguments take a common form. They present causal etiologies of states and events of believing, thought of as episodes in the natural world, as rendering superfluous and irrelevant appeal to reasons that normatively entitle believers to the contents believed. The thought is that all the explanatory work can be done by causes, with no work left to be done by reasons”, ibid., at 5. “On the moderate understanding of genealogy, those causal factors shape the reasoning of those subject to them, operating behind their backs, so that their own thoughts and actions cannot be transparent to them”, ibid., at 3. A moderate understanding of genealogy in this sense can be seen in Foucault’s analysis of culture. He analyzes “comment se sont formées, au travers, en dépit ou avec l’appui de ces systèmes de contraintes, des séries de discours; quelle a été la norme spécifique de chacune, et quelles ont été leurs conditions d’apparition, de croissance, de variation”. See Michel Foucault, L’ ordre du discours. Leçon inaugurale au Collège de France pronocée le 2. décembre 1970, Reprod (Paris: Gallimard, 2003), at 62–63. Genealogy combines description and normativity. See Martin Saar, Genealogie als Kritik. Geschichte und Theorie des Subjekts nach Nietzsche und Foucault (Frankfurt am Main: Campus Verlag, 2007), at 312. Katarzyna de Lazari-Radek and Peter Singer, ʻThe Objectivity of Ethics and the Unity of Practical Reason’, Ethics, 2012/123, 1 (2012), 9–31, at 9. As the authors of this paper discuss, the problem of effect of non-justificatory origins of moral beliefs has been analyzed in the nineteenth century by the philosopher Henry Sidgwick. Peter Sloterdijk, Was geschah im 20. Jahrhundert?, 1st ed. (Berlin: Suhrkamp, 2016), at 108. According to Carl Schmitt’s analysis of political romanticism, its skeptical pattern of thought consisted in the idea that “die Wahrheit liegt nie in dem, was der einzelne Mensch begreift oder will, weil alles die Funktion einer außer ihm wirkenden Realität ist”, Schmitt, Politische Romantik (n. 58), at 117. See ibid., at 116–117. According to an analysis by Jürgen Habermas, Wahrheit und Rechtfertigung. Philosophische Aufsätze (Frankfurt am Main: Suhrkamp, 2004), at 186.

34

André Ferreira Leite de Paula

for whom economic material factors of society determined the political ideology of class.67 The genealogical element, i. e. the most basic reality, is thereby ‘matter’ (materialism) or, as a field, ‘economy’. Also in the nineteenth century, Ludwig Feuerbach identified the fact of projection of human desires into metaphysical beliefs,68 and thereby provided philosophy with one of the most common patterns of genealogical critique. Darwin’s theory of evolution has been interpreted to suggest that many moral beliefs have been shaped by the accidental way that human evolution occurred,69 and therefore are themselves accidental, that is, not necessary truths. Friedrich Nietzsche made the psychological diagnosis of the slave morality of Judaism and Christianity, which confers special attention and a comparably high moral status to the weak, ugly, oppressed and poor and implements in this way a pervasive inversion of the hierarchy of values of nobility and decay. According to him, slave morality (as does all morality) arises out of a battle of instincts against each other and does not express any moral facts70 – ‘instincts’ being, in this case, the basic element of reality that causes moral beliefs. Sigmund Freud, who continued the nineteenth century’s tendency in this regard, stressed the causal role of unconscious factors of the human psyche that influence individual and group consciousness.71 Oswald Spengler elaborated a sophisticated theory of cultural constructivism and identified the many particularistic cultural influences on morals and science, which resulted in claims such as that each civilization and culture not only has its own law and morality, but also its own natural science and mathematics.72 In any case, Marx, Nietzsche and Freud were “the great unmaskers of the nineteenth century.”73 What uni67 See Schmitt, Politische Romantik (n. 58), at 118. 68 According to Ludwig Feuerbach, the reason (Grund) of religion is the sentiment of dependence of men from nature. Although this sentiment is common to all animals, only humans have religion due to their capacity of bringing this dependence into consciousness. Thus, God would be a projection (Hineinlegung, in the original: hineinlegen) of men’s own spirit (Geist) and fantasy (Phantasie). See Ludwig Feuerbach, Das Wesen der Religion (1846), in: Werke in sechs Bänden, vol. 4 (Frankfurt am Main: Suhrkamp, 1975), at 81, 82, 87. 69 See a discussion on Henry Sidgwick’s defense against this kind of moral subjectivism in Lazari-Radek and Singer, ʻThe Objectivity of Ethics and the Unity of Practical Reason’ (n. 62). 70 Nietzsche, Jenseits von Gut und Böse (n. 6), 2nd part, § 36. 71 Discussion and critique of psychoanalitical realism as a kind of struggle ontology in Julius Evola, Gli uomini e le rovine, 3rd ed. (Rome: Giovanne Volpe, 1972), at 161–162. 72 Spengler, Der Untergang des Abendlandes (n. 24), at 439–440, 489, 493–495. 73 “The principal practitioners of the genre I am calling “genealogy” were the great unmaskers of the nineteenth century: Marx, Nietzsche, and Freud (closer to our own time, we might add Foucault). What they unmasked were the pretensions of reason. Kant had rigorously enforced the distinction between reasons and causes, criticizing Locke for producing “a mere physiology of the understanding,” rather than a proper epistemology, by running together issues of justification and causation. We must separate, he insisted, the quid juris, the question of right, from the quid facti, the question of fact. The first is a matter of the evidence for our beliefs, the second of their matter-of-factual origins”, Brandom, Reason, Genealogy, and the Hermeneutics of Magnanimity (n. 58), at 3. See also what Paul Ricœur called the ‘hermeneutics of suspicion’: “Three masters, seemingly mutually exclusive, dominate the school of suspicion: Marx, Nietzsche, and Freud. … the distinguishing characteristic of Marx, Freud, and Nietzsche is the general hypothesis concerning both the process of false consciousness and the method of deciphering. … The two go together, since the man of suspicion carries out in reverse the work of falsification of the man of guile. Freud entered the problem of false consciousness via the double road of dreams and neurotic symptoms; his working hypothesis has the same limits as his angle of attack, which was, as we shall state fully in the sequel, an economics of instincts. Marx attacks the problem of ideologies from within the limits of

On the Unities of Law, Practical Reason, and Right

35

fies all of the abovementioned philosophical positions is the fact that they identified causes that do not justify beliefs and were realistic in their establishment of a hierarchy between a lower-level and a higher-level ontology, whereas the higher level (normativity, moral beliefs, ideology) is ‘nothing-else-than’74 or an effect, symptom, illusion, expression, projection75, superstructure, or epiphenomenon of the lower level or basis (instincts, evolutionary pressures, unconsciousness, material economic relations, etc). This ‘flood of disclosure literature’76 was carried out with the explicit or implicit purpose of debunking established normative beliefs, which is why the term ‘struggle ontology’ is appropriate for their denomination. V. Legal Genealogy and Functionalism Accordingly, genealogy of law consists in the assumption that law and beliefs about law are spatial-temporally caused by something external to them, be it the biological nature of instincts, economic material relations, emotions (as in the meta-ethical “emotivism”77, a late kind of genealogy) or, according to neuroscience, processes in the human brain. Rudolf von Jhering’s famous sentence “Der Zweck ist der Schöpfer des ganzen Rechts”78 (‘the purpose is the creator of the whole law’) revealed that law exists thanks to and as a result of ‘real interests’ present in society and should be actively shaped accordingly.79 As for feelings, the German School of Free Law of Hermann Isay

74 75 76

77

78 79

economic alienation, now in the sense of political economy. Nietzsche, focusing on the problem of “value” – of evaluation and transvaluation – looks for the key to lying and masks on the side of the “force” and “weakness” of the will to power”, Paul Ricœur, Freud and Philosophy: An Essay on Interpretation (transl. by Denis Savage, New Haven: Yale UP, 1970), at 32, 34. Schmitt, Politische Romantik (n. 58), at 116. Projectivism (“Projektivismus”) in Ethics is frequently an ‘eliminative reductionism‘ in contrast to ‘identity reductionism’. See George Pavlakos, Rechtsontologie und praktische Vernunft (Baden-Baden: Nomos, 2008), at 48–49. Sloterdijk, Was geschah im 20. Jahrhundert? (n. 63), at 107. “Der jungrealistische Bruch im Denken des 19. Jahrhunderts artikuliert sich in einer Flut von Enthüllungsliteraturen. Die widmen sich der Aufgabe, den bisher verdrängten oder verborgenen Realitätsdimensionen einen gebührenden Platz in den Parlamenten des Wissens zu verschaffen”, ibid., at 107. “Emotivism is the doctrine that all evaluative judgments and more specifically all moral judgments are nothing but expressions of preference, expressions of attitude or feeling, insofar as they are moral or evaluative in character. … C. L. Stevenson, the single most important exponent of the theory, asserted that the sentence ‘this is good’ means roughly the same as ‘I approve of this; do so as well’, trying to capture by this equivalence both the function of the moral judgment as expressive of the speaker’s attitudes and the function of the moral judgment as designed to influence the hearer’s attitudes”, Alasdair MacIntyre, After Virtue: A Study in Moral Theory, 3rd ed. (Notre Dame, Indiana: University of Notre Dame Press, 2007), at 11–12. Thus, emotivism is a kind of expressivism. For a criticism on expressivism, see David Oderberg, Moral theory: A non-consequentialist approach (Oxford: Blackwell, 2000), at 23–27. Rudolf von Jhering, Der Zweck im Recht, 4th ed. (Leipzig: Breitkopf und Härtel, 1970), cover. Voluntarism had a sociological version in the works of Rudolf von Jhering according to Schröder, Recht als Wissenschaft (n. 32), at 284. Jhering also has analyzed history as a factor that determines the contents of legal systems. See Joachim Rückert, Autonomie des Rechts in rechtshistorischer Perspektive (Hannover: Juristische Studiengesellschaft, 1988), at 12.

36

André Ferreira Leite de Paula

and Hermann Kantorowicz stated that the ‘real causes’ of judicial decisions were not the syllogistic pattern of rational argumentation presented in the decisions, but personal motivations, instincts, and sentiments about the just (Rechtsgefühl), so that legal justification would be an a-posteriori rationalization of an actually irrational process of psychological decision-making.80 Later, some of the so-called American ‘legal realists’ made similar claims.81 Oswald Spengler detected implicit and deep political influences in the formation of legal orders, for example the prevalence of the political interests of the Patricians in early Roman law or the power relations in the Empire up to the time of Justinian’s Corpus.82 A late development of the idea of genealogy was also presented in the twentieth century when Hans-Georg Gadamer’s philosophical Hermeneutics was applied in law,83 which resulted in the idea that legal decision-makers and scholars have cultural ‘pre-conceptions’ that they were not always aware of, but which nevertheless influenced the contents of their theories and decisions for good and for worse, thus accounting for an inevitable amount of subjectivity in every descriptive and normative claim. Hermeneutic analyses of legal decision-making and theory-building were carried out in order to show that the contents of decision-making go far beyond the mere syllo80 Hermann Isay, Rechtsnorm und Entscheidung (Aalen: Scientia-Verl., 1970), at 60–62, 78, 146, 174–177. Katharina Gräfin von Schlieffen, Sachlichkeit, rhetorische Kunst der Juristen (Frankfurt am Main: Lang, 1990), at 22. 81 “‘American legal realism’ refers to an intellectual movement in the United States that coalesced around a group of law professors and lawyers in the 1920s and 1930s, including Karl Llewellyn, Jerome Frank, Felix Cohen, Herman Oliphant, Walter Wheeler Cook, Underhill Moore, Hessel Yntema, and Max Radin. These writers thought of themselves as taking a realistic look at how judges decide cases, at “what the courts … do in fact,” as Oliver Wendell Holmes, Jr. (a major intellectual forebear) put it. … How a judge responds to the facts of a particular case is determined by various psychological and sociological factors, both conscious and unconscious. The final decision, then, is the product not so much of “law” (which generally permits more than one outcome to be justified) but of these various psychosocial factors, ranging from the political ideology to the institutional role to the personality of the judge. Thus, the legacy of realism in both the practice and teaching of law consists of phenomena like these: lawyers now recognize that judges are infl uenced by more than legal rules; judges and lawyers openly consider the policy or political implications of legal rules and decisions; law texts now routinely consider the economic, political, and historical context of judicial decisions”, Brian Leiter, ʻAmerican Legal Realism’, in Dennis Patterson, ed., A Companion to Philosophy of Law and Legal Theory (Chichester: Blackwell, 2010), 249–266, at 249. Although the denomination ‘legal realist’ for non-cognitivist positions such as these is common in Legal Theory, it is misleading because often it is claimed that law as such, as an abstract entity capable of having causal effects, does not really exist. 82 Spengler, Der Untergang des Abendlandes (n. 24), at 629–634. 83 For some receptions of Gadamer’s hermeneutics in law, see Ronald Dworkin, Law’s Empire (Cambridge: Harvard University Press, 1986), at 62; Ricardo Henrique Carvalho Salgado, A Fundamentação da Ciência Hermenêutica em Kant (Belo Horizonte: Decálogo, 2008); U. Schroth, ʻJuristische und philosophische Hermeneutik’, in Gottfried Gabriel and Rolf Gröschner, eds., Subsumtion. Schlüsselbegriff der juristischen Methodenlehre (Tübingen: Mohr Siebeck, 2012), 129–147. Discussion about Gadamer’s influence in legal theory in Gaetano Carlizzi, ʻGustav Radbruch e le origini dell’ermeneutica giuridica contemporanea’, Persona y derecho, 64, 1 (2011), 83–119. Criticism of the reception of hermeneutics in law by Ulfrid Neumann, ʻNeuere Schriften zur Rechtsphilosophie und Rechtstheorie’, Philosophische Rundschau, 28 (1981), 189–216 and André Ferreira Leite de Paula, ʻHerausforderungen rechtlicher Begründungstätigkeit unter den Bedingungen skeptischer Epistemologie’, in Markus Abraham, Till Zimmermann and Sabrina Zucca-Soest, eds., Vorbedingungen des Rechts: Tagungen des Jungen Forums Rechtsphilosophie (JFR) in der Internationalen Vereinigung für Rechts- und Sozialphilosophie (IVR) im September 2014 in Passau und im April 2015 in Hamburg (Stuttgart, Baden-Baden: Franz Steiner Verlag; Nomos, ARSP 150, 2016), 155–169.

On the Unities of Law, Practical Reason, and Right

37

gistic application of legal texts, and instead has, among others, cultural causes, thus resulting in a criticism of many kinds of legal formalism and positivism. At a deeper level, hermeneutic analysis showed that theory-buiding in law is itself a practical activity that is a means for the solution of practical problems of society and that every legal theory rests ultimately on a conception of law that has some practical purpose to fulfill in the concrete historical context in which it is elaborated, even if this purpose goes beyond the horizon of awareness of is author.84 As a final example, one could mention neuroscience: in the twentieth century, neuroscientists discovered empirical mechanisms of the brain that cause moral beliefs related to liberty, responsibility and guilt, but do not justify them.85 In short, the many approaches of legal genealogy had in common the aim to explain law by means of indication of causes that are not, at the same time, justifications. They were realisms and reductionisms86 in the sense that a mechanism, a more basal reality, which law arises from or is an epiphenomenon of, would have been identified. Possible causes and reasons that could justify the content of the normative beliefs are not a central preoccupation of genealogical criticism. Genealogical criticism often takes for granted that the content of the criticized beliefs is somehow wrong, indeterminate or at least naïve. If a mechanism of causative effects on peoples’ beliefs is discovered, it can be used instrumentally to accomplish voluntaristic aims. Not only the discovery of natural causes of natural objects permits their shape towards normative ends, but also the discovery of cultural causes of cultural beliefs. If, within voluntarism and genealogy, law is only in the mind and there are mechanisms of causation upon abstract entities in the mind, law too can be constructed, changed and instrumentally used towards ends of other kinds if these mechanisms are known. In this respect the causal power upon law goes far beyond the mere sovereign’s voluntarist act of enacting new positive law or the act of the people indirectly changing their law by means of changing social behavior, since this power embraces also the very possibility of the intelligent and informed mind which is aware of the mechanism and has the respective social technologies at its disposal to intentionally change law in the mind of the people. Indeed, the use of somatopsychic mechanisms and of culture as an instrument for the change of normative beliefs in society was an explicit part of the program of many political movements in the twentieth century, in-

84 Ronald Dworkin, Justice in Robes (Cambridge (Mass): Harvard UP, 2006), at 140–143. 85 Overview in Monika Emilia Miranowicz, Gehirn und Recht. Wie neurowissenschaftliche Erkenntnisse das Dilemma zwischen Naturrecht und Positivismus überwinden können (Berlin: Berliner Wissenschafts-Verlag, 2009), at 163–171. 86 Reductionism in general is “a hierarchical classification of objects in which the objects at each level are complex structures of the objects comprising the next-lower level”. See John Dupré, The Disorder of Things: Metaphysical Foundations of the Disunity of Science (Cambridge, London: Harvard UP, 1993), at 89. Phenomenologically seen: “Die kritische Operation impliziert die Vernichtung der Sache durch ihre Zurückführung in den tieferen Grund und ihre Auflösung im Realen”, Sloterdijk, Was geschah im 20. Jahrhundert? (n. 63), at 113.

38

André Ferreira Leite de Paula

cluding cultural Marxism, communism, and National Socialism.87 Similarly, within liberalism, television, radio, newspapers, and social media on the internet have been used very effectively by international elites and national governments to somatopsychically manipulate public opinion about normative issues. Genealogy of law presupposes the possibility of some degree of reductionism of law towards something external to it. Every reductionism, in its turn, induces a functionalism. Law as the reflex of genetics induces sociobiological functionalism, i. e. the use of law as a means to achieve ends in the field of sociobiology, such as the preservation of a race, of the species, or transhumanism; law as a variable of economic relations (i. e. as costs and means for economic activities) makes economic functionalism possible, for instance for a better allocation of economic resources; law as politics induces political functionalism, i. e. the instrumental use of a legal system in order to achieve political goals. In every reductionism, law is explained by something external to it; in every functionalism, law is an instrument towards something external to it.88 If no causation mechanism is known, no functionalism is possible. The state of affairs which something tendencially converges upon is called the thing’s τέλος (finis, end, Zweck) or teleology. Functionalism is voluntaristic teleology. Since, however, many possible ends or functions of the different kinds of functionalism collide with each other, they cannot be accomplished all at once. For instance, there might be good political reasons to avoid a better allocation of resources in a particular case, or vice versa, there might be good economic reasons to avoid the accomplishment of a certain political ideal. Consequently, every rational attempt to accomplish ends with the means of law must establish an order of preference. This hierarchy of ends is called ἔσχατος (eschatology). Eschatology is the unity of teleological reason. It has a relation with the unities of law, practical reason, and of the right, as will be made clear in part three of this paper. For now, it is important to summarize that within genealogies and functionalisms, law itself from the internal point of view of its institutions, criteria and justifications is not the central focus of analysis, for the basic patterns of genealogical and functionalistic justification and critique are external and consist in showing or challenging the right origin (legitimacy) of the normative claim, as it is in the case of genealogy, or showing or challenging the right function or purpose of a normative order (functionalism). 87 See the paramount example of Antonio Gramsci’s model of the ‘new intellectual’: “Tutti gli uomini sono intellettuali, si potrebbe dire perciò; ma non tutti gli uomini hanno nella società la funzione di intellttuali. … Il modo di essere del nuovo intellettuale non può piú consistere nell’eloquenza, motrice esteriore e momentanea degli affetti e delle passioni, ma nel mescolarsi attivamente alla vita pratica, come construttore, organizzatore, “persuasore permanentemente” perché non puro oratore … La scuola è lo strumento per elaborare gli intellettuali di vario grado”, Antonio Gramsci, Gli intellettuali e l’organizzazione della cultura (Torino: Giulio Einaudi Editore, 1949), at 6–8. 88 In 1988, in reaction to the Critical Legal Studies and its politicization of law, Weinrib wrote that “implicit in contemporary scholarship is the idea that the law embodies or should embody some goal (e. g., wealth maximization, market deterrence, liberty, utility, solidarity) that can be specified apart from law and can serve as the standard by which law is to be assessed. Thus law is regarded as an instrument for forwarding some independently desirable purpose given to it from the outside”, Weinrib, ʻLegal Formalism: On the Immanent Rationality of Law’ (n. 23), at 955.

On the Unities of Law, Practical Reason, and Right

39

Part Two: The rise of autonomy in theoretical thinking. An analysis of the ‘epistemology of fields’ and of the liberalization of epistemology I. The division of knowledge into fields Does not law have its own values, purposes, and functions? How about its own concepts, criteria, institutions, procedures, and standards of justice? The reductionisms and functionalisms that proliferated in the nineteenth and early twentieth century aimed to explain law by means of something external to it, and to instrumentalize law towards external purposes. This type of reductionism was also widely applied to all kinds of normative beliefs in morality, politics and religion. As we have seen, a core attempt was to reduce the meaning of the normative belief as not being the expression of a normative truth, but as being ‘nothing else than’ a projection, an epiphenomenon, a symptom, a reflex, etc. of some factor of reality that was considered to be more fundamental for the analysis of law, be it nature, culture or economic interest. However, the non-intended effect of the multiplication of reductionisms and functionalisms was the very realization that a complete reductionism or functionalism is actually not possible. If law is an expression of so many factors from biology, economy, psychology and culture, none of them provides a complete description or the ontologically most basic element that law is ultimately made of, or the only purpose that law is oriented to. They provide, rather, many factors that law is embedded in, but that do not completely determine what law is. In other words, they provided an external perspective of law. Since law has its own categories and norms, law also provides comprehensions and regulations of economy, biology, culture, and of itself. Hence, the legal system has some kind of self-reference, autonomy, an internal perspective, its own logic of apprehension and regulation of natural and social reality, with causal effects upon it. The aggressive reductionisms and functionalisms of the struggle ontologies of the nineteenth and early twentieth century gave rise to an opposed reaction both in theoretical philosophy (ontology, epistemology, and metaphysics) and in practical philosophy (morality, law, politics, religion). It became necessary to understand what it means for a field of knowledge, a system of society or a normative order to be ‘autonomous’ with regard to others. If each science has its own categories and scope and its own standards, to what extent can one science be criticized from the point of view of another? This question is especially relevant for the relationships between sciences (for instance, whether criticism and reductionism of law into sociology, of sociology into biology, of biology into chemistry and of chemistry into physics is possible) and between normative orders (for instance, whether law is a special case of morals or politics). If different fields of knowledge or different theories within the same field have their own categories, can there be real contradictions among them at all, or are they rather ‘incommensurable’? Moreover, is there a leading science or philosophical field that produces the knowledge of the most basic parts of reality and that all other sciences must be ultimately coherent with? Metaphysics, theology, physics, psychology, and most recently, neuroscience have been historical candidates for such a leading position. In regard to autonomous

40

André Ferreira Leite de Paula

normative orders, it can be asked whether there is a normative order above all, which all others must be coherent with in order to state genuinely binding rights and duties. Relevant questions begin to be: what if different normative orders such as law and morality state incompatible prescriptions for a certain case, for example allowing what the other one prohibits? Can (or should) law be independent of morality, politics, and religion, and prevail over them? These very questions are the origin of the connection and separation theses between law and morals as understood in the late twentieth and early twenty-first century legal theory, and discussed in the workshop from which this book originated. Despite the plurality of the questions mentioned, they merge in the following most basic inquiries: firstly, whether there are real contradictions between different fields or whether the contradictions are only apparent; secondly, provided that there are real contradictions, whether one field necessarily prevails, or normatively stated, should prevail. In order to prepare answers to these questions, in the following I will analyze some core statements of four theoretical approaches of the twentieth and early twentieth-first centuries that can be comprehended as historical reactions against reductionisms of many kinds. In all of them, reality is seen as divided into fields which have some ‘internal perspective’, are regarded as being autonomous in some way, and, in the case of normativity, are regarded as having their own normativity that is not a special case of the normativity of other orders. The theories are Rudolf Carnap’s conception of linguistic frameworks, Stephen Toulmin’s model of fields of arguments, Niklas Luhmann’s systems theory, and Markus Gabriel’s ontology and epistemology of fields. Although they are not even intended to pertain to the same discipline or paradigm and are not primarily concerned with morals or jurisprudence, many of them have delivered core insights for legal thinking that have been explicitly received and further developed by legal scholars,89 and which resulted in some kind of defense of law’s autonomy. They are, therefore, 89 For an adoption of Luhmann’s system theory as a paradigm for legal sociological analysis with diverse claims to the autonomy of law see for example Gunther Teubner, Recht als autopoietisches System (Frankfurt am Main: Suhrkamp, 1989). About the great reception of systems theory in many fields of law, see Bijan Fateh-Moghadam, ʻRechtswissenschaft’, in Oliver Jahraus and Armin Nassehi, eds., Luhmann Handbuch. Leben – Werk – Wirkung (Stuttgart etc.: Metzler, 2012), 393–399. On the basis of Toulmin’s model of fields of arguments, Ulfrid Neumann stresses that fact that legal argumentation is overwhelmingly non-trivial in a formal logical sense, and that therefore Toulmin’s model of non-trivial argumentation steps represents legal argumentation better than the classical ‘legal syllogism’. See Ulfrid Neumann, Juristische Argumentationslehre (Darmstadt: Wissenchaftliche Buchgesellschaft, 1986), at 21–28. Critical discussion of Neumann’s theses in Carsten Bäcker, ʻDer Syllogismus als Grundstruktur des juristischen Begründens?’, Rechtstheorie, 40 (2009), 404–424. Although Carnap’s influence on Kelsen’s thought is not well studied, Kelsen was, as we will see, one of the most important scholars of the twentieth century to develop a theory of law that claimed its separation from morals in many ways. Carnap’s conception of linguistic frameworks was developed within the Circle of Vienna in which Hans Kelsen participated (see Arthur Kaufmann, ʻProblemgeschichte der Rechtsphilosophie’, in Arthur Kaufmann, Winfried Hassemer and Ulfrid Neumann, eds., Einführung in die Rechtsphilosophie und Rechtstheorie der Gegenwart (Heidelberg: C. F. Müller, 2011), 26–147, at 124. The idea of pluralistic ‘fields of sense’ non-reducible to one unity of sense has been developed by Thomas Vesting in the context of constitutional law and fundamental rights. See Thomas Vesting, ʻNachbarschaft. Grundrechte und Grundrechtstheorie in der Kultur der Netzwerke’, in Thomas Vesting, Stefan Korioth and Ino Augsberg, eds., Grundrechte als Phänomene kollektiver

On the Unities of Law, Practical Reason, and Right

41

important elaborations of theoretical philosophy for the understanding of separation and connection theses between law and morals, and for the debate about positivism and natural law. In a second step, I will discuss the truth value of the theories and their success in defeating a considerable part of genealogical claims, but the attention will be directed first to the theories themselves as meaningful historical events intrinsically connected with the political thought of the West, most notably with political liberalism, despite their non-political scope at an explicit level. For the sake of anticipation, the hypotheses are, in very general terms, that (1) the division of reality into autonomous epistemic fields is mistaken and that (2) this mistake arises due to the adoption of a specifically political way of thinking about non-political issues: the import of categories of political liberalism into epistemology, thus giving birth to the odd new genre of what can be called ‘liberal epistemology’. As political liberalism understands social reality ultimately in terms of individuals, liberal epistemology understands reality ultimately in terms of fields. In this way, it claims to undermine the unity of reality and of knowledge in favor of many kinds of ontological and epistemological pluralism. The transference of this type of reasoning from politics into epistemology and from epistemology back to normativity results inescapably in relativism, thus challenging by reflex the unity of practical reason, as I will discuss in part three. 1. Linguistic frameworks (Carnap) Rudolf Carnap’s theory of linguistic frameworks can be seen as one of the first explicit and influential systematizations of the division of epistemic fields into internal and external perspectives. Carnap’s main purpose in Empiricism, Semantics and Ontology90 was to justify the reference to universals (in his terminology, ‘abstract entities’91) such as properties, classes, relations, and numbers, without having to admit their existence.92 According to him, although the use of such terminology is unavoidable in science,93 it does not imply a ‘platonic ontology’.94 Of course, in order to make science possible, a language or ‘linguistic framework’ must be created,95 i. e. what counts as ‘internal questions’ of this framework must be defined. Conversely, ‘external questions’ are questions

90

91 92 93 94 95

Ordnung. Zur Wiedergewinnung des Gesellschaftlichen in der Grundrechtstheorie und Grundrechtsdogmatik (Tübingen: Mohr Siebeck, 2014), 57–85. Rudolf Carnap, ʻEmpiricism, Semantics, and Ontology’, Revue Internationale de Philosophie, 4 (1950), 20– 40. In the German edition of 1955, Carnap has changed the meaning of the expression ‘linguistic frameworks’ (“linguistische Rahmenwerke”) in order to embrace only the ‘system of linguistic expressions’ (“System sprachlicher Ausdrücke”) and no longer the abstract entities themselves. See Rudolf Carnap, ‘Empirismus, Semantik und Ontologie’, in: Rudolf Carnap, Rudolf Carnap, Bedeutung und Notwendigkeit. Eine Studie zur Semantik und modalen Logik (Vienna: Springer, 1972), 257–278, at 257. Ibid., at 270. Ibid., at 257. Ibid. Ibid., at 258. Ibid., at 259.

42

André Ferreira Leite de Paula

about entities outside of the respective linguistic framework.96 Since all scientific inquiry takes place necessarily within a linguistic framework, for Carnap the reality of a thing consists in being an element of the respective linguistic system,97 from which it follows that questions external to any given scientific framework cannot be answered scientifically. This accounts for a fragmentation of science that, for Carnap, should be progressively overcome in order to advance the ideal project of the unity of all sciences. Of course, as long as the sciences are not unified, the scientist must make a choice among the many linguistic frameworks or theories that might be contradictory to each other. However, according to Carnap, this choice is not guided by any access that a scientist could have to entities outside of a given linguistic system that could serve as a basis for comparison between system and outside reality. Rather, for Carnap, the choice of a linguistic framework is a matter of an unobjectionable decision98 of a non-cognitive kind.99 A decision for one linguistic framework rather than others does not imply the claim to the ontological or external reality of the things meant in the system100 and is, therefore, not guided by truth, but by practical usefulness.101 Provoking a turn from theoretical to practical philosophy, i. e. from an inquiry about what is the case to arguments about how individuals should behave, Carnap states that no one is obliged to accept criticism on the basis of a linguistic framework that he does not accept. Since external questions do not have answers, they are only pseudo-theoretical; they are, actually, practical questions102 and therefore belong to ethics. Carnap’s own position is, contrary to what it may appear, neither a realism nor an anti-realism about abstract entities, but rather a skepticism, because he opens the question of the existence or non-existence of the external

96 Ibid. In this sense, but using the concept of ‘perspective’ instead of ‘linguistic framework’, see Markus Willaschek: “Eine theoretische Perspektive auf einen Bereich von Gegenständen ist intern, wenn sie (auch) die für diesen Bereich spezifischen Begriffe und regeln beinhalten. Eine externe Perspektive dagegen macht von den speizifischen Begriffen und Regeln des Gegenstandsbereichs keinen Gebrauch und stützt sich statt dessen auf eine andere, diesem ‘äußerliche’ Begrifflichkeit”, Markus Willaschek, ʻWas ist “schlechte Metaphysik”?’, in Uwe Justus Wenzel, ed., Vom Ersten und Letzten. Positionen der Metaphysik in der Gegenwartsphilosophie (Franfkurt am Main: Fischer, 1998), 131–151, at 145. Willaschek has extended Carnap’s notion of the impossibility of external criticism into the ‘field’ of metaphysics: according to him metaphysics would also be an internal practice of concept use with own rules that cannot be overruled by a “revisionary” or “usupator” metaphysics, or by external disciplines or standards of validity (ibid., at 145–148). 97 “Wirklich sein im wissenschaftlichen Sinne bedeutet, ein Element des Systems zu sein; daher kann dieser Begriff nicht sinnvoll auf das System selbst angewendet werden”, Carnap, Rudolf Carnap, Bedeutung und Notwendigkeit. Eine Studie zur Semantik und modalen Logik (n. 90), at 260. 98 Ibid., at 260. 99 Ibid., at 261. The idea that the choice of a framework of linguistic reference is guided by practical and non-scientific reasons has been adopted in many theories throughout the twentieth century, as the influential example of Quine shows. See Vittorio Villa’s criticism in Vittorio Villa, Constructicvismo y teorias del derecho (Alicante: Biblioteca Virtual Miguel de Cervantes, 2014), at 72. 100 Carnap, Rudolf Carnap, Bedeutung und Notwendigkeit. Eine Studie zur Semantik und modalen Logik (n. 90), at 269. 101 Ibid. 102 Ibid., at 260; A. W. Carus, Carnap and the Twentieth-Century Thought. Explication as Enlightenment (Cambridge: Cambridge UP, 2007), at 19–20.

On the Unities of Law, Practical Reason, and Right

43

world or of universals.103 For Carnap it is especially important to reject all external criticisms both from ontological philosophy104 and from one linguistic framework against another. Accordingly, the basic pattern of justification of a claim is not the verification of the linguistic conventions with external things (“Dingwelt”105), but the verification of internal language with internal language (“Dingsprache”106, “Beobachtungssprache”), which means, in the final instance, exclusively internal coherence of a sentence with sentences that have been previously accepted (acceptance for practical reasons) in the respective linguistic framework. The conception of linguistic frameworks is an inversion of the admissible kinds of justification and critique that could typically be found among the ontology of the nineteenth century. While struggle ontologies engage in radical external criticism based both on ontological realism and on a field of knowledge external to the criticized claim (Marx criticized law and morals from the point of view of economy; Ludwig Feuerbach criticized religion from the point of view of philosophical anthropology; Nietzsche criticized morals from the point of view of psychology, and so on), the main message of the conception of linguistic frameworks is that a scientific claim can only be justified or criticized if the justification or critique is carried out from an internal perspective. 2. Fields of arguments (Toulmin) Stephen Toulmin brought the idea of autonomous fields into argumentation theory and explored the patterns of justification between fields in a more explicit way. His conception is closely related to Wittgenstein’s ‘language games’.107 ‘Fields of arguments’ are, according to Toulmin, types of argumentation distinguished by context. Fields of arguments are divisions of contexts of social practice such as scientific disciplines, but also pragmatic speech contexts such as a ‘scientific congress’, a ‘visit to a doctor’, or a ‘court trial’. The core idea is that there are “field-variant” standards of argumentation, i. e. criteria of correctness of arguments that do not overlap the respective field.108 An expression such as “it cannot be the case that …”, which involves the notion of possibility, might be lexically the same in different fields of arguments (“field-invariance”), but the 103 Carnap, Rudolf Carnap, Bedeutung und Notwendigkeit. Eine Studie zur Semantik und modalen Logik (n. 90), at 276. 104 Ibid. 105 Ibid., at 260. 106 Ibid. 107 Philosophische Untersuchungen, in: Tractatus logico-philosophicus. Tagebücher 1914–1916. Philosophische Untersuchungen, 16th ed. (Frankfurt am Main: Suhrkamp, 2004), § 23. 108 “If fields of argument are different, that is because they are addressed to different sorts of problems. A geometrical argument serves us when the problem facing us is geometrical; a moral argument when the problem is moral; an argument with a predictive conclusion when a prediction is what we need to produce; and so on. Since we are unable to prevent life from posing us problems of all these different kinds, there is one sense in which the differences between different fields of argument are of course irreducible – something with which we must just come to terms”, Stephen E. Toulmin, The uses of argument (Cambridge: Cambridge UP, 1958, reprint 2003), at 154.

44

André Ferreira Leite de Paula

meaning of possibility and, hence, the criteria of justification may vary from field to field (“field-variance”).109 “To say in any field that ‘such-and-such is a possible answer to our question’, is to say that, bearing in mind the nature of the problem concerned, such-andsuch an answer deserves to be considered. This much of the meaning of the term ‘possible’ is field-invariant. The criteria of possibility, on the other hand, are field-dependent, like the criteria of impossibility and goodness”.110 Because of field-variance, there is, according to Toulmin, no such a thing as “superior insights”111 from one field about another. This would be the case if one could establish a hierarchy of correctness among argumentation standards, for example comprehending formal logic as the top field that cannot be argued against and submitting substantive legal argumentation standards to formal logical standards, or elevating mathematical criteria to the top and lowering physical arguments to the bottom within the hierarchy of sciences.112 In this vein, Toulmin makes an especial case against the ‘absolutism’ of formal logic, or more precisely, of formal logicians who see their field as a privileged one.113 According to Toulmin, their attitudes reveal “intellectual authoritarianism”.114 The conception of fields of arguments is vehemently against ideals of unification and close to a ‘social rationality’ that focuses on processes of formation of theories rather than on their truth value.115 3. Social systems (Luhmann) The idea of autonomous fields has been explored in sociology by Niklas Luhmann, and thereby radicalized. Already in the very historical origin of systems theories in general (which arose from biology116) we can find the central idea of non-reductionism, which is common among the theories of linguistic frameworks and fields of arguments. For example, Humberto Maturana’s theory has been used in order to prevent the reductionism of chemical facts into physical facts.117 Soviet systems theories took a position against external reductionisms of many kinds.118 In biology, the core idea of systems theory is 109 110 111 112

113 114 115 116 117 118

Ibid., at at 36. Ibid., at 34. Ibid., at 156. “We are entitled to dispute the necessity of the conclusion only if we are prepared to challenge the adequacy or relevance of Newtonian dynamics. This means, nut just pointing out that arguments in planetary dynamics are substantial ones (so their soundness can be questioned without contradiction), but showing that they are in fact unreliable; i. e. attacking Newtonian dynamics on its own ground”, ibid., at 127–128. Stephen E. Toulmin, Kritik der kollektiven Vernunft (Frankfurt am Main: Suhrkamp, 1978), at 561. Ibid., at 46. Ibid., at 10 and 553. In this vein, Peter Sloterdijk qualifies systems theories as systems of ‘meta-biology’ due to the dynamics between system and environment. See Peter Sloterdijk, Derrida ein Ägypter. Über das Problem der jüdischen Pyramide, 1st ed. (Frankfurt am Main: Suhrkamp, 2007), at 16. See Gerhard Schloßer, Die Einheit der Welt und ihre wissenschaftliche Deutung. Dissertation, Philosophische Fakultät Albrecht-Ludwigs-Universität zu Freiburg (1990). See S. N. Smirnov, ʻThe Main Forms of Interdisciplinary Development of Modern Science’, in A. D. Ursul, Z. Javurek and J. Zeman, eds., Integration of Science and the Systems Approach (Prague: Academia, 1984), 61–75, at 68.

On the Unities of Law, Practical Reason, and Right

45

that an organism, its evolution and its behavior are not completely determined by the environment. In sociology, Luhmann’s systems theory states that there are differentiated groups of ‘communications’ called ‘social systems’ (and ‘sub-systems’) such as law, politics, religion, and science, that cannot be reduced to each other. Instead of being susceptible to causality from the outside, social systems are comprehended to be ‘autonomous’ or ‘autopoietic’119 (i. e. not ‘allopoietic’120), which means that social systems cannot be changed or guided from outside, but only ‘irritated’ or ‘stimulated’ by the environment and thus changed from inside by means of their own operations.121 For example, if the state establishes a price control of a certain product, the same fact can be described differently in different social systems, for each of them forms the environment of the other ones. It can be described within the social system of economy as additional ‘costs’ for companies and, within the social system of law, as the ‘enforcement of a legal statute’.122 Systems create and change their own elements according to their own ‘communications’, ‘codes’ and ‘functions’.123 In doing so, the many social systems do not really share elements among each other. Instead, they are said to be ‘self-referential’: the reference of internal claims is not an element of another system, but its own observation of the elements of the other system. This dynamic is called ‘operative closure’ with concomitant ‘cognitive openness’.124 It is operative closure that characterizes systems theory’s radical constructivism: Luhmann’s systems theory rejects the possibility of access to an ontological reality outside of the respective set of propositions or ‘communications’ of social systems.125 Instead, for him, everything which exists in society is an element of a social system, and there is no system of the systems. Neither the entire world society nor systems theory itself are conceived to be such a meta-system which could guarantee the truth and correspondence of the communications of one system with outside reality.126 Since the 119 Teubner, Recht als autopoietisches System (n. 89), at 96. According to Gunther Teubner, the autonomy of social systems can mean: self-reference (operational circularity), self-organization (construction of a distinct structure), self-reflection (argumentation about a distinct identity), and autopoiesis (self-construction with distinct components). See ibid., at 96. See also Marcelo Neves, Entre Têmis e Leviatã: uma relação difícil. O Estado Democrático de direito a partir e além de Luhmann e Habermas (São Paulo: Martins Fontes, 2006), at 60; Vesting, Rechtstheorie. Ein Studienbuch (n. 48), marginal number 115. 120 Alexander Molter and Lech Morawski, ʻAutopoiese und reflexives Recht. Kritische Bemerkungen’, in Waldemar Schreckenberger and Undchristian Starck, eds., ARSP-Supplement Nr. 52, Praktische Vernunft, Gesetzgebung und Rechtswissenscahft. XV. Weltkongress der Internationalen Vereinigung für Rechts- und Sozialphilosophie, Göttingen, vol. 3 (Stuttgart: Franz Steiner, 1993), 128–135, at 128. 121 For the social system of law, see Teubner, Recht als autopoietisches System (n. 89), at 9. 122 See ibid., at 96–102. 123 See C. Kirchmeier, ‘Semantik’, in: Oliver Jahraus and Armin Nassehi, eds., Luhmann Handbuch. Leben – Werk – Wirkung (Stuttgart etc.: Metzler, 2012), at 115. 124 See Mark van Hoecke, Law as Communication (Oxford etc.: Hart Publishing, 2002), at 39. 125 “Also gibt es in der Umwelt nichts, was der Erkenntnis entspricht”, Niklas Luhmann, Erkenntnis als Konstruktion (Bern: Benteli, 1988). See also Niklas Luhmann, Die Realität der Massenmedien, 3rd ed. (Wiesbaden: Verlag für Sozialwissenschaften, 2004), at 17, 20. 126 See Niklas Luhmann, Die Gesellschaft der Gesellschaft, vol. 1, 1st ed. (Frankfurt am Main: Suhrkamp, 1998), at 143–145; Armin Nassehi, ʻTheorie ohne Empirie?’, in Oliver Jahraus and Armin Nassehi, eds., Luhmann Handbuch. Leben – Werk – Wirkung (Stuttgart etc.: Metzler, 2012), 424–427; Jasmin Siri, ʻSystem/Um-

46

André Ferreira Leite de Paula

possibility of knowledge about the world itself outside of social systems is denied, every social system is seen as an ‘epistemic authority’: the fact that a certain claim arises from a certain social system is the final instance of its validity.127 Therefore, in regard to patterns of justification and critique, only internal justification and criticism are possible. On the basis of the closure of systems, system theorists emphasize tautological ideas such as the suggestion that ‘there is no law beyond law’ or that ‘only law defines what law is’, i. e. that there is no input of law that comes from outside of the social system of law.128 Accordingly, ‘orthodox’ (i. e. descriptive) systems theory does not make the normative claims that law should or should not be determined by politics, by economy, or science; it states that such a determination is, rather, conceptually impossible, since every influence of one system on another provokes only an internal production of communications according to the unique codes and functions of the stimulated system,129 whereas the reality of the system is understood as nothing more than the reality of its communications. Since social systems are autonomous by definition, there can be no “empirical failure of autonomy”130: if economy ‘stimulates’ law much more than law stimulates economy,

127

128 129

130

welt’, in Oliver Jahraus and Armin Nassehi, eds., Luhmann Handbuch. Leben – Werk – Wirkung (Stuttgart etc.: Metzler, 2012), 123–125, at 123. According to Gunther Teubner, “from a constructivist perspective, there is no way to challenge the epistemic authority of law, neither by social realities themselves, nor by common sense, nor by scientifically controlled observation. … There are only competing discourses with different constructions of reality. … there is no superiority of scientific constructs over legal constructs, as some sociologists would like to have it. Epistemic authority is claimed by both scientific discourse and legal discourse – and rightly so. … The epistemic authority of legal discourse is an undeniable fact of modernity, and we have found ways and means to cope with the fact of multiple truths – scientific truth, legal truth, political truth”, Gunther Teubner, ʻHow the law things: toward a constructivist epistemology of law’, Law & Society Review, 23, 5 (1989), at 743–744. Niklas Luhmann, Die soziologische Beobachtung des Rechts (Frankfurt am Main: Metzner, 1986), at 20; Teubner, Recht als autopoietisches System (n. 89), at 8. Luhmann, Die Realität der Massenmedien (n. 125), at 19. “Unsere Frage hat also die Form: Wie konstruieren Massenmedien Realität? … Sie lautet also nicht: Wie verzerren die Massenmedien die Realität durch die Art und Weise ihrer Darstellung? Denn das würde ja eine ontologische, vorhandene, objektiv zugängliche, konstruktionsfrei erkennbare Realität, würde im Grunde den alten Essenzenkosmos voraussetzen. Wissenschaftler mögen zwar durchaus der Meinung sein, daß sie die Realität besser erkennen, als sie in den auf ‚Popularisierung‘ verpflichteten Massenmedien dargestellt wird. Aber das kann nur heißen: die eigene Konstruktion mit einer anderen zu vergleichen”, ibid., at 19. Going beyond the descriptive and ‘orthodox’ understanding of systems theory, many leftist Luhmannians hold the normative claim that law should be autonomous from pervasive external influences from economy and politics. See K. Möller, ʻCrítica do direito e teoria dos sistemas’, Tempo Social (USP), 27, 2 (2015), 129–152, at 135. In legal sociology, Gunther Teubner holds the normative theses that mechanisms of ‘equilibrium’ between social systems should be institutionalized in order to avoid a ‘dynamic disequilibrium’ due to ‘destructive forces’ that originate from the expantion of some social systems at the expense of others. See Gunther Teubner, Verfassungsfragmente. Gesellschaftlicher Konstitutionalismus in der Globalisierung, 1st ed. (Berlin: Suhrkamp, 2012), at 155. In a similar sense, Mißling holds that, for the purposes of application of the art. 5 III of the German constitution which states the fundamental right of liberty of art, the social sub-system of arts should be autonomous in defining what counts as art. Accordingly, the judicial system should assume the given definition instead of elaborating one on its own. See Sven Mißling, Art. 5 Abs. 3 Satz 1 GG als ein Grundrecht der Kunst. Grundlagen einer systematischen Interpretation von Art. 5 Abs 3 Satz 1 GG (Cologne: Heymann, 2012). See António Castanheira Neves, O Funcionalismo Jurídico. Caracterização fundamental e consideração crítica no contexto actual do sentido da juridicidade, in: Digesta, vol. 1 (Coimbra: Coimbra Editora, 2010), 199–318, at 293.

On the Unities of Law, Practical Reason, and Right

47

this still would not mean that economy is diminishing law’s autonomy, since law would continue to react with the production of internal communications, of the own ‘codes’ and ‘functions’ of the system of law. For instance, if the managers of companies dictate laws to parliamentarians, law will keep describing the companies’ participation in the legislative procedure with appropriate legal categories in order to make it coherent with the legal system as a whole, thus maintaining law’s formal autonomy. As systems theory attempts to overcome the causality paradigm in sociology, the influence of lobbyists would not be even described as ‘causation’ or ‘determination’ of law by economy. Because of the claim that there is no ontology beyond social systems and because of the claimed impossibility of one social system changing another from outside, Luhmann’s systems theory and its further developments can be seen as the most radical variants of the idea of autonomous fields. 4. Fields of sense (Gabriel) The idea of autonomous fields is explored by Markus Gabriel at an ontological level, with centrality on the question of the meaning of existence. In the same way that Carnap’s model of linguistic frameworks claims that the existence of a thing depends on it being an element of the respective linguistic system and in the same way that systems theory claims that there is no ontology beyond social systems, according to Markus Gabriel’s version of New Realism,131 the existence of a thing depends on the thing being an element of, or, in phenomenological terminology, ‘appearing’ in a ‘field of sense’ (“Sinnfeld”132). Existence is seen as being only relational to a field and, therefore, not as “absoluta”, but only as “relata”.133 The rationale of understanding the existence of a thing as an element of a field of sense is the prevention of reductionisms of many kinds, particularly materialist and physicalist reductionisms, i. e. the theses that everything that exists must be, in last instance, reducible to some material or at least physical way of existence.134 Fields of sense are both ontic and epistemic. In the ontology of fields, fields are not comprehended as human constructions or projections, but as something that exists independently of and prior to human cognitive activities and attributions of sense.135 The 131 For philosophical accounts about the so-called New Realism or Specualtive Realism, see Markus Gabriel, ed., Der Neue Realismus (Berlin: Suhrkamp, 2014). 132 Markus Gabriel, Warum es die Welt nicht gibt (Berlin: Ullstein, 2013), at 68, 87. 133 Markus Gabriel, Sinn und Existenz: Eine realistische Ontologie (Berlin: Suhrkamp, 2016), at 164. 134 Markus Gabriel, ʻExistenz, realistisch gedacht’, in Markus Gabriel, ed., Der Neue Realismus (Berlin: Suhrkamp, 2014), 171–199, at 189. 135 “Yet, the very plurality of domains cannot be constructed. There really are many domains of objects corresponding to the right division of scientific labour whether we have already reached it or not. The individuation of domains cannot hinge on the existence of our disciplines”, Markus Gabriel, Fields of Sense: A New Realist Ontology (Edinburgh: Edinburgh University Press, 2015), at 157. “As I argued, the ontological difference between fields (domains) and objects cannot generally be a construction or projection; it cannot depend on us being around, as this fully undermines the relevant independent existence of objects”, ibid., at 199. “Die Notwendigkeit der Tatsache, dass es nur dann etwas gibt, wenn es Bereiche gibt, sodass es notwendigerweise eine Pluralität von Bereichen gibt, ist maximal robust. Sie hätte auch dann bestanden,

48

André Ferreira Leite de Paula

mating of animals would be seen in the ontology of fields as a biological fact, i. e. as a fact that belongs to the ontic field of biology even at a previous time in history in which there was no human activity that could be called ‘biology’, otherwise one would incur retroactive causation over time by assuming that there have been biological facts only since the point in history at which men began to practice the science known as biology. The ontology of fields also holds a non-reductionism in the sense that one field’s facts or things cannot be reduced to another field’s facts or things: biological facts cannot be reduced to chemical facts,136 which, in turn, cannot be reduced to physical facts, which means that, for instance, the thing that is known as ‘animal’ does not have to be reduced to a merely physical entity and expressed accordingly in a purely physical language, i. e. it neither has to be constituted exclusively by physical laws in order to be real (ontology of fields), nor has to be expressed exclusively in physical terminology in order to be understood (epistemology of fields). In this vein, Markus Gabriel argues for a ‘pluralist’ comprehension of existence that does not confer any a-priori ‘privilege’ for one kind of existence over another137 (“ontological pluralism”138). According to this comprehension of existence, it is not possible to establish an ontological hierarchy between kinds of things such as between concrete and abstract objects, where one would exist only in dependence or as an improper or fictive kind of the other one. Diverse things such as mountains, credit, the unicorn, a piece of music, pedagogy, and colors exist with the same ‘right’, with no ‘preferences’ among each other.139 In the same way as there is no system of the systems in Luhmann’s systems theory and in the same way as there is no linguistic framework of all linguistic frameworks for Carnap, Gabriel claims that there is no such a thing as a field of sense of all fields of sense. Accordingly, there is for Gabri-

136

137 138

139

wenn wir dies niemals entdeckt hätten, sie ist keine Spiegelung oder Projektion unserer begrifflichen Bedürfnisse. Deswegen handelt es sich beim Bereichsrealismus um einen ontologischen Realismus”, Gabriel, Sinn und Existenz (n. 133), at 179. This idea is well expressed by Ernst Mayr: “the claim that genetics has been reduced to chemistry after the discovery of the structure of the DNA, RNA, and certain enzymes cannot be justified. … The essential concepts of genetics, like gene, genotype, mutation, diploidy, heterozygosity, segregation, recombination, and so on, are not chemical concepts at all and one would look for them in vain in a textbook on chemistry. … Theory reductionism is a fallacy because it confuses processes and concepts. … It is a fallacy because it fails to consider the fact that the same event may have entirely different meanings in several different conceptual schemes. … Species, competition, territory, migration, and hibernation are examples of organismic phenomena for which a purely physical description is at best incomplete and usually biologically irrelevant”, Ernst Mayr, The Growth of Biological Thought. Diversity, Evolution and Inheritance (Cambridge etc.: Harvard UP, 1982), at marginal note 62. Gabriel, ʻExistenz, realistisch gedacht’ (n. 134), at 190, 194; Markus Gabriel, Die Erkenntnis der Welt – Eine Einführung in die Erkenntnistheorie, 4th ed. (Munich: Karl Alber, 2013), at 191. Markus Gabriel, ʻFacts, Social Facts, and Sociology’, in Werner Gephard and Jan Christoph Suntrup, eds., The Normative Structure of Human Civilization. Readings in John Searle’s Social Ontology (Frankfurt am Main: Vittorio Klostermann, 2016), 49–68, at 54. Gabriel holds also an ‘epistemological pluralism’ that concerns the different fields of knowledge such as scientific disciplines. See Gabriel, Sinn und Existenz (n. 133), at 439, 457. Gabriel, Fields of Sense (n. 135), at 159.

On the Unities of Law, Practical Reason, and Right

49

el neither a God (“Supergedanke”140) nor a “total reality”141 that embraces everything which exists: ‘the’ world does not exist142. In this way, the ontology of fields of sense rejects the external criticism typically carried out within reductionist or ‘inegalitarian’ ontologies: if someone states that moral values actually do not exist because they are abstract entities that are non-reducible to physical entities (physicalism); if a Marxist states that the only real existence of men is at the material level of the body or that the value of money is actually an illusion, a false conscience due to a reification of what is not in itself a real thing (materialism); if a Nietzschean states that good and bad actions are actually a fiction because they are actually sentiments of the observing individual caused by his instincts and resentment rather than an objective property of the action (psychologism); if a British man states that facts concerning abstract entities and properties do not exist because they cannot be apprehended by our five senses (empiricism); if Nelson Goodman states that a piece of music does not exist in itself as an abstract entity because only scores and performances really exist (musical nominalism);143 or if a neuroscientist states that individual liberty and responsibility are only illusions created by biological mechanisms of the brain (neurocentrism),144 the ontology of fields of sense would respond with an equalization of the ontological statuses of all these entities and facts, and defeat the respective reductionist attempt. This would be to say that all of these entities do exist, and with the same ‘right’ (“Recht”145) as material entities. Among the many fields of sense in which they appear there is no privilege, no ‘generally privileged types of explanation’,146 which means that the fact that something exists does not depend on how it exists (as matter, institution, thought, literature, etc.) or on how it has been created (i. e. by nature or by men). The ontology of fields of sense is an attempt to overcome, on the one hand, holism as a totali140 Gabriel, Warum es die Welt nicht gibt (n. 132), at 102–106. 141 Gabriel, ʻFacts, Social Facts, and Sociology’ (n. 138), at 54. 142 Gabriel, Warum es die Welt nicht gibt (n. 132), at 96–126; Gabriel, ʻExistenz, realistisch gedacht’ (n. 134), at 198. “Now, as I will argue in more detail in the next chapter, if there is anything whatsoever, there are at least indefinitely many fields. The basic argument goes roughly like this: if something exists, it has to appear in a field, which entails that there is a field. For this field to exist, there has to be another field within which it appears, and so on infinitely. If there only were one kind of field, there would be an all-encompassing field, namely the universal kind. But this universal kind cannot exist (as it would be identical with the world, which cannot exist). Therefore, there has to be a plurality of kinds of fields. To put it paradoxically: if overall or total reality existed, it would consist of indefinitely many regions that differ in kind and not just in location. If it existed, overall reality would be a mesh of meshes indefinitely spreading out in every possible direction in logical space: everything conceivable would be the case in some field or other. But that picture suggests an overall unification where there really is none”, Gabriel, Fields of Sense (n. 135), at 159–160. 143 Critique of Goodmann’s position in Gunnar Hindrichs, Die Autonomie des Klangs. Eine Philosophie der Musik (Berlin: Suhrkamp, 2015), at 26. About the problem of the mode of existence of pieces of music, see Peter Kivy, The fine art of repetition. Essays in the philosophy of music (Cambridge: Cambridge Univ. Press, 1993), at 35–94. 144 For example Gerhard Roth, ʻWillensfreiheit und Verhaltensautonomie’, in Wolfgang Jantzen, ed., Gehirn, Geschichte und Gesellschaft. Die Neuropsychologie Alexandr R. Lurijas (1902–1977) (Berlin: Lehmanns Media, 2004), 19–37. 145 See for instance Gabriel, Sinn und Existenz (n. 133), at 459. 146 Gabriel, ʻExistenz, realistisch gedacht’ (n. 134), at 190.

50

André Ferreira Leite de Paula

ty that would be all reality, and on the other hand, foundationalism as the idea that a category of objects could be the most basic element that all others are made of.147 The consequence for epistemology is that field-internal arguments are, as in Carnap’s, Toumin’s and Luhmann’s theories, resistant to criticism from outside (“epistemological pluralism”148). Although Gabriel claims that the choice between different conceptual frameworks is ‘contingent’, but not ‘arbitrary’, and that there can be good reasons to prefer one conceptual framework in spite of the other,149 the distinction between contingency and arbitrariness, and ultimately the choice of a framework cannot be based on how the world really is, on any privileged ontology, since the unity of reality has been already denied, nor, for reasons of circularity, on the way that the many worlds of each field of sense really are, since what is at stake is exactly the choice of which of these conceptual frameworks is preferable. Therefore, the choice of a conceptual framework remains supposedly, as in the case of Carnap’s theory, a matter of practical usefulness and tolerance of other people’s opinions. Future developments of the theory will clarify this point. II. The epistemology of fields as the establishment of a liberal regime of thought This brief analysis should be enough to show that the model of struggle ontologies of the nineteenth century was substituted in the twentieth and early twenty-first centuries by a pluralist understanding of social practice and science by means of demarcation of sets of categories, propositions and practices known as linguistic frameworks, fields of arguments, social systems, fields of sense, or, sometimes, internal and external points of view, all of which have their own logics, codes, functions, ‘discursive formations’150 and standards of argumentation. The verticality and reductionist attempts of externalist ontology were substituted by pluralism, horizontality, and autonomy of all perspectives. The pattern of justification and criticism was shifted from the external claims that indicate a more basic reality towards the immanent or internal criticism that grounds objections on standards that are already recognized within the respective field. The genealogical principle, i. e., the idea that the truth of a claim depends on the way how it comes about, has been maintained, although the source of legitimacy of propositions has been changed. This means that the validity of propositions continued to depend on their origin, although the rationale of legitimacy has been taken away from will, instinct, emotions, physics, etc., and conferred to an autonomous field: for Carnap, a science cannot be justified or criticized for not corresponding with the ontology outside of the 147 See Gabriel, Sinn und Existenz (n. 133), at 170. 148 “In my view, epistemological pluralism is a liberal stance in that it allows for a plurality of forms of (propositional) knowledge not unified by any such thing as the method for finding out how things are and of justifying our findings in a privileged discursive practice (in ‘science’)”, Gabriel, Fields of Sense (n. 135), at 11. 149 Markus Gabriel, An den Grenzen der Erkenntnistheorie. Die notwendige Endlichkeit des objektiven Wissens als Lektion des Skeptizismus, 2nd ed. (Freiburg: Karl Alber, 2014), at 76–78. 150 Michel Foucault, L’archéologie du savoir (Paris: Gallimard, 2008), at 56.

On the Unities of Law, Practical Reason, and Right

51

field or for not satisfying philosophical standards, but only on the basis of its internal claims. For Toulmin, there is no privileged field of knowledge that could issue standards of argumentation that all other fields should comply with. Systems theory, more radically, stated that everything that happens in society is a construction of a social system, and that a social system could only be changed from the inside. Luhmann established a system of ‘epistemic authorities’ in which a ‘communication’ is valid precisely because it has origin in the respective social system. Finally, Gabriel redefined the existence of a thing as being its appearance in a field of sense, whereas no reductionism of a field into another one is possible. The rise of autonomous orders in epistemology was by no means limited to the theories analyzed above. Claims to some kind of autonomy of fields have been ubiquitous since the beginning of the twentieth century, an epoch in which many disciplines made a ‘declaration of independence’. Further examples will exemplify the dimension of this tendency. While social studies in the nineteenth century were influenced by biology and many kinds of biological reductionism such as social-Darwinism, in the twentieth century sociology declared its independence from natural sciences.151 In psychology, Carl Gustav Jung has defeated the Freudian reductionism of the soul into material bodily drives. According to Jung, the soul has its own logic (its Eigengesetzlichkeit, a very common German term in the context of epistemology of fields152); it is not an epiphenomenon of bio-chemical mechanisms of the body and cannot be reduced to them, which is to say that in order for something to exist it is not necessary that it can be reduced to material entities.153 In general, we can say that in the twentieth century the previous notion of a single ‘reason’ gave way to many kinds of decentralized ‘rationalities’.154 In epistemology, Ronald Dworkin argued against the notion of “Archimedean epistemology”, a “hierarchical epistemology that tries to establish standards for reliable belief a-priori, ignoring the differences in content between different domains of belief,

151 As the example of Sorokin’s theory of social-cultural systems. See Kurt H. Wolff, ʻSociocultural Causality, Space, Time: A Study of Referential Principles of Sociology and Social Science. Pitirim A. Sorokin’, American Journal of Sociology, 49, 5 (1944), 481–484. For some historical background about the autonomization of Sociology, see Jürgen Osterhammel, Die Verwandlung der Welt: Eine Geschichte des 19. Jahrhunderts, Jubiläumsed. (Munich: Beck, 2013), at 1156–1157. 152 The term Eigengesetzlichkeit began to be commonly used in the 20th century. The first thinker to popularize it was Max Weber. For an historical analysis of the usage of this term, see Marc Breuer, Religiöser Wandel als Säkularisierungsfolge: Differenzierungs- und Individualisierungsdiskurse im Katholizismus (Wiesbaden: Springer, 2011), at 284–286. 153 “Die materialistische Ansicht gab dem Körper das Vorrecht und versetzte die Seele in den Rang einer zweitklassigen, abgeleiteten Erscheinung und erkannte ihr nicht mehr Wesenhaftigkeit zu als diejenige eines sogenannten “Epiphänomens”. Was an sich eine gute Arbeitshypothese ist, nämlich die Annahme, dass seelische Erscheinung von körperlichen Vorgängen bedingt sei, wird im Materialismus zum philosophischen Übergriff. … Gegenüber dem der Antike entstammenden Konstitutionsgedanken, dem Freud insofern erlegen ist, als er nach einem richtigen psychologischen Anfang theoretisch wieder alles in den körperlich bedingten Trieb zurückverwandeln wollte, gehe ich von der Annahme einer Eigengesetzlichkeit der Seele aus”, Carl Gustav Jung, Psychologische Typologie (1936). In: Typologie (Munich: Deutscher Taschenbuch Verlag, 2014), at 14. 154 ‘Die Vernunft’ gave way to ‘Rationalitäten’. See Schnädelbach, Vernunft (n. 58), at 120–141.

52

André Ferreira Leite de Paula

and taking no account of the range of beliefs we already hold to be reliable.”155 Also in epistemology and in this respect similarly to Dworkin and Toulmin, Scanlon talks about the existence of “domains” with their own standards of assessment of arguments.156 Protestant theologians also advocated a division of fields, and thereby a self-limitation by recognizing the ‘autonomous logic’ (here too Eigengesetzlichkeit157) of other fields of knowledge such as sociology,158 with the argument that the messages of the Gospel are addressed to people who live within communities with institutions whose interpretation surpasses the interpretive competence of theology.159 In this way, theology was understood to be in a non-hierarchical relationship with other disciplines,160 otherwise the Christian faith could be overcharged with tasks it could not fulfill.161 However, defenses of theology’s competence for dealing with social questions have also been carried out with the means of autonomist epistemology. In order to defend contents of faith such as the existence of God and miracles against the criticisms of science, many theologians have declared theology to be an independent field of knowledge with its own standards, which Richard Dawkins polemically attacked as the doctrine of “non-overlapping magisteria”.162 In the philosophy of music, Hindrichs, basing his thought on the many ‘differentiation’ processes (Ausdifferenzierungsprozesse, also a very common German term in this respect) that have taken place in modernity, has argued that aesthetic reason differentiated itself from theoretical and practical reason (according to Kant’s classification), and that the piece of music is autonomous and has its own logic within aesthetics.163 He even talks about an ‘autonomous constitution of music’164 in an unquestionably 155 Ronald Dworkin, ʻObjectivity and Truth. You’d Better Believe It’, Philosophy and Public Affairs, 25, 2 (1996), 87–139, at 118–119. 156 “So a domain is better understood in terms of the kind of claims it involves, and hence in terms of concepts that it deals with, such as number, set, physical object, reason, or morally right action. … As I go on to say in the text, I believe that there can be meaningful external questions about a domain. But these must be questions about whether the implications or presuppositions of statements internal to the domain are fulfilled”, T. M. Scanlon, Being realistic about reasons (Oxford: Open University Press, 2014), at 19. 157 For an extensive discussion about Catholic and Protestant claims to autonomy in relation to other disciplines such as sociology, see Breuer, Religiöser Wandel als Säkularisierungsfolge (n. 152), at 298–308. 158 See Theodor Herr, Zur Frage nach dem Naturrecht im deutschen Protestantismus der Gegenwart (Munich: Ferdinand Schöningh, 1972), at 143. 159 Ibid., at 131. 160 Ibid., at 128. 161 Ibid., at 129. In this sense, see also the idea of specific logical structures (“sachlogische Strukturen”) in the theology of Trillhaas (Ibid., at 131): concepts such as contract, law, property or marriage would have their own structures, which would account for a “relative autonomy of reason” (“relative Selbständigkeit der Vernunft”, ibid., at 131). 162 “I am tempted to go further and wonder in what possible sense theologians can be said to have a province”, Richard Dawkins, The God Delusion (London: Bantam Press, 2006), at 55. 163 Gunnar Hindrichs, Die Autonomie des Klangs. Eine Philosophie der Musik, 2nd ed. (Berlin: Suhrkamp, 2015), at 14. “Unterschieden von der Theorie, macht sie sich als ein Seiendes eigener Art geltend: als ästhetisch Seiendes, das ästhetisch verstanden werden muß. Musik hat in der Ausdifferenzierung der Vernunft ästhetischen Eigensinn gewonnen. … Das moderne Werk ist autonom: selbstgesetzlich”, ibid., at 13. One could criticize that Hindrichs‘ autonomization of music is itself the result of the application of categories of political liberalism, most remarkably autonomy, for the comprehension of music, thus ultimately not being an emancipation from practical philosophy. 164 “Autonome Verfassung von Musik”, ibid., at 23.

On the Unities of Law, Practical Reason, and Right

53

analogical sense to modern political constitutions. Even metaphysics, traditionally defined as the most general thinking of ‘the being as being’,165 has been comprehended in the twentieth century as only one field of knowledge among others, and thus no longer authorized to establish truths about all reality that would be valid for all other fields.166 From these numerous examples it is clear that in contrast to the nineteenth century’s external realisms, the theoretical thinking of the twentieth century introduced radical internalism. Aggressive struggle ontologies gave place to conciliating compatibilisms. However, the seemingly unnoticed fact until now is that this transition was carried out by means of importing categories of practical philosophy (morals, law, politics, religion) into theoretical philosophy (ontology, epistemology, metaphysics). Some more examples from the theories analyzed above will make this evident. Carnap identified in the theories of knowledge a degree of ‘absolutism’ that should be countered by a ‘principle of tolerance’ within epistemology, so that individuals would be bound only by the linguistic framework that they ‘accept’; everyone should construct his own logic “as he likes”.167 He was firmly committed to the ideals of enlightenment and worked on this project combining theory and practice in a way that neither the latter nor the former take an absolute place over each other.168 As for Toulmin, one of his main purposes in the epistemology of fields of arguments was to break the ‘absolutism’ of formal logic, which conferred a “preferential status” for logical arguments.169 He challenged the claim that the “Court of Reason” could judge the soundness of every substantial argument and, correspondingly, he attempted to restrict the “judicial function of reason”170 – an account that sounds reasonably liberal when one compares scientific claims, as he did, with “rights” and “titles”.171 The many theorists of systems theory, in their turn, suspended the hierarchy between social systems and substituted previous vertical socio-evolutionary accounts based on biology by ‘horizontal relations’ between ‘autonomous’ systems.172 Finally, Gabriel’s ontology of fields of sense rejected the attribution of ‘privileges’ for one kind of object over another, since every kind of object exists, according to him, with the same ‘right’; he holds a ‘pluralist’ ontology instead of adhering to monist 165 Aristotle, Metaphysik (n. 5), Metaphysik, VIII, 1003a. 166 Willaschek, ʻWas ist “schlechte Metaphysik”?’ (n. 96), at 145–146. 167 Carnap, Rudolf Carnap, Bedeutung und Notwendigkeit. Eine Studie zur Semantik und modalen Logik (n. 90), at 260; Carus, Carnap and the Twentieth-Century Thought. Explication as Enlightenment (n. 102), at 19. As to absolutism, see ibid., at 255. According to Carnap, “in all theories of knowledge to date there is a certain absolutism: in the realistic theories an absolutism of objects, in the idealistic ones (including phenomenology) an absolutism of the ‘given’, of ‘experiences’, …”, Carnap, in: Über Protokollsätze, transl. By R. Creath and R Nollan, apud: ibid., at 255–256. Willaschek has expanded this principle into a ‘cognitive autonomy of human beings’: “Man darf andere gerechterweise nur an solchen Standards messen und solchen Regeln unterwerfen, die sie selbst anerkennen oder doch vernünftigerweise anerkennen sollten”, Willaschek, ʻWas ist “schlechte Metaphysik”?’ (n. 96), at 146. 168 According to an interpretation by Carus, Carnap and the Twentieth-Century Thought. Explication as Enlightenment (n. 102), at 8–31, Carnap’s theoretical enterprise is located between Quine’s overestimation of theory for practice and Habermas’ and Critical Theory’s overestimation of practice for theory. 169 Toulmin, The uses of argument (n. 108), at 156. 170 Ibid., at 161–162. 171 Ibid., at 11. 172 Vesting, Rechtstheorie. Ein Studienbuch (n. 48), marginal number 132.

54

André Ferreira Leite de Paula

or dualist metaphysical systems.173 According to him, it is important to preserve ‘dissent’ within society, since the very existence of objects of reference would be somehow related to dissent.174 What the expressions in single and double quotation marks in the previous paragraph have in common is the fact that they are categories of practical philosophy, most remarkably of political liberalism. Autonomy, combat of absolutism, defense of pluralism, equal rights, rejection of privileges, appraisal of dissent, defense of minorities’ pretentions against the majority rule were central concerns of the political agenda of twentieth century Western societies. These concerns were ubiquitous in journalism, in the public sphere in general, and within the liberal academic establishment. Liberal views175 became an inherent part of the social morality (or group morality),176 the set of 173 Gabriel, Warum es die Welt nicht gibt (n. 132), at 76; Gabriel, ʻExistenz, realistisch gedacht’ (n. 134), at 198. 174 Ipsis literis: “Dies bedeutet aber, dass die Gemeinschaft derjenigen, die Regeln folgen und die deswegen überhaupt vermögen, sich auf Gegenstände zu beziehen, immer schon eine Gemeinschaft Dissertierender ist. Käme die Gemeinschaft jemals vollständig überein, d. h. wäre der von Habermas gepriesene utopische Konsens jemals erreicht, gäbe es überhaupt keine Gegenstände der Bezugnahme mehr. Die Existenz von Gegenständen verweist somit auf die Möglichkeit des Dissenses”, Markus Gabriel, ʻDie Welt als konstitutiver Entzug’, in Joachim Bromand and Guido Kreis, eds., Was sich nicht sagen lässt. Das Nicht-Begriffliche in Wissenschaft, Kunst und Religion (Berlin: Akademie Verlag, 2010), 85–100, at 97. His position seems to be incompatible with his later criticism on ‘fields-constructivism’ (Bereichskonstruktivismus) in Gabriel, Sinn und Existenz (n. 133), at 174–175, which does not change the fact that the theory has been developed historically, culturally and psychologically out of liberal political ideals such as preservation of dissent. 175 Mangabeira Unger calls them the “social consciousness of the liberal state” in Mangabeira Unger, Knowledge and Politics (n. 10), at 152. Beyond the plurality of liberal thought there are some core presuppositions about nature and society that can be described as forming the social consciousness within liberal states. This includes instrumental rationality, individualism, impersonal rules, and bureaucracy. See ibid., at 152–174. 176 Group morality is a psychological property of collectives such as a mass of people, the audience of a spectacle, the people of a country, the public sphere, or mass media. Every mentally connected group of individuals has its group morality. The ‘collective’ can be comprehended as “une collectivité purement spirituelle, comme une dissémination d’individus physiquement séparés et don’t la cohésion est tout mentale”, Gabriel Tarde, L’Opinion et la foule, 3rd ed. (Paris: Félix Aucan, 1910), at 2. The group morality grounds on the anthropological facts that (1) “la simple connaissance de l’adhésion d’un grand nombre de nos semblables à ce jugement nous dipose à juger dans le même sens” (ibid., at 6), that (2) “quel que soient les individus qui la composent [la foule psychologique], quelque semblables ou dissemblables que soient leur genre de vie, leurs occupations, leur caractère ou leur intelligence, par le fait seul qu’ils sont transformés en foule, ils possèdent une sorte d’âme collective qui les fait sentir, penser, et agir d’une façon tout à fait différent de celle don’t sentirait, penserait et agirait chacun d’eux isolément”, Gustave Le Bon, Psychologie des foules (Paris: Félix Alcan, 1895), at 15, and that (3) “insofern es zu allen Zeiten, so lange es Menschen giebt, auch Menschenheerden gegeben hat (Geschlechts-Verbände, Gemeinden, Stämme, Völker, Staaten, Kirchen) und immer sehr viel Gehorchende im Verhältnis zu der kleinen Zahl befehlender, – in Anbetracht also, dass Gehorsam bisher am besten und längsten unter Menschen geübt und gezüchtet worden ist, darf man billig voraussetzen, dass durchschnittlich jetzt einem Jeden das Bedürfnis darnach angeboren ist, als eine Art formalen Gewissens, welches gebietet: ‚du sollst irgend Etwas unbedingt thun, irgend Etwas unbedingt lassen‘, kurz ‚du sollst‘”, Nietzsche, Jenseits von Gut und Böse (n. 6), § 199, at 119. The group morality is never endlessly fragmented; it always has an identifiable core of dominant assumptions: “malgré les divergences et la multiplicité des publics coexistants et entremêlés dans une societé, ils semblent former ensemble un seul et même public, par leur accord partiel sur quelques points importants; et c’est ce qu’on appelle l’Opinion, don’t la prépondérance politique grandit toujours”, Tarde, ibid., at 26.

On the Unities of Law, Practical Reason, and Right

55

dominant normative views that are considered to be certainly true or politically correct, the positions that most citizens, journalists, politicians, and scholars take if they wish to stay on the correct side of socially accepted morality in order to ‘play safe’, which includes the set of beliefs that are predominantly considered to be progressive,177 even if they are not shared by the majority and even when they are not really progressive. The point here is that the systematic employment of precisely these categories of political philosophy in theoretical philosophy was an inherently liberal conception of non-political reality, a politicization and liberalization of epistemology on a deep level. Their relation with political liberalism is clear: in the same way as within liberalism the centralized power of the state recognizes individuals’ liberties and regulates society independently of a “comprehensive doctrine”178 about the good (i. e. in the same sense that within political liberalism, conceptions of the good are not susceptible to revision from outside or to legitimation with recourse to an objective good outside of the individual’s factual or potential recognition), in the epistemologies of fields one acknowledges some degree of validity of propositions within fields independently of their truth-value as considered by another field, i. e. there is no possibility of defeating claims from outside. The plurality of values of political liberalism was imported into epistemology in the form of plurality of science. The patterns of thought of division of labor,179 egalitarianism,180 and autonomy of individuals were transformed into division of labor, 177 Progressive here does not mean what is really progressive, but merely the social fact of what is predominantly considered to be progressive by the group. The consideration of some views as progressive can be also part of the group morality, even if the content of these beliefs are not shared by the majority. For example, left-wing opinions were overwhelmingly considered to be progressive throughout all the nineteenth and twentieth century in Western countries, they almost defined culturally what counted as progressive, but did not correspond to the normative beliefs of the majority of the population who were, especially in the nineteenth century, an agrarian population to a great extent. In regard to the theories analyzed above, we can mention the example of Carnap, who took a position against German National Socialism and stood for ‘scientific humanism’, defended the establishment of a world government against national elites, and in ethics stressed the role of individual rather than collective happiness. These positions were also aligned with liberal values, and were socially considered to be progressive. See Thomas Mormann, Rudolf Carnap (Munich: C. H. Beck, 2000), at 33–37. In addition, the aggressive criticism of metaphysics within the Circle of Vienna, which Carnap was a member of, can be associated with political liberalism, as it undermines religion and, consequently, the legitimacy of a religion-close government such as the Habsburg’s monarchy. 178 John Rawls, Political Liberalism (New York: Columbia UP, 1993), at 173–176. 179 See Max Horkheimer’s criticism of the formalization and instrumentalization of reason in modern history: “On the one hand, tolerance means freedom from the rule of dogmatic authority; on the other, it furthers an attitude of neutrality toward all spiritual content, which is thus surrendered to relativism. Each cultural domain preserves its ‘sovereignty’ with regard to universal truth. The pattern of the social division of labor is automatically transferred to the life of the spirit, and this division of the realm of culture is a corollary to the replacement of universal objective truth by formalized, inherently relativist reason”, Horkheimer, Eclipse of Reason (n. 36), at 13. 180 “With respect to its social and political organization, liberal society is defined by the dissolution of the postfeudal, aristocratic system of estates or fixed social ranks and by the consequent distinction between political status and social circumstance. Social position no longer defines political status. All persons in principle achieve formal equality as citizens and as legal persons; they acquire similar political and civic duties and entitlements. But a relatively broad range of inequities in social and economic circumstances is tolerated, and treated as a matter different from legal-political equality”, Mangabeira Unger, Knowledge and Politics (n. 10), at 151.

56

André Ferreira Leite de Paula

egalitarianism, and autonomy of fields. Within liberalism, there is no objective good, since the good is seen to be relative to individuals’ opinions; likewise, in the epistemology of fields, there is no unity of reality, since reality is seen to be a product of (or identical with) each field’s descriptions, whereas all fields of research are seen to have the same epistemic value, without ‘privileges’. To conceive of social reality as being composed of individuals (or of theoretical reality being composed of fields) that are a-priori recognized for the sake of their autonomy is an inherently liberal world view. Indeed, as Carl Schmitt and Ernst Forsthoff have observed, the very view of society as being composed of ‘autonomous orders’ is tendentially and tendentiously liberal.181 Already for this very reason, pluralism cannot be simply considered as a reality behind an ideology of unity or, as Gabriel puts it, as a monist phantasmagoria of an all-encompassing reality,182 since it is a specifically liberal framing of reality, an ideology of pluralism. The systematic employment of precisely liberal categories and metaphors is, regardless whether it is intentional or not, not merely accidental; it is not a mere terminological accident that could be substituted by terms that do not have a similar political connotation. The employed liberal patterns of thought cannot be explained away with the argument that they would be, actually, only façons de parler and not real parts of the theories. The epistemologies of fields are merely more subtle and sophisticated liberalizations of epistemology than other more explicit projects such as Paul Feyerabend’s ‘tolerant epistemology’,183 Dreyfus’ and Taylor’s “robust and pluralistic realism” against ethnocentrism,184 or Boaventura de Sousa Santos’ “Epistemology of the South” against “epistemicide”.185

181 In this respect, Carl Schmitt has stated that “outside of the political, liberalism not only recognizes with self-evident logic the autonomy of different human realms but drives them toward specialization and even toward complete isolation. That art is a daughter of freedom, that aesthetic value judgment is absolutely autonomous, that artistic genius is sovereign – all this is axiomatic of liberalism. … Morality became autonomous vis-à-vis metaphysics and religion, science vis-à-vis religion, art, and morality, etc. The most important example of such an autonomy is the validity of norms and laws of economics. That production and consumption, price formation and market have their own sphere and can be directed neither by ethics nor aesthetics, nor by religion, nor, least of all, by politics was considered one of the few truly unquestionable dogmas of this liberal age. With great passion political view points were deprived of every validity and subjugated to the norms and orders of morality, law, and economics”, Carl Schmitt, The Concept of the Political (1932). Expanded edition, transl. by George Schwab (Chicago: Chicago UP, 2007), at 72. Similarly, Ernst Forsthoff, Der totale Staat (Hamburg: Hanseatische Verlagsanstalt, 1933), at 7. 182 Gabriel, Sinn und Existenz (n. 133), at 464. 183 Paul Feyerabend’s epistemology is an explicit attempt at liberalization of epistemology by means of application of liberal political requirements for the adequacy of scientific methods, thus claiming a primacy of politics over scientific truth. For him, “a method that encourages variety is also the only method that is compatible with a humanitarian outlook”; he also pleaded for a “tolerant attitude towards meanings”. See Paul Feyerabend, ʻHow to Be a Good Empiricist – a Plea for Tolerance in Matters Epistemological’, in P. H. Nidditch, ed., The Philosophy of Science (Oxford: Oxford UP, 1968), 12–39, at 33–34. 184 Hubert Dreyfus’ and Charles Taylor’s “robust and pluralistic realism” is also an attempt in the sense of a political combat against ethnocentrism as a reason for maintaining pluralism within science. See Hubert Dreyfus and Charles Taylor, Die Wiedergewinnung des Realismus (Berlin: Suhrkamp, 2016), at 212–213, 275–285. 185 Boaventura de Sousa Santos, ed., Epistemologies of the South. Justice against Epistemicide (New York: Paradigm Publishers, 2016).

On the Unities of Law, Practical Reason, and Right

57

Therefore, it is firstly necessary to solve the problem of the projection of group morality (in this case, the problem of the projection of the substantive morality of liberalism186) into investigations of non-political reality. In other words, it must be shown to what extent non-hierarchy, non-privilege, pluralism, tolerance, autonomy of fields, etc. would not only exist in the eyes and conscious or unconscious aspirations of liberal observers (i. e. that they are not only a liberal bias or a specific liberal construction of reality that could be easily defeated by an illiberal construction of the same kind), but whether they are immanent in reality itself, beyond constructions and aspirations. This next movement of consciousness, as Hegel would put it, must be accomplished in order to solve the question of the viability of an epistemology of fields. The realization of the politicization of epistemology by importing categories from political philosophy at a deep level does not presuppose that the respective scholars have elaborated theories with the occult intention of promoting political liberalism; they were not explicit epistemologies for political liberalism in the strict sense as commonly pursued in political philosophy,187 but, nevertheless, they were an import of political thinking into epistemology, thus unintentionally consolidating the genre of liberal epistemology. The systematic construction of epistemology with political categories is a special case of the primacy of practical over theoretical philosophy;188 it is a special case of the social influence of practice on theory-building. This phenomenon has been observed by many authors in many moments in history.189 An especially influential exam186 As is well known, political liberalism often claims moral neutrality, a neutrality in relation to ‘substantive’ moral views. See for example Wojciech Sadurski, Moral Pluralism and Legal Neutrality (Dordrecht: Kluwer Academic Publishers, 1990), at 89–196. However, the claims to neutrality of political liberalism have been submitted to strong criticism and can be seen as untenable, as discussed below. See also the criticism of Schmitt, Der Begriff des Politischen (n. 43) and Chantal Mouffe, The return of the political (London, New York: Verso, 1993), especially at 142. 187 For an epistemology of liberalism in strict sense that aims a justification of liberalism, see for example Gerald Gaus: “justificatory liberals require a normative theory of justification – a theory that allows them to claim that some set of principles is publicly justified, even given the fact that they are contested by some. And this, in turn, appears to call for a moral epistemology, in the sense of an account of the conditions for justified moral belief, or at least justified adherence to social principles”, Gerald F. Gaus, Justificatory Liberalism. An essay on epistemology and political theory (New York: Oxford Univ. Press, 1996), at 3. 188 Here, again, Nietzsche’s psychological analysis of theory building is enlightening: “… dass die moralischen (oder unmoralischen) Absichten in jeder Philosophie den eigentlichen Lebenskeim ausmachten, aus dem jedesmal die ganze Pflanze gewachsen ist. In der That, man thut gut (und klug), zur Erklärung davon, wie eigentlich die entlegensten metaphysischen Behauptungen eines Philosophen zu Stande gekommen sind, sich immer erst zu fragen: auf welche Moral will es (will e r -) hinaus?”, Nietzsche, Jenseits von Gut und Böse (n. 6), 1st part, § 6. 189 The projection of thinking patterns of politics onto non-political reality is something that can be observed all throughout the history of political thought. Friedrich Nietzsche, for example, has very sophisticatedly observed that Herbert Spencer, a liberal thinker, has imported the idea of decentralized evolution from liberalism into biology: the basis of evolution was according to Spencer neither a divine or teleological central power nor the autonomous activity of organisms, but determined by decentralized external factors from the environment that lead to a passive adaptation of organisms. In this way, a liberal regime of thought (decentralization of social and economic development) has been applied to biology rather than the other way around. See Friedrich Nietzsche, Zur Genealogie der Moral: in: Kritische Studienausgabe (eds. Giorgio Colli, Mazzino Montinari, Munich: DTV, 1999), § 12. For a speculation about Kant’s projection of democratic and liberal thinking into metaphysics and epistemology, see Karl Mannheim, Essays on

58

André Ferreira Leite de Paula

ple of liberalization of epistemology can be found in Kant’s philosophy, which stressed the ‘spontaneity’ of the subject and required universality for the validity of arguments not only in practical philosophy, but also in theoretical fields of knowledge. One can speculate whether this requirement and other characteristics of his philosophy were actually imports of liberal patterns of thought into epistemology. Such a hypothesis would well correlate with his moral-political liberalism that he developed in his writings on practical philosophy.190 Independently of that, we can say in general that theories about ontology and epistemology (not reality itself, which is the object of scientific inquiry, although theories are themselves additional parts of reality that can be the object of other theories) are indeed individual and social constructions submitted to cultural influence.191 This realization calls not for the elimination of categories from practical philosophy for the grasp of non-political reality, but for special attention in their employment in order to know whether we are projecting politics onto non-political parts of reality and, especially, submitting law and society, even biology and the whole pre-political history to a specific political regime of thought. Accordingly, taking the examples given here, the reader of this article is asked to think about what categories and patterns of thought the sociology of culture (New York: Oxford University Press, 1956), at 184–189. Oswald Spengler identified ‘inner relationships’ between physics and ethics in which ethical worldviews contribute to the shape of natural science more than the other way around: “Nach Leukippos fliegen die Atome ‘von selbst’ im Leeren herum; Demokrit nimmt lediglich Stoß und Gegenstoß als Form der Ortsveränderung an; Aristoteles erklärt die Einzelbewegungen für zufällig; bei Empedokles findet sich die Bezeichnung Liebe und Haß, bei Anaxagoras Zusammentreten und Auseinandertreten. Das alles sind auch Elemente der antiken Tragik. So verhalten sich die Figuren auf der Szene des attischen Theaters. Das sind also auch Daseinsformen der antiken Politik”, Oswald Spengler, Der Untergang des Abendlandes: Umrisse einer Morphologie der Weltgeschichte, vol. 1, 3rd ed. (Munich: Deutscher Taschenbuch-Verlag, 1972, reprint of the edition 1923), at 494. 190 See Mannheim’s analysis of the “democratization of culture” in Mannheim, Essays on the sociology of culture (n. 189), 184–192. “The democratic mind rejects all alleged knowledge that must be gained through special channels, open to a chosen few only. It accepts as truth only that which can be ascertained by everybody in ordinary experience, or that which can be cogently proved by steps that everybody can reproduce”, ibid., at 184. About Kant as a liberal thinker, see Münkler and Straßenberger: “Kant hat die Tugendpflichten aber der Morallehre zugeordnet und ausdrücklich aus dem politischen System der Rechtslehre herausgenommen und damit die Tugendzumutungen des Republikanismus relativiert. Insofern er die Tugend nicht der äußeren, sondern der inneren Freiheit zurechnet, also jenem der äußeren Gesetzgebung nicht zugänglichen Bereich, in dem jeder nur ‘vor sich selbst’ verpflichtet ist, zieht er eine klare Trennlinie zwischen dem Wirkungsbereich der Politik und der moralischen Konstitution des Einzelnen. In diesem Sinne ist Kant ein Liberaler: Er denkt die politisch-rechtliche Ordnung als in sich stabil, ohne dabei auf die sittlichen Dispositionen der Menschen rekurrieren zu müssen”, Herfried Münkler and Grit Straßenberger, Politische Theorie und Ideengeschichte: Eine Einführung (Munich: C. H. Beck, 2016), at 156–157. About the bourgeois character of Kant’s philosophy, see Peter Sloterdijk, Philosophische Temperamente. Von Platon bis Foucault (Munich: Diederichs, 2011), at 64–69. 191 In this regard, Foucault’s diagnosis of the changeability of contents of a field throughout time is correct: “Qu’est-ce donc que la médecine, la grammaire, l’économie politique? Ne sont-elles rien, qu’un regroupement retrospectif par lequel les sciences contemporaine se font illusion sur leur propre passé? Sont-elles des formes qui se sont instaurées une fois pour toutes et se sont développées souverainement à travers le temps? … cet ensemble d’énoncés est loin de se rapporter à un seul objet, formé une fois pour toutes, et de le conserver undéfiniment comme son horizon d’idealité inépuisable”, Foucault, L’archéologie du savoir (n. 150), at 48–49. See also Foucault, L’ ordre du discours. Leçon inaugurale au Collège de France pronocée le 2. décembre 1970 (n. 61), at 33–34.

On the Unities of Law, Practical Reason, and Right

59

of practical philosophy he is using in order to arguably describe facts of non-political or non-moral reality. Although the construction of epistemology with political categories is sometimes not intended to be a justification of liberalism as a political regime, it has, at least, implicit and indirect, but important liberal effects. For Carnap, it is important to stress that individuals cannot be criticized for the choices of theory that they make, which is obviously a direct practical consequence. Markus Willaschek has amplified Carnap’s liberal requirement of internal justification to a kind of moral ‘cognitive autonomy’ that requires respect for different points of view.192 In Luhmann’s systems theory and in its further developments and applications by legal scholars, the radical insistence on the autonomy of the social system of law in relation to other social systems, most remarkably politics and religion, has the practical effect for example of attacking both the power of the national elites and the influence of organized religious communities: if law is comprehended as a social system rather than a system of norms issued by a legislative authority (i. e. if natural law theories and normativist positivism are substituted by sociological positivism), the concept of a ‘legal system’ is moved towards a ‘social system of law’. In this way, the contents of law are not those given by some national elite by means of legislation, but those given by a whole social system in a decentralized manner, whereby the contents provided by the national elites through the state apparatus are only a small part. Clearly, according to this social positivist understanding of law, religious communities cannot claim special access to the interpretation of law, since religion is also defined as being only another autonomous social system that can at the most ‘irritate’ but never dictate what is legal. Luhmann’s systems theory is, therefore, not liberal by explicit claims, but by its conceptual framing of social reality and by the normative effects logically related to its framing. Additionally, the claimed impossibility of causality between social systems for example has the effect of a non-intervention requirement, with the implicit commitment that, if determination from outside is anyway impossible, we should not even try to regulate legally or politically what is autonomous. In this way, systems theory provides a theoretical framework for enhancing autonomous developments of social actors in religion, economy, science, etc., without state intervention: religion cannot determine the contents of the law; the law cannot determine the contents of religions. It is hard to conceive of a definition of law that expresses more liberal bourgeois ideals than systems theory’s idea of ‘stabilization of normative expectations’: when law is defined in this way, the definition has the effect of guaranteeing citizens’ security conceptually for their private business. Similarly, Carnap and most other participants of the Circle of Vienna hold an epistemological pluralism that claims the impossibility of reductionism of one field’s categories into another field’s categories. In that context, its practical meaning was an attack on metaphysics and on the established views that backed the Austrian Catholic authorities, which was in the interest of ethnic minorities in the Empire.193 Furthermore, 192 Willaschek, ʻWas ist “schlechte Metaphysik”?’ (n. 96), at 146–147. 193 Ubiratam B. de Macedo, ʻA ‘crise da ciência’ e o renascimento da filosofia política’, Revista Brasileira de Filosofia, 35, 142/143 (1986), 87–102, 183–199, at 96–97.

60

André Ferreira Leite de Paula

if applied to today’s context, Carnap’s, Toulmin’s, and Gabriel’s theories comply with the egalitarian academic ethos that does not admit a qualitative hierarchy between fields of research. Criticism of the research of colleagues arguing their irrelevance is a taboo in the academic environment, even when the criticism is well justified.194 Accordingly, the tenet of liberal epistemology for this case is that many or all other fields of research would be equally “dignified”195 – a supportive and pacifying attitude in times of hugely increasing academic population.196 For a final example of the effects of the epistemology of fields for political ideology, one could mention the remarkably insistent negation of the existence of an all-encompassing unity of reality in Gabriel’s theory, which matches the liberal requirements for a secular political order in which religions and theology are not expected to overcharge social life with absolute truths. III. The realist defeat of genealogy or: the genealogy of genealogy Of course, the mere indication of historical, sociological, and ideological causes and effects that do not justify theories is never enough for refutation, for there could be reasons and purposes that do justify their claims beyond non-justifying causes. Every critique must be accompanied by a frontal discussion of the truth-value of the criticized views. The most basic truths of the general complex of liberal epistemology that are not only in the eyes and agenda of the liberal observer are, indeed, (1) the possibility of multiple descriptions of the same reality with different categories and (2) the conjointment of diverse propositions which may be contradictory among each other in order to form fields or disciplines. The very same event in reality can be described as a ‘visit to a store’, which would be a description in the linguistic framework (or social system, field of argument, field of sense, etc.) of law, or as the ‘request for an IP address’, which would be a description within the field of informatics.197 Precisely the attempt of compatibilization of the many possible descriptions (subjective and objective,198 internal and external,199 194 “If contemporary scholarship is surprisingly complacent about its inconsistent diversity, it is also anti-intellectual in its aspiration. Theoretical work is understood to succeed when it remains pragmatic, close to the ground and primarily descriptive – although descriptive of values as much as of behaviors. The work as a whole seems unsystematic in methodology and is often self-consciously eclectic, absorving inconsistency and contradiction in the name of realism and effectiveness … By keeping value conflicts ackowledged but submerged theory is able to defend itself as a form of pluralism. … This theoretical stance protects modern doctrinal discourse from scholarly challenge”, David Kennedy, ʻThe Turn to Interpretation’, Southern California Law Review, 58 (1985), 251–275, at 256–257. 195 Gabriel, Fields of Sense (n. 135), at 336. “Ehrwürdig” in the German edition of Gabriel, Sinn und Existenz (n. 133), at 464. 196 About the rise and devaluation of the academic population from a historical perspective, see Osterhammel, Die Verwandlung der Welt (n. 151), at 1155. 197 See Orin S. Kerr, ʻThe Problem of Perspective in Internet Law’, Georgetown Law Journal, 2003, Bd. 91, 357–405. 198 See Thomas Nagel, The view from nowhere (New York: Oxford Univ. Press, 1986). 199 See, for example, the debate about internal and external skepticism in Dworkin, ʻObjectivity and Truth. You’d Better Believe It’ (n. 155).

On the Unities of Law, Practical Reason, and Right

61

lower-level and higher-level,200 etc.) has been a major concern of epistemology in the twentieth century. This need has been caused by the rise of knowledge, specialization, and academic institutionalization of sciences.201 So, the epistemology of fields makes the important point against reductionist and eliminativist projects of many kinds, previously advanced by Hegel on a higher philosophical level,202 that a great part of scientific and philosophical work consists in making internal developments and criticism of specialized fields and theories. Thus, the genealogical attempt of defeating a claim by means of indicating causes of its emergence that do not justify it, which was common in the nineteenth century and led to the reaction of a more liberal epistemology in the twentieth century, is flawed in many ways. Firstly, because it fails to see that the very genealogical claim can have the same nature of the criticized claim, i. e. it can inherit the epistemic predicate. In the terminology of the liberal epistemology, it can also be part of the same linguistic framework, field of argument, field of sense, etc. of the criticized claim and therefore be submitted to the same internal standards of argumentation. For instance, arguments that challenge a moral claim are normally themselves moral, i. e. they rest at least implicitly on a conception of morality. If someone says that there are no moral truths because he can appoint causes why people hold moral beliefs that do not justify these beliefs, he is making by logical necessity the moral claim that it is not really morally wrong to commit theft or that it is not really morally right to be honest, since, if there are no moral truths, these propositions are not morally true.203 In the same sense, metaphysical 200 See Dupré, The Disorder of Things (n. 86) and John R. Searle, Seeing things as they are: A theory of perception (New York: Oxford University Press, 2015), at 51. 201 See Jacques Bouveresse, Le philosophe chez les autophages (Paris: Editions de Minuit, 1984); Hans Albert, Traktat über kritische Vernunft (Tübingen: J. C. B. Mohr, 1968), at 106. 202 See Hegel’s discussion of the possibility of refutation of philosophical systems in especial regard to Spinoza’s system: “in Rücksicht auf die Widerlegung eines philosophischen Systems ist anderwärts gleichfalls die allgemeine Bemerkung gemacht worden, daß daraus die schiefe Vorstellung zu verbannen ist, als ob das System als durchaus falsch dargestellt werden solle und als ob das wahre System dagegen dem falschen nur entgegengesetzt sei. … Ferner muß die Widerlegung nicht von außen kommen, d. h., nicht von Annahmen ausgehen, welche außer jenem Systeme liegen, denen es nicht entspricht. Es braucht jene Annahmen nur nicht anzuerkennen; der Mangel ist nur für den ein Mangel, welcher von den auf sie gegründeten Bedürfnissen und Forderungen ausgehet. … Die wahrhafte Widerlegung muß in die Kraft des Gegners eingehen und sich in den Umkreis seiner Stärke stellen; ihn außerhalb seiner selbst anzugreifen und da Recht zu behalten, wo er nicht ist, fördert die Sache nicht”, Georg Wilhelm Friedrich Hegel, Wissenschaft der Logik (1813, 1816) (Berlin: Hofenberg Sonderausgabe, 2016), at 552–553 (vol. 2, die Lehre vom Begriff; der Begriff im Allgemeinen). 203 “So, for example, the thesis that there is no right answer to the question whether abortion is wicked is itself a substantive moral claim, which must be judged and evaluated in the same way as any other substantive moral claim; the thesis that there is no right answer to the question how a clause of the Constitution should be understood is a legal claim, which must, again, be judged or evaluated like other legal claims; the statement that it is indeterminate whether Picasso or Braque was the greater creative artist is an artistic or aesthetic claim; and so forth”, Dworkin, ʻObjectivity and Truth. You’d Better Believe It’ (n. 155), at 89. See also Chantal Mouffe, The Return of the Political (London: Verso, 1993), at 141–144. Furthermore, as Jacques Bouveresse pointed out, “en excluant toute référence à des valeurs objective, le relativiste conséquent se trouve, lui aussi, pris au piège: amoraliste dans sa décision de considérer toutes les options morales comme équivalentes, il voudrait cependant pouvoir condamner moralement le non-respect d’autres options”, Jacques Bouveresse, Rationalité et cynisme (Paris: Les Editions de Minuit, 1984), at 61.

62

André Ferreira Leite de Paula

claims can only be defeated by better metaphysics. There are only metaphysical answers to metaphysical questions.204 Similarly, arguments against a certain political view are often themselves political and cannot take the rhetorical advantage of being arguably non-political (for example, only procedural, legal, or economic) and, therefore, having a privileged status of neutrality that would per se prevail over evidently political arguments.205 In general, when the arguments for or against a certain solution of a certain question inherit the epistemic predicate of the question, criticism from outside remains analytically impossible. Secondly, genealogical programs, in order to defeat a claim by means of indication of a more basal reality that causes but does not justify it, establish an a-priori ontological hierarchy between kinds of facts and objects, from which some are said to be real and others simply non-real or only epiphenomena of the real ones. If numbers, pieces of music, literary characters or the soul are said to be fictions because they are not material or at least physical; or if money, rules, and social facts are taken to exist only while (and in dependence of) someone has mental states in their sense, one establishes an a-priori ontological hierarchy between a lower, ‘more real’ or only real level of reality on the one hand (matter, mental states) and fiction or at least an epiphenomenal level of reality on the other hand (non-material facts, facts that are not of counsciousness).206 Especially against these materialist and psychologist reductionisms, many epistemologies of fields make the important claims that (1) there are many ways of existence of things that are not material or reducible to mental states of individuals, and that (2) the very existence of these things is already presupposed by eliminativist criticism, which must at least refer to them as a necessary means of criticism, whereby one presupposes exactly what one wants to eliminate.207 204 According to Markus Willaschek, “Wer zeigen will, daß es unmöglich ist, die Fragen der Metaphysik überzeugend zu beantworten, kann dies nicht durch eine endliche Zahl von Beispielen tun, sondern muß prinzipielle Argumente anführen. Wie ich glaube, muß man sich dazu zwangsläufig selbst auf den Boden der Metaphysik begeben”, Willaschek, ʻWas ist “schlechte Metaphysik”?’ (n. 96), at 137. 205 See Carl Schmitt’s conception of the ‘autonomy of the political’ in Schmitt, Der Begriff des Politischen (n. 43). 206 As the example of John Searle’s theory of social facts shows: “On the account that I have been giving you in this book, it is clear that rock bottom is the world as described by atomic physics. … These particles exist in fields of force and are organized into systems, where the boundaries of the systems are set by causal relations. Examples of systems would be water molecules, babies, nation states, and galaxies. … One of the tasks of philosophy is to explain the constitution of these higher-level systems and how they bottom out into the entities of atomic physics”, Searle, Seeing things as they are (n. 200), at 222–223. Searle’s view is a kind of “traditional, hierarchical, levels-based view of reality, according to which there are distinct physical, living (or biological), intentional (or psychological), and social levels, with entities at ‘higher’ levels being organized systems of entities at immediately ‘lower’ levels”, Robert A. Wilson, ʻSocial Reality and Institutional Facts: Sociality within and without Intentionalty’, in Savas L. Tsohatzidis, ed., Intentional Acts and Institutional Facts. Essays on John Searle’s Social Ontology (Dordrecht: Springer, 2007), 139–153, at 149. The reductionism of all reality into matter is a materialism. See Dupré, The Disorder of Things (n. 86), at 89. Criticism of Searle’s materialism in Gabriel, Sinn und Existenz (n. 133), 203–204. 207 As Vaas explains, “wenn es das Ziel des Reduktionisten ist, Beschreibungen auf der höheren Ebene vollständig auf solche der niedrigen Ebene zu reduzieren (durch diese zu ersetzen), muß er scheitern, wenn er explizit oder implizit Tatsachen der höheren Ebene für diese Reduktion voraussetzt. Diese Voraussetzungen können zum Beispiel darauf basieren, daß a) der Reduktionist auf Informationen in Begriff-

On the Unities of Law, Practical Reason, and Right

63

Thirdly, the attempt to defeat a claim through the discovery of causes of the raising of that claim that are not justifications always fails when there are causes that do justify the claim (legitimating genealogy208). If someone believes that the Earth is round because he observed that ships disappear below the horizon of the ocean while sailing away from the coast, one of the causes of his belief can justify it: if the Earth were not round,209 the ships would not perform this movement and the person, especially in ancient times, would not have believed that the Earth is round. Analytically, a fact in the time t1 (the Earth is round, which continues to be the case at t2 and t3) causes an event in the time t2 (ships move below the horizon), which, in its turn, causes another event at t3 (person A believes that the Earth is round and would not have believed it if the event at t2 would not happened). Because of this chain of causality, one can say without vicious circularity that the person believes that the Earth is round because the Earth is round. This is a cause that justifies the belief. This is the tautology of truth: the conceptual repetition in the intellect of what is the case independently of the activity of the intellect (adequatio rei et intellectus). The same pattern holds for all true beliefs: the fact that reality is as it is also causes people to have the beliefs that they have. Of course, the fact at t1 is not an argument for the belief at t3, for what is at stake in the context of justification is precisely why the belief is true and this cannot be explained by means of tautologies. However, the fact at t2 would be an example of a proper inductive argument for the belief. Of course, at t2 there may be also many causes of the belief at t3 that do not justify the belief. For example, it may be that the individual would not have had this thought if he had not been invited to a celebration on the beach exactly on that day, or if he had lived in a reen der höheren Ebene für seine Erklärungen nicht verzichten kann, zum Beispiel den Begriff ‚Gefühle‘, wenn deren neurobiologischen Grundlagen erforscht werden sollen, oder b) der Reduktionist funktionale Begriffe verwenden muß, die nur auf der höheren Ebene einen Sinn haben, zum Beispiel in einer individualistischen Gesellschaftstheorie die soziale Rolle des Finanzbeamten, die Institutionen voraussetzt”, Rüdiger Vaas, ʻReduktionismus und Emergenz’, Konzepte Sonderforschungsbereich 230, 45 (1995), 102–161, at 150. The impossibility of an elimination of abstract things by means of presupposing them is also the underlying thought of Robert Brandom’s critique of genealogy and of its ‘semantic naïveté’. See Brandom, Reason, Genealogy, and the Hermeneutics of Magnanimity (n. 58), at 6–10. This is also the underlying thought of MacIntyre’s criticism on the doctrine of emotivism in meta-ethics: “if the theory is to elucidate the meaning of a certain class of sentences by referring to their function, when uttered, of expressing feelings or attitudes, an essential part of the theory will have to consist in an identification and characterization of the feelings or attitudes in question. On this subject proponents of the emotive theory are in general silent, and perhaps wisely. For all attempts so far to identify the relevant types of feelings or attitudes have found it impossible to avoid an empty circularity. ‘Moral judgments express feelings or attitudes,’ it is said. ‘What kind of feelings or attitudes?’ we ask. ‘Feelings or attitudes of approval: is the reply. ‘What kind of approval?’ we ask, perhaps remarking that approval is of many kinds. It is in answer to this question that every version of emotivism either remains silent or, by identifying the relevant kind of approval as moral approval – that is, the type of approval expressed by a specifically moral judgment – becomes vacuously circular”, MacIntyre, After Virtue (n. 77), at 12–13. 208 See Joachim Ritter and Rudolf Eisler, eds., Historisches Wörterbuch der Philosophie (Basel: Schwabe, 1955), keyword Genealogie, article by Otto Marquard. 209 A skeptical reader might point out the fact that the Earth is not exactly round. However, this does not undermine the argument. The person’s belief that the Earth is round can be substituted in the example by the belief that ‘the Earth has at least one curve’ or that ‘the Earth is not flat’ or by any description of the form of the Earth or of some part of its surface.

64

André Ferreira Leite de Paula

gion far from the coast. To be invited to a celebration is not a cause that justifies the belief that the Earth is round. Of course, the existence of causes that justify beliefs does not exclude the causes that do not justify them. To this extent, all kinds of genealogy remain correct, however incomplete for they set aside causes that justify beliefs. Especially in regard to morally and politically relevant facts, such as why someone has the moral and political beliefs that he has, the genealogists’ selections of causes are often opportunistic for the sake of debunking established beliefs. For there are indeed also social and normative causes that justify beliefs about social and normative facts. In other words, the fact that social and normative reality is how it is also causes people to have the beliefs they have in these regards. If someone believes that the economy has an inflation because he observed that the prices of products increased and his purchasing power decreased although his salary remained nominally constant, at least one of the causes of his belief can justify it: if the economy would not have had inflation, his salary would not have lost real economic value and he would not have believed that the economy had an inflation. Analytically, a fact in the time t1 (inflation, which continues to be the case at t2 and t3) causes an event in the time t2 (prices increase, the real economic value of the salary decreases), which, in its turn, causes another event at t3 (the person believes that the economy had an inflation and, in the particular case, would not have believed it if the event at t2 would not have happened). Because of this chain of causality, one can say without vicious circularity that the person believes that the currency was in inflation because the currency was in inflation. Note that the fact of a currency being inflated at any time t1 is independent of anyone having beliefs in this regard in the same time t1 or at any time, otherwise currencies of the past could only experience inflation since the time in history in which economic science was invented, since some language communities invented the word ‘inflation’ or someone has a mental state in this regard, all of which would either imply retroactive causation over time, or reduce inflation to a merely individual mental state or a collective hallucination. For this reason, it is correct to say that social facts can be also discovered rather than created by the observer, that they do not depend on being known by anyone in order to be the case, and that they can cause beliefs with themselves as contents, i. e. they participate causally in the emergence of truth. In part three it will be shown how the same holds for normative facts and beliefs. Fourthly, all genealogical claims themselves have causes that do not justify them. Suppose that person A makes a claim to some moral truth. Person B, say Friedrich Nietzsche, could say that person A is making this claim because he was born with instincts that make him raise this claim, and that therefore the claim is genealogically defeated, does not have correspondence with reality or is not even susceptible to truth. Now, suppose that person C, say Thomas Kuhn, states that Nietzsche wanted to debunk person A’s claim genealogically because genealogy was an influential “paradigm”210 of the 210 About the concept of paradigm, see Thomas Kuhn, The Structure of Scientific Revolutions, 3rd ed. (Chicago, 1996). “These [i. e., paradigms] I take to be universally recognized scientific achievements that for a time provide model problems and solutions to a community of practitioners”, at X.

On the Unities of Law, Practical Reason, and Right

65

nineteenth century, and that there are psychological, historical, sociological, and cultural reasons why morality was so vehemently criticized at that time and why this kind of theory experienced some acceptance, therefore debunking person B’s belief with the indication of causes that do not justify his belief. This scenario could be multiplied as far as genealogical methods exist: one could add person D, who discovers a Jewish background within person C’s beliefs which conditions, but per se does not justify his beliefs, and person E, who says that all theories are only individual or social constructions without correspondence with reality, considering them projections of emotional or anthropological needs, and so on.211 In principle, each kind of genealogical criticism can be applied to the respective other. If any genealogy G1 is applied to any genealogy G2 and if genealogy were a refutation, one would logically annul the other. At the end, whose claim would really be defeated? Who debunks whom in the game of genealogy? From this it is clear that genealogy does not really talk to the issue. It is not a refutation and it does not investigate the reasons why beliefs could be true, since, as already stated, it leaves aside eventual causes that justify the beliefs. As John Finnis puts it in another context, “the soundness of an answer to a particular question is never established or disconfirmed by the answer of the entirely different question of what are the physical, biological, and psychological pre-conditions and concomitants of the raising of that question (or any question) and of the proposing of that answer (or any answer)”.212 The same holds for social causes: a context analysis of the raising of a claim that reveals the social causes of the claim is never a proof or refutation of the claim. On the basis of the same principle, not even the discovery of causes of genealogical claims that do not justify them could be a refutation of genealogy, since they could have causes that justify them. Indeed, Nietzsche discovered many truths about culture and human psychology precisely because of the influence (the ‘paradigm’ of genealogy) of other thinkers at his time, such as Schopenhauer, and on the other hand, because of his highly personal attitude to his subject matter and even because of his psychological disorders.213 In addition, with regard to Thomas Kuhn, the Jewish trait of having higher average IQ than the aver211 A concrete example of the application of genealogical criticism to another kind of genealogical criticism can be found in MacIntyre’s discussion of emotivism: an emotivist claims that person’s A moral beliefs are not true or not susceptible of truth because they are only expressions of her emotions; a critic of emotivism could attempt to defeat the emotivist’s claim by indicating that his claims about moral beliefs are not true or not susceptible of truth because they are, actually, expressions of the cultural situation of morality in his social context, i. e., of the culturally dominant idea of groundlessness of morality in late modernity. In this way, genealogy 1 (emotivism) would be attacked by genealogy 2 (sociologism). For a criticism of emotivism in this sense, see MacIntyre, After Virtue (n. 77), at 23–61. 212 Finnis, Natural law and natural rights (n. 23), at 65. 213 According to Nietzsche, “es macht den erheblichsten Unterschied, ob ein Denker zu seinen Problemen persönlich steht, so daß er in ihnen sein Schicksal, seine Not und auch sein bestes Glück hat, oder aber “unpersönlich”: nämlich sie nur mit den Fühlhörnern des kalten, neugierigen Gedankens anzutasten und zu fassen versteht. Im letzten Falle kommt nichts dabei heraus, so viel läßt sich versprechen: denn die großen Probleme, gesetzt selbst, daß sie sich fassen lassen, lassen sich von Fröschen und Schwächlingen nicht halten, das ist ihr Geschmack seit Ewigkeit”, Friedrich Nietzsche, Die fröhliche Wissenschaft (Cologne: Anaconda, 2009), § 345. See also Friedrich Nietzsche, Ecce homo, in: Kritische Studienausgabe, ed. G. Colli und M. Montinari (Munich: DTV, 2008).

66

André Ferreira Leite de Paula

age of the white and black races respectively214 and the consequent constant cultivation of education and literacy, even among non-religious Jews, are causes that certainly facilitated his academic career and, ultimately, his theory-building. Ultimately, each question can only be assessed within a direct approach, which as previously mentioned is called the ‘context of justification’ in contraposition to the ‘context of discovery’.215 The appropriate context of justification is the respective epistemic domain of the given question; it is the context whose internal standards of proof and argumentation are decisive. Finally, we can say that “a genealogy contributes to the possibility of the project of revaluation, rather than constituting it”.216 IV. The unity of reality beyond the plurality of fields However, the epistemology of fields does not provide an adequate account of contradictions between fields. Consider hypothetically that the field of ‘science’ states that the teleology of nature does not exist, i. e. that in nature there is only mechanical causation and not teleological causes or purposes.217 Now, suppose that the field of ‘theology’ states that teleology does exist in nature. In order to avoid ‘authoritarian’ epistemic attitudes, one could try a ‘field egalitarianism’ and say that teleology exists ‘in the linguistic framework’ (or field of argument, social sub-system, field of sense, etc.) of theology, whereas in the field of science it does not. However, such a liberal approach would remain with an unsolved contradiction, since living beings behave either in accordance with a purpose or not. In other words, due to the logical principles of non-contradiction and 214 Richard Lynn and Satoshi Kanazawa, ʻHow to explain high Jewish achievement: The role of intelligence and values’, Personality and Individual Differences, 44 (2008), 801–808; Richard Lynn, Race Differences in Intelligence. An Evolutionary Analysis (Augusta, GA: Washington Summit Publishers, 2006), at 63–65. 215 An influential contribution on the distinction of context in the philosophy of science has been made by Hans Reichenbach, Experience and prediction, 5. impr (Chicago, Ill.: Univ. of Chicago Press, 1957). In law, see Richard Wasserstrom, The Judicial Decision (Oxford: Oxford UP, 1961). For terminological issues concerning the distinction, see Luiz Silveira, ʻDiscovery and Justification of Judicial Decisions: Towards More Precise Distinctions in Legal Decision-Making, in: Law and Method 9/2014’, available at https:// www.bjutijdschriften.nl/tijdschrift/lawandmethod/2014/09/RENM-D-14–00003 (last visited 30 July 2018). Psychological analysis of the context of discovery in law in Bruce Anderson, ‘Discovery’ in Legal Decision-Making (Berlin: Springer, 2010). Overview and discussion of the many versions of the context of discovery and of justification in Legal Theory in André Ferreira Leite de Paula, ʻDiscovery and Justification in Law’, in André Ferreira Leite de Paula, Andrés Santacoloma Santacoloma and Gonzalo Villa Rosas, eds., Truth and Objectivity in Law and Morals. Vol. 2: Proceedings of the Second Special Workshop held at the 27th World Congress of the International Association for Philosophy of Law and Social Philosophy in Washington D. C., 2015 (Stuttgart: Franz Steiner Verlag, ARSP 151, 2016), 81–114. 216 P. J. E. Kail, ʻ“Genealogy” and the Genealogy’, in Simon May, ed., Nietzsche’s on the genealogy of morality. A critical guide (Cambridge, New York: Cambridge University Press, 2011), 214–233, at 221. 217 This would be a reductionist and positivist understanding of science, although it has been the hegemonical understanding since the twentieth century. For a criticism on positivism in science, see Macedo, ʻA ‘crise da ciência’ e o renascimento da filosofia política’ (n. 193). For a critical discussion about the many attempts of modern science to comprehend nature without teleology, see Solinas, From Aristotle’s teleology to Darwin’s genealogy. The stamp of inutility (n. 5). For a defense of teleology as a real data of nature, see Spaemann, ʻDie Unvollendbarkeit der Entfinalisierung’ (n. 5) and Spaemann and Löw (n. 5).

On the Unities of Law, Practical Reason, and Right

67

excluded middle it is absolutely true that either something is the case or is not the case. Now, teleology overlaps the fields of science and theology; it is exactly the same object of reference that is meant within both fields, one in an affirmative and the other in a negative way. Therefore, one of the fields is necessarily correct and the other one is necessarily wrong. If theology is right, science should accept teleology; if science is right, theology should reject teleology. Tertium non datur. The existence or non-existence of natural teleology does not depend on the acknowledgment of any epistemic field, rather fields should acknowledge what exists. On the one hand, the attempt to divide knowledge into non-hierarchical fields with their own standards of truth would result in the contradiction of saying that teleology both exists and does not exist, depending on the field that the claim originates from, which would be an irremediably incoherent position. On the other hand, to classify fields within rigid a-priori hierarchies and to state that some questions are only allowed to be solved with arguments from ‘science’ or only with arguments from ‘theology’ would misconceive the fact that both fields are talking about exactly the same object. Certainly, when one talks about individual things such as the unicorn, it may be that within science it does not exist if science talks about physical and biological entities, whereas within literature it exists because literature talks about non-physical entities (e. g. literary characters), and thus the entities referred to in both fields by the same word ‘unicorn’ would be actually different,218 whereas both the claim to scientific non-existence and to literary existence would be true – a solution that can be called contextualism, compatibilism or coherentism if it is extended to make all fields compatible with each other according to this pattern. However, this does not mean that different fields could not refer to exactly the same thing or event in reality, although with different categories, as indicated above. Even if science and theology do not accept the claim raised within the other field respectively, the very same facts can have a meaning inside the respective other field, or, in the terminology of the epistemologies of fields, teleology can ‘appear’ in the field of science, or ‘irritate’ the social system of science in some way, if only to argue its non-existence according to scientific ‘field-variant warrants’. The claim of the non-existence of something claimed in the other field is an appearance of the very same concept within the denying field. This means, most generally, that all things and facts can be part of all epistemic fields, if only within negative theses. Furthermore, a thing can also appear in another field with a diverse terminology. Teleology can also appear in the linguistic framework of science as the ‘function’ of organs, as the ‘genetic program’ of organisms described with models of mechanistic and proba218 See the example of Markus Gabriel’s theory of fields of sense: “and here my view is that to assert existence is to claim that some object or objects appear in a field of sense, and to negate existence is to claim that some object or objects do not appear in some field of sense or other. As I will argue in the next chapter, absolute non-existence is impossible. Everything exists, but in different fields of sense. It does not co-exist. There is no all-encompassing field in which surprisingly there somehow are unicorns and there are no unicorns. There are unicorns (for instance, in The Last Unicorn), and there are no unicorns (for instance, in Milwaukee). There are witches (for instance, in Faust), and there are no witches (for instance, in Portugal or Norway)”, Gabriel, Fields of Sense (n. 135), at 178.

68

André Ferreira Leite de Paula

bilistic causality, or as ‘teleonomy’.219 This is to say that the same will appear as something different depending on the field and, therefore without being a different thing in itself. Theology may add meanings and other features to the thing described as teleology (e. g. by claiming that it has its origin in God’s will) while science may constrict its notion of teleology to self-preserving functions of organs and instincts of living organisms, but a core of identical reference between both notions will remain, even if the lexical commonality is restricted to the word it. With words such as it, this, that and those, different fields can refer to exactly the same object or fact in reality without classifying them with their own exclusive categories. Equally, a ‘price control’ implemented by the state may appear within the social system of law as the ‘enforcement of a legal statute’, while within the social system of economy, it may appear as an additional ‘price’ or ‘obstacle’ for economic activities. To know that it is the same event (‘it’, ‘price control’) that appears differently within the social system of law and in the social system of economy is to already know the underlying reality beyond both social systems.220 In all of these cases, the commonality of references leads to the possibility of real contradictions between epistemic fields. The commonality of references of fields is comparable with the commonality of references of different words. Different words, terms, sounds, and signs (Gr., ὀνόματα, ὅροι, φωναί, σήματα) can refer to the same concept, idea, or form (Gr. εἶδος, μορφή), as the words ‘flat’ and ‘apartment’, or as the English ‘tree’, the French ‘arbor’, and the German ‘Baum’ refer to the same concept and, consequently, to the same objects. Clearly, each of these words may have additional meanings that are not associated with the other or are not present in the respective other language, which accounts for the difficulty of translation of literary texts that play precisely with ambiguity, but this does not change the fact that word does not equal concept and that the respective words refer to at least one common concept and some common objects. Most part of the philosophy of language of the twentieth century failed to recognize this basic distinction, and talked almost exclusively about words and their usage in practice, although calling them ‘concepts’. As a matter of fact, the historical movement of increasing empiricism in the consciousness of Western cultures throughout the last millennium can be exemplified by the transition in the twelfth and thirteenth centuries from ideas and essences to concepts and, later, within the ‘linguistic turn’ of the twentieth century, from concepts to words and signs. While genealogy was a historical consequence of the new focus on concepts instead of ideas and essences, the theories of epistemic fields can be seen as consequences of a historical turn of the attention from concepts toward words. The correct solution for the problem of liberal epistemology is to admit that non-contradiction among epistemic fields by definition is a non-justified definition of fields. Epistemic fields must be understood not only as agreggations of individual entities, which do not per se contradict each other, but also as aggregations of propositions 219 Discussion of the concept in Spaemann, ʻDie Unvollendbarkeit der Entfinalisierung’ (n. 5). 220 According to Jürgen Habermas’ criticism on this point of Luhmann’s system theory in Jürgen Habermas, Theorie des kommunikativen Handelns, 2nd ed. (Frankfurt am Main: Suhrkamp, 1982), at 64.

On the Unities of Law, Practical Reason, and Right

69

that can be contradictory among themselves, both within the same field and between different fields.221 For example: medicine as a discipline contains studies that argue for and against the thesis that a certain disease has a certain cause; psychology contains arguments for and against natural (non-environmental) IQ differences between races and sexes;222 legal philosophy as a field contains legal positivist and natural law theories whose truth-value often exclude each other. In addition, as previously stated, science can actually contradict theology, philosophy can actually contradict science, and so on. In the same vein, it is also clear that it cannot be said of a proposition that it does not belong to a field only because the proposition happens to be wrong. Arguments for and against materialism, for example, are parts of the same field of ‘philosophy’, although they cannot be true of the same reality. Consequently, the mere fact that a proposition belongs to a field cannot be an argument for its truth or falsity.223 The real contradictions within and between fields must be solved by means of investigating the reality beyond them, i. e. by (1) adding in the course of time new propositions that have never before been part of any epistemic field, (2) by changing and correcting existing beliefs within fields, (3) by sharing propositions among fields and (4) by abandoning propositions that have been proven wrong. Consequently, (1) if epistemic fields contain contradictory claims between themselves and (2) if contradictory claims cannot be true of the same reality, if follows that (a) there is necessarily a hierarchy between fields in regard to each particular thesis, i. e. one or some fields necessarily prevail over all others in the case of a contradiction, and 221 According to Aristotle, the same field of knowledge can comprehend contrary assumptions. See Aristotle, Nicomachean Ethics (Leipzig: Felix Meiner, 1921), at 89, fifth chapter, 1129a. Fields of knowledge that comprehend non-unified theses are, according to Ockham, a “collectio multorum habituum”. See William of Ockham, Physikkommentar, in: Texte zur Theorie der Erkenntnis und der Wissenschaft. Lateinisch/Deutsch, ed. and trans. Ruedi Imbach (n. 37), at 196, prolog, n. 17. 222 The choice of precisely this inegalitarian example is intentional. The very fact that natural differences in IQ between races and sexes sounds controversial among scholars reveals an egalitarian bias in academia, which is also an object of this inquiry. For considerable natural (non-environmental) differences in IQ of more than one standard-deviation among races, see Richard Lynn and Tatu Vanhanen, Intelligence: A Unifying Construct for the Social Sciences (London: Ulster Institute for Social Research, 2012). For race and sex differences in intelligence, see Helmuth Nyborg, ed., Race and Sex Differences in Intelligence and Personality (London: Ulster Institute for Social Research, 2013). See also Vanhanen: “The new phenotypic worldview outlined in this study is based on the idea that global inequality in human conditions can be traced to the evolved human diversity through the struggle for scarce resources, in which struggle the nations with higher average intelligence (national IQ) tend to have better chances to succeed than nations with lower average intelligence”, Tatu Vanhanen, Ethnic Conflicts: Their Biological Roots in Ethnic Nepotism (London: Ulster Institute for Social Research, 2012), at 176. For an influential empirical research about race differences in IQ in the United States and its social consequences, see Richard J. Herrnstein and Charles Murray, The Bell Curve. Intelligence and Class Structure in American Life (New York: Free Press, 1994), at 269–388. About the natural racial differences in IQ based on different brain sizes and in relation to evolution, see J. Philippe Rushton, Race, Evolution, and Behavior: A Life History Perspective, 2nd ed. (Port Huron, MI: Charles Darwin Research Institute, 2000), at 22–33. 223 See Manuel Atienza, Las razones del derecho. Teorías de la argumentación jurídica (México: Universidad Nacional Autónoma de México, 2005), at 103. For a similar claim in the field of morals, see also Dieter Sturma, ʻNaturalismus und moralischer Realismus’, in Markus Gabriel, ed., Der Neue Realismus (Berlin: Suhrkamp, 2014), 396–417, at 416: “Es bleibt nach wie vor unklar, wie es möglich ist, die objektive Eigenständigkeit des Bereichs des Moralischen als Grund von normativer Verbindlichkeit zu bestimmen”.

70

André Ferreira Leite de Paula

that (b) contradictions between fields are mistakes of human reason in the pursuit of knowledge. The proposition contained in one field will be an absolute truth, since it corresponds to the reality outside of all epistemic fields and is not only relative to the respective field, rather all fields should adopt it. In order for any belief to be an absolute truth, nothing else is necessary than its simple correspondence with reality. Most of our knowledge about relevant and irrelevant, about changeable and unchangeable things is composed of absolute truths in this sense. Now, the fact that a certain field provides the only true answer to one particular question does not mean that it will always prevail over the competing field(s) in regard to all other questions, i. e. the hierarchy between fields is not always the same. There can be no generalized a-priori criterion for the prevalence of a field in regard to all questions addressed by the field precisely because the pertinence of a claim to a field is not a criterion of truth. The foundation of all ontology on the three logical principles of identity, non-contradiction, and excluded middle in spite of eventual contradictions between fields can be called the unity of reality. It means that things and events encounter each other within a single reality in a non-contradictory way, regardless of their eventual pertinence to different fields. The fact that ‘animal’ is an element of the field of zoology and ‘lightning’ a category of meteorology obviously does not prevent lightning from killing an animal in the reality outside of epistemic fields224 and independently of anyone’s knowledge. From this it is clear that claims (and propositions, theories, epistemic fields, etc.) should not be confounded with their objects of reference (although they are themselves reality that can be made the object of reference of other claims, theories, and epistemic fields). An equalization of claims with the reality referred to by them (i. e. the belief that they would be actually the same, which means actually the elimination of the very notion of reference) is most clearly mistaken when the claim refers to something historically prior to itself, and, more radically, prior to human existence and thus prior to human subjectivity, consciousness and language, such as every natural event that occurred prior to the existence of the human species (“énoncés ancestraux”225) and therefore prior to any claims, theories, and epistemic fields at all. Claims about the teleological or non-teleological behavior of living beings are good examples of this. In all of these cases, the reality referred to by epistemic fields cannot have been in any way influenced or constructed by human subjectivity, consciousness, or language, or have been any individual or social construction, otherwise we would incur a retroactive causation: an event in the point of time t2 (subjective judgment, linguistic denomination, social construction, theory-building) would be able to cause or somehow influence in some way the existence or properties of something at t1 (e. g., teleology of nature, dinosaurs, planets, or social facts such as inflation in economy previous to the act of referring to them). Because of 224 Example and discussion of the so-called ‘unificationism’ in Schloßer, Die Einheit der Welt und ihre wissenschaftliche Deutung. Dissertation, Philosophische Fakultät Albrecht-Ludwigs-Universität zu Freiburg (n. 117), at 3. In respect to this example, it is worth mentioning that the ‘negation’ of the animal’s life by the natural energy of lightning is not a logical contradiction and is, therefore, compatible with the unity of reality. 225 Quentin Meillassoux calls this kind of claim “énoncés ancestraux” in Quentin Meillassoux, Après la finitude. Essai sur la nécessité de la contingence (Paris: Seuil, 2006), at 30–31.

On the Unities of Law, Practical Reason, and Right

71

the impossibility of retroactive causation within time, all pre-linguistic facts (i. e. facts that were the case before the first language was invented) are necessarily non-linguistic. The same is obviously valid for specific languages: it is impossible that pre-English facts are constructed by English speakers; pre-Spanish facts are necessarily non-influenced by Spanish language, etc. In the same vein, pre-cultural facts are trivialiter non-cultural; facts previous to society can never be constructions of social systems, etc. The division of categories and claims within epistemic fields is, indeed, useful for didactic purposes and even necessary for an intelligible practice and education, but do not constitute all of reality. The cognition of facts that transcend fields of knowledge (i. e. that did not pertain to any of them before the act of cognition or that pertain to many of them at once) in spite of the eventual existence of contradictory claims among them is the unity of theoretical reason. This acknowledges the unity of reality beyond eventual real contradictions between epistemic fields. Clearly, there can be no contradictions between ontic fields (i. e. between different kinds of facts, otherwise at least one of them would not be a fact), since something must be or must not be the case in the same space and time. Facts, especially historical, physical, chemical, and biological facts, exist with and without truths about them that may constitute epistemic fields. The consequence is interestingly trivial: there was no epistemic field before knowledge began to exist in history, but all things and facts that existed before knowledge were already some kind of things or facts and, therefore, part of some ontic field. This is to say that there are, for instance, scientific facts in the reality outside of the epistemic field of science, i. e. facts of scientific kind that have not been known for a long time or are not yet known by any scientist. For instance, supposing that teleology is a real fact of nature, it would be a fact that pertains to the field of biological facts, therefore to the ontic field of scientific facts, and, due to its purpose-relatedness, also to the ontic field of theological facts, which happens to have already been recognized by the epistemic field of theology and should be recognized by the epistemic field of science. True science does not contradict true theology (and vice versa). Claims, theories, truth, and falsity are only possible within epistemic fields.226 In contrast to the unity of reality, which is always the case, the unity of theoretical reason as the unity of epistemic fields can only be accomplished over the course of time. As we can see, the many autonomist theories analyzed at the beginning of this second part are seriously flawed or at least incomplete, since they focus on the fields and claims themselves and declare the fields’ ontological references as nonexistent or incommensurable (Luhmann), non-analyzable (Carnap), not as a focus of their analysis (Toulmin), or they focus on the existence of individual things (Gabriel) instead of focusing on propositions (while individual things per se cannot be contradictory with each other, propositions combine individual things and can be contradictory with other propositions from the same or from other epistemic field). If the unity of theoretical

226 According to Aristotle, truths and mistakes are not in the things, but in the thinking that aims to be a thinking about them. See Aristotle, Metaphysik (n. 5), at 174 (1027b).

72

André Ferreira Leite de Paula

reason is only achievable by means of a reductionism227 (i. e. by means of the indication of the more fundamental reality which all epistemic fields must conform to in order to contain true claims), it must be a reduction of all things and facts not into the whole of physics (i. e., the universe) or of human or other animals’ psychology (i. e., consciousness), but into the more fundamental whole of logic (λόγος). The whole of logic is more fundamental than the universe because it includes ideas, numbers, relations, and logical principles such as identity and non-contradiction. Logic is, furthermore, more fundamental than consciousness because it was already effective for facts before organic counscious beings began to exist and because it is effective for facts that are not known by anyone, although they could be or could have been known, and for facts that cannot be known. Part Three: Conceptual relationships between normative orders I. Historical, epistemological, and political origins of claims to the separation of law and morality In jurisprudence, the historical transition from externalist ontology towards internalist epistemology, from ‘struggle ontology’ and ‘authoritarian’ realism towards liberal epistemology, and especially from reductionism towards many kinds of non-reductionism, was carried out in a systematic way by both Hans Kelsen and H. L. A. Hart. Some of the main concerns of Kelsen’s The Pure Theory of Law were (1) to prevent reductionisms of the legal order into scientific disciplines such as natural sciences and sociology,228 (2) to distinguish clearly the legal order from other normative orders such as morality and politics,229 and especially (3) to prevent the reductionism of the ‘ought’ of normativity (Sollen) into the ‘being’ (Sein) of will, commands, obedience, and sanctions.230 According to Kelsen, a norm is valid if and only if it has been issued in accordance with a previous valid norm, a position that characterizes epistemic internalism. The theoretical function of the basic norm (Grundnorm) was to prevent external determination of the normativity of law, and thus to introduce self-reference into the system: legal norms can only be valid because of other already valid legal norms, and in last instance, because of the basic

227 See Vaas, ʻReduktionismus und Emergenz’ (n. 207), at 103. 228 Kelsen, Reine Rechtslehre (n. 53), at 1. Until the nineteenth century, Philosophy of Law was overwhelmingly a branch of general philosophy; from a philosophical perspective it was mainly regarded as the study of natural law within a given philosophical system and therefore part of the whole of philosophy. The autonomization of philosophy of law as ‘legal theory’ and its consequent detachment from general philosophy was preceded by the disuse of great philosophical systems during the nineteenth century. Hans Kelsen, Franz Weyr and Adolf Merkl provided the first great attempts to consolidate law as a discipline with its own methods which were different from general philosophy. About this point, see Vladímir Kubeš, Grundfragen der Philosophie des Rechts (Vienna: Springer-Verlag, 1977), at 4–8. 229 Kelsen, Reine Rechtslehre (n. 53), at 2. 230 Ibid., at 6. See also Pavlakos, Rechtsontologie und praktische Vernunft (n. 75), at 19–33.

On the Unities of Law, Practical Reason, and Right

73

norm. The legal system has in this way its own logic (Eigengesetzlichkeit231). Similarly, the main concern of H. L. A. Hart’s The Concept of Law was to refrain reductionisms of legal normativity both as a mere expression of authority and as an expression of natural law. The theoretical role of the “internal point of view”232 and of the “rule of recognition”233 was precisely to prevent external determinations of what is valid law within a given community and, in the same way as Kelsen’s basic norm, to introduce self-reference into the system. The “internal point of view” of participants in a legal order who use norms as reasons for action is, according to Hart, irreducible to the mere behaviorist observation of regularities:234 social rules are not mere regularities of behavior,235 legal obligations are not mere social rules.236 Both works can be comprehended as defenses of the uniqueness of legal normativity against external explanations or determinations of law from outside. Nevertheless, both of these legal philosophers have maintained a systematic dependence of law from something outside of it, thus admitting a genealogical principle: both Hart and Kelsen define law as something that comes about in a certain spatial-temporal way. This is valid for legal positivism in general. Legal positivism is an explanation of law that is intended to be, at the same time, a definition or justification of law as law (and not as morals, politics, religion): what causes law within space-time is, at the same time, its principle of individuation. For both Hart and Kelsen and for legal positivists in general, the manner in which a norm comes about, its source or “pedigree”237, defines its character as a legal norm. For Kelsen, this genealogical principle is the will of legal decision-makers:238 an interpretation of norms by citizens or scholars is, according to him, not authentic law; the objective meaning of an act of will is only a legal norm if it arises from some of the competent will-holders. In Hart, the genealogical principle is the attitude and/or acceptance of participants (especially legal officials),239 which means, although normally not explicitly stated, in the final instance also their will. Of both theories it is true that it is the will of all or some participants in the legal practice 231 Kelsen, Reine Rechtslehre (n. 53), at 108. 232 “For 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, 2nd ed. (Oxford: Clarendon Press, 1994), at 89. See also Scott Shapiro, ʻWhat is the internal point of view?’, Fordham Law Review 75, 2006, 1157–1170. 233 Hart, The Concept of Law (n. 232), at 100–109. 234 “It is obvious that predictability of punishment is one important aspect of legal rules. But it is not possible to accept this as an exhaustive account of what is meant by the statement that a social rule exists or of the element of ‘must’ or ‘ought’ involved in rules”, ibid., at 10. 235 “The ideas of order, obedience, habits, and threats, do not include the idea of a rule”, ibid., at 80. 236 Ibid., at 104. 237 A polemic expression by Ronald Dworkin, Taking Rights Seriously (Cambridge, Mass.: Harvard UP, 1978), at 7. 238 Kelsen, Reine Rechtslehre (n. 53), at 4, 18. 239 According to Pavlakos, “Hart behauptet, dass es die reflektierende Haltung sei, die den normativen Aspekt von Regeln tatsächlich begründe und nicht lediglich Zugang zu ihm gewähre. Indem er diesen Schritt macht, identifiziert er jedoch letztlich den normativen Aspekt von Regeln mit den internen subjektiven Zuständen (Haltungen) der Empfänger”, Pavlakos, Rechtsontologie und praktische Vernunft (n. 75), at 25.

74

André Ferreira Leite de Paula

that directly or indirectly define the character of legal norms as legal, their contents, and the very existence of the legal order. For them, the will is the origin of all law: no will, no law. Although both theories reintroduced into law slight elements of the essentialist philosophy of substance of pre-modernity, most remarkably circularity and self-reference,240 both continued to make jurisprudence overwhelmingly within the voluntarist paradigm of philosophy. Depending on the social context in which a legal positivist claim is raised, legal positivism can result in the legitimation or delegitimation of the installed political regime. Until the nineteenth century, legal positivism has almost always been ultimately a theoretical means of legitimation of positive law and, in an indirect way, of the respective political regime that issues the law. Legal positivism contrasted to natural law, and claimed that law consists in rules of obligatory conduct that human beings give to each other, thereby being at the same time a detachment from essentialism (‘natural kinds’) and a movement towards voluntarism. For example, Franciscans such as William of Ockham claimed in the thirteenth and fourteenth century that the concept of property is determined neither by God nor by the essence of a natural kind, but rather by secular authority. By qualifying the problem of the concept of property as an exclusively legal rather than theological issue, the Franciscan positivism resulted in practice in the idea that it was the Emperor who was competent for the solution of the ‘poverty controversy’ and not the Pope, who was considered to be a doctrinal authority only for theological issues.241 Thus, legal positivism was in that particular context a claim to the separation of positive law from theological law and from natural law, and consequently, to the legitimation of a certain political power. Legal positivism also flourished in the second half of the nineteenth century in Germany, as the works of Carl Friedrich von Gerber and Paul Laband exemplify. In that context, the idea was to elaborate a purely scientific apprehension of legal matters (Rechtsstoff) in order to detach legal science (Rechtsdogmatik) from other ways of understanding law that were considered to be less objective, such as philosophical and

240 For a strong criticism of Hart’s circular definition of the concept of law, see Bebhinn Donnelly, A Natural Law Approach to Normativity (Hampshire: Ashgate, 2007), at 150–151. 241 “In the light of the Bonaventuran discourse on Franciscan poverty it is evident that the Franciscan discourse on poverty in the early fourteenth century made a significant shift from a theological emphasis to a legalistic one. The leading Franciscan polemicists, such as Michael of Cesena and Bonagratia of Bergamo, considered that the dispute in which they were deeply involved was essentially a matter of law rather than theology. … The Franciscans could not defend their case on purely doctrinal grounds, since papal decisions concerning doctrinal matters, unlike the opinions of secular masters, had authority. Hence the immediate response to papal attacks was to appeal to another authority: John XXII’s predecessor Nicholas III. In the dispute between the Franciscans and John XXII, Brian Tierney perceived a conflict of ideas: papal irreformability versus papal sovereignty. To put it another way, the early fourteenth-century poverty controversy was not essentially doctrinal. It was a legalistic dispute over competing concepts of papal authority”, Shogimen Takashi, Ockham and Political Discourse in the Late Middle Ages (Cambridge: Cambridge UP, 2007), at 49. About the Franciscan legal controversy and from a legal and epistemological point of view, see Villey, La formation de la pensée juridique moderne (n. 33), at 202–219.

On the Unities of Law, Practical Reason, and Right

75

historical justifications242 (at a time when the ‘historical school’ of legal thinking was en vogue) and to create a common constitutional law for the forthcoming German unification.243 The high level of abstraction of the German positivism of the nineteenth century was a way of selecting common points of the many legal orders of the German states that would be unified.244 This new legal positivism was the elaboration of a legal science without explicit political contents, but at the same time, engaged in a political project of great extent: the political purposes and effects of the new German positivism were to create legal fundaments for the substitution of the many local sovereigns with a centralized state power, an ‘organism’ with own juridic personality,245 thus delegitimating feudal nobility and legitimating the bourgeois law issued through the newly centralized state power.246 One could go further with other well-known and representative examples such as Hobbes’ legal positivism or the so-called ‘école de l’exégèse’ in France, but the analyzed examples are enough to show that, according to most conceptions of legal positivism until the nineteenth century, law was connected with morality in two ways: firstly, as law was seen by positivists as a legitimate order from the point of view of its source (and this was the very purpose of elaborating a positivist legal theory247), and secondly, because individuals were implicitly, but obviously supposed to have the moral obligation to obey a law which is legitimate. The ‘rule of law’ was not defended against notions of justice, but precisely because it was considered to be what justice requires. In general terms, legal positivism until the nineteenth century was typically a legitimating positivism, a quest for the identification of the one set of institutions that is legitimate to regulate society and of the one set of social norms that deserve enhanced enforcement. In the twentieth century, however, a sophisticated kind of delegitimating positivism became widespread: legal positivism became mostly a claim not only to the sepa242 Walter Wilhelm, Zur juristischen Methodenlehre im 19. Jahrhundert. Die Herkunft der Methode Paul Labands aus der Privatrechtswissenschaft (Frankfurt am Main: Klostermann, 1958), at 135. 243 Ibid., at 129. 244 Ibid., at 131–133. 245 Ibid., at 135–136. See also Klaus Hespe, Zur Entwicklung der Staatszwecklehre in der deutschen Staatswissenschaft des 19. Jahrhunderts (Cologne etc.: Grote, 1964), at 74. 246 “Der Versuch der Interpretationslehre, den Richter an den Buchstaben des Gesetzes zu binden, wird also nicht etwa aufgrund einer besonderen Affinität zur Verfassung des Absolutismus unternommen; … Vielmehr hat schon gegen Ende des 18. Jahrhunderts eine sich formierende bürgerliche Rechtstheorie die fürstliche Gesetzgebung zum zentralen Bestandteil ihrer Gesellschaftspolitik erhoben und die Sphäre des Gesetzgebers in durchaus wohlverstandenen Eigeninteresse gegen Übergriffe aus der Justiz verteidigt. Man war aufgebrochen, den traditionellen Rechtstiteln, Abstammung, Herkommen, Privilegien, den Kampf anzusagen und bedurfte hierfür der Unverbrüchlichkeit des Gesetzes. Nur gesetzliches Bürgerrecht war gesichertes Bürgerrecht, und daher war es konsequent, richterliches Freirecht zu verwerfen”, Regina Ogorek, Richterkönig oder Subsumtionsautonomat? Zur Justiztheorie im 19. Jahrhundert (Frankfurt am Main: Klostermann, 1986), at 57. See also Hespe, Zur Entwicklung der Staatszwecklehre in der deutschen Staatswissenschaft des 19. Jahrhunderts (n. 245), at 75. 247 The European positivism of the 16th century, for example, was elaborated to prevent rebelion, civil disobedience, anarchy, murder of tyranns and civil wars. On the basis of the many social upheavals of the epoch, it seemed appropriate to state that auctoritas non veritas facit legem. See Martin Kriele, Rechtspositivismus und Naturrecht – politisch beleuchtet (1969), in: Recht, Vernunft, Wirklichkeit (Berlin: Duncker & Humblot, 1990), at 495.

76

André Ferreira Leite de Paula

ration of law from natural law, theology, and philosophical justifications, but also from morality tout court.248 It became a quest for the identification of the one set of norms that corresponds to the concept of law, but that must not necessarily be obeyed by the citizens, since its issuing institutions began to be seen as not necessarily morally legitimate. In this way, within the legal positivist theories of the twentieth century, law was deprived of its intrinsic value. As the normative order of law became conceptually separated from the normative order of morality, individuals became free to choose which normativity they would follow, if any at all. In particular, the insistence of ‘exclusive positivists’249 on clear separation of law from morality reveals the engagement of depriving law of inherent value and, by an indirect means, also the political authority of its issuer. The legal positivism of the twentieth century is part of a critical project that does not work with explicit critical statements. Rather, following the tradition of positivist thinking, it refuses them as being non-scientific or not objective.250 The positivism of the twentieth century might focus on authority for a definition of law, or on ‘authentic interpretation’251 for the determination of law’s contents, but it is liberal in its effects. Delegitimation-positivism’s implicit message to individuals is that they are entitled to not obey the law if some legal content is not compatible with their individual moral beliefs, thus attempting to put individuals conceptually in a safe position from the action of the established political authority. A concrete historical example can be found in Hans Kelsen’s divisions of fields into legal and non-legal ones by clearly distinguishing law

248 The understanding of positivism as being a separation thesis of law and morality is only applicable for some theories of legal positivism, most commonly in the twentieth century, e. g. Hart’s and Kelsen’s theories. In regard to this specific epoch, Robert Alexy’s definitions of connection and separation theses are applicable: “Alle positivistischen Theorien vertreten die Trennungsthese. Diese sagt, daß der Begriff des Rechts so zu definieren ist, daß er keine moralischen Elemente einschließt. Die Trennungsthese setzt voraus, daß es keinen begrifflich notwendigen Zusammenhang zwsichen dem Recht und der Moral, zwischen dem, was das Recht gebietet, un dem, was die Gerechtigkeit fordert, oder zwischen dem Recht, wie es ist, und dem Recht, wie es sein soll, gibt”, Robert Alexy, Begriff und Geltung des Rechts (Munich: Karl Alber, 1992), at 15. “Alle nichtpositivistischen Theorien vertreten demgegenüber die Verbindungsthese. Diese sagt, daß der Begriff des Rechts so zu definieren ist, daß er moralische Elemente enthält”, ibid., at 17. An example of legal positivist separation of law from morality in can be seen in Norbert Hoerster, ʻDie rechtsphilosophische Lehre vom Rechtsbegriff ’, JuS, 3 (1987), 181–188. 249 I. e. those who assert that the validity of a legal norm does not depend on its moral correctness. 250 Already the positivst reduction of the concept of science to embrace only empirical knowledge has been politically motivated in the twentieth century. It aimed at a justification of tolerance, as Hans Kelsen himself admitted. According to Martin Kriele, “Je enger man den Wissenschaftsbegriff faßt, so meinte man, desto mehr persönliche Meinungen und Ansichten werden als subjektiv und damit relativ entlarvt, und von dieser Entlarvung erhoffte man sich ihre politische Neutralisierung: Wer die Relativität seiner Ansicht einsieht, verzichte auf ihre gewaltsame politische Durchsetzung und werde toleranzbereit”, Kriele, Rechtspositivismus und Naturrecht – politisch beleuchtet (1969), in: Recht, Vernunft, Wirklichkeit (n. 247), at 489–490. 251 The authentic interpretation according to Hans Kelsen is basically meant as the interpretation by legal officials: “Die Interpretation durch das rechtsanwendende Organ ist stets authentisch. Sie schafft Recht. … Von der Interpretation durch ein rechtsanwendendes Organ unterscheidet sich jede andere Interpretation dadurch, daß sie nicht authentisch ist, das heißt: daß sie kein Recht schafft”, Kelsen, Reine Rechtslehre (n. 53), at 351–352.

On the Unities of Law, Practical Reason, and Right

77

from morality. The function of his theoretical and practical engagement252 was to shape a new constitution and state structure for the Republic of Austria (1920), to be a model for other states, and to detach law from the direct power of the local political elites such as the Habsburg’s monarchy by means of a neutralization of their interferences in the constitutional judicature, thus conferring autonomy to the legal system and more space for liberty and democratic values.253 Furthermore, as a Jew in a non-Jewish state and in times of increasing anti-Judaism in Europe,254 Kelsen himself and his ethnic group would considerably benefit from a more liberal legal order. By attempting to separate law conceptually from morality and politics and importing value-relativism into legal theory, Kelsen’s Pure Theory of Law is an example of legal positivism of a delegitimating kind. It works with an amoral language at an explicit level, but is liberal in its effects. A similar theoretical engagement for the sake of liberal values can be found in Hart’s positivism. As MacCormick pointed out, “Hart was a positivist because he was also a critical moralist. His aim was not to issue a warrant for obedience to the masters of the state. It was to reinforce the citizen’s warrant for unrelenting moral criticism of the uses and abuses of state power.”255 In general, we can say that the many versions of social legal positivism, i. e. versions of legal positivism that are not focused on statutes, sanctions or authorities, but on normative attitudes of participants in the social practice (as in the case of Hart’s positivism) or even on culture (which can be called culturalist legal positivism), imply a high degree of separation of law from the direct influence of some established political elite: if law is to be found not by looking at what some political elite explicitly decides, but by means of analyzing the attitudes of participants of a social practice, moral and political contents can only conceptually become legal contents after a generalized acceptance of the participants and the real dissemination of these contents in practice. This has the liberal effect of detaching law conceptually (conceptual analysis as a theoretical means of political engagement) from the direct influence of the political elite and making law conceptually depend on the acceptance of many varied participants. Even the theoretical focus on legal officials for the shaping of the concept of law (a central category of some versions of social positivism such as that of Hart) 252 As a professor of constitutional law (Staatsrecht) and legal philosophy and as a judge in the Austrian constitutional court (Verfassungsgerichtshof) from 1921 to 1930. See Andreas Kley and Esther Tophinke, ʻHans Kelsen und die Reine Rechtslehre’, Juristische Arbeitsblätter, 2 (2001), 169–174. 253 According to an analysis of Kelsen’s influence in theory and practice by Péter Sólyom, ʻZwischen Rechtstechnik und Rechtspolitik. Bemerkungen zu der Verfassungstheorie von Kelsen’, in Markus Abraham, Till Zimmermann and Sabrina Zucca-Soest, eds., Vorbedingungen des Rechts: Tagungen des Jungen Forums Rechtsphilosophie (JFR) in der Internationalen Vereinigung für Rechts- und Sozialphilosophie (IVR) im September 2014 in Passau und im April 2015 in Hamburg (Stuttgart, Baden-Baden: Franz Steiner Verlag; Nomos, ARSP 150, 2016), 105–118. The purity of the theory was not only epistemologically founded, but also justified as Freiheit (liberty) of the legal science, which would be, according to Kelsen, more compatible with a constitutional democracy than with a constitutional monarchy. See ibid., at 107, 111–112. 254 About the increasing anti-Judaism in Europe at the end of the nineteenth century, see Osterhammel, Die Verwandlung der Welt (n. 151), at 1129–1238. 255 Neil MacCormick, H. L. A. Hart, 2nd ed. (Stanford: Stanford UP, 2008), at 197. See also Günter Ellscheid, ʻRecht und Moral’, in Arthur Kaufmann, Winfried Hassemer and Ulfrid Neumann, eds., Einführung in die Rechtsphilosophie und Rechtstheorie der Gegenwart (Heidelberg: C. F. Müller, 2011), 214–250, at 226.

78

André Ferreira Leite de Paula

creates to some degree a detachment of law from direct political influence, since legal officials in liberal societies of the twentieth century were mostly members of the middle and upper middle class, and as such did not have, in contrast to major companies and institutionalized politicians, an active, explicit, and coordinated political agenda (besides the dominant liberal values). This applies particularly to judges, since the judiciary branch only decides on cases submitted to its jurisdiction. In general terms, the positivist legal views of the twentieth century, especially after the Second World War, can be understood as conceptions of law that use theoretical means to entitle individuals to act in discordance with the political power of the law’s issuer if this ruling goes against their individual moral beliefs (which are, in their turn, deeply influenced by other elites such as international, journalistic, and intellectual ones). Now, the concrete issuer of this rule was the nation-state. Therefore, legal positivism resulted in the disempowerment of national elites. Since there is no vacuum of power, in that context this resulted in the empowerment of international elites – a theoretical movement comparable to the positivism of the nineteenth century, which transferred political legitimation from the feudal nobility to national bourgeois elites. Needless to say, if we view legal positivism in context, the idea that legal positivism per se would be an authoritarian conception of law that aims to legitimate any political order whatsoever is fundamentally mistaken.256 While until the nineteenth century most positivisms were moral and political defenses of a legal order considered to be just, the delegitimation-positivisms of the twentieth century were theoretical attacks on the legal and political order of the nation-state and its elites on the basis of liberal morality and politics. Certainly, this historical inversion of the practical function of legal positivism does not apply if the positivist legal theory is accompanied by the claim that there is a moral obligation to obey the law. Under social conditions in which the content of law is overwhelmingly liberal, for example because of the systematic application of liberal principles of a liberal constitution by constitutional courts, to raise the claim that (1) law is only positive law (especially written statutes and courts’ decisions) and that (2) law should be morally obeyed, is an endorsement of political liberalism. It is a defense of a regime whose laws have liberal contents. Of course, under none of the analyzed circumstances can legal positivism be seen as a value-neutral or merely empirical definition of law. If the concept of law is shaped in a 256 The idea that legal positivist conceptions of law such as that of Kelsen were responsible for the legitimation of authoritarian regimes such as National Socialism in Germany is widespread in jurisprudence and rests on the mistaken view that legal positivism would be per se morally or politically neutral. As Kley and Tophinke point out against Gustav Radbruch’s conception of legal positivism, “die Reine Rechtslehre sei geeignet, jede effektive Zwangs- und Machtordnung zu legitimeiren und zu stabilisieren, da sie eine Fundierung des Rechts in überpositiven Rechts-, Kultur- und Gerechtigkeitswerten ablehne. Der Rechtspositivismus habe dazu beigetragen, die Weimarer Republik auf legale Weise in das Terrorregime des Dritten Reiches zu transformieren. Der Vorwurf, die Reine Rechtslehre Kelsens oder allgemeiner der Rechtspositivismus habe den Nationalsozialismus gefördert, ist abwegig. Kelsen ist als liberaler Staatsrechtslehrer stets auf der Seite der Gegner Hitlers gestanden und hatte diese Haltung auch publizistisch bekräftigt. Der Rechtspositivismus war den Nationalsozialisten eher ein Hindernis als ein willfähriges Instrument”, Kley and Tophinke, ʻHans Kelsen und die Reine Rechtslehre’ (n. 252).

On the Unities of Law, Practical Reason, and Right

79

way that, by its effects, law’s contents are systematically detached from the direct influence of political elites, the respective theory is a liberal conception of law. The defense of a theory of legal positivism (or any legal theory) is itself a practical activity and has the essential property of being either against or in favor of a given political order. Which specific political order is favored or disfavored by each theory of legal positivism is, as shown here, a matter of context analysis. II. The unity of the right beyond the antinomies between normative orders Kelsen’s and Hart’s refrains of reductionisms of law into other aspects of natural and social reality were some of the most influential claims to autonomy of law in the twentieth century, but they were by far not the only ones. The most important precursor was probably Max Weber, who identified within law a specific ‘way of consideration’ (“Betrachtungsweise”) of practical conflicts that may diverge from other points of view such as that of sociology.257 Throughout the twentieth century, many other scholars (positivists and non-positivists) identified law’s ‘own logic’ and ‘autonomy’258 in different ways, thus holding some kind of impossibility or inadequateness of understandings of law from a point of view that was external to it.259 Even the legal conceptions of time, liberty and 257 According to Max Weber, “wenn von “Recht”, “Rechtsordnung”, “Rechtssatz” die Rede ist, so muß besonders streng auf die Unterscheidung juristischer und soziologischer Betrachtungsweise geachtet werden. Die erstere fragt: was als Recht ideell gilt. Das will sagen: welche Bedeutung, und dies wiederum heißt: welcher normative Sinn einem als Rechtsnorm auftretenden sprachlichen Gebilde logisch richtiger Weise zukommen sollte . Die letztere dagegen fragt: was innerhalb einer Gemeinschaft faktisch um deswillen geschieht, weil die Chance besteht, daß am Gemeinschaftshandeln beteiligte Menschen, darunter insbesondere solche, in deren Händen ein sozial relevantes Maß von faktischem Einfluß auf dieses Gemeinschaftshandeln liegt, bestimmte Ordnungen als geltend subjektiv ansehen und praktisch behandeln, also ihr eigenes Handeln an ihnen orientieren”, Max Weber, Grundriss der Sozialökonomik. III. Abteilung. Wirtschaft und Gesellschaft (Tübingen: J. C. B. Mohr / Paul Siebeck, 1922), at 368. Max Weber’s distinction between legal and sociological ways of consideration has been supposedly the precursor of H. L. A. Hart’s ‘internal point of view’. For a discussion on this issue, see See Pedro Múrias, ʻWeber e Hart sobre as perspectivas externa e interna. Uma releitura’, in J. Miranda, ed., Estudos em homenagem ao Prof. Doutor Sérvulo Correia (Coimbra: Coimbra Editora, 2011), 105–121. About Max Weber’s influential use of the term Eigengesetzlichkeit, see Breuer, Religiöser Wandel als Säkularisierungsfolge (n. 152), at 286–298. 258 “In a very weak sense “autonomy” merely means that a legal rule, or a legal system, can be identified as something that is different from morals, religion or other systems of rules, and that it is not just a restatement of any set of non-legal rules. Even if the legal system is to a large extent based on such a set, as for example, is Islamic law on the Koran, it changes and adapts these rules from some other perspective, more specifically to some inner logic. This minimum substantive autonomy is essential for a (legal) system simply to exist as an identifiable system”, van Hoecke, Law as Communication (n. 124), at 40. 259 An extreme example is provided by Weinrib: “Nothing is more senseless than to attempt to understand law from a vantage point entirely extrinsic to it. Formalism takes the internal standpoint to its extreme and makes it decisive for the understanding of juridical relationships”, Weinrib, ʻLegal Formalism: On the Immanent Rationality of Law’ (n. 23), at 952. Weinrib comprehends even distributive justice as specifically juridical, a formalism of forms of justice (see ibid., at 981–982). For a plausible criticism of Weinrib’s extreme autonomization of law from morality and politics, see Richard W. Wright, ʻSubstantive Corrective Justice, in Symposium, Corrective Justice and Formalism’, Iowa Law Review, 77 (1992), 625–711, at 631–664. Clearly, the claim to some conceptual distinction or even to social separation of law from morality and other fields is not an exclusitivity of the twentieth century. For an overview of previous ap-

80

André Ferreira Leite de Paula

reality were argued to be independent from philosophical conceptions.260 The very idea of the state was detached from substantial purposes and sometimes understood as an autonomous order, independent of political aims (!), as an abstract and bureaucratic organism with its own working logic.261 Morality was also declared to be an “autonomous”262 field of its “own sovereignty”263 that does not belong to the world of causality, thus being resistant to naturalistic reductionisms of modern sciences such as the idea that reasons to act would be something literally in the mind of individuals.264 However, by far the most important tenet of the autonomization of normative orders was the claim to autonomy of law from morality and politics. Against the politicization of law by representants of Critical Legal Studies, the defense of ‘autonomists’, sometimes called ‘formalists’, often consisted in comprehending law as an “intelligible coherent phenomenon” independent of external purposes.265 Autonomy of law in relation to morality266, “emancipation” of law from morals,267 and “replacement” of morals by law268 were argued partially as statements of fact, partially as pleas to a liberal and democratic society for the sake of the ‘rule of law’ against the ‘rule of men’. Sometimes, theories which state that law and morality are autonomous normative orders establish some kind of hierarchy between them, either stating that the normativity of law prevails over moral beliefs, or that morality prevails over legal norms. But most commonly, the separation of autonomous orders is a pluralistic understanding of proaches on the separation of law and morality, see Jean-François Kervegan, ʻRechtliche und moralische Normativität. Ein ‘idealistisches’ Plädoyer für den Rechtspositivismus’, Rechtstheorie, 39 (2008), 23–52. 260 For an argument for law’s own notion of time, see Stephan Kirste, ʻRecht und Zeit im deutschen Idealismus’, ARSP, 85, 1 (1999), 53–74. About law’s own notion of individual freedom (in criminal law), see Claus Roxin: “Die Freiheitsannahme ist insoweit eine normative Setzung … , deren gesellschaftlicher Wert vom erkenntnistheoretischen und naturwissenschaftlichen Problem der Willensfreiheit unabhängig ist”, Claus Roxin, Strafrecht. Allgemeiner Teil, vol. 1: Grundlagen. Der Aufbau der Verbrechenslehre, 4th ed. (Frankfurt am Main: Beck, 2006), at 868. For an argument about law’s own concept of reality, see Ino Augsberg, ʻRechtswirklichkeiten, in denen wir leben. New Legal Realism und die Notwendigkeit einer juristischen Epistemologie’, Rechtstheorie, 46 (2015), 71–91. 261 Analysis and criticism of these views in Forsthoff, Der totale Staat (n. 181), at 7–10. 262 “There is no way to reason ourselves into an appreciation of moral value from some standpoint outside it. Morality only makes sense in its own terms”, Charles Larmore, The Autonomy of Morality (Cambridge: Cambridge UP, 2008), at 88. 263 “Since astrology and orthodox religion, at least as commonly understood, purport to offer causal explanations they fall within the large intellectual domain of science, and so are subject to causal tests of reliability. Since morality and the other evaluative domains make no causal claims, however, such tests can play no role in any plausible test for them”, Dworkin, ʻObjectivity and Truth. You’d Better Believe It’ (n. 155), at 120. “Morality is a distinct, independent dimension of our experience, and it exercises its own sovereignty”, ibid., at 128. “We cannot climb outside of morality to judge it from some external archimedean tribunal, any more than we can climb out of reason itself to test it from above”, ibid., at 128. 264 Larmore, The Autonomy of Morality (n. 262), at 111 and 126. 265 See Weinrib, ʻLegal Formalism: On the Immanent Rationality of Law’ (n. 23). 266 Friedrich Müller and Ralph Christensen, Juristische Methodik, 9th ed. (Berlin: Duncker & Humblot, 2004), at marginal note 137. 267 Theodor Geiger, Über Moral und Recht: Streitgespräch mit Uppsala (Berlin: Duncker & Humblot, 1979), at 169, 182–183. 268 Marcelo Campos Gallupo, ʻHow Law Replaced Morals. A Kantian Contribution’, ARSP, 102, 2 (2016), 202–221.

On the Unities of Law, Practical Reason, and Right

81

normativity that does not establish any relationship of prevalence between the orders. According to this view, actions can only be justified or criticized in relation to a certain normative order, since, according to this conception, there is no a-priori hierarchy between the orders (so that none of them would always prevail in the case of a conflict). In this vein, assertions such as ‘it was wrong that Ken stole money’ are normally comprehended not as the expression of a general assumption that it is simply wrong to steal, but as relative to the normative system N (‘according to the normative system N, it is wrong to steal’269). In this sense, the validity of a norm means its pertinence to one normative system among others.270 In this model of non-hierarchical autonomous normative orders, there can be no really binding norms of any kind, because every norm is seen to be binding only within the system to which it belongs, and because individuals rest outside of normative orders and are only ‘bound’ by the norm and order that they themselves recognize.271 Thus, the basic idea of this model is to comprehend individuals as standing outside of all normative orders, as not pertaining to any of them, in order that they be free to choose what normative order to follow, if any at all.272 Therefore, the binding character of any norm depends, in the final instance, on the will of the addressee (voluntarism). Generally speaking, whatever depends on something else in order to be real or right is called relative. Within the model of non-hierarchical normative orders, all normativity is relative, at least in two senses: (1) norms are only binding in relation to a certain normative order, and (2) norms are only binding depending on the addressee’s will. This form of relativism comprises not only systems of morality as usual within moral relativism273 and political liberalism274, but all normative orders. It results, therefore, in an absolute relativism of the normative.

269 This is known as moral relationism. Example and discussion in Paul Boghossian, Angst vor der Wahrheit. Ein Plädoyer gegen Relativismus und Konstruktivismus (Berlin: Suhrkamp, 2006), at 55. For further versions of moral relativism and a great amount of bibliography, see Gonzalo Villa-Rosas, ʻMorality from the Outside. On Harman’s and Wong’s Theories of Moral Relativism’, in André Ferreira Leite de Paula, Andrés Santacoloma Santacoloma and Gonzalo Villa Rosas, eds., Truth and Objectivity in Law and Morals. Vol. 2: Proceedings of the Second Special Workshop held at the 27th World Congress of the International Association for Philosophy of Law and Social Philosophy in Washington D. C., 2015 (Stuttgart: Franz Steiner Verlag, ARSP 151, 2016), 173–207, at 173–176. 270 Ota Weinberger, Rechtslogik, 2nd ed. (Berlin: Duncker & Humblot, 1989), at 259. 271 And, therefore, are not bound at all. The meaning of binding becomes lost if ought to is essentially dependent on will. Here the similarity with Carnap’s theory of linguistic frameworks is evident, since all linguistic frameworks are, for him, conventional and the decision between them is of a non-cognitive kind. See Carnap, ʻEmpiricism, Semantics, and Ontology’ (n. 90), at 261. 272 In this way, duties would actually be no duties at all. See Ellscheid, ʻRecht und Moral’ (n. 255), at 224. 273 For example as the views that moral statements are only true or false in relation to a certain standard ( James Dreier); or that moral claims are ‘true-for-me’ or ‘true-for-us’, although the same claim can count as true or false depending on who is appraising it (Geoffrey Sayre-McCord). See Villa-Rosas, ʻMorality from the Outside. On Harman’s and Wong’s Theories of Moral Relativism’ (n. 269). Or as “an ontological view which claims that there can be faultless moral disagreements, or in other words that there can be conflicting moral statements about a particular case that are both fully correct”, ibid., at 176. In short, “the relational conception of truth is the core tenet of moral relativism”, ibid., at 175. 274 In political theories of liberalism, morality is often seen as relative, while allegedly morally neutral law is taken to be objectively valid. In these cases, the relativism of the normative is not absolute, but concerns

82

André Ferreira Leite de Paula

The model of non-hierarchical normative orders intends to be a liberal understanding of normativity, and this is not only due to the very division of reality in autonomous fields that cannot or should not be surpassed,275 i. e. not only due to the fact that it is a product of an already liberal epistemology, but also, as previously mentioned, because of the remaining position of individuals: if individuals are not necessarily parts of any order, they do not have definite obligations, since all obligations are valid only within the given order that they choose. However, the unintended, but logically unavoidable consequence is that on the basis of the same premises, there could be no rights either. If norms are only valid in relation to a normative order and there is no normative order that would be really binding, there are no ultimately binding rights, for rights and duties are relational concepts: all rights are rights against someone.276 As Oderberg points out, “every right imposes a duty on every other person to respect it. Without duties correlative to rights, morality would again be self-contradictory, for it would permit what is prohibited – interference by others with the legitimate pursuit of the good on the part of an individual. Duties correlative with rights are simply the logical mirror of those rights – they reflect those rights into the eyes of other people.”277 The same is valid for legal rights and duties. In William Blackstone’s words, “for instance, allegiance is usually, and therefore most easily, considered as the duty of the people, and protection the duty of the magistrate; and yet they are, reciprocally, the rights as well as duties of each other.”278 If an individual has only the duties that he recognizes as obligatory, each other individual has only the rights that other individuals recognize. If there are no universal obligations, there are no universal rights.279 It would be a circular undertaking to derive duties from rights and vice versa. It is especially worth remembering that rights are no more basic than duties and cannot subsist without duties in an epoch such as the twenty-first century, especially after the so-called Universal Declaration of Human Rights of 1948, which has started the second of “two expansionary periods of rights rhetoric” in Western history.280 The focus on fundamental rights often distorts the perspective on their logical correspondents, the fundamental duties. Thus, any theory or political order that relies on plural non-hierarchical normative orders falls irremediably into the problem of the absolute relativism of the normative, and is therefore incompatible with the existence of individual rights and, by consequence, with political liberalism. only morality. Examples of political theories in this sense can be seen in Sadurski, Moral Pluralism and Legal Neutrality (n. 186), at 133–196. 275 See Schmitt, Der Begriff des Politischen (n. 43). 276 Hegel, Grundlinien der Philosophie des Rechts (n. 50), § 155. See also John R. Searle, Making the social world: The structure of human civilization (New York: Oxford University Press, 2010), at 177–178. 277 Oderberg, Moral theory (n. 77), at 60. 278 Blackstone, Commentaries on the Laws of England (n. 46), at 119. 279 See Searle, Making the social world (n. 276), at 179. 280 William A. Edmundson, An introduction to rights, 2nd ed. (New York u. a.: Cambridge Univ. Press, 2012), at 10. The first epoch has been the late eighteenth century, between the American Declaration of Independence in 1776 and the end of the French Reign in 1794. The expression ‘rhetoric’ is justified because mere aspirations have been expressed as entitlements (ibid., at 11) and because many policies and essentially collective efforts towards what is politically desirable have been expressed as specifically legal rights.

On the Unities of Law, Practical Reason, and Right

83

However, the most important objection against the idea of autonomous and non-hierarchical normative orders is that it leads necessarily to the contradictory assumption that the very same behavior could be permitted and prohibited, allowed and not allowed, good and bad, under the same circumstances. It would be possible to have a situation in which the very same behavior of the very same individual could at the same time be in accordance with law but be prohibited by religion, in accordance with political rationality but not in accordance with morality, and so on, so that none of these normative orders would prevail. The same pattern could multiply inside each one of the normative orders: under conditions of “legal pluralism”,281 the very same behavior of the very same individual could be permitted by some legal order and prohibited by others; within Christian theology, the same behavior could be justified by one confession or denomination and considered heretic by the others; in morality, the very same behavior could be permitted by one ‘moral system’ and prohibited by others.282 Consider the case of a Catholic hospital that does not offer the medical procedure of abortion due to religious reasons, and that some political elite or the majority of the people by means of their representants within the government wishes to oblige the hospital, by means of law, to nevertheless offer the procedure regularly, not only in cases of emergency. Supposing that the legal statute enacted by the political power is in accordance with the constitution and non-positive legal principles and supposing that the hospital’s position on the issue is in accordance with theological doctrine, the normative order of religion collides with law.283 A unified legal answer for the case collides with a unified religious answer for the same case. Should the hospital obey religion or law? The question is meaningful because it is logically necessary that the Catholic hospital and its doctors are either obliged to interrupt the pregnancy of patients or not and practically necessary that they will either practice abortion or not. These logical and practical necessities do not depend on the kind of the permission or prohibition (if legal, moral, religious, etc.) or, in other words, it does not depend on the normative predicate that is added to these allowances and duties. The situation is especially important because on the one hand, it is impossible to obey contradictory commands, and on the other hand, 281 Legal pluralism is, in simple terms, “the presence in a social field of more than one legal order”. See John Griffiths, ʻWhat is legal pluralism?’, Journal of Legal Pluralism, 24 (1986), 1–55, at 1. The many legal orders that encounter in the same space can be, for example, professional self-regulation, lex mercatoria, or technical standardization. See Hans Lindahl, Fault Lines of Globalization: Legal Order and the Politics of A-Legality (Oxford: Oxford UP, 2013), at 13. 282 Hans Albert talks about ‘the idea of the double truth’ (“die Idee der doppelten Wahrheit”), ‘metaphysics of two spheres’ (“Zwei-Sphären-Metaphysik”), and ‘dogmatic principles of shielding’ (“dogmatische Abschirmungs-Prinzipien”) when the ‘methods of critical thinking’ are only applied to one field of knowledge, while other methods, normally religion, are let outside of criticism for the very reason that they are in other fields. See Albert, Traktat über kritische Vernunft (n. 201) ibid., at 104–106. A similar criticism, also against religion, can be found, as already mentioned, in Dawkins, The God Delusion (n. 162), at 54 in regard to the so-called ‘non-overlapping-magisteria’. 283 That is, positive and non-positive law. At first glance, a collision between moral and/or religious reasons with non-positive legal reasons seems impossible, since non-positive law would include these reasons. In the following, I will show how the non-positive dimension of a normative order can, indeed, collide with the positive or non-positive dimension of another normative order.

84

André Ferreira Leite de Paula

there is no such a thing as an absolute absence of normativity, even if we surpass one or two or three normative orders and their respective (in this case, legal and religious) institutionalized authorities. It is by the logical necessity of one of two contradictories being true that the hospital and its physicians are simpliciter either entitled or not entitled, obliged or not obliged to practice abortion. Notably: contradictories, not contraries. For example, everything, including stones, animals, concepts, numbers, pieces of music, literary characters, and rights, is either white or non-white, since white and non-white are contradictories. A thing can be non-white even if it is not even suceptible to having color (and it is necessarily true that it is either white or non-white). However, something is not necessarily either white or black, since white and black are only contraries.284 The same holds for normativity: it is necessarily the case that any thing X (including persons) at a given time tn has or does not have a right Y (or duty, prohibition, allowance, etc). Indeed, this logical necessity does have some irrelevant implications, for example that a piece of paper does not have rights at any time tn. But truth does not depend on relevance; there are relevant and irrelevant truths. Since the basis is logical necessity, the truth of this very statement does not depend on any recognition by authorities, balancing of rights by judges, or opinions of participants in the legal practice. Therefore, in relation to the example, the question remains: what is the real deontic situation, what are the doctors’ real duties and rights beyond what normative orders state and authorities recognize? To make sure that this question and the logical necessities mentioned do not concern only thought experiments and uncontroversial easy cases, one can consider the case of governments using public radio and television services in order to spread propaganda regarding ideologies and policies that are remarkably against the interests of the people while demanding from its citizens the payment of a tax on a regular basis for its subvention, as is arguably the case of the German public stations (öffentlich rechtlicher Rundfunk) during the military occupation of the country by the United States of America and the North Atlantic Treaty Organization (NATO), and the political influence of the globalist financial elites285 and non-governmental organizations that have been involved since the end of the Second World War.286 Two normative orders, in this case law and 284 About the contraposition of contraries and contradictories, see Aristotle, Kategorien (Hamburg: Felix Meiner, 1974), at 71 (chapter 10, 12a). 285 In simple terms, we can say that, at least since the second half of the twentieth century, “a new and increasingly globally oriented, technically sophisticated elite uses its mass-organizational skills to promote its interests and power. This new global elite sees any vestige of traditional society as an obstacle and uses all means at its disposal, including political influence, financial clout, technology, propaganda as well as military and religious manipulation to undermine the previous order(s) and recreate a political order in its favour”, Nada K. Kakabadse, Andrew Kakabadse and Alexander Kouzmin, ʻFrom Local Elites to a Globally Convergent Class: A Historical Analytical Perspective’, in Andrew Kakabase and Nada Kakabadse, eds., Global Elites. The Opaque Nature of Transnational Policy Determination (Hampshire: Palgrave Macmillan, 2012), 1–37, at 25. 286 After the Second World War, the German system of public radio and television followed explicitly the Allies’ politics of detaching these services from the German state (see Thomas Vesting, ʻVerbesserungsbedarf. Der öffentlich-rechtliche Rundfunk und die neue Kultur der Netzwerke’’, Merkur. Deutsche Zeitschrift für europäisches Denken, 67, 10/11 (2013), 905–917, at 906) in order to decentralize its structures

On the Unities of Law, Practical Reason, and Right

85

politics, are in conflict. Should the citizens comply with the law, or pursue emancipation from hostile imperial rule? As is the case here, not only law and morality, but also law and politics can create colliding deontic predicates (i. e. what is due according to the one order can be not due according to the other), for deontic predicates can collide even if they have different intensities. For instance, what is obliged in one regard can collide with what is allowed, reasonable, prudent, or only recommendable in another regard. The mere fact that the question goes beyond normative orders (in this case, law and politics) does not mean that logic does not apply and that it does not have an answer. To take a comfortable observer’s perspective, and instead of answering the question, to only watch, predict or explain what happens and what individuals and the courts decide would be a pseudo-scientific evasion of a very important normative question. Again, to divide normativity into autonomous fields or normative orders of law and politics and to say that, ‘legally speaking’, the citizens have the obligation of payment, whereas ‘politically speaking’, it may be that they should not pay the tax, remains with an unsolved contradiction, since, simpliciter, either they will pay it or not, either they should pay it or not, either the state is entitled to enforce it or not, etc. For a final example of this problem, consider the hypothetical but in practice, frequent kind of case of, say, the individuals Rachel and John, who are Christians, both 15 years old and who live in a country whose legal order does not allow marriage under the age of 18. There could be a collision between religious norms that allow marriage under the age of 18 and legal norms. If their families agree that the couple should live together and become independent from their parents, if they celebrate with festivities, if the pastor declares the couple married in a solemn church ceremony and if they establish a new family, are they really married? Again, this question is meaningful precisely because it is logically necessary that they are either married or not, it is practically necessary that they act as a married couple or not and, simpliciter, it is normatively necessary that they are either allowed to marry or not and that the community should recognize it or not. If one separates normative orders with no hierarchy and says that the couple is married ‘in the sense of ’ religion, but not married ‘in the sense of ’ law, since marriage for law and for religion would consist in different constructions of reality of distinct normative orders, social systems, fields of sense, linguistic frameworks, language games, etc., one commits

(see Jasmin Heyer, Öffentlich-rechtlicher Rundfunk und Zivilgesellschaft. Über den Einfluss des öffentlich-rechtlichen Rundfunks beim Aufbau einer Zivilgesellschaft nach dem Zweiten Weltkrieg in der BRD. Series of the Maecenata Institut für Philanthropie und Zivilgesellschaft, n. 87 (Berlin: Maecenata Institut, 2015), at 27). Its political contents have been in strong accordance with the interests of the winners of the war. While the French called this process part of a ‘mission civilisatrice’, for the British it was a ‘reconstruction’ and for Americans a ‘reeducation’ of the German people (ibid., at. 20). For a time since 1945, television programs have been made directly by the military itself – it was a ‘military television’ (ibid., at 24) that spread anti-nationalist and other ideologies according to the convenience of the winners of the war. The German public stations maintained their ideological line even after their demilitarization. In the first decades of the 21st century, for example, they have been still repressive of points of view that seriously challenge the policies of the globalist agenda and that argue against mass migration, the expansionism of the European Union and hostility towards Russia.

86

André Ferreira Leite de Paula

at the end of this train of thought the contradiction that the very same people are at the same time married and not married. Why is this a real contradiction? A conceivable alternative that would avoid the contradictions that have been so far identified is, as already indicated, a semantic separation of normative orders, i. e. to understand each particular description of a behavior in terms of the exclusive meaning provided by only one of the respective orders. This could be said if the concept and the thing called ‘marriage’ are ascribed exclusively to the normative order (or linguistic framework, field of argument, social system, field of sense, internal perspective, etc.) of law; if the concept of ‘radio and television taxes’ would be solely internal communications of the social system of law; or if the practice of ‘abortion’ by hospitals could only be defined, justified or criticized within the field of medicine on exclusively medical grounds. Practically speaking, this would mean that payment of taxes, as a legal issue, would not be politically relevant and would not be susceptible to understanding by political deontic predicates, or that the normative order of morality would not actually refer to exactly the same part of reality as ‘taxes’ or ‘fees’. In these cases, there would be no real contradictions among orders (or antinomies, the specific kind of contradictions of deontic predicates). Even if two orders would use the same lexicon (‘marriage’, ‘tax’, ‘abortion’, etc.) in its internal reasons and regulations, the lexica would nevertheless be different elements of different orders and would be submitted to different “epistemic authorities”287. The consequence would be that normative orders would not really collide, because their rules, although eventually contradictory at the level of their mere wording, would actually constitute different realities. This semantic-contextualist strategy is an attempt to obtain unity (i. e., non-contradiction) in the plurality by means of compatibilization. It rests on the correct assumptions that each normative order explicitly regulates only those behaviors comprehended within their semantic contents, and that no normative order provides positive288 rules about all behaviors; a normative order rules only what is respectively legally, morally, politically, or religiously relevant. In this very strict sense, semantic contextualism is correct; it is the mere description of the social condition of differentiated normative orders. However, the semantic-contextualist strategy fails on a more deep level because of at least two reasons. Firstly, the attempt to ascribe incommensurability to normative orders among each other fails, because the concepts and the reality of the respective things meant in them, say, ‘marriage’, trespass all normative orders and their particular semantics, even if their semantics vary and name the same thing (‘marriage’) with different words such as ‘contract’, ‘matrimony’, or ‘conjugal bond’, and associate these terms with different meanings, e. g. in religion, marriage might be eternal, while in law it might be a rescindable contract. In spite of all the additional meanings that the words matrimony and contract may have within religion and law, they refer at least partially to the very 287 For this position, see the example of Teubner, ʻHow the law things: toward a constructivist epistemology of law’ (n. 127). 288 As something that should be done in contrast to ‘negative’, i. e. something that is not commanded or not prohibited.

On the Unities of Law, Practical Reason, and Right

87

same concept, and therefore to the very same reality.289 In other words, there can be real antinomies between normative orders even when there is no superficial contradiction at the level of their semantics, because concepts underlie words and reality underlies concepts. It is the commonality of references and the ultimate encounter of contradictory deontic predicates at the level of the very same behavior that result in deontological incompatibilities. Furthermore, every normative order provides at least negative directives for all behaviors, even for those which are not included in the semantics and relevance class of any norm inside the order: behaviors that are not legally prohibited, including those not legally relevant at all, are not completely outside of the range of regulation of law: they are legally permitted. The concept of a-legality means irrelevance from a legal point of view; it does not mean total absence of legal regulation.290 Equally, behaviors that are morally irrelevant are, indeed, amoral, but not outside of the field of morality; those behaviors are morally permitted, that is, they are not immoral. For instance: to open a door with the right rather than the left hand is not legally or morally relevant, but it is legally and morally permitted and certainly not illegal or immoral. Thus, law and morality as normative orders incide291 upon all behaviors, qualifying them according to their own categories and providing directions for action. In the same sense, behaviors that are religiously indifferent may be a-religious, but they are at least permitted by religion. In short, normative orders provide directives, if only negative and permissive ones, for absolutely all behaviors. Therefore, they always refer to exactly the same behaviors. In final instance, the semantic-contextualist solution of non-touching and non-colliding normative orders on the basis of the non-existence of a shared reference among them (i. e. due to the assumption that they would not rule the very same behaviors) fails because it presupposes that the range of regulation of normative orders would include only positive claims according to relevance. Rather, one should acknowledge that the 289 Terms and words are not the same as concepts and are nowhere near the same as the reality of the things referred to by them. If terms and words were concepts, the translation of every single word between different languages would be impossible. Rather, the basis of every translation is the commonality of concepts referred to by different words. German ‘Ehe’ and Portugese ‘casamento’ may have additional different connotations in German and Portuguese, but together with the English word ‘marriage’ they share a conceptual core and refer to the same reality. Furthermore, it is worth mentioning that most of the theories that divide reality into fields, such as Wittgenstein’s language games, Toulmin’s fields of sense, and Luhmann’s social systems (perhaps with the exception of Gabriel’s theory of fields of sense) are products of the so-called ‘linguistic-pragmatic turn’ in twentieth century philosophy, and are fundamentally opposed to any attempt to distinguish between word and concept, since this distinction presupposes an underlying reality beyond semantics, while semantics is seen as the totality of the world, or at least as the most basic elements that normative orders are made of. 290 In contrast to Hans Lindahl’s position, who seems to consider some behaviors to be a-legal for the simple reason that they are involved in hard cases or in critical political movements. See Lindahl, Fault Lines of Globalization (n. 281), at 30–38. 291 From Lat. incidere (to fall upon, to to occur, to coincide). For a very well elaborated conception of norm incidence in law, see Pontes de Miranda, Francisco Cavalcanti, Tratado de Direito Privado: Parte Geral. Tomo I. Pessoas físicas e jurídicas (São Paulo: Revista dos Tribunais, 1983, reprint 2012); reception, discussion and application to diverse practical issues by Adriano Soares da Costa, Teoria da incidência da norma jurídica. Crítica ao realismo lingüístico de Paulo de Barros Carvalho, 2nd ed. (São Paulo: Malheiros, 2009).

88

André Ferreira Leite de Paula

very same piece of behavioral reality (or behavioral possibility) is governed by many normative orders that might contradict each other. The relativism that arises in the case of unsolved antinomies between orders cannot be avoided by means of construing or limiting the meaning of words in order to make the collisions be only apparent. Furthermore, the conflict is between really different normative orders,292 not between different moral reasons, as it would be if the conflict were understood as the conflict between one moral reason to do X and another moral reason to obey a law that commands non-X. In this case, the conflict would be exclusively pertaining to the field of morality and morality would be, actually, the only existing normative order.293 Therefore, the solution to the antinomies described above, taking one example for all, can only be either that (1) Rachel and John are married, although legislators, officials and society do not recognize it and therefore commit the mistake of not recognizing marriage outside of law, or (2) they are actually not married, although the couple and 292 As Hegel states in Hegel, Grundlinien der Philosophie des Rechts (n. 50), § 30. 293 As it seems to be the case of Gustav Radbruch’s legal philosophy. For Radbruch, even if law and morality are different orders and have different norms (he talks about the “Eigengesetzlichkeit des Rechtsgebiets”), the ultimate fundament of law’s binding character is morality; legal norms are binding for individuals only from a moral point of view, which means that legal norms provide, according to him, moral reasons for action. See Radbruch, Rechtsphilosophie (n. 17), § 5, p. 47. For an extensive analysis of Radbruch’s positions on the relationship between law and morality, see Jing Zhao, ‘On the Relation between Law and Morality. From the Separation to the Connection Thesis in Gustav Radbruch’s Legal Philosophy’, in this volume. For a discussion about morality being the only normative order, see also the instructive explanation provided by Norbert Hoerster: “Es kann der Fall eintreten, daß eine Person A zu einer bestimmten Handlung verpflichtet und gleichzeitig nicht verpflichtet ist, genauer: daß A zu dieser Handlung aus einem Regelsystem x verpflichtet und aus einem anderen Regelsystem y nicht verpflichtet (oder gar zu ihrem Gegenteil verpflichtet) ist. … Das bedeutet dann, daß A zu der betreffenden Handlung rechtlich verpflichtet, jedoch zu ihrer Unterlassung moralisch verpflichtet ist. In einer solchen Feststellung liegt keinerlei Widerspruch. Man muß sich nur klarmachen, daß die Zuschreibung einer Verpflichtung keineswegs schon ein abschließendes, unter allen Umständen geltendes Sollen impliziert. Ein solches Sollen kann vielmehr erst die Folge einer Abwägung der im Spiel befindlichen, möglicherweise konkurrierenden Verpflichtungen sein. Dabei besteht das besondere Problem im Fall des Konfliktes zwischen rechtlicher und moralischer Verbindlichkeit darin, daß dieser Konflikt letztzlich wohl innerhalb der Moral, das heißt, als Konflikt zweier moralischer Verbindlichkeiten ausgetragen werden muß. Es spricht nämlich vieles dafür, dem Bestehen einer Rechtsordnung als solchem einen gewissen moralischen Wert zuzuschreiben und daraus eine prima facie bestehende moralische Verpflichtung zum Rechtsgehorsam abzuleiten. … Jeder Versuch, solche Kollisionen durch einen eindimensionalen Verpflichtungsbegriff zu lösen bzw. aufzulösen, muß eine Scheinlösung bleiben, welche die entscheidenden normativen Probleme, auf deren Bewältigung es letzlich ankommt, lediglich vernebelt”, Norbert Hoerster, ʻZum begrifflichen Verhältnis von Recht und Moral’, Recht und Moral, Neue Hefte für Philosophie (Serie), ed. Rüdiger Bubner, Konrad Cramer, Reiner Wiehl, 17 (1979), 77–88, at 87–88. Hoerster’s analysis of conflicts between law and morality are quite precise and make clear the real contradictions between the normative orders, which is especially important in order to avoid the hypostatization of legal validity with whatever one considers to be morally correct, as discussed below. However, his ascription of the real antinomies between law and morality to the field of morality hypostatizes morality and makes of it the highest field of normativity, if not the only one, since a consequence of his position is that even legal norms would be ultimately moral reasons for action. The unity of practical reason accomplished after the consideration of legal and moral reasons for action would be in his account, if existing at all, a specific moral unity. As will be shown below, this mistakenly excludes the possibility that (1) law in many cases can state the prevailing norms and reasons for action on the basis of substantial legal contents whose validity does not ground on their moral character and that (2) morality itself can or even should be disobeyed in exceptional cases for a greater good, thus not being the highest or only instance of normativity.

On the Unities of Law, Practical Reason, and Right

89

their religious community commit the mistake of believing in marriage outside of law. Tertium non datur. Therefore, it is the case that either religion or law prevails, i. e. that the correct description of the situation and the norm that rules their behavior is provided either by religion or by law. The description provided by the one normative order will correspond to the reality, whereas the other description will be simply wrong. Normatively speaking, the one order establishes a binding norm (namely that adolescents under 18 are or are not allowed to marry and that the community should or should not recognize the marriage), whereas the other order cannot and ought not be followed, since contradictory norms cannot and ought not be both fulfilled. Consequently, in the case that religion prevails, civil disobedience of law is the right behavior. Similarly, if law prevails, heretic disobedience of religion is the right behavior. As we see, these behaviors are (even though they are the fulfillment of a norm of only one specific normative order) not only relatively right, that is, not only right in relation to the respective order, but also absolutely right, since they are the fulfillment of the one norm and of the one normative order that prevails over all eventually contradictory norms and orders. The recognition of the fact that there is an absolutely right behavior in each circumstance is important, because among other reasons, practical action and decision require unity. Every decision requires a reduction of complexity, contingency and elimination of possibly antinomical rules. Political disagreements, plurality of value, and the eventual contradictions between judicial precedents must be solved at the latest at the moment of decision or action. The coherent set of propositions that is achieved after the exercise of reason in regard to a practical situation is the unity of practical reason. The existence of a binding norm that finally rules a behavior in spite of other normative orders that state prima-facie294 or definitely colliding norms is the unity of the right (or unity of deontology). Both unities comprise the right behavior of individuals, the right norm independently of its source (or genealogical principle), and the right decision of institutions. The unity of the right can be also formulated in the tautological and, therefore, true claim that whatever is the right or just thing to do is just and cannot be, at the same time, unjust.295 Another true tautology would be that es gibt kein Falsches im Richtigen (there is no wrongfulness in the righteousness).296 This tautology is very important and informative in times of pluralism of values and normative orders. 294 About the notion of prima facie obligations and its relationship with definite obligations, see a discussion in John Searle, ʻPrima Facie Obligations’, in Joseph Raz, ed., Practical Reasoning (Oxford: Oxford UP, 1978), 81–90, and João Andrade Neto, ‘On the (dis)similar properties of legal and moral duties’, in this volume. 295 The formulation of the unity of the right as a tautology is especially important in criminal law, as the punishment of criminals by the competent authority has been commonly seen in the last centuries as something intrinsically evil due to the limitation of individual freedom, but, at the same time, justifiable for the sake of the security of other individuals and other social interests. According to this idea, every single punishment for crimes would be at the same time an evil, but justified (‘necessary’) act; simply put, it would be right and wrong. This antinomy of criminal law must be solved. In this respect, what the unity of deontology requires is that whatever is just is simpliciter just and can be justified positively as such. See in this regard Hegel, Grundlinien der Philosophie des Rechts (n. 50), § 99–100. 296 This is a counter-phrase of Theodor Wiesengrund Adorno’s famous dictum “es gibt kein richtiges Leben im falschen”. See Theodor W. Adorno Adorno, Minima Moralia. Reflexionen aus dem beschädigten Leben

90

André Ferreira Leite de Paula

Now, the fact that one normative order necessarily prevails in the case of a conflict does not mean that it will always prevail in relation to all conflicts, i. e. the hierarchy between normative orders is not necessarily always the same. Since there is no a-priori hierarchy between normative orders on an abstract level and since they can nevertheless collide, it is possible that within a given normative order, say law, there is no possibility of making a right decision because it may be that the colliding norm of religion, politics, or morality is the right. In such cases, although there might be a clear legal decision for the case which follows necessarily from legal statutes, constitution, balancing of non-positive legal principles and from legal practice, the decision may be legal, though not right. In these circumstances, the law is against the right and, therefore, can be rightly disobeyed. Similarly and as already stated, if in a certain case the right decision eventually coincides with the legal decision and collides with religion, the right is against religion, law ought to be obeyed and religion ought to be disobeyed. It is especially important to acknowledge that different normative orders can provide really different answers in order to avoid the temptation of adjusting or, properly speaking, hypostatizing the answers of the one order with the aim of extracting from it an answer provided by another order that is considered more adequate for the case. If, for instance, John and Rachel are allowed to marry according to their religion and assuming hypothetically that this is the right despite what the law says, their attorneys will probably try to make the state and society recognize their marriage by means of writs and suits, especially arguing on the basis of abstract constitutional principles such as freedom of faith. This would be, of course, an understandable attempt to give legal force to a right norm that until now has not been recognized by law, an attempt that could possibly result in a change of the legal order. Of course, the eventual new law to be accomplished by legislation and judicial decision-making after the highest instance’s decision regarding a hard case must and should embrace contents of other normative orders, since all contents of the normative (rights and duties, entitlements, values) are at any given moment tn trivialiter already part of at least one normative order. The very fact that it is necessary that law changes over time and that it assumes contents from morality and other orders over time entails a connection between law and the respective normative order, since moral and religious norms do not cease to be moral or religious only because they begin to be legal.297 The connection between law and other normative orders through exchange of contents in the dimension of time is the temporal-dialectical connection between law and the other normative order. However, even if law is connected with other normative orders, law at any given time tn does not contain all moral norms and morality does not contain all legal norms. Even if law changes over time by means of acquiring and losing contents (i. e. by regulating what was previously not regulated by law and by ceasing to regulate some issue), it is true at any given time (Frankfurt am Main: Suhrkamp, 1980), at 43. 297 Murder, theft, forgery of documents and publicly disturbing drunkenness are examples of immoral and, at the same time, illegal behaviors in many legal orders. Examples from Geiger, Über Moral und Recht (n. 267), at 171.

On the Unities of Law, Practical Reason, and Right

91

tn that law either contains a certain norm or not, i. e. that according to the law, a certain behavior ought to be carried out or not. This is the unity of law. The unity of law is the provision that law definitely gives for a particular case, even if the solution might coincide or collide with moral, political, or religious ones and even if it is ultimately unjust. The unity of the law grounds on the simple fact that at any time tn it is necessarily the case that, according to a certain legal order, the act X of the legal subject A is either allowed (or prohibited, obliged, etc.) or not. The very attempt to make society, the legislative or the judiciary branch recognize some normative content normally presupposes that law at this very moment still does not have such contents (in an affirmative way) or, what is the same, that law has at the moment a unity that excludes this content. For the same reason, the struggle for a change of law presupposes also that there are real antinomies between normative orders. They cannot be explained away by means of interpretation and balancing of the abstract principles eventually recognized within each of them, as if all normative orders would always give, on a closer inspection, the same answers for all cases.298 Rather, the acknowledgment of real antinomies between normative orders is the realization that (1) the answer within one order does not make of it necessarily an answer of any other order, and that (2) the unity of practical reason and of deontology in cases of collision of normative orders is not an adjustment of all orders for the sake of overlapping harmony, but is in the final instance contradictory to at least one of them. The most common place for the struggle for recognition of normative claims is, at least since the nineteenth century, in law due to its privileged apparatus of coercion equipped with more force of execution than all other normative orders. Hence, it has become common not only to demand that the state and society provide what one considers to be right, but also to make the very claim that the legal order does contain such propositions of whatever is right. After the rise of principles in the jurisprudence of the twentieth century,299 non-positivist accounts have claimed that whatever the right solution of a case is would at the same time be the valid legal solution. More radically, some have stated that whatever law is depends on what it ought to be.300 The facts that law (1) contains not only positive rules, but also non-positive principles, (2) aims to provide not only valid, but also just case solutions, and (3) must be unified by practical reason at least for a coherent solution of concrete cases, have led legal scholars to claim that the valid legal solution must be necessarily the absolutely right solution – and this not because all law would be right, but because the right would be the law. This hypostati298 According to John Searle, “one may have inconsistent obligations, and … what one ought to do all things considered may be inconsistent with one or more of one’s obligations, without … denying the existence of any of one’s obligations”, Searle, ʻPrima Facie Obligations’ (n. 294), at 90. 299 I. e. the idea that law is not only made of positive rules issued by some authority, but includes also more abstract principles that can be not only either satisfied or not in a certain case, but also more or less satisfied, and that are somehow connected with morality. The rise of principles in legal theory took place after some very influential works of Robert Alexy and Ronald Dworkin. See Robert Alexy, Theorie der juristischen Argumentation, 2nd ed. (Frankfurt am Main: Suhrkamp, 2001) and Dworkin, Law’s Empire (n. 83). 300 Robert Alexy, ʻOn the concept and the nature of law’, Ratio Juris, 21, 3 (2008), 281–299, at 284.

92

André Ferreira Leite de Paula

zation of law attempts to fit the unities of practical reason and of deontology into the unity of law and, in the end, equalize all them as being only one unity. According to this solution, there would be no such a thing as extra-legal principles of justice, because all possible adequate reasons for an adequate solution would be necessarily and precisely legal reasons; all adequate solutions would be legal solutions. This happens when one attempts to extract from law interpretively or argumentatively whatever is considered to be right. For example, the hypostatization of law can be carried out by means of (1) “constructive interpretation”301 (as in the case of the idea of law’s “integrity”, of American representants of the ‘Living Constitution’302 and of Latin-America’s “pan-principiologist” judicative practice303), (2) by a definition of law that states that law makes a claim to moral correctness304, or (3) by formulating political reasons of decision with legal vocabulary in order to achieve an adequate solution for a case without explicitly trespassing the boundaries of law.305 In all of these cases, law, legal validity or the pertinence of a norm to a legal system are defined by means of specific moral or political elements. In contrast to these tendencies, we can agree with legal positivists when they say that what law is does not depend on what it ought to be, especially not on moral or political beliefs about the right, otherwise the law could never be against the right. Curiously, this is also true for a non-hypostatized non-positivist conception of law. Following the idea that law is not only positive law, but also contains principles of justice already recognized or not yet recognized in practice, law can be still distinguished from other normative orders such as morality and politics. Within a non-hypostatized non-positivism it is still true that not all moral norms and principles are also legal norms and principles, and that not all political reasons are also legal reasons, etc., for normative orders can also be 301 As conceptualized by Dworkin, Law’s Empire (n. 83), at 52. 302 Discussion and criticism in Bryan A. Garner and Antonin Scalia, Reading Law. The Interpretation of Legal Texts (St. Paul: Thomson/West, 2012), especially at 1–28. 303 “Pan-principiologismo”, a polemic expression by Lenio Luiz Streck, who has identified at least twenty-four principles that Brazilian practitioners and legal scholars have comprehended to be implicit in the constitution since its enactment in 1988. See Lenio Luiz Streck, Verdade e consenso. Constituição, Hermenêutica e Teorias Discursivas. Da possibilidade à necessidade de respostas corretas em direito, 3rd ed. (Rio de Janeiro: Lumen Juris, 2009), at 475–496. 304 Following Robert Alexy’s theory, Matthias Klatt states that “jedes Rechtssystem als Ganzes, aber auch jede einzelne Rechtsnorm und jede juristische Entscheidung erheben einen Anspruch auf Richtigkeit. Entscheidend für die Begründung einer das positive Recht übersteigenden, idealen Richtigkeit ist, dass dieser Anspruch nicht im rein Juristischen verharrt. Er behauptet also nicht etwa nur “juristische Richtigkeit” oder “Richtigkeit innerhalb eines konkreten Rechtssystems”. Vielmehr schließt er moralische Richtigkeit ein. Der Anspruch auf Richtigkeit entfaltet eine erhebliche Sogwirkung. Er zieht moralische Richtigkeit in den Begriff rechtlicher Richtigkeit hinein und verleiht dem Recht damit eine ideale Dimension. Der Anspruch auf Richtigkeit sprengt den positivistischen Rechtsbegriff: Neben die sozialen Tatsachen der autoritativen Gesetztheit und der sozialen Wirksamkeit tritt die moralische Richtigkeit als drittes Element der Definition des Rechts. Eine ideale Dimension des Rechts anzuerkennen bedeutet daher, einen nichtpositivistischen Standpunkt zu vertreten”, Matthias Klatt, ʻIntegrative Rechtswissenschaft. Methodologische und wissenschaftstheoretische Implikationen der Doppelnatur des Rechts’, Der Staat, 54 (2015), 469–499, at 472. 305 As detailed shown with an abundance of examples from legal decision-making by Josef Esser, Wert und Bedeutung der Rechtsfiktionen. Kritisches zur Technik der Gesetzgebung und zur bisherigen Dogmatik des Privatrechts (Frankfurt am Main: Vittorio Klostermann, 1940), at 141–171.

On the Unities of Law, Practical Reason, and Right

93

distinguished by their ideal contents: political justice (mostly distributive justice), legal justice (formal justice, procedures, substantial legal principles), natural justice (material justice), and moral justice (justice as virtue) are not synonyms. Not even the ideal dimensions of normative orders are conceptually equivalent to each other, which leads to a non-positivist distinction of law and morality. On this basis and in reference to the above-mentioned examples of marriage, television taxes and abortion, we can say that even after the consideration of positive constitutional principles, non-positive legal principles, and the parts of politics and morality that are intertwined within legal decision standards, some antinomies between law and other normative orders can still remain. If neither positive law nor non-positive law can be unlimitedly interpreted for the sake of overlapping harmony between all normative orders, real contradictions between orders can also take place at an ideal level.306 Therefore, if (1) different normative orders rule exactly the same behaviors, (2) if they can, therefore and nevertheless, really contradict each other, and (3) if this does not prevent the unity of deontology to be a logical necessity, one of the colliding normative orders must necessarily and hierarchically prevail, if only in regard to particular cases. The prevalence of a normative order is threefold. Firstly, it can be merely sociological in the sense that we can describe or predict which regulation of social reality is probably going to be followed in the practice. In regard to society as a whole, the social prevalence of a normative order is contingent; it varies according to local particularities and the level of cultural and civilizational achievement. For instance, Anglo-Saxon societies are societies of a moral type: morality is so extremely highly regarded that it spreads towards all other normative orders, affecting and socially prevailing over law, politics and religion. This accounts also for the linguistic peculiarity that everything if only nearly related to normativity is already embraced by the vague Anglo-Saxon term ‘morals’, whereas Latin, Latin-based languages and German do not immediately associate the term ‘moral’ with law (jus, derecho, Recht). In contrast to Anglo-Saxons, Arab societies have been ruled for millennia by tribal politics, and since the seventh century by a conjunction of politics, religion, morality, and law called Islam, in which tribal politics prevails in the practice (whereby it is not said that the prevalence of morality would correspond to a higher cultural achievement in comparison to the prevalence of politics). In any case, although to know which order normally prevails in social practice or how judges will probably decide a case is, indeed, an indispensable orientation for rational action of participants in a social practice, it does not exhaust what can be said with certainty about the normative. For political force can also be employed in a politically unintelligent way; judges can decide against the law and the right; individuals might behave immorally. Hence, the dimension of the normative comprises not only its respective practices, nor only ‘social practice’ as a whole, but also their conceptual reality prior to practice and the purposes that a practice should be guided to, which, in a non-voluntarist understanding, 306 This is approximately what Gustav Radbruch calls “Umkleidung desselben Materials mit doppeltem Wertcharakter”, i. e. the very same content or norm can be assessed in different ways from the point of view of different normative orders. See Radbruch, Rechtsphilosophie (n. 17), § 5, p. 47.

94

André Ferreira Leite de Paula

are both objects of philosophical knowledge. The consequence is that the prevalence of a normative order is not only social. Besides its above-mentioned sociological component, it can be meant deontologically as a norm, as the mentioned example of the Catholic hospital that should or should not practice abortion has shown. In these kind of cases, the prevalence of a normative order means that the normative content provided by one order is the right and, consequently, it is what ought to be done, regardless whether it will be done or whether it violates another order. Thirdly and equally importantly, the prevalence of a normative order is meant as a fact if it refers to conceptual reality, as in the case of someone either being married or not, either in the present or in the past: this is the case regardless of what should be the case or of what the couple or ‘we’, the community of speakers, participants of a social practice, etc. should or should not do or how we should act in the future. It is by logical necessity that, at every time tn, two things (including people) are or are not married regardless of their and other people’s beliefs or wishes in this regard. In other words, to say that someone is married is not the same as to say that we should consider him married and act accordingly, for we should only consider those people married who are really married. This means that conceptual reality is also prior to belief. Past conceptual facts are also unchangeable by posterior beliefs, actions, or interpretations, since every posterior change would carry out retroactive causation and, thus, alter a state of affairs that already belongs to the past, which would ultimately result in retroactive creation of rights, duties, or prohibitions. The unity of practical reason and of deontology is not a matter of aristocratic, individual or democratic decisionism, since what is at stake is not the source, but the content. What is at stake is not who decides in which sense the unity is real and normative; it is also not a matter of how to implement the right; it is, rather, the logical necessity and the content of what is the right independently of who has the competence and power to implement it and the wisdom to declare it. Therefore, neither the typically decisionist focus on competence questions in practical reasoning (‘who is entitled to decide about X?’, ‘how are we supposed to control the decider’s valuations and decisions?’) nor the pragmatic framing of theory based on questions of empirical realization (‘how to accomplish X?’) nor the positivist sociological method of description of normative attitudes in society (‘what do participants of a normative practice do, believe and claim?’) can provide any account or objection about the unity of deontology. The employment of other methods than the direct logical-conceptual method used here would be a case of ignoratio elenchi. In short, the unities of practical reason and of the right are not a matter of empirical or potential consensus, of a putative equal capacity of judgment of everyone, nor of normative authorities’ recognition, but of a-priori logical, conceptual, and practical necessity to be found in the context of the respective question.

On the Unities of Law, Practical Reason, and Right

95

III. The unity of practical and theoretical reason Practical reasoning does not involve only normative reasons. It involves not only the consideration of reasons provided by normative orders, but also simple statements of (non-normative) facts. For example, the statement that ‘the person A should be punished’ cannot be primarily justified with recourse to a legal norm (e. g. ‘because the penal code states that murderers should be punished’), since there are many people who are not murderers and, therefore do not fall under this legal norm, which could be the case of person A, but firstly indicating the fact that ‘A has killed B’.307 Only after the identification of the fact or at least the suspicion that ‘A has killed B’ can this be reasonably and legally qualified as a ‘homicide’.308 In general terms, an indispensible reason and the most immediate reason why a judicial decision (and often a moral or political decision) is justified is not a legal norm, but a statement of fact. It is not the major, but the minor premise of the legal syllogism. Similarly, at least one of the reasons why someone has, in principle, the right to bodily integrity may be a simple, but highly meaningful statement of fact such as ‘because he is a human being’. As these examples show, some of the immediate reasons why a behavior is justified, prohibited, or permitted do not pertain to any normative order at all. To kill someone is not a norm. To be a human being is not a norm. Practical reason does not follow the Midas-principle: a thinking subject does not turn everything into a value or norm only because he makes valuations about that. The fact that someone is a human being does not depend on the will of any individual or community, valuation, consensus, or practice, on any ascription of meaning from positive law or recognition by legislators, legal officials, or the public sphere: to be a human being is historically and ontologically prior to all cultural and normative practices. Humans are the natural and historical causes of cultural norms and valuations. Thus, to be a human being is an example of a highly meaningful and, at the same time, ‘brute fact’ of the world that, still, provides reasons for action. Thus, unlike rights and duties that are always part of some normative order, practical reason goes beyond every normative order, not only because it considers different solutions from different orders, but because it considers facts that transcend them. From this it is clear that practical reason is not itself a normative order above law, politics, religion, or morality, and that it is does not belong only to the latter. Practical reason is not a source of contents from which justifications or substantial goods could emanate, but rather a faculty of living beings: their capability of judging the relevance of facts for practical action, of elaborating and following rules, or of simply developing motion towards the good. An action is not practically reasonable instead of being legal, 307 See Neumann, Juristische Argumentationslehre (n. 89), at 21–28, according to an adoption of Stephen Toulmin’s argumentation model for legal argumentation. 308 The qualification and justification of an act as being legally relevant, as being the instantiation of a legal type, as for example a homicide, is an exercise of practical reason that occurs after the fact, typically during the trial. However, this does not exclude the incidence of the legal norm over the criminal’s act already at the time of the act and, thus, independently of officials’ recognition and posterior argumentation, as I will explain in the following.

96

André Ferreira Leite de Paula

moral, political, or religious, but concomitantly so. Both the possibility of justification of a normative statement on the direct basis of non-normative facts and the fact that logic is valid for normativity show that practical and theoretical reason cannot be separated and are, thus, part of one and the same faculty of reason. IV. Of the time of the unity of deontology and the causal effects of normative facts The unities of deontology and of practical reason can take place in different moments within time. If an entrepreneur does not pay a specific tax that he is personally not aware of, but should be, for example because he has not hired a bookkeeper who could have informed him about his obligations before the treasury, it is true of nearly all legal orders that tax law qualifies his behavior normatively as ‘tax evasion’ despite this. There is a legal norm that is valid in reference to his behavior exactly at the time of the commitment of the legally relevant acts or omissions. In other words, it is by virtue of a legal norm that his behavior is a ‘tax evasion’. His behavior is a tax evasion even if not one single citizen or legal official is exactly at t1 (the time of commitment of the acts or omissions) thinking about it or is somehow aware of the case. As previously mentioned, this is called incidence: the legal norm incides upon the behaviors comprehended under its semantics.309 The fact of norm incidence independently of conscience, acceptance and recognition of participants in a legal order is the basis of the claim raised afterwards (at t2) by legal officials that, according to the law, the entrepreneur should have paid the tax in the past (at t1, previous to the official’s decision). This very claim presupposes that the legal norm was already valid at t1 before recognition in the concrete case. The fact that (1) there is a positive legal obligation according to which this individual should do something and that (2) this obligation in this particular case exists independently of the awareness of anyone is the ideal existence of positive law. Ideal does not mean here a contraposition to reality, to facts and causes, as the Anglo-Saxon usage of the word normally presupposes, but refers to non-empirical reality, i. e. the reality of facts that are non-empirical, that is, non reducible to matter, to any recognition of legal officials, attitudes of acceptance or mental states of participants in a legal order. Of course, the 309 See ibid. and Soares da Costa, Teoria da incidência da norma jurídica. Crítica ao realismo lingüístico de Paulo de Barros Carvalho (n. 291). The incidence of norms is infallible, for norm incidence is not norm application (or interpretation, balancing, subsumption, etc.). See Pontes de Miranda, Francisco Cavalcanti, Tratado de Direito Privado (n. 291), at 74. Furthermore, incidence does not depend on individual or collective intentionality (Pontes de Miranda, Francisco Cavalcanti, Tratado de Direito Privado (n. 291), at 74): “A vontade humana nada pode contra a incidência da regra jurídica”, ibid., at 95. “Regra jurídica e suporte fáctico hão de existir no momento em que se dê a incidência. Não é preciso que ocorra no momento da aplicação. Nesse, pode ser que o suporte fáctico já não seja, e a regra jurídica ainda seja; ou vice-versa. Hão de ter coexistido antes, em algum momento, que é aquele em que se afirma ter a regra jurídica incidido. Se não houve a coexistência, a atitude do legislador post facto e a do direito livre são a mesma: contrariam a irreversibilidade do tempo, que tanto rege o mundo físico quanto o biológico e o social. No momento da aplicação, é diferente: de ordinário, o juiz está a tratar de passado, de incidências que se deram, sem qualquer atenção ao presente e ao futuro; às vezes, não lhe incumbe, sequer, examinar a eficácia presente ou a eficácia futura”, ibid., at 88.

On the Unities of Law, Practical Reason, and Right

97

norm can only be followed and can only produce some effect on behavior if it is known by the addressee or if the particular case is known by some official. However, this is a requirement of efficacy (Wirksamkeit, eficácia), not of validity, existence, or incidence of a legal norm. The ideal existence of positive law is, by the way, the normal form of law’s existence: most legal obligations in the most concrete cases exist and are fulfilled without any specific legal reasoning or mental states in this regard on the part of anyone: to get in the bus and to pay an amount of money to the transporter is a contract, even if neither the bus driver nor the client knows it and even if the case never generates any official’s recognition; neighbors have the obligation of silence at night even when they and everyone else in the neighborhood is sleeping; an individual who is 18 years old is allowed to marry by virtue of positive law, even if no one in the community has mental states in this regard (although they may have mental states in the sense that the general norm is valid, but not necessarily in the sense that this individual is allowed to mary, which is, nevertheless, a legal fact logically implied by the general norm and, therefore, also a fact of positive law. We can call this individual norm that is not the product of legal application, interpretation or recognition a tautonorm, since it states the same deontic content as the general norm and it is valid at the same time, but in relation to an individual case). The same holds for all other normative orders: a moral behavior is already due at a time t1, say, someone should help someone else in a given circumstance, even if he does not accept or even know this moral duty. This is the basis of regret and moral criticism, i. e. when someone should have acted morally in the past while the recognition of the existence of the duty happens only afterwards. Obviously, a-posteriori recognitions are never creations of obligations either in morality or in law, since this would imply retroactive creation of rights, duties and other deontic predicates over time. This means that past normativity, general norms and tautonorms, exactly as every past fact, can only be discovered, not created or changed. Thus, the ideal existence of law does not mean that what law is depends on what it ought to be.310 Firstly, because past normativity is unchangeable, that is, there is no present ought about past deontic predicates (‘past’ being far or near, including legal cases decided before courts, since courts decide almost exclusively past cases, but also legal orders that no longer exist: what a soldier at the border of the German Democratic Republic in 1988 should have done, whether to shoot at a fugitive of the country or not, is valid and/or right at exactly the same time of the behavior and cannot be created or changed afterwards311). Secondly, because what something is at any point of time t1 does not depend on what it should be at the same time t1. This is 310 In contrast to Alexy, ʻOn the concept and the nature of law’ (n. 300), at 284. As is well known, the principles theory claims that what law is depends on what it ought to be because of law’s “claim to correctness” (see Klatt, ʻIntegrative Rechtswissenschaft. Methodologische und wissenschaftstheoretische Implikationen der Doppelnatur des Rechts’ (n. 304), at 472). The idea of a non-real ideal dimension of law normally arises, as is the case in Kant’s philosophy and in Alexy’s legal theory, because of a false dualism between empirical and ideal worlds, whereby only what is empirical would be real. 311 About the specific problem of the normativity of past legal orders in regard to the German and Brazilian cases, see Ulfrid Neumann, Cornelius Prittwitz, Paulo Abrão, Lauro Joppert Swensson Jr and Marcelo D. Torelly, eds., Transitional justice. Das Problem gerechter strafrechtlicher Vergangenheitsbewältigung (Frankfurt am Main: PL Academic Research, 2013).

98

André Ferreira Leite de Paula

an analytical sentence and, therefore, necessarily true and valid for virtually everything, including normative facts: the fact that someone ought to do something, say, restitute an injury, does not depend on what should be the case, i. e. on what his obligation should be, since the obligation is already the fact. If normative facts were normative in the sense that they themselves depend on what they should be, it would be correct to say that someone should should do something and that all obligations would be obligations to have a certain obligation (whereby it would not have been said what an obligation really is) or, within the metaphysics of voluntarism, that all obligations would be only someone’s will that oneself or someone else does something.312 If the ideal existence of law were not real, but dependent on what law should (or ought to) be or on someone’s will, what is would depend on what is not or at least on what not necessarily is; necessity and fact would depend on contingency. This means that the normativity provided by law (positive and non-positive) in every particular case (i. e. the unity of law in the respective case, or in other words what legally should be done even if it is not done) takes place as a fact exactly at the time of the commitment of the legally relevant actions. The unity of law at any given time t1 does not depend on participants’ decisions or interpretations of this unity at any point of time. When the case reaches the awareness of legal officials, is discussed by the parties in a trial or in the public sphere, or when some legal norm is enforced with sanctions, the legal case is already part of the unchangeable ontology and deontology of the past.313 Then, in relation to past deontology, there are three possibilities: (1) its observance in the present is an attitude of formal justice, specifically legal justice; (2) its disregard for the satisfaction of present moral feelings and judgements is an attitude of material justice; (3) its disregard for future purposes that eventually lead to a greater good is a matter of political justice. If there are normative facts, they have causal effects, as any fact does. Normativity comprises not only justification, not only reasons, but also causes and effects. If some312 As for an example in Peter Stemmer’s position: “Normativität, das bestätigt diese Analyse, ist immer etwas ontologisch Subjektives. Und es ist speziell die Abhängigkeit von einem Wollen, die die subjektive Ontologie begründet. Normativität kann es deshalb nur in einer Welt geben, in der es Lebewesen gibt, die etwas wollen. Dabei ist, dass a in einer normativen Situation ist, nicht von irgendeinem Wollen abhängig, es ist von einem Wollen von a abhängig. Es ist das Wollen dessen, der muss, das eine Existenzbedingung dieses Müssens ist. Voraussetzung dafür, Adressat eines normativen Müssens zu sein, ist also ein eigenes Wollen”, Peter Stemmer, Normativität: Eine ontologische Untersuchung (Berlin: Walter de Gruyter, 2008), at 40. 313 The attempt to achieve the unity of law or of practical reason only in the moment of legal decision fails, because of the above-mentioned retroactive creation of rights and duties. In other words, the unity of law is not an ad hoc construction by the particular practical reason of some participants that happen to get knowledge of the case. Such a constructivist conception of practical reason is very common within Kantian theories of law. For instance, according to the idea that “das positive Recht nicht als eine systematische Totalität zur Entstehung gelangt und damit auch nicht von der Rechtswissenschaft als eine schon in sich geschlossene Rechtsordnung aufzufassen ist. Der Vernunft des Rechtsanwenders fällt dann die Aufgabe zu, dem positiven Recht die systematische Geschlossenheit erst noch zu verleihen und ihm so den Charakter einer Rechtsordnung zu geben, den es von sich aus nicht besitzt”, Jens Eisfeld, ʻRechtserkenntnis durch begründetes Werten. Die rechtstheoretische Bedeutung der kantischen Lehre vom Ding an sich’, ARSP 102, 4 (2016), 551–598, at 559. See also 569.

On the Unities of Law, Practical Reason, and Right

99

one commits a crime at t1, is persecuted at t2 and convicted at t3, the conviction has been caused (besides other factors) by the event that happened at t1: if the event at t1 had not happened, for example because the action did not happen or because the action was not a crime, police officers would not have acted at t2 and a trial would not have happened at t3.314 The same holds for omissions: if there was not a legal rule already valid at t1 according to which an entrepreneur should pay a tax at t1, government officers of the department of taxes would not act at t2 and a judicial decision at t3 would not happen. Certainly, there are sometimes judicial mistakes and convictions of innocents, but this does not change the fact that there is a chain of causality between normative facts and posterior beliefs about them. In all of these situations one can say without vicious circularity that the legal officials believe that the person should have practiced the act according to the law because the person should have practiced the act according to the law. This means that normative facts cause the emergence of normative beliefs. Of course, as explained above, at t3 and in relation to the time t4, the legal official can decide whether the norm of t1 should also be followed now, which kind of consequence it should produce in the future, or whether it was, for example, unconstitutional or perhaps morally unjustified. He can315 act according to formal justice and hold previous existing rules to be decisive for the outcome of the present trial, or act according to material justice and thereby satisfy current moral feelings that do not follow previously established rules, or even decide teleologically for the sake of the accomplishment of political aims. However, to emphasize this point, what legal officials cannot do is to change a normative fact (as well as any fact) that already belongs to the past. This is true even if the normative fact is a moral one or from any other normative order whatsoever. In the above-mentioned example of tax evasion, suppose that the legal statute of t1 was unjust because the taxes raised by the state in the case were not in accordance with political and moral reasonableness. In the case that law is unjust, it can be rightly disobeyed; then, in this case, it is political and moral reasonableness that provide the norms that 314 In the words of the Scandinavian so-called legal realist Karl Olivecrona, “now it is evident that there is in fact a relation of cause and effect between the crime and the punishment. Why is the murderer brought to trial if not because he is suspected of having killed another person? Why is he suspected? Is it not in most cases the fact that he has actually – committed the crime he is accused of? When this fact has been proved in the way required by the law of procedure, the judge metes out his sentence. Obviously this sentence is caused by the deed on the one hand and the contents of the law on the other hand, since the judge is influenced by these facts in giving judgment. I range the contents of the law expressly among the facts. The words printed in the law-books are certainly facts and so are the ideas evoked in the mind of the reader by these words. They are among the principal causes of the action of the judge in giving sentence. If the laws did not have this effect, people might as well give up legislating as an unnecessary waste of time. There are, of course, other causes too for the action of the judge, such as his temperament, his education, his interests etc. But the important point that must be stressed here is that both the crime and the law are causes of the punishment”, Karl Olivecrona, Law as Fact (London: Einar Munksgaard, Humphrey Milford, 1939), at 19–20. Although Oliecrona was on the right path by admitting the existence and causal effects of legal facts, he ultimately reduced legal facts to mental states of participants in a legal practice (ibid., at 52), which characterizes, actually and in contrast to what he aimed, an anti-realism about law. 315 Not as should, but as the mere indication of a possibility.

100

André Ferreira Leite de Paula

should be followed in the sense of the unity of deontology. Therefore, it was already the case at t1 that this was the unity of deontology and that the entrepreneur, indeed, should not have paid the tax. If someone discovers at t3 the normative fact of the unity of deontology that was the case at t1, the unity of practical reason of t3 refers to a previous existing unity of deontology and cannot constitute what was the case at t1, otherwise practical reason would create retroactive deontic predicates. Although the unities of practical reason and of deontology have the same result from the point of view of their contents, the analysis of their relationships within time shows that they are not exactly conceptually the same. Certainly, with that it is not yet said what the legal official personally should do in the case that he discovers that the unity of deontology at a point of time previous to his decision was against the law, i. e. whether he should apply the law despite this. This would be a different inquiry that concerns the unity of deontology in regard to his action. On the one hand, it is also a requirement of the unity of deontology that, tautologically speaking, what should be the case should really be the case (es gibt ja kein Falsches im Richtigen), which means in this case: the unity of deontology of one case cannot collide with the unity of another case in the same social space. On the other hand, it does not violate the unity of deontology, i. e. it is per se not illogical to say that a judge should sentence the defendant to paying a restitution, and that the defendant, actually, should not pay the restitution. But it would not correspond to the unity of deontology if one says that a very powerful state apparatus should employ all means to make a certain action impossible (say, tax evasion) and that, on the other hand, the right would be that the other party employs all means to make the very same action possible, since the normative statuses would collide and the realization of the right action would be impossible due to the unity of the social space in which contradictory purposes and actions cannot and should not be both fulfilled. To what degree the antinomies between legal officials’ and other citizens’ actions really exist depends on the empirical circumstances of the case and is, therefore, a matter of analysis of the context. In any case, the official’s belief at t3 that the law was unjust in regard to the entrepreneur’s situation at t1 can in many cases be also caused by the fact that the law was unjust at t1 in regard to the entrepreneur’s situation: if the law had been just at t1, many enterpreneurs who know about the norm would have decided to pay the tax. Then, the trials would not have even begun, and the official would not have even gotten to know the cases. This means that just and unjust laws can have different causal effects on peoples’ behaviors and beliefs. V. The unity of deontology and teleology and its consequences for morality All normative orders exist both empirically and ideally. As well as law existing empirically (as positive law) and ideally (as positive and non-positive law), morality also has an empirical (positive) and an ideal existence. Positive morality is what is normally called conventional or, as already mentioned, social morality. It is a fixation of moral contents

On the Unities of Law, Practical Reason, and Right

101

in the minds of individuals who are susceptible to cultural and other environmental influence, a fixation of contents in the institutions and practices of a people. It accounts for the particularistic differences between the moral systems of different individuals and communities. In relation to individuals, positive morality is the moral conviction that an individual actually has, i. e. the morality that he posits. In relation to a collective, it is positive in the sense that it has been posited historically and customarily. Morality can also be positive in the sense of an empirical data that cannot be explained away as not existing as the morality of that group (or of all groups), even if it eventually happens to be unjust, thus not being a creation or evaluation of the observer, but a real data of social reality. The positive dimension of morality also accounts for the fact that morality cannot be changed literally from one day to another; a sovereign cannot ordain a change of morality within a deadline; an individual cannot act immorally today, and then do exactly the same thing under the same relevant circumstances tomorrow and thereby act morally. The change of morality requires a long time, and this very fact shows that it has a substantial tenacity316 and that, consequently, the moral quality of an act can never be completely defined by what someone considers that morality itself should ideally be – ‘ideally’, here, in the sense of opposition to reality, as desires, fictions and counter-factual suppositions. Positive morality determines partially, but necessarily the moral quality of an act. The assumption that morality is exclusively positive is called moral positivism. It is ultimately grounded on voluntarism, and is the counterpart of the idea that there are objective or natural goods for individuals or communities, independently of their explicit or implicit recognition. With this premise, moral positivism is the position in moral philosophy that corresponds ontologically and epistemologically to democracy and liberalism in politics: They all assume that, firstly, there are no objective goods; secondly, if there are some objective good, it cannot be known or posited by other instances than the respective community or individual; and thirdly, that no objective good, even if there are some that could be known by other than the respective instances of will, could be implemented against the will of the people or of individuals respectively. It is worth noting that non-positivists in the field of law (which, according to the legal theory of the second half of the twentieth century, means those who hold that law are not completely or necessarily detached from morality) are positivists in the field of morality when they say that all moral values are exclusively those socially and historically constructed by individuals or communities. That is, a non-positivist comprehension of law does not cease to be positivist partout only because it includes morality, if morality is comprehended as being only positive morality (and not natural or divine law). Consequently, the acceptance of necessary connections between law and morality is not necessarily a non-positivism. It can be a positivist connection of law and morality. Therefore, the only counterpart of social positivism (i. e. of legal positivism and moral positivism taken together) is natural law. Natural law is, in simple terms, the 316 Lat. tenacitas, permanentia; Ger. Beharrlichkeit.

102

André Ferreira Leite de Paula

idea that there are at least some objective goods for individuals and communities such as health, nutrition, security of bodies, life maintenance, the prevention of dysgenics through incest avoidance,317 defense against natural catastrophes and aggression from other individuals or groups, that are not in any way individual or social constructions of any kind; that were rather the natural and historical causes and purposes of social constructions; that can be discovered rather than created by will, and whose reality character as goods does not depend on the entity that apprehends them (i. e. on any authority or recognition), but rather authorities are legitimate and recognitions are correct if, when and because they match objective goods (prohibita quia mala instead of mala quia prohibita318). If morality has partially and necessarily a positive existence and is shaped socially and historically, it is not a synonym for natural law. Although morality has natural origins and purposes and can state partially the same obligations that natural law states, they are conceptually distinct. Now, morality is not only social morality; it has also a ‘critical’ dimension. For if there is really such a thing as moral normativity, there is the possibility of moral rights and duties being binding, even against someone’s will; moral correctness is not what one wishes it to be, otherwise morality would be reducible to (i. e. exactly the same as) mental states and individual or collective will, which are non-normative. Since morality is not synonymous with natural law, it is necessary to recognize a third level between positive morality and natural law, namely ideal morality. Ideal morality (as well as the ideal dimension of all normative orders) accounts for the fact that some behavior can be morally correct, even if it is not recognized by a particular individual or community as being morally correct, for example because no one has thought about the moral correctness of someone’s behavior or of some kind of behavior and, therefore, no one has mental states in this regard. It is also the ideal dimension of all normative orders that accounts for the possibility of normative novelty, i. e. the fact that any right behavior (past or future) can be classified as moral, legal, political, or religious (and their respective deontic predicates) even if it has not been recognized by anyone as pertaining to any of these normative orders until now, which means that no factual or potential behavior is outside of all normative orders. Clearly, the notion of an ideal dimension of a normative order, especially of morality, is detached from voluntarism: ‘ideal’ in this sense does not mean wish, subjective judgment, or possibility of consensus, but non-empirical (non-positive) reality. The ideal dimension of morality is not what morality should be; it is not necessarily the best possible conception of morality that one might imagine. If ideal morality were what morality itself should be or coincident with someone’s will, moral obligations would be either obligations to have a moral obligation (which would be viciously circular) or 317 About the degenerating effects of incest for the offspring, see Incest. Origins of the taboo (Boulder: Paradigm Publishers, 2005), at 35; R. D. Murray, ʻThe Evolution and Functional Significance of Incest Avoidance’, Journal of Human Evolution, 9 (1980), 173–178; David F. Aberle and et al., ʻThe Incest Taboo and the Mating Patterns of Animals’, American Anthropologist, 92 (1990), 253–265; Wilson, Sociobiology (n. 2), at 79. 318 See Villey, La formation de la pensée juridique moderne (n. 33), at 210.

On the Unities of Law, Practical Reason, and Right

103

the simple fact that one wishes that oneself or someone else behaves in a certain way. Ideal morality is, rather, what morality is, it is how someone should behave if he wishes to behave morally, even if this is not recognized by himself (non-voluntarism) or by any community (non-conventionalism). The fact that morality also always has (likewise all other normative orders) a ‘dual nature’319, an empirical and an ideal dimension, leads to the possibility that the only correct moral action in a certain case can be against the right, or equivalently, that the right can be against morality. The fact that every given normative order should recognize what is right does not imply that it actually recognizes it; the fact that it raises a claim to correctness does not imply that it fulfills it. If the moral quality of an action is always at least in part specified and limited by the tenacity of positive morality, the correct moral solution must not always be whatever the absolutely right solution for the case is. There are many cases in which law and politics not only socially contradict morality and prevail over it, but also should contradict and prevail. In these circumstances, law (or politics) ought to be observed and morality ought to be disobeyed. Saving one’s own life in a situation of self-defense or a serious accident while having to hurt or even kill someone as an absolutely necessary means are legally allowed actions that do justice and pursue the greater good or lesser evil under the concrete circumstances, but cannot be considered to be morally correct. Since the content of moral rules (positive and non-positive) refer to normal cases, as the etymology of the Latin mores and Greek νόμος already suggests,320 and since morality’s contents are therefore focused on average people who are neither psychopaths nor heroes, moral rules do not comprise many exceptional cases.321 However, there are exceptional cases. There are psychopaths 319 Robert Alexy asserts that law has a dual nature, “a real or factual dimension and an ideal or critical one. In the definition of law, the factual dimension is represented by the elements of authoritative issuance and social efficacy, whereas the ideal dimension finds its expression in the element of moral correctness. Authoritative issuance and social efficacy are social facts. If one claims that social facts alone can determine what is and is not required by law, that amounts to the endorsement of a positivistic concept of law. Once moral correctness is added as a necessary third element, the picture changes fundamentally”, Robert Alexy, ʻThe Dual Nature of Law’, Ratio Juris, 23, 2 (2010), 167–182, at 167. Although the notion of dual nature of normative orders is correct in itself, the meaning and extent of the ideal dimension of normative orders as understood here differ from Alexy’s conceptions of the dual nature of law in many ways, especially because (1) the ideal dimension of a normative order is, actually, real; and because (2) positive law exists both empirically and ideally. 320 Mos and mores are Latin translations of the Greek εθνικός that can be found for example in Cicero’s writings. See Rudolf Eisler, Wörterbuch der philosophischen Begriffe, 4th ed. (Berlin: Mittler & Sohn, 1927), keyword ‘moralisch’, and Ritter and Eisler (n. 208), keywords ‘Moral, moralisch, Moralphilosophie’, by E. Heymann. νόμος meant originally not only law and obligation, but also custom and social morality. It could also mean a behavior that is distinct from other behaviors by being especially valuable. See Friedemann Quaß, Nomos und Psephisma. Untersuchung zum griechischen Staatsrecht (Munich: C. H. Beck, 1971), at 14–23. For a brief overview of the historical development of the terms ethics, morals, nomos, ius, etc. in Ancient Greece and Rome, see also Dietmar von der Pfordten, ʻZur Differenzierung von Recht, Moral und Ethik’, in Jörg Sandkühler, ed., Recht und Moral (Hamburg: Meiner, 2010), 33–48, at 34. 321 Nietzsche correctly associates morality with what is regularly expected and immorality with arbitrariness: “in allen ursprünglichen Zuständen der Menschheit bedeutet “böse” so viel wie “individuell”, “frei”, willkürlich, ungewohnt, unvorhergesehen, unberechenbar”, Friedrich Nietzsche, Morgenröte (1881) (Cologne: Anaconda, 2008), at § 9.

104

André Ferreira Leite de Paula

and heroes. Although heroism is good and should be aspired to by those who have exceptional courage, capabilities and nobility of spirit, there is no moral (nor legal) duty to act heroically, for example to save the lives of many while putting one’s own life at serious risk.322 While infants and the insane have a lesser degree of free will than the minimum required for moral accountability, extraordinary individuals such as geniuses, heroes, and prophets fall outside of moral normality and normativity due to their superiority in relation to average men. While acting as such they are not morally accountable, because what they are and do is better than what moral standards require or even allow. The moral control of their œuvre by average people is rather a disadvantage for all. This does not mean that their actions are amoral or that they should be at least morally correct in order to be right (from which the idea of ‘supererogatory’ acts would be an inadequate definition for this kind of act, since it presupposes that when one does more than what morality requires, the act would be at least morally correct); it means that they can be really immoral and that there is a real conflict between what morality (positive and non-positive) and the good require. In politics, Realpolitik provides the most important spectrum of frequently immoral behaviors that can be necessary and completely justified for the common good.323 Breaching promises, betraying enemies, lying publicly to the masses, not acting in an unconditional and universalizable way as the categorical imperative requires and breaching fair institutional procedures are irremediably immoral acts both in the positive and in the ideal dimensions of morality that, firstly, do not become morally correct only because they are necessary for a greater

322 As Aquinas points out, “… human law is framed for a multitude of human beings, the majority of whom are not perfect in virtue. Wherefore human laws do not forbid all vices, from which the virtuous abstain, but only the more grievous vices, from which it is possible for the majority to abstain; and chiefly those that are to the hurt of others, without the prohibition of which human society could not be maintained: thus human law prohibits murder, theft and such like”, Thomas Aquinas, Summa theologiae, prima secondae (n. 12), question 96, article 2. 323 As conceived for example by John Locke: “Where the legislative and executive power are in distinct hands, (as they are in all moderated monarchies, and well-framed governments) there the good of the society requires, that several things should be left to the discretion of him that has the executive power: for the legislators not being able to foresee, and provide by laws, for all that may be useful to the community, the executor of the laws, having the power in his hands, has by the common law of nature a right to make use of it for the good of the society, in many cases, where the municipal law has given no direction, till the legislative can conveniently be assembled to provide for it. Many things there are, which the law can by no means provide for; and those must necessarily be left to the discretion of him that has the executive power in his hands, to be ordered by him as the public good and advantage shall require. … This power to act according to discretion, for the public good, without the prescription of the law, and sometimes even against it, is that which is called prerogative: for since in some governments the lawmaking power is not always in being, and is usually too numerous, and so too slow, for the dispatch requisite to execution; and because also it is impossible to foresee, and so by laws to provide for, all accidents and necessities that may concern the public, or to make such laws as will do no harm, if they are executed with an inflexible rigour, on all occasions, and upon all persons that may come in their way; therefore there is a latitude left to the executive power, to do many things of choice which the laws do not prescribe”, John Locke, Second Treatise of Government (1690) (Indianapolis et. al.: Hackett Publishing Company, 1980), ch. XIV, § 159–160.

On the Unities of Law, Practical Reason, and Right

105

good, and secondly, do not cease to be necessary, do not cease to be absolutely right behaviors under the given circumstances324 only because they are immoral.325 For a final example of good immorality, one can mention cynicism. Cynicism is, simply put, the act and virtue of those who state the truth and thereby violate morality, and contribute to the critical improvement of social rules on the basis of the assumption that truth about the world and human nature is more useful for the accomplishment of most thinkable ends one might pursue than taboos and fictions.326 A cynic acts in an immoral way because he considers it to be good; he sees the good in it and, if he is intelligent and educated enough, he knows about the genealogical factors that condition his action, but welcomes them, so that the modalities of genealogical and of moral criticism 324 The expression ‘absolutely right behaviors under the given circumstances’ seems to be, at first glance, a contradictio in adjecto if one assumes that what is absolutely correct could not depend on the circumstances, and that what depends on the circumstances would be only relatively right precisely because it is relative to these circumstances and not valid in others. But ‘absolutely right’ does not mean independence of circumstances, and the reason for this is simply that behaviors beyond any circumstances simply do not exist. The correctness of all behaviors depends on the circumstances. Curiously, this is at least implicitly implied in many so-called ‘non-consequentialist’ understandings of deontology. If one states, on the one hand, that consequentialism is “clearly incompatible with the existence of rights, which prohibit certain kinds of act no matter what the consequences are”, as in Oderberg, Moral theory (n. 77), at 69, and if one makes, on the other hand, limitations of the range of validity of some rights in order to make other rights prevail in a certain circumstance (as in ibid., at 78), one takes a deontological and consequentialist position at the same time: if a paramedic is allowed to or ought to amputate the pacient’s leg as a necessary means to save his life, he is violating the general rule according to which the bodily integrity of individuals should be preserved, and complying with the (prevailing) rule that the pacient’s life should be saved. Thus, even if one says that, in this case, the pacient’s right to bodily integrity has not ‘really’ been ‘violated’ (as in ibid., at 78), which is questionable, one establishes an order of preference among rules according to a greater good (e. g. life maintenance), which is related to this particular circumstance and consequentialist, or, more properly speaking, teleological. In other words, the establishment of a preference relationship between colliding rights (or colliding duties) in regard to a particular case is equivalent to the claim that their definite validity depends on the circumstance. The establishment of this hierarchy is always carried out on the basis of an at least implicit conception of the good and is, therefore, teleological. Therefore, the non-consequentialist character of approaches that establish such a hierarchy of preference is only apparent. 325 Niccolò Machiavelli has shown that political methods of maintenance of a commonwealth can eventually be in strong discordance with morality, and that this does not indicate that there is a problem with the methods; rather, the defect can eventually be on the side of morality itself. See Niccolò Machiavelli, Il Principe / Der Fürst. Italienisch/Deutsch (Stuttgart: Reclam, 2007), especially at 120 (ch. 15). Machiavelli has shown that even those who are authentically good persons must also look good in the eyes of others in order to achieve good political aims that depend on their cooperation. His immoral political thought was not besides deontology; the use of immoral means in politics was justified for the purpose of achieving greater goods such as life maintenance, protection of property and defense of liberty. See Herfried Münkler, Machiavelli: Die Begründung des politischen Denkens der Neuzeit aus der Krise der Republik Florenz (Franfkurt am Main: Fischer, 1982), at 298. In the same vein, according to Herfried Münkler, “erst ein politisches Handeln, das sich keiner Partikularität – und sei diese noch so unbedeutend – mehr entgegengesetzt weiß, ist dem Widerspruch zwischen Politik und Moral enthoben”, ibid., at 299. 326 The basis of cynicism is realism. About the relationship between cynicism and enlightenment, see Sloterdijk, Kritik der zynischen Vernunft (n. 59), at 17–26, 35–36. “Wo Verhüllungen für eine Kultur konstitutiv sind, wo das Leben in Gesellschaft einem Lügezwang unterliegt, erscheint im wirklichen Aussprechen der Wahrheit ein aggressives Moment, eine unwillkommene Entblößung. Doch ist der Trieb zur Enthüllung auf Dauer das Stärkere. Erst radikale Nacktheit und Unverborgenheit der Dinge befreien uns vom Zwang zur mißtraiuschen Unterstellung”, ibid., at 28.

106

André Ferreira Leite de Paula

are not effective against him. This is because (1) the ‘unmasking’ of his actions and arguments by means of the indication of causes that do not justify them (mental processes, emotions, social class, cultural influence, etc.) does not work, because he is educated and rational enough to precisely know these causes as well or even better than the criticizer does. He cannot be accused of being naïve, of ‘not knowing what he does’, of not knowing the real causes of his actions, and therefore, of not being free. Furthermore, (2) criticism on the basis of moral values does not work against cynicism, because cynics consciously act against morality and consider it to be the good for themselves and for others (which in a particular situation might be, indeed, right and good due to the many possible defects of moral normativity), although this is not publicly justifiable due to some deficit of rationality of institutions, collectives, and public sphere.327 Thus, in the eyes of genealogists and moralists, on the basis of their one-sided methods of explanation and conceptions of justice, cynicism appears as a scandal of reason, it announces the ‘bankruptcy of critique’328 because it appears as the paradox of an enlightened and false conscience.329 Cyniscism is the status of a reason that overcomes genealogy about itself and does not acknowledge morality as the highest instance of deontology. In all of these kinds of cases, to amplify the validity of moral rules to situations in which what is required is legal or political action characterizes what can be called moralism. A moralist is the one who defines justice in exclusively moral terms, who does not see the good of a certain immoral action or refuses by principle the very possibility of immorality being good.330 Moralism is commonly based on a comprehension of deontology as stating unconditional duties and rights that ought to be followed independently of their consequences, as the example of Kant’s categorical imperative shows.331 In relation 327 About the deficits of rationality of collectives, see Le Bon, Psychologie des foules (n. 176). Very instructive in times of mass media influence: Tarde, L’Opinion et la foule (n. 176) and Peter Sloterdijk, Die Verachtung der Massen. Versuch über Kulturkämpfe in der modernen Gesellschaft (Frankfurt am Main: Suhrkamp, 2000). See also Elias Canneti, Masse und Macht (Frankfurt am Main: Fischer, 1992). 328 Vladimir Safatle, Cinismo e falência da crítica (São Paulo: Boitempo, 2008). 329 “Aufgeklärtes falsches Bewusstsein”, Sloterdijk, Kritik der zynischen Vernunft (n. 59), at 37. 330 A similar meaning of the word moralism can be found for example in Eisler, Wörterbuch der philosophischen Begriffe (n. 320), keyword ‘Moralismus’: “Wertung der Sittlichkeit als höchsten Wertes, als Endzweck der Menschen oder der Welt; Beurteilung aller Kulturgebiete der Menschen und ihres Verhaltens nach dem moralischen Werte.” 331 Kantian philosophy is an influential example of an ethical system that attempts to unify practical reason by means of non-teleological deontology. Kant sees the necessity of a unity of practical reason arise out of the tensions between morality and politics that we can observe in practice (see Immanuel Kant, Zum ewigen Frieden. Ein philosophischer Entwurf (1796), in: Schriften zur Anthropologie Geschichtsphilosophie und Pädagogik (Darmstadt: Wissenschaftliche Buchgesellschaft, 1964), at 239, B 88–89). According to Kant, the tensions between morality and politics are present, however, only in the practice, not at the level of normative reasons. There are no objective antinomies between politics and morals on the level of the normative reasons for action, because justifications of actions are, according to him, ultimately moral: “Um die praktische Philosophie mit sich selbst einig zu machen, ist nötig, zuvörderst die Frage zu entscheiden: ob in Aufgaben der praktischen Vernunft vom m a t e r i a l e n P r i n z i p derselben, dem Z w e c k (als Gegenstand der Willkür) der Anfang gemacht werden müsse, oder vom f o r m a l e n , d. i., demjenigen (bloß auf Freiheit im äußern Verhältnis gestellten), darnach es heißt: handle so, daß du wollen kannst, deine Maxime solle ein allgemeines Gesetz werden (der Zweck mag sein welcher er wolle). Ohne alle Zweifel muß das letztere Prinzip vorangehen: denn es hat, als Rechtsprinzip, unbedingte Not-

On the Unities of Law, Practical Reason, and Right

107

to the law, this kind of non-teleological deontology leads to an exacerbated moralization of law by submitting law to some specific moral system, by merging the law’s internal point of view with the ‘moral internal point of view’, by defining legal justification or legal reasons for action or law’s binding character in specifically moral terms,332 or even wendigkeit, statt dessen das erstere, nur unter Voraussetzung empirischer Bedingungen des vorgesetzten Zwecks, nämlich der Ausführung derselben, nötigend ist…” (ibid., at 239, B 88, 89). For Kant either one acts freely and in accordance with a ‘formal principle’ (i. e. according to a rational principle), or one acts in a way that is oriented toward some end. According to him, actions oriented toward some end are not necessarily valid, because they depend on some empirical condition that is contingent, since the choice of means to some end depends on the circumstance and what is necessary cannot be derived from what is contingent. It follows that, for Kant, deontology (i. e. what a duty requires one to do), is fundamentally opposed to teleology, i. e., what one should do in order to achieve an end. In this way, Kant unifies practical reason at the level of the normative principles for action by reducing the notion of deontology to unconditional morality and depriving deontology from teleology. This approach rests on several misconceptions of metaphysics, nature and especially of human nature, of which I will comment on two: Firstly, the alternative between, on the one hand, freedom and action by principle, and, on the other hand, pursuit of some end, is not an exclusionary alternative. For one can act freely toward some end. Teleological action presupposes at least a small degree of freedom, since it presupposes the possibility of choice of one end to be realized among many thinkable ends (see Aristotle, Metaphysik (n. 5), at 1045b, 1046a, 1047b). Secondly, duties can consist in a contribution for the accomplishment of a certain end (for example to save someone’s life) even if the end is not empirically possible to realize due to reasons that are beyond the knowledge of the agent (e. g. it may be impossible to avoid the death of a person because of some physiological process taking place in his body, but a physician should try to rescue him in an emergency even though right now he may not know what is happening in the body). That is, the teleological pursue of the good is also formal and deontological (i. e. it is what ought to be done under certain circumstances on the basis of available knowledge about consequences) even if the teleological result is factually impossible to achieve. In other words, the principle “the good ought to be done” (bonum est faciendum et prosequendum, et malum vitandum, see Thomas Aquinas, Summa theologiae, prima secondae (n. 12), question 94, article 2) is also a ‘formal principle’ of practical reason. Its formality consists in the facts that (1) its validity does not depend on the empirical circumstances of action, but is unconditional, and that (2) the good is what every living being strives for even if in a mistaken way. Clearly, teleology has a certain substantiality, but not more and not less than the categorical imperative: which action under certain circumstances corresponds to the good is as substantial (i. e. empirically dependent, non-formal) as the specification of which action under certain circumstances corresponds to the categorical imperative. In short, both the good and the categorial imperative are in themselves formal principles of action that can, however, only be applied substantially. From all of that it is clear that Kant’s position is based on skepticism about the possibility of knowing the consequences of actions (Kant, ibid., at 240, B 89–91). His ethics rests ultimately on a negative conception of human nature (see Kant, ibid., at 242, B 94–95), on an underestimation of human intelligence, ability to foresee consequences and willingness to pursue the good. About this last point, see Münkler/Straßenberger on Kant as a liberal: “man muss die Bürger nicht zu tugendhaften Menschen (Engeln) erziehen, sondern kann sie so lassen, wie sie sind; es kommt nur darauf an, Mechanismen zu installieren, durch die sie ihre egoistischen Neigungen wechselseitig blockieren. Kant verlässt den klassisch-republikanischen Diskurs, indem er die sittliche Verfassung der Menschen politisch neutralisiert und sich allein auf das Gefüge der Institutionen konzentriert … Die gut arrangierte Ordnung der Verfassung tritt an die Stelle der republikanischen Erziehung der Bürger zur Tugendhaftigkeit”, Münkler and Straßenberger, Politische Theorie und Ideengeschichte (n. 190), at 157–158. 332 Although Kant criticizes the moralization of law that is carried out when the state is grounded on an idea of the good and when citizens are obliged to act according to virtue, his practical philosophy does promote a strong moralization of law by means of submitting the justice of law’s contents to the moral law of the categorical imperative and to the morality of political liberalism. Kant considers the binding character of law as a specific moral form of obligation (“Der Begriff des Rechts, sofern er sich auf eine ihm korrespondierende Verbindlichkeit bezieht (d. i. der moralische Begriff derselben) …”, Kant, Metaphysik der Sitten, Rechtslehre (1797) (n. 49), at 337, A33). About Kant’s concept of law and its relations with morality, see Höffe, Immanuel Kant (n. 49), at 211–218. For an example of submission of legal justification

108

André Ferreira Leite de Paula

by defining the very notion of justice as a moral question tout court, which leads to the false alternative that one could either have moral correctness or irrational decisionism.333 In this way, moralism can lead to nihilism: for a moralist, if there is no morally correct action in a given situation, there is no right action at all. Analitically, the conception of deontology as a contraposition to teleology is based on the ideas that (1) there is no objective good (nihilism, relativism); (2) if there is an objective good, one could not know it (skepticism); and (3) if there is an objective good that one could know, one could not know whether the consequences of one’s actions will match the good, since the consequences come after the action and depend on other causal factors beyond the agent’s realm of possibilities of action and knowledge.334 Since the agent, nevertheless, must act in some way (whereby omissions are considered to be actions in a broad sense), the right action (if there is any) would be an unconditional one and precisely always the moral action. Simply put, non-teleological deontology states that ‘there is no objective good, therefore one ought to do (or not do) X’ (X being ‘to say the truth’, ‘to keep a promise’, ‘not to violate the physical integrity of human beings’, or any other duty or right that are considered to be unconditionally valid). However, this idea is self-contradictory, since the deontic predicate mentioned in ‘we should do X’ implies that it is at least intended that it is good to do X. Paradoxically, the good would be to act independently of the good, or, in other words, it would be independent of conceptions of the good to act in the good way X. This contradiction arises because orientedness towards the good is the ultimate meaning of all deontic predito the criterion of its ability to satisfy individual autonomy in a Kantian sense, see Ellscheid, ʻRecht und Moral’(n. 255), at 228–250. Criticism of Kant’s submission of law to morality in Wolfgang Kersting, Politik und Recht. Abhandlungen zur politischen Philosophie der Gegenwart und zur neuzeitlichen Rechtsphilosophie (Velbrück: Weilerswist, 2000), at 328–329. 333 For example, according to Robert Alexy’s Kantian position, justice is a moral question: the ‘legal discourse’ is a special case of the ‘general practical discourse’ and in the general practical discourse there is a claim to moral correctness. See Robert Alexy, ʻThe Special Case Thesis’, Ratio Juris, 12, 4 (1999), 374–384. The claim to correctness is comprehended as a claim to justice, which, in its turn, is defined as being a moral question. See Robert Alexy, ʻLegal Certainty and Correctness’, Ratio Juris, 28, 4 (2015), 441–451, at 441. This means that, for Alexy, the justification of legal correctness does not include exclusively moral correctness, but necessarily. See Alexy, Begriff und Geltung des Rechts (n. 248), at 141–142. In the same sense as Alexy, see Matthias Klatt: “Der Anspruch auf Richtigkeit kann nur dann als rationale Begründung der idealen Dimension des Rechts dienen, wenn moralische Richtigkeit überhaupt existiert. Andernfalls wäre der Anspruch auf Richtigkeit Ausdruck eines Irrtums. Dies nimmt der moralphilosophische Irrationalismuseinwand an: Behauptungen in moralischen Fragen seien notwendig subjektiv, relativ oder pure Dezision”, Klatt, ʻIntegrative Rechtswissenschaft. Methodologische und wissenschaftstheoretische Implikationen der Doppelnatur des Rechts’ (n. 304), at 473, whereby the false alternative is created that one could either have moral correctness or irrational decisionism. From a natural law perspective, John Finnis et al. also define morality as the first principle of practical reason. See John Finnis, Germain Grisez and Joseph Boyle, ʻPractical Principles, Moral Truth, and Ultimate Ends’, The American Journal of Jurisprudence, 32 (1987), 99–151, at 125: “Thus, only morally right choices respond perfectly to the first principle of practical reasoning.” 334 This position is held, for example, by Kant in Immanuel Kant, Grundlegung zur Metaphysik der Sitten: in: Werke in sechs Bänden (Darmstadt: Wissenschaftliche Buchgesellschaft, 1963), at 27, BA 15,16: “Es liegt also der moralische Wert der Handlung nicht in der Wirkung, die daraus erwartet wird … Denn all diese Wirkungen … konnten auch durch andere Ursachen zu Stande gebracht werden, und es brauchte also dazu nicht des Willens eines vernünftigen Wesens”.

On the Unities of Law, Practical Reason, and Right

109

cates. The formal good (i. e. the good of practical reason) is the good according to the internal principles of motion of some agent (normally his conscious belief or will, but sometimes an unconscious natural tendency).335 It is trivialiter whichever state of things X at the point of time t2 that the agent at the point of time t1 strives for in contrast to alternative states of things Y, Z, etc. at t2. This means that the good is the highest principle of practical reason and, therefore, of deontology.336 Now, both teleology and deontology can only exist within time. They are precisely the temporal-logical-normative connection of an agent and his state of affairs at t1 with another state of affairs at t2, i. e. it is valid at t1 that someone ought to do something at t2 even if he does not do it. The difference between the standard conception of non-teleological deontology (in modernity often called ‘non-consequentialist’) and the teleology of the good (often called ‘consequentialist’ or ‘utilitarian’) is only how far in the future the deontological state of affairs t2 is; while the so-called non-consequentialists consider it good that one acts at t1 in a certain way due to some skepticism about results at t2-n, the so-called consequentialists consider the action at t1 good because it is a means to achieve a greater good at t2-n. Thus, while teleology is deontological because the good ought to be done, deontology is teleological because it is logically and timely oriented to what is considered to be good, if only in the short term. In this way, deontology as the absolutely right way to behave is ultimately oriented towards the good (or lesser evil). The right or just is the deontological good (i. e. the substantial good of deontology), which may or may not correspond (adequatio boni et intellectus) with the formal good pursued by the living being.337 In other words, the 335 Two of the origins of this understanding of the good can be found in the Aristotelian and the Thomistic philosophy. See Thomas Aquinas, Summa theologiae, prima pars (Lander (Wyoming): The Aquinas Institute for the Study of the Sacred Doctrine, 2012), question 16, article 1. For a brief explanation in analytic terms, see Oderberg, Moral theory (n. 77), at 34–45. 336 As stated by Aquinas and Hegel. The former stated that “for that which, before aught else, falls under apprehension, is being, the notion of which is included in all things whatsoever a man apprehends. Wherefore the first indemonstrable principle is that the same thing cannot be affirmed and denied at the same time, which is based on the notion of being and not-being: and on this principle all others are based, as it is stated in Metaph. iv, text 9. Now as being is the first thing that falls under the apprehension of the practical reason, which is directed to action: since every agent acts for an end under the aspect of good. Consequently the first principle of practical reason is one founded on the notion of good, viz., that good is that which all things seek after. Hence this is the first precept of law, that good is to be done and pursued, and evil is to be avoided”, Thomas Aquinas, Summa theologiae, prima secondae (n. 12), question 94, article 2. Similarly, Hegel stated that “das Gute ist überhaupt das Wesen des Willens in seiner Substantialität und Allgemeinheit, – der Wille in seiner Wahrheit … Wegen ihrer formellen Bestimmung ist die Einsicht ebensowohl fähig, wahr, als bloße Meinung und Irrtum zu sein. … Das Gute hat zu dem besonderen Subjekte das Verhältnis, das Wesentliche seines Willens zu sein, der hiermit darin schlechthin seine Verpflichtung hat. Indem die Besonderheit von dem Guten unterschieden ist und in den subjektiven Willen fällt, so hat das Gute zunächst nur die Bestimmung der allgemeinen abstrakten Wesentlichkeit, – der Pflicht; – um dieser ihrer Bestimmung willen soll die Pflicht um der Pflicht willen getan werden”, Hegel, Grundlinien der Philosophie des Rechts (n. 50), § 132, 133. See also Oderberg, Moral theory (n. 77), at 39. 337 Which means that practical reason can also correspond with reality, the reality being in this case what is good and due (in contrast to what is not, or should or could be good, but is not, or is merely considered to be good by someone). It is remarkable that even natural law theories sometimes state that there is nothing in reality that practical reason could correspond with, although the talk of ‘practical knowledge’ is maintained. See the example of John Finnis’ et. al. natural law theory, which states that “what is known

110

André Ferreira Leite de Paula

right is the good in normative mode. Since the good is teleological, the unity of practical reason and of the right must coincide with the unity of teleological reason. Under social conditions of differentiated normative orders, neither morality nor law (or any other normative order) can rest a-priori as the highest instance of normativity for the simple reason that all normative orders are in different ways and degrees of perfection ultimately oriented towards the good. There is good politics, good religion, good morality and good law that in every particular case should prevail over the alternatives that are lesser good, be it from whichever normative order.338 The good as a formal principle of action is more fundamental than other principles such as suum cuique tribuere, pacta sunt servanda, or the categorical imperative, and does not invalidate them generally, only exceptionally.339 To do good is, indeed, a moral principle. However, since the good by practical knowledge has its reality, not prior to that knowledge, but through it. In coming to know theoretically, one comes into accord with prior reality. But in coming to know practically, one becomes able to bring something into reality. It follows that practical knowledge cannot gave its truth by conformity to what is known”, Finnis et al., ʻPractical Principles, Moral Truth, and Ultimate Ends’ (n. 333), at 115–116. In contrast to this assertion, if the correspondence between belief and reality also in regard to practical reason is not maintained, it is not adequate to talk about ‘practical knowledge’, since knowledge is only of what is the case independently of the will of the knowing subject, even if this concerns his own future action: if someone at t1 intends to practice an action at t2, the action either will be in accordance with the good and deontology or not, independently of the agent’s will (although, of course, the practice of the action depends on his will). Whether the action will be good or not can be more often than not known in advance and this is the basis for practical reason and practical knowledge in a proper sense. 338 I interpret Brian Leiter’s position on this issue in the following way: (1) in order to know what ought to be done, the mere fact that an answer pertains to law or to morality is not enough, for what matters is whether it is a good solution that ought to be carried out, independently of its source. Consequently, (2) even if someone provides a definite criterion that distinguishes law from morality, the problem of what should be done would still not be solved if a hierarchy between them is not established. In this vein, Leiter suggests that “we abandon the Demarcation Problem in favour of arguing about what ought to be done, whether by judges confronted with novel cases, or citizens confronted with morally objectionable laws”, Brian Leiter, ʻThe Demarcation Problem in Jurisprudence: A New Case for Scepticism’, Oxford Journal of Legal Studies, 31, 4 (2011), 663–677, at 677, and that in comparison with epistemic fields of science, “we have to tackle the practical questions directly. In philosophy of science, that has meant concentrated attention on the epistemology of the various sciences, from physics to biology to psychology, and whether their distinctive claims are well supported by the available evidence. In philosophy of law that would mean focusing on particular legal systems and the practical demands they make upon officials. To take a very American example, the question is not whether the original public meaning of the Constitution is the criterion of legal validity in the US legal system … the question is whether applying the original public meaning in resolving concrete controversies could be morally justified”, ibid., at 675. However, criticism of Leiter’s position is necessary in at least one regard. As is common in Ango-Saxon societies in general, and by reflex, in Anglo-Saxon legal theory, Leiter seems to posit morality as the highest or only instance of normativity, by stating that law is a fact that must (or must not) be followed for moral reasons. This is especially remarkable considering that his standpoint is one of skepticism about the very possibility of distinguishing between law and morality by means of the indication of their essences. By claiming that the ‘Demarcation Problem’ is not solvable, he implicitly takes a position within the problem by presupposing that it is morality that should be followed in every case. 339 If teleology is deontological and if deontology is teleological, the categorical imperative too can be understood in a teleological manner. In modern terminology, this would mean that the categorical imperative is also ‘consequentialist’, “i. e. as meaning that one ought to act on such rules which one like to be acted on by others, the rationale being that provided that all persons involved in a given interaction act on a rule satisfying this requirement, the outcome will be best for all of them” (Wojciech Załuski, ʻThe Concept of Kantian Rationality and Game Theory’, in Zenon Bankowski, ed., Epistemology and Ontology:

On the Unities of Law, Practical Reason, and Right

111

is the ultimate meaning of all deontic predicates, the other orders also pursue the good. Thus, the reason that morality cannot be defined as being the pursuit of the good par excellence under social conditions of differentiated normative orders is not that moral rules would not be tendentially oriented towards the good, but that the other orders also strive for what is good, so that to be oriented towards the good is merely a genus proximum, not a differentia specifica that could distinguish morality qualitatively from other orders. This means that morality is not the highest instance of normativity and of practical reason. Justice is not per se a moral question; the pursuit of the good is not necessarily a moral action. The implicit acknowledgment that law, politics or religion provide the most adequate solution for a specific case combined with the idea that morality must be, actually, the highest instance of normativity leads to a hypostatization of morality. It presupposes that whatever is the right thing to do would be the moral thing to do, and this not because every moral system would always be right, but because the right behavior, whatever it may be, would be by definition the moral one. The hypostatization of morality is commonly based on the view that the basic element of analysis of society is not the group, but the individual, since agency would only exist at an individual level (methodological individualism). Methodological individualism can lead to an excessive moralization of law and politics, for example by means of counter-factual egalitarianism, by inflation of values and individual rights discourse within all fields of normativity.340 Morality provides directives for individual action; its rules are in part socially and historically elaborated in accordance with what normally occurs. Politics, differently, involves both individual and collective action; it involves collective dynamics on the basis of groups, which requires coordination of individuals’ actions towards some common end. Now, the diverse individual pursuit of diverse individual ends can be dysfunctional for political ends, and individual political action towards a collective purpose can violate the specific moral normativity. The very social condition of differentiated normative orders is (similarly to the late-modern division of the state into three powers and the bureaucracy brought about by it) highly dysfunctional for the accomplishment of greater IVR-Symposium Lund 2003, ARSP Supplement 102 (Stuttgart: Franz Steiner, 2005), 185–195, at 186). The compatibilist conception of good that is presupposed in the categorical imperative does not always lead, however, to really good results, since it is based on methodological individualism, as will be discussed below. 340 For a critical analysis of the dissemination of discussions about values in the public sphere and philosophy of the twentieth century, see in Carl Schmitt, Die Tyrannei der Werte (Hamburg: Lutherisches Verlagshaus, 1979): “Eine Verwandlung in Werte, eine allgemeine Ver-wertung ist heute in allen Bereichen unseres sozialen Daseins im Gange und dokumentiert sich bis in die amtliche Sprache der höchsten Sphären hinein. … Auch die Ambivalenz der Werte erscheint zunächst in einem neutralen Gewande, zum Beispiel als Plus und Minus in mathematischer, als positiver oder negativer Pol in physikalischer Objektivität. Doch ist nicht schwer zu erkennen, daß diese Art Neutralität keine andere ist als die des naturwissenschaftlichen Positivismus, dessen nihilistischer Wertfreiheit man doch gerade entgehen wollte, als man sich in die Freiheit des rein subjektiven Wertens stürzte und den dadurch entfesselten Kampf aller mit allen auf sich nahm, um die große Nihilismuskrise zu überwinden. Hat nun inzwischen der Übergang zu objektiven Wertlehren den Abgrund überbrückt, der die wertfreie Wissenschaftlichkeit von der menschlichen Entscheidungsfreiheit trennt?”, at 35.

112

André Ferreira Leite de Paula

purposes and for the mastering of various great challenges that a group, a race, a nation, or the whole of humanity may face and that require the coordinated action of most individuals of a group for the common good and their own good. The historical proof of this statement is provided by the many states of exception in a broad sense induced by natural catastrophes such as tsunamis, famines, tornados and earthquakes, or by major social upheavals and wars: in all of these circumstances (whose occurrence is mostly not a choice of individuals or groups, for not even wars can be avoided by one group if the other one pursues it), although many legal and moral norms can be justifiably violated, there is not a complete absence of practical reason towards the good. The multiplication of these exceptions provide us with a rule, namely that coordinated individual agency, in difficult circumstances is by far more efficacious for great purposes than spontaneous individual agency that may only accidentally combine efforts towards one common good. This is one more way to say that practical reason presupposes the unity of teleological reason, which can under certain circumstances be a specifically political reason. Apart from the fact that methodological individualism is biologically and historically wrong341 and is strongly contradicted by the existence and agency of legal entities 341 As is well known, methodological individualism presupposes not only the normative thesis that only individuals would be ethically relevant entities, but also the ontological claim that only individuals are real agents: “the liberty tradition is ontologically individualist in that it takes individuals, not classes, or races, or nations, to be in the final analysis the only sites of value, the only real agents, the only true bearers of rights and of responsibilities … Only individuals make choices; there is, literally, no such thing as ‘social choice’”, Eric Mack and Gerald F. Gaus, ʻClassical Liberalism and Libertarianism: The Liberty Tradition’, in Gerald F. Gaus and Chandran Kukathas, eds., Handbook of Political Theory (London etc.: Sage Publications, 2004), 115–130, at 116. Individualism in general departs from at least three different assumptions: (1) only individuals exist (ontological premise); (2) explanations in humanities can only be successful on the basis of individual properties and relations (methodological premise); and (3) only individuals are moral subjects (normative premise). See Georgios Karageorgoudis, ʻPräzisierungen, Probleme und Paradoxien des normativen Individualismus’, in von der Pfordten, Dietmar, Kähler, Lorenz, ed., Normativer Individualismus in Ethik, Politik und recht (Tübingen: Mohr Siebeck, 2014), 89–134, at 118–120. However, the ideas that (1) the individual’s principles of action have origin exclusively in the individual and that (2) the individual welfare would be the most fundamental telos of the actions of living beings (or at least of humans) do not correspond to the biological facts. The great importance of reproduction for all living beings, including humans, and their readiness for voluntary self-sacrifice for the continuity of more viable life than themselves (especially in favor of their own offspring) show that the telos towards which their actions are most fundamentally oriented is not individual happiness, but the continuity of life. Moreover, “en particulier, dans le cas de l’individualité, on peut dire que, si la tendance à s’individuer est partout présent dans le monde organisé, elle est partout combattue par la tendance à se reproduier. Pour que l’individualité fût parfaite, il faudrait qu’aucune partie détachée de l’organisme ne pût vivre séparément. Mais la reproduction deviendrait alors impossible. Qu’est-elle, en effet, sinon la reconstitution d’un organisme nouveau avec un fragment détaché de l’ancien? L’individualité loge donc son ennemi chez elle”, Henri Bergson, L’évolution créatrice, 24th ed. (Paris: Félix Alcan, 1921), at 14. The fact that most complex living beings hold in their genes much more genetic information than is necessary for their individual survival and for the organization of their vital functions is a reason for the argument that the most basic unity of behavior and evolution is above the individual level. See Crawford and Salmon, ʻEvolutionary Psychology: The Historical Context’ (n. 5), at 5–6 and Dawkins, The Selfish Gene (n. 5), at 54–58. According to Edward Wilson, “in a Darwinist sense the organism does not live for itself. Its primary function is not even to reproduce other organisms; it reproduces genes, and it serves as their temporary carrier. Each organism generated by sexual reproduction is a unique accidental subset of all the genes constituting the species”, Wilson, Sociobiology (n. 2), at 3. Naturally, this biological supra-individual unity of agency is reproduced in political behavior, as shown for example by the sociobiological fact that individuals of a certain race have

On the Unities of Law, Practical Reason, and Right

113

such as associations, companies, foundations and states, it is also not the only basis of the unity of practical reason. The dissemination of moralism within law and politics can have the effect of weakening the very groups that adopt individualism as their ideology in comparison to groups which do not, i. e. in relation to groups which consciously and resolutely act in a collective way and can, therefore, more successfully accomplish great projects of survival, influence and dominance or whichever other interest. Since coordinated actions towards one unified telos are usually more effective than ‘invisible hands’ based on individual agency,342 the long-term survival or dominance of a group whose normative ideology and practice are based on individualist morality depends on the eventualities (1) of other groups not having opposing interests, (2) of them being persuaded by the cultural power and thus converted to individualist morality, or (3) having an ideology that is at least as inefficient for great purposes as individualist morality is. The hypostatization of the validity of moral rules through methodological individualism without consideration of collective social dynamics can imply duties that lead to the self-destruction of a group and, therefore, of its individuals. Morality itself would imply unconditional duties that result in the self-destruction of a family, race, or nation, a culture and, by reflex, of all its composing individuals. This is one more reason why, in many situations, exceptions and restrictions of morality are what the teleology of the good and, therefore, deontology and justice ultimately require. On the basis of the telos of preservation of life and its perfection and to the extent that morality provides duties that result in the collective suicide of high forms of life, morality is a maladaptive trait.

more solidarity with individuals of the same race, thus acting collectively by instinct in the most diverse contexts of the social life, including within academia, for example by means of producing legal, moral and political theories that favor their own ethnic group, which is especially the case within minorities’ theory-building. This natural tendency called ethnic nepotism accounts for a considerable part of the political actions and conflicts in history and in the present. See Vanhanen, Ethnic Conflicts (n. 222). These are some more reasons why law, morality, politics and sociology are not ‘autonomous fields’ in relation to biology. 342 See Nobre Faria’s analysis of genetic fitness of competing groups on the basis of contemporary evolutionary and behavioral sciences: “while market morality does increase wealth, it tends to produce a decrease in population”, Filipe Nobre Faria, ʻIs market liberalism adaptive? Rethinking F. A. Hayek on moral evolution’, Journal of Bioeconomics, 19 (2017), 307–326, at 308. Nobre Faria shows that “morality is of high importance to make preferences less sensitive to materialistic incentives that reduce fitness” and that “forms of organization based on moral in-group favouritism are evolutionarily superior to market liberalism”, ibid., at 315, 309. One of the historical explanations is that “… the market allowed for an initial increase of fitness and those that were successful in this process began to replace former traditional group norms by market norms; yet this happened at the cost of dissolving or weakening group goals while instituting individualism, and this individuals began to produce reverse fitness effects”, ibid., at 315–316. “Because of the importance that group morality has in shaping and ordering preferences in fitness maximizing ways (e. g. promoting fertility and selecting pro-group individuals), a certain degree of tribal collectiveness or ethnocentrism is fundamental for achieving fitness maximizing groups. In other words, it will be asserted that forms of organization based on moral in-group favouritism are evolutionarily superior to market liberalism”, ibid., at 308–309. One of the reasons is the simple sociobiological regularity that “selfishness beats altruism within groups, but altruistic groups beat selfish groups”, David Sloan Wilson and Edward O. Wilson, ʻRethinking the theoretical foundation of sociobiology’, The Quarterly Review of Biology, 82, 4 (2007), 327–348, at 335.

114

André Ferreira Leite de Paula

From what has been said until now, it is evident that the notions of the right and of the unity of practical reason cannot be contrapositions to “comprehensive doctrines”343 about the good. A contraposition between right and good would already be fundamentally mistaken for the reason that all conceptions of normative orders, including political liberalism, are themselves ‘comprehensive doctrines’ that rest ultimately in philosophical doctrines that relate to the good. They always exclude the possibility of some conceptions of the good being realized and favor others. Liberal legal and political theories and regimes exclude, among many other things, most remarkably communist, fascist, conservative, traditionalist, theological and anarchic projects of society from the access to the concept and force of law as a means for the realization of values. This raises the question of whether a legal order can be liberal at all, i. e. whether the very notion of a positive law equipped with rules, especially with prohibitions and criminal law, and enforced against the will of (communist, fascist, conservative, traditionalist, theologically oriented and anarchic) legal subjects, would not lose the predicate ‘liberal’ in relation to all participants with beliefs that diverge from the official ideology of the regime. If this is so, political liberalism would be conceptually and exclusively an ideology of opposition to any given political order,344 and it would be exclusively an ideology that defends more freedom against the directives of the centralized power, for it would necessarily lose the liberal essence as soon as it achieves the power structures of the government, i. e. as soon as it becomes dominant and positive (positive both in the sense of becoming settled and applied law and in the sense of being realized with the use of power against the resistance of others), for example when it starts to combat the opposition by means of censorship, deplatforming, or withdrawal of private and public funds for foundations and other organizations with alternative opinions and projects. In short, the realization of any great political project excludes the realization of other political projects and is, therefore, illiberal in relation to the internal opposition and to external threateners. Because of the unity of the social space in which, on the one hand, actions of individuals have effects in the spheres of others and, on the other hand, interests are intrinsically incompatible with each other, law, morality, politics and the unity of practical reason cannot be reduced to mere rules of compatibilization of the interests of individuals and groups, but consist necessarily in the definition of the one or few singular conceptions to be realized even against the will, interests, and resistance of many, which characterizes the conceptual and social necessity of a substantial unity of politics.

343 As John Rawls’ idea of “the priority of right” in contrast to “ideas of the good”. See Rawls, Political Liberalism (n. 178), at 173–176. Analysis and criticism of the attempt of moral and political neutrality within liberalism in Schmitt, Der Begriff des Politischen (n. 43); Mouffe, The Return of the Political (n. 203). See also Ernst Forsthoff ’s criticism: “denn es ist im Grunde eine grobe Täuschung, wenn ein Staat, der zur Vollziehung der Unterscheidung von Recht und Unrecht außerstande ist, für sich mit besonderer Betonung in Anspruch nimmt, ein Staat des Rechtes zu sein”, Forsthoff, Der totale Staat (n. 181), at 14. 344 A point made by Schmitt, Der Begriff des Politischen (n. 43), 48–49. Indeed, political liberalism evolved historically as an ideology of opposition to monarchic rule in Europe, especially in England in the seventeenth century and in France in the eighteenth century. See John Gray, Liberalism (Stony Stratford: Open University Press, 1986), at 7.

On the Unities of Law, Practical Reason, and Right

115

Concluding remarks Although one normative order necessarily prevails over the other in the case of an antinomy, there is no normative order that always prevails over the others in regard to all antinomies. The consequence is that the mere fact that a norm belongs to a certain normative order cannot be an argument for its good, justice or injustice, or a sufficient reason for its binding force in regard to individuals. Conversely, it cannot be said of a norm that it does not belong to positive law or to morality only because the norm happens to be unjust in regard to a particular situation. The binding force of a norm is provided, rather, by its accordance with the good, which is, at the same time, teleological and not necessarily moral. In short, there can be no unconditional a-priori criterion for the prevalence of a normative order over others precisely because the pertinence of a norm to an order is not a definite criterion of its good or justice. Normative orders are comparable to epistemic fields. As well as epistemic fields, they are ‘linguistic frameworks’, ‘fields of arguments’, ‘fields of sense’, etc. While ontology contains everything that is the case regardless whether it is recognized by some individual or epistemic field, teleology and deontology contain what is respectively good and due in all particular cases, beyond eventual contradictions of normative orders and beyond recognitions of participants. In the same way that ontic fields are kinds of facts in reality that may or not be recognized within epistemic fields, deontic fields are kinds of deontic predicates in deontology that may or not be recognized within a normative order. In the same way that a scientific fact can have already been the case before some science discovered it, a legal (or moral, political, or religious) ought can already have been due before some participant (or all participants) of the legal practice recognizes it. Deontology is bigger than normative orders in exactly the same way that reality is bigger than epistemic fields. The unity of deontology beyond normative orders is comparable to the unity of reality beyond epistemic fields. The condition of differentiated normative orders is not a historical, social, or deontological necessity; it is not true of all societies in the past nor in the present and it is not necessary for justice or for the common good. Rather, it can be even dysfunctional for the common good as it generates antinomies and, thereby, disorientation. However, once the differentiation of orders is a reality in a given society, the relationships between them that are described in this article are conceptually and deontologically necessary.

Is There a Unity of Practical Reason that Embraces Law and Morals? Bruce Anderson / Michael Shute

Introduction Most legal theorists take it for granted that law is one thing and the practice of morality is something else. It follows that they devote their attention to identifying and analyzing the border between law and morality and establishing distinctive special features of law. Their proper subject matter is law, not morality. Morality is beyond their horizon. For instance, HLA Hart distinguished between legal rules and social rules and studied legal rules. And Kelsen’s ‘pure’ theory of law sought to delineate what counted as law. These positions still shape the way we understand the relationship between law and morality. Law and morality are distinct fields and the important questions are whether or not law should enforce morality and whether or not there is a necessary connection between law and morality. Recently Torben Spaak captured the situation in his summary of the main theses of legal positivism: (1) we can determine what is law using factual criteria; we do not need moral criteria; (2) there is no necessary conceptual connection between law and morality; (3) the validity or existence of law presupposes that it is effective; (4) terms such as right, duty, and ought have a special legal meaning which differs from the meaning they have in a moral context.1 Lurking in the background is the presumption that law is a permanent achievement comprised of a set of enduring and universal properties and that morality is a wide open field of personal and subjective values and decisions. Legal theorists also take it for granted that practical reasoning plays an important role in law. For them the term marks a distinction between theoretical reason and practical reason and stresses something special about law, namely that it is practical, concerned with action and doing things. But the practical reasoning they write about is dominated by logic – deduction, coherence, consistency – and the function of legal reasoning is limited to justifying judicial decisions to constrain and control what they presume to be the non-logical, subjective, and arbitrary aspects of the decision-making 1

T. Spaak, ‘The Canberra Plan and the Nature of Law,’in Metaphilosophy of Law, ed. P. Banas, A. Dyrda, T. Gibert-Studnicki, (Oxford: Hart Publishing, 2016), 84.

118

Bruce Anderson / Michael Shute

process. Exactly what practical reasoning entails has not been satisfactorily tackled, or rather, if it entails anything it is the consistent use of the principles of logic. The upshot is that law and morality are considered separate fields, practical reason is involved but we cannot confidently say how. By contrast, the philosopher Garret Barden does not mark off morality as a distinct field. He argued that all practical decisions, including legal decisions, are moral decisions because they involve deliberation and choice. To be more specific, all practical decisions are moral decisions because they depend on evaluating the suitability of possible courses of action and making a value judgment that one option is suitable, or better or more worthwhile than others. The unity of practical reason in Barden’s account lies in the exercise of deliberation and choice. He pressed the point by claiming that a person’s decision to cross the road and a person’s decision to get married were both moral decisions because they were the outcome of deliberation and choice. And the decisions of judges are moral decisions because they involve deliberation and choice. Regardless of whether the type of decision is one we call legal or moral, for Barden, deliberation and choice are the key operations in practical reasoning.2 To sum up, Barden argued that judicial decisions are moral decisions because they involve deliberation and choice. He did not draw a border between legal decisions and decisions about other matters. Further, it is worth stressing that Barden was interested in the actual decision-making process, the method used to reach decisions. Questions, practical insights, deliberation, and choice are key operations in his account of practical reasoning. The aim of this paper is to develop Barden’s position by drawing on the work of the philosopher and theologian, Bernard Lonergan (1904–1984) on practical reasoning3 to answer the question ‘Is there a unity of practical reason that embraces law and morals?’ Part One: Everyday Practical Reasoning Practical reasoning is a very important part of our lives. Practical reasoning enables us to survive and do the world’s work. We perform it spontaneously when making choices and deciding, often without pausing to deliberately consider the pros and cons. Getting out of bed in the morning, getting dressed, making breakfast, taking the elevator, crossing the road, and catching the bus all involve practical reasoning. What do we wear? Do we decide on granola or toast, or both? Do we take the stairs or the elevator? Wait for the light to change or cross against the red if there is a break in the traffic? Take the bus or walk? Recently, I hired two carpenters to build a deck with four sets of stairs. While watching them work I was struck by the fact that once these carpenters had sized up the situation – measured the various elevations and marked out the size of the deck – they 2 3

G. Barden, After Principles (London: University of Notre Dame Press, 1990). B. Lonergan, Insight: A Study of Human Understanding (Toronto: University of Toronto Press, 1992).

Is There a Unity of Practical Reason that Embraces Law and Morals?

119

quickly grasped exactly what had to be done, what the elevation of the deck had to be, where the beams needed to be placed, how they would be attached, the length of the stair treads and the height of the risers, how many stairs, and so on. After grasping the situation, the operation of their practical reasoning was more or less spontaneous. Of course, the speed with which they work is a function of their training and experience. The training and experience of a lawyer is different from a carpenter. And it would take me days to figure out what they do spontaneously. It is evident that what drives practical reasoning are two overarching questions: (1) What exactly is the situation? and (2) What needs to be done in this situation as I understand it? Determining both requires skills appropriate to the task, but whatever the task these two questions still apply. In unfamiliar instances our actions are preceded by a more prolonged deliberation. We more consciously pose such questions as What should I do? and have to come up with possibilities. We make plans. And sometimes we ask for advice. We might immediately grasp possible courses of action, but we might be awake all night evaluating our options. Finally, we reach a judgment of value that one option is better than the others. And then we choose that course of action. All these actions occur in any decision, but the process of reaching the decision is habitual and so, unless we make a point of it, we are not conscious of the process itself. Who thinks long and hard about braking for a stop sign? It follows, then, that skill in practical reasoning depends on the experience of the person considering what to do in a particular place at a particular time. When I recently visited China I wanted to go from Zhuhai to Guangzhou. I asked: How do I get there? By bus or train? The previous time I travelled by bus so I decided to go by train this time. How do I buy a train ticket? I cannot speak or read Mandarin. Go to the station by myself and hope I can communicate? Ask a Chinese speaker to come with me and buy the train ticket for me? Yes, I judged that the better option because, based on previous experience, I did not think I would be able to communicate with the ticket seller. And that is what I decided to do. And, a few months later, when I visited Lisbon I had to start all over again trying to figure out how to buy a subway pass from a ticket machine. My problem solving was driven by questions about what I should do or needed to do or wanted to do and how to do it. In fact, deliberating about what was better, or best to do, and how to do it, filled much of my life in China and Lisbon. My point is that practical reasoning can be spontaneous or it can be considered and prolonged. Further, practical reasoning consists in cognitional activities: asking questions about what should be done and how to do it: What should I do in this situation? Practical insights that grasp choices are formulated as options or plans. Questions about whether one option or plan is worth doing or is more intelligent or more suitable than others are posed. Reflective insights that grasp the pros and cons of options and plans, and a judgment of value that one option is more suitable or more worthwhile than the others are reached. Finally, a decision is made to execute the chosen plan or not. In other words, practical questions, practical insights, and judgments of value are the core of practical reasoning. Practical reasoning is moral because the aim is to do the lesser of two evils, what is the best, the most suitable, the most worthwhile thing in a situation –

120

Bruce Anderson / Michael Shute

the most suitable rise and run of the stairs, the best way to travel to Guangzhou, the simplest way to buy a subway ticket. We do not want to do the dumbest, most unreasonable, and most irresponsible thing. Part Two: The Characteristics of Practical Reasoning in Different Walks of Life For most of us our working lives are dominated by practical reasoning. We have to do something, accomplish this, and do that. Physicians prescribing drugs to a patient, architects designing buildings, excavators digging wells, chefs making meals, carpenters building stairways, computer scientists coding, artists making sculptures, football players passing the ball, lawyers advising clients, and professors teaching students all involve practical reasoning. From the examples so far, you might presume that the specifics of practical reasoning demanded in each walk of life would be different. And it is. Lawyers are very proud of their special skills at trouble-shooting and solving legal problems. Carpenters are also specialist practical problem solvers; their problems are concerned with how to build something. A football player selected to take a penalty kick specializes in how to score goals. A physician is a specialist in diagnosing and treating illness. But even though the situations and problems faced by lawyers and carpenters and football players and physicians are quite different the practical reasoning used to solve such diverse problems share common characteristics. What about practical reasoning in law? Is it similar to the practical reasoning that enables us to get dressed, travel, and make stairways? Our short answer is yes; the type of reasoning lawyers and judges use in the legal context is practical reasoning. And like the practical reasoning in other walks of life it is a specialization of everyday practical reasoning. We will focus on the similarities between the practical reasoning of carpenters and lawyers to illustrate the characteristics of practical reasoning regardless of the field or walk of life. It is worth noting that we have chosen not to compare the practical reasoning of lawyers with the practical reasoning involved in what are commonly considered moral issues such as abortion, sexuality, and assisted suicide. The reason is that we want to draw attention to the operation of practical reasoning in different fields rather than letting readers get side-tracked or bogged down by mistaken beliefs related to the idea that law is one thing and that morality is something entirely different. Hence, we investigate the nature of practical reasoning in carpentry and law. Particular concrete situations. Carpenters are concerned with concrete situations and spaces. For instance, if they want to build a set of stairs they need to know precisely where they will be located. They will need to measure the actual space, and consider the relevant buildings codes. Their interest is neither in imaginary stairs nor in imaginary buildings. Lawyers are concerned with real people in actual situations. Their focus is also on concrete events, situations, circumstances, and problems. If the dispute is a contractual

Is There a Unity of Practical Reason that Embraces Law and Morals?

121

issue involving improperly constructed stairs, then among other things, specific building codes are relevant to their deliberation. This is their data. They are not interested in imaginary situations and problems or theoretical issues. Immediate and practical solutions. Carpenters discover immediate and practical solutions to problems. Something needs to be built. Building a set of stairs is a practical matter and involves practical reasoning – measuring the space, choosing the rise and run of the stairs, choosing the type of materials, planning and executing the construction sequence. The stairs constructed will be an immediate and practical solution to a problem, how to go from one elevation to another. Theoretical inquiries into the structure of wood are not part of the process. Neither is musing about what the future holds for wood products. Lawyers also aim to solve practical problems, either to advise their clients about how to solve legal problems or to solve their clients’ problems themselves. Lawyers consider themselves experts at solving complex practical problems and are proud of their knowledge of the relevant law and their trouble-shooting skills. Our point is that both carpentry and law call for immediate and practical solutions and, indeed, sometimes the two realms overlap. In building stairs carpenters need to be knowledgeable of building codes and in contractual suits lawyers need to know about the acceptable standards in carpentry practice. In these cases, practical reasoning is focused on achieving practical results, not theoretical understanding. Something needs to be done and good outcomes are expected. Reflections on the physics and chemistry of wood will not help a carpenter decide how many risers a set of stairs should have or how high they need to be. Similarly, lawyers cast aside and dismiss theories of justice, reflections on the relation between law and morals, and other topics that fascinate legal theorists. They want to get the job done. Did the carpenter successfully meet the requirements of the contract? What is the situation? What needs to be done? Carpenters building a set of stairs should know the elevation, the dimensions of the space that is available for the stairs, the requirements of the Building Code, the types of materials available to them, how much time they have to build the stairs, whether the stairs will be temporary or permanent, and any other relevant factors. These factors, comprising the situation, must be correctly understood before the desired rise and run of the stairs is decided. Here the practical reasoning is driven by two questions: (1) What precisely is the situation? and (2) What should I do in this particular situation as I understand it? Similarly, when lawyers first meet with their clients they spend their time interviewing their clients to assess what, exactly, the problem is. Only after precisely and accurately formulating the problem can they begin to figure out what they should do about it. Lawyers’ practical reasoning is also driven by two questions: What exactly is the situation or problem? and What is the best thing to do in this situation as I understand it? This means that lawyers must master each situation as it arises, size up each situation and the people involved, and by deliberating and making value judgments choose what to do, and then decide to do it. In both contexts, the goal is to correctly understand the particular concrete situation for the sake of doing something.

122

Bruce Anderson / Michael Shute

The Pattern of Practical Reasoning: Questions, Insights, Judgment of Value, Decision. Both carpenters’ and lawyers’ practical reasoning are comprised of patterned cognitional operations: what-questions, direct insights, and judgments of fact grasping that a narrative or interpretation of a situation is correct. This process comprises factual reasoning; the goal for the carpenter or lawyer is to judge what, in fact, is the situation. The core of practical reasoning involves: What-to-do-questions, practical insights formulated as plans, What-should-be-done-questions, practical reflective insights grasping the pros and cons of plans, and judgments of value positing which option is the best in the circumstances, choosing the best plan, and deciding to execute it. These operations form a pattern. Questions lead to practical insights. Practical insights lead to deliberation and judgments of value. And judgments of value lead to decisions.4 Trial and Error. Carpenters learn from their own and others’ experiences of similar situations. They solve their problems by deciding to build something, doing it, judging whether it was a mistake or a success, and the next time trying something else to see if it works better or is an improvement. They learn by doing. While carpentry books might be helpful, expertise is not achieved by simply reading carpentry books. Rather, it is actions that reveal any short-comings in our understanding and judgments. Questions are provoked about their adequacy and limitations. And related insights and judgments lead to new possibilities, plans, and actions, and so on. Speaking generally, the lawyer’s problem solving method is the same. It is also a spontaneous self-correcting process of learning. When familiar situations are tackled, familiar case law is used. But the self-correcting method of practical reasoning can be deliberate and difficult when lawyers are faced with unfamiliar situations and previously successful procedures and criteria need to be consulted in texts, modified, and then tried. Novel courses of action may be called for. Fortunately, practical reasoning can be facilitated by colleagues and judges who point out oversights and mistakes and offer corrections. In some situations, subtle or blunt feedback from colleagues is offered. In this way insights are improved and judgments sharpened. The point is that each concrete situation is novel (no two concrete situations are identical) and new insights into each novel situation and new judgments about that situation must be added to what the lawyer already knows to decide what to do in each situation. This learning process is primarily trial and error, not logical deduction. What is different between the lawyer and the carpenter is the context and the skills required to meet its demands. Lawyers are not hired to build stairs and carpenters do not argue legal cases in a court of law. The Criteria of Success: Intelligent and Reasonable Practical Solutions. The measure of the success of carpenters’ practical decisions depends on the extent that the course of action executed in a concrete situation is intelligent and reasonable. For instance, Are the stairs safe and comfortable to walk up and down? Do they fit the space well? Do they wobble? Does the width of the threads satisfy the Building Code? Do the stairs look good? Are the materials suitable? 4

For a more comprehensive explanation of the operation of these cognitional activities in law see B. Anderson, Discovery in Legal Decision-Making (Dordrecht: Kluwer Academic Publishers, 1996), 107–142.

Is There a Unity of Practical Reason that Embraces Law and Morals?

123

Similarly, a lawyer’s practical solutions are judged a success if the advice or the actions performed by the lawyer work, the client wins the case, the jail term is minimized, the outcome is fair, and so on. No Inventory of What We Know. Carpenters do not have a systematic inventory of carpentry know-how. They are unable to write down and organize everything that they know or how they know it. They have rules of thumb and guidelines about how to do various types of jobs – hanging doors, fitting windows, installing drywall, making cabinets and drawers – but their practical knowledge is not, and cannot be, systematically organized. While books on carpentry may organize in one fashion or another knowledge about carpentry, in fact, practical solutions expressed as general guidelines do not adequately cover particular situations. Installing a door requires many factual and practical insights and judgments that all depend on the particular situation. In practical reasoning, we draw on relevant aspects of our practical knowledge when we face the latest practical problem. Our practical knowledge is of particular situations and what to do in them. Particular situations and problems call for practical actions, not generalizations. Lawyers’ practical knowledge is similar. Lawyers do not possess a systematic inventory of what they know and how they know it. Even though judicial decisions and legislation are collected and published in texts and on-line, and that law is organized, interpreted, and commented on in textbooks, these collections of legal materials are more or less haphazard collections held together by jurisdiction, subject matter, chronology, and/or novelty. They are nothing like the chemist’s periodic table that sets out precise relations among elements that hold for the entire field of chemistry. Even the practical knowledge of a single lawyer cannot be adequately explained and organized in a systematic fashion. Each lawyer knows the broad lines of how they solved previous legal problems, but they cannot explain exactly how they did it or identify all the relevant elements in order to teach someone else how to do it. We know that expertise depends on experience but we cannot pin down precisely what that expertise consists in or how exactly it is achieved. Each particular case calls for fresh insights and judgments. Ordinary Language Usage. The language of everyday life is ordinary language. The objective is not a full explanation of everything we do or should do. Rather, the aim of practical reasoning in everyday life is to get things done. We understand for the sake of doing something. Hence in everyday living there is no need for the type of precise definitions demanded by scientists where the terms define the relations and the relations define the terms. In everyday practical reasoning, we want to do something intelligent and reasonable in particular situations and we use language in whatever way will achieve that goal. Sometimes a wink is as good as a nod. Carpenters use ordinary words but they use them in special ways and have special names for things. They use ‘planes’ and ‘bevels’ and generally ‘mark off ’ what they are going to build. Carpenters calculate the rise and run of stairs before cutting stringers. They use their language to point out and describe things and techniques. When carpenters talk to one another they each know what the other one is talking about without needing to have any of the terms precisely defined.

124

Bruce Anderson / Michael Shute

Lawyers also use specialized language. They use ordinary language and they have their own special terms. Most of the time they successfully communicate using these terms. But at times the meaning of the language used by lawyers is blurry and imprecise. The meaning of the words in legislation must be interpreted and conflicts over meanings often must be settled by judges. Subsequent reinterpretations by a court higher in the hierarchy is a possibility. Hart writes about the core meaning and penumbra.5 Even common terms such as ‘offer and acceptance’ in contract law do not have precise definitions that hold in every situation. Whether an offer was made or acceptance occurred calls for a judgment that is part of a practical problem solving process, not a quest for abstract and universal definitions or a complete explanation. Even though lawyers readily distinguish between offers and advertisements, and between offer and acceptance, nonetheless these issues have been the subject of numerous court cases. In law ordinary words and special terms are used to captures sets of relations (a corporation), name procedures (arbitration, mediation), and express judgments (guilty, negligent). So far, we have been highlighting that practical reasoning in law shares many of the same features as practical reasoning in carpentry. Our intention has been to move beyond referring to practical reasoning as some vague activity to treating it as a type of problem solving with the following features: (1) a concern with concrete situations, (2) a single-minded focus on achieving immediate and practical solutions to problems, (3) being driven by two questions: What exactly is the situation? and What needs to be done in that particular concrete situation? (4) comprised of the following key operations: What-to-do-questions, practical insights, options and plans, What-should-I-doquestions, practical reflective insights, judgments of value, and decision, (5) measuring success in terms of whether the solution is intelligent and reasonable and works in the particular circumstances, (6) consisting of knowledge that cannot be inventoried and systematically organized, and (7) using ordinary language that cannot be precisely defined. It is worth stressing that we have identified the elements that practical reasoning in carpentry and practical reasoning in law have in common and we can see where one can even be relevant to the other. Notice that we made no effort to draw a sharp rigid distinction between practical reasoning in law and practical reasoning in morality, where morality is presumed to be a separate and independent subjective zone of life that includes politics and religion, and issues related to abortion, assisted suicide, and sexuality for instance. We did this because when you examine a practical problem solving method in law and in any of these other contexts along the lines we just carried out, the presumed differences between them fade and are superficial. The same broad lines of practical reasoning are used in different specialized fields – carpentry and law, plumbing and medicine, truck driving and scuba diving. We use the same general procedures of asking questions, achieving practical insights, and making value judgments to solve practical problems regardless of whether we are concerned everyday life, carpentry, law, 5

HLA Hart captured this insight in terms of the settled core meaning of words and penumbra where the meaning of words was not settled and open to debate.

Is There a Unity of Practical Reason that Embraces Law and Morals?

125

politics, medicine, teaching, repairing cars, sales, abortion, assisted suicide, or sexuality. This is the unity of practical reasoning. To be more precise, our point is that the unity of law and morals lies in the seven shared features of practical reasoning described above. Part Three: Legal Reasoning as a Specialization of Practical Reasoning In this section, we want to illustrate the extent that practical reasoning in law is a specialization of everyday practical reasoning. So, what is special about practical reasoning in law? Law schools claim they teach students to ‘think like lawyers.’ Lawyers take it for granted that they have special reasoning skills. And many legal theorists devote their attention to hunting down what makes law and legal reasoning unique. But how, precisely, does the practical reasoning of lawyers differ from that of people in other disciplines and walks of life? One. Lawyers deal with special types of concrete practical problems. They are experts in dealing with problems related to contract formation and breach,6 real property, intellectual property, personal injuries, the creation and operation of corporations, trade, constitutions, the sale of goods, taxation, and all the other areas of law taught in law schools and practiced by lawyers. Two. Lawyers have developed special types of practical solutions to problems. Recurring problems are dealt with by passing legislation like the Sale of Goods Act and securities laws. Previous cases are checked and used to guide decision-making. Conflicts between people are resolved by a judge or alternative dispute resolution techniques. The tort of negligence is a solution to how to assess fault and damages when someone is accidently injured. Establishing the limited liability of corporate shareholders and the separate legal personality of corporations enabled the pooling of large amounts of capital to finance large projects. The point is that special types of problems call for special types of practical solutions. Three. Frederick Schauer notes that “finding the facts or applying the law to them, differ in important respects from the decision-making procedures”7 found in politics, science, police, and military. He points out that scientists do not hold trials, at least not legal trials, to resolve disagreements once and for all. What stands out for us is the expertise lawyers have in identifying issues, differentiating among issues, and judging which issues are relevant and irrelevant, and which ones are very important and which are less important. Four. Schauer also suggests law has a differentiated reasoning process.

6 7

Lawyers do not enter another realm of meaning, but experience has proved that there are intelligent ways to assess whether a contract was formed and to deal with breach of contract. F. Schauer, The Force of Law (Harvard University Press, Cambridge, 2015), 156.

126

Bruce Anderson / Michael Shute Decisions according to rules, constraints by precedents, and the pervasive presence of authority exist and are important in some number of nonlegal decision making domains as well as in law… But law may nevertheless use rules, precedent, authority, and other characteristic devices of legal argumentation more, or with more weight, than they are used elsewhere.8

Principles, rights, reasoning by analogy, and Neil MacCormick’s explanation of first-order and second-order legal justification could be added to the list of special features. Five. The trial and error method of legal problem solving has developed a vast array of special procedures and criteria to aid decision-making. Rules regarding hearsay, the subjective and objective tests in criminal law, the rational connection test in constitutional law, due diligence in corporate law, and the reasonable person in tort law are examples. Six. The demand of the legal profession is that solutions are intelligent and reasonable and hence work. Incompetent lawyers are disbarred and unreasonable judicial decisions are appealed. Success is about winning and losing trials, but it is also measured in other ways such as avoiding costly trials, reaching amicable or fair settlements, finding a creative solution that is followed in subsequent cases, and making problems go away. Good lawyers do not always go to trial. Seven. Schauer points out that law is differentiated in a source-based way in that sources of information and guidance that are permissible in other enterprises are impermissible in law.9

Law has developed its own specialized texts – constitutions, legislation, regulations, case reports, textbooks, journals, and student case books – that are written records of how past problems have been solved which must be used to help solve current problems. Eight. Lawyers talking among themselves is for the most part incomprehensible to non-lawyers. Lawyers use their own special terms such as plaintiff and defendant, surperior courts and appellate courts, fiduciary duties, pleadings, statements of claim, trustees and beneficiaries, executors and administrators, offerors and offerees, and so on. Negligence means much more than being careless. A ‘fee simple estate’ is very different from a ‘life estate.’ Shares in a company are not ‘goods.’ Intellectual property is not ‘real property.’ As Hart notes the legal profession uses ordinary language but a core meaning can be distinguished from a less certain penumbra meaning. Lawyers, then are concerned with particular problems and situations. They draw on specialized knowledge and skills. They have discovered specialized ways to solve recurring problems. Their solutions are specialized in that they fit the situations they encounter. And they use a specialized language to communicate.

8 9

Ibid., at 157. Ibid., at 158.

Is There a Unity of Practical Reason that Embraces Law and Morals?

127

Part Four: Practical Reasoning and Values The work of carpenters in not simply the mechanical application of their specialized practical knowledge and skills to concrete situations and problems. The good carpenters I know also want to work smartly. The want to do the best job they can do. This means they want to be careful, to pay attention to details, and to always be doing the most intelligent and reasonable thing. They do not want to be careless or do stupid things. They want to work quickly and not waste time. They want the job to go smoothly and not get slowed down by unnecessary snags. They do not want to do unnecessary work. They plan and order their tasks. Good carpenters know that two carpenters working together can get three times as much work done as one carpenter and they cooperate to make that happen. The best carpenters do not want to waste wood. They calculate how to make the most out of a sheet of plywood. And they try to keep the cost of materials as low as they can. These are some of the things that carpenters value. In fact, their values motivate and guide their work. They want to do good work, and here good means several things. It means being careful, being smart, doing the right thing, in the right way, at the right time, and ultimately being proud of their work. This is part of the moral dimension of practical reasoning in carpentry, their values. What about lawyers? What is important to them? What do they value? In a letter to new lawyers in Nova Scotia, Canada marking ‘Being called to the Bar the Chief Justice’ points out what lawyer’s value: helping others in legal crises, earning the respect of your clients, peers, and the public, providing exceptional service and leadership, being a role model, enhancing access to legal services and the justice system, and promoting equity, diversity, and inclusiveness in the legal profession. On the same occasion the Chief Justice of Nova Scotia declares what he believes are the values of the legal profession: first and foremost ours is a helping profession. You have now earned the title of problem solver… You are now trained to take a problem, assess it, and resolve it. This is a very important skill set.10

He exhorts new lawyers to courageously defend the rule of law and democracy [and] to speak up and take appropriate action when you see corruption, injustice, or inequality. [D]o what you can to enhance access to our justice system. [G]ive back to the communities that helped us get to where we are today. At the end of the day this is what being a lawyer is all about.11

10 ‘From the Honourable Chief Justice Michael MacDonald, Chief Justice of Nova Scotia,’ http://nsbs.org/ sites/default/files/ftp/images/CallToTheBarProgram2017.pdf, accessed February 5, 2018. 11 Ibid.

128

Bruce Anderson / Michael Shute

The ‘Oath/Affirmation of Admission’ signed by new lawyers in Nova Scotia also captures the values of lawyers. I ______ swear/affirm that as a lawyer, I shall, to the best of my knowledge and ability, conduct all matters and proceedings faithfully, honestly, and with integrity. I shall support the Rule of Law and uphold and seek to improve the administration of justice. I shall abide by the ethical standards and rules governing the practice of law in Nova Scotia.12

Concluding Remark Finally, we turn to the question ‘Is there a unity of practical reasoning that embraces law and morals?’ We began with Garret Barden’s position that the unity of practical reason, regardless of the subject matter, lies in deliberation and choice. Next, we identified the characteristics of practical reasoning – its concerns, its aim, its key questions, its cognitive operations, its trial and error method, its measure of success, its lack of a complete inventory of knowledge, and its use of ordinary language. This is the unity of practical reason. But does practical reason embrace law and morals? We examined the extent that practical reasoning in carpentry and practical reasoning in law are specialized in terms of the types of situations and problems they encounter, the types of solutions they offer, and the ways they solve problems. We went on to illustrate that practical reasoning in carpentry and law are imbued with values, what carpenters and lawyers judge to be important. We pointed out that these values are an integral part of practical reasoning, motivating and guiding the process to a successful conclusion. We stressed that practical reasoning is not the mechanical application of knowledge and skills or rules and procedures to situations. Values play important roles in practical problem solving. In this sense, we can say that practical reasoning embraces law and morals. Further, we can go on and point out that this unity lies in the person engaged in practical reasoning seeking intelligent courses of action and evaluating them in light of their values. And, although the operations of practical reasoning can be highly specialized, there is no evidence that legal reasoning is distinct and independent of values or that law is distinct and independent of morality. In short, it is too simple to say that legal reasoning is one thing and morality is something else.

12 ‘Oath/Affirmation of Admission,’ Nova Scotia Barristers’ Society, http://nsbs.org/sites/default/files/ ftp/images/CallToTheBarProgram2017.pdf, accessed February 5, 2018.

Is Argumentation Theory Applicable for Legal Pluralism? Gabriel Alejandro Encinas Duarte*

Introduction Normative pluralism may be understood in opposition to universalistic accounts of rationality. The purpose of this paper is to identify one way in which both conceptions require each other. A case will be made that in contemporary law, there is a necessary tension between the universalism of constructivist theories of normativity on the one hand, and normative accounts of pluralism on the other hand. As a result of this irreducible element, pluralism may be understood as enhancing the role of morality in law. Robert Alexy’s theory of legal argumentation will be taken as a departure point to assess the rationality of the ‘re-entry’1 and effectiveness of extrinsic (‘non-legal’) discourses in the legal order. This is an ongoing and reciprocal process of permeability2 in legal spaces which is perhaps most evident in the relations between national law and law beyond the state. In this paper, I will answer the title question in the affirmative, submitting that there is a degree of implication between certain versions of both. It is structured as follows: (Part One): The effectiveness of practical moral principles in law (its ‘claim to correctness’,3 which is required by the nature of law to avoid performative contradictions) is positively ratified by a sort of structural coupling posed as a consequence of the Second World War: national and international safeguards on the base of human dignity and

* 1 2

3

LLM in Legal Theory, Goethe University Frankfurt am Main, PhD candidate at Sant’Anna School of Advanced Studies, Pisa. [email protected] Gunther Teubner, ʻSelf-subversive Justice. Contingency or Transcendence Formula of Law?’, Modern Law Review, 72, 1 (2009), 1–23, at 11; Gunther Teubner, Constitutional Fragments: Societal Constitutionalism and Globalization (Oxford: Oxford UP, 2012) at 166–7. Mattias Wendel, Permeabilität im europäischen Verfassungsrecht: verfassungsrechtliche Integrationsnormen auf Staats- und Unionsebene im Vergleich (Tübingen: Mohr Siebeck, 2011); Mariela Morales Antoniazzi, ‘El Estado Abierto como objetivo del Ius Constitutionale Commune. Aproximación desde el impacto de la Corte Interamericana de Derechos Humanos’, in Ius Constitutionale Commune en América Latina: Rasgos, Potencialidades y Desafíos, coord. Armin von Bogdandy et al. (Mexico: UNAM, 2014) at 265, 270–1. Robert Alexy, ʻThe Dual Nature of Law’, Ratio Juris, 23, 2 (2010), 167–182.

130

Gabriel Alejandro Encinas Duarte

human rights.4 This amounts to a constructivist frame, and, in first instance, to an overlapping consensus of a plurality of ethical-political conceptions. (Part Two): The operationalization of this paradigm has been a plural process: the reconstruction of nation-states through constitutionalism, the enlargement of liberal democracies, and the development of contemporary international, supranational and transnational law. In law, this is translated as a material claim for its formal opening toward different normative orders. In other words, contemporary pluralism can be understood as an upshot of this model. Legal pluralism thus rests heavily upon a connection with pluralisms of interests in the ethical-political and axiological senses, displaying structural similarities. (Part Three): The normative sense of legal pluralism is assessed affirmatively from argumentation theory, although espousing a ‘non-radical’ version of pluralism. It is important to keep in mind that validity and certainty in law are at odds with the indeterminacy fostered by adjudicating normatively porous law. In this sense, pluralism precludes the dworkinian ‘one right answer’ thesis.5 However, there are reasons to conclude that positivist conceptions of law fall short of the normative claims posed for law after the Second World War. Argumentation theory is found to have an upper hand insofar as it conceives of rationality as discursive and thus, not always yielding just one right answer:6 in this sense, a ‘pluralist justification of human rights’7 is taken up; it address the objections of legal validity and certainty through a procedural framework of balancing and proportionality (which itself stems from normative grounds); and, it acknowledges an irreducible moral-political supplement for positivism’s ‘myth of the given’.8 This might be understood as a mediating moment between the plurality of rational claims implicit and informing justification and their explicit reconstruction through technical legal rationality. Part One: The Constructivist Moment after the Second World War After the Second World War, the concepts of human dignity and human rights became entrenched in a diversity of legal dispositions of fundamental character. The positive enactment of human dignity and human rights protecting norms does not settle questions to their foundation. However, the fact of universalized consent has a transcending import behind what could be identified as salience, being an instance of how ‘historically 4 5 6 7 8

Lorraine E. Weinrib, ‘The Postwar Paradigm and American Exceptionalism’, in The Migration of Constitutional Ideas, ed. Sujit Choudhry (Cambridge: Cambridge UP, 2006) at 86. Michel Rosenfeld, ‘Dworkin and the One Law Principle: A Pluralist Critique’, Revue Internationale de Philosophie, 233 (2005) 363–392. Robert Alexy ‘The Dual Nature of Law’ (n. 3), at 172; a ‘weakened’ version of this thesis was proposed in Robert Alexy, ʻSistema jurídico, principios jurídicos y razón práctica’, DOXA, 5 (1988), 139–151. John Tasioulas, ʻHuman Rights, Legitimacy, and International Law’, The American Journal of Jurisprudence, 58, 1 (2013), 1–25, at 7. Christoph Menke, Kritik der Rechte, (Berlin: Suhrkamp, 2015) at 167–171.

Is Argumentation Theory Applicable for Legal Pluralism?

131

embodied meaning calls upon us’.9 This actualizes the conditions for the hypothetical validity of discourse rules, namely, ‘if there is an interest in moral correctness and if therefore the ideal point of view of correctness is taken up.’10 In other words, respect for the dignity of human beings entails a ‘basic moral right to justification’11 that is taken up as a matter of fact. Indeed, human dignity has been recognized as a foundation to a general understanding of interpersonal morality.12 This suggests a constructivist framework, potentially leaving final metaphysical groundings open in favor of practical objectivity. However, there are open questions regarding the relatively recent adoption of the concept of human dignity, as well as what could be reconstructed as its merely practical ‘overlapping’ consensus position. A suggested way out may be adequate: the idea that the pluralism of ethical-political conceptions which reached a compromise upon the concept of human dignity also calls for continued openness and contestation,13 although in institutionalized settings. In consonance with this position, pluralism could be defended as objectively valid, since it provides a foundation for human rights14 along human dignity. It has been claimed that the postwar paradigm is constructed as a development of the general framework of ‘“never again” constitutionalism’,15 which requires to be read in 9 10 11

12

13 14

15

This is the sense of ‘affirmative genealogy’, as offered in Hans Joas, The Sacredness of the Person: A new Genealogy of Human Rights, trans. Alex Skinner, (Washington, D. C.: Georgetown University Press, 2013), at 127. Robert Alexy, ʻDiscourse Theory and Human Rights’, Ratio Juris, 9, 3 (1996), 209–235, at 219. Rainer Forst, ‘The Justification of Basic Rights: A Discourse-Theoretical Approach’, Normative Orders Working Paper 02/2017, at 4. In a similar sense, Habermas expressed that ‘the classic liberal rights […] are interpretations of, and ways of working out what we might call a “general right to individual liberties”, however these may be specified’ in Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, trans. William Rehg, (Cambridge: MIT Press 1996), at 126; a comparison can be drawn with the author’s account of human dignity as ‘the moral ‘source’ from which all of the basic rights derive their sustenance’ in Jürgen Habermas, The Crisis of the European Union: A Response, trans. Ciaran Cronin (Cambridge: Polity, 2012) at 75. John Tasioulas, ʻHuman Dignity and the Foundations of Human Rights’, in Understanding Human Dignity, ed. Christopher McCrudden (Oxford: Oxford UP, 2013), 291–312, at 304 and ss. This conception is criticized by Rainer Forst in Ibid., emphasizing that human rights are non-rejectable on account of their justifiability, as opposed to resting on prior accounts of human well-being or interests. But a middle way suggests itself: conceding that justifiability is an enabling condition to recognize and protect (hypothetical) interests, while interpreting interests as both objective (and thus non-rejectable) and open-ended (both to justification and further development, ‘a never-ending reflexive exercise’). In other words, human dignity, and the universalizability of the categorical imperative are necessary and even substantive conditions to ground rights, but not sufficient in clinical isolation. What is needed to fill in these unsaturated basic principles is the unavoidable perspective of an actor or participant. See Paolo G. Carozza, ʻHuman Rights, Human Dignity, and Human Experience’, in Understanding Human Dignity, ed. Christopher McCrudden (Oxford: Oxford UP, 2013) 615–630. ‘The resultant view of the grounds of human rights is doubly pluralistic: it affirms both moral (equal human dignity) and prudential (universal human interests) elements among the ground of human rights, and it embraces a plurality of universal human interests as potentially human rights-generative.’ Tasioulas, ‘Human Dignity and the Foundations of Human Rights’ (n. 12), at 305. Catherine Dupré, ʻThe Unconstitutional Constitution: A Timely Concept’, in eds. Armin von Bogdandy and Pál Sonnevend, Constitutional Crisis in the European Constitutional Area: Theory, Law and Politics in Hungary and Romania (Oxford: Hart 2015) 351–370, at 354. At page 357, ‘dignity constitutionalism’ is iden-

132

Gabriel Alejandro Encinas Duarte

close connection to the diagnosis that ‘[c]onsensus developed that an integrated set of international and domestic safeguards could militate against such crisis in the future.’16 Those safeguards at different levels can also be understood as mutually checking and balancing each other. This is the sense in which moral political argumentation serves as mediation and mutual recognition between legal spheres, where the rational justification of doctrines and principles ‘decide how “loose” or “tight” or “structural” – to use a term central to systems theory – the coupling will be.’17 In this sense, the ensuing variety of institutional sites, as well as their plurality needs to be viewed as laden with normative discursive evaluations.18 Part Two: Pluralisms At the national level, the ‘rescue’ or reconstruction of nation-states through constitutionalism could not be read in a purely instrumental manner, it was a commitment from political morality.19 This has entailed the enshrining of liberal democratic models as paradigmatic or primarily legitimate.20 On its turn, the relation of democracy to human rights has been conceptualized as mutually reinforcing: either as co-original expressions

16 17

18

19

20

tified as ‘the latest stage in the development’ of previous constitutional moments, where ‘[t]he principle of inviolability of dignity can be compared to a form of higher law, central to constitutional theory in order to distinguish between positive law and external benchmarks.’ Weinrib, ‘The Postwar Paradigm and American Exceptionalism’, (n. 4), at 86. Armin von Bogdandy, ʻPluralism, Direct Effect, and the Ultimate Say. On the Relationship between International and Domestic Constitutional Law’, International Journal of Constitutional Law, 6, 3–4 (2008), 397–413, at 402. In that article, von Bogdandy argues from the doctrines of direct effect and consistent interpretation. A similar standpoint, but from the salience of legal principles is offered in Armin von Bogdandy, ʻCommon Principles for a Plurality of Orders. A Study on Public Authority in the European Legal Area’, International Journal of Constitutional Law, 12, 4 (2014), 980–1007. In a related sense, although from a legal positivist point of view, Muñiz-Fraticelli has proposed a version of legal pluralism in which it is up to the officials of a legal system to rationally assess the intelligibility of another normative system as law. This is explained as a reciprocal process. Victor Manuel Muñiz Fraticelli, The Structure of Pluralism: On the Authority of Associations (Oxford: Oxford UP, 2014), at 150–160. On its turn, this move has been interpreted as leading toward the frame of discourse theory, as ‘a middle way between objective and subjective approaches’ to the concept of law, in Russell Sandberg, ʻThe Failure of Legal Pluralism’, Ecclesiastic Law Journal, 18, 02 (2016), 137–157, at 146 and ss. In this sense, Julio Baquero Cruz, ʻAnother Look at Constitutional Pluralism in the European Union’, European Law Journal, 22, 3 (2016), 356–374. In this article, the primacy of ‘Union law’ is advised against the atomizing potential of European ‘constitutional pluralism’ as a compelling view regarding European integration. An open question is whether its upshot might be the re-accommodation of particularism regarding relationships extraneous to the European Union, for example. For example, in the European context, democracy is taken as ‘the best available political system.’ European Commission for Democracy Through Law (Venice Commission), Report On Democracy, Limitation Of Mandates And Incompatibility Of Political Functions Adopted by the Venice Commission at its 93rd Plenary Session (Venice, 14–15 December 2012), at 3.

Is Argumentation Theory Applicable for Legal Pluralism?

133

of autonomy,21 or an organizational consequence.22 This preserves tension between conceptions of individual and collective autonomy. This explains the expansion of constitutional courts and judicial review inside the frame of what has been characterized as a ‘global model of constitutional rights’23 (of which the models of balancing and proportionality are one of its defining characteristics). In the same sense, the commitment to human rights has been a guiding principle, but also a point of political accommodation in the development of postwar international law as well as supranational law.24 Perhaps we could see a way in which a general liberal understanding not only secures the private sphere, composed of a plurality of associations to seek the satisfaction of wants25 inside the state: the same logic is what enables the mixed character of what has been identified as transnational law, which includes ‘law which regulates actions or events that transcend national frontiers. Both public and private international law are included, as are other rules which do not wholly fit into such standard categories.’26 Yet, transnational law has been recognized as pointing toward expert rule instead of democratic self-determination.27 This resonates with denounces of ‘atomization’ and depoliticization, which have been raised against the enabling of a private sphere through individual rights and the pluralism of associations in the liberal frame.28 In other words, as a result of the postwar configuration, a situation of legal pluralism29 has developed within and beyond the state. This is translated as a material claim for the formal opening of law toward different normative orders: in this sense, the concept of permeability (‘the capacity of a given legal order to limit its own claim of normative exclusivity in order to enable legal rules or principles which emanate from a formally

21 Habermas, Between Facts and Norms (n. 11), at 127 and ss. 22 Peter Häberle, ‘Die Menschenwürde als Grundlage der staatlichen Gemeinschaft’ in Handbuch des Staatsrechts der Bundesrepublik Deutschland Band II: Verfassungsstaat, eds. Josef Isensee and Paul Kirchhof, 3rd ed. (Heidelberg: CF Müller, 2004), at 357. 23 Kai Möller, The Global Model of Constitutional Rights (Oxford: Oxford UP, 2012) 24 See Gaëtan Cliquennois and Elisabeth Lambert Abdelgawad, ʻThe Development of the European System of Human and Fundamental Rights in the Current Economic and Political Context’, European Law Journal, 22, 1 (2016), 2–8, at 4. 25 Harold Laski, ‘Law and the State’, reprinted in The Pluralist Theory of the State: Selected Writings of GDH Cole, JN Figgis and HJ Laski, ed. PQ Hirst, (London: Routledge 1989), 197–227, at 205. 26 Phillip C Jessup, Transnational Law (New Haven: Yale University Press, 1956), at 2. 27 Ralf Michaels, ‘Does Brexit Spell the Death of Transnational Law?’ German Law Journal: Special Brexit Supplement, 17 (2016), 51–62, at 58. 28 Inter alia, Carl Schmitt, The Concept of the Political, expanded ed., trans. George Schwab, (Chicago, London: University of Chicago Press, 2007), at 40–45. See also the reconstruction offered in Martti Koskenniemi, ʻWhat Should International Lawyers Learn from Karl Marx?’, Leiden Journal of International Law, 17, 2 (2004), 229–246, at 233 and ss. 29 ‘[…] a situation in which two or more laws (or legal systems) coexist in (or are obeyed by) one social field (or a population or an individual).’ Ralf Michaels, ʻGlobal Legal Pluralism’, Annual. Review of Law and Social Science, 5, 1 (2009), 243–262, at 245. Cfr. the considerations of the quoted passage as one of the preliminary definitions of legal pluralism in Ralf Seinecke, Das Recht des Rechtspluralismus (Tübingen: Mohr Siebeck, 2015), at 14.

134

Gabriel Alejandro Encinas Duarte

separated legal order to integrate’)30 has emerged as a useful analogy from the European context31 to adjudicate the normative porous character of law. But whether this relativizes the presence of the state is unclear. In this regard, it is from republican accounts of self-determination where we find emphasis upon the continuing importance of the nation state as the constitutional arena where ‘[e]mancipation from jointly created necessity presupposes joint action.’32 A question, then, is whether this contradiction between republican and liberal standards of political legitimacy is successfully taken into account by discourse theory. As a caveat, the contradictory character of espousing a single concept of legal pluralism seems unavoidable. This is not surprising since, as inquiry into the use of the concept of legal pluralism has revealed, its use is coextensive with politic-epistemic challenges at the conceptual level.33 A discourse-theoretical frame, on its turn, reminds us to confront this task from the unavoidable perspective of rational participants in practical discourse. On this basis, legal pluralism, will here be approached ‘as a rather fluid sub-species of normative pluralism’34 and in a normative sense,35 being justified in a significant part by a pluralism of interests, in the ethical-political and axiological senses. In other words, explicating the normative treatment of legal pluralism reveals its contingency upon the merits of the variable interests that may be advanced as its effect.36 Interestingly, this is consistent with the results of inquiry in other pluralisms, where (‘moderate’) accounts of pluralism in one sphere solicit a degree of affinity for pluralist conceptions in related spheres.37

30 Mattias Wendel, ʻComparative Reasoning and the Making of a Common Constitutional Law: EU-related Decisions of National Constitutional Courts in a Transnational Perspective’, International Journal of Constitutional Law, 11, 4 (2013), 981–1002, at 999; Wendel, Permeabilität im europäischen Verfassungsrecht (n. 2), at 7. 31 But also applied in the pluralist context of the Inter-American system. See Morales Antoniazzi, ‘El Estado Abierto como objetivo del Ius Constitutionale Commune’ (n. 2), at 265. 32 Alexander Somek, The Cosmopolitan Constitution (Oxford: Oxford UP, 2014), at 283. 33 See Seinecke, Das Recht des Rechtspluralismus (n. 29), at 32–34. 34 William Twining, Globalisation and Legal Theory (London, Edinburgh, Dublin: Butterworths, 2000), at 231; see also William Twining, ‘Normative and Legal Pluralism: A Global Perspective’, Duke Journal of Comparative and International Law, 20 (2010), 473–510. 35 According to Michel Rosenfeld, ‘[c]omprehensive pluralism as a critical counterfactual ideal yields the best possible normative criterion for the reconciliation of self and other within a pluralistic in fact society, in a way that maximizes the potential for justice while minimizing that for violence.’ Michel Rosenfeld, Just Interpretations: Law Between Ethics and Politics (Berkeley: University of California Press, 1998) 207; see also Michel Rosenfeld, ʻRethinking Constitutional Ordering in an Era of Legal and Ideological Pluralism’, International Journal of Constitutional Law, 6, 3–4 (2008), 415–455. 36 Turkuler Isiksel, ʻGlobal Legal Pluralism as Fact and Norm’, Global Constitutionalism, 2, 02 (2013), 160– 195, at 172. 37 This relation is intimated between alethic pluralism and logical pluralism in Michael P. Lynch, Truth as One and Many (Oxford: Oxford UP, 2009), at 91–104.

Is Argumentation Theory Applicable for Legal Pluralism?

135

Part Three: Pluralism and Legal Argumentation Theory As it has been pointed out, normative accounts of legal pluralism are contingent upon advancing what in the following will be referred to simply as value pluralism.38 In this regard, to assess the applicability of argumentation theory for legal pluralism, an integral question is whether value pluralism is recognized by argumentation theory. I suggest that it may prove useful to approach these questions in terms of Muñíz-Fraticelli’s account of three structural claims connecting pluralisms across the domains of practical reason: plurality, incommensurability, and tragic loss.39 For practical purposes, I will focus mainly on Robert Alexy’s latest conceptualizations. As a descriptive statement, the presence of a plurality of values is coherent with argumentation theory.40 This is not limited to the idea that principles and values are ‘only distinguished by their respective deontological and axiological character.’41 A case has been made that principles correspond to a legal formulation of pluralist values,42 recognizing both their potential to enter into conflict and reach compromise. This might be supported, on the one hand, by the claim that ‘the problem of relations of priority among principles is correspondent with the problem of a hierarchy of values.’43 On the other hand, it is precisely since ‘values must be brought into a transitive order with other values from case to case’44 that we find the necessity of balancing in cases of competing principles.45 The second of the three claims structurally common to pluralism regards incommensurability. Robert Alexy has held that balancing espouses tracing a ‘soft’ order of relations between values.46 It is an open question whether this formulation recognizes incommensurability among a plurality of values. Nonetheless, at least some perspectives on balancing processes have found tenable a version of the incommensurability thesis 38 A departure point is taken from Isaiah Berlin’s recognition of ‘the fact that human goals are many, not all of them commensurable, and in perpetual rivalry with one another’ Isaiah Berlin, ‘Two Concepts of Liberty’ in Isaiah Berlin, The Proper Study of Mankind: An Anthology of Essays eds. Henry Hardy and Roger Hausheer, (London: Chatto & Windus, 1997), at 241. This pluralism has been variously identified as meta-ethical, of values, of practical reasons, or of interests. 39 Muñiz-Fraticelli, The Structure of Pluralism (n. 18), at 11. 40 ‘[…] it is, indeed, necessarily true that no legal system can realize or help to realize to the highest degree possible all moral values of all competing moral systems. This necessity, however, is a logical necessity concerning the relation between different normative systems’, Robert Alexy, ‘Agreements and Disagreements: Some Introductory Remarks’, Anales de la Cátedra Francisco Suárez, 39 (2005), 739–41, at 740. 41 Robert Alexy, A Theory of Constitutional Rights (Oxford: Oxford UP, 2002), at 92. 42 Mauro Barberis, ʻPluralismo de los valores, nuevo constitucionalismo y balance libertad-seguridad’, DOXA, 39 (2016), at 268. 43 Alexy, A Theory of Constitutional Rights (n. 41), at 92. 44 Habermas, Between Facts and Norms (n. 11), at 259. In this appraisal, this situation leads to arbitrariness, owing to a lack of available rational standards to guide decision making. 45 In response to Habermas’ objection, Alexy appeals to the rational justification that could be shown through the ‘argumentative character of balancing as a part of proportionality analysis’ in Robert Alexy, ʻThe Absolute and the Relative Dimension of Constitutional Rights’, Oxford Journal of Legal Studies, 37, 1, (2017), 31–47, at 39 and ss. 46 Alexy, A Theory of Constitutional Rights (n. 41), at 99.

136

Gabriel Alejandro Encinas Duarte

based upon ‘a relationship of mutual irreducibility of values, not on the more conclusory statement that incommensurability necessarily entails the failure of reason to guide choice.’47 On this point, according to Muñíz-Fraticelli’s account, even a ‘weak’ incommensurability thesis (preserving the hypothetic possibility to revise previous contextualized rankings) is sufficient to demonstrate the parallel between pluralist arguments across practical reason.48 This, since it leads to the recognition of the possibility of tragic loss, the third claim of structural similarity. Regarding the third claim, a general sense of tragic loss may be found, for example, in the institutionalized ‘fact of oppression’ of political pluralism found in in liberal democracies49 or Robert Cover’s denunciation of the ‘jurispathic’ quality of the judiciary activity.50 A related possibility is also recognized in other versions of argumentation theory. In what he proposes as a less idealizing version of argumentation theory, Manuel Atienza distinguishes the presence of a ‘tragic element’ in sacrificing essential elements of values through legal decisions resulting from the contrast of different orders, and the existence of ‘tragic cases’ where there is no right answer according to the standards of a legal order. 51 In this sketch, the three claims of structural similarity between pluralisms have been put in relation with argumentation theory. However, the specific characteristics of the legal domain remain unaccounted for. This is especially important since law’s ideal, or critical, dimension can turn it indifferent toward the factual presence of pluralism. In other words, what remains to be assessed is the space for legal pluralism as a norm. Legal pluralism in a normative sense rests upon the insight of ethical-political and value pluralism that there is a diversity of reasonable solutions: there is no singular right answer for an important share of events where interests may conflict. This may require us to see that, while it could otherwise be held that arbitrariness comes to the fore in such cases of conflict between principles making claims on us, a way out may also be pursued through discourse theory and reasonableness (although not without limits). In argumentation theory, the lack of a singular right answer in a variety of cases is framed by the realm of the discursively possible:52 in a wider perspective, this amounts to, at the same time, enabling and a checking upon the variety of normative orders which 47 Paul-Erik N. Veel, ʻIncommensurability, Proportionality, and Rational Legal Decision-Making’, Law & Ethics of Human Rights, 4, 2 (2010), at 86. On the other hand, for an account that calls for rejecting incommensurability in favor of irreducibility, see M. Klatt and M. Meister, ʻProportionality – a benefit to human rights? Remarks on the I·CON controversy’, International Journal of Constitutional Law, 10, 3 (2012), 687–708, at 695–699. 48 Muñiz-Fraticelli, The Structure of Pluralism (n. 18), at 17, 28. 49 John Rawls, Political liberalism, Expanded ed. (New York, Chichester: Columbia University Press, 2005), at 37. 50 Robert Cover, ‘Foreword: Nomos and Narrative’, Harvard Law Review, 97, 1 (1983), 4–68, at 40. 51 See Manuel Atienza, ‘Los límites de la interpretación constitucional. De nuevo sobre los casos trágicos’, Isonomía, 6 (1997), 7–30, at 19 and ss. 52 Determining the discursively possible (in opposition to the discursively necessary and the discursively impossible) leads to recognize a sphere of discretion in the judiciary. A plurality of right interpretations has a legal pluralist import since ‘the three discursive modalities also apply to the overall system. Even complete sets of principles are put to use by weighing and balancing which is also a discursive argumenta-

Is Argumentation Theory Applicable for Legal Pluralism?

137

may raise claims to legal pluralism. Argumentation theory may be able to accommodate intersocial complexity by preserving tension as inherent in the nature of law: between the real and ideal dimensions of law. If this is a tenable position, then legal validity and certainty may be preserved, while recognizing an important space for legal pluralism as part of a regulative ideal.53 Along these lines, value pluralism has been linked to legal doctrines such as the margin of appreciation or subsidiarity.54 Furthermore, the application of the principle of proportionality serves as a procedural frame adopted as a structure to articulate a legal system’s claim to correctness. This latter aspect of decision procedures, the claim to correctness, has been conceptualized as proportionality’s ‘ideal absoluteness’:55 with which ‘disagreement remains open for future argumentation.’56 The adoption of the moral point of view claims to transcend the ethical-political facticity of a legal community.57 This means that legal pluralism occurs at the ethical-political level. In the moral sphere, an approximation is aimed toward the intertwined concepts of objectivity58 as configured in general practical discourse. This is the sense in which it is strived (as a regulative ideal) to approximate a deontological sense of justice, in ‘a perspective freed of all egocentrism or ethnocentrism’59 beyond the merely good for some. This implies some notion of self-transcendence.60 We may thus better see how does this dimension of justification involves a porosity, or ‘permeability’, toward a plurality of normative orders: balancing, as an open rational process, determines a measure in which we can identify the open character of a legal system.61

53 54 55 56 57 58

59 60

61

tion procedure.’ Matthias Klatt, ʻTaking Rights less Seriously. A Structural Analysis of Judicial Discretion’, Ratio Juris, 20, 4 (2007), 506–529, at 514. With this, I suggest to link a normative notion of pluralism with what Robert Alexy has called law’s claim to correctness. See Tasioulas, ‘Human Rights, Legitimacy, and International Law’ (n. 7), at 21. ‘The ideal absoluteness stems from the fact that both sides raise a claim to correctness for their classifications and attempt to discharge it by means of arguments.’ Alexy, ‘The Absolute and the Relative Dimension of Constitutional Rights’ (n. 45), at 47. Ibid. Habermas, Between Facts and Norms (n. 11), at 183. ‘[…] the concepts of rational argument and knowledge are intrinsically intertwined just as the other concepts found in the objectivity family – truth, correctness, intersubjectivity, reality, and the like – are.’ Robert Alexy, ‘An Answer to Joseph Raz’, in Law, Rights and Discourse: Themes from the Legal Philosophy of Robert Alexy, ed. George Pavlakos (Oxford, Portland: Hart, 2007), 37–55, at 54. Habermas, Between Facts and Norms (n. 11), at 97. From a systems-theoretical perspective, Gunther Teubner explains: ‘Justice as law’s contingency formula explicitly goes beyond internal consistency. It is located at the boundary between the law and its external environment and means both the historical variability of justice and its dependency on this environment.’ Teubner, ‘Self-subversive Justice. Contingency or Transcendence Formula of Law?’ (n. 1), at 9. If this is right, we might find in this transcendence a reason for the relevance of, for example, comparative constitutional law engagement. This is the sense in which the postwar constitutionalist paradigm has been characterized in Weinrib, ‘The Postwar Paradigm and American Exceptionalism’ (n. 4). Alexy, A Theory of Constitutional Rights (n. 41), at 366.

138

Gabriel Alejandro Encinas Duarte

The degree of reflexivity required by the claim to correctness could be variously described as a critical use of relativity,62 self-contingency or transcendence.63 The ideal dimension of law, owing to the claim to correctness, makes reference to morality to strive for objectivity and ‘justice as such’.64 This is why, in a ‘first-order’ stage of the claim of correctness,65 reasons and arguments could be taken as ‘free-floating’, independent from their issuance. We can coherently locate in this dimension diverse formulations proposed for legal pluralism: phenomenological interlegality resulting in ‘uneven and unstable mixings of legal codes’,66 or the managing of hybridity through ‘procedural mechanisms, institutions, and practices.’67 Yet, in a sense, this is a ‘dilatory sublation’ which remains to-come.68 This makes us face (at least) two main difficulties. First: this dimension, by itself, may be identified as an ‘unrestrained space of reasons’69 which poses serious risks, such as a slope toward a pre-modern mode of overburdening decision making, or blurring principles such as the division of powers (1); and, second, legal pluralism may be accused of postponing, or dilating, hard questions only to collapse in last instance into one or the other legal order’s particularism (2). (1) We need to question how is it that the claim to correctness does not lead to the self-effacement of law in its contemporary institutional character. As put by Marijan Pavčnick: It lies in the nature of law to include issues of correctness as to the contents as well as effectiveness of legal decisions. If we only deal with correct law, we can be utopian and miss reality. If we only deal with positive law, we are in the centre of reality but can miss the values that represent the basis and give meaning to our dealings.70

Here, the meaning of being a participant in legal discourse comports reflecting on the presuppositions for it. It appears that the adoption of legal parlance points towards its

62 A position which could be found in Gustav Radbruch. See Heather Leeawoods, ‘Gustav Radbruch: An Extraordinary Philosopher’ Washington University Journal of Law and Policy, 2 (2000), 489–515, at 509. 63 Teubner, ‘Self-subversive Justice. Contingency or Transcendence Formula of Law?’ (n. 1); Marijan Pavčnik argues that Radbruch’s formula transcends the circumstances of its elaboration and also the perspective of participants in legal discourse: ‘it is also intended for understanding law and implementing it.’ Marijan Pavčnik, ʻThe Symbolic Meaning of Radbruch’s Formula. Statutory (Non-)Law and the Argument of Non-Law’, Rechtstheorie, 46, 2 (2015), 139–150, at 148. 64 ‘First-order correctness refers only to the ideal dimension. It concerns justice as such.’ Robert Alexy, ʻLegal Certainty and Correctness’, Ratio Juris, 28, 4 (2015), 441–451, at 444. 65 On the distinction between ‘first-order’ and ‘second-order’ correctness, Ibid. 66 Boaventura de Sousa Santos, ʻLaw. A Map of Misreading. Toward a Postmodern Conception of Law’, Journal of Law and Society, 14, 3 (1987), 279-302, at 298. 67 Paul Schiff Berman, ‘Global Legal Pluralism’, Southern California Law Review, 80, (2007), 1155–1237, at 1164. 68 Seinecke, Das Recht des Rechtspluralismus (n. 29), at 341–344. 69 Jurgen Habermas, ʻA Short Reply’, Ratio Juris, 12, 4 (1999), 445–453, at 447 70 Pavčnik, ‘The Symbolic Meaning of Radbruch’s Formula. Statutory (Non-)Law and the Argument of Non-Law’ (n. 63) at 145.

Is Argumentation Theory Applicable for Legal Pluralism?

139

surplus value in comparison with other normative systems.71 As a result, its use is subject to justification. This speaks against turning a blind eye toward the distinctive characteristics of the state-centered conception of legal order’s distinctive characteristics: ‘Sometimes state law is very powerful, sometimes it is weak but rarely is it completely irrelevant or lacking in features that distinguish it from other competing official legal or normative systems.’72 Legal perspective entails giving a salient interpretation to the available institutional, authoritative and historically inherited context. This is why, according to argumentation theory, the degree to which a legal system is open (to ‘free-floating’ reasons or norms) is itself dependent on justification. ‘Second-order correctness’ refers to the balance between the principles of legal certainty and substantive correctness, according to Robert Alexy. This means according prima facie precedence to the institutional dimension of law over its ideal dimension.73 This may serve as a counter-argument to the worry about pluralism mining the conditions of validity and integrity in legal systems. At the same time, this leads back to the rejection of ‘radical versions of legal pluralism’ in the discourse-theoretical frame, since according to Habermas: As far as these [legal pluralist] approaches rely on the contextualist assumption that there are legal languages which form closed, i. e. mutually untranslatable, universes of meaning, they start from a false philosophical premise […] The jurisdiction of heterogeneously composed international courts provides evidence for the role of principled reasoning; mutual understanding across the gaps between different backgrounds is made easier by recourse to shared principles. Another reason for rejecting the radical versions of legal pluralism is the systematic neglect of needs for legitimation […] The state as sanctioning power and implementing agency recedes into the background, even though these are precisely the functions that require legitimation in the first place.74

An important objection is the one raised by Emmanuel Melissaris, who has departed from the criticisms of the ‘special case thesis’ in Alexy’s conception, to argue that ‘institutionalized legal discourse’ is rather based on the context of a community’s ‘shared normative experiences’,75 to the extent of being able to relativize the role of the state in 71 Klaus Günther, ‘Normativer Rechtspluralismus – Eine Kritik’, Normative Orders Working Paper 03/2014, at 4. Cfr. Dieter Grimm, ʻThe Achievement of Constitutionalism and its Prospects in a Changed World’, The Twilight of Constitutionalism?, eds. Petra Dobner and Martin Loughlin (Oxford: Oxford University Press, 2010), 3–22 72 Brian Z. Tamanaha ‘Understanding Legal Pluralism: Past to Present, Local to Global’, Sydney Law Review, 30 (2008), 375–411, at 411. 73 Alexy, ʻLegal Certainty and Correctness’ (n. 64), at 449–450. 74 Armin von Bogdandy, Jürgen Habermas, Discourse Theory and International Law: An Interview with Jürgen Habermas (Second Master Class on International Law at the Max Planck Institute for Comparative Public Law and International Law, 2013), available at: , at 9, 10. 75 Emmanuel Melissaris, Ubiquitous Law: Legal Theory and the Space for Legal Pluralism (Farnham: Ashgate, 2009), at 115.

140

Gabriel Alejandro Encinas Duarte

law. This would open a space in argumentation theory for legal pluralism in the stronger sense. However, open questions remain on legitimacy, namely whether the concept of community-based shared normative experiences has an equivalent potential to channel conflict as it is currently required for state-based institutionalized settings. Another difficulty is that the way to operationalize this open conception of law is left unaddressed, since doing so would seem to go against its own premises.76 But then, (2) the import of democratic standards, as articulated by republican ethical-political claims, could lead to the somber conclusion that, in last instance, legal pluralism reverts to a collection of postponed particularisms, whether state-centered77 or not being indifferent. On the one hand, as Armin von Bogdandy states: ‘Dialogic pluralism is the natural choice for those who prefer Hegel’s insistence on the normal case as the starting point for scientific thought rather than Carl Schmitt’s exceptionalism.’78 On the other hand, it is submitted here that argumentation theory mitigates this upshot through the balance between the real and ideal dimensions of law: It is a common view that the spread of proportionality tests has acquired global relevance. Going beyond whether this extension by itself shows the importance of reason-giving and moral political justification, a relevant ground for its adoption has been grasped as a counterpart to the ‘jurispathic’ reality of legal systems: ‘proportionality helps judges mitigate what Robert Cover called the “inherent difficulty presented by the violence of the state’s law acting upon the free interpretative process.” ’79 On this basis, we could claim that the ‘nomological’ aspects of legal pluralism are recognized, however imperfectly, by argumentation theory’s openness to future contestation on discursive grounds, as a learning process.80

76 Ibid., at 151–152. 77 As in leading to the particularist conclusion that ‘[p]luralism is right for the international sphere, but wrong for the domestic.’ Armin von Bogdandy, ‘Pondering Schmitt’s Concept of the Political for International Public Authority – Also a Reflection on Methods, Standards and Disciplinary Settings for Public Law Theory’, Max Planck Institute for Comparative Public Law & International Law (MPIL) Research Paper No. 2016-22, at 9. 78 Armin von Bogdandy, ʻCommon Principles for a Plurality of Orders. A Study on Public Authority in the European Legal Area’ (n. 17), at 1006. Yet, as Erhard Denninger has warned, the ‘normal’ case mindset can also accomodate totalitarianisms if it is accompanied by a view of the autonomization of law understood as enabling its instrumentalization. From this perspective, the experience of pluralism appears closely related to that of contingency. See Erhard Denninger, ʻNormalfall oder Grenzfall als Ausgangspunkt rechtsphilosophischer Konstruktion ?’, Kritische Vierteljahresschrift für Gesetzgebung und Rechtswissenschaft, 85, 1 (2002), 5–18, at 15. 79 Vlad Perju, ʻProportionality and freedom – An essay on method in constitutional law’, Glob. Con., 1, 02 (2012), 334–367, at 336. 80 An argument consistent with what Robert Alexy characterizes as the dimension of openness for the future for arguments in institutionalized settings has been raised as a practical qualification to Robert Cover’s open invitation for alternative narratives: ‘It is true that states sometimes get the law wrong. But a good argument in a dissenting opinion remains part of the legal record. It does not disappear. All is not lost. Seemingly, only statists have a theory about conflict resolution that is practical and sustainable, whatever its many defects.’ Thom Brooks, ʻLet a Thousand Nomoi Bloom? Four Problems with Robert Cover’s Nomos and Narrative’, Issues in Legal Scholarship, 6, 1 (2006), at 17.

Is Argumentation Theory Applicable for Legal Pluralism?

141

This argumentative frame may be seen as a foundation for (a reassesment of) the development of ‘relative normativity’.81 In this sense, a very similar mechanism to balancing, as a middle way between the one-right-answer thesis and indeterminacy, was intimated by John Tasioulas. Using the terms ‘fit’ (here taken as akin to the real dimension of law) and ‘substance’ (here taken as akin to the ideal dimension of law), he held: ‘[…] contra Dworkin, it is precisely the holistic nature of interpretation, and in particular the interplay between fit and substance, that explains why there is not always a uniquely correct interpretation in each case […] In this way, we can eschew the dogmatism of the ‘single right answer’ view, while simultaneously exorcising the spectre of radical indeterminacy conjured up by positivists such as Weil.’82 Argumentation theory acknowledges a fallible nature in legal configurations. This is why discourse remains open for the future. This reflexive instance is what imbues non-positivism with a claim to moral-political salience. Instead of taking the ‘other’ of law as a given, the ‘outermost border of law’83 is itself subject to being justified through a continued discursive chain of normative arguments from participants in a practical enterprise. This would seem to advance a frame to respond to the risk of a ‘myth of the given’ in positivism, such as where the ‘other’ of law is precluded as a given relationship through subjective rights.84 This calls for the persistent re-entry85 and reconstruction of moral-political considerations in constitutional and human rights thought and practice.86 This necessarily takes the form of arguments. In adjudication, for example, pluralist considerations are mediated toward legal reasons. In this sense, an open question is whether this implies the assessment that the argumentative practices involved in constitutional review, may have a claim ‘to be closer than the parliament to the ideal dimension of law’87 (in any case, in need of costly justification). Perhaps we could question here how pluralism may be framed as a discursive guarantee against power asymmetries among polities and political actors, and as a vehicle for the reasonable dispute of public norms.

81 Cfr. Thomas Kleinlein, Konstitutionalisierung im Völkerrecht: Konstruktion und Elemente einer idealistischen Völkerrechtslehre (Berlin, Heidelberg: Springer Berlin Heidelberg, 2012), at 322. 82 John Tasioulas, ʻIn Defence of Relative Normativity. Communitarian Values and the Nicaragua Case’, Oxford Journal of Legal Studies, 16, 1 (1996), 85–128, at 115. 83 ‘The Radbruch formula which, in its shortest form, says that extreme injustice is not law is the classical expression of the idea of an outermost border of law.’ Robert Alexy, ʻInclusive Non-positivism’, Espaço Jurídico Journal of Law, 16, 2 (2015), 283–292, at 289. 84 See Menke, Kritik der Rechte (n. 8), esp. at 167–171. 85 ‘Whenever the distinction between legal and non-legal (in the sense of extra-legal, not of illegal!) re-enters the sequence of legal operations, legal argumentation gains the capacity to create an ‘enacted’ environment, by distinguishing between norms and facts, between internal legal acts and external social acts, between legal concepts and social interests, between internal reality constructs of the legal process and those of social processes.’ Teubner, ‘Self-subversive Justice. Contingency or Transcendence Formula of Law?’ (n. 1), at 11. 86 The critical potential of a discourse-theoretical account of human rights is emphasized in Forst, ‘The Justification of Basic Rights: A Discourse-Theoretical Approach’ (n. 11), at 26–27. 87 Alexy, ‘The Dual Nature of Law’ (n. 3), at 178.

142

Gabriel Alejandro Encinas Duarte

If the above is right, a continuous contestation between the ideal and real dimensions of law through argumentation obtains. One way of understanding this process could be stated as a process of comparing and matching narratives and discourses, which implies a special kind of ‘meta’ perspective of law, through legal pluralism.88 Thus, one is required to insist in law’s normative openness, being embedded in the networks of practical reason.89 Concluding Remark Although this is a question which has so far only been preliminarily undertaken, it seems that not only is argumentation theory applicable for legal pluralism, but that there exists a degree of a necessary relation between both, if under some qualifications. First, a discursive constitutionalism as proposed in argumentation theory presupposes that in reality there is ample room for legal disputes in which it is discursively possible to arrive at no single right answer, owing to pluralism in practical reason. What we find are chains of reasons over time, laying a claim to correctness under conditions of rational justification, but also fallibility. Second, argumentation theory recognizes that law has an ideal dimension, a claim to correctness. This comports a degree of openness in legal systems toward other norms, to then take a criterion of universalizability – a moral point of view. This contradicts the idea that the nation-state centered legal system entails a rejection of other normative orders. Although the resulting legal pluralism appears in a ‘weak’ state-centered version, its normative relevance is still useful: it permits the accommodation of constitutional principles with the claims of integration and cooperation which are required by transnational challenges. To the extent that legal pluralism represents a challenge for the ethical-political considerations framing a given legal community, the moral point of view is unavoidable. This way, conditions of legal pluralism accentuate the role of morality in law. The openness of a legal system presupposes pluralism, while the claim to correctness in law 88 On the matching of narratives as a process blurring the distinction between the ideal and factical, Andreas von Arnauld, ‘Norms and Narrative’, German Law Journal: Special Issue – Law’s Pluralities, 18, 2 (2017), 309–330. On discourses in legal pluralism implying a ‘meta’ level, whether as a ‘universal code of legality’ or a ‘universal sense of law’ see, respectively: Klaus Günther, ‘Legal Pluralism or Uniform Concept of Law? Globalisation as a Problem of Legal Theory’, NoFo, 5 (2008), 5–21; Melissaris, Ubiquitous Law (n. 75), at 26, 33, 46–59. On the reflexive character of legal pluralism as a ‘nomos of nomoi’, Seinecke, Das Recht des Rechtspluralismus (n 29), at 373. 89 But not only the sphere of practical reason. In this sense, to inquire into the normative properties of law, it is indeed necessary ‘to explain how our ethical thought and talk latch on to these properties and how the meaning of ethical terms is related to them’ which results not only in metaphysical considerations for its conceptual relations, but also in ‘taking on commitments in the philosophy of mind, philosophy of language, and epistemology.’ David Plunkett and Scott Shapiro, ʻLaw, Morality, and Everything Else. General Jurisprudence as a Branch of Metanormative Inquiry’, Ethics, 128, 1 (2017), 37–68, at 44.

Is Argumentation Theory Applicable for Legal Pluralism?

143

implies the search for objectivity as found in general practical discourse. In this sense pluralism carries pragmatist approaches towards truth and objectivity, as a fallible enterprise yielding reasonable compromises.90 On the other side, this means that legal participants face the heavily morally burdened task of approaching legal questions under the limit concept of justice.

90 ‘Under the sign of reasonableness, pluralism does not claim to provide the perfect, unique and final solution, but simply human solutions – acceptable but capable of being changed and improved – to the ever-recurring problems created by the coexistence of men and groups, who prefer a fair compromise to the coercion imposed in the name of a unique value irrespective of how important or even pre-eminent that value may be.’ Chaim Perelman, ‘The Philosophy of Pluralism’, The Philosophic Exchange 9, 1 (1978), 49–56, at 56.

On the Moral Foundations of a Fair Trial Héctor A. Morales Zúñiga

Introduction This paper aims to reconstruct the moral foundations of a fair trial. Current debate around the concept of the rule of law has revitalised interest in the place of a fair trial or, in more abstract terms, of the procedural requirements of legal adjudication.1 The proper representation of the prodedural requirements that characterise it, however, presents two difficulties First, the content of these requirements is highly diverse. On the one hand, it is possible to identify general features, such as the impartiality and independence of judges, the right to be heard, or the right to a public trial. On the other, it is also possible to recognise very specific elements, such as the right to defend oneself or to be defended by a lawyer, the right to have enough time to prepare one’s defence, and the right to be present at all stages of the trial. Furthermore, there are components that are relevant only for certain proceedings; for instance, the right not to incriminate oneself. Consequently, the more specificities are underlined in an analysis of legal adjudication, the longer the ‘laundry list’ of procedural requirements becomes.2 Secondly, the nomenclature employed to refer to these procedural requirements is ambiguous. While in the English legal system, they are primarily referred to as principles of ‘natural justice’,3 in the American legal system, the term ‘due process of law’ is preferred.4 The European Human Rights System, in turn, employs the concept of ‘fair trial’ as expressed by Article 6 of the European Convention on Human Rights. Moreover, we * 1

2 3 4

I am quite grateful to professor Peter Koller for his helpful comments on this paper. Particularly relevant Jeremy Waldron, ʻThe Rule of Law and the Importance of Procedure’, in James E. Fleming, ed., Nomos 50: Getting to the Rule of Law (New York: New York University Press, 2011), 3–31. See also Joseph Raz, ʻThe Rule of Law and its Virtue’, The Authority of Law (Oxford: Oxford University Press, 2009), 210–229, at 217–8; John Gardner, ʻThe Supposed Formality of the Rule of Law’, Law as a Leap of Faith (Oxford: Oxford University Press, 2012), 195–220, at 208–10; Robert S. Summers, ʻA Formal Theory of the Rule of Law’, Ratio Juris, 6, 2 (1993), 127–142, at 130, 133–134; Tom Bingham, The Rule of Law (London: Penguin Books, 2011), at 90–109. The expression is taken from Waldron (note 1), at 5. Paul Jackson, Natural Justice (London: Sweet & Maxwell, 1973), at 1–7. Michel Rosenfeld, ʻConstitutional Adjudication in Europe and the United States: Paradoxes and Contrasts’, in Georg Nolte, ed., European and US Constitutionalism (Cambridge: Cambridge University Press, 2005), 197–238, at 214.

146

Héctor A. Morales Zúñiga

can observe a group of more limited concepts, such as the ‘right of the defence and effective judicial protection’5 or the ‘principle of open justice’,6 which also make reference to procedural requirements. On top of that, some authors have tried to integrate these concepts by stating, for example, that the due process of law incorporates the principles of natural justice, the components of a fair trial, and the right of the defence and effective judicial protection.7 Since none of these concepts is clearly delimited, this ‘integrative approach’, so to speak, heightens the difficulties that have been described so far. By stipulation, I shall understand these procedural requirements as components of a fair trial. Thirdly, these procedural requirements of legal adjudication appear in connection with a highly contested concept: that of the rule of law.8 Their specific content as part of the rule of law is unclear–as is whether or not these procedural requirements share their normative foundations with it. In this paper, I do not aim to provide a solution to this conceptual problem; rather, I attempt to make explicit the moral premises that underlie the idea of a fair trial. I shall confine myself to examine four of its components: 1. 2. 3. 4.

The right to be heard The duty to give reasons Judicial impartiality The right to appeal

Let’s briefly look at each of them in turn. Both the right to be heard and judicial impartiality are commonly considered to be the basic features of natural justice.9 The first requires that parties have the opportunity to contest the quaestio facti and the quaestio iuris that give form to the case. As the Latin tag goes: audi alteram partem. Every party has a claim to some kind of hearing in which her arguments are taken into account. As far as judicial impartiality is concerned, I take a broad view of it. I read in the other famous Latin tag, nemo iudex in re sua, as referring to a system of rules that tries to prevent a judicial decision from being affected by external factors. Here, I consider both personal factors (e. g. close relationship between a judge and one of the parties) and institutional factors (e. g. pressures on a judge from executive power). The latter has commonly been called ‘judicial independence’.10 5

For the regulation of this right in European Law, see Ingolf Pernice, ʻThe Right to Effective Judicial Protection and Remedies in the EU’, in Allan Rosas, Egil Levits and Yves Bot, eds., The Court of Justice and the Construction of Europe (The Hague: Asser Press, 2013), 381–395. 6 Emma Cunliffe, ʻOpen Justice: Concepts and Judicial Approaches’, Federal Law Review, 40 (2012), 385– 411, at 388–91. 7 Adam Tomkins, ʻNational Security and the Due Process of Law’, Current Legal Problems, 64, 1 (2011), 215–253, at 215–6. 8 Jeremy Waldron, ʻIs the Rule of Law an Essentially Contested Concept?’, Law and Philosophy, 21, 2 (2002), 137–164, at 148. 9 Jackson (note 3), at 1. 10 As impartiality seems to be a particular type of independence – independence from the parties – it could be argued that the dominant concept should be that of judicial independence. For an analysis of the conceptual problems of judicial impartiality and independence, see Diego Papayanis, ʻIndependence, Impartiality and Neutrality in Legal Adjudication’, Revus, 28 (2016), 33–52.

On the Moral Foundations of a Fair Trial

147

In contrast to the two components mentioned above, the duty to give reasons and the right to appeal are more problematic. In common law systems, for example, whether judges have a legal duty to provide reasons for their decisions is still debated.11 This general duty, in my view, comprises two specific duties. First, it demands from judges that the institutional decisions they make be backed by valid reasons for legal adjudication. Secondly, it requires that these reasons be communicated, at the very least, to the case parties. However, these two specific duties are not necessarily intertwined; for instance, a judge may have the duty to provide reasons without the supplementary obligation of revealing them. Here, I shall adopt a strong view of the duty to give reasons, to wit, one that comprises the two aforementioned specific duties. Similarly, the right to appeal is not unanimously accepted as a fundamental characteristic of a fair trial. Yet, some authors have argued in favour of its being so.12 At the core of the right to appeal is the institutional opportunity to challenge the reasons that have been given by a court to substantiate its decision. To this extent, a right to appeal presupposes a duty to give reasons, but a duty to give reasons does not imply a right to appeal. Having said that, the reconstruction below will proceed as follows: first, I shall outline both the functional context in which the idea of a fair trial arises and the notion of a legal disagreement (Part One); then I shall offer an account of a way of settling legal disagreements (Part Two) and evaluate its correctness (Part Three); finally, relying on the previous findings, I shall set out the moral foundations of a fair trial (Part Four). Part One: Legal Adjudication and Legal Disagreements Joseph Raz has argued that one of the key features of an institutionalised system is the presence of norm-applying institutions.13 Since legal systems are the most important institutionalised systems,14 in order to understand them, we must know what constitutes a norm-applying institution. In my view, we can easily agree upon the significance of norm-applying institutions. Typically, modern legal systems have the sort of social institution Raz refers to. Despite being labelled in different ways (e. g. tribunals, courts, judiciary), they share the feature of being institutions whose foremost function is the application of legal norms to concrete cases. Hence, a follow-up question arises: Why is this so? Below, I shall briefly examine one of the answers to this question (I). Then, I See H. L. Ho, ʻThe Judicial Duty to Give Reasons’, Legal Studies, 20, 1 (2000), 42–65; Jason Bosland and Jonathan Gill, ʻThe Principle of Open Justice and the Judicial Duty to Give Public Reasons’, Melbourne University Law Review, 38, 2 (2014), 482–524; V. S. Chauhan, ʻReasoned Decision: A Principle of Natural Justice’, Journal of the Indian Law Institute, 37, 1 (1995), 92–104. For a general analysis, see Mathilde Cohen, ʻWhen Judges Have Reasons Not to Give Reasons: A Comparative Law Approach’ (2015), at 496–525. 12 See Waldron (note 1), at 6; Cassandra B. Robertson, ʻThe Right to Appeal’, North Carolina Law Review, 91 (2013), 1219–1282, at 1266–81. 13 Joseph Raz, Practical Reason and Norms, Second edition (Oxford: Oxford University Press, 1999), at 132. 14 Ibid., at 123. 11

148

Héctor A. Morales Zúñiga

shall explain some of the diverse operations involved in legal application, focusing my attention on the emergence of legal disagreements (II). Finally, I shall lay out legal defeasibility as an example of the previous points (III). I. Generality and Legal Adjudication A commonly shared idea is that the law performs the social function of guiding human behaviour through general norms.15 These norms may take various shapes (e. g. rules, standards, principles, precedents), but all of them refer to general classes of persons and general types of conduct.16 A static framework of general norms, however, is not enough to guide the behaviour of the addressees. It is necessary to descend from the realm of universals to the realm of the particular instances of such norms. Since law is not self-applying, it needs to be applied by someone.17 In this paper, I will concentrate on official application.18 Roughly speaking, this refers to the application of legal norms by state officials.19 Official application arises, by and large, when norm-addressees are in dispute.20 Here, only official application performed by courts will be examined.21 I

15 See Frederick Schauer, Playing by the Rules (New York: Oxford University Press, 1991), at 167–206; Frederick Schauer, ʻThe Generality of Law’, West Virginia Law Review, 107 (2004), 217–238, at 232–3; Frederick Schauer, Thinking Like a Lawyer (Cambridge, MA: Harvard University Press, 2009), at 13–35; Timothy Endicott, ʻThe Generality of Law’, in Luís Duarte d’Almeida, James Edwards and Andrea Dolcetti, eds., Reading HLA Hart’s The Concept of Law (Oxford and Portland, OR: Hart Publishing, 2013), 15–36, at 17–9. For the role of particularity in law, see ibid., at 22–8. 16 H. L. A. Hart, The Concept of Law, Third edition (Oxford: Oxford University Press, 2012), at 124. 17 See Neil MacCormick, Rhetoric and the Rule of Law (Oxford: Oxford University Press, 2005), at 23; Pierluigi Chiassoni, ʻSome Realism about Legislation’, The Theory and Practice of Legislation, 1, 1 (2013), 173–186, at 182. 18 Beyond hypothetical applications carried on by legislatures while creating a legal norm, the first candidates for norm-appliers are norm’s addressees. Actually, one of the main features of legal systems is that norm-addressees are also norm-appliers, that is to say, they apply legal norms to the particular circumstances they are involved in, so that they try to anticipate the legal consequences of their conduct. It has been argued that, as a result of this form of operation, law protects the rational agency of human beings, and, consequently, their dignity, Jeremy Waldron, ʻHow Law Protects Dignity’, Cambridge Law Journal, 71, 1 (2012), 200–222, at 206. See also Jeremy Waldron, ʻThe Rule of Law’, The Stanford Encyclopedia of Philosophy (Fall 2016 Edition), available at https://plato.stanford.edu/archives/fall2016/entries/ruleof-law/. For a broader perspective, see Jeremy Waldron, ʻThoughtfulness and the Rule of Law’, British Academy Review, 18 (2011), 1–11; Waldron (note 18). 19 Undoubtedly, legal norms cannot but be applied by human beings. As noted by Tamanaha: “The idea of ‘the rule of law, not man,’ powerful as it is, has been forever dogged by the fact that laws are not self-interpreting or applying. The operation of law cannot be sequestered from human participation,” Brian Z. Tamanaha, On the Rule of Law (Cambridge: Cambridge University Press, 2004), at 123. Yet in some cases, human beings hold institutional roles which are constituted by other legal norms, Raz (note 13), at 134. 20 To be sure, there are manifold kinds of legal disputes beyond this one (e. g. conflicts among official norm-appliers), however, I shall focus just on this basic case. 21 Courts may well have other functions, but I assume that we are referring to “courts”, “judges”, and “tribunals” as such because they paradigmatically perform the function of applying legal norms to concrete cases. For an analysis of the relationship between judicial process and the distinction between function and structure, see Fernando Atria Lemaître, ʻLegislation and Adjudication’, in Jordi Ferrer Beltrán and

On the Moral Foundations of a Fair Trial

149

shall make reference to this notion indistinctively as either official application, judicial application, or legal adjudication. According to Raz, courts – or, as he terms them, primary organs: are institutions with power to determine the normative situation of specified individuals, which are required to exercise these powers by applying existing norms, but whose decisions are binding even when wrong.22

I would like to highlight one of Raz’s remarks.23 In performing their adjudicative functions, Raz suggests, courts have a limitation: a set of pre-existing norms. Courts are constrained in that they must settle disputes in accordance with the pre-determined norms of the legal system.24 Legal adjudication, therefore, excludes absolute discretion.25 Legal systems give form to a framework that segments practical reasoning, so to speak. The range of available reasons to solve a practical problem is thereby pruned back (i. e. some reasons are excluded from playing a role in deciding a legal case). In short, law moves from the general to the particular through applicative determinations of those norms that are not excluded by the very legal system.26 This rough picture of legal adjudication allows us to move towards the next point. II. Adjudicative Operations and Legal Disagreements As has been sustained, general legal norms are officially applied, but what does this official application look like? This is a question that almost every legal philosopher has tried to answer. I shall only delineate two rudimentary pictures of official application. First, some authors have argued that law is applied mechanically. Norm-applying institutions subsume a state of affairs under a legal norm, and then, by means of a logical operation, unpack the corresponding legal consequences. This process is commonly referred to as “legal syllogism”. To make it clear: legal syllogism is an operation by virtue of which a normative conclusion is inferred from a normative premise (i. e. a legal norm) and a factual premise (i. e. a statement whose content is that the facts of the case have oc-

22 23

24 25 26

Giovanni Battista Ratti, eds., The Logic of Legal Requirements (Oxford: Oxford University Press, 2012), 327–361, at 343–50. Raz (note 13), at 136. According to the second remark courts bear an important power: their applicative determinations are binding regardless of their merits. Individuals are subject to decisions made by courts notwithstanding their being wrong. This is what is meant by stating that legal adjudication has an authoritative character. Admittedly, courts may err, but mistakes are irrelevant to the binding nature of the concrete application of a legal norm. See ibid., at 135. I cannot go further into the problem of the content of these legal norms in this context. However, it is worth noting that the more moral components we include, the more plausible the thesis to be defended here becomes. On the comparison of institutionalised systems and systems of absolute discretion, see ibid., at 137–41. Ibid., at 146.

150

Héctor A. Morales Zúñiga

curred).27 The conclusion of a legal syllogism serves as the solution for a case. In other terms, legal syllogism corresponds to what Jerzy Wróblewski has called ‘internal justification’. In his words: The justification by syllogistic form is the internal justification, because it does not test the soundness of premises.28

This picture of legal adjudication has been called ‘formalism’, ‘deductivism’, ‘mechanical jurisprudence’, among other terms.29 In this context, I will use this last term –famously coined by Roscoe Pound.30 Under mechanical jurisprudence, the role of the judge is reduced to identifying the pertinent legal norms, estimating whether the relevant facts for the case have been proven, and unfolding the consequences that follow from the premises deployed.31 As a result, norm-appliers do not have a generous space to deliberate on the case. To put it in Ronald Dworkin’s words: mechanical jurisprudence not only denies discretion in a strong sense to norm-appliers (i. e. solving a case by making a rule not previously set by a legal system), but also in a weak sense (i. e. solving a case by using judgement, deliberation).32 This is a naïve conception of legal adjudication, and, consequently, paints an inaccurate picture of how a legal system paradigmatically works. The application of legal norms is not a mechanical activity. In contrast, it entails a cluster of diverse and complex operations. As has been suggested by Gerald Postema: law is best conceived not as a set of discrete rules, but as a discipline of public practical reasoning that provides a framework and forum for critical exploration as well as authoritative determination of public norms.33

Legal adjudication implies deliberation. Judges have to make use of their judgement to settle legal disputes. We can label this concept deliberative jurisprudence. Although different legal systems may embody this deliberative character in different ways,34 all of them feature some degree of weak discretion, to recall Dworkin’s distinction.

27 Jerzy Wróblewski, ʻLegal Syllogism and Rationality of Judicial Decision’, Rechtstheorie, 5 (1974), 33–46, at 33. For details, see MacCormick (note 17), at 32–9. 28 Wróblewski (note 27), at 46. On the distinction between internal and external justification, see Robert Alexy, A Theory of Legal Argumentation (Oxford: Oxford University Press, 1989), at 221–86. 29 Richard A. Wasserstrom, The Judicial Decision (Stanford, CA: Stanford University Press, 1961), at 14. 30 Roscoe Pound, ʻMechanical Jurisprudence’, Columbia Law Review, 8, 8 (1908), 605–623, at 607. 31 A more accurate depiction of mechanical jurisprudence may include the assumption of completeness and consistency of legal systems. 32 Ronald Dworkin, ʻThe Model of Rules I’, Taking Rights Seriously (Oxford: Bloomsbury, 2013), 29–64, at 49. Dworkin mentions another weak sense of discretion: an official holds weak discretion whenever her decisions enjoy final authority. See ibid. 33 Gerald J. Postema, ʻPositivism and the Separation of Realists from their Scepticism’, in Peter Cane, ed., The Hart-Fuller Debate in the Twenty-First Century (Oxford and Portland, OR: Hart Publishing, 2010), 259–279, at 271 (italics added). 34 Actually, Postema labels this concept “common-law jurisprudence,” ibid., at 271.

On the Moral Foundations of a Fair Trial

151

To be sure, a deliberative conception of legal application need not reject legal syllogism.35 In fact, quite the opposite is true; for, obviously, “none can be more convincing in its conclusion than in its premises”.36 Deliberative jurisprudence assumes syllogistic reasoning but goes beyond it. To clarify the difference, allow me to make use of a classic quote by Montesquieu: the judges of the nation are, as we have said, only the mouth that pronounces the words of the law, inanimate beings who can moderate neither its force nor its rigor.37

Consider this sentence’s composition: (i) judges have to replicate the words of the law. (ii)judges cannot modify either its force or its rigour. For mechanical jurisprudence, (i) is instrumental to (ii), that is to say, judges respect the force or rigour of the law by restraining themselves to pronounce merely its words. The law is modified when a judge changes the words of the law, (i. e. when she changes the legal text). Pronouncing the words of the law is thus tantamount to quoting the legal text as a normative premise in a legal syllogism. As mentioned above, legal application is reduced to internal justification. To be sure, this operation is a form of reasoning, but a thin one. It may be termed thin legal reasoning. Hence, mechanical jurisprudence entails thin legal reasoning.38 Deliberative jurisprudence rejects this picture. Mechanical jurisprudence, the argument goes, ignores the fact that judges do not make their decisions in accordance with “the words of the law”, but rather, with their meaning. The decisive factor is not what has been said by the legislature, but what has been meant by what has been said by the legislature. We must distinguish, therefore, between a ‘legal norm-formulation’ (‘authoritative sentence’, ‘normative sentence’, ‘legal clause’) and a ‘legal norm’ (‘explicit norm’). The former corresponds to an “authoritatively fixed strings of words, composed according to the lexicon and the grammar of a natural language”,39 whereas the latter refers to its meaning.40 Both the process of converting a legal norm-formulation into a 35 Take Alexy’s theory of legal argumentation as an example – which may be seen as a clear instance of deliberative jurisprudence. This theory does not neglect the relevance of legal syllogism for the internal justification of legal judgements. In fact, quite the opposite is true. See Alexy (note 28), at 221–30. 36 MacCormick (note 17), at 76. 37 Charles de Secondat Montesquieu, The Spirit of the Laws (Cambridge: Cambridge University Press, 1989), at 163. For a similar analysis, see Atria Lemaître (note 21), at 333–9. 38 Here, I am not interested in the exegesis of The Spirit of the Laws. Actually, there are good reasons to think that Montesquieu did not subscribe a mechanical conception of legal adjudication, at the least as a pure descriptive theory of legal adjudication. See ibid., at 339. 39 Chiassoni (note 17), at 182. 40 See ibid., at 182–3; Pierluigi Chiassoni, ʻFrames of Interpretations and the Container-Retrieval View: Reflections on a Theoretical Contest’, in Thomas Bustamante and Christian Dahlman, eds., Argument Types and Fallacies in Legal Argumentation (Dordrecht: Springer, 2015), 111–128, at 113. In extenso, see Riccardo Guastini, ʻDisposición vs. Norma’, in Susanna Pozzolo and Rafael Escudero, eds., Disposición vs. Norma (Lima: Palestra, 2011), 133–156.

152

Héctor A. Morales Zúñiga

legal norm and the product of that process are commonly referred to as ‘legal interpretation’.41 It could be said, then, that a legal norm is the product of the interpretation of a legal norm-formulation.42 Turning back to the quotation from Montesquieu, now we may suggest a second reading of it. Since the force or rigour of the law is contained in the meaning of a norm-formulation, the reference to the “words of the law” has to be understood as invoking their literal meaning, i. e. the meaning that comes from the application of linguistic interpretive arguments.43 Additionally, we need to assume that Montesquieu believes that the literal meaning has to prevail over other, let’s say, pragmatic meanings (e. g. moral considerations, social consequences, etc).44 Usually this concept – an ideology of judicial application45– is known as formalism or literalism.46 This way of understanding legal adjudication seems quite close to that of mechanical jurisprudence. Nevertheless, they are not the same. Formalism involves a series of adjudicative operations that are neglected by mechanical jurisprudence.47 As MacCormick has said: Every statement of law, both in judicial justifications and in doctrinal commentaries, rests at least on an implicit, and often on an explicit and articulated, interpretative argument.48

If we move towards a more complex ideology of judicial application, the number of adjudicative operations increases. Furthermore, these operations often articulate some kind of value system and value judgements.49 In short, law cannot be applied mechanically. On the contrary, legal application always implies weak discretion and, subsequent-

41 On the ambiguity of the concept of interpretation, see Riccardo Guastini, ʻRule-Scepticism Restated’, in Leslie Green and Brian Leiter, eds., Oxford Studies in Philosophy of Law (Oxford: Oxford University Press, 2011), 138–161, at 138–44. 42 Chiassoni (note 40), at 113. Since interpretative arguments are contained in interpretive norm-formulations, a theory of legal interpretation needs an answer as to the problem of infinite regress. On this topic, see Julie Dickson, ʻInterpretation and Coherence in Legal Reasoning’, The Stanford Encyclopedia of Philosophy (Winter 2016 Edition), available at https://plato.stanford.edu/archives/win2016/entries/ legal-reas-interpret/, at section 2.4; Jes Bjarup, ʻKripke’s Case: Some Remarks on Rules, their Interpretation and Application’, in Fernando Atria Lemaître and Neil MacCormick, eds., Law and Legal Interpretation (Aldershot: Ashgate Publishing Limited, 2003), 375–385; Matthias Klatt, Making Law Explicit (Oxford and Portland, OR: Hart Publishing, 2008), at 142–51. 43 See Jerzy Wróblewski, The Judicial Application of Law (Dordrecht: Springer, 1992), at 97–100; MacCormick (note 17), at 125–7; Pierluigi Chiassoni, Técnicas de Interpretación Jurídica (Marcial Pons, 2007), at 90–4. 44 Wróblewski labels these interpretive rules ‘second level directives of preference’. They serve the function of determining “the choice between meanings ascribed to the interpreted legal rule according to the first level directives [directives of interpretation], if these meanings are different”, Wróblewski (note 43), at 91. See also Chiassoni (note 43), at 114–30. 45 See Wróblewski (note 43), at 266–7. 46 See Schauer (note 15), at 29–35. Advocating for a distinction between formal and formalistic reasoning, Robert S. Summers and P. S. Atiyah, Form and Substance in Anglo-American Law (Oxford: Clarendon Press, 1987), at 28–31. 47 Moreover, consider other non-interpretive operations, such as the construction of norms, the solution of conflicts among legal norms, the filling in of legal gaps, and the balance of principles. 48 MacCormick (note 17), at 77. 49 Ibid.

On the Moral Foundations of a Fair Trial

153

ly, what we can term thick legal reasoning.50 As a consequence, deliberative jurisprudence is a more precise depiction of legal adjudication. Having said that, we can identify now one of the central pieces of the argument I shall develop below: every adjudicative operation may be contested. Concretely, every argument given to support the meaning of a norm-formulation is exposed to potential objection by, for example, the adverse party. When an adjudicative operation is contested, a legal disagreement arises.51 Legal adjudication, therefore, is characterised by having the potential to trigger legal disagreements. Legal disagreements are highly important to an understanding of the normative grounds of a fair trial, for these grounds require a specific way of handling them. The next section will flesh out the concept of legal disagreement by making use of legal defeasibility as an example of adjudicative operation. Insofar as I have already established the distinction between a norm-formulation and a legal norm, I will use this latter term in a rough way, unless the context makes it apparent that it is being used in its specific meaning. III. The Case of Legal Defeasibility So far we have seen that the law is mainly general. As a result of this, when lawmakers discuss whether or not a norm has to be laid down, they are primarily guided by general considerations. They work with typical cases (general, normal cases).52 A typical case always expresses both the inclusion of certain features and the exclusion of others53; the lawmaker either may have not judged the latter as relevant, or may simply not have taken them into consideration. The wording of a legal norm embodies this game of inclusion and exclusion.54 A problem arises when norm-applying institutions have to deal with cases in which those discarded or neglected properties turn out to be relevant.55 In such a context, some

50 Dworkin’s distinction between weak and strong discretion refers to a difference in the reasoning implied. Both kinds of discretion involve thick legal reasoning; however, whereas, in the former, the decision is subject to an authoritative framework, in the latter, it is not. Dworkin (note 32), at 49. 51 For a taxonomy of legal disagreements, see Riccardo Guastini, ʻPara una Taxonomía de las Controversias entre Juristas’, in Pau Luque Sánchez and Giovanni Battista Ratti, eds., Acordes y Desacuerdos (Madrid: Marcial Pons, 2012), 61–72. True, legal disagreements about the proper application of legal syllogism may also be considered. 52 A prominent explanation of this phenomenon runs as follows: lawmakers, as human beings, are not gods; they do not have perfect knowledge of the world; therefore, it is impossible for them to lay down a norm while anticipating all of its future applications. Furthermore, since lawmakers’ decisions are made in a limited space of time, that generic constraint becomes more intense. As a consequence, legal norms are always the outcome of decisions in which just a discrete set of factual features has been taken into account. See Hart (note 16), at 128; Klaus Günther, ʻA Normative Conception of Coherence for a Discursive Theory of Legal Justification’, Ratio Juris, 2, 2 (1989), 155–166, at 159 53 Schauer (note 15), at 21–31. 54 See ibid., at 55–64. 55 Frederick Schauer, ʻIs Defeasibility an Essential Property of Law?’, in Jordi Ferrer Beltrán and Giovanni Battista Ratti, eds., The Logic of Legal Requirements (Oxford: Oxford University Press, 2012), 77–88, at 81.

154

Héctor A. Morales Zúñiga

legal systems allow for the defeat of legal norms.56 A legal norm is defeasible when it is “open to implicit exceptions, which cannot be exhaustively listed ex ante and, accordingly, do not provide conclusive, all-things-considered obligations, but rather prima facie ones”.57 This opens the door for norm-appliers to “make an ad hoc or spur-of-the-moment adaption”58 in order to avoid an unwanted outcome. I have to be brief here, so I shall take for granted that the best explanation of legal defeasibility places it in the context of legal interpretation.59 In this way, it might be said that, according to legal defeasibility, the literal meaning of a norm-formulation may be challenged by pragmatic or non-linguistic considerations.60 When this linguistic meaning is defeated, four operations can be implied. I shall present them in the form of four legal assertions:61 i. There is an interpretive norm in the legal system that allows to contest the meaning of a norm-formulation in spite of there being neither semantic nor syntactic indeterminacy. ii. As a result of applying (i), an implicit exception exists. iii. There is a potential gap.62 iv. A new justified norm exists to fill the gap.63 Each of these legal operations may be challenged. Let’s illustrate this by employing one of the classic examples of legal defeasibility: the breaking of a promise.64 Community x 56 I am assuming that it is not an essential characteristic of legal systems. Some of them might consider that, in order to safeguard social values such as certainty, predictability, and stability, norm-formulations have to be applied, even though lawmakers failed to examine all of the relevant features of a concrete case. By contrast, other legal systems might defend that judges can treat a legal norm as defeasible in order to protect social values, such as those of justice, equity, and fairness, when, due to their having discarded or neglected a relevant feature, the application of a legal norm brings about absurd, unjust, inefficient or silly effects. See ibid., at 85–6. Hence, whether or not a legal norm may be defeated depends on the scope of the competences that a legal community attributes to norm-applying institutions. 57 Jordi Ferrer Beltrán and Giovanni Battista Ratti, ʻLegal Defeasibility: A Survey’, in Jordi Ferrer Beltrán and Giovanni Battista Ratti, eds., The Logic of Legal Requirements (Oxford: Oxford University Press, 2012), 11–38, at 11. 58 Schauer (note 55), at 81. 59 Ferrer Beltrán and Ratti (note 57), at 17; Riccardo Guastini, ʻDefeasibility, Axiological Gaps, and Interpretation’, in Jordi Ferrer Beltrán and Giovanni Battista Ratti, eds., The Logic of Legal Requirements (Oxford: Oxford University Press, 2012), 182–192, at 186. 60 As can been noted, this gives rise to a different ideology which may be understood as the opposite of that of Montesquieu – according to the second interpretation suggested above, see at 152. 61 Cf. ibid., at 183–6. 62 Asserting a gap is contingent due to the fact that an implicit exception may well already be regulated by another legal norm. These cases, we might say, are better explained as conflicts of norms (antinomies). 63 On the creative dimension of legal defeasibility, see Alexy’s critique of Günther’s position, Robert Alexy, ʻJustification and Application of Norms’, Ratio Juris, 6, 2 (1993), 157–170, at 160–6. For an example of an attempt to overcome this dispute, see Peng-Hsiang Wang, ʻCoherence and Revision: Critical Remarks on the Günther-Alexy Debate’, in Josep Aguiló-Regla, ed., Logic, Argumentation and Interpretation: Proceedings of the 22nd IVR World Congress Granada 2005, (Stuttgart: Franz Steiner Verlag, 2007), 23–30. 64 See Klaus Günther, The Sense of Appropriateness (Albany, NY: State University of New York Press, 1993), at 207, 230–239.

On the Moral Foundations of a Fair Trial

155

has laid down a norm-formulation (NF) whose literal meaning is that promises must be kept (NF1). A member of x, Brian has promised another member of x, Marie, that he will sing at her wedding. According to NF1, Brian has a duty to fulfil his promise. Sadly, on Marie’s wedding day, Brian’s son falls seriously ill. Brian alleges that NF1 collides with an implicit norm of the legal system, which states that sons have to be helped when they need it (Nπ). Then, he argues that NF1 must be defeated by a new legal norm (NF2’) which prescribes that promises must be kept unless a son needs help. Brian justifies this assertion by stating that in virtue of the interpretative norm (N¢)65 moral considerations prevail over semantic ones. That is to say, his case should be regarded as an implicit exception. However, this is not enough for Brian. He maintains that, despite his specific case not being explicitly regulated by the legal system, a fair solution for it would be to configure the normative consequence as a simple faculty (NF2’’).66 In short, Brian states that: (i) N¢ belongs to the legal system of Community x. (ii) NF2’ defeats NF1 since the requirements established by N¢ are met. This entails that the moral norm Nπ is justified. (iii) His case has not been regulated by any binding norm of the legal system. (iv) NF2’’ is justified. Let’s suppose that Marie contests all of Brian’s legal assertions. As a consequence, four legal disagreements have emerged. Now, again, let’s suppose that Marie takes the case to court. We face a problem: legal disagreements obstruct legal adjudication, and, in that way, create a hurdle for an adequate performance of the function of law. If a legal system insists on guiding human behaviour, this hurdle has to be overcome. There are multiple ways of settling legal disagreements. The next section will examine one of those. As I develop this explanation, I hope that the moral grounds of a fair trial will begin to be intuited. Part Two: Dealing with Legal Disagreements Arbitrarily This paper has argued that deliberative jurisprudence is the best way to understand legal adjudication. When a legal norm is applied to a concrete case, several complex adjudicative operations are involved. Law-appliers have to argue in a thick sense. Furthermore, these operations may be contested, and, as a consequence, various forms of legal disagreements may emerge. Insofar as legal disagreements hinder legal adjudication, they 65 To be sure, N¢ should be represented as a new norm-formulation. However, to avoid an excess of details I shall skip this distinction. 66 Including both the permission to sing and not to sing at the wedding. On the concept of facultative or optional actions, see Carlos E. Alchourrón and Eugenio Bulygin, Normative Systems (Wien and New York: Springer-Verlag, 1971), at 14.

156

Héctor A. Morales Zúñiga

need to be settled. The last part of the previous section put forward legal defeasibility as an example of an adjudicative operation that is particularly likely to trigger legal disagreements. The story of Brian and Marie, as we recall, ceased with the latter suing the former for his not having fulfilled the promise of singing at her wedding. The lawsuit challenged all four of Brian’s legal assertions. Here, the specific substantive correctness of those claims is not the focus of our interest; rather, we are interested in the court’s modality for dealing with Brian and Marie’s disagreements, i. e. the distinctive means that legal systems provide to serve the function of solving them.67 The first part of this section (I) introduces nine possible scenarios for dealing with legal disagreements. The second (II) outlines a systematisation of these. I. Nine Scenarios A first scenario (A) represents the crudest way of solving a legal disagreement: a court simply states the legal assertion that prevails. It may say, for example, that Marie’s challenge of N¢ has failed, and that the interpretive norm asserted by Brian stands up. Period. The decision thus is groundless.68 In a second scenario (B), a court settles the legal disagreement by stating that Brian’s legal assertion prevails because that is the decision that it has made. Despite being quite similar to A, scenario B differs from the first, for the court has offered a rough answer to the question of the grounds for the prevalence of Brian’s legal assertion. In the same line, in a third scenario (C), Brian’s legal assertion prevails because that is the will of the judges. It corresponds to the will of the judges that N¢ belongs to the legal system of Community x. One might also say that the decision coincides with the judges’ intentions. In contrast, a fourth scenario (D) depicts the courts as being more generous in providing support for their decisions. A judge sustains, for instance, that Marie’s challenge of (i) prevails since in that way Marie’s personal interests are satisfied. Or, we might imagine an alternative case in which a judge tries to advance her own interests. Likewise, a judge may be willing to favour the opinion of a hierarchically superior court because, for example, she is under pressure from it, or she may aspire to be given a better institutional position by deciding in a certain fashion. In a similar way, a judge may simply say that (iv) has to be rejected because this decision reflects the values of her religious community. A fifth scenario (E) considers a judge who, let’s say, supports Brian’s legal assertion of NF2’’ because she believes NF2’’ is a correct norm. When she is asked why she thinks

67 I take the notion of modality from Gardner (note 1), at 205–11. The means may include procedures, types of reasoning, and rights. 68 This case is different from one in which a court simply does not communicate the grounds for its decision. Here, such grounds do not exist.

On the Moral Foundations of a Fair Trial

157

so, she answers that her mere belief is reason enough.69 The sixth scenario (F) is slightly different from the previous ones. Consider (iii) (Brian’s assertion of there being a gap) and suppose that, in the legal system of Community x, N† explicitly regulates the alleged implicit exception, confirming the obligation conveyed by NF170. The court, in this scenario, ignores N† and decides in favour of Brian, because it argues that in comparative legislation the legal solution for the specific case is completely different. Or it might maintain that N† infringes on a universal moral principle. In a seventh scenario (G), a court does not provide justifying reasons for its decisions. That is to say, having conflicting arguments to bear either the acceptance of Brian’s legal assertion or its rejection, a court makes a decision without adequately balancing of them. Still, an eighth scenario (H) illustrates a court making a decision that is logically inconsistent. This may occur if in the ruling is maintained that Nπ is not morally justified, and that consequently, Marie’s challenge of (ii) has to be discarded. The logical consequence of what has been maintained by the court is precisely the opposite: Marie’s challenge has to be accepted and Brian’s legal assertion (ii) has to be rejected. Finally, we might conceive of a ninth scenario (I) in which a court does not take Brian and Marie’s reasons into consideration, gives Marie more opportunities to share her opinion than it does Brian, or keeps secret the argumentative support for its decision. Undoubtedly, it is possible to continue envisaging further modality scenarios to cover various legal disagreements. Be that as it may, this rough picture suffices for our primary aim. Yet in order to clarify the argument of the next section, we need to move from this pointillist approach to a more systematic one: What is the core characteristic, if any, that is shared by the above scenarios? Is it possible to identity a unique feature that allows us to conflate them? II. The Search for a Common Feature I will not delay the identification of that feature: in my opinion, all the scenarios depicted are arbitrary. In those scenarios, courts draw on arbitrary modalities to deal with legal disagreements. We will not have made much progress, however, if the meaning of arbitrariness is not delineated. Since arbitrariness is a quite vague concept, this question is not easy. Even so, let me explore some possibilities. First, a decision is arbitrary if there are no normative reasons to support it.71 We could label this sense arbitrariness as lack of normative reasons. Here, I understand normative reasons as those facts that count in favour of justifying a decision.72 A normative reason 69 See Thomas Nagel, ʻMoral Conflict and Political Legitimacy’, Philosophy & Public Affairs, 16, 3 (1987), 215–240, at 229–30. 70 To be sure, this case seems to be more a case of a simple conflict between legal norms than one of legal defeasibility. 71 I will not draw a distinction between arbitrary decisions, acts, and norms. Cf. Raz (note 13), at 71–3. 72 See ibid., at 17; María Álvarez, ʻReasons for Action: Justification, Motivation, Explanation’, The Stanford Encyclopedia of Philosophy (Winter 2017 Edition), available at https://plato.stanford.edu/archives/

158

Héctor A. Morales Zúñiga

refers to why a decision ought to be made.73 As can be noted, this option corresponds to the elemental aspect infringed when a reasoned decision is required. Scenario A is the obvious example of arbitrariness as a lack of normative reasons precisely because the decision is not supported by reasons. Scenarios B and C include this sense of arbitrariness as well. The former does so because its self-referentiality does not answer the question of why the decision has been made. As Timothy Endicott has argued: a decision is arbitrary whenever the law itself ought to demand a justification other than the fact that the decision maker made it, and there is no such justification.74

The latter is arbitrary because having the intention to decide in a certain way p is not a normative reason in favour of p.75 Normative reasons may form an intention; moreover, having made a decision according to certain normative reasons may constitute an intention to do what has been decided,76 but the intention itself is not a reason for a decision. In broad terms, we might say that in scenario C, the decision with regard to the legal disagreement has been made by mere caprice. Endicott sustains that: A country is not ruled by law when it is ruled by the arbitrary caprice – by the sweet will and whims – of executive or legislative or judicial officials. An arbitrary decision in general is one that is not distinguished, by reasons in favour of it, from an unreasoned choice.77

Additionally, normative reasons are public. Reasons cannot be ‘private property’; rather they are to be ‘publicly accessible’.78 So, reasons are arbitrary if they remain in the private sphere. Scenario E reflects this isolation since the judge’s beliefs – as mere beliefs – cannot be exposed to public scrutiny. Arbitrariness as lack of normative reasons is the first and most basic layer of arbitrariness. It is, nevertheless, far from exhausting its meaning. Secondly, a decision is arbitrary when it is made in such a way as to overreach the framework of available reasons to support it. We could label this sense arbitrariness as lack of framed reasons. This conception implies the existence of different frameworks of

73 74 75

76 77 78

win2017/entries/reasons-just-vs-expl/, at section 2; Jonathan Dancy, Practical Reality (Oxford: Oxford University Press, 2000), at 1–5. Endicott says that “arbitrariness is a lack of reason,” Timothy Endicott, ʻArbitrariness’, Canadian Journal of Law & Jurisprudence, 27, 1 (2014), 49–71, at 49. In my view, however, he is referring to a stronger concept of reason than the basic idea I am examining here. See John Broome, Rationality Through Reasoning (Oxford: Wiley Blackwell, 2013), at 46–7. Endicott (note 72), at 70. See John Broome, ʻAre Intentions Reasons? And How Should We Cope with Incommensurable Values?’, in Christopher W. Morris, Arthur Ripstein, Christopher W. Morris and Arthur Ripstein, eds., Practical Rationality and Preference (Cambridge: Cambridge University Press, 2001), 98–120; Broome (note 73), at 183–5. See ibid., at 181; Raz (note 13), at 65. Endicott (note 72), at 70. Endicott states that “[a]rbitrary government is a distinctive form of unreasonable government; it is a departure from the rule of law, in favour of rule by the mere will of the rulers.” ibid., at 49. Rainer Forst, ʻPractical Reason and Justifying Reasons: On the Foundations of Morality’, The Right to Justification (New York: Columbia University Press, 2012), 13–42, at 14. For a discussion, see R. Jay Wallace, ʻThe Publicity of Reasons’, Philosophical Perspectives, 23 (2009), 471–497.

On the Moral Foundations of a Fair Trial

159

practical reasoning; therefore, it is possible to have differentiated cases of arbitrariness. Since legal systems provide one of those frameworks, we may talk about ‘legal arbitrariness’ as being different from ‘moral arbitrariness’ or ‘ethical arbitrariness’, so to speak. One of the main criteria to trace the frontiers of a practical framework is that of its shareability. A shareable reason is a reason whose validity is examined in the “public space of normative justification”.79 In contrast, non-shareable reasons do not require this social sphere in order to be validated.80 As Rainer Forst puts it: “they do not […] require others’ acceptance for their validity as good reasons”. Here, we may introduce a supplementary distinction between strong and weak shareable reasons. While strong shareable reasons require universal acceptance, weak shareable reasons only require the acceptance of a particular community. Moral context is the paradigmatic example of the former;81 ethical context of the latter.82 Our main concern nonetheless is legal adjudication and legal arbitrariness. What are the criteria that determine the legal framework? Consider this quotation: The most important demand of the Rule of Law is that people in positions of authority should exercise their power within a constraining framework of well-established public norms rather than in an arbitrary, ad hoc, or purely discretionary manner on the basis of their own preferences or ideology. It insists that the government should operate within a framework of law in everything it does, and that it should be accountable through law when there is a suggestion of unauthorized action by those in power.83

The excerpt above serves as an example of how arbitrariness as lack of framed reasons is commonly employed in legal discourses. Officials must act according to the constraining legal framework. However, this statement may be a little misleading, since officials may act both in a context of justification of legal norms and in a context of application of legal norms.84 Whereas the former refers mainly to legislation, the latter refers primarily to legal adjudication. Thus, we should establish two different legal frameworks. Here, I 79 Forst (note 78), at 14. The following statement by Postema, as I understand it, may be interpreted in the same sense: “the rule of law at its heart is concerned with protecting against arbitrariness, not merely the arbitrariness manifest in unpredictable exercises of power, but the arbitrariness of power that is not bound to act on principled reasons.”, Postema (note 33), at 277. 80 In some passages, Forst seems to suggest that all practical reasons have to be shareable Forst (note 78), at 23. But, at the same time, he refers to ‘rational grounding’ as a practical context in which shareable reasons are not required – normative reasons in a demanding (moral) sense, ibid., at 14. 81 See Rainer Forst, Contexts of Justice (Berkeley, CA: University of California Press, 2002), at 244; Rainer Forst, ʻIntroduction: The Foundation of Justice’, The Right to Justification (New York: Columbia University Press, 2012), 1–9, at 6; Forst (note 78), at 20; Rainer Forst, ʻCritique of Justifying Reason: Explaining Practical Normativity’, Normativity and Power (Oxford: Oxford University Press, 2017), 21–35, at 28–9. 82 See Forst (note 81), at 38; Forst (note 81), at 15–8; Forst (note 81), at 25–6. Forst also draws an unclear and overlapping distinction between ‘strict reciprocity and generality’ and ‘restricted generality’, see Forst (note 81), at 46. 83 Waldron (note 18), at section 2. 84 On this distinction, see Atria Lemaître (note 21), at 351–61; Klaus Günther, ʻImpartial Application of Moral and Legal Norms: A Contribution to Discourse Ethics’, Philosophy & Social Criticism, 14, 3–4 (1988), 425–432, at 425–427, 431–432; Günther (note 52), at 157–161, 170–172; Günther (note 64), at 15–58, 251–254.

160

Héctor A. Morales Zúñiga

limit my analysis to the context of application. As mentioned earlier, one of the paradigmatic features of the adjudicative function of legal systems is that of its being limited by pre-existing norms.85 Actually, the congruence between official application and the declared (pre-existing) rules is one element of what Lon Fuller called the ‘inner morality of law’.86 Breaking such a congruence, according to Postema, would lead to “a mode of the arbitrary exercise of power”.87 Scenario F corresponds to this version of the concept of arbitrariness since the judge invokes a different legal system or a moral framework to justify the decision. To be sure, this is a simplification, for it overlooks the highly contested issue of the delineation of the very legal framework88 (e. g. whether it is possible to draw a sharp line between law and morality, as seen above).89 Nevertheless, here I simply need to assert that practical reasoning can, to a certain extent, be fragmented. I shall come back to this matter presently.90 Scenario D presents, in turn, a singular case of arbitrariness as lack of framed reasons. All of the situations contained in such a scenario may be deemed as infringing on the criterion of shareability – at the very least in its strong sense. That is not necessarily a legal criterion; still, we may agree that, in current legal discourse, settling the legal disagreement between Brian and Marie based on that kind of considerations –prejudice, bias, self-interest– would be arbitrary. This suggests that there is a connection between shareable reasons and legal reasons, or, in general, between the moral context of justification and the legal one.91 Arbitrariness as lack of framed reasons is one of the most important layers of a concept of arbitrariness. Yet, as with the previous layer, it does not encompass all the cases in which the word is used. Thirdly, a decision is said to be arbitrary because it does not rely on justifying reasons. We may label this sense arbitrariness as lack of justifying reasons. Normative and justifying reasons seem to be the same92, yet they are not. A normative reason x is a reason that favours a certain decision. This type of reasons is called ‘pro tanto reasons’.93 An agent, however, might have another pro tanto reason y not to make that decision. Therefore, a mere normative reason is not enough to justify why the agent ought to make a particular decision. Normative or pro tanto reasons have to be weighed. If, after 85 At 149. 86 Lon L. Fuller, The Morality of Law (New Haven and London: Yale University Press, 1969), at 81. Drawing attention to the relevance of this desideratum, Gardner (note 1), at 208–10. 87 Postema (note 33), at 273 (italics added). 88 This gives rise to a special kind of legal disagreements labelled ‘theoretical disagreements’, see Scott Shapiro, ʻThe “Hart – Dworkin” Debate: A Short Guide for the Perplexed’, in Arthur Ripstein, ed., Ronald Dworkin (Cambridge: Cambridge University Press, 2007), 22–55, at 35–40. 89 Legal defeasibility is a typical example provided to show that at least there is a contingent connection between law and morality, see José Juan Moreso, ʻLegal Defeasibility and the Connection between Law and Morality’, in Jordi Ferrer Beltrán and Giovanni Battista Ratti, eds., The Logic of Legal Requirements (Oxford: Oxford University Press, 2012), 225–237. 90 At 163. 91 At 169. 92 Forst, for example, does not draw a distinction between them, see Forst (note 78), at 19. 93 See Álvarez (note 72), at section 2; Broome (note 73), at 51–4.

On the Moral Foundations of a Fair Trial

161

weighing those reasons, we arrive at the conclusion that x prevails over y, then we may say that x is a justifying reason. These reasons are also known as ‘pro toto reasons’.94 Scenario G embodies this type of arbitrariness. The legal disagreement was not decided according to pro toto reasons. Fourthly, a decision is said to be arbitrary whenever it is not the logical consequence of the premises that have been used. As we can recall, this type of arbitrariness was the main concern of mechanical jurisprudence.95 Arbitrariness in this fourth sense infringes on legal syllogism. Applying Wróblewski’s terminology, we could refer to it as arbitrariness as lack of internal justification. This type of arbitrariness is shown in scenario H. Now we are closer to a proper concept of arbitrariness. Nevertheless, if we stop here, we will have neglected an important sense of the concept. Arbitrariness, fifthly, may also refer to the procedure applied in order to come to the decision. We may term this arbitrariness as lack of a fair procedure. Scenario I allows us to grasp this meaning. This scenario either denies the parties the chance to have their say in the space of contestation of legal assertions, or keeps secret the reasons on which the solution of the legal disagreement is based. The search for a common feature in all of our scenarios has led us towards an integrative concept of legal arbitrariness (‘integrative arbitrariness’) that is made up of five aspects: (a) the lack of normative reasons (b)the lack of framed reasons (c) the lack of justifying reasons (d)the lack of internal justification (e) the lack of a fair procedure This integrative concept does not attempt to offer an exhaustive or definitive account of legal arbitrariness.96 Rather, it sheds light on the usage of the word ‘arbitrary’ in some legal contexts, particularly that of legal adjudication.97 In any case, all of these aspects

94 See Álvarez (note 72), at section 2; Broome (note 73), at 49–51. The main question as to this type of arbitrariness is: what criteria determine when a pro tanto reason has to be considered as a pro toto reason. In the context of the reasoning around constitutional rights, it might be said that the proportionality principle – in a narrow sense (i. e. balancing) – serves this function. 95 At 150. 96 For instance, one may include the lack of logical validity as another aspect of legal arbitrariness since a decision that contains contradictory premises may well be considered to be arbitrary. 97 Now that we have abridged our nine diverse scenarios, it might be asked whether this very integrative notion of legal arbitrariness could, in turn, be reduced. It seems plausible to consolidate (a) to (d) under a new label: ‘arbitrariness as lack of justification’. Even more, if we attribute some epistemic value to a fair procedure, we might incorporate it into this new conception. If this is true, then integrative arbitrariness is tantamount to arbitrariness as lack of justification. In what follows, however, I shall keep the concept as it is. Seeing each of these aspects of arbitrariness in isolation, I think, is useful for revealing the moral grounds of a fair trial.

162

Héctor A. Morales Zúñiga

of arbitrariness seem to have a negative connotation.98 Arbitrariness must be avoided. If arbitrariness were legally institutionalised, we would say that such a formal operation is faulty. Consequently, a new question arises: What is wrong with arbitrariness? Furthermore, since integrative arbitrariness defines an arbitrary modality of handling legal disagreements, we may also ask: What is wrong with this modality? The next section offers an answer to these questions. Part Three: What is Wrong with Legal Arbitrariness? Applying legal norms by means of adjudicative operations precipitates legal disagreements. Legal systems have to tackle such legal disagreements in order to properly perform the social function they serve. As shown above, the arbitrary modality is one way to do this. This modality is defined by what we called integrative arbitrariness. Nevertheless, the arbitrary modality gives the impression of not being a proper method of dealing with legal disagreements. Why is this so? To answer this question, I need to take a detour. Since Rainer Forst’s interpretation of discourse theory will be used as the theoretical framework for my argument, I shall begin with (I) a brief account of it. Then, I shall outline (II) the relationships between practical reasoning, the right to justification, and legal arbitrariness. Finally, I shall (III) apply these ideas to the concept of integrative arbitrariness. I. Practical Reasoning and the Right to Justification In recent years, Rainer Forst has developed an original account of discourse theory. For our main purpose, it is important to explain two ideas: first, his conception of practical reason and reasoning, and second, the moral right to justification. Let’s start with the first. I.1 Practical Reason and the Principle of Reason Forst suggests that practical reason may be understood as a faculty that is composed of the ability to justify practical answers and the ability to act on the basis of those justifi-

98 In this sense arbitrariness differs from discretion. Consider the following passage: “The rule of law does not require that official or judicial decision-makers should be deprived of all discretion, but it does require that no discretion should be unconstrained so as to be potentially arbitrary. No discretion may be legally unfettered.”, Bingham (note 1), at 54. Discretion, according to Tom Bingham, is not necessarily wrong. In fact, discretion is wrong when it is arbitrary. In the same line, Endicott says explicitly that “[d]iscretion does not imply arbitrariness”, Endicott (note 72), at 51. See also Hart (note 16), at 127.

On the Moral Foundations of a Fair Trial

163

cations.99 Practical reason makes it possible to find orientation in the world based upon justified reasons.100 This faculty is exercised through a social game, in which publicly accessible reasons are exchanged to justify beliefs and actions.101 This is, so to speak, the first level of practical reasoning: the provision of normative reasons to justify answers to practical questions. On a second level, practical reasoning is normatively governed by the principle of reason.102 This principle has two dimensions. On the one hand, it is a principle of justification that requires validity claims to be justified according to their own features (i. e. “in precisely the way in which they hold in their respective contexts”).103 The second level is a qualification of the first level. Those features, Forst adds, are to be pragmatically reconstructed from the concrete social practices of justification, so that the specific conditions of validity for each of the claims are revealed. On the other hand, the principle of reason is a reflexive principle since it is self-referential. This is because it critically analyses whether the very reconstruction of those conditions has adequately been brought forth.104 Forst has identified four contexts of practical reasoning (i. e. contexts of justification): ethical, legal, political, and moral.105 The moral context of justification is the fundamental pillar of practical reasoning. It expresses the idea of universalizability, which is anchored in the characteristics of a moral claim. A moral claim is categorical and unconditional, that is to say, it intends to be binding for all people, regardless of their cultural, political or social context.106 How can such a strong claim be justified? Following a discourse-theory based framework, Forst thinks that a moral claim can only be realised intersubjectively on the basis of reciprocal and general reasons107 (i. e. “Reasons that are 99 Forst (note 78), at 13; Rainer Forst, ʻMoral Autonomy and the Autonomy of Morality’, The Right to Justification (New York: Columbia University Press, 2012), 43–61, at 49; Forst (note 81), at 256. 100 Forst (note 81), at 21. 101 Ibid.; Forst (note 78), at 14–5. 102 Forst (note 81), at 25; Forst (note 78), at 18–9; Forst (note 99), at 49. True, the first level may be easily integrated in a more general content of the principle of reason. 103 Forst (note 81), at 25. 104 Ibid. 105 Forst (note 81), at 241–92. However, sometimes he makes reference to a social context. For instance, “contexts of political and social justice,” Forst (note 81), at 32. Neither is it clear what the difference is between the legal and the political context. Sometimes, he talks about a “legal-political context,” Forst (note 81), at 5; Rainer Forst, ʻThe Justification of Justice: Rawl’s Political Liberalism and Discourse Theory in Dialogue’, The Right to Justification (New York: Columbia University Press, 2012), 79–121, at 116; Rainer Forst, ʻWhat Does it Mean to Justify Basic Rights?’, Netherlands Journal of Legal Philosophy, 45, 3 (2016), 76–90, at 84; a “legal-political normative order,” Rainer Forst, ʻThe Justification of Basic Rights: A Discourse-Theoretical Approach’, Netherlands Journal of Legal Philosophy, 45, 3 (2016), 7–28, at 7; a “legal-political domain,” ibid., at 9; a “legal-political level” ibid., at 12; and, a “legal-political constructivism,” Forst (note 105), at 81. It seems that Forst tries to remain open to a non-institutionalised way of channelling political power. 106 Forst (note 81), at 268; Forst (note 78), at 19; Forst (note 99), at 48; Forst (note 81), at 28. In being categorical and unconditional, a moral claim does not deny the possibility of exceptions, but rather imposes a strong burden of argumentation on those who try to defeat a moral norm, Forst (note 78), at 29. Forst also suggests that in principle every person can demand that another act in accordance with a moral norm, Forst (note 99), at 49. This passage may be read as stating that moral norms contain prima facie duties, that is to say, that moral norms are defeasible. 107 Forst (note 81), at 269; Forst (note 78), at 19; Forst (note 99), at 49; Forst (note 81), at 28.

164

Héctor A. Morales Zúñiga

not reciprocally and generally rejectable”).108 Thus, reciprocity and generality are the criteria that shape the principle of universalisation. Let’s now delve into these two criteria. Reciprocity, Forst believes, is divided into two elements. Reciprocity of content109 (or claims),110 on the one hand, requires that “no one may raise claims that she refuses to grant to others”.111 The justification of a moral norm has to have a universal structure. This is a minimum requirement of formal justice. Reciprocity of reasons, on the other hand, requires that the agent who intends to justify a moral claim invokes neither her personal interests nor her own conception of good. As Forst puts it: “no one may simply assume that others share her own evaluative conceptions and interests so that she could claim to speak in their name or in the name of higher values”.112 Therefore, moral order is built on shareable reasons. The criterion of generality, in my opinion, may also be subdivided.113 On the one hand, generality of reasons requires that the interests of all those potentially affected by a norm to be taken into consideration.114 This requirement stems from the moral order as being a space of justification in which human beings are respected qua human beings. In Forst’s terms, it is precisely our common humanity that demands unconditional respect of one another.115 Hence, the generality of reasons calls for a reciprocal recognition of our membership in the moral community.116 Let me put it in these terms: whereas the reciprocity of reasons demands that we see beyond ourselves, the generality of reasons demands that this viewpoint encompasses the whole universe of human beings. On the other hand, procedural generality demands the equal normative authority to take part in the discourse in which the generality of reasons of moral claims is examined.117 This sub-criterion expresses the transition from a monologic approach towards a dialogic approach of moral justification.118 Moral validity claims are scrutinised in a discourse that seeks to guarantee an equal position for all participants.

108 109 110 111 112 113 114 115 116 117 118

Ibid., at 28–9. Forst (note 81), at 6; Forst (note 81), at 28. Forst (note 105), at 22. Forst (note 81), at 28. Ibid. Forst comprises the meaning by indicating that generality requires that “nobody may be excluded from the community of justification,” ibid. See also Forst (note 105), at 22. Forst (note 81), at 6; Forst (note 78), at 20. Forst (note 99), at 54. Ibid., at 60. Forst (note 78), at 20. See ibid.; Rainer Forst, ʻThe Discourse Theory of Morality: “Discourse Ethics – Notes on a Program of Philosophical Justification” (1983)’, in Hauke Brunkhorst, Regina Kreide and Cristina Lafont, eds., The Habermas Handbook (New York: Columbia University Press, 2018), 383–393, at 383, 386–387; Jürgen Habermas, ʻA Genealogical Analysis of the Cognitive Content of Morality’, The Inclusion of the Other (Cambridge: Polity Press, 1998), 3–46, at 33, 39–46.

On the Moral Foundations of a Fair Trial

165

I.2 The Moral Right to Justification At this point, Forst goes further and defends the existence of a basic moral right to justification which is held by all human beings. To argue in favour of this moral right, Forst delineates a genealogy of morality. The starting point is a particular anthropology: human beings, in his view, are justifying beings.119 Since they are equipped with practical reason, they can offer justifications with regard to their beliefs and actions.120 Human beings, in other words, are ‘reason-giving beings’.121 Moreover, they are cognisant of this capacity, not just from a first-person perspective, but also intersubjectively. For a human being may acknowledge that her condition as a justifying being is shared with other human beings simply because they share their humanity.122 This self-understanding, Forst argues leads human beings to assume that qua human beings owe it to other human beings to provide reasons for their actions.123 This picture of human experience carves out the foundation for moral recognition.124 Human beings give reasons to justify their decisions as a gesture of respect for the other members of their moral community in the same way as they ask for reasons from others in order to be respected alike. Consequently, a basic normative standing is constructed intersubjectively, and is enjoyed by every human being qua human being. This basic normative standing is the ground of a moral order, and, according to Forst, has the form of a basic moral right to justification.125 As he has said: The right to justification is […] the right of all rights, because it determines the ground, the form and hence the content of all further rights arguments, whether in the moral or the legal realm.126

In that, the right to justification is “the most universal and basic claim of every human being”.127 At its core is the claim to reciprocally and generally justifiable reasons behind any action that might affect people in a morally significant way.128 This entails an individual claim to participate as an equal in the social practices of justification.129 Forst has progressively developed his argument regarding the moral right to justification. For our purposes, it is useful to distinguish among three dimensions of this 119 120 121 122 123 124 125 126

Forst (note 81), at 1; Forst (note 78), at 13; Forst (note 81), at 28. Forst (note 81), at 1; Forst (note 81), at 21. Forst (note 78), at 13. Forst (note 99), at 54. Ibid., 54–55. Forst (note 81), at 289. Forst (note 99), at 57. Forst (note 105), at 14. See also Rainer Forst, ʻThe Basic Right to Justification: Toward a Constructivist Conception of Human Rights’, The Right to Justification (New York: Columbia University Press, 2012), 203–228, at 210. 127 Forst (note 99), at 57. 128 Rainer Forst, ʻPolitical Liberty: Integrating Five Conceptions of Autonomy’, The Right to Justification (New York: Columbia University Press, 2012), 125–137, at 129–30; Forst (note 127), at 209; Forst (note 78), at 21. 129 Forst (note 127), at 214.

166

Héctor A. Morales Zúñiga

right. First, it has a passive dimension, according to which human beings may ask for reasons that justify the normative order as it relates to them as agents with equal moral standing.130 Secondly, the right to justification has an active dimension, by virtue of which human beings may give reasons in favour of or against a certain action, decision, norm or institution. Thirdly, the right to justification has a reactive dimension, which allows human beings to say ‘no’ to an action, norm, institution or social order that is not reciprocally and generally justifiable.131 The right to justification thus entails a veto right.132 These three dimensions of the right to justification give form to the basic normative standing of the community of justification. Furthermore Human beings, as Forst highlights, are the ultimate ground of morality. They recognise themselves intersubjectively as holders of a moral right to justification and bearers of its correlative duties. This means that there is no moral source beyond our shared humanity. Hence, morality has to be constructed through a discursive practice between moral agents.133 Forst terms this moral constructivism.134 By means of discourse, human beings determine different ways of protecting both their status as agents of justification and other aspects of human life that cannot be reasonably denied.135 Furthermore, discourse turns in on itself to determine its very conditions. Nonetheless, this is not enough: moral constructivism, Forst suggests, needs to be complemented by political constructivism.136 Norms discursively created in a moral context have an abstract character, and so they must be specified. Legal and political structures are therefore built in order to pinpoint the concrete meaning of the protection of the right to justification (e. g. constitutional rights, democracy). Forst sees this as one of the requirements of fundamental justice.137 This point will be highly significant for our argument. To summarise: practical reason, on the first level, requires the provision of normative reasons in order to justify the answers to practical problems. On a second level, it requires a differentiated discursive redemption of practical claims. With regard to the moral context, since claims of moral validity are both categorical and unconditional, they have to be redeemed by fulfilling the criteria of reciprocity and generality. This context is, at the same time, the source of a basic moral right to justification, whose specific content is unfolded by means of moral and political discourses, including the

130 Forst (note 105), at 8. 131 Forst (note 127), at 209–10. 132 Forst (note 129), at 130; Forst (note 81), at 6; Forst (note 78), at 21; Forst (note 81), at 269. On human rights as veto rights, see Forst (note 105), at 112; Forst (note 105), at 22. 133 Forst (note 127), at 214; Forst (note 99), at 49, 54. 134 Forst (note 127), at 215; Rainer Forst, ʻThe Justification of Human Rights and the Basic Right to Justification: A Reflexive Approach’, Justification and Critique (Cambridge: Polity, 2014), 38–70, at 64; Rainer Forst, ʻTransnational Justice and Non-Domination: A Discourse-Theoretical Approach’, Normativity and Power (Oxford: Oxford University Press, 2017), 153–171, at 158. 135 Forst (note 135), at 65. 136 Forst (note 127), at 218; Forst (note 135), at 65; Forst (note 135), at 158. 137 Forst (note 135), at 65; Rainer Forst, ʻTwo Pictures of Justice’, Justification and Critique (Cambridge: Polity, 2014), 17–37, at 35–6; Forst (note 135), at 157. This point will be highly significant for our argument.

On the Moral Foundations of a Fair Trial

167

very conditions of the discourse.138 The next part of this section will bring together these ideas in order to explain why arbitrariness is wrong. II. Human Dignity, Arbitrariness, and the Right to Justification The main value of modern democracies is that of human dignity. Human beings qua human beings enjoy the special status attributed to them by human dignity, which, in addition, is said to be absolute.139 As is common with such foundational concepts, the notion and sources of human dignity are markedly contested. In this regard, Rainer Forst has offered an interesting interpretation.140 In his view, the right to justification is at the core of human dignity: Recognizing [human] dignity means seeing persons as beings who are endowed with a right to justification of all actions or norms that affect them in morally relevant ways – and acknowledging that every moral person has a duty to provide such justification.141

It is common to argue that human dignity has been violated when people lack certain goods. For instance, living in poverty may be considered as a clear case of a violation. In this line, we may say that violations of human dignity depend on what people have. Forst, however, objects to this approach.142 He believes that what constitutes a violation of human dignity in that case stems from having to live in poverty and having been compelled – whether passively or actively – by other human beings to do so. Living in poverty is reasonably rejectable; hence, it is immoral. In contrast to the aforementioned approach, Forst argues that what is at stake here is not having taken into account the interests of those people who live in poverty. Hence, a violation of human dignity stems from negating people’s equal normative authority: it does not depend on what people have, but rather on what people are.143 Whenever a human being is subject to a normative order that cannot be justified to her with both reciprocal and general reasons, human dignity has been violated. Put it another way: When human dignity is violated, the equal

138 Regarding the normativity of practical reason, in general, and of the principle of justification, in particular, Forst follows the Kantian path: reason finds its normativity in itself. For “reason itself is morally binding and imperative; it contains the duty to justify,” Forst (note 81), at 30. That is to say that, for instance, in moral practices, agents of justification know – as part of their practical knowledge – the rules that govern the context (i. e. non-reasonable rejectable norms are binding). Then, we may say that it is a sufficient condition for moral normativity. It is nevertheless possible to make a stronger argument, since by virtue of the principle of justification practical reason is also a necessary condition. As Forst has argued: “[w]ithout practical reason, we lack the cord to tie the morally binding knot,” ibid., at 31. 139 In general, see Jürgen Habermas, ʻThe Concept of Human Dignity and the Realist Utopia of Human Rights’, Metaphilosophy, 41, 4 (2010), 464–480. 140 Rainer Forst, ʻThe Grounds of Critique: On the Concept of Human Dignity in Social Orders of Justification’, Justification and Critique (Cambridge: Polity, 2014), 95–108. 141 Ibid., at 96. 142 Ibid., at 97. 143 Ibid., at 98.

168

Héctor A. Morales Zúñiga

normative standing of people – the right to give and ask for the reasons behind any decision that could affect her in a significant way – is disregarded.144 Let me make a final remark about Forst’s theory. He has contended that: Arbitrary rule or domination appears where persons are subjected to actions, norms or institutions without adequate justification, while the authority to determine what a “good” justification is rests with those subjected, given the principle of justification.145

Here we find the last conceptual piece needed to construct our argument regarding the arbitrary modality to deal with legal disagreements. There is a nexus between the right to justification and the concept of arbitrariness. When the principle of justification is referred to the moral order, arbitrariness constitutes a violation of such a right. Thus, arbitrariness could be seen as a violation of the specific conditions of moral validity (“given the principle of justification”) and particularly of procedural generality – expressed through the aforementioned three dimensions of the right to justification (“the authority to determine what a ‘good’ justification is rests with those subjected”).146 This approach can be enlarged by sustaining that the concept of arbitrariness is connected to the principle of reason as principle of justification. In that, whenever the conditions of redemption of validity claims are infringed, a decision, act or norm can be deemed to be arbitrary. Therefore, it would be possible to differentiate among moral, legal, ethical and political arbitrariness. Although, in some cases these normative orders overlap. Our main concern here is the overlapping of the moral and legal contexts. In this way, when this occurs, legal arbitrariness is tantamount to a violation of the moral right to justification and, consequently, of human dignity. Bearing this in mind, let me now examine legal arbitrariness. III. Legal Arbitrariness Legal arbitrariness, first, stems from a violation of the first level of practical reason, that is to say, from the violation of the duty to give justifying reasons to support practical answers. Furthermore, legal arbitrariness, secondly, stems from a violation of the specific conditions of validity of the legal order. These conditions, as seen above, are reconstructed through the principle of reason – as reflexive principle – from the very social practice of legal justification. In Hartian terms, it might be said that the object of such a reconstruction is the ‘rule of recognition’.147 Within this rule, the moral and legal contexts may dialogue, so to speak. Admittedly, discerning the relationship between moral 144 For a critical perspective, see Marcus Düwell, ʻFrankfurt Goes Kantian But How Does It Work?’, Netherlands Journal of Legal Philosophy, 45, 3 (2016), 29–39. 145 Rainer Forst, ʻA Kantian Republican Conception of Justice as Non-Domination’, in Andreas Niederberger, ed., Republican Democracy: Liberty, Law and Politics (Edinburgh: Edinburgh University Press, 2015), 154–168, at 155. 146 Forst defends that only in moral contexts there is a moral right to justification, Forst (note 81), at note 14. 147 Hart (note 16), at 100–10.

On the Moral Foundations of a Fair Trial

169

and legal contexts is one of the most discussed topics in legal philosophy. I will restrain myself here to making only a few elementary remarks. One might argue that legal reasoning boils down to moral reasoning. If this is the case, then all the features of the moral context that have been depicted might as easily be extended to the legal one. Yet, this alternative has to be rejected since modern legal systems serve a differentiated function than that of morality.148 A further option would be to state that legal reasoning is a special case of moral reasoning, a view that has been attached to Robert Alexy.149 Jürgen Habermas criticised it by claiming that, in the application of legal norms, judges are linked to the citizens’ communicative power as it is embodied in legislation; since legislation also includes ethical and pragmatic concerns, legal reasoning exceeds moral reasoning.150 Moreover, Habermas emphasises that, in courtroom proceedings, the parties are not committed to a “cooperative search for truth”; rather, they try to realise their own interests.151 Alexy’s answer to Habermas leads to a third alternative, according to which legal reasoning is a special case of general practical reasoning.152 Alexy believes that, in general practical reasoning, moral, ethical, and pragmatic reasons interplay. Legal reasoning differs from general practical reasoning because it is subject to institutional constraints.153 Here, I shall introduce a subtle difference. In my opinion, legal context is a special case of practical reasoning and, in modern constitutional democracies, has an immanent relationship with the moral context.154 In my view, morality is immanent to legal orders, for law is a way to institutionalise the basic moral right to justification. To be sure, law is more than that, but in an important dimension, it articulates the basic structures of justification. The form of settling legal disagreements is a sphere in which such structures are expressed and hence where law and morality overlap. This section has posed the following question: what is it wrong with legal arbitrariness? We have reached an answer: legal arbitrariness is wrong because it violates the right to justification and, consequently, human dignity.

148 Jürgen Habermas, Between Facts and Norms (Cambridge: Polity Press, 1996), at 233. 149 Ibid., at 230–1. 150 Ibid. See also Maeve Cooke, ʻLaw’s Claim to Correctness’, in George Pavlakos, ed., Law, Rights and Discourse (Oxford and Portlan, OR: Hart Publishing, 2007), 225–247. 151 Habermas (note 149), at 231. 152 Robert Alexy, ʻJürgen Habermas’s Theory of Legal Discourse’, Cardozo Law Review, 17 (1996), 1027–1034, at 1033–4. See also Robert Alexy, ʻThe Special Case Thesis’, Ratio Juris, 12, 4 (1999), 374–384, at 378; Robert Alexy, ʻThirteen Replies’, in George Pavlakos, ed., Law, Rights and Discourse (Oxford and Portland, OR: Hart Publishing, 2007), 333–366, at 352–6; 153 Alexy (note 28), at 16, 212. 154 I limit the scope of my statement to a specific way of arranging political communities: constitutional democracy. In that way, I distance myself from the thesis that defends a necessary connection between law an morality. Robert Alexy, ʻThe Dual Nature of Law’, Ratio Juris, 23, 2 (2010), 167–182, at 168–73.

170

Héctor A. Morales Zúñiga

IV. Integrative Arbitrariness, Legal Disagreements, and Human Dignity The concept of arbitrariness suggested earlier, integrative arbitrariness, is connected with the concept of legal arbitrariness that comes from Forst’s reading of discourse theory. This connection will contribute to clarify why an arbitrary modality of settling legal disagreements is wrong. As we recall, integrative arbitrariness is composed of the lack of normative reasons, framed reasons, justifying reasons, internal justification, and a fair procedure. As to the lack of normative reasons, the link is obvious: it corresponds to an infringement of the first level of practical reason. The social game of giving and asking for reasons in practical contexts has to be founded on normative reasons, that is to say, reasons that count in favour of or against a practical answer.155 The lack of framed reasons, in turn, relates directly to the principle of justification. In the context of legal adjudication, it is tantamount to the lack of external justification (i. e. the validity of the premises).156 The principle of justification demands that legal decisions – among them, those concerning legal disagreements – be taken in accordance with the specific framework of a legal order. As we know, the content of this framework stems from the reconstruction of the concrete practices of legal justification. In some cases, moral criteria may overlap with legal criteria (i. e. legal reasons would amount to shareable reasons). Legal defeasibility, as long as it leaves room for reasonably non-rejectable reasons (i. e. moral reasons), is an example of this. In other cases, they do so but only partially. For instance, we may say that constitutional democracies demand procedural generality as one of the criteria of legal correctness. And, in other cases, they do not coincide at all. For instance, when certain legal decisions rely on mere bargaining. With regard to the lack of justifying reasons, we may argue that it is coupled with the first level of practical reasons. Although Forst does not appear to make a distinction between normative or justifying reasons, here, we can analytically draw it. On a first level, practical reason demands both pro tanto and pro toto reasons. In this sense, one could contend that in order to avoid this sort of arbitrariness, the right to justification requires a form of weighing pro tanto reasons (e. g. proportionality test).157 As far as the lack of internal justification is concerned, we can identify a partial overlap with moral justification. One of the criteria of the moral context of justification is reciprocity of content, by virtue of which a norm with a universal structure is needed. In legal adjudication, this formal requirement of justice is precisely tantamount to legal syllogism – internal justification –, demanding a universal norm as normative premise to ground a decision.158

155 See Forst (note 78), at 14–5. I put aside the problem as to the status of instrumental rationality (‘rational grounding’). 156 Wróblewski (note 27), at 43; Alexy (note 28), at 230. 157 Matthias Klatt, ʻProportionality and Justification’, in Matthias Klatt and Ester Herlin-Karnell, eds., Constitutionalism Justified (Oxford: Oxford University Press, forthcoming). 158 Alexy (note 28), at 222.

On the Moral Foundations of a Fair Trial

171

Finally, the lack of a fair procedure relates to the requirement of the principle of justification of redeeming the normative claims in a space of reasons in which the equal right to take part on it be respected. In legal order, it might be argued, the source of normativity of practical answers relies also on human beings who settle their legal disputes in an intersubjective discourse. As has been maintained by Habermas: The rightness of legal decisions is ultimately measured by how well the decision process satisfies the communicative conditions of argumentation that make impartial judgement possible.159

The communicative conditions should, I would add, guarantee the active, passive, and reactive dimensions of the right to justification. Furthermore, as we can recall, legal defeasibility was offered as a case of adjudicative operation that triggers multiple legal disagreements. It offers an example of the demand for a particular kind of legal procedure as well. Let me explain the point briefly. If we assume that law is ruled by the principle of universalization and, as seen previously, law is mainly general, then we have to assume the fragmentation of this principle. On the one hand, a principle of universalization – as principle of reciprocal-justification – that requires that “the consequences and side effects which a general observance of the norm can be anticipated to have for the interests of each individual be acceptable to all”;160 and, on the other hand, a principle of universalization –as principle of application– that requires that “all the features be considered in an individual application situation”.161 The latter demands a particular configuration of legal adjudication. If this procedure is not struck, then we have another case of arbitrariness. In consequence, integrative arbitrariness may be understood as an infringement of the right to justification and, then, of human dignity. Since an arbitrary modality of dealing with legal disagreements is defined by integrative arbitrariness, its wrongness lies in being a violation of this moral basic right and of the cardinal normative ground of constitutional democracies: human dignity. If a legal order intends to fulfil the requirement of institutionalising the moral right to justification and observe human dignity, it has to take a different path for settling legal disagreements. The next section closes our reconstruction by defending that a fair trial constitutes such a path. Part Four: Fair Trial and Human Dignity A fair trial is a non-arbitrary modality of settling legal disagreements. Fair trials contribute to the institutionalisation of the right to justification, and, consequently, to the protection

159 Habermas (note 149), at 231. 160 Günther (note 64), at 38. 161 Ibid.

172

Héctor A. Morales Zúñiga

of human dignity. I shall label this modality a dignity-based modality. A dignity-based modality aims to neutralise the components of an arbitrary modality.162 Ignoring this aspect of court proceedings has been a mistake made by some scholars. Habermas constitutes an example for such: he defends the fact that legal procedures of application “more or less” include the discourse principle.163 However, he focuses almost exclusively on the ‘less’, suggesting that court proceedings do not aim to institutionalise legal discourse, rather they are the “framework that clears the way for processes of communication governed by the logic of application discourses”.164 As a result, Habermas sees parties as information-providers, who are not constitutive elements upon which judicial decisions can be grounded.165 Procedural law, then, cannot be understood as containing the standards of a rational discourse. If Habermas had concentrated on the ‘more’, he may have seen how court proceedings contain an important moral dimension. To be sure, this does not mean that court proceedings only aim to realise the universal requirements of moral discourse; however, in a relevant way they do so.166 This is precisely what is embodied in the idea of a fair trial. A fair trial as a discursive structure is composed of multiple elements. In the first section of this paper, I introduced four of them: the right to be heard, the duty to give reasons, judicial impartiality, and the right to appeal. I will now conclude this work by explaining how each of these components makes the moral right to justification practical. I. The Right to Be Heard The right to be heard endows the parties with the faculty to contest both factual and normative aspects of the case. From a general perspective, Mathilde Cohen proposes the following: If the rule of law is to be actually a protection against arbitrary intervention in people’s lives, in practice, it is insufficient to demand that there be rules of laws and public institutions applying them. It is also necessary that some reasons be given to individuals threatened with action making legal decisions challengeable. Citizens must be able to contest each justification and offer counter-arguments if they so desire to the effect that whatever may be the official rationale for the decision, it becomes possible to argue that it does not warrant the resulting decision.167

162 Furthermore, since a dignity-based modality is not reasonably rejectable, it has the nature of a human right. In other terms, the right to have a fair trial is a human right. 163 Hugh Baxter, Habermas (Stanford, CA: Stanford University Press, 2011), at 114. 164 Habermas (note 149), at 235. 165 Ibid., at 231. See also Alexy (note 153), at 376–7. 166 For the place of strategic considerations, see Alexy (note 28), at 219–20. 167 Mathilde Cohen, ʻThe Rule of Law as the Rule of Reasons’, Archiv fur Rechts- und Sozialphilosophie, 96, 1 (2010), 1–16, at 7.

On the Moral Foundations of a Fair Trial

173

This general requirement of the rule of law is fulfilled in legal adjudication through the right to be heard. This right allows the parties to be dialogically involved in the process of settling a legal disagreement. Furthermore, this right is considered to be a rule of general rational practical discourse.168 As part of the basic structure of justification, the right to be heard protects, on the one hand, the equal position of those potentially affected by a discourse of application, and, on the other hand, the active dimension of the right to justification. The right to be heard provides parties with an institutionalised opportunity to provide reasons in favour of their positions, including the chance to criticise the arguments of their adversaries. Therefore, we may say, the right to be heard attempts to neutralise arbitrariness as a lack of a fair procedure169. The details of the institutional articulation of this right are contingent. For example, it may include rights such as the right to be present, to take part effectively in the trial, to an adversarial trial, or to publicity. In any case, one of the most important rights is the right to ‘equality of arms’. The European Court of Human Rights (ECtHR) has affirmed that: the principle of equality of arms – one of the elements of the broader concept of a fair trial – requires each party to be given a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent.170

This definition is coincident with what we termed procedural generality171 and with the principle of universalization as a principle of application.172 In this way, we can argue, the right to be heard is a clear protection of human dignity. Jeremy Waldron has also stressed the point: Courts, hearings, and arguments –those aspects of law are not optional extras; they are integral parts of how law works, and they are indispensable to the package of law’s respect for human agency. To say that we should value aspects of governance that promote the clarity and determinacy of rules for the sake of individual freedom but not the opportunities for argumentation that a free and self-possessed individual is likely to demand, is to slice in half, to truncate, what the Rule of Law rests upon: respect for the freedom and dignity of each person as an active intelligence.173

In Fort’s terms, the right to be heard is an institutional form of respecting human beings qua justifying beings.

168 Alexy (note 28), at 193. 169 For a non-instrumental view of the right to be heard, see R. A. Duff, Trials & Punishments (Cambridge: Cambridge University Press, 1986), at 110–119. 170 Kress v France, no. 39594/98, 7 June 2001, para. 72. 171 At 164. 172 Ibid. 173 Waldron (note 1), at 23 (italics added).

174

Héctor A. Morales Zúñiga

II. The Duty to Give Reasons The duty to provide reasons contributes to the institutionalisation of the right to justification as well. There are pragmatic and legal ways to ground this duty.174 Here, I put forth a moral argument. First, the duty to give reasons imposed on judges fulfils the legitimate claim not to be ruled by decisions that are not based on reasons. We termed this the passive side of the right to justification. As stated by the ECtHR in Tatishvili v Russia: judgments of courts and tribunals should adequately state the reasons on which they are based […] Even though a domestic court has a certain margin of appreciation when choosing arguments in a particular case and admitting evidence in support of the parties’ submissions, an authority is obliged to justify its activities by giving reasons for its decisions […] A further function of a reasoned decision is to demonstrate to the parties that they have been heard. Moreover, a reasoned decision affords a party the possibility to appeal against it, as well as the possibility of having the decision reviewed by an appellate body. It is only by giving a reasoned decision that there can be public scrutiny of the administration of justice […].175

Thus, insofar as this duty paves the way for an eventual appellation, it fosters in addition the reactive dimension of the right to justification. Arbitrariness as the lack of a fair procedure is neutralised in this way. Secondly, this duty also may include a protection against arbitrariness as the lack of framed reasons – and, implicitly, of normative reasons. Consider the following paragraph: The Court shares that view and therefore considers that the Bar Council did not give the applicant’s case a fair hearing inasmuch as the reason it gave was not a legally valid one.176

Here, the ECtHR did not argue that the Bar Council had not provided reasons; rather, it argued that Bar Council had not provided framed reasons. Thirdly, since I have assumed a strong version of the duty to give reasons,177 this duty thirdly protects against arbitrariness as the lack of a fair procedure. Providing the reasons required by the principle of justification is not enough. They must also be communicated to the case parties. In this way, the parties may examine whether or not the decision on the legal disagreement complies with the principle of justification. The ECtHR has also made reference to this aspect of the duty: The public character of proceedings before the judicial bodies […] protects litigants against the administration of justice in secret with no public scrutiny; it is also one of the means whereby confidence in the courts, superior and inferior, can be maintained. By rendering the administration of justice visible, publicity contributes to the achievement of the aim of [..] a fair trial, the 174 175 176 177

Alexy (note 28), at 214–6. No. 1509/02, 22 February 2007, para. 58. Moor v Belgium, no. 16997/90, 23 June 1994, para. 55 (italics added). At 147.

On the Moral Foundations of a Fair Trial

175

guarantee of which is one of the fundamental principles of any democratic society, within the meaning of the Convention […].178

As a consequence, this duty doubly secures the reactive side of a right to justification. In brief: by having courts to provide reasons for their decisions, human dignity is safeguarded. So, the duty to give reasons is justified not only by instrumental and pragmatic reasons, but also, and most importantly, by moral considerations. III. Judicial Impartiality Judicial impartiality is intended to prevent external factors – whether these are personal or institutional – from having an influence on the decision of a case. So, first, it attempts to forge a shield against prejudice and bias. Secondly, it tries to prevent personal concepts of the good or political preferences from having a strong impact on the assessment of a case. As has been argued by Barkhuysen et al: although judges may have a political preference and/or adhere to a specific religion or philosophy of life, and although it is right that the various political streams, religions and philosophies of life are also ‘represented’ within the judiciary, it must not make any difference for the person involved whether he is tried by a judge with one or the other preference.179

To a certain extent, this is contingent. Since the specific framework is to be reconstructed from the concrete legal game of justifications, prima facie, all type of reasons are plausible. However, under democratic conditions, it might be argued that attributing discretion to judges to solve legal disagreements in accordance with their prejudices, bias, conceptions of the good, and political preferences should be proscribed. Those criteria are not within the legal framework (i. e. legal reasons in some circumstances coincide with shareable reasons). Thirdly, judicial impartiality – under my broad understanding – also entails the resistance to institutional pressures. The ECtHR has sustained, for example: the Court can but note that the Ukrainian authorities acting at the highest level intervened in the proceedings on a number of occasions. Whatever the reasons advanced by the Government to justify such interventions, the Court considers that, in view of their content and the manner in which they were made […] they were ipso facto incompatible with the notion of an “independent and impartial tribunal” within the meaning of Article 6 § 1 of the Convention […] Coming from the executive branch of the State, such interventions nonetheless reveal a lack of respect for judicial office itself.180 178 Pretto and Others v Italy, no. 7984/77, 8 December 1983, para. 21. 179 Tom Barkhuysen, Michiel van Emmerik, Oswald Jansen and Masha Fedorova, ʻRight to a Fair Trial’, in Pieter van dijk, Fried van Hoof, Arjen van Rijn and Leo Zwaak, eds., Theory and Practice of the European Convention on Human Rights (Cambridge: Intersentia, 2018), 497–654, at 602. 180 Sovtransavto Holding v Ukraine, no. 48553/99, 25 July 2002, para. 80.

176

Héctor A. Morales Zúñiga

Courts thus have to be insulated from pressure from other State bodies. Cases have to be decided according to legal reasons, without taking other types of considerations into account. Consequently, judicial impartiality protects against arbitrariness as the lack of framed reasons, and, in that way, fosters the principle of justification. As seen above, this is one of the aspects of the right to justification, so, we can again sustain that, by means of this third element of a fair trial, human dignity is secured. IV. The Right to Appeal The right to appeal gives the parties the opportunity to challenge the decision made by courts. It is the corollary of grounding the modality of settling legal disagreements in the right to justification. The right to appeal allows human beings to determine whether a decision has been taken arbitrarily. In these terms, the right to appeal protects the reactive side of the right to justification. Without it, the veto right is affected. The right to appeal may be considered a direct shield against arbitrariness as lack of fair procedure, as well as an indirect shield against the other types of arbitrariness. For example, arbitrariness as lack of internal justification may be controlled in this way as well as the lack of justifying reasons. Having said that, in some justified circumstances, other kind of considerations may prevail over the right to appeal. For instance, flexibility, legal certainty, and efficiency. As a consequence, the ECtHR has been less stringent with the requirement of a right to appeal: The Court reiterates that the Contracting Status dispose in principle of a wide margin of appreciation to determine how the right secured by Article 2 of Protocol No. 7 to the Convention is to be exercised. Thus, the review by a higher court of a conviction or sentence may concern both points of fact and points of law or be confined solely to points of law. Furthermore, in certain countries, a defendant wishing to appeal may sometimes be required to seek permission to do so. However, any restrictions contained in domestic legislation on the right to a review mentioned in that provision must, by analogy with the right of access to a court embodied in Article 6 § 1 of the Convention, pursue a legitimate aim and not infringe the very essence of that right […]181

The right to appeal aims to preserve human dignity, but it may also collide with other values or even with other mechanisms that aim to protect human dignity. In this sense, affirming that the moral foundations of a fair trial lie in this fundamental value does not mean that its elements cannot be limited. However, if that is the case, an intense burden of argumentation is placed upon those who intend to restrict it.

181 Krombach v France, no. 29731/96, 13 February 2001, para. 96. For the regulation of the right to appeal under the European Convention on Human Rights, see Peter D. Marshall, ʻA Comparative Analysis of the Right To Appeal, Duke Journal of Comparative & International Law, 22, 1 (2011), 1–46, at 24–7.

On the Moral Foundations of a Fair Trial

177

Concluding Remarks The paper has sought to reconstruct the moral foundations of a fair trial. I confined myself to the consideration of four elements: the right to be heard, the duty to give reasons, judicial impartiality, and the right to appeal. Relying on a picture of legal adjudication – deliberative jurisprudence – I sustained that there are different ways of settling legal disagreements that emerge in the context of adjudicative operations. By making use of legal defeasibility, I offered an account of what I termed an arbitrary modality of dealing with legal disagreements. This way was characterised as being defined by integrative arbitrariness. In addition, I stated that the arbitrary modality is morally wrong since it does not respect human dignity. To arrive at this conclusion, I drew on Forst’s concept of practical reason and the right to justification. Finally, I defended the fact that a fair trial is an alternative modality of settling legal disagreements – a dignity-based modality – that intends to neutralise the arbitrary modality. This was demonstrated by showing how the aforementioned elements of a fair trial aim to prevent different aspects of integrative arbitrariness. Therefore, I claimed, the moral foundations of a fair trial lie in the protection of human dignity. The argument developed in this paper are subject to certain restrictions. First, this text addresses only four elements of a fair trial. However, in my opinion, the other components as well as their details allow the matter to be reconstructed in the same way. Secondly, this argument limits itself to legal disagreements and, in particular, to legal defeasibility. Again, in my view, what has been maintained here can be applied to other adjudicative operations. Thirdly, it might be objected that modern trials are complex phenomena that do not resist being reduced to one rationale. I agree. It cannot be denied that court proceedings leave room for instrumental rationality too, e. g. bargaining, mediation, etc. Nevertheless, in my opinion, at the core of a trial is the idea that ‘active intelligences’ discuss how a case should be decided in accordance to the legal framework, in a dialogical procedure that respects their equal normative standings. If this is true, then human dignity is what is at stake when we talk about a fair trial.

The New Role of Extra Legal Principles A Comparative Overview Giulia Terlizzi1

Introduction Law alone cannot predict everything, so it is of extreme importance to look beyond and use general principles that refer, for example, to morality or common sense. However, in contemporary western legal systems, recourse to the open clause of good morals seems to be going through a crisis. The role of general clauses as a tool for the law is always suspended between two opposing needs: the opening up to values on one hand, and the certainty of law on the other. This article will analyse the transformation of the content and the role of the morality clause in contemporary, secularized and pluralist society, and the abandon of a deontological conception of “morality” because of the impossibility to refer to a univocal moral conception shared by society. The factors involved in this decline of the morality clause seem linked to the risk of excessive subjectivism in the interpretation of the morality clause by tribunals. This task becomes increasingly difficult in contemporary legal systems based on ethical and social pluralism, on one hand, and on the increased power of private autonomy on the other. This is clear within family law, where the prevalence accorded to the principle of self-determination, along with the affirmation of a pluralism of values, has literally eroded the “extra-legal” value of good morals. Starting with the analysis of some legal systems and civil codes that have been recently reformed, the paper will describe the erosion of the “independent” and “extra-legal” content of the morality clause and its almost complete incorporation in the principle of dignity, which is more neutral. From an approach aimed to a “moralization of law”, now the shift to a sort of “juridicization” of morality is clear, which draws its content from positive law, through reference to the principle of public order initially and reference to the principle of dignity as a constitutional value. Common moral standards therefore seem to be represented by rules and principles formulated by the legal system in their codes and Constitutions; nevertheless, at least 1

Department of law, University of Torino, research scholar at Paul André Crepeau Center for private and comparative Law, McGill University, Montreal.

180

Giulia Terlizzi

three questions remain open: could this process represent the final and definitive separation of law and morals? Can the law (family law and bio-law) play its role abandoning moral implications? And at last, is it possible to set “common moral standards” enforceable in the pluralistic society? Part One: From “Good” Morals to “Public Order”: the Experience of Quebec and France If, on one hand, the deontological theory of the notion of good morals – historically linked to a morality based on a religious ideal – can be considered abandoned nowadays; on the other hand even the sociological theory2 of “good morals” – referring to the set of rules of social behavior commonly accepted by collectivity – seems to be overcome in contemporary legal systems. The consecration of the subject’s freedom in the private and family sphere has caused the decline of the concept of “good” morals. Recognition of the principle of self-determination and consequent freedom to determine one’s own customs of life and to keep them secret creates an obstacle for the law, which is no longer entitled to intervene in order to dictate “good” conduct. If customs are free and private, they cannot be object of another’s judgement and they do not have to be “good”. In this sense, freedom condemns the autonomous and extra-legal notion of “good morals”, recognizing public interest, therefore, public order as being the unique legitimate limitation to the principle of self-determination. This shift marks a first important transformation: the general clause of “good morals” has a new and diverse interpretation, which is increasingly connected to the public order clause. This phenomenon – broadly recognized in the legal doctrine – marks an undeniable trend from a “moralization” of the law, to a “juridicization” of the morality in contemporary legal systems3. According to a French legal scholar: “l’analyse des moeurs, en conduisant à l’abrogation formelle de ces “bonnes” mœurs et à l’insuffisance d’une détermination “coutumière” des “mauvaises” mœurs, renvoie l’interprète à un nouveau mystère, celui de l’ordre public”4. Prevalence accorded to the principle of self-determination, together with the establishment of a plurality of values, has eradicated “good morals”, whose function is con-

2

3

4

See, among the major contributions of the sociological theory in the legal doctrine, the work of René Demogue, Traité des obligations en géneral, Sources des obligations, (Paris: Rousseau et c., 1923); for the Italian legal doctrine see Francesco Ferrara, Teoria del negozio illecito nel diritto civile italiano, (Milano: SEL, 1914). On the phenomenon of “juridification” of moral principles, see Giorgio Resta, ‘Human Dignity’ ( June 20, 2015), McGill Companion to Law, available at SSRN: https://ssrn.com/abstract=2585323; Jackie Jones, ‘Human dignity in the EU Charter of fundamental rights and its interpretation before the european court of justice’, (2012) Liverpool Law Review, 33 (3), 281–30, available from: http://eprints.uwe.ac.uk/19087. See Dominique Fenouillet, Les bonnes mœurs sont mortes! Vive l’ordre public philantropique!, in Le droit privé français à la fin du XX siècle, (Paris: Litec, 2011), at 493.

The New Role of Extra Legal Principles

181

fined to those customs, which are unacceptable for social order; in other words, only if such actions are considered to be contrary to public order5. This is evident in private law and family law. As rightly observed by a French doctrine: the law’s growing resistance to interfere with contractual autonomy in the name of traditional moral conceptions has led judges to declare as unlawful (also emphasizing the non-contradiction to public order) gifts made due to an adulterous relationship, or the contract with a marriage broker concluded by a married man6. However, the remaining hypotheses of application are now absorbed in the sphere of public order. In this sense, both in France and Québec, judges declared “A contract whereby a woman undertakes to procreate or carry a child for another person is therefore absolutely null because contrary to public order”7. Common morality seems therefore to coincide with legal morality, because the morality expressed by the legal system is the only morality which the judge may be interested in. From this point of view, it is worth mentioning the experience of some legal systems which, opting for a radical break with the previous legal tradition, have – even formally – opted for the erosion of the clause of good morals, eliminating the notion from the text of their civil codes. In this respect, the experience of Québec is significant. Here the legislator, aware of the loss of the original autonomy of “good morals” in the common perception of

5

6

7

See Fenouillet, Les bonnes mœurs sont mortes! Vive l’ordre public philantropique!, (n. 4), at 489. See also in the Italian literature Andrea Nicolussi, ‘Lo sviluppo della persona umana come valore costituzionale e il cosiddetto biodiritto’, in Europa e diritto privato 1/2009, 1–58, at 9; Luca Nivarra, ‘Autonomia (bio) giuridica e tutela della persona’, in Europa e diritto privato, 3/2009, 719–754, at 732. See in French case law, Cass. Civ., 3 février 1999, in Bull., I n° 43: “Il n’est pas contraire aux bonnes moeurs la cause de la libéralité dont l’auteur entend maintenir la relation adultère qu’il entretient avec le bénéficiaire”. Cass., 1 ch. Civ., 25 janvier 2000; arrêt inédit du 16 mai 2000, du 29 janvier 2002 n° 11¸ Ass. Plén., 20 octobre 2004, n. 03–11.238; in Bull. ass.plén. n. 12; Paris 2ème ch. 5 octobre 1999; arrêt du 3 février 1999, Versailles 1ère ch. 10 février 2000, in Jurisdata n° 2000–168129 : “le caractère adultérin d’une liaison ne constitue pas le critère de l’illicéité de la libéralité, et une libéralité faite pour maintenir une relation adultère n’est pas contraire aux bonnes mœurs”; Aix-en-Provence 30 mars 2000, in Jurisdata n° 2000–126874, : “une donation indirecte d’un immeuble est licite puisqu’intervenue au cours d’un concubinage qui a duré près de deux ans et, sans que soit démontrée la volonté de rémunérer cette relation, conforme aux bonnes mœurs”; Bordeaux 1ère ch. 12 octobre 2000, in Jurisdata n° 2000–127893; Paris 2ème ch. 31 janvier 2002, in Jurisdata n° 2002–167936; Paris 15ème ch. 28 février 2003, in Jurisdata n° 2003–206981. See also, Cass., 1 ch. Civ., 4 novembre 2011, n. 10–20.114; in Bull. Civ. I, n. 191: “Le contrat proposé par un professionnel, relatif à l’offre de rencontres en vue de la réalisation d’un mariage ou d’une union stable, qui ne se confond pas avec une telle réalisation, n’est pas nul, comme ayant une cause contraire à l’ordre public et aux bonnes moeurs, du fait qu’il est conclu par une personne mariée”. In the Italian case law, see Cass., 8 giugno 1993, n. 6381, in Corriere giuridico; 8/1993, 947–951, Cass., 8 giugno 1993, n. 6381, in Corriere giuridico, 1993, 947;Cass., 14 giugno 2000, n. 8109, in Famiglia e diritto, 2000, 429; Cass. 13 gennaio 1993, n. 348, in Giurisprudenza italiana, 1993, I, 1, 1670, Trib. Napoli, 18 giugno 1990, in Giurisprudenza di merito., 1991, 15; Cass. Civ., 21 dicembre 2012, n. 23713, in I contratti, 2013, 3, 221–230. Trib. Torino, sez VII, ord. 20 aprile 2012, in Famiglia e diritto, 2012, 803 e ff.; Cass. 13 gennaio 1993, n. 348, in Corriere giuridico, 1993, at 822. 1445, 2014 QCCA 1162.

182

Giulia Terlizzi

Quebec society8, has adapted the provisions of the civil code to the “nouvelle moralité contractuelle”9. Since the late ‘50s, the legislator implemented a process of revision of Québec’s private law, which has culminated with the elimination of the “good morals” (bonnes moeurs) clause as a limitation to the power of contractual autonomy10. The new Québec Civil Code (issued in 1994) no longer mentions the good morals clause, since this notion is “in any case assimilated to the public order”11. The radical choice made by the Québec legislator is not unique. Twenty years later during the recent reform of contracts, the French legislator “literally” abandoned the clause of good morals, as a limitation of contractual freedom, eliminating it from the text of the civil code. The new Article 1102 c. c. states in the second paragraph that the “contractual freedom does not allow the parties to derogate from rules of public policy”. French legislators intended to make the many notions of the code more accessible through a deliberate operation, making the vocabulary of law more accessible to contemporary language. If, on the one hand, the choice to abandon the notion of the good morals clause is – as stated by some commentators – linked to reasons of “linguistic obsolescence”12, on the other hand, it is interesting to note that the notion itself has been deleted and not replaced with other formulas in the code’s provision. In this sense, the legislative choices illustrated above show a clear signal of the victory of the “normative” conception of the general clause of “good morals”, no longer shaped by extra-legal elements or belonging to extra-legal spheres (ideal, religious, philosophical). It is therefore only in the name of public order that French and Quebec judges will continue to exercise their control over the legality of contractual freedom13. The outcome of this operation can only be the “fragmentation” of public order, or – more precisely, the creation of a “multiform public order”. When recalling the public order clause, the legislator extends its capacity in the widest and most functional way, including all the limits to the autonomy of the parties, including that of good morals14. In Quebec, as in France, judges and legal scholars refer now to the “moral public order” to sanction those contracts which, compared to the generally accepted values, are con-

8 9 10 11 12 13 14

Sous-commission des institutions, 18 septembre 1991 N. 11, Étude détaillée du projet de loi 125 – Code civil du Québec (9), in Journal des Débats, Commissions parlementaires, Assemblée Nationale, première session, XXXIVème législature, Québec. See, Jean-Louis Baudouin, Les obligations, (Cowansville: Éditions Yvon Blais, 1983), at 12, § 13. L. Q. 1991, chap. 64. See LA Civ Code, Art. 1968 Unlawful cause. ‘The cause of an obligation is unlawful when the enforcement of the obligation would produce a result prohibited by law or against public policy’,Acts 1984, No. 331, § 1, eff. Jan. 1, 1985. See, among the first comments to the French reform in the Italian literature, Guido Alpa, ‘Note sul progetto francese di riforma del diritto dei contratti’, in Rivista critica del diritto privato, 2015, 177–202, at 188. See, François Chénedé, ‘La réforme du droit des contrats’, in AJ Famille 2016, at 129. See Mustapha Mekki, ‘Les principes généraux du droit des contrats au sein du projet d’ordonnance portant sur la réforme du droit des obligations’, in Recueil Dalloz, 2015, at 816. See Jean Houser-Jean Jacques Lemouland, Repertoire de droit civil, Ordre public et bonnes mœurs, (Paris : Dalloz, 2015 [actualisation 2016]); Fenouillet, Les bonnes moeurs sont mortes, vive l’ordre public philanthropique, (n. 3) at 487 ff.

The New Role of Extra Legal Principles

183

sidered immoral15. The recourse to the economic public order (of protection and direction) aims to protect the economic interests of society and the person; finally, the politic public order absorbs any case involving the democratic organization of society. Consequently, a large number of contracts that were illegal in the past because they favoured the fulfilment of immoral and reprehensible acts16, today fall, more “conveniently”, in contracts classified as contrary to public order17. Following the French experience, the widening and consequent fragmentation of the notion of public order at the expense of the autonomy of the good morals clause is now widely acknowledged in Italy as well. Public order expresses the fundamental ethical principles of the legal system18; its multiple expressions – such as political public order, economic public order, moral public order, and philanthropic public order – contribute to building a general principle of public order able to protect interests pertaining not only to the public sphere, but also to the personal and individual sphere19. At a pragmatic level, the erosion of the notion of “good morals” is a common phenomenon widespread in much of contemporary legal systems. Nevertheless it should be emphasized that the choice made by lawmakers both in Quebec and France marks a radical point of no return in the evolution of the clause of good morals or, more precisely, in its transformation. These radical choices ratify the definitive decline of an autonomous notion of “good morals” as an extra-legal principle, and the consequent transformation (both on its content and function) of the limits of private autonomy. Part Two: From Public Order to Human Dignity: the New Role of the Extra-legal Principles The public order clause is now used as a limit to the freedom of customs; it is also entrusted with the protection of the human person. However, in this context, even the traditionally public order, in its various and recent declinations, does not appear to be a limit – convincing and acceptable – to the freedom of customs. This task can be carried out by the value of human dignity, which is the basis of a new public order (the philanthropic public order) that protects the person in their individual and relational sphere. In this sense, protection of personality rights, the discipline of personal relationships 15 See Jean Pineau, Serge Gaudet and Danielle Burman, Théorie des obligations, (Montréal : Thémis, 1996), at 256. 16 In the case law, see, Webster v. Kelly, (1891) 7 M. L. R. C. S. 25; McKibbin v. Mc Cone, (1899) 16 C. S. 126; Bruneau v. Laliberté, (1901) 19 C. S. 425; Lecker v. Balthazar, (1909) 15 R. J. 1; Noël v. Brunet, (1915) 48 C. S. 119 Langelier Ltée v. Demers, (1928) 66 C. S. 120; Hébert v. Sauvé, (1932) 38 R. L. (n. s.) 410 (C. S.). 17 See Baudouin, Les obligations, (n. 9), at 128. In Québec case law, see Boucher c. Laundry, 27-8-2004, n. 605-32-001736-049. 18 With reference to the notion of ordine pubblico in Italian law see Umberto Breccia, ‘Causa’, in Alpa-Breccia-Liserre (eds.), Il contratto in generale, III, in ‘Trattato di diritto privato’, XIII, (Torino: Giappichelli, 1999) at 178. 19 See for the Italian case law, Cass., Sez. Un., 8 maggio 1976, n. 1609, in Il Foro italiano, 1976, I, 1851; Cass., 23 maggio 1987, n. 4681, in Giurisprudenza italiana, 1988, I, 1, 60.

184

Giulia Terlizzi

within the family, rules on civil status and so on, are protected by a new general principle loudly proclaimed by supranational sources and Constitutions of the Member States of the Union: the principle of human dignity. Many practices, which were once condemned on the basis of a good morals clause, are sanctioned today through reference to the notion of dignity, which is also welcomed and reiterated by the most authoritative legal scholars20. European law participates in this process. Starting with a traditional notion of public order, it moves towards a concept of public order based on fundamental rights, increasingly resorting to the principle of dignity21. The Charter of Fundamental Rights of the European Union states in its first article that “human dignity is inviolable”22. The Convention for the Protection of Human Rights and Human Dignity in the Applications of Biology and Medicine (more generally known as the Oviedo Convention) recalls in its Preamble the importance of ensuring the dignity of the human being, and proclaims at art. 1 the protection of the human being in their dignity and identity23. The principle of dignity is also relied on in relations between individuals and tends to play a prominent role in drawing up a European contract law24. In the Principles of European Contract Law (PECL) as well as in the Draft Common Frame of Reference (DCFR), it was decided to use the term “fundamental principles” to recall the categories of public economic order, political public order and moral public order. Therefore, the concept of “fundamental principles” undoubtedly surpasses the concept of public order as defined by the European Court of Human Rights, including in this notion the principles contained in the multiform public order clause. Frequent references to the principle of dignity are also contained in regulations, directives, opinions and decisions25. In European law, therefore, there is growing emphasis on fundamental principles, in line with the emergence of the principle of dignity, in its twofold function as an instrument capable of harmonizing the principle of autonomy with the limits imposed by fundamental values on the one hand, and to eliminate the risk of excessive paternalism by the legal system, on the other.

20 See Fenouillet, Les bonnes mœurs sont mortes! Vive l’ordre public philantropique!, (n. 4), at 514. 21 See, among others, Resta, ‘Human dignity’, (n.3), at 3; Jones, ‘Human Dignity in the Eu Charter of Fundamental Rights and its Interpretation Before the European Court of Justice’, (n. 3), 281–300; Id., ‘Common constitutional traditions: can the meaning of human dignity under German law guide the European Court of justice?’, Public law, 2004, 1–15; Muriel Fabre Magnan, ‘La dignité en droit, un axiome’, in Révue interdisciplinare d’études juridiques, 2007/1, vol. 58, 1–30; Bénedicte Fauvarque Cosson and Denis Mazeaud, European Contract Law, (Munich: Sellier, 2008) at 138 ff. 22 See Art. 1 of Charter of Fundamental Rights of the European Union, OJ C 83, 30.3.2010, 389–403. 23 See Oviedo Convention, Preamble. 24 See Marella, Il fondamento sociale della dignità umana. Un modello costituzionale per il diritto europeo dei contratti, in Studi in onore di Nicolò Lipari, (Milano: Giuffré, 2008), 1595–1637, at 1597. 25 See, for example, Directive 98/44/CE 6-7-1998; Directive 2010/45/UE 7-7-2010.

The New Role of Extra Legal Principles

185

Part Three: The Shift from Good Morals to Human Dignity in the Bio-Law Debate Faced with growing ethical pluralism, problems linked to the limits of private autonomy assume a certain dimension in the European context. The risk of different applications is obvious. In particular, in the field of bioethics, the issue of a discipline aimed at regulating the power of science and technology, which is increasingly capable of affecting the human structure, is highly problematic. The EU harmonization process in biotechnology patent law operates within a multilingual and pluralistic context, and raises issues that should not be underestimated. In such a multicultural context, it is common to note that the legal terms used in European legislation, even when equivalent in national jurisdictions, refer to legal concepts that are partially different. Starting with this finding, Directive 98/44 aims to reduce the legal insecurity in the protection of biotechnology and inventions through a harmonized discipline in the various Member States. With Directive 98/44 on the legal protection of biotechnological inventions, the EU has envisaged regulating the commercial aspects of biotechnology in a rather liberal way, authorizing the patentability of living organisms (genes, plants and animals), although exploitation of these inventions for use against public order or good morals is forbidden. It is worth noting that the evolution of the case law connected with the Directive, shows some evident changes in terminology clearly directed towards an instrumentality of moral values in EU law. From a linguistic point of view, we observe an undeniably evolutionary trend in the use of different expressions when referring to either moral or political values. We find terms such as “morality”, “public morality”, or “human dignity”, instead of the traditional use of “good” morals and public order. The EU’s increasing recourse to values such as “Fundamental Principles and Dignity” is obvious: the “fundamental rights arguments continue to grow in importance in the Court’s reasoning”26. Traditional formulations linked to Member States cultural contexts are increasingly left aside. This is in favour of notions that are more linked to values recognised in Charters and International Treaties well exemplified by the constant recourse to the notion of Dignity27. As established by Recitals 16, patent law must be applied to safeguard the dignity and integrity of the person. In addition, Recital 38 of the Directive reinforces Article 6 of the Directive and establishes that “processes the use of which offend against human dignity”, are also obviously excluded from patentability. It is therefore arguable that “since invocation of the Recitals is required in the interpretation of the Directive, and because the Recitals are drafted in broad terms, this suggests that the meaning attributed to or-

26 See Elina Paunio, Legal certainty in multilingual Eu law, (Farnham:Ashgate, 2013), at 30. 27 See Art.1 of the Charter of Fundamental Rights of the European Union, OJ C 83, 30.3.2010, 389–403.

186

Giulia Terlizzi

dre public and morality be extended accordingly”28. Lastly, Recital 43 of the Directive recognises that the European Convention on Human Rights (ECHR) forms part of the general principles of Community law. These references suggest that the Directive has to be interpreted following the moral criteria of ECHR. This is well described by the evolutionary case law involved in the subject disciplined by the Directive. All these cases faced the question of whether processes for cloning human beings, processes for modifying the germ line genetic identity of human beings and uses of human embryos for industrial or commercial purposes should be excluded or not from patentability. In Case C-34/10 EC Oliver Brüstle v. Greenpeace eV, recourse to fundamental principles and human dignity is emphasised, as mentioned in the Preamble of the Directive and Recital number 16 of the Directive. The Court affirmed: “the preamble to the Directive states that although it seeks to promote investment in the field of biotechnology, use of biological material originating from humans must be consistent with regard for fundamental rights and, in particular, the dignity of the person”. Evoking Recital 16 again in the preamble to the Directive, in particular, the Court emphasises that “patent law must be applied so as to respect the fundamental principles safeguarding the dignity and integrity of the person”. In Case C-364/13 International Stem Cell Corporation v Comptroller General of Patents, Designs and Trade Marks, the recourse to fundamental principles and human dignity is central. The protection of human dignity seems to become of paramount importance when granting or denying patents in this field. The Court stated in fact that “(19) according to the referring court, to exclude parthenotes29 from patentability does not strike a balance at all between, on one hand, research in the field of biotechnology which is to be encouraged by means of patent law and, on the other hand, respect for the fundamental principles safeguarding the dignity and integrity of the person (see Recitals 2 and 16 in the preamble to Directive 98/44)”. The Court states that “from the context and aim of Directive 98/44, the EU legislature intended to exclude any possibility of patentability where respect for human dignity could thereby be affected and that it follows that the concept of ‘human embryo’ within the meaning of Article 6(2)(c) of that directive must be understood in a wide sense”. These passages are useful to better understand that, since the list of what is contrary to ordre public and morality established by Article 6 of the Directive is not exhaustive, all processes which offend human dignity are also excluded from patentability. This means that albeit in a subtle way, the content of the traditional notions of ordre public and morality are also undergoing real transformation. It has been observed that “from a review of past cases, assessing the morality of biotechnological inventions, the EPO has felt

28 Oliver Mills, Biotechnological Inventions: Moral Restraints and Patent Law, (Farnham: Ashgate, 2010) at 141 29 Parthenotes are stem cells derived from parthenogenesis, a reproductive mechanism that is common in lower organisms and produces a live birth from an oocyte activated in the absence of sperm.

The New Role of Extra Legal Principles

187

pressure to declare such inventions morally acceptable. Of the four inventions opposed on moral grounds, none has ultimately been denied patent protection on this basis”30 . In this process, the transformation described in these pages does probably not just involve the language of the law (and consequently the translation of these legal terms in a multilingual context); it also underlines a policy choice, with a deeper symbolic value. This choice privileges the use of concepts and principles which are more apt to being easily accepted into a pluralistic society and safer than others, which seem old, démodé and not uniform. Dignity and Fundamental Principles are already quoted in international Charters and Treaties. As stated in the directive itself at Recital 3, “ensuring effective and harmonized protection in all Member States is essential in order to maintain and promote investment in biotechnology”. However, it is the same Directive that does not consider it necessary to create a specific right to replace the national patent law: ‘National Patent law remains the fundamental reference to the legal protection of biotechnological inventions’. However, after the general recognition of Member States’ autonomous regulation on the matter, the Directive lays down the first limit to patentability as set out in Recital 1, that of dignity: “patent law must be exercised in compliance with the fundamental principles that guarantee the dignity and integrity of man”. Only at Recital 38, the Directive mentions public policy and good morals as limiting the patentability of biotechnological inventions, but reiterates that to provide national courts and national patents with broad guidelines for the interpretation of public order and good morals, all patents must be excluded from “the proceedings whose application is prejudicial to human dignity”. In practice, Recital 38 of the Directive provides Member States with a criterion for correctly interpreting their public order and good morals, excluding all those proceedings from patentability whose application is prejudicial to human dignity. From this initial reading of the Directive text, the fact clearly emerges that human dignity is the fundamental principle to which bioethical activities must be oriented and represents “the fundamental parameter for the assessment of the legality of medical-scientific activities interfering with the sphere of the person in its physical and informational components”31. As noted by an authoritative legal theory, “the proliferation of references to human dignity in the contemporary bio-law is widely recognized and is not so surprising if we think that human dignity constitutes, as it is written, the only “absolute value” in an informed context of relativism of values”32. In this sense, the principle of dignity is increasingly used as a fundamental principle to which bio law activities should be directed, as a precept capable of carrying out an important regulatory function and governing social complexity, in a secularized society33. 30 See Donna M. Gitter, ‘Led Astray by the Moral Compass: Incorporating Morality into European Union Biotechnology Patent Law’, 19 Berkeley J. Int’L L. 1, 3 n.18 (2001), at 41. 31 See Giorgio Resta, La dignità, in Dalla bioetica al biodiritto, in Rodotà-Zatti (eds), Trattato di biodiritto, I, Ambito e fonti del biodiritto, (Milano: Giuffré, 2010), at 260–261. 32 Ibid. 33 Ibid.

188

Giulia Terlizzi

On one hand, the Directive leaves Member States to regulate patentability of biotechnological inventions, through their domestic limits of public order and good morals while on the other, it addresses them with a twofold definition to be taken into account in the discipline. The evolution of general principles, and the transformation of their role in favor of the principle of dignity has become apparent, together with the confusion in the Member States’ application of these limits, in Case C-377/98 Kingdom of the Netherlands v European Parliament and Council of Europe of 9 October 2001. In the first case, the Netherlands (together with Italy and Norway), contested the validity of the Directive as it declares patentable plants, animals and parts of the human body. According to the applicants, domestic law patent rights in the field of biotechnology should be limited to the biotechnology process and should not extend to the products it has obtained, such as plants and animals as such, including genetically modified plants and animals, and should not extend to human biological material. The Court rejected the appeal, excluding the existence of a conflict with the fundamental principles and the principle of respect for human dignity, and declaring that the threat to legal certainty is non-existent. The arguments used by the EU Court of Justice in this case testify in an exemplary manner to the emergence of the principle of dignity as a super-principle to hold the contents of the more traditional public order and good morals clauses of the Member States. It is also evident that the enforcement of this super-principle may cause serious problems of mismatching and the risk of a harmonizing policy, which however only harmonizes in appearance, because in reality it aims to “enforce” its moral standards by overlapping them with those of the Member States. This shift has been confirmed by the Advocate General Jacobs, who affirms that national systems applying their domestic limits of “public order” and “good morals” will always be subject to the Court’s discretion: Member States do not enjoy unlimited discretion in determining their scope. As stated by the Court in the case C-377/98 “the discretion of a Member State to determine the scope of the concept of public morality in accordance with its own scale of values, so defined by the Court more than 20 years ago, should perhaps now be read with some caution. In this area, as in many others, common standards evolve over the years. It may be that the ethical dimension of some of the basic issues within the scope of the Directive is now more appropriately regarded as governed by common standards”. But who determines these common standards and what margin of discretion is left to the general clauses in Member States? The answer can be found in the Advocate General’s Opinion according to which common standards must be related to the culture of European society and civilization; in this sense some ethical issues may be more appropriately evaluated in the context of the culture of a particular Member State and others (as in this case) are susceptible to a common standard. In conclusion, the Directive does not violate human dignity – assuming that elements isolated from the human body are patentable. The limits of public order and good morals of national law are not, in this case, applicable to the patentability of biotechnological invention.

The New Role of Extra Legal Principles

189

This means that albeit in a subtle way, the content of the traditional notions of ordre public and morality are also undergoing real transformation. It has been observed that “from a review of past cases, assessing the morality of biotechnological inventions, the European Patent Office has felt pressure to declare such inventions morally acceptable. Of the four inventions opposed on moral grounds, none has ultimately been denied patent protection on this basis”34. This brief excursus on the Directive 98/44 CE and the case law therein involved, leads us to the conclusion that we are witnessing increased implementation of the principle of “Dignity” and “Fundamental principles” in EU law, and a progressive decline for the traditional notions of public order and good morals. The word dignity “is being given a European Union meaning that encompasses the common constitutional traditions of these Member States”35. This way the EU concept of dignity “has a substantive meaning recognized as a fundamental right, part of EU Law and applied by the CJEU”36. Respect for human dignity constitutes the criterion for judging whether or not a biotechnological invention exists, and it is the use of human dignity that allows the European legislator to consider as morally acceptable what is not morally acceptable to a Member State. Concluding Remarks The enormous echo of the value of dignity in today’s society is well linked to a new – philanthropic – concept of public order, which is actually able to eclipse the “morality clause”, making it disappear from the law37. Progressive use of the principle of dignity, per se, acquires a regulatory dimension. It has been noted in the literature that interpretative arguments on fundamental principles increasingly gain importance within the arguments of the European Court of Justice38. This corresponds to a departure from traditional formulations linked to the cultural contexts of Member States on one hand, and to the favour towards the use of notions linked above all to values recognized in the Charter, Constitutions of States and Treaties, on the other – as has been well demonstrated by constant use of the notion of dignity39. The principle of dignity is justified among legal scholars for reasons belonging to two different orders. First, dignity is the fundamental value recognized by all contemporary western societies, and the law must refer to it, since dignity as a value is consecrated by various sources of domestic and supranational law. Second, the value of dignity is liable 34 Gitter, ‘Led Astray by the Moral Compass: Incorporating Morality into European Union Biotechnology Patent Law’, (n. 31) at 41. 35 Jones, ‘Human Dignity in the Eu Charter of Fundamental Rights and its Interpretation Before the European Court of Justice’, (n. 3), at 291. 36 Ibid. 37 See Fenouillet, Les bonnes mœurs sont mortes! Vive l’ordre public philantropique!, (n. 4), at 490. 38 See Paunio, Legal certainty in multilingual Eu law, (n. 28), at 30. 39 See Art.1 of the Charter of Fundamental Rights of the European Union, OJ C 83, 30.3.2010, 389–403.

190

Giulia Terlizzi

to be easily translated in a number of technical rules and institutes, rendering its effects more legitimate, more “reasoned”, more “concrete” and less “mechanical”, compared to good morals.40. This choice privileges the use of concepts and principles which are more apt to be easily accepted into a pluralistic society and safer than others, which seem old, démodé and not uniform. Lastly, one cannot ignore the fact that the call to dignity is an answer to the difficulty of recognizing the customs of a community with homogeneous bases, and represents the transition from those customs which are seen as the product of society, to the values of the individual. In this light, the limits of private autonomy no longer appear repressive, but “philanthropic”. It is worth noting that from the moral point of view, the value of dignity corresponds to the recognition of the principle of autonomy, but from a legal point of view, reference to the principles of dignity implies the primacy of the individual with respect to any form of state paternalism inspired by the ethics of duties. On the other hand, in legal doctrine it has been found that in the principle of dignity a positive meaning (protection of the subject’s autonomy, reference to dignity as empowerment of self-determination) coexists with a negative meaning (dignity as a limitation of individual freedom, dignity as a constraint)41. The fact that invocation of the principle of dignity tends to diverge is obvious. Dignity has been invoked to protect the patient’s self-determination in end-of-life choices and, in particular, whether or not to authorize the cessation of life support care42. In Germany, the judges recalled the principle of dignity and the right to freedom of expression of an individual’s personality to justify the right to interrupt care, in a conception which appears to be more consistent with protection of the personality rights based on the principle of self-determination (selbst-Bestimmung)43. In France, the Conseil constitutionnel uses dignity to legalize voluntary interruption of pregnancy and the Cour de Cassation has recognised damages for “wrongful life” by invoking dignity. However, in the opposite direction, the Conseil d’Etat resorted to dignity and its interference with the public order clause in the controversy surrounding “dwarf tossing”44; and German judges have recalled the principle of human dignity to ban a kind of erotic show known as Peep shows45. It cannot be concealed that the appeal

40 See Philippe Malaurie-Laurent Aynes, Cours de droit civil, Obligations, contrats et quasi contrats, T. II, 11 ed. (Paris: Cujas, 2001), at 151. 41 See Marella, ‘The old and the new limits of the freedom of contract in Europe’, European Review of Contract Law, 2, 2006, 257–274, at 271. 42 See the recent case involving Charlie Gard and the medical staff of the Great Ormond Street Hospital, and the debate around the interpretation of the dignity of the child in its controversy meaning between parents and Judge’s opinions. See https://www.supremecourt.uk/cases/docs/charlie-gard-190617.pdf. 43 On this point see Resta, ‘Dignità e autodeterminazione nelle scelte di fine vita: il Bundesgerirchtshof espande la frontiera dei diritti fondamentali’, in Diritti umani e diritto internazionale, 4 (2010), 566–573. 44 Conseil d’Etat, Ass, 27 October 1995, Ville d’Aix-en-Provence, (1996) Dalloz 177; Conseil d’Etat, Ass, 27 October 1995, Commune de Morsang-sur-Orge, (1995), Dalloz, 257. 45 BVerwG, 15 December 1981, (1982), Neue Juristische Wochenschrift 664; BVerwG, 30 January 1990, (1990), JuristenZeitung, 382.

The New Role of Extra Legal Principles

191

to the new public order and principle of dignity causes some perplexities linked to the obvious possibility of reading the concept in a conflictual way. The content of the notion of dignity is still largely to be defined and the possibility of ambiguous and contradictory applications by judges – depending on whether dignity is understood as an individual or social value, as a constraint or empowerment of private autonomy – is a risk denounced by most of the legal doctrine46. In the light of these considerations, it is hoped that human dignity does not lose the consistency of universal value and is not confined to playing the role of a variable depending on a subjective self-determination principle. The dissolution of the notion of “good morals” in the principle of dignity leads jurists to reflect on two passages that follow one another. Firstly, transition from general clauses referring to a social and extra-legal sphere to general clauses within the positive legal order (such as public order) and secondly to principles, like dignity, contained in western constitutions and International Charters and Treaties.47. In the present context, the value of dignity is used in its twofold dimension, that of positive and negative freedom. On one hand, it is reasonable to raise concerns about the level of legal certainty, since – as also happens with good morals and public order – the principle of dignity can also be extended to many and (as illustrated) contrasting readings and bears the risk of arbitrary and unforeseeable judicial limitation to private autonomy; on the other hand, insistence on the principle of dignity shows, that the law cannot predict everything – even if it is transformed or contradictory – and must operate within extra-legal principles. The law cannot refuse or renounce moral implications concerning human life. If the law refuses the hard task of giving content to moral values – by “escaping” in the constitutionalizing of values and reference to principles recognized in Charters and Constitutions – this essential task is inevitably addressed to interpreters and judges, who – willing or not – are called to translate a vague, abstract and controversial principle of autonomy protection in its practical and balanced application.

46 On the polysemic nature of dignity see, among others, Marella, ‘The old and the new limits of the freedom of contract in Europe’, European Review of Contract Law, 2, 2006, 257–274, at 271, Id., ‘Il fondamento sociale della dignità umana. Un modello costituzionale per il diritto europeo dei contratti’, (n. 23), 1596– 1637; Resta, ‘La disponibilità dei diritti fondamentali e i limiti della dignità (note a margine della Carta dei Diritti)’, in Rivista di diritto civile, 6, 2002, 801–848. 47 On juridicization of human dignity see Marella, ‘Il fondamento sociale della dignità umana. Un modello costituzionale per il diritto europeo dei contratti’, (n. 23), 1595–1637; see also Charles Girard – Stephanie Hennette-Vauchez, La dignité de la personne humaine. Recherche sur un processus de juridicisation, (Paris: PUF, 2005); Resta, ‘Human Dignity’ (n.3), at 1; Fabre Magnan, (n. 21), 1–30.

Part II – Conceptual Approaches on Law and Morals

What Constitutes the Concept Of Law? Potentialism as a Position Beyond Positivism and Natural Law Theory Lorenz Kähler

1. Necessary Properties of the Concept of Law? The debates about the concept of law have long been predominantly shaped by questions about what the defining properties of law actually are. Most prominent among them are investigations into whether law is a set of rules or whether it also incorporates principles,1 whether there is a connection between law and morality,2 and, if so, how it has to be understood. But little attention has been paid to the question that precedes it of how such answers are even possible. This is far from obvious. What precisely enables one to answer these questions positively or negatively? Upon what basis can one develop arguments about the relationship of law and morality or about other properties of law? In order to answer these questions, one has to assume that certain kinds of arguments are determinant for the concept of law. But the choice of these arguments is far from obvious and has, therefore, to be justified. If there were an agreed upon concept of law, one could, instead, confine oneself to the investigation of its properties and reflect, for instance, upon whether it has a connection to morality. But there is neither a universally agreed upon concept of law, nor even such criteria to determine it. One could, however, make one’s own concept of law explicit and demonstrate the advantages that it has in comparison with other concepts. This approach is indeed taken by some theorists.3 But although this constitutes considerable progress in comparison with works that simply assume a certain concept of law without taking the alternatives into account, it does not suffice. For it still pre-supposes without further justification that certain kinds of reasons could and should decide this issue. If, for instance, a concept of law is adopted because it accords with or even explains the 1 2

3

Ronald Dworkin, Taking Rights Seriously (London: Duckworth, 1994), 82–84. E. g. Ronald Dworkin, Law’s Empire (London: Fontana, 1986), 96–98; Andrei Marmor, “Exclusive Legal Positivism”, in: The Oxford Handbook of Jurisprudence and Legal Philosophy, ed. Jules Coleman, Scott Shapiro (Oxford: Oxford UP, 2002), 104–23; Kenneth Einar Himma, “Inclusive Legal Positivism”, ibid., at 125–65; Robert Alexy, Begriff und Geltung des Rechts, 2nd edn. (Freiburg: Karl Alber, 2005), 31–136; Dietmar von der Pfordten, Rechtsethik, 2nd edn. (Munich: Beck, 2011), 63–105. E. g. Alexy, Begriff und Geltung des Rechts (n. 3 above).

196

Lorenz Kähler

legal practice,4 the assumption is thereby made that the concept of law is to accord with this practice and enhance its understanding. But upon what basis can one make such an assumption? The search for a concept of law possibly concerns a theoretical question which has to be answered independently of whether it helps us to understand legal practice. This practice might, at least in some points, diverge from law, in which case it cannot in toto constitute its foundation. Thus, it is – even from the outset – unclear whether the understanding of legal practice, valuable as it is, should – in principle – count as a conclusive reason by which to determine the concept of law. The same holds for arguments about the problematical consequences that a certain concept of law supposedly has for society, granted, for instance, that a separation of law and morality would make morally bad decisions by the state easier.5 It also leaves the question open of why the concept of law is to be affected by these consequences. There is, at least, the possibility that the concept of law with the best consequences is theoretically flawed. It would then work well in practice, although – or even because – it is theoretically wanting. Vice versa, the best theoretical concept of law might be so complicated that it would have negative consequences if adopted as a foundation for a legal system. The question of which concept of law is most beneficial and which concept of law is theoretically most convincing might thus necessitate divergent answers. Utility and truth are, after all, different notions. Theoretically unsound concepts might be practically optimal, whereas concepts which are superior in theory could turn out to be disadvantageous in reality. Only if we knew that we did indeed live in the best of all possible worlds,6 could one rule out this mismatch between theory and practice from the very beginning. But its mere possibility shows that one cannot take any argument to support a certain concept of law without showing that it is, in principle, suitable to count for or against a certain concept. The concept of law would otherwise become the result of an unprincipled balancing of all sorts of reasons. So, before one delves into questions of whether a positivist separation of law and morality has good or bad consequences, one has to answer the question that precedes it of whether these consequences are to matter for the formation of the concept of law at all. More generally, the concept of law can only be discussed sensibly if there is clarity about what kind of reasons are decisive for it. Is it the overall utility, practical and political reasons,7 empirical adequacy, our self-understanding,8 a mixture of these criteria, or something else? It may seem that this meta-debate about the formation of the concept 4 5 6 7 8

E. g. Peter Koller, “The Concept of Law and its Conceptions”, Ratio Juris 19 (2006), 183; Stephen Perry, “Hart’s Methodological Positivism”, Legal Theory 4 (1998), 461 despite his scepsis towards a sociological analysis. Gustav Radbruch, “Fünf Minuten Rechtsphilosophie”, in: Rechtsphilosophie, 2nd edn. (Heidelberg: C. F. Müller, 2003), 209. Gottfried Wilhelm Leibniz, Theodizee, part. 1, numb. 8 (Frankfurt aM: Suhrkamp, 1996). Liam Murphy, “The Political Question of the Concept of Law”, in: Hart’s Postscript, ed. Jules Coleman (Oxford: Oxford UP, 2001), 373, 380. Perry, n. 4 above, 461; Julie Dickson, “Methodology in Jurisprudence: A Critical Survey”, Legal Theory 4 (2004), 125.

What Constitutes the Concept Of Law?

197

of law has hardly taken place. There are plenty debates about the particular features of the concept of law according to the various positivist and non-positivist theories,9 but, strangely enough, little debate about the more fundamental question of what kind of reasons is in principle to be relevant for such debates. One possible reason for this blind spot is the sentiment that the formation of the concept of law is beyond the questions upon which lawyers usually decide. If there is an established language, lawyers must not concern themselves as to how it emerges or how they could build upon its concepts. They could, at first glance, leave the emergence of concepts to linguists or philosophers of language and focus on the consequences that these concepts have on law. But is there indeed an established concept of law which one could – without further inquiry – take as a foundation for arguments about the law and its possible connection to morality? Or does one, instead, have to deal with various established concepts of law which all have a sufficient grounding in ordinary language and social practice? Hart’s The Concept of Law, which, by its title, already suggests that the modern legal systems described by him have one concept of law, is paradigmatic for the opposite assumption. However, he does little to show that this is actually the case.10 Instead, he answers the question “What is law?”,11 with the help of a concept underlying the legal practice without inquiring into why this practice is to be constitutive for it and how its singularity can be guaranteed. These questions are beyond what one could answer by examining legal systems in a “descriptive sociology”,12 for it needs to be shown first that the best description of a certain practice should determine the formation of the concept of law. For this purpose, one would have to answer the question of why a descriptive analysis, notwithstanding its results, should – in principle – be capable of delivering the right kind of reasons for the formation of the concept of law. Maybe, one should not look to a concept established in a certain practice or language at all, as such foundations might turn out to be insufficient. Such a doubt must seem awkward for those who, in the aftermath of Wittgenstein,13 regard ordinary language as an unquestionable basis for a conceptual analysis or who regard likewise, in the vein of John Searle,14 the dominant practice as a foundation for one’s conceptual scheme. But, even then, one has to explain

9 10 11 12 13 14

For an overview, see Robert Alexy, “On the Concept and the Nature of Law”, Ratio Juris 21 (2008), 284; Dickson, n. 8 above, 117; note 2 above. At one point, H. L. A. Hart, The Concept of Law (Oxford: Clarendon Press, 1961), 204–5, briefly mentions a choice between a wider and a narrower concept of law (including a moral threshold) that cannot be decided by linguistic usage alone, but states that the latter concept leads to “nothing, surely, but confusion”. Ibid., at 16–17. Ibid., v, Postscript, 240; for the discussion about Hart’s ambition, see Liam Murphy, “The Political Question of the Concept of Law”, in: Hart’s Postscript (n. 7 above), 375; Jules Coleman, “Methodology”, in: Coleman & Shapiro (eds), n. 2 above, 312–13. Ludwig Wittgenstein, Philosophische Untersuchungen, § 97 (Werkausgabe, vol. I) (Frankfurt aM: Suhrkamp, 1984), 295. John Searle, The Construction of Social Reality (London: Penguin, 1995), 79.

198

Lorenz Kähler

why ordinary language or a certain practice should serve as a foundation for the concept of law and why reason is not a capable source to correct it. The formation of the concept of law has, possibly, also drawn little attention because it does not seem to be the kind of concept about which one has a choice. Although there is widespread disagreement about its precise content, the concept of law is widely regarded as fixed. Legal theorists almost uniformly maintain that the concept of law is independent of the particular legal system and has the same necessary properties,15 although they disagree about what these properties are. The assumed necessity is even taken as proof of a “genuinely philosophical debate”.16 At best, some admit that there are various conceptions of law,17 but still pre-suppose thereby that these conceptions are variations of the “one and only” concept of law. If this were indeed the case, no matter whether the concept of law was determined by language, convention or reason, no room for a deliberate choice would be left.18 Then, one would not need to concern oneself with how the concept of law is constituted and could instead explicate its content. The question of what kind of reasons would be decisive for its formation would not come to light. Moreover, a choice about the concept of law made upon the basis of various reasons seems odd at first glance because one can hardly choose a concept of law when law is supposed to restrict and thereby guide behaviour. Law can do so only if it is beyond one’s choice. If one is bound by law, one cannot decide what it is. Otherwise, one could remove a legal obligation by simply defining the law in a way that the obligation in question would not be part of it. Therefore, there is the strong intuition that law must be fixed and does not belong to the kind of things about which one has a choice. Consequently, the search for reasons which could steer such a choice seems questionable. However, such a conclusion is premature. Looking for the kind of reasons that are decisive for the formation of the concept of law does not mean that one can freely decide about them. The question is not which concept of law is subjectively most appealing, but, rather, which concept of law is founded upon the best reasons. These reasons might or might not depend upon our choices. Both whether and, if so, to what degree it is influenced by human decisions is one of the crucial questions in the formation of the concept of law. Thus, the assumption of a fixed concept of law underlines, rather than questions, the necessity of searching for the reasons that constitute the law. Therefore, it is worthwhile looking closer at what kind of reasons are determinative for the concept of law and whether these reasons are variable across time and space. If they are not, one 15 E. g. Alexy, n. 9 above, 284: “The debate over the concept and the nature of law is a debate over necessary truths about the law.”; Stephen Perry, “Beyond the Distinction between Positivism and Non-Positivism, Ratio Juris 22 (2009), 316: “methodology of necessary features”; Scott Shapiro, Legality (Cambridge MA: Harvard UP, 2011), 12, 27. Joseph Raz, Between Authority and Interpretation: On the Theory of Law and Practical Reason (Oxford: Oxford UP, 2009), 32, maintains a universal nature of law, after stressing the parochial nature of the concept of law. 16 Alexy, n. 9 above. 17 Dworkin, Law’s Empire (n. 2 above), 90; Koller, n. 4 above, 182. This might go back to the distinction between the concept of justice and its conceptions by John Rawls, A Theory of Justice (Cambridge MA: Harvard UP, 1971), 9. 18 Cf. Murphy, n. 7 above, 389.

What Constitutes the Concept Of Law?

199

might conclude that there is one concept of law fixed for all times and societies. But this invariability remains to be seen and cannot be presumed. It seems at least questionable that the concept of law has to be the same in all possible worlds even if they are radically different from our own social environment and, for instance, have a full implementation of all agreements so that one hardly needs legal rules to ensure this. The formation of the concept of law concerns a meta-question that is not directly connected to its content. By such a meta-analysis, one first has to determine the kinds of reasons that are decisive for the concept, and, but only as a second step, the reasons themselves. Moreover, the journey from these reasons to the concept of law is a long path with possibly unexpected twists and turns. Considerations regarding how these reasons interact and how they are applied might come into play. If, for instance, moral reasons turn out to be relevant for the formation of the concept of law, this concept itself could morally still be neutral. For, in terms of morality, the application of a morally neutral concept could turn out to be optimal, as morality does not necessarily have to be decisive at all levels, from the formation until the content of a certain concept. Possibly, a morally neutral concept could further law’s clarity because it excludes controversial questions. Such a consideration is an example of a second order reason that comes only into play once clarity is established by first order reasons as determinative for the concept of law. These reasons might very well be moral in nature, for example, if conceptual clarity can be shown to be important for self-determination or for society’s utility. Thus, the recognition of such reasons for the concept formation is compatible with the claim that the concept of law itself has to be separated from morality. In this case, one excludes moral considerations in the application of the concept, although they remain crucial at the level of concept formation. Both kinds of reasons are not identical. Because of this difference, the reasons for the formation and for the application of the concept of law might, in a different manner, depend on changing empirical circumstances. Whereas reasons constitutive for the concept of law could be independent upon them and thus remain constant, its application could vary, due to the dependency upon such circumstances. If, for instance, clarity is singled out as being decisive for the formation of the concept of law, in a situation of deep moral disagreements, a positivist separation of law and morality could turn out to be optimal. But it is, at least, imaginable that, under other circumstances, clarity would best be furthered if a certain class of widely uncontroversial moral considerations were included in the law. Their incorporation would then enhance law’s clarity. So, even if clarity turned out to be a decisive factor in the determination of the concept of law, its application could still lead to different results, depending on varying empirical circumstances. Hence, the search for the kind of reasons that are to determine the concept of law is not directly linked to a particular concept of law. The position which one takes at the meta-level of concept formation does not necessarily determine the position at the object-level, although it is a crucial first step to develop it. Consequently, debates about positivism and non-positivism have to be treated with reservation at this point. They might primarily concern the object level of the concept of law, but not the formation of

200

Lorenz Kähler

this concept at the meta-level.19 Theoretically, at least, the influence of morality on the formation of the concept of law is compatible with the strict separation of both at the conceptual level. Nevertheless, both questions about the formation and the content of the concept of law might very well lead to similar answers. Reasons that seem plausible at the meta-level might turn out to be persuasive at the object-level as well. For instance, if empirical reasons are decisive at the level of concept formation, it should come as no surprise when the law is understood as an empirical entity separated from morality. Vice versa, if one admits moral reasons to determine the formation of the concept of law, this concept itself probably takes on a moral character to secure its compatibility with moral requirements. The same intuitions might thus bring about similar results at the different levels of concept formation and concept application. Maybe, this is another reason why the discussion about the kinds of reasons crucial to the formation of the concept of law has drawn so little attention. At first glance, they are too similar and too intermingled to understand the difference. This similarity is, however, a contingent matter. A normative stance at the meta-level is very much compatible with a positivist stance at the object level and vice versa. Thus, a connection between both cannot be pre-supposed a priori. Consequently, one must make a fresh start and ask, independently of one’s stance on positivism and non-positivism, what kind of reasons are to be determinative for the concept of law. 2. Language The first kind of reasons that might possibly determine the concept of law are lexical arguments about ordinary language or another established language. If competent speakers associate law with a certain practice, then there is, at least, a prima facie reason to define law accordingly. This is because the speakers would have a common basis for referring to this practice. No explanation would be necessary to account for a difference between the meaning in ordinary language and the meaning for lawyers or legal theorists. Thus, a concept based upon ordinary language would cause less confusion than other concepts. One could use it without training, without the mastery of a special vocabulary or a complicated procedure like the balancing of reasons. The mere acquaintance with a certain language would suffice. Should, therefore, the meaning of “law” in ordinary language determine the concept of law and a lexical definition20 thus suffice? Are arguments about ordinary language of the right kind to establish the concept of law? 19 David Plunkett, “Negotiating the Meaning of ‘Law’: The Metalinguistic Dimension Of the Dispute Over Legal Positivism”, Legal Theory 22 (2016), 209, distinguishes, similarly, between the object level of a concept and the representational level. However, the meta-level, as I understand it, does not have to deal with representations. Nor is it confined to the metalinguistic arguments discussed by Perry about how a word should be used; ibid., at 230. 20 For the concept of lexical definition, see Richard Robinson, Definition (Oxford: Clarendon Press, 1950), 35.

What Constitutes the Concept Of Law?

201

The usage of the word “law” might indeed give important indications about the concept of law. It reveals, at the very least, in which situations law is referred to and how it is usually understood. This might help us to understand when the concept of law is needed, which, in turn, might show which purposes it serves and which functions it fulfils. So, the analysis of ordinary language can enrich the understanding of law and of the various phenomena associated with it. Moreover, by accepting the ordinary meaning of the word “law”, one avoids the arbitrariness of stipulative definitions which are merely based upon the decision to define a word in a certain way,21 and lack a further justification. If the usage in ordinary language is founded on reasons, a conceptualisation upon the basis of this usage becomes reasonable in this respect as well. One adopts the wisdom engrained in the tradition. The concept of law would then, at least, be based upon the reasons that shaped ordinary language. Despite these advantages, a conceptualisation of law according to ordinary language could hardly suffice to delineate the concept of law for a legal system. For this purpose, one needs to know more than what is simply called “law”. Instead, one has to explore the defining properties of law and its distinction of similar concepts such as customs, morals, and expectations. Thus, the knowledge of the circumstances in which the word “law” is used in a certain language does not suffice. The concept of law is, after all, fundamental for the decision of what belongs to the legal system, and is thereby ultimately fundamental for the decisions that should be reached. The membership of norms – as well as reasons – in the legal system enables decisions and not mere descriptions of what people said. Hence, the concept of law should not be confused with the usage of the word “law”. It might, quite by accident, turn out that the established meaning of “law” in ordinary language accords with the proper concept of law. But this would be a lucky coincidence. The established usage of the word “law” could also be too narrow on certain occasions, when it overlooks certain phenomena that belong to the law, or too broad, when it includes some instances in which the concept “law” is used misleadingly. The latter might, for instance, be the case when the rules of a game are called “law”, even though they are not part of the legal system. There is no guarantee that, in ordinary language, the word “law” is always used in a way that accords with the legal system. Language provides a rich repertoire for different concepts of law so that one needs additional reasons to single out one among them as being decisive. Even if it were different so that there would be a uniform concept of “law” in ordinary language, one still would need a reason to explain why the meaning established in language should be decisive for the legal system as well. For this purpose, it is not enough to show that the development of the concept rests on various causes so that it is, at least, not unfounded. The reasons why a certain concept was established in ordinary language are not necessarily the ones that are to underlie the concept of law. The usage of a word in ordinary language and the formation of a concept for a legal system pursue different 21 Cf. Anil Gupta, “Definitions”, The Stanford Encyclopedia of Philosophy (Summer 2015 Edition), Edward N. Zalta (ed.), URL = .

202

Lorenz Kähler

purposes. For ordinary language, it is most important to have concepts that everybody or, at least, all competent speakers, can understand. They must not agree about its exact delineation or further implications in order to enable communication. But, in this case, little is decided about the entities to which these concepts refer. The word “law” might, for instance, be used in contradictory ways, whereas the concept of law must avoid these contradictions. Its purpose is to identify what is to count as law in a legal system, and not, like language, to enable communication among people with different views. It should, hence, come as no surprise that the linguistic borders for a particular concept are, in many cases, wider than its proper usage allows, according to a certain theory. For only the opportunity to use a concept in a variety of ways makes it possible to discuss what specific meaning it should have in a particular case or according to a certain theory. Otherwise, reasonable disagreement about the concept could hardly be expressed. One would need different concepts in order to refer to the various understandings of the same phenomenon. Therefore, ordinary language is a good starting-point for the formation of the concept of law, although it is in no way sufficient for it. Even if one succeeds in an “interpretive explication”22 of the usual understanding of the concept of law, and its concomitant ambiguity could thereby be overcome, one would need independent reasons to give this usage authority in the determination of the concept of law. It always remains possible to ask whether what is called law is indeed law. To answer this question, one needs additional reasons above the established usage. They could, in turn, refer to a certain practice, in which case the latter remains crucial for the content of the law. For instance, there might be reasons why the practice of officials and nothing else should count as law. But such a reference is, first, not a reference to the practiced language, and, second, does not substitute the need for a reason in the foundation of the concept of law. It should be noted that this conclusion does not depend on the particular usage that the word “law” has in a given language. Instead, lexical reasons are already insufficient in kind to determine the concept of law,23 no matter which language is concerned. 3. Experts The conclusion that ordinary language alone cannot determine the concept of law seems not surprising as language is shaped by a developing practice in which almost everybody participates. Therefore, different ideas, experiences, and practices play a role in it. The manifold situations and contexts in which the word “law” is used can hardly be broken down into one clear and simple concept. One cannot expect precision from ordinary language. 22 Koller, n. 4 above, 183. 23 Cf. Shapiro, Legality (n. 15 above), 7: “Legal Philosophy is not Lexicography”; John Gardner, Law as a Leap of Faith (Oxford: Oxford UP, 2012), 177, referring to Joseph Raz, Ethics in the Public Domain (Oxford: Clarendon Press, 1998), 198.

What Constitutes the Concept Of Law?

203

One possible way out of this is to let experts stipulate the concept in question and thereby make it more precise. In this vein, one could engage in a “division of linguistic labour”24 and let lawyers or legal theorists define what “law” means so that other people can rely on it. The non-experts would not even have to know what the experts think because law would be what lawyers or legal theorists define as law. Their definition would be all that one would need for this purpose. So law would not be what is commonly understood as law in ordinary language, but what experts understand it to be, instead. Laymen would have to trust these experts in determining the concept of law. In this regard, law would be like oxygen, about which most people have a rough understanding but rely on experts to define it properly, for instance, by the number of protons and electrons. Folk theories and understandings could thereby be avoided. Once again, it is, at this point, not important to decide what precisely legal experts define as law or whether they agree at all. It is already, from the start, questionable that such an approach could deliver a proper concept of law. For, first of all, one would have to define who is to count as an expert in this regard. Should one include all trained lawyers, or only supreme court justices, or legal theorists writing about the concept of law? This is difficult to decide, and not just because it involves trust and expertise that might be unevenly distributed. Without a concept of law, an answer seems impossible for the simple reason that one cannot determine experts in law without an understanding of what the entity is of which they are experts. The reference to experts in law pre-supposes an answer to the question of what the law actually is. This is not just a theoretical worry about a circular definition but has practical repercussions. If law were to entail only the rules that are applied by state courts, judges would be the proper experts for the determination of the concept of law. But if law also entails rules which are not applicable in these courts, such as ecclesiastic norms or the lex mercatoria, the circle of experts would grow significantly. In this regard, law is unlike oxygen, or any other chemical element, for the determination of which chemists are uncontroversial experts. Law is not just one of many elements that could be determined by lawyers as the specialists for it. On the contrary, it is law that defines what makes them lawyers, i. e., people who have a special knowledge about it. So, the reference to experts for the determination of the concept of law pre-supposes a concept of law but cannot found it. One has to know what law is in order to determine who is an expert in it. In this regard, there is a difference from chemical elements, such as oxygen. One does not need to know what oxygen is in order to determine who is a chemist. Nor does one need to know for this purpose what precisely substance or matter is. A rough acquaintance with these natural kinds suffices. This objection also holds for theories that want to ground law in the behaviour or attitude of officials.25 If law becomes what officials understand as law, one needs to define who counts as an official. This is not possible without first determining whom the law designates as an official, and those who claim only to be officials. There are cases in 24 Hilary Putnam, Mind, Language, and Reality (Cambridge: Cambridge UP, 1975), 227. 25 E. g. Hart, The Concept of Law (n. 10 above), 97.

204

Lorenz Kähler

which guerrillas or private groups operate outside the legal system, but claim to have their own law. Judged from outside, their claims resemble the claims of police officers and other state officials.26 It is impossible to deny their legal status without using legal criteria regarding who should count as an official. This does not mean that there are no criteria to distinguish between officials and impostors, but it does mean that these criteria are founded in law and hence cannot ground the law itself. Moreover, the conceptualisation of law by experts raises the question of why one should delegate this task at all? The reason seems to be that experts are supposed to know best the defining properties as well as the boundaries of law. A linguistic division of labour suggests that not everybody is equally competent for this, and that some speakers have a better knowledge or expertise than others. But this means that there must be such knowledge which makes them experts. Thus, the opinion of experts is not authoritative because they are the experts, but, vice versa, that they are experts because they know the reasons that determine a certain concept best. Consequently, these reasons are what counts, and not the fact that they are recognised by certain experts. A definition by experts is hence insufficient unless it is founded on reasons. Therefore, it is necessary to ask directly what kinds of reasons should be decisive for the concept of law, instead of delegating the question to experts who could do nothing else than look for these reasons as well. 4. Real Definition of Facts Once language and experts are insufficient to determine the concept of law, the question remains as to what kind of reasons should, instead, be decisive for it. Lexical definitions as well as stipulative definitions by experts are no longer available. One of the remaining options is a real definition27 by facts, which would determine the concept based upon the nature of the entity. For this purpose, one has to find factual properties common to all the phenomena that should be defined. These properties do not have to be obvious and might be discovered after one comes to know the defined entity. One could, for instance, define a horse by a certain DNA that was discovered centuries after people bred horses and exists independently of them. Similarly, one might look for properties of law such as the union of primary and secondary rules,28 and thereby determine the concept of law, even if judges, as well as other people, were heretofore not aware of them. In both cases, the fact that these properties were only described in an analysis long after these concepts were established is no objection because it does not change these properties. If such a definition by real properties should be more than a mere repetition of what is to be defined, it rests on two conditions. First, the phenomenon that is to fall under the concept has to be describable independently of the real property that is to define it. 26 Ibid., at 80, tries to distinguish these situations by the existence of an obligation. 27 For a more general account of real definitions, see Richard Robinson, Definition (n. 20 above), 149. 28 Hart, The Concept of Law (n. 10 above), 77.

What Constitutes the Concept Of Law?

205

For instance, one should be able to describe, at least roughly, what a horse is, before one defines it by a certain DNA. Otherwise, one could not compare the animals that are to count as horses, according to this definition, with the animals that are already regarded as horses. Instead, one would have to stipulate that a certain property, such as a certain DNA, is fundamental without justifying its adequacy. Whether the animals previously understood as horses would – in any way – be covered by the introduced definition would play no role. Hence, to avoid such a result for law, one would need a preliminary knowledge of which phenomena should be regarded as law. Such knowledge does not have to be elaborated, and might consist in the simple enumeration of phenomena that will, at prima vista, fall within the concept of law. Later, one might refine the definition by including additional phenomena or excluding others. To this extent, the concept of law is no different from other concepts. If there are, for instance, some animals that look like horses, but do not have the DNA-sequence common to horses, one should assign them to another species. Likewise, one might count as horses some animals that look like donkeys, but are, by their DNA, horses. But these adaptations should not be substantial for the definition to remain adequate. Otherwise, one could take any property as fundamental and define the concept accordingly, independently of the extent to which it covers the described phenomena. This would lead to the already mentioned stipulative definition that is based upon no more than the arbitrary decision that a concept is to be based upon a certain property. No reason would have to justify such a choice. Second, the defining properties have to be necessary and sufficient to determine the concept. This means that, at least one property has to be common to all defined phenomena and not met in others. Only then does it become understandable why it should be regarded as essential and define this concept. In the case of horses, one can take a DNA peculiar to horses as fundamental, not only because it is common to all horses, and influences their development and appearance, but also because it is lacking in other animals. The defining property might consist in a set of features such as membership in a broader class (“genus proximum”) and a specific feature within this class (“differentia specifica”). It might also be a complex property consisting in the combination of several features in a “family resemblance”,29 or be based upon a type that could be more or less realised in a particular instance. However, for the present purpose, such a specification of the property is not important. All that counts for a real definition is that there are such properties underlying the described phenomenon. Can such a definition by real properties succeed for law? To do so, there would have to be one or several fundamental properties peculiar to all phenomena regarded as law. Therefore, one would need, first, to know which phenomena belong to the law. There is 29 Wittgenstein, Philosophische Untersuchungen, § 67 (note 13 above), 278. This idea is sometimes read as the the more radical claim that necessary and sufficient properties could for some concepts not be given, e. g. Michael Steven Green, “Dworkin’s Fallacy, or What the Philosophy of Language Can’t Teach us about the Law”, Virginia L. Rev. 89 (2003), 1897, 1901–02. However, it remains to be shown that it is possible not to have necessary and sufficient properties for a certain concept and still be able to distinguish the defined phenomenon from other phenomena.

206

Lorenz Kähler

a variety of rules that are, at least by a certain community, regarded as law. This holds not only for state law, but also for international law, church law, tribal law, lex mercatoria, etc. However, many of them have a questionable status. Does church law belong to the law, even to the extent that it contradicts state law and is not backed by physical sanctions? Can non-enforceable rules in general be law, or are they merely30 moral rules in disguise? Does law need an institutionalisation, i. e., courts and officials that execute it31, or can there be legal rules without them? These questions have led to opposing answers that are, at least at first glance, plausible enough not to be rejected without further reasoning. Rules prescribing certain behaviour can take on many forms so that it is not clear whether one should choose a broad characterisation of law including non-state and non-sanctioned rules, or a narrower one confined to the sanctioned rules adopted by the state. Hence, there is no clarity regarding what phenomena are to count as law and form the basis upon which one could develop its definition.32 In order to choose these phenomena upon a rational basis, one needs reasons. A descriptive analysis cannot unveil them because it merely delivers facts. One might try to overcome this difficulty by defining at least the core phenomena that belong to the law. But even if there were a consensus about this core, this would not help us to define the concept because, for this purpose, one has to know its borders. There would remain the question of whether other phenomena should also be regarded as law and be integrated into its definition. For instance, if one regards rules without sanctions not as a core case for law, but as a case at the penumbra, the question still is as to whether they are law or not. Different concepts of law are produced in dependence upon the answers to this question. The difficulty, after all, is not how to define the core, but how to define the concept. Likewise, if one regards only state rules as law, one excludes rules from non-state institutions such as churches or private societies, unless they are recognised by the state as law. Thus, there is neither an agreed upon nor a natural phenomenal basis for the determination of law. One might adhere to a certain set of norms that have the same source, look to the function of regulating behaviour, take sanctions as fundamental, or choose other properties. Many delimitations of the various phenomena associated with law are possible. So, the first condition of a phenomenal basis cannot be met by reference to facts alone. Rather, reasons to justify the choice of the relevant phenomena are unavoidable. In this regard, the definition of law differs from the definition of empirical concepts such as horses. For the latter, one can take certain phenomena as a basis and look for the properties which are essential to them. It is at least clear what kind of things are to be defined as horses, to wit, animals with a certain appearance, whereas, in law, it has yet to be decided what kind of entities have to be covered by its concept. Among the candidates, there are not only rules, but also rulings, as well as the reasons underlying 30 Hans Kelsen, Reine Rechtslehre, 2nd edn. (Wien/Vienna: Verlag Österreich, 2000), 54–55. 31 Gardner, n. 23 above, 291. 32 Cf. Murphy, n. 7 above, 384.

What Constitutes the Concept Of Law?

207

them. So, even the category of the entities that constitute law is unclear. And, in contrast to horses, there is not even rough agreement regarding what is to count as law. This, however, is not surprising, given that law, irrespective of whatever else can be said about it, is not directly accessible to the senses. It cannot be touched, smelled, heard, or seen. Therefore, experience does not suffice to distinguish it from other entities. No “fact of the matter” nor a demonstrative act can determine what should count as law. One needs reasons, which are, by their very nature, non-empirical. The same holds for the second condition that there must be certain properties that are necessary and sufficient for law. Any property that one takes as fundamental has severe implications for the possible instances of the concept. If one regards as law only the rules that are sanctioned by force, one excludes rules that prompt the addressees to a certain form of behaviour without a physical sanction, rules which, nevertheless, have a lawlike character in all other regards, such as their validity, formulation, and interpretation. Similarly, if one treats as law only rules adopted or recognised by the state, one excludes rules established in international trade such as lex mercatoria, despite the fact that they function like state law. This exclusion might be the right decision, but it nonetheless demands a justification. As long as one does not know what is to count as law, one cannot determine the necessary and sufficient properties to identify it. In contrast to horses, law does not have a DNA, i. e., one natural property peculiar to all its instances. Rather, there is a plurality of properties, such as the membership in a set of norms, the recognition by officials, or its enforceability, which could – in isolation or in combination – be taken as fundamental. No natural border exists which just has to be discovered or described. Therefore, a selection is inevitable, and, with it, a justification by reasons. For this reason a descriptive analysis turns out to be insufficient. At best, it could show that certain phenomena are regarded as law or have certain common properties, but not that they are indeed necessary or sufficient for the concept of law. Among competing claims to be law, such an analysis cannot establish one of them as superior, so that all other claims must fail. All facts are equal. None of them can compel one to form the concept of law in a specific way and to exclude an understanding based upon other facts. In order to decide about the right description, one needs reasons in addition to facts. The decision is hence based upon something which descriptive findings are inapt to deliver. The required reasons are normative in kind because they justify why, among competing claims and competing rules, some should be recognised as law and others not. A successful description that certain phenomena are regarded as law or function as law cannot, in principle, establish that they are indeed law. Against this background, it becomes understandable that the decision to treat as law what is commonly regarded as law is unhelpful. There is hardly any agreement regarding what should count as law. The most interesting questions regarding whether grossly unjust rules are law or whether non-state rules can be law are disputed. One can always ask whether the claim that a certain rule is law is justified. Every claim can fail.33 So, one 33 For the claim to legitimate authority, see Kenneth Einar Himma, “Positivism and Interpreting Legal Content: Does Law Call for a Moral Semantics?”, Ratio Juris 22 (2009), 24, 39.

208

Lorenz Kähler

needs normative reasons to justify why certain rules, principles, or reasons belong to law. These reasons might lead to a definition based upon descriptive criteria, such as the dependency on an established rule of recognition. But the definition of law does not follow from the finding that there is such a rule of recognition. The mechanism of how certain rules function should not to be confused with the reasons why such a rule should be regarded as fundamental for law. Rather, these reasons are fundamental to single out certain properties for the concept of law. They may become plausible by analysing facts, but do not follow from them. Nothing in this argument supports or forecloses to regard law as a set of social or institutional facts, as John Searle and his followers suggest.34 Such an analysis might turn out to be convincing, and explain, for instance, how legal rules emerge. But it cannot decide which social facts should count as law. The best that one obtains from such an analysis is an understanding about what is mostly understood as law, how certain rules emerge and are practiced. However, one does not obtain a conclusive answer as to what should be regarded as law. The difficulty of singling out, from the many social and institutional facts, the ones that are rightly to be recognised as law remains. When one talks about facts, be they empirical or social, one is referring to the past in which they took place. Contrary to this, the question of what is law is also important in a context that concerns the future. For then one does not have to confine oneself to the historical question of what was previously understood as law, but one, instead, tries to answer the question of what should count as law both now and in the future. This might also be partially determined by the previous development, but does not follow from it. No fact of the matter compels one to continue using a once established concept in the same way as before. There might be reasons, such as stability, for doing so, but they are normative in kind and do not follow from a descriptive analysis of the past. Other reasons might demand a change. To say otherwise would mean that law has natural properties due to which its concept can only be understood in a certain way and that no fundamental change of society or the institution of law could alter it. One would have to claim that the concept of law was true for all times and places, independent upon the facts. If there were such a concept, one might indeed subscribe to general theses about the law, such as the positivist one that, in any legal system, the validity of legal norms depend on its sources and not its merits.35 But one could even then hardly claim that one confines oneself to a positivist analysis of existing facts because the maintained properties of law would be independent of these facts. The thesis about the unchangeable nature of the concept of law that holds for any legal system, both now and in the future, has a metaphysical character transcending an empirical analysis. It therefore stands in a tension with the anti-metaphysical stance of positivism.36 One needs to explain why the opposition to

34 Searle, n. 14 above. 35 Gardner, n. 23 above, 19. 36 E. g. Kelsen, n. 30 above, 1, 208.

What Constitutes the Concept Of Law?

209

metaphysical claims should hold for law, but not for its concept, although both are, at least to a certain extent, human artefacts and thus subject to development. If one, instead, understands law as an artefact, its concept becomes malleable because it then depends on how its creators – consciously or unconsciously – constitute it. Neither empirical nor social facts could totally determine such a decision in advance. In this regard as well, the concept of law differs from the concept of empirical concepts, as it refers to an entity that is subject to social change. Unlike horses, law is – at least in principle – alterable by human beings. This is another reason why previous facts do not suffice for its determination in the future, and why one needs reasons for this purpose. Only they can establish why a certain phenomenon should be, independently of future facts, regarded as law. Once again, it is important to note that this conclusion does not depend on a particular descriptive analysis, i. e., whether one follows Hart in conceiving of law as a union of primary and secondary rules, or whether one follows another descriptive analysis. Rather, such an analysis is already – in principle – incapable of determining the concept of law. The reasons that are constitutive for it cannot be substituted by facts or a description thereof. 5. Normative Conceptualism If there is no fact of the matter that could alone determine the concept of law, then the question remains as to what else should constitute it? Is it, then, not just a matter of convenience to stipulate it in one or another way? This would suggest that there are no reasons to determine the concept of law in a particular way and that any decision would do. However, as the previous argument has revealed, this is not the case. That there is no concept of law deducible from a factual description does not exclude that there are normative reasons as to why a certain concept is preferable in comparison to other concepts. These reasons could significantly vary. As mentioned above, they could refer to ordinary language in order to minimise the confusion connected with the concept of law. One might also maintain that it is important to identify which concept of law helps us to explain the prevailing legal systems best and which concept leads to the most beneficial results. At this point, it does not matter precisely which reasons should be determinative. Rather, it suffices here to observe that reasons apt to found such a decision are all normative in kind. They all justify a particular concept of law by answering the question of “What should count as law?” One might object that there is a difference between the question of what is the concept of law, and the question of what should the concept of law be. So, normative reasons could, in this perspective, determine only the answer to the second question, but not to the first one. However, in order to exclude normative reasons from the answer to the first question, one needs to assume that the concept of law exists independently of what the best reasons demand it to be. Although this perspective rightly stresses the

210

Lorenz Kähler

importance of normative reasons for the question of what an optimal concept of law is, it neglects that such reasons might play a different, but nonetheless important, role for the question of what, at present, counts as law and is, in this sense, the existing concept of law. If the whole idea of an institution has a normative aim, such as co-ordinating behaviour, furthering minimal justice or ordering society, the concept and its borders are, at least in part, determined by normative reasons. At least, in this regard, law is similar to morality, for which the questions of what one should do in the future and what one should do now are different, but might, in part, still be answered with the help of the same reasons. The question of what is currently the concept of law could similarly differ from the question of what an optimal concept of law should be, but rely, nevertheless, in part upon the same reasons. In order to determine what belongs to law, it is hence inevitable to pay attention to normative reasons. Not all of such reasons are moral ones. The latter are part of the former, but are in no way exhaustive for them. Normative reasons might also include aesthetic considerations, for instance, that a certain conceptual scheme is, because of its symmetry and brevity, preferred to another conceptual scheme. Thus, conceptual ethics, as David Plunkett calls it,37 is at the core of the formation of the concept of law, but not exhaustive for it. A whole variety of other normative reasons might influence what, on balance, is the preferable concept. For this balance, it is important to bear in mind that the concept of law – like many other concepts – has an exclusive character, so that, by recognising some actions as legal, one cannot simultaneously characterise them as illegal. This is a minimal assumption about the concept of law that follows from the desire to maintain consistency. For law, this exclusive character is important because actions that are classified as legal suggest that one might undertake them without opposition from any person following the rule of law, especially state officials. Even if grossly unjust rules could, despite most natural law theories, become law, the characterisation of them as law is neither innocuous nor neutral. They suggest, at the very least, that officials should, prima facie, not resist them. In this regard, the concept of law resembles a title like “pope” or “majesty” which is more than just a name like Peter or Anna, although, as in their case, no specific character follows from it. There can be just, as well as unjust, rules as there might be cruel, as well as humane, emperors and popes. Nevertheless, it does matter who bears the title of “pope” or “majesty”. It is not one word among many, and is bestowed only on one person at a time so that one cannot indifferently grant it to everybody. There has thus to be reasons why one recognises one person as his or her majesty or the pope and not another. These reasons do not have to be exclusively moral in kind, and might refer to certain facts, such as a pedigree. But such facts alone cannot decide who the rightful pope or majesty is. Therefore, disagreement remains possible, for instance, about the question of whether one regards the pope to be the person elected by the assembly of 37 Plunkett, n. 19 above, 210.

What Constitutes the Concept Of Law?

211

cardinals or the one appointed by his predecessor. One needs reasons to make such a dispute dissolve, or – in a more objective matter – one needs to know the reasons according to which the best choice has to be made. Unless one submits to scepticism, they are a matter of cognition and not negotiation.38 Equally, one has to justify by normative reasons why something counts as law and is not merely claimed to be law. Only with the help of normative reasons can one single out from among the variety of competing claims, which one is overall best supported by reason. There is no fact of the matter that can substitute these reasons or guarantee that the claim to be law always succeeds so that no choice about the concept has to be made. If law is to guide behaviour, its meaning cannot be inflated by granting any claim to be law the status of law. Instead, the concept of law has to be reserved to one or a few sets of claims. Just as the title “pope” or “majesty” is not arbitrarily bestowed to everybody, the recognition of law has to rest on reasons, too. Thus, law takes on an exclusive character according to which only one claim among several claims to be law can succeed. In this exclusivity, the definition of law differs from the definition of industrial standards such as the ones for a DIN A4-page. The decisions of standardisation agencies such as the ISO are also based upon reasons. But these reasons do not constitute the standard which merely rests on the decision of the standardisation agency. Even if it turned out that another standard would be preferable because it would serve the pursued purposes better, the DIN A4-standard would still remain constant. It is more important that a standard is set, than that the standard has optimal content. In contrast to this, for the concept of law, there is no agency that could define it and no historical act by which a particular concept was designated as authoritative. Law is not one standard among many that could be used whenever one needs it and left aside whenever one prefers a different standard. Instead, the label “law” carries with it the described exclusivity. It demands to be followed, whereas a standard is optional, it does not have to be obeyed. Several industrial standards can and do co-exist, so that, by recognising an agency as a standard-setter one does not forgo the possibility of applying another standard. This is different from law, where one cannot recognise a rule as a legal rule, and, at the same time, affirm that everybody can choose to follow a different rule, if he or she pleases. Law entails requirements, not suggestions. If it is to have any purpose, one cannot be indifferent about whether it is to be followed or not. Although normative reasons are thus fundamental for the question of what the proper concept of law is, it still differs from the question of what the optimal concept of law should be. One could consistently argue that, at present, the concept of law has a particular content, due to an established understanding and the current conditions, but that the concept of law should change in future. For instance, one might regard content A as best for the concept of law under optimal circumstances, say, in a society of enlightened people, but admit that such a concept is, unfortunately, not realisable under the 38 For the latter account see Plunkett, n. 19 above, 260.

212

Lorenz Kähler

current condition of too little interest in law or too much disagreement on moral matters or the prohibitive cost of a change. Then, one would prefer version B of the concept of law, which, despite its shortcomings in comparison with concept A, is the best one for the moment. So the question of what, at present, counts as law quite possibly leads, despite its normative nature, to a different answer than the question of what concept of law would be optimal. Against this background, it becomes clear why, for the determination of the concept of law, the legal practice as well as the established understanding of law might play a significant role. One might, for instance, argue that, because of its proven helpfulness in organising society, the established concept of law should be accepted unless another concept would verifiably lead to better results. Then, a concept of law would have to consider the current dominant understanding and could only deviate from it exceptionally. But this would not replace normative reasons with a descriptive analysis of the current practice, but would, instead, constitute a normative reason to refer to this practice. Even then, normative reasons remain fundamental for the concept formation. Only they allow us to choose from among several claims to be law the one that shall succeed. No natural fact can do so and, in so doing, delineate the borders of the concept of law. Once normative reasons turn out to be decisive, the concept of law becomes what the best normative reasons prescribe it to be. They have, of course, to be specified. The likely candidates include, for instance, reasons regarding which rules have the greatest explanatory power, the highest empirical adequacy, and the best moral justification. But because these considerations might conflict with each other, nothing is thereby decided about the specific content of the concept of law. Normative reasons might finally ground a reference to an existing institution and demand to separate it clearly from morality. But possibly, these reasons might, in addition, ground minimal requirements of morality for a norm to be recognised as law. The specification of these reasons are not important at this point. What matters here is solely that the reasons decisive for the formation of the concept of law are normative in kind. This should come as no surprise as the law itself is a normative enterprise. It prescribes behaviour and helps to evaluate actions as well as the state of affairs. The concept of law determines what counts in a particular society as law. Hence, it has an influence on the prescription of behaviour and the evaluation of actions. Therefore, it is not a neutral device to describe reality but the basis upon which important prescriptions are made. It would thus be surprising if the concept of law could follow from a mere description of facts and would not be affected by normative claims in kind, similar to the ones that it shall realise. All this is not to say that a moral and a legal point of view are one and the same so that one could merge all of them into one. The normative world can entail several distinct realms with opposing claims. It is the advantage of law that it filters the normative reasons admissible in a legal argument and admits new ones such as the reference to statutes or precedents. Therefore, an explanation of how normativity emerges from facts is insufficient to ground law. For even if this explanation succeeds, it remains necessary to decide which set of norms inside this normative world should be designated as law.

What Constitutes the Concept Of Law?

213

For this purpose, one needs reasons that justify this choice. Thus, what counts as law ultimately rests on normative reasons, not facts. 6. Potentialism as a Consequence By recognising that the concept of law depends upon normative reasons, little is decided about its particular content. This is, in itself, an important point to notice. The openness of the concept of law is not an accident but the consequence of the variability of the normative reasons underlying it, the weight of which might depend on changing circumstances. Such a change is, especially, possible in regard to the stability and clarity of law and its ability to regulate behaviour. Under certain empirical circumstances, for example, the widespread knowledge about public announcements, complex rules can turn out to be optimal, whereas, under different circumstances, other standards, for example, primitive, but easily memorisable rules, might be preferable. This could influence what kind of rules of recognition turn out to be optimal. Consequently, what stability and clarity require does not have to be fixed for all times. If they play a role for the concept of law at all, this concept itself might change. Nothing precludes that it has to be fixed for all times and be isolated from the changing circumstances so dominant in law. For instance, in a small community unified by one religion, a concept of law that does not distinguish religious and legal norms might be optimal. In this case, one could not distinguish between religious and secular law. All norms would be perceived as belonging to one unity. In deciding cases, judges would not need to take an established rule of recognition referring to certain social acts as fundamental. Instead, they could refer to what, according to their understanding, God’s commands are. However, for other societies which are religiously diverse or which do not want religion to determine worldly affairs, it becomes necessary to distinguish between religion and law. The concept of law could no longer depend or be mixed with religious notions, but would have to rest on other grounds. Similarly, the connection of law and morality could also depend on historical circumstances. It is, after all, an empirical question whether the separation of both leads to more clarity or more arbitrariness, whether dictatorships could thereby more easily abuse the institution of law or whether this separation could, on the contrary, support the resistance to them because cruel legal acts could no longer be associated with morality.39 The answers to these questions need not be the same for all times and all societies. They are, at least in part, dependent upon empirical circumstances. Possibly, a separation of law turns out to be optimal in some circumstances and a connection of the two optimal in other circumstances. Nobody can guarantee that these questions can conclusively be answered on considerations that are independent of their consequences on social life. 39 See, for the discussion, on the one hand, Radbruch, n. 5, and Alexy, n. 3 above, 31; and, on the other, Hart, n. 10 above, 16–17, and Murphy, n. 7 above, 384.

214

Lorenz Kähler

This argument should not be confused with the trivial observation that law like language changes in the course of history. The point to note is not that the law develops, but that the weight of universal and time-independent reasons for its concept might depend on changeable circumstances. So, the concept of law best for a certain society might take on a different content to that for another society, although both would rest on the same reasons. This is the case if the reasons constituting the concept of law refer to changing circumstances, such as the question of how behaviour in a certain society could be optimally regulated or how clarity could best be reached. Although this consequence, at first glance, seems to support a “conceptual relativism”,40 according to which there is a plurality of equally valid concepts of law, it does not need to do so. The concept of law even in this case does not depend upon the fashion, mood or taste of the people subject to law, but upon unchanging reasons that refer to changing circumstances. Because of the universality and stability of these reasons, this view is far from a relativist position. It might merely be the circumstances relevant for the concept of law that change, and, with them, the weight of the reasons behind it, but not the reasons themselves. Opposite theories that give definite answers regarding the concept of law are incompatible with the possibility that the concept itself might depend upon varying circumstances. But such a change can only be excluded if there were an a priori fixed concept of law valid in all possible worlds. As already mentioned for positivism, such a claim about the nature of the concept of law stands in a tension with positivism’s claim at the object level that there is no natural law. One can hardly explain why such a metaphysical thesis independent of facts has to be totally banned with regard to law, but should nonetheless be highly welcome with regard to its concept. It is methodologically inconsistent, at the very least. The same is true for natural law theories about the concept of law and its connection to morality. They also maintain that law necessarily has certain properties (such as not being grossly unjust or necessarily intending justice, on the one hand,41 or, on the other, being inseparable from injustice42), without showing that such an answer holds for all possible worlds. In this regard, positivism and the so-called natural law tradition are closer to each other than one might initially think. They both subscribe to what one might call conceptual metaphysics, according to which the concept of law is independent of empirical facts and thus holds in all possible worlds. This view also holds for naturalism as one of the offspring of positivism. Naturalism and natural law theory might thus have more in common than just the name. These theories all maintain that there is a natural concept of law. Their opposition cloaks the common questionable assumption that the concept of law has the same content under all circumstances. If, instead, normative reasons turn out to be decisive for the concept of law, one can accept that their weight might vary with the prevailing historical circumstances 40 Koller, n. 4 above, 182. 41 E. g. Alexy, n. 3 above, 201. For a critique against such an “essentialism”, see von der Pfordten, n. 2 above, 191. 42 Esther D. Reed, Theology for International Law (London: Bloomsbury, 2013), 47.

What Constitutes the Concept Of Law?

215

and thereby change the concept itself. Consequently, law and morality do not necessarily have a fixed relationship for all times and all places. Under certain circumstances, the best reasons for the concept of law might demand a close connection between law and religion or law and morality, whereas, under other circumstances, another concept might turn out to be best supported by reasons. The disadvantages of a change, like the confusion among people used to the old concept, could also taken into consideration. But it would be just one consideration among many that have to be considered. It is not, at least from the outset, in any way certain that the reasons constituting the law can be reduced to one or only a few. Pluralism is not confined to the interplay of several legal systems, but does, possibly, also concern the foundation of law. Due to this, law and morality have a mere potential relationship. They could be connected, although they need not be. At first glance, this position resembles inclusive positivism, according to which law could, but need not, incorporate morality.43 Whether moral standards are part of the law also depends, in the latter view, on the circumstances of the particular legal system. However, this conclusion rests on different grounds, i. e., the decision of a certain legal system, and not on a changeable concept of law. On the contrary, inclusive positivism maintains, like other kinds of positivism and natural law theory, that there is one definite concept of law, which is valid for all times and places. It claims that the concept of law has necessary properties that allow statements about its relationship to morality, namely, that law might include morality. Potentialism, as stated here, denies any such claim. The concept of law, and not just the law of the various legal systems, is subject to change. So, under certain circumstances, an exclusive version of positivism could be preferable, which inclusive legal positivism denies. Under other circumstances, a non-positivist concept of law could hold, according to which moral considerations necessarily influence the validity of norms. The variability of potentialism does not rest on the content of the particular legal system, but on the concept of law itself. The central claim of potentialism is thus that the concept of law has some non-necessary properties, i. e., properties that are not true in all possible worlds. One might try to deny such variability by distinguishing between an unchangeable concept of law and changing conceptions of it.44 These changes would concern the concretisation of unchangeable notions in the concept of law, such as the sovereign or the officials. These notions have indeed to be spelled out so that one might, for instance, refer to the parliament as one possible sovereign or judges as part of the officials. In this vein, one obtains more concrete and, possibly, changing conceptions of an underlying unchangeable concept of law. But variations in such explications do not show that the concept of law itself has an immutable core. Thus, it is important to stress that, if normative reasons are decisive for the formation of the concept, and if their weight depends on varying circumstances, then the concept of law is mutable as well. All depends on the best normative reasons that are constitutive for the concept of law. 43 Kenneth Einar Himma, “Inclusive Legal Positivism” in: Coleman & Shapiro (eds), n. 2 above, 125–65. 44 See note 17.

216

Lorenz Kähler

This variability is less severe and hence less endangering for the stability of the legal system, than it might appear initially. For, first of all, the necessity to have a stabile concept of law has to be considered in its formation so that only grave changes like the transition of a primordial society into a modern one would justify a change. Otherwise, disputes about what the law of a particular legal system requires would be confused with the conceptual question of what law is in general. Second, it is important to note that the normative reasons do not change, but merely their weight. The force of a normative reason does not depend on when or where it was uttered, although its reception might. Its weight might change too, but only in so far as the argument refers to the varying circumstances. But such a change is plausible only under rare circumstances because concepts are, in general, made for a variety of situations. If, for instance, it does count as an argument for a particular concept of law, in that it furthers the clarity about the law, then the connection of law and morality is affected if clarity is enhanced in a separation of both. Whether this is the case or not hardly changes with new developments. Only a fundamental change of society could alter the answer. Moral questions have almost always been disputed so that both the advantages and the disadvantages of separating them from law remain, to a considerable degree, the same. Nevertheless, such a change is imaginable, and hence a definite concept valid for all times and places is not pre-supposable. If one wants to characterise the relationship between law and morality in general, i. e., with no regard for a particular legal system, one could merely describe it as a potential one. If one worries about too much change, it might be of comfort that this potentialism itself is not subject to change. 7. Summary The dispute about the proper concept of law has long suggested that there is one concept of law that does not change with society or time. In this regard, positivism and natural law theory agree that there is a definite concept of law. This answer, however, is implausible if normative reasons turn out to be decisive for the formation of the concept of law. Because then there is a huge variety of reasons whose weight might depend on changing circumstances. The same holds if empirical circumstances are constitutive for the concept of law, because they might change as well. Consequently, the concept of law does not have an a priori fixed content. Instead, it takes on a mere potential relationship to morality. If this conclusion is sound, severe consequences follow for the debate between positivist and natural law theories. For then this debate would not be fundamental for understanding the concept of law. One could reasonably only engage in it once it is clear what kind of reasons are decisive for this concept. If these reasons are, at least in part, normative, a descriptive analysis supported by positivism is insufficient. If these reasons refer, at least in part, to facts, a non-positivist concept of law valid under all circumstances and in all possible worlds is illusory as well. Thus, behind the debate between positivism and natural law theories lurks a more fundamental question.

What Constitutes the Concept Of Law?

217

The possible change in the concept of law does not lead to a tragedy, because the concept of law might change too slowly and too rarely to effect the legal system and the conceptual scheme through which we understand it. But it remains a crucial difference whether one stands on firm ground or whether the ground is moving just too slowly or too rarely to be able to notice the change. What appears, for positivism as well as non-positivism, as a fixed relationship between law and morality turns out to be a mere potential one.

Rethinking the Practical The Migration Background of Thick Concepts* Andrés Santacoloma Santacoloma

The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. – Oliver Wendell Holmes1

Introduction When discussing the possible relation between Law and Morals there seems to be a pair of fairly standard, and thus, inescapable questions: “Is there a connection between Law and Morals, and if so, of what kind it is?”, “Does morality justify the application of the law or is the execution of the general morality a task for the law (for example, criminal law2)?” To answer this questions many legal scholars, however, appear to take *

1 2

I would like to express my gratitude to Ulfrid Neumann, Lorenz Schulz, André Ferreira Leite de Paula, Antonio Martins, and Sascha Ziemann for their comments on previous versions of this article. I would also like to thank my colleagues at the Philosophy of Law department for their questions and comments which lead me to different perspectives regarding these issues. Oliver Wendell Holmes, The Common Law, in: The Collected Works Of Oliver Wendell Holmes 109, 115 (Sheldon M. Novick ed., 1995), 109–324, at 115. See the discussions between John Stuart Mill and James Fitzjames Stephen regarding freedom and equality: John Stuart Mill On Liberty, Ch. I; James Fitzjames Stephen, Liberty, Equality, Fraternity (1873), Liberty Fund; New Edition ( June 1, 1993) or the discussion between H. L. A. Hart and Patrick Lord Devlin regarding the enforcement of morality by the law. Roughly stated: Unlike Devlin, Hart argues that to punish some behavior because it is immoral is not a legitimate function of the state. Devlin’s view is more pragmatic and focuses on the majority rule. Harts, on the other hand, is more humanistic and individual. Authors like Dworkin and Nagel follow Hart’s position. See: H. L. A. Hart, “Social Solidarity and the Enforcement of Morality,” The University of Chicago Law Review 35 (1976), pp 1–13; Patrick Lord Devlin, The Enforcement of Morals (Oxford University Press: 1959). Reprinted in: Devlin, The Enforcement of Morals (Oxford University Press 1965); Ronald M. Dworkin, “Lord Devlin and the Enforcement of Mor-

220

Andrés Santacoloma Santacoloma

very complex matters for granted: that there is single way of characterizing, not only the two domains at stake, but also their possible normative components – rules, norms, commands, permits, principles, and so on –; that there is a right-single-way for establishing the connection or its absence; that there are reasons for holding one of them, i. e. a way to determined if the alleged/defended connection/absence is warranted. These approaches to the issue have led many of these authors to embrace, once in a while, some kind of reductionism in the practical domain. Thus, I propose to put aside both questions, advancing a different approach to the relation-issue. In articulating my view, the definition and further developments of the theory of thick concepts, a distinction introduced by Bernard Williams – about the nature of concepts in the ethical domain and the truth-aptness of moral judgments about them in order to acquire moral knowledge –, will be at the core of the main argument of this paper; namely, that because of the ubiquity of these concepts and their nature (descriptive/evaluative), and a migration phenomenon of them, inside and between normative domains (or normative orders), an independence of one of these domains (orders) seems implausible. Moreover, I shall define what I have called the Migration Background of Thick Concepts, in order to rule out a possible response against my argument, from the view which holds the law as being a sort of special case of the more general, practical discourse. Part One: The Omnipresence of Thick Concepts Thick practical concepts are omnipresent concepts in the life of the law. When we pay attention to the law, its development, implementation, enforcement, or to the methods used to teach its content, it is easy to recognize the abundance of concepts that both have to fulfill a descriptive as well as an evaluation function. That is why it is often argued that the language of law draws a blurred line between the descriptive and the normative. For the very strong premise that I claim in the beginning different examples coming from different legal systems or codes of law can be utilized as evidence. Let me use as a starting point, different norms of the legal system of the Federal Republic of Germany3. From the Constitution: “The dignity of man is inviolable”4 or “Nobody can be forced against his conscience for military service with the weapon”5.

3 4 5

als,” Yale Law School 75, (1965–1966), pp. 986–1005; Ronald Dworkin, Taking rights seriously (London: Duckworth, 1977); Thomas Nagel, Equality and Partiality (New York: Oxford University Press, 1991). Examples of different legal systems would work as well. “Die Würde des Menschen ist unantastbar” GG, Art. 1 Abs. I “Niemand darf gegen sein Gewissen zum Kriegsdienst mit der Waffe gezwungen werden” GG, Art. 4 Abs. III

Rethinking the Practical

221

From the European Convention on Human Rights: “No one may be subjected to torture or inhuman or degrading punishment or treatment.”6

From the Civil Code: “If the assumption of the management with the real or the presumable will of the business owner in contradiction and the managing director had to recognize this, he is obliged to the business owner to the compensation of the management from the management even if it does not fall to another fault”7

From the X-ray Ordinance: “New types of activities to which human and environmental exposures may be related have to be justified, regard to their economic, social or other benefits, in relation to their potential adverse health effects. The justification for these existing types of activities can be reviewed as soon as there is substantial new evidence on the benefits or effects of the activity”8

From the Criminal Code: “Murderer is who … insidious … kills a man”9.

From the Code of Civil Procedure: “If the debtor is sentenced to make a declaration of intention, the declaration shall be deemed to have been delivered as soon as the judgment has become final.”10

For the sake of argument, some of these concepts should be defined. I do not take any philosophical position regarding the possible contents or meanings (Idealism, Realism, Conceptualism or Nominalism11), but limit the argument to the simple and everyday meaning of the terms12:

“Niemand darf der Folter oder unmenschlicher oder erniedrigender Strafe oder Behandlung unterworfen werden.” Art. 3, MRK 7 “Steht die Übernahme der Geschäftsführung mit dem wirklichen oder dem mutmaßlichen Willen des Geschäftsherrn in Widerspruch und musste der Geschäftsführer dies erkennen, so ist er dem Geschäftsherrn zum Ersatz des aus der Geschäftsführung entstehenden Schadens auch dann verpflichtet, wenn ihm ein sonstiges Verschulden nicht zur Last fällt.” § 678, BGB 8 “Neue Arten von Tätigkeiten, mit denen Strahlenexpositionen von Mensch und Umwelt verbunden sein können, müssen unter Abwägung ihres wirtschaftlichen, sozialen oder sonstigen Nutzens gegenüber der möglicherweise von ihnen ausgehenden gesundheitlichen Beeinträchtigung gerechtfertigt sein. Die Rechtfertigung bestehender Arten von Tätigkeiten kann überprüft werden, sobald wesentliche neue Erkenntnisse über den Nutzen oder die Auswirkungen der Tätigkeit vorliegen”. § 2a, Abs I RöV 9 “Mörder ist, wer…heimtückisch… einen Menschen tötet” § 211, StGB 10 “Ist der Schuldner zur Abgabe einer Willenserklärung verurteilt, so gilt die Erklärung als abgegeben, sobald das Urteil die Rechtskraft erlangt hat.” § 894, Abs II ZPO 11 See: Dietmar von der Pfordten, “Über Begriffe im Recht”, ARSP Band 98, Heft 4, 2012, S.442 ff. 12 My source for the definitions, unless explicitly stated otherwise in the footnote, comes from the Merriam Webster Dictionary for the English definitions and from the Duden Dictionary for the German definitions. Online at: https://www.merriam-webster.com/dictionary and www.duden.de) 6

222

Andrés Santacoloma Santacoloma I.

Human dignity is “the quality of a person that makes him or her deserving of respect, sometimes shown in behavior or appearance”13. II. Conscience14: “the sense or consciousness of the moral goodness or blameworthiness of one’s own conduct, intentions, or character together with a feeling of obligation to do right or be good” III. Torture: “… any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”15 IV. Treachery16: “violation of allegiance or of faith and confidence … treason … an act of perfidy or treason” () V. Will17: “mental powers manifested as wishing, choosing, desiring, or intending … a disposition to act according to principles or ends … the collective desire of a group … the will of the people … the power of control over one’s own actions or emotions … something desired; especially: a choice or determination of one having authority or power”. VI. Justification18: “the act or an instance of justifying something: vindication … arguments offered in justification of their choice … an acceptable reason for doing something: something that justifies an act or a way of behaving”. VII. Balancing19: “physical equilibrium stability produced by even distribution of weight on each side of the vertical axis … mental and emotional steadiness … a means of judging or deciding”.

13 Cambridge Dictionary Online at: https://dictionary.cambridge.org. In German Würde: “Achtung gebietender Wert, der einem Menschen innewohnt, und die ihm deswegen zukommende Bedeutung”. “It is the supreme value of the Constitution” (“Sie ist der oberste Wert des Grundgesetzes”) BVerfG, Beschluss vom 3. Juni 1980, Az. 1 BvR 185/77, BVerfGE 54, 148 – Eppler. 14 Gewissen: “Bewusstsein von Gut und Böse des eigenen Tuns; Bewusstsein der Verpflichtung einer bestimmten Instanz gegenüber” 15 Art. 1, UN – Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Adopted and opened for signature, ratification and accession by General Assembly resolution 39/46 of 10 December 1984, entry into force 26 June 1987. Online at: https://www.ohchr.org/en/profes sionalinterest/pages/cat.aspx in German at: https://www.institut-fuer-menschenrechte.de/fileadmin/ user_upload/PDF-Dateien/Pakte_Konventionen/CAT/cat_de.pdf 16 Heimtücke: “hinterlistige Bösartigkeit”. Heimtückisch: “bei völliger Verborgenheit nach außen hin in gefährlicher Weise bösartig oder davon zeugend” 17 Wille: “jemandes Handlungen, Verhaltensweise leitendes Streben, Wollen, besonders als Fähigkeit des Menschen, sich bewusst für oder gegen etwas zu entscheiden; durch bewusste geistige Entscheidung gewonnener Entschluss zu etwas; bestimmte feste Absicht” 18 Rechtfertigung: “das [Sich]rechtfertigen … Berechtigung”. Rechtfertigen: “etwas gegen einen Einwand, Vorwurf verteidigen, als berechtigt hinstellen … sich verantworten … als berechtigt, begründet erscheinen lassen, erweisen, zeigen” 19 Abwägung: “das Abwägen”. Abwägen: “(i) vergleichend und prüfend genau bedenken, überlegen… (ii) (veraltet) das Gewicht, Maß von etwas feststellen”

Rethinking the Practical

223

In the legal theory discussion it is often affirmed that concepts of this kind have been positivized by institutional decisions (legislative acts), i. e. that they have become part of the law, that they are to be understood as legal concepts, as law. The legal system has their meaning established and the question regarding their content is thus not asked (not about the concepts themselves, nevertheless what kind of norms are those which utilize such concepts it is often addressed – the discussion about principles, rules, rules of empowerment, competence, etc.20). But there are also examples in the legal system where legal norms explicitly leave room for moral reasoning through the insertion of such concepts. Two concepts are main paradigms of this in German law: on the one hand, “good faith” (Treue und Glauben) and on the other, “good morals” (Guten Sitten). The concept of “good faith” (Treue und Glauben) which § 242 of the German Civil Code introduced, is gained by two features: “The feature “Treue” (good), which means within a general clause (Generalklausel) an external and internal attitude based on reliability, sincerity and consideration of other person. The feature “Glauben” (faith) means the trust in such an attitude.”21 The references to the good morals22 in the German legal system are versatile: in the Constitution, is conceived as a restriction of the free development of the personality23; in the Civil Code as a cause of invalidity (§ 138 Abs. 124) or of certain obligations (§ 81725). It also serves as a reason for the nullity of administrative acts in the Administrative Procedural Law (§ 44 par. 2 no. 6 VwVfG26). And in the event of mayhem, according to § 228 of the Criminal Law Code, consent excludes the criminal liability of the actor only in cases where it does not infringe good morals27. German jurisprudence has even determined the concept of “good morals” as the “sense of decency of all fair and just thinkers”28.

20 Neil MacCormick, Institutions of Law. An Essay in Legal Theory, (Oxford University Press; 2008) 21 For the German definition: http://www.juraforum.de/lexikon/treu-und-glauben “Das Merkmal Treue bedeutet innerhalb der Generalklausel nach seinem Wortsinn eine auf Zuverlässigkeit, Aufrichtigkeit und Rücksichtnahme beruhende äußere und innere Haltung gegenüber einer anderen Person. Glauben meint das Vertrauen auf eine solche Haltung.” The definition of the two features, however, is not far from that to be read in the Duden dictionary: faithfulness as “reliable, persistent in its mind ([to] another, to a cause)” and faith as “possible and probable to hold, accept; believe that … to be true, correct, credible; be emotionally convinced of the truth of a thing or a statement…”. 22 http://www.zeit.de/1964/04/die-guten-sitten 23 “Jeder hat das Recht auf die freie Entfaltung seiner Persönlichkeit, soweit er nicht die Rechte anderer verletzt und nicht gegen die verfassungsmäßige Ordnung oder das Sittengesetz verstößt” GG, Art. 2 Abs. I 24 “Ein Rechtsgeschäft, das gegen die guten Sitten verstößt, ist nichtig” 25 “War der Zweck einer Leistung in der Art bestimmt, dass der Empfänger durch die Annahme gegen ein gesetzliches Verbot oder gegen die guten Sitten verstoßen hat, so ist der Empfänger zur Herausgabe verpflichtet” 26 (1) Ein Verwaltungsakt ist nichtig, soweit er an einem besonders schwerwiegenden Fehler leidet und dies bei verständiger Würdigung aller in Betracht kommenden Umstände offensichtlich ist. (2) Ohne Rücksicht auf das Vorliegen der Voraussetzungen des Absatzes 1 ist ein Verwaltungsakt nichtig, … 6. der gegen die guten Sitten verstößt. 27 “Wer eine Körperverletzung mit Einwilligung der verletzten Person vornimmt, handelt nur dann rechtswidrig, wenn die Tat trotz der Einwilligung gegen die guten Sitten verstößt.” 28 “Anstandsgefühl aller billig und gerecht Denkenden”. RG, Urteil vom 11. April 1901, Az.: V1 443100 = 48, 114, 124. Otto Palandt und Jürgen Ellenberger, BGB-Kommentar, 73. Auflage, 2014, § 138 RdNr. 2.

224

Andrés Santacoloma Santacoloma

Paying close attention to the contents of the definitions of the concepts given, two broad categories can be distinguished: (i) Concepts that the law has won from another field (morality, etiquette, aesthetics or, epistemology) and determines as legal content. As a result, “external” concepts become contents of law: legal concepts. (ii) Concepts that the law develops by itself, but leaves open, so that the rules allow a scope for interpretation by non-legal components. But by a more detailed consideration, several relations can be observed, among others: – That the mentioned concepts in those rules – both group (i) and group (ii) – follow a similar pattern of behavior: they say something about certain states of affairs in the world (descriptions of facts), providing at the same time defeasible reasons for action, i. e. they are normative. This confirms their thickness29. – Those thick concepts cannot only be found in the field of practical discourse. Terms such as “balancing” or “justification” are epistemic concepts: their content is explained by means of epistemological methods (the law is also aware of this reality: “… The justification for these existing types of activities can be reviewed as soon as there is substantial new evidence on the benefits or effects of the activity” – RöV). However, this does not preclude such concepts from possibly triggering certain moral consequences. – That (sometimes) the concepts that the law claims for itself and its norms (rules and principles) already are normative. This is the case with terms such as dignity or conscience. – That most of our normative reasoning is saturated with thick concepts of a variety of classes and that these are a matter of degree (allowing the application of degree predicates30). – That the law is not always in a position to reduce the significance of these terms to legal or other standards. Although an analysis of epistemic thick concepts in the field of aesthetics or perception would be highly interesting (queries regarding how we perceive color and to what extent “red” bears a resemblance to “good”, or how such concepts as “grotesque”, “sophisticated” or “sublime” influence our aesthetic judgments, or what “art” means in other practical areas31), I will restrain the discussion to normative (moral, legal) concepts. For the sake of my argument one distinction must be stressed between “immoral,” “amoral,” and “unmoral”. (i) Non-moral are actions or events in which moral categories cannot 29 Bernard Williams, Ethics and the Limits of Philosophy (London: Fontana Press / Collins 1985), I used the Routledge Edition: Williams, Ethics and the Limits of Philosophy, (Routledge Classics, Taylor & Francis, 2011), at 147–8. 30 Degree predicates allow the use of modal adverbs of quantification since the properties they describe, such as, e. g. “very”, “exceedingly”, “extremely”, “reasonably” or “mostly”, could be graded. Absolute predicates are those that do not allow graduation. There are some adverbs that are applicable to non-degree predicates. However, this does not mean that the degree predicates are qualified with modal adverbs of quantity. See: Haack “Do we need “fuzzy logic”?“ in: Susan Haack, Deviant Logic, Fuzzy Logic, Beyond the Formalism, (Chicago: University of Chicago Press, 1996) at 240ss. 31 BVerfGE 30, 173, 189; 67, 213, 226 ff.; 75, 369, 377; 83, 130, 138; Urteil des ersten Senats v. 13.6.2007–1 BvR 1783/05

Rethinking the Practical

225

be applied (for instance, when learning about the hydrostatic equilibrium of stars); (ii) Amoral are acts or events that purposely exhibit indifferences to rules or social laws or to the observance of such norms; (iii) Immoral are acts or events in which certain moral predicates can be applied, those actions or events are of a kind that are said to be evil, sinful, or wrong according to certain rules. An immoral act is a violation of a rule32. The background of this consideration is that in the practical field there is a polarity of the values, i. e. each value having a corresponding negative value, one being exactly the opposite quality. This allows comparisons to define values and thus recognize the concepts. A method for distinguishing and categorizing normative thick concepts is of relevance. A moral test of this kind: (i) presupposes that the thick concepts capture an objectivity that is constitutive for the understanding of the properties they describe (Cognitivism); (ii) affirms that a thick normative concept is to be part either of the category of the moral or of the one of the immoral – in the case of the amoral the question remains open – (polarity of values); (iii) assumes that there are substantial reasons for estimating the value described by the concept: (i) w is a value if the substantive reasons indicate that w is to be appraised33. (ii) x is a thick practical concept, if and only if x describes a fact, which has a w attached to it, providing (contestable) reasons for action. (iii) x is a thick practical concept if only if there is an opposite term with a negative w, an anti-w, which is relevant to the description of Fa (polarity) Furthermore, a concept cannot only be compared with its direct negative value, but also with the content that is assigned to it in other areas of discourse. An act or event may be morally wrong, even though it is not unlawful, or contrary to morality in the sense of etiquette, although being out of the spectrum of evaluation according to the parameter of “good morals” as it is understood in the legal domain. The relationship is –tends to be– one of the permeability (Durchlässigkeit). This calls for another premise: (iv) x belongs –primarily– to the domain D1 and not to the domain D2, because x in D1 has certain characteristics and thus, the (normativity) standards of D1 and not of D2 are (predominantly) to be used.

32 Unlike immoral acts or events that are morally wrong, amoral acts or events are either neutral from a moral perspective, or simply distanced from moral considerations. Amoral and non-moral are also to be distinguished: non-moral acts, events or things (animals, generally the objects) are even further from moral categories than amoral things that ignore morality. These are alien to morality. 33 See: Mark Johnston, “Dispositional Theories of Value,” Proceedings of the Aristotelian Society, supp. vol. 63 (1989): 139–174

226

Andrés Santacoloma Santacoloma

Back to one of my examples: (i) Dignity34 is a value because it enables: (i) the recognition of a principle of equality for all people, (ii) understanding of the human being as an “end in itself ” and not as a “means to an end”35; (iii) and the recognition of others for the achievement of justice and equity: “The order of economic life must be in accordance with the principles of justice with the aim of ensuring a decent existence for all. Within these limits the economic freedom of the individual must be secured”36; (iv) demonstrating the autonomy and moral capacity of human beings; etc. All of which is to be appraised. (ii) Dignity is a thick concept: it describes the fact that all people are equal and have a value regardless of any traits (origin, social class, salary, education, etc.). There is an (fictional) equality, ergo it is expected that a vast part of the behavior of each human could be universal e. g. that everyone will act justly: “So act that you use humanity, whether in your own person or in the person of any other, always at the same time as an end, never merely as a means”37. (iii) Dignity is a thick practical concept because there is a correspondent disvalue, i. e. there is a polarity indicating its relevance: indignity is something that causes a lack of respect for somebody or for oneself and is something worth to prevent by virtue of society’s common sense. (iv) Dignity is – first and foremost – a matter of morality and not of law, because disrespect for dignity leads to indignity of the act or event38 that society punishes in a not-legal manner (Again: It depends on the dimension and proportion of the disrespect – thick concepts are a matter of degree and therefore the reasons for action they offer.) 34 See: J. Waldron and M. Dan-Cohen, Dignity, rank, and rights, (Oxford; New York: Oxford University Press, 2012); Waldron, J. (2013) “Is dignity the foundation of human rights?” NYU School of Law, Public Law Research Paper 12–73. 35 “Die Wesen, deren Dasein zwar nicht auf unserem Willen, sondern der Natur beruht, haben dennoch, wenn sie vernunftlose Wesen sind, nur einen relativen Werth, als Mittel, und heißen daher Sachen, dagegen vernünftige Wesen Personen genannt werden, weil ihre Natur sie schon als Zwecke an sich selbst, das ist als etwas, das nicht bloß als Mittel gebraucht werden darf, auszeichnet, mithin sofern alle Willkür einschränkt (und ein Gegenstand der Achtung ist”. Immanuel Kant, Grundlegung zur Metaphysik der Sitten II. Regarding Kant’s concept of dignity see: Dietmar von der Pfordten, “Zur Würde des Menschen bei Kant” in: http://www.rechtsphilosophie.uni-goettingen.de/ZurWuerdeDesMenschen BeiKant.pdf 36 This is my own translation of the Art. 151, Die Verfassung des Deutschen Reichs, WRV: “Die Ordnung des Wirtschaftslebens muss den Grundsätzen der Gerechtigkeit mit dem Ziele der Gewährleistung eines menschenwürdigen Daseins für alle entsprechen. In diesen Grenzen ist die wirtschaftliche Freiheit des Einzelnen zu sichern”. 37 “Handle so, daß du die Menschheit, sowohl in deiner Person, als in der Person eines jeden anderen, jederzeit zugleich als Zweck, niemals bloß als Mittel brauchest.” Immanuel Kant, Grundlegung zur Metaphysik der Sitten (1785). Erster Abschnitt. Übergang von der gemeinen Sittlichen Vernunfterkenntniß zur philosophischen, AA IV 429/BA 66–67. 38 “Die Würde des Menschen ist antastbar”: http://www.spiegel.de/wissenschaft/mensch/ethik-debattedie-wuerde-des-menschen-ist-antastbar-a-685376.html

Rethinking the Practical

227

Cognitivist-normative explanations about the content of moral concepts and the possibility of deriving knowledge from them are often confronted with two counter arguments –mostly from the non-cognitive flank: first, the argument of parochialism or of the provinciality of concepts, and second, the argument of incommensurability of values. Part Two: Parochialism of Concepts and Incommensurability of Values (i) Incommensurability of Values Opponents of such conceptual-based argumentation usually affirm that generally, normative concepts have a single similarity: they come from different backgrounds, i. e. they have different moral, religious, aesthetic, or political origins. Consequently they have no benchmarks for comparison with one another, so that concepts contained in one normative order cannot explain concepts of other orders. This position argues for the incommensurability of values, i. e. that values cannot be reduced to a common measure39. The question of incommensurability involves different views: (i) incommensurability of the value bearer. These include authors such as Raz40 or Chang41. If a decision has to be made between two value bearers that contain the same value under the same conditions, the values cannot be compared, they are incommensurable. The decision as to whether to pursue a career in law or in music, certeris paribus, both being equally successful, cannot – according to Raz – be based on the value (e. g. “good” in the good career) of the value bearers at stake. One value does not (cannot) exclude the other. Chang suggested the predicate incomparable: a judgment about the values that cannot be considered true shows the incomparability of the values. Values cannot be quantified (as opposed to elements in physics) and therefore a new categorization is necessary. Values are on a par: the decision making process when facing hard choices do not depend on values being better, worse or equal than others. Chang claims that in decisions of this kind the reasons for or against it are generated by each individual42; each one creating, exercising our own normative power. Here there are no external reasons to be considered; (ii) incommensurability due to the absence of rankings: This conception asserts 39 This argument of incommensurability in the practical sphere is not the same as that of Kuhn in the field of epistemology (the inability to grasp one theory or its conceptual scheme in relation to another). See: Thomas S. Kuhn, The Structure of Scientific Revolutions. Third edition, (Chicago: University of Chicago Press, 1996); Thomas S. Kuhn, “Commensurability, Comparability, Communicability,” in PSA 198: Proceedings of the 1982 Biennial Meeting of the Philosophy of Science Association, P. Asquith and T. Nickles (eds.), East Lansing: Philosophy of Science Association, 1983. 40 Joseph Raz, The Morality of Freedom, (Oxford: Clarendon Press, 1986). 41 Ruth Chang (ed.), Incommensurability, Incomparability, and Practical Reason (Cambridge: Harvard University Press, 1997). 42 Ruth Chang, “The Possibility of Parity” 112 Ethics July 2002, pp. 659–88; Ruth Chang, Making Comparisons Count (New York: Routledge, 2001); Ruth Chang, “How to make hard choices,” TED Talk, available at https://www.youtube.com/watch?v=8GQZuzIdeQQ

228

Andrés Santacoloma Santacoloma

that there is no real ranking of values in some conflicts of values (e. g., Williams43); or that (iii) values are incommensurable only if there is no true overall general assessment of the realization of one value against the realization of other (Wiggins44). This position is different from the one which maintains that, (iv) the realization of a value outranks the realization of another45. Both from the perspective of the value bearer and from the perspective of the values themselves, the incommensurability argument amounts to the same conclusion: Practical disagreements (deep disagreements) do not cause any exclusionary reasons for morally correct decisions46. Despite incommensurability, Raz does not see any obstacle to a justifiable choice between competing alternatives; since incommensurable values provide substantive reasons for both alternatives, both possible choices are justified and therefore eligible, i. e., the choice is justified in the face of reason. The exercise of the will of each individual, according to Raz view, shows a rational decision: “[Will as] the ability to choose and perform intentional actions …” and “… the most typical exercise or manifestation of the will is in choosing among options that reason merely renders eligible.”47 Other authors such as Donald Reagan sharply criticize the intelligibility of Raz argumentation. If an individual is justified to take both Decision1 and Decision2, and consequently chooses one of the two, then it is something that has to be experienced, it is not a sensible decision made because of the (external) reasons. Without adequate reasons, this decision is purely coincidental. Even if one assumes that “…the most typical exercise or manifestation of the will is in choosing among options that reason merely renders eligible,” that will must be justified. Regardless of the view concerning incommensurability, it has a close connection with a second phenomenon in the practical domain: the provinciality of concepts, also called parochialism.

43 “Conflicts of Values,” in: Bernard Williams, Moral Luck, (Cambridge: Cambridge University Press, 1981) 44 Wiggins writes: “there is no general way in which A and B trade off in the whole range of situations of choice and comparison in which they figure”: “Incommensurability: Four Proposals,” in: Chang, Incommensurability, Incomparability, and Practical Reason, (n. 41), at 9. See also his: “Weakness of Will, Commensurability, and the Objects of Deliberation and Desire,” in: David Wiggins, Needs, Values, Truth: Essays in the Philosophy of Value, third edition, (Oxford: Oxford University Press, 1998) 45 See: Griffin, J., Well-Being: Its Meaning, Measurement and Importance, (Oxford: Clarendon Press, 1986); Griffin, J., “Incommensurability: What’s the Problem?” in: Chang, Incommensurability, Incomparability, and Practical Reason, (n. 41). 46 These disagreements in the ethical dimension, Dworkin explained in Law’s Empire, are deeply rooted in the law. They are pervasive. The discussion is referred to as “deep disagreements”. Here play some thick concepts as much as a controversial as a central role. 47 Raz: “Incommensurability and Agency,” in: Chang, Incommensurability, Incomparability, and Practical Reason, (n. 41) at 111. Finnis has a similar argument: “in free choice, one has reasons for each of the alternative options… No factor but the choosing itself settles which alternative is chosen”. John Finnis, “Commensuration and Public Reason,” also in: Chang, Incommensurability, Incomparability, and Practical Reason, (n. 41) at 220.

Rethinking the Practical

229

B. Parochialism of Practical Concepts The term “parochialism” is defined as “the quality or state of being parochial; especially: selfish pettiness or narrowness (as of interests, opinions, or views).”48 This adjective is utilized to qualify concepts which cannot be mastered by all individuals, “… not even by everyone capable of knowledge”49 in contrast to those concepts, which could be mastered by all individuals. According to Raz parochial concepts are only to be mastered, if one has “particular perceptual capacities (such as color concepts) and not merely the possession of some perceptual capacity or another …”50 having particular or special interests as well as “imaginative or emotive capacities that are not shared, nor can be shared …”51 Non-parochial concepts differ from parochial ones, since (i) every capable individual can master them (capable meaning being able to acquire knowledge); (ii) there is no particular set of capabilities to master them and; (iii) they are not locally restricted, e. g. they do not correspond to any particular interest. According to this definition, parochialism shapes all concepts in which interests play a – major – role (interest being always restricted to a specific community, group, or person). As a result, the discussion regarding parochial concepts entails a form of non-cognitivism, a subjectivism, in aesthetics, morality, epistemology, etc. Thomas Nagel argues that a relationship or a thought is subjective because it depends on parochial concepts. The greater the dependency, the more subjective is the concept52. Knowledge that can only be gained by means of such concepts is also only to be understood with the use of the same concepts: parochial concepts and the ideas entailing them can only be understood through the use of parochial concepts53 (concepts which cannot be removed from the normative domain). If these are necessary for the understanding or acquiring knowledge of specific matters, then such matters cannot be known objectively. Once an interest (or normative elements in general) emerges, objective knowledge is impossible. Bernard Williams stresses, that all knowledge should be expressed without the use of parochial concepts54. In a later paper, after distinguishing between thick and thin concepts, Williams abandons his original position and acknowledges that both understanding and explanation of knowledge, which rely on provincial concepts, cannot be achieved without such concepts55. Moral subjectivism is closely related to cultural relativism. It is a denial of universal moral principles. The relation is supported by the argument of parochialism, which 48 Merriam Webster Dictionary: https://www.merriam-webster.com/ 49 See: Joseph Raz, “Notes on Value and Objectivity,” in: Brian Leiter (ed.), Objectivity in Law and Morals, (Cambridge University Press: Cambridge, 2001), (194–233), at 205. 50 Ibid. 51 Ibid. 52 Thomas Nagel, A View from Nowhere, (Oxford University Press: Oxford, 1986), at 4s. 53 See: Joseph Raz, “Notes on Value and Objectivity,” (n. 49) at 206s. 54 Bernard Williams, “A Critical Review of Berkeley’s Idealism,” in: C. S. Peirce, Selected Writings (Values in a World of Chance). ed. Philip P. Wiener (New York: Dover, 1966); Bernard Williams, Descartes (London: Harvester, 1978) 55 “The Linguistic Turn” in: Bernard Williams, Ethics and the Limits of Philosophy (n. 29) at 140.

230

Andrés Santacoloma Santacoloma

leads to an incomprehensibility (unintelligibility) of foreign normative concepts. Consequently, according to this view, e. g. I, a Colombian-born and raised individual, am unable to grasp concepts such as “Heimat56”, which is a peculiarity of the German language – and thus of society – because I do not and cannot share the same interests and normative elements of the Germans and the German culture, even after living here for an extensive period: German culture is and remains alien to me. The same applies the other way round: my German colleagues at the law department, who may want to go to Colombia and include a concept like “buen padre de familia” (“bonus paterfamilias”)57 in a talk in their own vocabulary, which is of capital importance for Colombian Tort law, will be only doing it without being able to grasp the concept and master it, even if a similar expression is available in the German language: “sich vorbildlich verhalten” (“behave in an exemplary manner”). In both examples, the application of such a concept is and remains subjective. Furthermore: Since “dignity”, “conscience”, “torture”, “treachery”, “will”, “justification” or “consideration” are concepts with particular interests, my understanding and application thereof are within the framework of German law (or German ethics, German aesthetics, etc.) always subjective. These thick concepts, it is argued, are essential for the expression and explanation within the thought systems, the Weltanschauung, to which they belong. Therefore, the views pertaining to a system cannot be explained with the concepts of another one58. As Raz rightly pointed out59, almost all of our normative reasoning is saturated with thick concepts from a variety of classes. Both statements and reasons are usually expressed through the use of thick evaluative concepts. There are several arguments against these negative effects of cultural relativism. One well known is Thomas Nagel’s method of objectivity by detachment; a method for the understanding of values. The basic idea is to neutralize the effects of interests and desires

56 The concept “Heimat” has been a particular one. It does not have a semantic equivalent in other languages, and it is considered a particularly German concept. “Heimat” is used to refer to a place towards which one has a strong feeling of belonging. It could be the place where the person was born, where she has lived for long, where her family is, or where she feels at home for other reasons. According to Duden Dictionary, Heimat is defined as follows: “Land, Landesteil oder Ort, in dem man [geboren und] aufgewachsen ist oder sich durch ständigen Aufenthalt zu Hause fühlt (oft als gefühlsbetonter Ausdruck enger Verbundenheit gegenüber einer bestimmten Gegend) … Ursprungs-, Herkunftsland eines Tiers, einer Pflanze, eines Erzeugnisses, einer Technik o. Ä.” 57 This standard also determined the scope in cases of liability in France until August 2014, when it was changed for the standard of “the reasonable” in order to adjust the legislation to the standards of gender equality. See: Loi nº 2014‐873 du 4 août 2014 pour l’égalité réelle entre les femmes et les hommes. After some precedents of the Colombian Supreme Court regarding the limits of liability, the concept has some peculiarities in Colombia’s legal system. This concept shares some similarity to the concept of “good family guy” or “ordinary man,” the last one serving as a central concept for the determination of general morality in the argumentation of Devlin against Hart. Devlin is convinced that this morality would emerge from the question: “What is acceptable to the ordinary man, the man in the jury box, who might be called the reasonable one?” What is immoral, according to Devlin, is anything a reasonable (right-minded) person may find immoral. See: Patrick Lord Devlin, The Enforcement of Morals (n. 2). 58 Joseph Raz, “Notes on Value and Objectivity,” (n. 49) at 225. 59 Ibid., at 227s.

Rethinking the Practical

231

concerning the understanding of life and the relation to the world60. It is not about an absolute abolition of the subjective. The perspective of life and the world constituted by the process of detachment contains the initial position (the so called affected perspective or subjective one) gained by idiosyncratic or specific interests or abilities and their relationship with the world as object61. The older perspective is a variable in reaching objective judgment62. On the other hand, Williams affirms that a convergence in the ethical domain on “how things are” would be possible. The separation of scientific/ethical disagreements is closely linked to a conception of the world (reality). Williams rejected both the thesis that the world could be characterized by the concepts of our beliefs and the thesis that the world existed before all descriptions63. He claims that there is a third possibility. A conception of the world that enables the description of the world according to a rudimentary and objective point of view64; i. e. against parochial concepts and thus parochial knowledge: the absolute conception. The absolute conception in connection with explanations allows a non-perspective description of the world65. The argument lies not on the different perspectives about the world, but on the existence of objective elements that are understandable to all who observe the world with due care66. The absolute conception is committed to the view that the objectivity of thinking is secured by an epistemic principle. This principle affirms that under ideal conditions knowledge is indisputable and clear to everyone. Raz rejects both the absolute conception (which relies on Peirce’s ideal convergence) and (partially) Nagel’s method of detachment. He rejects Nagel’s thesis, since a method of objectivity by denial or a strong reduction of the effects of the idiosyncratic starting position is unrealizable. Raz argues that individuals are at the mercy of epistemic (and moral) luck67. This is an inevitable consequence of the fact that an epistemic justification depends on the personal trajectory68. Raz argues against Williams that convergence can be achieved, even if parochial concepts are essential (constitutive) for some forms of knowledge. However, this is not due to such a presumed epistemic condition as Williams suggested, but to the person’s ability to understand interests (or values) that she

60 Thomas Nagel, A View from Nowhere, (n. 52), at 4. 61 Ibid., at 4–6. 62 For a very detailed and critical examination of Nagels theory: Sigrún Svavarsdóttir, “Objective Values. Does Metaethics rest on a Mistake?,” in: Brian Leiter (ed.), Objectivity in Law and Morals, (n. 49). 63 Williams, Ethics and the Limits of Philosophy, (n. 29) at 153. 64 Ibid. 65 “The substance of the absolute conception … lies in the idea that it could nonvacuously explain how it itself, and the various perspectival views of the world, are possible.” Ibid., at 154. 66 Ibid., at 155. 67 See: Bernard Williams, “Moral Luck”, in: Bernard Williams, Moral Luck (Cambridge: Cambridge University Press, 1981); Thomas Nagel, “Moral Luck,” in: Moral Questions, (Cambridge: Cambridge University Press, 1979); D. Statman(ed.), Moral Luck, (Albany: State University of New York Press, 1993); Duncan Pritchard, “Moral and Epistemic Luck,” Metaphilosophy Vol. 37, No. 1 ( January 2006), pp. 1–25 68 Joseph Raz, “Notes on Value and Objectivity,” (n. 49) at 211ss.

232

Andrés Santacoloma Santacoloma

does not share, in terms of interests (or values) she does share. This ability is achieved, according to Raz, through simulation or actual habituation to these interests69. There are, however, three major obstacles: (i) parochial concepts are not to be understood by everyone, (ii) convergence can only be achieved with those who can gain knowledge (understanding the concepts) and, (iii) the ability of simulation or actual habituation itself is limited. As a result, all epistemic justifications are relative. The relativity of reasoning refers to the needs and conceptual scheme of the auditorium (real or potential). Therefore, the validity of normative sentences, if dependent on thick concepts, will depend on common understanding and judgment (that is, on social facts)70. Nonetheless, Raz stresses that these obstacles do not stop an objective understanding: depending on the situation in which it is applied, the ability to understand alien interests or values exposes the individual to different consequences71. Thus, despite parochial concepts and incommensurability, objectivity of morality could be possible. Both arguments (parochialism and incommensurability) lead to a bleak outlook: values and the concepts they grasp cannot be objectively understood, and a comparison or reduction to other concepts in order to gain understanding is ruled out. Part Three: Migration Background of Thick Concepts There is an ever-evolving relationship between normative concepts that leads to a migration. This phenomenon is to be understood as potential, because not all concepts wander. Terms are neither static nor complete. They change due to changes in reality, descriptions, assessments, implicatures, etc. Moral concepts that are incorporated into the legal system by legal officials as legal content tend to retain their previous meaning: they have a migration background. The answer to the question “where does the concept come from …?” implies more than an application of the term itself. A. Applying a Method for Categorizing Normative Concepts In the section “The Omnipresence of Thick Concepts” a strong premise was stressed: “Thick practical concepts are omnipresent concepts in the life of the law”. I have attempted to show the truth of the premise by providing different examples of German law. These examples also made clear a (perhaps) very naïve consideration: that the law not only has normative concepts migrating from other practical domains, but that it itself sets normative concepts and/or transform their meanings in those domains. These are transformed into legal categories (e. g. balancing – Abwägung). But also a not-so69 Ibid, at 211. 70 Ibid, at 214s. 71 Raz makes a distinction between different social facts and the access the individual has to them. Ibid, at 218–22.

Rethinking the Practical

233

naive idea became clear: general moral concepts move into areas for rather particular, non-general purposes (the will from a moral domain to the declaration of will in civil law or general principles of moral ethics72). Those examples made also possible to identify certain relationships between thick concepts: the delivering of reasons for action, the identification of certain facts of the world, the factual affiliation to different domains, the presence of normativity (sometimes of a “pre” normativity, meaning concepts being normative in their domain of origin), the application of degree predicates, and the impossibility of reducing the values to meanings. These relationships show the migration background of thick concepts. The description of facts and the normative nature of the concepts (the thickness) depend (tends to) on the initial meaning of the term. An example like torture, its meaning and its transformation clearly shows this73. Thickness requires perse the use of degree predicates. A thick concept may have a “parent” or both “parents” (the descriptive and normative components) from a foreign domain, or a “parent” coming from more than one foreign domain74. Thus the migration background is also a matter of degree. The relationships of multiple affiliations and the impossibility of reducing the importance of values need not be addressed. The first is not to be addressed, since it represents in itself the migration phenomenon. The second is not to be discussed, because it corresponds to the point of incommensurability. Besides stressing their omnipresence in the practical domain, a method for identifying thick concepts was drawn. The first premise does not pose a problem: that “w is a value if the substantive reasons indicate that w is to be appraised”. The question would be, when/how a reason is substantial (excluding, complementary, constitutive, definitional, etc.). Nevertheless, this question posses no problem for the premise. Premise (ii) is purely definitional. Premise (iii) shows a characteristic that cannot be denied: the polarity of values (for every w, there is a negative w). This feature is of the utmost importance for the definition of values: without immoral actions moral actions are not easily recognizable. The latest premise was a relativization of the affiliation of the concepts and the affirmation of the migration phenomenon. The premise was: “x belongs –primarily– to the domain D1 and not to the domain D2, because x in D1 has certain characteristics and thus, the (normativity) standards of D1 and not of D2 are (predominantly) to be used”. The emphasis of hyphens is not to be ignored. “Primarily” not only means that per se a strict separation between normative domains or orders is not possible, but also that a general question about the separation or the connection misleads.

72 Example and discussion with dentists: http://www.zm-online.de/hefte/Haben-Zahnaerzte-eine-Geloe bnisluecke_336810.html#1 73 See among others: George Ryley Scott, The history of torture throughout the ages, Luxor Press, 1959); Daniel P. Mannix, The History of Torture, (Sutton History Classics; Auflage: New ed. (5. Februar 2003); 74 A comparison of the contents of § 1773, Abs. II “A minor receives a guardian even if his familiar status cannot be determined.” (“Ein Minderjähriger erhält einen Vormund auch dann, wenn sein Familienstand nicht zu ermitteln ist.”) with the already cited § 678 BGB can clarify the point.

234

Andrés Santacoloma Santacoloma

(ii) Incommensurability and Justification The argument of incommensurability, especially in Raz view, raises various questions. Raz assumes that a value-bearer corresponds to an exclusive value. This seems to me to be implausible. When deciding whether a decision certeris paribus is better than another, the reasons are not just derived from a value. The will as the outcome of the problem is correct. In fact, the will of a person is central for her decisions in difficult cases and practical disagreements. But then some questions are to be answered: is not the will in Raz argument some sort of end value which has a higher position? If so, Raz disregards the challenge of incommensurability. If this is not true, then the argument can become circular: is not the indifference to reason (also the will) the starting point of incommensurability? Raz answer in this regard, suffers at least from ambiguity. Chang’s argument is a plausible answer to the incommensurability argument. The two theses she cites, which I believe to be correct, allow an even deeper analysis of the situation of the person who has to make the decision. The decisions are made not only on the basis of a value, but in context and depending on the desires and expectations of the individual. But I would go even further: conscious reasoning makes the argument of values lose its power on a par (Chang’s second thesis proves this). What is important here is how the idea of the migration background contributes to solve this. It can be stated that both an absence of rankings and a true overall rating of the realization of one value against the realization of the other value, for resolving incommensurability issues: – are not possible because it implies that (i) there is an entire and complete set of thick concepts; and (ii) that the concepts already have a certain normative charge. – are not necessary, because the migration background is constitutive for the thick concepts that provide contestable reasons for action. To Summarize, it can be said against incommensurability that (i) normative concepts typically find their definitions by means of other normative concepts. Back to an example: Treachery as a qualification of murder in criminal law makes use of the concept of treachery in morality. Treachery makes use of the concepts of cunning and malice. Malignancy, in turn, makes use of malice, danger and menace, and so on; and because (ii) normative terms can be translatable. In summary, incommensurability seems to play no important role. The concepts in a normative domain make use of their migration background (descriptive or evaluative) in order to go in a non-presupposed normative direction (evaluation) and thus helping individuals make decisions. The migration background offers several elements for normative judgments. (iii) Parochialism, Separation Thesis, and Migration The challenge of the argument of parochialism is more demanding and difficult than those of the incommensurability argument. It presupposes that people only have very limited epistemic abilities. This problem is known to Raz. He argues that many specif-

Rethinking the Practical

235

ic cultural concepts developed in one culture and having no parallel in others do not exclude the possibility of understanding, since such concepts are integrated into a conceptual framework. A framework, which encompasses a plurality of many and different concepts, that can close the cultural breach75. He rejects the theses (i) that there is no one who can master the concepts of several cultures; and (ii) that there are cultures in the past or the present whose concepts are fundamentally unfathomable to us76. Raz is also a defender of objectivity in the practical domain and a critic of practical Ostracism. For him, there are no human cultural islands that cannot be understood by people other than their members77. One question is still open: If one recognizes the permeability of such concepts and the objectivity in the practical field, how is a separation thesis still defensible? The migration background shows us regarding the argument of parochialism: – that the presence of parochial concepts in the practical field should be an undisputed thesis. But this does not entail that parochial concepts create an obstacle to the objectivity of knowledge. The last thesis is wrong. And, – that the thesis that parochial concepts are not always easy to understand is an acceptable thesis. However, this does not allow the thesis that the individual cannot have access to and grasp parochial concepts. The last statement is an over exaggeration. There are not only the concepts and their migration background, but also a conceptual framework, where there are different connections between concepts. It is always possible to profit from alien concepts, which in turn could become part of another family (law, etiquette, morality, professional ethics, etc.). In short, the recognition of parochialism as a serious obstacle to the objectivity of knowledge is a disregard for the epistemic faculties of human beings. One last consideration: the migration background could serve as a basis for denying the thesis that the law is a special case of general practice discourse. But this argument has to be developed on another occasion.

75 Joseph Raz, “Notes on Value and Objectivity,” (n. 49) at 225s. 76 Ibid, at 226ss. 77 Ibid, at 227.

Part III – On Legal versus Moral Normativity

On the (dis)Similar Properties of Legal and Moral Duties João Andrade Neto

Introduction Do legal and moral duties share exactly the same properties? Moral philosophers such as Hare1, Searle2, and W. D. Ross3 believe that moral conflicts exist in which an individual has equally good reasons to fulfil two or more obligations that cannot be simultaneously satisfied. In such cases, they say, one has “reasons other things being equal” to act one way instead of another. These so-called “prima-facie duties” contrast with “definitive moral duties”, which remain after all reasons were considered. Some legal philosophers affirm that this separation applies to legal duties as well. Alexy4 employs the same classification to differentiate two types of constitutional norms: principles and rules. As the differentiation originally had a philosophical scope, it is relevant to ask whether the separation between prima facie and definitive moral duties can ground a similar differentiation between types of legal norms. This essay addresses this question. Rather than denying the difference between prima facie and definitive moral duties, it asks whether prima facie legal duties actually exist. The aim is to demonstrate that, from an internal perspective, a possible consequence of legal differentiation and institutionalization is that only definitive duties are to be regarded as law.

1 2 3 4

R. M. Hare, Moral Thinking: Its Levels, Method, and Point (Oxford: New York: Clarendon Press; Oxford University Press, 1981). John Searle, ‘Prima Facie Obligations,’ in Practical Reasoning, ed. Joseph Raz, Oxford Readings in Philosophy (Oxford: Oxford Univ. Press, 1978), 81–90. William David Ross, The Right and the Good, New ed. (Oxford: Clarendon Press, 2002). Robert Alexy, ‘On the Structure of Legal Principles,’ Ratio Juris 13, no. 3 (2000): 294–304.

240

João Andrade Neto

Part One: Rules and Principles According to the Principles Theory Alexy has been widely acclaimed for his contributions to the fields of constitutional law, legal theory and philosophy of law.5 I shall hereafter refer to his thought as the principles theory, which by no means should suggest that only his theses on constitutional principles are relevant. I actually subscribe to the view that his works form a system in which the concept of principles does occupy a central position but would not hold valid without other essential concepts. This view is shared by many of his followers.6 In any event, although other elements of the principles theory are considered below, our analysis shall begin with his definition of rules and principles, for the distinctive features Alexy assigns to these two types of legal norms are taken from the literature on the nature of prima-facie moral duties and obligations.7 The criterion Alexy8 employs to distinguish rules and principles differs from conventional approaches based on such features as generality and degree. Alexy realizes that using ‘generality’ as the definitive criterion of differentiation would only be possible if there were no norms of a high degree of generality that one would regard as rules. But that it is not the case. For instance, art. 103 (2) Basic Law is a norm of high degree of generality that, in Alexy’s view,9 is actually a rule, not a principle. The clause reads: “An act may be punished only if it was defined by a law as a criminal offence before the act was committed.” Since not all principles have a higher degree of generality in comparison with rules, there might be a better criterion to differentiate the two types of norms, Alexy concludes. Similarly to Dworkin10, he maintains that the difference between rules and principles pertains to their very nature or necessary properties: the two types of norms differ due to the character of the normative instructions each issues.11 The principles theory advocates that rules and principles are legal norms, and because they are norms, they say Julian Rivers, ‘A Theory of Constitutional Rights and the British Constitution,’ in A Theory of Constitutional Rights (Oxford: Oxford University Press, 2010). 6 See, e. g., Matthias Klatt, ‘Robert Alexy’s Philosophy of Law as System,’ in Institutionalized Reason: The Jurisprudence of Robert Alexy (Oxford; New York: Oxford University Press, 2012), 1–26; Mattias Kumm, ‘Constitutional Rights as Principles: On the Structure and Domain of Constitutional Justice. A Review Essay on A Theory of Constitutional Rights,’ International Journal of Constitutional Law 2, no. 3 ( July 1, 2004): 595; and George Pavlakos, ‘Introduction,’ in Law, Rights and Discourse: The Legal Philosophy of Robert Alexy, ed. George Pavlakos (Oxford; Portland, Or.: Hart Pub., 2007), 1. 7 For a philosophical view on a “prima-facie ought” (or “reasons other things being equal”) as opposed to an “ought on balance” (or “reasons all things considered”)–that is, a definitive “ought”–, see: Kurt Baier, The Moral Point of View: A Rational Basis of Ethics, 5. print. (Ithaca, NY: Cornell Univ. Press, 1966), 102–4. For philosophical implications of conflicts between prima facie duties, see: Hare, Moral Thinking (n. 1), 25–43. For comments on Alexy’s conception of an “ideal ought”, see: Peng-Hsiang Wang, ‘Principles as Ideal Ought,’ in Legal Reasoning: The Methods of Balancing: Proceedings of the Special Workshop “Legal Reasoning: The Methods of Balancing” Held at the 24th World Congress of the International Assotiation of Philosophy of Law and Social Philosophy (IVR), Beijing, 2009, ed. Jan-Reinard Sieckmann, Archiv Für Rechts- Und Sozialphilosophie, vol. 124 (Stuttgart: Franz Steiner, 2010), 43–49. 8 Alexy, Ratio Juris (n. 4), 295. 9 Robert Alexy, A Theory of Constitutional Rights, trans. Julian Rivers (Oxford: Oxford University Press, 2010), 61. 10 Ronald Dworkin, ‘The Model of Rules,’ Faculty Scholarship Series (1967), 25. 11 Alexy, Theory of Constitutional Rights (n. 9), 47.

5

On the (dis)Similar Properties of Legal and Moral Duties

241

what ought to be the case – or to make use of the basic deontic expressions, what someone is commanded, permitted, or prohibited to do.12 Principles, however, express their normative instructions very differently from rules. While rules are definitive norms, which say that specific legal consequences ought to follow once certain conditions are given, principles only convey prima facie commands, permissions, and prohibitions. A principle does not establish with certainty which legal consequence is required or under which conditions.13 In these aspects, the principles theory converges with Dworkin’s view. However, they differ in many others. Part Two: Hume’s Law Alexy and other legal scholars from different schools of thought, such as Hart14 and Dworkin15 e. g., agree on what is an essential, distinctive feature of law. They claim that law has a normative character and that legal propositions do not state how individuals and groups really behave; they rather prescribe how individuals and groups ought to behave. By saying what someone ought to do, ought to not do, or ought not to do, law commands, prohibits or permits ways of acting. Accordingly, legal propositions like “smoking is prohibited in enclosed workplaces” are essentially not descriptive; they are not simple statements about what is – or about the existence of a peculiar social practice –, but normative statements about what ought to be – or in our example, what people ought not to do in certain places.16 The concept of normativity as something distinct from facticity is as controversial as important to legal theory. Hume17 is reputedly the first to have made a case on the problematic transition from “is” to “ought.” Grounded in the Hume’s Law (which is also known as the naturalistic fallacy, or the is-ought fallacy), the normative thesis on the nature of law is questioned by some legal scholars, remarkably by authors from the legal realism school.18 Actually, the very idea that it is logically impossible to derive a normative conclusion (about what ought to be) from a factual statement (about what is) has also been a matter of vigorous debate among philosophers.19 In a very famous article, Searle 12 13 14 15 16

17 18 19

Ibid., at 45. Robert Alexy, ‘Rights, Legal Reasoning and Rational Discourse,’ Ratio Juris 5, no. 2 (1992): 145. H. L. A. Hart, The Concept of Law, 2. ed (Oxford: Clarendon Press, 1994), 10–13. Ronald Dworkin, Justice for Hedgehogs (Cambridge, Mass.: Belknap Press of Harvard University Press, 2011), 17. In fact, not all legal scholars who uphold the normative thesis would agree that propositions about what law commands, prohibits or permits are both descriptive and prescriptive. Alexy, however, seems to endorse the conclusion as exposed in the text, which one can infer from A Theory of Legal Argumentation: The Theory of Rational Discourse as Theory of Legal Justification, trans. Ruth Adler and Neil MacCormic (Oxford; New York: Oxford University Press, 2010b), 58–65. David Hume, A Treatise of Human Nature, ed. David Fate Norton, Oxford Philosophical Texts (Oxford: Oxford Univ. Press, 2000), 302. See in this respect Michael Steven Green, ‘Legal Realism as Theory of Law,’ William and Mary Law Review 46 (2005): 1917–2000. For a defense of the naturalistic fallacy, see George Edward Moore, Principia Ethica, Great Books in Philosophy (Amherst, NY: Prometheus Books, 1988). C. f. A. E. Taylor, The Faith of a Moralist (Macmillan

242

João Andrade Neto

claimed to have successfully demonstrated that at least in one instance the derivation was possible.20 While some authors agree, others point out that his argument was faulty21 or departed from a misconstrued version of the is-ought fallacy.22

And Company Limited., 1930), 104, saying that Moore committed a “vulgar mistake” in his definition of the fallacy; and W. K. Frankena, ‘The Naturalistic Fallacy,’ in Theories of Ethics, ed. Philippa Foot, Reprinted (Oxford: Oxford Univ. Press, 1979), 50, claiming that it is not accurate to speak of a “fallacy.” See also Edgar Morscher, ‘Das Sein-Sollen-Problem: Logisch Betrachtet. Eine Übersicht Über Den Gegenwärtigen Stand Der Diskussion,’ Conceptus: Zeitschrift Für Philosophie 8, no. 25 (1974): 5–29, for an overview of the literature on the matter; and W. D. Hudson (eds.), The Is-Ought Question: A Collection of Papers on the Central Problem in Moral Philosophy, Controversies in Philosophy (Palgrave Macmillan UK, 1969), for the opinions of other authors about the controversy. 20 John R. Searle, ‘How to Derive “Ought” From “Is”,’ The Philosophical Review 73, no. 1 ( January 1964): 43. 21 See e. g., Philippa Foot, ‘Introduction,’ in Theories of Ethics, ed. Philippa Foot, Reprinted (Oxford: Oxford Univ. Press, 1979), 11; R. M. Hare, ‘The Promising Game,’ in Theories of Ethics, ed. Philippa Foot, Reprinted (Oxford: Oxford Univ. Press, 1979), 50; Kaarlo Jaakko Hintikka, ‘Some Main Problems of Deontic Logic,’ in Deontic Logic: Introductory and Systematic Readings, ed. Risto Hilpinen (Dordrecht: Springer Netherlands, 1971), 59–104; A. C. Genova, ‘Institutional Facts and Brute Values,’ Ethics 81, no. 1 (Out 1970): 36–54; Michael Martin, ‘The Deduction of Statements of Prima Facie Obligations from Descriptive Statements,’ Philosophical Studies 25, no. 2 (February 1974): 149; John B. Thompson, Hermeneutics and the Human Sciences (Cambridge: Cambridge University Press, 1981). In fact, in his attempt to demonstrate the mistake in the naturalistic fallacy, Searle assumes that the separation between norms (related to ought) and – preserving his terminology – brute facts (related to is) is equivalent to the distinction between evaluative statements and descriptive statements. However, this is a wrong assumption. Someone who says, “Jones is under an obligation,” when she hears Jones uttering the words, “I hereby promise …,” makes a statement that is both descriptive and evaluative about an institutional fact. In our example, the act of promising is an institutional fact (which includes both an is and an ought), which can only come into existence in accordance with some constitutive rules that pose the conditions under which one is said to be under an obligation. As Genova, ‘Institutional Facts and Brute Values,’ 36, explains, these “constitutive rules which generate an institutional fact logically tie the notion of ‘promise’ to ‘obligation’ and to ‘ought’.” What follows is that an institutional fact is irreducible to a brute fact (which does not include an ought) without loss of content. Even Searle, ‘How to Derive “Ought” From “Is”’ (n. 20), 55, admits that, “constitutive rules constitute (and also regulate) forms of activity whose existence is logically dependent on the rules.” In our example, someone who states, “Jones is under an obligation,” when she hears Jones declaring, “I hereby promise …,” necessarily infers that: there are constitutive rules according to which anyone who is under the same conditions as Jones is under an obligation; and these rules are valid and apply. This will necessarily happen whenever institutional facts are at play, for they presuppose the existence of institutions, or systems of such constitutive rules on which they logically depend. As Searle (n. 20), 57, also noticed, “to state an institutional fact is already to invoke the constitutive rules of the institution.” This assertion is correct, but it does not follow from it that “within those systems [i. e. institutions] we can derive ‘oughts’ from ‘is’,” as Searle believes. For the same constitutive rules that define a promise attach to it a normative consequence; they prescribe that, ‘if Jones made a promise, Jones ought to do what was promised.’ So Searle’s arguments actually confirm the naturalistic fallacy he intended to counter. They make it clear that what was under consideration was never a brute, but an institutional fact and the constitutive rules that this fact presupposes. If Jones voices the words ‘I hereby promise …’ in the proper context, someone who concludes ‘Jones is under an obligation and ought to do what was promised’ does not derive an ‘ought’ from an ‘is’. She simply puts herself within the system of rules that gave meaning to Jones’s utterance and makes an assertion that is both descriptive and evaluative from this internal perspective. To resume, what Searle could actually demonstrate with his arguments is that the distinction between evaluative statements and descriptive statements does not correspond to the separation between ‘ought’ and ‘is’ and needs to be re-examined. 22 Ken Witkowski, ‘The “Is-Ought” Gap: Deduction or Justification?,’ Philosophy and Phenomenological Research 36, no. 2 (December 1975): 233; Edgar Morscher, ‘From “Is” To “Ought” via “Knowing”,’ Ethics 83, no. 1 (October 1, 1972): 84–86.

On the (dis)Similar Properties of Legal and Moral Duties

243

Without delving deep into the controversy, in this study I propose that we accept the principles-theory premise that factual statements (about what is) alone cannot logically justify normative conclusions (about what ought to be).23 According to Alexy24, “to say that a certain course of conduct A ought to be followed is to imply the acceptance of a principle demanding A.” This leads to the conclusion that differently from factual statements, normative arguments must necessarily rely on legal or general practical discourse to set out (practical) reasons for doing something or acting one way instead of another.25 The principles theory upholds the theoretical distinction between what is and what ought to be and the normative thesis on the nature of law. As Alexy says, reasons derived from legal norms (either rules or principles) are strong normative arguments, which “express what is legally right or wrong without looking at the consequences” and “derive their strength solely from being of correct content.”26 As typical deontological reasons, they “can be formulated with the help of the basic deontic terms ‘commanded’, ‘prohibited’ or ‘permitted’” or “the proposition ‘A ought to do X’,” he affirms.27 In his view, both types of legal norms, rules and principles, express a judgement of obligation, but each type expresses either a real or an ideal ought. That is to say, they convey either definitive or prima facie commands, prohibitions, and permissions. This idea can be referred to as the thesis of the dual nature of ought. Part Three: The Dual Nature of Ought The central idea over which Alexy built his understanding on rules and principles is the thesis that there are two different ways how legal norms express what ought to be: either prima facie or definitively. Based on the thesis of the dual nature of ought, critics accuse the principles theory of being “platonic”28. Yet, if the accusation proves to be true, Alexy should not be the only charged. As a matter of fact, the differentiation between prima facie and definitive ought was already present in the works of other scholars, such as

23 Alexy, Theory of Legal Argumentation (n. 16), 59. 24 Ibid., at 61. 25 Robert Alexy, ‘Legal Argumentation as Rational Discourse,’ Rivista Internazionale Di Filosofia Del Diritto, no. 70 (1993): 176. 26 Ibid., at 176–77. 27 Alexy, Theory of Legal Argumentation (n. 16), 60. 28 Friedemann Vogel and Ralph Christensen, ‘Die Sprache des Gesetzes ist nicht Eigentum der Juristen Von der Prinzipienspekulation zur empirischen Analyse der Abwägung,’ in Abwägung: Herausforderung für eine Theorie der Praxis, ed. Friedrich Müller and Philippe Mastronardi, 1st ed., Schriften zur Rechtstheorie 272 (Berlin: Duncker & Humblot, 2014), 14.

244

João Andrade Neto

W. D. Ross29, Searle30, Hare31, Hintikka32, Rawls33, and Dworkin34. Alexy35 mentions, as his source, also Günther36. The latter, however, did not formulate an original notion of prima facie obligations;37 rather, he referred expressly to Searle’s conception of “statements asserting what one ought to do, all things considered.”38 In any case, it was Ross39 who first used the expression prima facie in reference to moral duties that “would be a duty proper if it were not at the same time of another kind which is morally significant.” According to Ross40, if more than one prima facie duty is incumbent on someone, as it is normally the case, this person is required “to study the situation as fully as [she] can until [she] form[s] the considered opinion that in the circumstances one of them is more incumbent than any other.” One of his examples illustrates very well the character of prima-facie moral duties: when we think ourselves justified in breaking, and indeed morally obliged to break, a promise in order to relieve someone’s distress, we do not for a moment cease to recognize a prima facie duty to keep our promise, and this leads us to feel, not indeed shame or repentance, but certainly compunction, for behaving as we do; we recognize, further, that it is our duty to make up somehow to the promisee for the breaking of the promise.41

Ross42 warned that, in spite of what the word choice may suggest, the prima facie character of a duty was neither an adjective quality nor “an appearance which a moral situation presents at first sight, and which may turn out to be illusory;” on the contrary, it was an essential feature of that situation, “an element of its nature,” which made it something distinct from proper duties. Regarding Ross’s conception as inconsistent, Searle43 claimed that, “we would do well in philosophy to abandon the terminology of prima facie obligations and duties as it embodies confusions.” Yet, although voicing reservation about the use of prima facie as opposed to absolute obligations, he differentiated between two kinds of deontic statements: (i) “statements asserting the existence of obligations, duties, and other such reasons for acting” and (ii) “statements asserting what one ought to do, all things 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43

Ross, The Right and the Good (n. 3). Searle, ‘Prima Facie Obligations’ (n. 2). Hare, Moral Thinking (n. 1), 38–41. Hintikka, ‘Some Main Problems of Deontic Logic’ (n. 21). John Rawls. A Theory of Justice (Cambridge, Mass.: Belknap Press of Harvard University Press, 1999). Ronald Dworkin, Taking Rights Seriously (Cambridge, Mass.: Harvard University Press, 1978). Robert Alexy, ‘Justification and Application of Norms,’ Ratio Juris 6, no. 2 (1993): 157–170; Theory of Constitutional Rights (n. 9), 57. Klaus Günther, Der Sinn Für Angemessenheit: Anwendungsdiskurse in Moral Und Recht, 1st ed. (Frankfurt am Main: Suhrkamp, 1988). Ibid. Searle, ‘Prima Facie Obligations’ (n. 2), 90. Ross, The Right and the Good (n. 3), 19. Ibid. Ibid., at 28. Ibid., at 19. Searle, ‘Prima Facie Obligations,’ 84.

On the (dis)Similar Properties of Legal and Moral Duties

245

considered.” 44 According to him, the difference between these two kinds of statements is clear in conflict situations. Conflict situations are, in his words, “cases where there are genuinely valid reasons for doing one thing and at the same time reasons for not doing that thing but doing something inconsistent with it.”45 As he sees it, “often in real life it will be obvious how to resolve the conflict,” but sometimes, although not frequently, one may face a genuine moral conflict, “where there is no possible world which satisfies all ones obligations.”46 To sum up, a genuine moral conflict would correspond to a situation where “one has two obligations which are such that it is impossible to fulfil both.”47 Part Four: The Dual Nature of Law Alexy upholds the separation between prima facie and definitive duties, but he connects it to the separation between legal rules and principles. In his view, expressing a prima facie ought is the essential feature of legal principles, the distinctive quality that contrasts them with other legal norms48. Differently from principles, legal rules express a definitive ought.49 Someone is compelled to realize what a definitive ought commands, prohibits, or permits provided that the norm conveying the command, prohibition, or permission is valid and applicable. Validity and applicability are, thus, sufficient conditions for the duty of compliance with a definitive ought. Furthermore, a definitive ought is either complied with or not; at any rate, compliance is not a matter of degree. As a result, “if a rule is valid and applicable, it is definitively required that exactly what it demands be done. If this is done, the rule is complied with; if this is not done, the rule is not complied with.”50 In contrast, in Alexy’s view a prima facie ought does not say much about what is definitely obligatory.51 The duty it conveys can be factually and legally carried out at different extents. To satisfy such a duty, one is not required to exhaust its potential; a prima facie duty is satisfied if one carries it out as far as possible given a concrete case.52 That is because complying with a prima facie duty requires a further decision on what is exactly commanded, prohibited, or permitted in the case. 44 45 46 47 48 49 50

51 52

Ibid., at 90. Ibid., at 84. Ibid., at 85. Ibid. Alexy, Theory of Constitutional Rights (n. 9), 57; Alexy, ‘Reasoning and Rational Discourse’ (n. 13), 145; Robert Alexy, ‘Zum Begriff des Rechtsprinzips,’ in Argumentation und Hermeneutik in der Jurisprudenz, ed. Werner Krawietz et al. (Berlin: Duncker und Humblot, 1979), 81–82. Robert Alexy, ‘The Dual Nature of Law,’ Ratio Juris 23, no. 2 (2010): 180. Robert Alexy, ‘The Construction of Constitutional Rights,’ Law & Ethics of Human Rights 4, no. 1 (April 30, 2010): 21. Similarly in Dworkin, ‘Model of Rules’ (n. 10), 25: “if the facts a rule stipulates are given, then either the rule is valid, in which case the answer it supplies must be accepted, or it is not, in which case it contributes nothing to the decision.” Alexy, ‘Reasoning and Rational Discourse’ (n. 13), 147. Alexy, ‘Begriff des Rechtsprinzips’ (n. 48), 79–82.

246

João Andrade Neto

After everything was considered, the conclusion may be that, under the circumstances at hand, the definitive ought – that is, the action actually required – cannot be directly reconciled with the prima facie ought under consideration from the beginning. This, however, does not mean that the prima facie ought was not valid. There is no necessary connection between the validity of a norm conveying a prima facie command, prohibition, or permission and the definitive duty that results in a case to which that norm would commonly apply. As Alexy states, “it does not follow from the fact that a principle is relevant to a case that what the principle requires actually applies.”53 Another way to state the same idea is to consider that rules and principles are different types of reasons for norms or ought-to judgements. In this sense, because they are prima facie reasons, principles can immediately justify prima facie rights only, while rules put reasons forward for definitive rights.54 That is not to say that, in Alexy’s opinion, principles can never be reasons for concrete decisions (i. e., individual norms). It is true that, in his view, “decisions about rights presuppose the identification of definitive rights,”55 which makes the case easier for rules. Valid, applicable, and without-relevant-exception rules that convey definitive rights are immediate reasons for concrete ought-to judgments.56 Yet, the route departing from principles is not necessarily obstructed. It depends on balancing the competing reasons and stating the outcome of such competition: a rule that reflects the relation of conditional preference between the colliding principles. The reasons principles put forward for a decision can be displaced by other reasons57;nonetheless, “whenever a principle turns out to be the dominant reasons for a concrete ought-to judgement, then that principle is a reason for a rule, which in turn is the definitive reason for the judgement. Principles in themselves are never definitive reasons.”58 Part Five: Three Conceptions of prima facie Obligations As previously addressed, Alexy’s thought is centred on the strict separation between rules and principles, which is ultimately based on the thesis on the dual nature of ought. Differently from rules, legal principles are prima facie requirements, he says. But what does this mean exactly? In spite of the importance he gives to this claim, the principles theory lacks a detailed and consistent definition of a prima facie requirement. Furthermore, Alexy not only refers to principles as prima facie requirements, but also as opti53 Alexy, Theory of Constitutional Rights (n. 9), 57. C. f. Dworkin, ‘Model of Rules’ (n. 10), 42, to whom it is even doubtful whether the concept of validity applies to principles: “it seems odd to speak of a principle as being valid at all, perhaps because validity is an all-or-nothing concept, appropriate for rules, but inconsistent with a principle’s dimension of weight.” 54 Alexy, Theory of Constitutional Rights (n. 9), 59–60. 55 Ibid., at 60. 56 Ibid., at 59–60. 57 Ibid., at 57; Matthias Klatt and Moritz Meister, The Constitutional Structure of Proportionality, 1st ed. (Oxford: Oxford University Press, 2012), 28. 58 Alexy, Theory of Constitutional Rights (n. 9), 60.

On the (dis)Similar Properties of Legal and Moral Duties

247

mization commands and norms that express an ideal ought. These three definitions are clearly not identical, but Alexy indistinctly refers to them without further explanation about their differences.59 This lack of precision in defining its very object led Poscher to say that the principles theory was the “theory of a phantom.”60 In what respects our conclusions, Poscher’s criticism correctly threw light on the fact the expression “prima facie” does not have a unique meaning within Alexy’s theory. As Searle61 observes, some authors deploy the term prima facie without noticing that it may mean two completely different things. One may refer to a prima facie obligation as the opposite of a real or actual obligation. In this sense, in a situation where two or more moral obligations collide, the conflict ends up being only apparent. If one dedicates enough time and study to the case, it will become clear that only one obligation was real – i. e., an obligation that actually existed from the very beginning. The other one was only a prima facie obligation – i. e., a phantom that only seemed to be an obligation but vanished once everything else was considered. This leads to the conclusion that prima facie obligations do not create any actual obligation and can be left aside once all the facts are known. We can infer a similar conception from Dworkin’s definition of an abstract right.62 According to him, abstract rights have a prima facie character, which differentiates them from concrete rights. “Prima facie or abstract [rights] … can conflict: my exercise of my right may invade or restrict yours, in which case the question arises which of us has an actual or concrete right to do what he wishes,” Dworkin says.63 As he explains, “I must decide on my concrete rights … in some way that respects your interests as much as my own, not because I must always act in that way, but because I must do so when our abstract rights compete.”64 What follows is that a decision-maker must consider all the prima facie conflicting rights in determining which is the concrete right in that case, but once this was stablished, the legal decision must reflect the concrete right only. Therefore, one of the abstract rights was never an actual right at play in that case, and an ideal decision-maker like Hercules, dispending of unlimited time and knowledge, could have foreseen this result from the beginning. It is nevertheless possible to use the term prima facie obligation differently, as the opposite of an absolute obligation. The distinctive criterion here is their overridingness. In this sense, “prima facie obligations are a kind of actual obligations,” as Searle65 says, but “one [that] is of a lower status than the other” and is thus overruled by an absolute 59 See, e. g., Alexy, ‘Dual Nature’ (n. 49), 180, suggesting that principles express a prima facie or ideal ought. 60 Ralf Poscher, ‘Theory of a Phantom: The Principles Theory’s Futile Quest for Its Object,’ in Alexy’s Theory of Law Proceedings of the Special Workshop “Alexy’s Theory of Law” Held at the 26th World Congress of the International Association for Philosophy of Law and Social Philosophy in Belo Horizonte, 2013, ed. Julio Aguiar de Oliveira, Stanley L. Paulson, and Alexandre T. G. Trivisonno, 1st Ed., Archiv Für Rechts- Und Sozialphilosophie, vol. 144 (Stuttgart: Franz Steiner Verlag, 2015), 111–28. 61 Searle, ‘Prima Facie Obligations’ (n. 2), 82–83. 62 Dworkin, Taking Rights Seriously (n. 34), 93–94. 63 Ronald Dworkin, Law’s Empire (Cambridge, Mass: Belknap Press, 1986), 293. 64 Ibid., at 293. 65 Searle, ‘Prima Facie Obligations’ (n. 2), 84.

248

João Andrade Neto

obligation in a given situation. Searle affirms that prima facie moral obligations are “inherently subject to being overruled or overridden by other obligations (and reasons for acting in conflict situation).”66 However, they may become an absolute obligation in a different situation, thus overriding all reasons for acting differently. Searle67 regards both definitions as mistaken, but sees “more truth in the second than in the first.” He conceives of a third way to distinguish between prima facie obligations and other types of obligations.68 Firstly, prima facie obligations are real obligations, he posits; they exist, as there exist situations of moral conflicts, genuine ones, in which one cannot answer on rational grounds, ‘what ought we to do, all things considered?,’ by reflecting on the relative weights of the conflicting reasons only. Secondly, in situations of genuine moral conflicts, prima facie obligations take precedence one over another, but the conflicting obligations “continue to exist even.”69 Thirdly, based on their overridingness, it is not possible to separate classes of obligations once and for all, regardless of a specific conflict situation, for the strength of each obligation is relative and determined by the case given. Fourthly, it is nevertheless possible to separate deontic statements “asserting the existence of [an] obligation”, on the one side, from deontic statements “asserting what one ought to do, all things considered,” on the other. But what is this premise “all things considered” attached to the last definition? What is exactly its nature? Some consider that it plays the role of a ceteris paribus clause in legal argumentation, “eliminat[ing] the possibility that something extraneous … might interfere” with the conclusion.70 But the premise ‘all things considered’ is more than simply a ceteris paribus clause, at least if this is understood as a descriptive statement that “does not necessarily involve anything evaluative”71 or as a statement about pure brute facts only. When we assert something like “A ought to do X, all things considered,” we declare that we have evaluated counterarguments and eliminated normative reasons that could apply to the situation and thus justify a different course of action. That is, by saying ‘all things considered,’ we imply ‘having considered the reasons why A ought to act differently.’ It thus presupposes a prior process of evaluation and judgement. In this view, Davidson speaks of “prima facie judgements,” which “cannot be directly associated with actions.”72 As he sees it, an agent has a prima facie reason to act any time she believes that acting that way is desirable, “but the fact that the action is performed represents a further judgment that the desirable characteristic was enough to act on – that other

66 Ibid., at 83. 67 Ibid., at 84. 68 In fact, Searle, ‘Prima Facie Obligations’ (n. 2), refuses the very use of the term “prima facie obligation,” as it misleadingly suggests that a distinction of different kinds of obligations is at play. In the text, however, I opted to refer to “prima facie obligation” due to its prominence in the literature in general and in Alexy’s principles theory in particular. 69 Ibid., at 86. 70 Searle, ‘How to Derive “Ought” From “Is”’ (n. 20), 47. 71 Ibid. 72 Donald Davidson, Essays on Actions and Events (Oxford University Press, 2001), 87.

On the (dis)Similar Properties of Legal and Moral Duties

249

considerations did not overweigh it.”73 However, there is no consensus in the literature about how to determine which reasons the agent ought to bring into consideration so she can claim she acted after all the things were considered. On the one hand, Searle is correct in saying that the premise does not “establish a universal negative proposition to the effect that no reason could ever be given by anyone.”74 But on the other, ‘all the things considered’ would be a useless phrase if it referred to any reasons the agent could see at that moment, without further thought and justification, for acting one way instead of another. Part Six: Prima facie Requirements Within the Principles Theory The way I see it, Alexy’s definition of a prima facie legal ought oscillates between the three conceptions offered by Searle. We can infer the first conception from the confusing passage in A Theory of Constitutional Rights where he discussed the “different prima facie character of rules and principles.”75 After defining rules as “definitive requirements,” which say exactly what ought to be the case, “neither more nor less,” Alexy turned his attention to a problem: “the fact that it is possible to incorporate an exception into a rule on the occasion of a particular case.”76 If the exception is incorporated, the rule “lose[s] [its] strictly definitive character,” Alexy says, “but the prima facie character which rules acquire on losing their strictly definitive nature is of a fundamentally different type from that of principles.”77 Alexy is not sufficiently clear in explaining which type of prima facie nature is that of rules. Furthermore, he does not elucidate how it is possible to define rules as definitive requirements – which ought to be fulfilled, provided that they are valid – and yet admit that they behave like prima facie norms – which can be outweighed in a particular case regardless of their validity. We can nevertheless suppose, following his postulate of a strict separation between rules and principles, that rules can be referred to as prima facie norms if “prima facie” is intended to mean “apparent,” or the opposite of “actual”. In this sense, it should become clear after some thought that the rule was valid indeed, but only apparently applicable to that particular case. This situation of conflict should not offer great difficulty, for its solution may be found by simply applying the maxim that lex specialis derogat legi generali. Of course, it is also possible to deny the strict separation between rules and principles and conclude that there is no structural difference between legal norms.78 But 73 74 75 76 77 78

Ibid., at 87. Searle, ‘How to Derive “Ought” From “Is”’ (n. 20), 47. Alexy, Theory of Constitutional Rights (n. 9), 57–59. Ibid., at 57. Ibid., at 58. See Jan-Reinard Sieckmann, ‘Alexy’s Theory of Principles: The Ideal/Real Dualism,’ in Alexy’s Theory of Law Proceedings of the Special Workshop “Alexy’s Theory of Law” Held at the 26th World Congress of the International Association for Philosophy of Law and Social Philosophy in Belo Horizonte, 2013, ed. Julio Aguiar

250

João Andrade Neto

that is not what Alexy does. On the contrary, resembling the second conception offered by Searle, he employs the concept of a prima facie ought to separate the two classes of norms – rules and principles – and the proper type of conflict situation corresponding to each. He insists that rules prescribe definitively what one ought to do, while principles do so only prima facie. This separation is supposed to run regardless of concrete conflict situations, and the strength of each kind of norm is defined once and for all, for the rules in the constitutional text do not collide against principles in concrete cases. It is rather the principle underlying the rule that may collide against another principle. Finally, particularly when focusing on the collisions of principles, Alexy seems to endorse the third conception. He considers to be an “interesting point … that for Searle … there are two uses of ought, one that is ‘all things considered’ and one that is not.”79 In particular, Alexy attributed to legal principles three features of prima facie obligations that Searle had anticipated: firstly, that “any two general obligations can conflict in particular (actual or possible) conflict situations”80; secondly, that the conflict is solved when one obligation overrules another according to the relative moral strength of each of them: “The prima facie versus absolute distinction is constructed in terms of relative moral strengths. … Any obligation is subject to being overridden by special considerations in particular circumstances”;81 and finally, that the decision on which obligation is morally stronger and, thus, should overrule the other one is relative and transitive, that is, dependent on the particular features of the case under consideration. These theses reappear within the principles theory. Alexy says that principles are optimization commands or “norms commanding that something be realized to the highest degree that is actually and legally possible.”82 The legal possibility of realizing a principle is determined by countervailing principles. In such cases of conflict, “the court solves the problem by determining a conditional priority of one of the colliding principles over the other with respect to the circumstances of the case.”83 In other words, the prima facie character of legal principles make them the reasons from which one departs in deciding what to do.84 The final decision is nevertheless dictated by the rule one obtains from the collision. The resolution of a conflict between legal principles must necessarily be a definitive ought, or a statement of what one ought to do after having considered everything else, including the opposing arguments. Importantly, Alexy explicitly endorses Searle’s conclusion that principles remain valid regardless of conflicting with other equally valid norms within the same normative system: “one may have inconsistent obligations, and … what one ought to do all things

79 80 81 82 83 84

de Oliveira, Stanley L. Paulson, and Alexandre T. G. Trivisonno, 1st ed, Archiv Für Rechts- Und Sozialphilosophie, vol. 144 (Stuttgart: Franz Steiner Verlag, 2015), 149–59. Alexy, Theory of Constitutional Rights (n. 9), 57, footnote 53. Searle, ‘Prima Facie Obligations’ (n. 2) 87. Ibid., at 86–87. Alexy, ‘On the Structure of Legal Principles’ (n. 4), 295. Ibid., at 296. This aspect of the principles theory is emphasized by Mattias Kumm, ‘Total Rights and the Banality of Injustice,’ This Centuty’s Review: Journal for Rational Legal Debate, 2012.

On the (dis)Similar Properties of Legal and Moral Duties

251

considered may be inconsistent with one or more of one’s obligations, without … denying the existence of any of one’s obligations.”85 Part Seven: Overlooking Institutionalization and Legal Differentiation Alexy’s principles theory draws from moral philosophy the distinction between a prima facie ought and a definitive ought, brings it into law, and makes it the distinctive element of rules and principles. Turning the thesis on the dual nature of ought into a thesis about legal norms leads to profound consequences, the most important of which concerns the nature of law. To state that legal norms convey either a prima facie or a definitive ought is the same as to say that law comprises both prima facie (or ideal) and definitive (or real) obligations, Alexy believes. In other words, law has a dual nature. “The distinction between rules as expressing a real ‘ought’ and principles as expressing its ideal counterpart … underscores the point that the dual nature of law is the single most essential feature of law”, Alexy86 says. But what does it mean exactly to claim that law has a dual nature? According to Alexy87, “the dual-nature thesis sets out the claim that law necessarily comprises both a real or factual dimension and an ideal or critical one.” While the existence of an ideal, critical or substantive dimension implies that some moral norms are also legal norms and then part of law, the real, factual or institutional dimension of law refers to the fact that legal conventions are not the same everywhere, as they are “directly or indirectly supported by the authority of the positive law.”88 Alexy affirms that institutional arguments have priority, at least prima facie, over substantial arguments. In his words, “the principle of the authority of the positive law … demands a priority of the institutional over the substantial reasons.”89 By saying this, Alexy reveals that institutional reasons, based on authoritative law, are treated in his principles theory as if they had the same structure of moral reasons. They would be prima facie arguments in favour of something. Whether or not they become definitive arguments for acting in a given situation would depend on an institutional decision, generally rendered by a judge or a court. That is, the principles theory gives judges and courts the institutional power to solve conflicts between legal principles or norms conveying a prima facie legal duty. But without denying that “prima facie” and “definitive” moral duties exist, one who adopts the participant’s perspective in a given legal system can legitimately ask whether there can be prima facie legal duties. It is possible for a participant – say, a judge, a lawyer, or a citizen – to conceive of her own legal system as one in which decisions concerning conflicts between prima 85 86 87 88 89

Searle, ‘Prima Facie Obligations’ (n. 2), 90. “Alexy, Dual Nature’ (n. 49), 167. Ibid., at 168. Alexy, ‘Argumentation as Rational Discourse’ (n. 25), 177. Ibid. See also Robert Alexy, ‘Constitutional Rights and Proportionality,’ Revus. Revija Za Ustavno Teorijo in Filozofijo Prava / Journal for Constitutional Theory and Philosophy of Law, no. 22 ( June 20, 2014): 62.

252

João Andrade Neto

facie duties are not internal decisions, to be made by courts. A judge who adopted this attitude would not attempt to provide a solution for conflicts between legal principles herself but rather seek for an internal answer that appeared to her as a pre-existing decision about which principle prevails in that case. That is, from this perspective, conflicts between prima facie duties exist, but they are not legal in the strict sense; they would have been previously settled by ordinary legislators or the framers of the constitution, for example. Even if the answer to the moral conflict is not clear or cannot be referred to any authoritative act, our participant would assume that there was a legal answer to be found. It is important to notice that this point of view does not necessarily presuppose a positivistic conception of law, according to which “there [would be] no conceptually necessary connection between law and morality.”90 Without contradiction, one can perfectly assume, on the one hand, that the existing constitution is the expression of moral decisions made by the political community, and on the other hand, urge the legal authorities in charge of interpreting and applying that constitution to commit to those choices instead of taking upon themselves the responsibility to choose which decision would be morally advisable in a given case. This attitude would be both legally and morally acceptable – and even desirable, according to some authors91 – provided that the legal system as a whole was not wicked or extremely unjust. The truth is that participants within a legal system can differentiate legal arguments from moral arguments, if not in all cases, at least in most of them. “What the law demands is one thing, [and] what morality requires is another,” Alexy92 admits. To separate these two types of practical reasons, participants rely on legal differentiation, or the idea that legal arguments are structurally different from moral arguments. This difference consists exactly in their being definitive reasons. Therefore, differently from what Alexy claims, a possible consequence of legal differentiation and institutionalization can be that only definitive duties are to be regarded as law. In fact, most people would have difficulty in accepting that a prima facie principle can be a legal norm without actually commanding compliance,93 for legal norms are binding by definition. Part Eight: Ignoring the Prohibition of non liquet and the Claim to Correctness In legal systems that are not wicked or extremely unjust, most of the participants of the legal game are aware that in certain situations their ordinary legal obligations are morally controversial, and yet they opt to act in accordance with the law. Why would they

90 Robert Alexy, The Argument from Injustice: A Reply to Legal Positivism, trans. Stanley L. Paulson and Bonnie Litschewski Paulson (New York: Oxford University Press, 2010c), 3. 91 This is, as I see, the attitude Dworkin expected from judges. See his Taking Rights Seriously (n. 34), 137–40. 92 Alexy, Argument from Injustice (n. 90), 44. 93 See in this respect, Sieckmann, ‘Alexy’s Theory of Principles’ (n. 78), 150.

On the (dis)Similar Properties of Legal and Moral Duties

253

do so? Some authors, as Kelsen94 and Austin95, would attempt to reply to the question with the help of the concept of legal sanction. “People feel compelled to follow the law because they can be punished otherwise,” they would say. But this answer does not explain why most people follow the law even in situations where, they know, the chances of being punished are minimal or non-existent. Furthermore, it throws shadows on an essential difference between the legal system and the moral system, one that the concept of legal sanction presupposes. While a genuine moral conflict (or controversy) may never be settled, a legal conflict must necessarily be decided. This is another way to formulate the prohibition of non liquet. Even in difficult cases, judges cannot argue that no definitive legal answer was available; they are obliged to render a legal decision, that is, a decision which is grounded on the prevailing law. Of course, the prohibition of non liquet imposes on judges an obligation that is not merely formal. They are not expected to render whichever decision they prefer, but one that shows that the prevailing law was correctly interpreted in accordance with the legal canons and methods.96 However, if Alexy is right and legal principles are sources of prima facie duties, judges would not be able to comply with their obligation in all cases where a collision between principles was involved. This may become clearer when we understand the nature of a difficult moral conflict. As Searle explains, in hard cases of conflict between moral obligations, “one may simply not be able to decide what to do on rational grounds alone.”97 For him, genuine moral conflicts exist where “reflection on the relative weights of our obligations (and commitments and duties and other sorts of reasons) may not be sufficient to provide a rational answer to ‘What ought we to do, all things considered?’”98 The point to notice is that there are hard moral conflicts between two or more prima facie moral obligations that cannot be rationally solved. They are insoluble by definition, for all the conflicting obligations are real and cannot be simultaneously satisfied. Transported into law, this idea may lead to a general authorization for judges to render arbitrary decisions, provided that the case they have before them was construed as an instance of a genuine conflict between prima facie principles which do not admit any rational solution. And even if the conflict between legal principle cannot be reasonably construed as a hard case, there remains another problem that becomes a major issue when the idea of prima facie obligations is transported into law and subjected to the institutional constraints of legal decision-making. The question of which reasons one ought to consider when deciding what to do has been a cause of much controversy in moral theory. I introduced this point above when discussing the meaning of the premise “all things 94 Hans Kelsen, Pure Theory of Law, ed. Max Knight, 2. print. (Berkeley, California: Univ. of California Press, 1970), 24–26. 95 John Austin, The Province of Jurisprudence Determined, Amherst, NY: Prometheus, 2000. 96 According to Alexy, Argument from Injustice (n. 90), 38–39, “participants in a legal system necessarily, on all sorts of levels, lay claim to correctness,” and “with a judicial decision, the claim is always made that the law is being correctly applied.” 97 Searle, ‘Prima Facie Obligations’ (n. 2) 85. 98 Ibid., at 85.

254

João Andrade Neto

considered” that marks the difference between a prima facie proposition and a definitive proposition in Searle’s third conception. Authors like Davidson, for example, affirm that it suffices if a moral judgement is “based on all relevant considerations known to the actor.”99 For him, the premise ‘all things considered’ is a principle of continence, which commands an agent to “perform the action judged best on the basis of all available relevant reasons,”100 that is, all “things known, believed, or held by the agent, the sum of his relevant principles, opinions, attitudes, and desires.”101 Transported into law, Davidson’s conception would grant judges a general permission to decide based on prejudice, intuitionism, and other unreflected moral and political beliefs, discharging them from the duty to render legally correct decisions even in hard cases. In fact, other authors think that Davidson’s account is flawed without considering the legal implications of his moral theory. As James and Judith Thomson explained, “that none of us sees or knows of a reason just does not entail that there is none.”102 Therefore, it is necessary to distinguish situations where ‘no one [was] prepared to offer counterarguments’ and no counterargument was actually evaluated from those where “as a matter of fact there are no counterarguments.”103 While the phrase ‘all things considered’ designates the former in Davidson’s view, it suggests the latter in the Thomsons’. They argue for a strong interpretation for the sentence ‘A ought to do X, all things considered’: that nothing being omitted in the judgement, there is nothing sufficient to make it false that ‘A ought to do X’. Nevertheless, there remains a problem in the Thompsons’ conception. Given the institutional constrains to which judges are subjected in real legal systems, it is highly doubtful that they can dispose of sufficient time and resources to consider all counterarguments against a certain decision in a situation of conflict between prima facie legal principles where any counterargument could be presented. In fact, an important consequence of the separation of powers doctrine as it has been institutionalized in most legal systems is that authoritative law enacted by the legislative branch reduces the possibilities of legal decisions, by channelling legal argumentation and filtering out the reasons that are irrelevant to a certain case and ought not to be brought into consideration. But judges cannot rely on this if they are expected to reopen the political and moral conflicts that authoritative law is intended to pacify.

Davidson, Essays on Actions and Events (n. 72), 39. Ibid., at 41–42. Ibid., at 41. James Thomson and Judith Thomson, ‘How Not to Derive “Ought” from “Is”,’ The Philosophical Review 73, no. 4 (October 1964): 513. 103 Ibid., at 513.

99 100 101 102

On the (dis)Similar Properties of Legal and Moral Duties

255

Concluding Remark In this essay, I attempted to demonstrate that the differentiation between definitive and prima facie obligations faces serious difficulties when transported into law. Alexy’s principles theory builds the separation between two types of legal norms, rules and principles, upon the corresponding distinction between a definitive ought and a prima facie ought. Despite some inconsistency in his definition of a prima facie legal principle, his conception relies much on Searle’s contrast between a normative proposition stating that ‘A has reasons to act one way’ and another proposition saying, ‘A ought to act one way, all things considered.’ Nonetheless, the very idea of a legal principle as a prima facie requirement that demands a further decision about its exact content is difficult to accommodate within a legal system, as from the perspective of a participant in the legal game, a consequence of legal differentiation and institutionalization is that only definitive duties are regarded as law. Furthermore, the idea of prima facie norms necessarily implies the existence of normative conflicts that cannot be rationally solved. While the existence of unsolvable conflicts can be tolerable in regard to moral, it contradicts basic canons of any legal system, such as the prohibition of non liquet and the claim to correctness. Although these problems do not allow us to challenge the existence of prima facie norms, they do raise questions about whether these norms can be regarded as legal. For it is possible to conceive of the existing constitution as expressing decisions made by the political community in face of moral conflicts, that is, collisions between prima facie moral obligations that are external to law. Someone who makes this assumption can urge the legal authorities in charge of interpreting and applying a constitution to commit to those moral choices instead of taking upon themselves the responsibility to choose which decision would be morally advisable in a given case. This attitude would be both legally and morally acceptable provided that the legal system as a whole was not wicked or extremely unjust.

Law and Morals According to a Realistic and Rhetorical Philosophy The Brazilian Case Revisited João Maurício Adeodato

Part One: The Realistic Rhetoric as an Approach to Law and Morals There can be many different ways to address the ancient issue of the relations between law and morals. We may risk a first classification in three mental attitudes of observing those relations, in order to situate what a realistic and rhetorical philosophy has to say about them. Some philosophies are in the field of what I have called strategic rhetoric, once their discourse is dedicated to suggesting ameliorations to the existing law, their goal is to guide law makers, judges and people in general in fulfilling certain requirements that will make law improve in terms of ethical content and/or efficiency. The problem with those theories is that philosophers, common sense and people in general hardly agree about the criteria that should be applied to achieve a better law, and this makes theorists reticent to openly admit their idealistic aims. They may be called normative philosophies. A second position may be called analytical for it intends to decompose law as it appears to the philosopher, that is, trying to abstain from any judgment of value. Because of their descriptive approach, those theories consider themselves empirical and realistic and this is the approach applied here. They are criticized under the argument that neutrality is impossible, and they defend themselves by saying that their approach is only tentatively neutral. Other philosophies search for an intermediate attitude, that is, they want to use the knowledge of the past to anticipate what will happen in the future, they intend to literally discover causal rules – etiologies – which regulate social relations, among of them law. They are inspired by a predictability allegedly assigned to the so called natural sciences, they are “social sciences”. This is why I call them eschatological perspectives. They neither aim to prescribe the future nor to describe the past, but to describe the future, that is, their discourse is not what the future ought to be, but rather how the future will be. So eschatological theories hide covert idealisms.

258

João Maurício Adeodato

A second classification that I propose concerns the three different senses in which the word “rhetoric” may be and is used. This division of rhetoric is inspired in particular by Friedrich Nietzsche, who, in turn, draws inspiration from Aristotle and puts it on three levels: rhetoric as dýnamis (δύναμις), as téchne (τέχνη) and as episteme (ἐπιστήμη). This is also the path chosen by Ottmar Ballweg. In the sense proposed here it is thus possible to employ the word rhetoric in three different forms, that is, dynamic (material, existential), technical (practical, strategic) and epistemological (analytical, scientific)1. Material rhetoric corresponds to what common sense and all ontological philosophies understand as “the reality” of the events. For a rhetorical philosophy, since events are directly unattainable by the human being, literally wrapped in a linguistic solipsist bubble, reality is a creation of the winning narratives2. The concept does not solely point that our contact to the “thing in itself ” is mediated by Immanuel Kant’s pure forms or that being is occult in the forest clearing of Heidegger’s metaphor: it states that language creates the human world by means of a set of reports which have imposed themselves in a certain environment. But it is important to notice that those narratives are perpetually changing, while the defeated and the new accounts of events are always defying them and trying to impose themselves. So the dominant stories may turn people into ghosts or saints, create black holes and miracles, separate animals from plants and so on. Strategic rhetoric has the function to conform material rhetoric, to interfere on it, to determinate how it should be. This level of rhetoric has the material rhetoric as object and objective, in the sense that it consists of a set of guidelines that aims at dealing and also teaching how to deal with the material rhetoric and obtain success framing it. So it is always instrumental and normative, once it addresses the material rhetoric with a reforming teleology, seeking to tell the best story, the account that should be. On one hand, common sense and ontological philosophies usually restrict rhetoric to this plane; on the other hand, even rhetoricians themselves identify strategic rhetoric with persuasion (logos, ethos and pathos). Both have inappropriate, reductionist perspectives. Analytical rhetoric focuses on knowing and describing the relationships between the two other types of rhetoric, that is, not exclusively on the winning narrative (material) but also on which ways function, and which do not, by the shaping of reality (strategic). The analytical attitude should not be confused with the strategic one, a confusion that leads normative legal theories to defend that law “is” what their authors think it should be or that law eschatologically evolves in a direction supposedly discovered by them. The many normative ways of seeing the world, no matter whether their defenders know it or not, do not observe, they want to modify their surroundings. Both perspectives are warrantable, as long as they get clearly exposed. 1

2

Nietzsche, Friedrich. Rhetorik. Darstellung der antiken Rhetorik; Vorlesung Sommer 1874, dreistündig. Gesammelte Werke, Band 5. München: Musarion Verlag, 1922, p. 291. Ballweg, Ottmar. Entwurf einer analytischen Rhetorik, in Schanze, Helmut (Hrsg.). Rhetorik und Philosophie. München: Wilhelm Fink, 1989, p. 229 ff. Adeodato, João Maurício. The realities of law are the winning narratives – basic theses for a realistic and rhetorical philosophy of law. Frontiers of Law in China, vol. 11, nr. 3, 2016 (DOI 10.3868/s050-005-0160027-4).

Law and Morals According to a Realistic and Rhetorical Philosophy

259

One of the results of the descriptive view concerning our theme is that each and every law command is born of a moral perspective. No woman would be beaten or stoned because of adultery if there were not a social value about the justice of this punishment. So every law has a “value”, a moral content, as absurd as it may be. Coercivity of law gets away from morals exactly because there ceases to be a choice, law is the moral of the winners who do not accept deviant conducts. Part Two: The Confusion between Strategic and Analytical Attitudes Thus, the much widespread split between the separation and connection theses3 leads to misunderstandings, insofar as what its proponents really mean to say is that the “connected” relations between morals and law signify attachment to certain moral contents which the anti-positivists themselves consider superior to some choices of positive law, like, in Alexy’s case, the requirements of equality or sincerity in the legal discourse, for example. Law is never “separated” or “disconnected” with morals. A descriptive, non-ontological approach leads to the conclusion that the ever present moral content of law is not determined by any superior external criteria, valid per themselves, once it results from the struggle of different or even antagonistic interests. In every society some of those controversial moral issues get to be so crucial that their solution demands coercive treatment, as long as they cannot reach agreement and obtain consensus, once that legal solutions do not need that. In this strategic competition for the victorious moral decisions, a very common eristic position is to try to look analytical, that is, the appearance of analysis is used as a strategy to impose personal preferences. Like all eristic strategies, this cannot be revealed in the argumentation, it has to remain unconfessed. Hence the describing appearance and the use of the verb to be instead of ought to be. It seems perfectly legitimate for a former adviser, lawyer, follower or simply admirer of a person or political party to advocate a strategy to achieve this or that result, as when a white-collar criminal defendant protests against testimonies of informers in a plea bargain, however numerous and concordant these might be. But it should be clear for neutral observers that those positions are inside the game, that their defenders are players and not spectators: if a different solution comes out in the end and they get defeated, those people might have serious financial, social or political damage. The Brazilian legal-political debate is interesting to exemplify these attitudes towards the world. One cannot give credence to a would-be observer, who tries to explain the political situation while being part of this or that side, for the ethos of exemption, even tentatively, is essential to understanding and explaining reality. Of course a person who descriptively analyzes something is also a citizen and participant, but this condition has to be left aside to obtain a minimum of credibility. Academic debates cannot listen to 3

“Trennungsthese” and “Verbindungsthese”. Alexy, Robert. Begriff und Geltung des Rechts. Freiburg-München: Alber, 1992, p. 39.

260

João Maurício Adeodato

pretentious jurists or social scientists whose psyche are dominated by deceptions they do not want to or are not able to admit. Like people who have spent years or decades teaching “truths” and reporting “facts” about ideologies and political parties, signing manifests, defending and taking photographs with persons who are now convicted and imprisoned corrupts or simply “thieves”, in popular parlance. Or, on the psychological inside, they feel they must justify to the world or to themselves biographical vicissitudes of their lives or of their families or social groups, differentiating themselves from those right-wing, leftist or simply corrupt environments they were brought up in. Knowledge does not work that way. Moreover, when the audience perceives that arguments are mingled with interests, this will probably weaken the strategy. Therefore, it is unfunctional to admit personal interests, and mixing analytical and strategic assertive may well involve unsuspecting audiences and triumph. Hence the trivial statement of rhetoricians: the less the audience knows rhetoric, the better it will work4. Part Three: Institutional Deficit in the Political History of Brazil With those points of departure in mind we could approach the problem of morality in politics and the lack of official (state) legal controlling instances, using Brazil as an example. My underlying thesis is that democratic institutions never played an important role in Brazilian history and law has never been dogmatically organized. Now, if law is not dogmatic and every society has its law (ubi homo, ibi societas; ubi societas, ibi ius), there must be specific legal procedures which, although unofficial, effectively control the conflicts. Thereafter my old thesis that the abundance of extra-dogmatic legal procedures in Brazil – which Tercio Ferraz and Joaquim Falcão, in the 1980s, called “non-official law”, long before the “alternative” law movement of the 1990s – would not only be flaws or failures, they would have to have some function in the organization of positive law5. The thesis was first published in 1985 and still remains current, because Brazil has not changed much in this respect6. 4 5

6

Lausberg, Heinrich. Elementos de retórica literária, trad. R. M. Rosado Fernandes. Lisboa: Fundação Calouste Gulbenkian, 2004, 5. ed., p. 251–254 Such procedures have been studied in Recife since the 1970s. For example: Ascensão, José de Oliveira (org.). Água Branca – pesquisa de um direito vivo. Recife: Editora Universitária da UFPE, 1979; Falcão Neto, Joaquim de Arruda (org.). Conflito de direito de propriedade: invasões urbanas. Rio de Janeiro: Forense, 1984; Oliveira, Luciano. Sua excelência o comissário. Recife: PIMES/UFPE, 1984; e Oliveira, Luciano e Pereira, Affonso César. Conflitos coletivos e acesso à justiça, Recife: OAB/Massangana, 1988. Souto, Cláudio. Direito alternativo: em busca de sua teoria sociológica. Anuário dos Cursos de Pós-Graduação em Direito, nº 7. Recife: Universitária da UFPE, 1995, p. 49–106. This thesis was initially placed in Adeodato, João Maurício. A legitimação pelo procedimento juridicamente organizado – notas à teoria de Niklas Luhmann. Revista da Faculdade de Direito de Caruaru, vol. XVI. Caruaru: FDC, 1985, p. 85–86, suggesting that law in underdeveloped countries does not fit that

Law and Morals According to a Realistic and Rhetorical Philosophy

261

The social conditions for the dogmatization – or “positivation” – of law are the most varied, depending on whether these or those characteristics are emphasized: an autopoietic society, the importance of written law to the detriment of other sources of law, the pyramidal structure of the legal system, the predominance of procedural law and so on7. Very important for the study of this form of organization of Western Law in modernity, among those conditions, was the monopoly claim on the part of the State in the production of juridical norms, establishing and modifying the rules of social coexistence by means of legally founded decisions: the State does not create all law but it sets the criteria for the law created by other social bodies and ultimately decides what it considers legally relevant, to the point that authors such as Hans Kelsen reduce positive law to state law. In other words, the legal norms are established by legal decision and also by legal decision are replaced, institutionalizing the mutability of law. From there it is easy to see that Brazil is not a State in this sense of the Eurocentric modernity. Part Four: “Reality” and the Institutionalization of Corruption Therefore, the thesis is that the Brazilian political and juridical systems are not legitimized by the dogmatically organized procedures. State law does not regulate politics, but both are regulated by ways alternative to the ones developed by central modern democracies. One should not think that simply legalizing certain procedures is enough to turn them into dogmatic procedures. Countries such as Brazil constitute an official legal structure that only presents itself as dogmatic and law has its own unconfessed morals. Legitimacy, the “morals” of law, must be guaranteed by other means. Hence the attempt to list these different rhetorical media and to differentiate them: the jeito, or the

7

theory and that the inefficiency of state norms should not be reduced to mere dysfunction, but plays an important role in Brazilian law. It is the first work on Niklas Luhmann published in Portuguese language. Then the thesis is more detailed em Adeodato, João Maurício. Sobre um direito subdesenvolvido. Revista da Ordem dos Advogados do Brasil, vol. XXI. São Paulo: Ed. Brasiliense, 1989, p. 71–88. In the German debate, criticism of the alleged universalization of Luhmann’s systemic theory can be found in Adeodato, João Maurício. Brasilien. Vorstudien zu einer emanzipatorischen Legitimationstheorie für unterentwickelte Länder. Rechtstheorie, 22. Band, Heft 1. Berlin: Duncker und Humblot, 1991, p. 108–128. In the same direction, emphasizing the differences between periphery and center and the consequent inadequacy of theories produced for one or another social context, see Argyriadis, Chara. Über den Bildungsprozeβ eines peripheren Staates: Griechenland 1921–1827. Rechthistorisches Journal, Nr. 6. Frankfurt a. M.: Löwenklau, 1987, p. 161 ff. The use of the word “positivation” (Positivierung) by Niklas Luhmann and disciples is misleading, for it seems to suggest that “positive” law is a modern phenomenon. What is new is the “dogmatic” organization of law, for “positive” law has always been present. See Adeodato, João Maurício. Two philosophical problems for legal dogmatics to answer, in: Adeodato, João Maurício (Ed.). Human rights and the problem of legal injustice – Annals of the preparatory meeting for the XXVI World Congress of the International Association of Philosophy of Law and Social Philosophy. São Paulo: CAPES/Noeses, 2013, p. 5–24.

262

João Maurício Adeodato

diminutive form jeitinho8; exceptions to the legal rules; the fiction of the systemic hierarchy of laws and prevalence of the constitution; nepotism, which provokes the popularly called DNA party benches, among other excrescences; the subsystem of good relations, also called contact systems; clientelism; the procedural rules to legalize procrastination of actions in court, for the benefit of politicians and corruption in general; the inefficacy of law as a conscious political strategy, etc.9. Of these alternative procedures that run counter to the state’s pretension of the monopoly of jurisdiction, the most important has always been corruption. The texts were published before the episode involving President Fernando Collor and the notorious “Republic of Alagoas” (an economically and socially backward state in the Northeast of Brazil, where he was from), whose crimes in the current context, by the way, have proved trifles. The thesis was simple: corruption was no dysfunction, but a mechanism to guarantee a legitimation that could not be ensured by the institutions of dogmatically organized procedures. It suggested that institutionalized corruption is a mechanism for oil-lapping an incompetent state machine and for uniting the peripheral elites around a prebendary and predatory system of money distribution, advantages and power in general, before an amorphous and alienated people. In Brazil, corruption is not an appanage of professional politicians. It is present in all sectors of public and private life: post service, medicine business, television, subway, oil, the list is very long, especially if it includes the simple driving of cars and trucks around and everyday life. If the government usually constitutes the only entity that is strong enough to control the greed of businessmen, in Brazil both have always been the greatest allies. It cannot work, it is not meant to work. But one should not believe that Brazil or its political way of life is so or so. Humans are corruptible, this is obvious, one can no longer believe in the “naturally” good man of Rousseau’s romanticism. Companies of the developed capitalist center come to the periphery and are soon involved in corruption procedures and leading other criminal activities. Why don’t they do it in their original countries? Because there, institutions, guaranteed by coercive law, make sure that crime does not pay. In Brazil, legally institutionalized proceedings function the other way around. In the struggle for life, an army of lawyers was formed in order to defend all kinds of criminals through the most bizarre stratagems. Procedural law is designed to protect most criminals, as long as they can pay for the defense, and “big” lawyers and interested businessmen cultivate personal relations with those who decide, the also corrupt judicial system. Material legal arguments, which try to go beyond the formal procedures, in those cases of corruption, aim merely to corroborate strategic positions chosen beforehand and it is not very likely that any consensus will come out of the argumentation. Strategi8 9

Rosenn, Keith S. The Jeito: Brazil’s Institutional Bypass of the Formal Legal System and its Development Implications, The American Journal of Comparative Law, n. 19, 1971, p. 514-549. Closer analyzed in Adeodato, João Maurício. Subdesenvolvimento e direito alternativo, in Adeodato, João Maurício. Ética e retórica – Para uma teoria da dogmática jurídica. São Paulo: Saraiva, 2012 (5ª ed.), p. 45–69.

Law and Morals According to a Realistic and Rhetorical Philosophy

263

cally thinking jurists – lawyers, magistrates, prosecutors – buy and sell the idea that law is this and that, so that the “correct” interpretation of the text is the one they advocate. If in social environments with dogmatically organized law, the text of statutes can be used to impose limits on politics, this is not certainly the case in Brazil. Even this simplest side of institutionalization, the text, may not matter. Recently the Brazilian Federal Senate, presided over by the President of the Federal Supreme Court, under the terms of the Constitution, decided to maintain the “habilitation” for the exercise of public functions of a President of the Republic, whom the Brazilian legal system had declared dismissed, due to “crimes of fiscal responsibility”, when the text of the same Constitution states: Art. 52, Sole Paragraph. In the cases provided for in items I and II, the President of the Federal Supreme Court shall act as President, limiting the conviction, which shall only be rendered by two-thirds of the votes of the Federal Senate, to the loss of office, with a disqualification, for eight years, for the exercise of public function, other applicable judicial sanctions notwithstanding.10

Regardless of what one may think of the decision under a moral or political point of view, the constitutional text is supposed to control the bases of public morals; under a realistic perception the text was clearly ignored, for there seems to be not much syntactic and semantical room for not withdrawing the right of an impeached president to exercise public functions. The consolation prize that was given represents a recent example of the weakness of public institutions in Brazil. But keeping the public subjective rights of an impeached president came to be the winning narrative that constituted empirical reality, the real and “just” law. A realistic rhetoric about human rationality helps to better understand this social environment in which the effectiveness of a decision before an ignorant and disinterested population prevails over the most basic institution, that is, the constitutional text. So this conjunction between strategic and analytical attitudes characterizes underdeveloped peripherical societies such as the Brazilian. Judges of high courts pontificate among sycophants of their “doctrine”: lawyers interested in pleasing for future favors, congress organizers businessmen who seek to attract unsuspecting audiences of students, politicians trying to protect their privileges in eventual future prosecutions … Criticism is rare and, above all, innocuous. Economists who have miserably failed in several government posts, from a technical point of view, but some also morally corrupt, give lessons to the media and to crowded audiences about how the country should be managed. In other words, the technical and ethical failure that characterizes the history of Brazil continues, it does not remain in the past of Deodoro da Fonseca, Getúlio Vargas, Jânio Quadros, Costa e Silva and others. In addition to those figures, other strange creatures of the peripheral capitalist culture also appear in the morals of the political bubble. What about the so-called “posts” 10 Subsection I deals with the impeachment of the President of the Republic.

264

João Maurício Adeodato

(like in “lamp post”, without the lamp), a contemporary urban copy of the ill-fated long-standing “corral vote” (the metaphor comes from forcing captive animals)? A politician with popularity and votes commands voters to elect someone appointed by him, a person that no one has ever heard of, and that person is elected, certainly to be a grateful future guarantee to the protector. When the elected is a son or daughter, relatives in general, he or she belongs to the above-mentioned DNA bench, as it is cynically called. This voter, alienated from any political notion, is by no means restricted to the group of illiterate and excluded: the last president of the Republic, the current governor of Pernambuco and the current mayor of Recife are some examples among hundreds. Another interesting figure in this environment is the “professional” commissioned pubic officer, with no defined profession and neither votes, but who helped to support the eventually elected. The law itself, enacted in their interests, gives the elected ones those numerous positions in the public staff to be distributed. So those professionals of public commissions change positions as life goes on, they direct any public organ, jumping from branch to branch, as long as the position and the commission remain advantageous to their permanence. For the engaged voters, parties in Brazil are like ideologized soccer teams: mine does not fail and the others only err. For the members of the core there are no programs, only convenience and opportunities to get paid, besides the counterpart to hunt for votes. For the non-partisan majority, there remains the political indifference (Politikverdrossenheit), harmful even in the central capitalist countries11. Most notable is the television broadcast of the Federal Supreme Court judgments, unique in today’s world. A recent empirical survey, carried out at a Foundation in São Paulo City, showed that the media exposure has increased the votes of the court members by about half an hour of transmission and by 26 pages in the annals of the Court. In another newspaper report, the former minister Eros Grau states that other former minister, Nelson Jobim, in a debate in the Supreme Court, told another minister that the colleagues had already understood his long, redundant speech, to which this minister replied: it is not for you that I wrote my vote …12 It looks like an anecdote. The same newspaper also shows a full-page interview with the president of the Federal Supreme Court, commenting on various issues and giving opinions on cases that are in the immediate horizon of her trial attributions13. In Portugal, a close example, it is not even disclosed to the media who voted so or so or who was the rapporteur on the case, the Constitutional Court as a whole is responsible for the decisions. Interviewing

11

Müller, Friedrich. Wer ist das Volk? Die Grundfrage der Demokratie (Schriften zur Rechtslehre, Bd. 180), Ralph Christensen (Hrsg.). Berlin: Duncker & Humblot, 1997, p. 110. 12 Jornal O Estado de São Paulo. Sessões do Supremo na TV alongam votos de ministros. O Estado de São Paulo, Domingo, 26 de novembro de 2017, p. A4, comentando tese de doutorado de LOPES, Felipe. Televisão e comportamento judicial. São Paulo: Fundação Getúlio Vargas, 2017. Também Justiça se transformou em espetáculo, diz Eros. O Estado de São Paulo, Domingo, 26 de novembro de 2017, p. A4. 13 Jornal O Estado de São Paulo. “Processos da Lavajato precisam ser jugados”. O Estado de São Paulo, Domingo, 26 de novembro de 2017, p. A6.

Law and Morals According to a Realistic and Rhetorical Philosophy

265

a judge to know what she or he thinks about a thematic their court will judge never happens. The philosophical empirical conclusion is that the public control of language creates the real world. The problem with Brazilian legal morality is exactly the lack of that control. In this democratic Brazil nowadays, if Brazilians do not refuse votes to the notorious corrupt, do not respect the queue at the airport and drive on the road side to take supposedly personal advantages, this is reality. If the only controllers of legal rhetoric are professional politicians, elected by ignorant and needy voters, or judges headed by ministers appointed without republican criteria by the executive power, designated according to the momentary political prestige of the presidential forces who indicated them, regrettable. But this will be the morals of law in the real world.

Part IV – Morals and Legal Positivism

On the Relation between Law and Morality From the Separation to the Connection Thesis in Gustav Radbruch’s Legal Philosophy Jing Zhao1

Introduction I. The Central Issue Until today, the “correct” interpretation of the development of Gustav Radbruch’s legal philosophy is still an issue among Radbruch researchers. Martin Borowski divides all of the previous positions into three thesis groups: a) transformation thesis, b) development thesis, c) non-positivistic unity thesis.2 In the current discussion on the development of Radbruch’s legal philosophy, thesis b), namely the “development thesis” or “accent-shifting thesis” (represented by Arthur Kaufmann and Erik Wolf above all), is less interesting. Borowski has persuasively explained that this position fails to make clear whether the development of Radbruch’s legal philosophy “implicates a transformation from a positivistic theory to a natural law theory”. So far it has not been clear, “which elements of [Radbruch’s] theory are developed in which direction, and what means this change against the background of the distinction between positivism and natural law”.3 Stanley L. Paulson argues that although Kaufmann’s thesis maintains that Radbruch’s position must be classified as “beyond natural law and positivism”4, and also calls itself 1

2 3 4

Firstly, I want to express my sincere gratitude to my PhD supervisor, Prof. Dr. Dres. h.c. Ulfrid Neumann, for his continuous support, guidance, inspiration and confidence during the writing of this paper. I am also grateful to Dr. Antonio Martins, André Ferreira Leite de Paula, Andrés Santacoloma Santacoloma, Dr. Wei Feng, Prof. Lei Lei, Dr. Hongbin Shen, lecturer Hui Chen and Huicheng Ye, for their helpful suggestions and criticism. For a detailed analysis see Martin Borowski, ʻBegriff und Geltung des Rechts bei Gustav Radbruch. Gegen die These seiner naturrechtlichen Bekehrung’, in Die Natur des Rechts bei Gustav Radbruch, ed. Martin Borowski and Stanley L. Paulson (Tübingen: Mohr Siebeck, 2015), 229–65, at 229–36. Ibid., at 234. See Arthur Kaufmann, Gustav Radbruch: Rechtsdenker, Philosoph, Sozialdemokrat, (München: Piper, 1987), 29, 32. In accordance with his interpretation of Radbruch’s position (there is a unity in Radbruch’s legal philosophy because both the early and late Radbruch have gone beyond natural law and positivism),

270

Jing Zhao

a unity thesis, this is not the same as Paulson’s own unity thesis.5 Actually, for Paulson, Kaufmann’s thesis stands in contrast to his own thesis of non-positivism, because the former finally expresses a positivistic legal theory.6 In another earlier paper, Paulson also emphasized that Kaufmann’s argument is “not an argument on behalf of the unity thesis”.7 Based on these arguments, only theses a) and c) are relevant and more interesting for us. My project once again both builds upon and engages critically with the recent scholarly investigations of this most “mystic” point. Through researching Radbruch’s position on this central issue of whether there is a necessary connection or overlap between law and morality, my goal is to support thesis a), namely the transformation thesis. Before proceeding with the main body of the essay, it is necessary to clarify some terms. In this paper, the relation between law and morality is understood within the scope of contemporary legal theory, especially its usage in the debate over “legal positivism” and “legal non-positivism” or “natural law theory” within Anglo-American legal philosophy. Some terminologies within Radbruch’s own understanding or the understanding of legal theory as it existed at that time – for example natural law, legal value or morality – will be considered to a lesser extent. What is important is the identification of which terminologies can be ascribed to “morality” within the standards of contemporary legal philosophy. Under this condition, we cannot simply assume that Radbruch rejects the separation thesis by merely illustrating his own critiques of legal positivism. This type of proof is problematic, because besides the rejection of legal positivism, Radbruch employs a parallel criticism of natural law theory. However, we know that when referring to the relationship between law and morality, it is logically impossible for a

5

6 7

Kaufmann claims a way of thinking of “as well-as” (legal positivism as well als natural law) which stands in opposition with Fritz von Hippel’s way of thinking of “either-or” (either legal positivism or natural law). See also Fritz von Hippel, Gustav Radbruch als rechtsphilosophischer Denker (Heidelberg: Lambert Schneider, 1951), 28. Unlike Kaufmann, Paulson labels himself as a proponent of the “unity thesis” in the sense that both the early and late Radbruch are a non-positivist with a deepening and further development. His central arguments for a non-positivistic earlier Radbruch can be summarized in the following points: a) Radbruch’s concept formula of law; b) Radbruch’s philosophical doctrine of legal validity; c) Radbruch’s own criticisms of statutory legal positivism and juristic positivism. For detailed research see this series of Paulson’s essays: Stanley L. Paulson, ʻZur Kontinuität der nichtpositivistischen Rechtsphilosophie Gustav Radbruch’, in Die Natur des Rechts bei Gustav Radbruch (n. 2), 151–82; Paulson, ʻEin ewiger Mythos: Gustav Radbruch als Rechtspositivist – Teil I’, JZ 3/2008, 105–15; Paulson, ʻOn the Background and Significance of Gustav Radbruch’s Post-War Papers’, Oxford Journal of Legal Studies, 26, 1 (2006), 17–40; Paulson, together with Ralf Dreier, ʻZum 50. Todestag von Gustav Radbruch’, Archiv für Rechts- und Sozialphilosophie, 85 (1999), 463–8; Paulson, ʻRadbruch on Unjust Laws: Competing Earlier and Later Views?’, Oxford Journal of Legal Studies, 15, 3 (1995), 489–500; Paulson, ʻLon L. Fuller, Gustav Radbruch, and the “positivist” theses’, Law and Philosophy, 13, 3 (1994), 313–59. Here I also want to point out one thing. The predecessor of Paulson’s ‘Zur Kontinuität der nichtpositivistischen Rechtsphilosophie Gustav Radbruchs’ (2015) is another paper under the title ‘Ein ewiger Mythos: Gustav Radbruch als Rechtspositivist – Teil I’ (2008). In the former paper, Paulson retains most of the content of the latter one but with an addition of a new capital (VI. Das bleibende Rästel) and an appendix (“Zu Radbruchs Neukantianismus”). Paulson, ʻEin ewiger Mythos: Gustav Radbruch als Rechtspositivist – Teil I’ (n. 5), at note 14 pertaining to pp. 106–7. Paulson, ʻRadbruch on Unjust Laws: Competing Earlier and Later Views?’ (n. 5), at 489–500. 499.

On the Relation between Law and Morality

271

third position that claims neither a separation thesis (e. g. all positivists) nor a connection thesis (e. g. all advocates of non-positivism or natural law). “Legal Positivism” and “Legal Non-positivism” or “Natural Law Theory” must be understood as generic terms. Furthermore, in contemporary legal philosophical discussion, the term morality is not used in a positive but in a critical sense. Not a particular moral but the universal moral comes into consideration.8 With regard to this critical understanding of “morality” as an entirety of norms for correct behavior, “natural law” (especially classical natural law) is actually only one part of it. Natural law proponents claim firstly, that there is an objective and universal law of nature, and secondly, that only this natural law supplies evaluation standards for positive law. However, contemporary legal positivists in the Anglo-American world simply take the position that their theories are opposed to natural law theories, so that in their discussion, the three terms: “natural law”, “moral” and “morality” are frequently used analogically. For example, Brian Bix has pointed out that “Hart located the boundary between legal positivism and natural law theory at the conceptual separation of law and morality – that is, that the question of whether something was ‘law’ was conceptually separate from its moral merit”.9 In comparison to classical natural lawyers such as St. Thomas Aquinas and William Blackstone who claim a strong connection thesis, natural lawyers in recent times (four leading figures: Lon L. Fuller, John Finnis, Ronald Dworkin and Robert Alexy) defend a milder connection thesis.10 They should be perhaps – more precisely – be called legal moralists or legal non-positivists, being the opposite of positivists who defend the separation thesis.11 See H. L. A. Hart, Law, Liberty and Morality (Oxford: Oxford UP, 1963), 17–24; Borowski, ʻDie Vernichtung von Recht durch Moral’, in Rechtsstaatliches Strafrecht: Festschrift für Ulfrid Neumann zum 70. Geburtstag, ed. Frank Saliger et al. (Heidelberg: C. F. Müller, 2017), 71–84, at note 41 pertaining to p. 79; Stephan Meyer, ʻJuristische Geltung als Verbindlichkeit’, (Tübingen: Mohr Siebeck, 2011), 55–7; Ulfrid Neumann, ʻNotwendigkeit und Grenzen von Idealisierungen im Rechtsdenken. Anmerkungen zu Robert Alexys Modell der “Doppelnatur” des Rechts’, in Rechtsphilosophie und Grundrechtstheorie: Robert Alexys System, ed. Martin Borowski et al. (Tübingen: Mohr Siebeck, 2017), 67–86, at 74–5. 9 Brian Bix, ʻNatural Law theory: The Modern Tradition’, in The Oxford Handbook of Jurisprudence and Legal Philosophy, ed. Jules Coleman et al. (Oxford: Oxford UP, 2002), 62–103, at 75; see also Stephan Kirste, ʻNaturrecht und positives Recht’, in Handbuch Rechtsphilosophie, ed. Eric Hilgendorf and Jan C. Joerden (Stuttgart: J. B. Metzler, 2017), 15–24, at 22; Ralf Dreier, Recht-Moral-Ideologie (Frankfurt am Main: Suhrkamp, 1981), 184. 10 For example, Raz is of the opinion, that none of the recent natural lawyers (Fuller, Finnis and Dworkin) “denies that there may be valid unjust laws”. See Joseph Raz, ʻThe Purity of the Pure Theory’, in Essays on Kelsen, ed. Julio A. Thompson et al. (Oxford: Clarendon Press, 1986), 79–97, at 84. 11 Coleman and Leiter claim that “all positivists share two central beliefs: first, that what counts as law in any particular society is fundamentally a matter of social fact or convention (‘the social thesis’); second, that there is no necessary connection between law and morality (‘the separability thesis’)”. See Jules Coleman / Brian Leiter, ‘Legal Positivism’, in A Companion to Philosophy of Law and Legal Theory, ed. Dennis Patterson (Oxford, UK: Wiley-Blackwell, 2010), 228–48, at 228. However, in recent times, there are some positivists (especially exclusive legal positivists) who deny the “separation thesis” or “separability thesis” as the label of legal positivism. They state that legal positivism is compatible with the existence of necessary connections between law and morality. According to Gardner, the separability thesis is “absurd and no legal philosopher of note has ever endorsed it as it stands. There is a necessary connection between law and morality if law and morality are necessarily alike in any way. And of course they are”. John Gardner, ʻLegal Positivism: 5½ Myths’, The American Journal of Jurisprudence, 46, 1 (2001), 199–227, at 223. Raz agrees with Gardner at this point and asserts that “there can be no doubt that there are necessary connec8

272

Jing Zhao

II. Radbruch’s own Criticism of Natural Law Theory In Legal Philosophy (1932), Radbruch summarizes four essential characteristics or theses of natural law: (i) Natural law provides legal value judgments that are definite in content. (ii) These value judgments, according to their source – nature, revelation, or reason – are of universal validity and are unchangeable. (iii) These value judgments are accessible to cognition. (iv) Once known, these value judgments prevail over conflicting positive law: natural law is superior to positive law.12 Radbruch’s main arguments against natural law are based on two epistemological principles: relativism and methodological dualism. The first three of the above theses describe “what is natural law”, and they are rejected by Radbruch based on the principle of relativism. However, these three theses seem to be excessively strong and do not conform to recent natural law theories or theories of non-positivism. It is not necessary for moral standards to be absolute and unchangeable, they can also be parochially valid and at the same time correct. For example, although Joseph Raz agrees with Hans Kelsen’s position of legal positivism, he does not consider that Kelsen’s defense of the separation tions between law and morality” and “the question of a necessary connection is a bad litmus test”. In his paper, Raz has even given three examples of necessary connections between law and morality. For him, the most important element of a legal system is not the separability thesis but the source thesis which claims that all law is fully determined by its social sources. Moreover, according to Raz, law necessarily claims to have the legitimate authority which belongs to the nature of law, and this claim is a moral claim. See Raz, ʻAbout Morality and the Nature of Law’, American Journal of Jurisprudence, 2003, Vol. 48: Iss. 1, 1–15, at 2–3; Raz, ʻThe Argument from Justice, or How Not to Reply to legal Positivism’, in Law, Rights and Discourse: The legal philosophy of Robert Alexy, ed. George Pavlakos (Hart Publishing, 2007), 17–36, at 19–21; Raz, The Authority of Law: Essays on Law and Morality, 1. publ., 2. ed. (Oxford: Oxford UP, 2009), 28–33. Furthermore, Leslie Green maintains that Hart’s separability thesis is actually only a “fallibility thesis”. In connection with him, Stephen R. Perry and James Morauta argue that the separability thesis is a methodological affirmation, but not a substantive one. See Leslie Green, ʻPositivism and the Inseparability of Law and Morals’, New York University Law Review, 2008, Volume 83, Number 4, 1035–58, at 1056; Stephen R. Perry, ʻThe Varieties of Legal Positivism’, Canadian Journal of Law and Jurisprudence, 1996, Vol. 9: Iss. 2, 361–81, at 361; Perry, ʻBeyond the Distinction between Positivism and Non-Positivism’, Ratio Juris, 22, 3 (2009), 311–25, at 311–5; James Morauta, ʻThree Separation Theses’, Law and Philosophy, 2003, 23 (2), 111–35, at 111; Robert Alexy, ʻAn Answer to Joseph Raz’, in Law, Rights and Discourse: The legal philosophy of Robert Alexy (n. 11), 37–55, at 42–5. For detailed analysis of this issue see also David Kuch, Die Autorität des Rechts. Zur Rechtsphilosophie von Joseph Raz (Tübingen: Mohr Siebeck, 2016), 253–4. 12 Gustav Radbruch, Legal Philosophy (1932), trans. Kurt Wilk in The Legal Philosophy of Lask, Radbruch, and Dabin, with an introduction by Edwin W. Patterson (Cambridge, Mass.: Harvard UP, 1950), 43–224, at 60 (with little modification from me). In Vorschule der Rechtsphilosophie (1948), Radbruch summarizes the common features of natural law as: a) Natural law is like nature, like God, like reason unchangeable and universally valid, common to all times and peoples; b) Natural law is clearly recognizable by reason; c) Natural law is not only a standard for measuring positive law, but rather appointed to replace the positive law, insofar as the latter stays in conflict with the former. Compared with 1932, there are almost no changes in 1948. See Radbruch, Vorschule der Rechtsphilosophie (1948), in Rechtsphilosophie III, Gustav Radbruch Gesamtausgabe (GRGA), vol. 3, ed. Arthur Kaufmann / Winfried Hassemer (Heidelberg: C. F. Müller, 1990), 121–228, at 138.

On the Relation between Law and Morality

273

thesis based on a cognitivist interpretation of moral standards is convincing. The reason for this is that an advocate of natural law claiming a necessary connection between law and morality does not have to argue that there are common values to all relativistic moralities and that these values must be respected by all legal systems.13 Therefore, the connection thesis cannot be excluded merely through successful proof that theses (i), (ii) and (iii) are false. Now let us turn to thesis (iv). Radbruch opposes this thesis on the basis of the principle of methodological dualism. This concerns the relation between natural law and positive law, “ought”-law and “is”-law. He claims that although natural law can evaluate positive law, it is not conclusive that the conflict between them necessarily results in a replacement of positive law by natural law. However, it is more interesting for us if natural law is understood in a broader sense, i. e. in the sense of critical morality. In this way, all of the terms “justice”, “value”, “moral” and “morality” in Radbruch’s legal philosophy can be classified as “natural law”. The issue is then, under this condition, would Radbruch still be against “natural law”? If he still asserts that even if positive law is in conflict with moral standards (i. e. natural law in the broader sense), it should not be replaced under any circumstance, then we can conclude that Radbruch rejects the connection thesis; he therefore must be considered as a positivist. However, if Radbruch asserts that an immoral positive law may lose its nature in some circumstances, he must belong to the non-positivism or natural law camp. As we know, there is already a common opinion that through the large number of his post-war papers, Radbruch must undoubtedly be presented as a non-positivist or natural lawyer / legal moralist. The crucial point is then a positivistic or non-positivistic positioning of his earlier legal philosophical thought: has Radbruch at all claimed that there is a necessary relationship between positive law and this range of moral terms? In the following text, firstly, I will prove that through maintaining a separation of morality and nature of law on the one hand, and a separation of morality and validity of law on the other hand, the early Radbruch stands by the positivistic thesis. Secondly, I will examine the most important arguments, which claim that in his pre-war writings Radbruch had already endorsed the connection thesis and must be regarded as a member of the non-positivist camp. I will prove that these arguments are insufficient and in their crucial points not convincing. Thirdly, I will be arguing that in his post-war writings, Radbruch establishes a necessary connection between law and morality or justice, which means that his position has changed from a positivistic to a non-positivistic one. In this process, Radbruch slowly freed himself from the neo-Kantian14 domination by transforming the conception of value or justice from an epistemological to a norma13 See Raz, ‘The Purity of the Pure Theory’ (n. 10), at 84. 14 There are some authors who claim that the influence of neo-Kantianism on Radbruch’s legal philosophy only can be characterized as “inspired”, so that his legal philosophy takes its own shape entirely. For example see R. Dreier, ‘Kontinuitäten und Diskontinuitäten in der Rechtsphilosophie Radbruchs’, in Die Natur des Rechts bei Gustav Radbruch (n. 2), 183–228, at 184–90, 225. I am of the opinion that such interpretation is problematic. In my PhD paper (“Neukantianische Begründung des Rechts – Eine Untersuchung der Rechtsphilosophie Gustav Radbruchs unter dem Einfluss von Emil Lask”), I will focus

274

Jing Zhao

tive-practical one. Correspondingly, legal philosophy also shifts from the function of theoretical reason to the function of practical reason. Part One: Early Radbruch as a Legal Positivist All legal positivists claim a separation thesis: “the existence of law is one thing; its merit or demerit is another”,15 or in Raz’s words, “determining what the law is does not necessarily, or conceptually, depend on moral or other evaluative considerations about what the law ought to be in the relevant circumstances”.16 Besides the separation thesis, there is also another fundamental thesis, namely the social fact thesis,17 which states that “what is law” is a matter of social fact, and the identification of this does not necessarily incorporate moral arguments. Insofar as the social fact thesis clearly separates the description of the law as a social institution from its evaluation,18 it can also be treated as a type of separation thesis. Consequently, all legal positivists maintain that the nature or concept19 of law on the one hand and the validity of law on the other hand have no necessary connection with morality. Moral standards are not in any case a necessary part of the conditions for legal character and legal validity. In the following, I propose to precisely investigate the arguments according to which Radbruch refutes natural law theory or non-positivism. Based on the analysis of Introduction, II of the paper, we already know that theses (i), (ii) and (iii) that are claimed in natural law theory (in the context of Radbruch’s legal theory) comply with the positivism tradition; the crucial point is then thesis (iv). With reference to this thesis, Radbruch bases his central argument on the fundamental methodological principle of neo-Kantianism, namely methodological dualism. All neo-Kantian legal phi-

15 16 17

18 19

on the relationship between Radbruch’s legal philosophy and neo-Kantianism especially Emil Lask’s legal philosophy and then I will systematically research this point. H. L. A. Hart, ʻPositivism and the Separation of Law and Morals’, Harvard Law Review, 1958, Vol. 71, 593– 629, at 596; see also Gardner, ‘Legal Positivism: 5½ Myths’ (n. 11), at 200. Raz, The Authority of Law (n. 11), at 22. According to Raz, the social fact thesis or the social thesis “is a thesis about some general properties of any acceptable test for the existence and identity of legal systems”. Within the social thesis there are the “weak social thesis” and “strong social thesis or source thesis”. See ibid., at 39–40; For the difference between these two see also ibid., at 45–8. Ibid., at 40–2. There are also some authors who distinguish between the concept and nature of law. For example, according to Raz, the concept of law is said to be parochial, whereas the nature of law is universal: “While the concept of law is parochial, that is, not all societies have it, our inquiry is universal in that it explores the nature of law wherever it is to be found.” See Raz, ʻCan There be a Theory of Law?’, in The Blackwell Guide to the Philosophy of Law and Legal Theory, ed. M.P. Golding and W. A. Edmundson (Oxford: Blackwell, 2004), 324–42; see also Alexy, ʻOn the Concept and the Nature of Law’, Ratio Juris, 21, 3 (2008), 281–99, at 290–2. In this paper, when I use the term “concept”, I mean the “adequate concept” of law, i. e. the universal and necessary property of law or shortly, the nature of law (= the concept of law qua quid sit ius). Moreover, I shall distinguish between two models of the concept of law within Radbruch’s framework of legal philosophy, namely between “the concept of law qua quid iuris” and “the concept of law qua quid sit ius”. I am of the opinion that we can only draw a parallel between the latter and the contemporary discussion on positivism and non-positivism. For detailed analysis of this point see Part One, I and Part Two, I.

On the Relation between Law and Morality

275

losophers draw a strict line between the empirical dimension of law (“what is law”) and evaluative dimension of law (“what ought to be law”).20 On the basis of this methodological principle of “is/ought-dualism”, an “ought”-statement cannot be logically derived from an “is”-statement, and vice versa.21 Any form of reification of (legal) value to (legal) reality is not allowed. An “ought”-law (i. e. legal value or justice), cannot be blended with an “is”-law (i. e. legal reality). According to Radbruch, there are different types of values. Legal value expresses itself through the specific idea of justice; there are also ethical, logical and aesthetic values that function as the purposes of law.22 With regard to the relationship between positive law as legal reality and this range of values, Radbruch directs his critique to natural law theory or the doctrine of “right law”.23 Due to an ignorance of this two-dimensionality (Zweidimensionalität) of the legal world, natural lawyers identify material and formal natural law, rightness and validity of law. They contend that legal values can penetrate positive law, with the consequence that positive law is replaced by right law, legal reality by legal value, and legal science by legal philosophy.24 Using the same formula, natural law theory attempts to answer the following three questions: “what is the character or nature of law?”, “what is the purpose of law?” and “what is the validity of law?” In this respect, if a positive law is inappropriate or immoral, its legal validity and legal nature will also be denied.25 In opposition to natural law theory, Radbruch strictly distinguishes between these three question areas and protects the independent existence of positive law. I. Separation of Morality and Nature of Law The question considered in this section is whether, according to Radbruch’s earlier views, a norm or precept must be comply with morality in order to be a law. The question of “what is law” can be expressed as “quid sit ius” which is related to the nature or concept of law as such (in this paper as “concept of law qua quid sit ius”, see n. 19). It stands in opposition to “quid sit iuris” which only deals with the content of certain concrete legal orders and their rules, meaning the law only in particular places and at particular times. This concept pair is similar to Raz’s distinction between the “nature” and “concept” of law (see n. 19); the former always logically precedes the latter.26 The Radbruch, Legal Philosophy (n. 12), at 53. Ibid. Ibid., at 90–7. Ibid., at 116 Ibid., at 116, 61 (with a little modification from me). See also Radbruch, Grundzüge der Rechtsphilosophie (1914), in Rechtsphilosophie II, Gustav Radbruch Gesamtausgabe (GRGA), vol. 2, ed. Arthur Kaufmann (Heidelberg: C. F. Müller, 1993), 9–204, at 23–4, 36, 51; Radbruch, Einführung in die Rechtswissenschaft (first published 1910), in Rechtsphilosophie I, Gustav Radbruch Gesamtausgabe (GRGA), vol. 1, ed. Arthur Kaufmann (Heidelberg: C. F. Müller, 1987), 91–209, at 109. 25 Radbruch, Grundzüge der Rechtsphilosophie (n. 24), at 46. 26 See Neumann, ʻTheorie der juristischen Argumentation,’, in Rechtsphilosophie im 21. Jahrhundert, ed. Winfried Brugger (Frankfurt am Main: Suhrkamp, 2008), 233–60, at 233.

20 21 22 23 24

276

Jing Zhao

task which requires one to draw a borderline between legal norms and the rules of other normative orders such as morals, customs and religion, also belongs to the question of ius.27 The answer to this question leads to the distinction between different positions in legal philosophy, especially that of the validity of norms. Following the tradition of neo-Kantianism, Radbruch claims a non-derivability of legal norm from legal value, legal statements from value statements. This principle of methodological dualism specifies two independent dimensions: the reality dimension of “what is law” or the identification of law on the one hand and the value dimension of “what ought to be law” or the ideal dimension of law on the other. Any blending of these two would be regarded as a return to the error of natural law. Apparently, this position of Radbruch is the same as the positivists, who “insist that the ideal remains essentially external to what the law is”, and conforms in no way to the non-positivistic thesis which maintains that “the factual dimension is internally connected with the ideal dimension”.28 In Legal Philosophy, Radbruch clearly expresses the concept of law qua quid sit ius as “the complex of general precepts for human beings’ living together”.29 This is entirely a positivistic concept of law, in which Radbruch imposes no moral qualifications as necessary conditions for a rule or a norm to count as being a legal one. In a recent paper, Alexy maintains that this concept of law does not capture the essence of law.30 However, I am of the opinion that in this definition Radbruch precisely demonstrates the necessary properties of law, and answers the question of what the nature of law is: Law is a complex of precepts or norms which has a “positive and at the same time normative, social and general nature”.31 These four features refer only to 27 Ibid. 28 The formulation of the positivistic and non-positivistic thesis here is quoted from: Alexy, ‘An Answer to Joseph Raz’ (n. 11), at 37. 29 Radbruch, Legal Philosophy (n. 12), at 76. During his time, Radbruch changed the formulation of the concept or nature of law to a certain degree but retained its core meaning: a) In 1914: Law is defined as “community rules” (Gemeinschaftsregelung), as some kind of “Is”-creation (Seinsgebilde). See Radbruch, Grundzüge der Rechtsphilosophie (n. 24), at 58; b) In 1932: Law is “the complex of general precepts for human beings’ living together” (“Inbegriff der generellen Anordnungen für das menschliche Zusammenleben”). See Radbruch, Legal Philosophy (n. 12), at 76; c) In 1948: Law is “the complex of general, positive norms for the social life” (“der Inbegriff genereller, positiver Normen für das soziale Leben”). See Radbruch, Vorschule der Rechtsphilosophie (n. 12), at 151. 30 Alexy, ‘Gustav Radbruch’s Concept of Law’, at 6. This paper is published in Portuguese under the title “O conceito de direito de Gustav Radbruch”, in Direito positivo e direito discursivo. Subsunção e ponderação no direito constitucional e ordinário, ed. Luís Afonso Heck (Porto: Alegre 2017), 25–40. What I quote here is an online version in English. (last viewed on April 10, 2018) The meaning of “the nature of law” see Alexy, ʻThe Nature of Legal Philosophy’, Ratio Juris, 17, 2 (2004), 156–67, at 163; Alexy, ‘On the Concept and the Nature of Law’ (n. 19), at 290; Leiter, ʻThe Demarcation Problem in Jurisprudence: A New Case for Scepticism’, Oxford Journal of Legal Studies, 31, 4 (2011), 663–77, at 663–5. 31 Radbruch, Legal Philosophy (n. 12), at 76; see also Radbruch, Vorschule der Rechtsphilosophie (n. 12), at 151. Borowski emphasizes the formal feature of this model of the concept of law (the concept of law qua quid sit ius), that only positive, general and social norms have legal character. He is also of the opinion that in this model, the positivistic “validity criterion” and the social effectiveness are for Radbruch already criteria of the character of law. See Borowski, ‘Die Vernichtung von Recht durch Moral’ (n. 8), at 73; see also Borowski, ‘Begriff und Geltung des Rechts bei Gustav Radbruch. Gegen die These seiner naturrechtlichen Bekehrung’ (n. 2), at 242–4, 249.

On the Relation between Law and Morality

277

facts, and declare what the essence of law is without any necessary recourse to morals or merits. Among these features, I believe that both positivists and non-positivists agree that the positive and social features are undoubtedly spoken of within the factual dimension of law, which does not require any conformity to the ideal dimension. The uncertainty may be related to the other two features: normativity and generality. There may be some who claim that these two already imply a necessary connection between law and morality. In the following, I will prove that this doubt cannot be justified. With reference to the normative character of law, Radbruch specifically states that the normative form of law is only regarded “as standard, as imperative in a purely factual cast alone”; the precepts as psychological facts “belong to reality themselves; but at the same time they rise above the other realities by applying standards and raising demands”.32 According to this statement, it is clear that the normativity of law refers not to an evaluation or ideal, but to a factual dimension. Radbruch merely wishes to emphasize that because of its normative character, law as a particular type of reality is different from other types of realities, i. e. law is a type of normative reality that guides our behavior and tells us what we are legally obligated to do. This conforms with the views of all legal positivists. In Part Two, I, I will specifically examine Radbruch’s theory of the “value-relatedness of law” and claim that this relatedness of law to justice cannot be treated as a necessary element of the nature of law itself. Another dubious point may lie in the general character of law. Now let’s examine whether the claim of “generality” of law is compatible with the positivism thesis.33 A similar statement is to be found in the Fuller’s non-positivistic theory of the “internal morality of law”. According to him, there are eight formal and necessary principles of legality and the first principle among them is generality: “rules should be general or generalizable”.34 However, there are also prominent positivists such as John Austin and H. L. A. Hart who also claim the generality of law. In The Province of Jurisprudence Determined, Austin defines law as “command”: “A law is a command which obliges a person or persons, and obliges generally to acts or forbearances of a class” or a “course of conduct”.35 According to him, most laws are general in a twofold manner: “as enjoining or forbidding generally acts of kinds or sorts; and as binding the whole community, or, at least, whole classes of its members.”36 For Hart, the generality of law is a principle of legality; it is a procedural requirement of law, or in another of Hart’s terms – “the germ of

32 Radbruch, Legal Philosophy (n. 12), at note 2 pertaining to p. 113; see also p. 76. 33 For more discussion on Radbruch’s general character of law and the formal justice see Borowski, ‘Begriff und Geltung des Rechts bei Gustav Radbruch – Gegen die These seiner naturrechtlichen Bekehrung’ (n. 2), at 244, 249–55; R. Dreier, ‘Kontinuitäten und Diskontinuitäten in der Rechtsphilosophie Radbruchs’ (n. 14), at 208–11; Andreas Funke, ʻRadbruchs Rechtsbegriffe, ihr neukantianischer Hintergrund und ihr staatsrechtlicher Kontext’, in Die Natur des Rechts bei Gustav Radbruch (n. 2), 23–52, at 27–8, 33–4. 34 Lon L. Fuller, The Morality of Law (New Haven: Yale Univ. Press, 1969), 39. 35 John Austin, The Province of Jurisprudence Determined (first publ. 1832, London), 17. 36 Ibid.

278

Jing Zhao

justice”.37 In this way, Hart endorses the formal principle of justice or fairness in the legal system. The core meaning of this principle according to Hart is the same as Radbruch: laws should “treat like cases alike and different cases differently”.38 Therefore, laws as “general rules” are spoken of “both in the sense that they refer to courses of action, not single actions, and to multiplicities of men, not single individuals” and must be specified in legal rules.39 Regarding the deduction of law from the idea of justice in Radbruch’s legal theory, I agree with Andreas Funke who persuasively points out that for the early Radbruch, law is only defined on the basis of social facts40 and formal justice vanishes into the generality of law,41 which has no ethical content and therefore implicates no necessary overlap between legal character and moral correctness. This claim of generalizing the law refers only to an institutional-procedural correctness, which complies with every positivistic concept of law. Björn Schumacher also describes this concept of law in Radbruch’s legal philosophical system as “ultimately only a new version of the ‘sharp-edged’ positivistic concept of law”.42 Moral arguments are irrelevant for identifying a norm as a legal one, i. e. whether this norm belongs to legal orders. One might furthermore argue that through the claim of generality, a moral standard, namely the prohibition of special court,43 has been necessarily incorporated into the character of law, and this appears to be an endorsement of a non-positivist Radbruch. 37 Hart, ʻProblems of Philosophy of Law’, in The Encyclopedia of Philosophy, ed. Paul Edwards (New York: Macmillan, 1967), at 273–4; In The Concept of Law, Hart himself notes that “[t]hough that most odious laws may be justly applied, we have, in the bare notion of applying a general rule of law, the germ at least of justice”. See Hart, The Concept of Law (Oxford: Oxford UP, 1961), 206; cf. 160. Besides the “germ of justice”, Hart also develops the other thesis of “minimum content of natural law” (Hart, The Concept of Law, 193–200). Both of them are two “reasons (or excuses) for talking of a certain overlap between legal and moral standards as necessary and natural”. (Hart, ‘Positivism and the Separation of Law and Morals’ (n. 15), at 624). Gardner points out that “for Hart this built-in dash of moral merit in every law clearly forges a necessary connection between law and morality”. See Gardner, ‘Legal Positivism: 5½ Myths’ (n. 11), at 223. However, Green points out that Hart “stops just short of concluding that these prove there to be a necessary ‘overlap’ of law and morals”. For further discussion of this problem see Green, ‘Positivism and the Inseparability of Law and Morals’ (n. 11), 1035–58, especially at 1047–8; see also Green, ‘The Germ of Justice’, available at: (last viewed on April 10, 2018); Henrique Gonçalves Neves, ‘The Minimal Content of Natural Law. In what sense is it really natural?’ (in this book). For further discussion on the generality of law see also Alexy, ‘An Answer to Joseph Raz’ (n. 11), at 44; Jeremy Waldron, ʻPositivism and Legality: Hart’s Equivocal Response to Fuller’, New York University Law Review, 2008, Vol. 83, Number 4, 1135–69. 38 Hart, The Concept of Law (n. 37), at 159. 39 Hart, ‘Positivism and the Separation of Law and Morals’ (n. 15), at 623–4. 40 Funke, ‘Radbruchs Rechtsbegriff, ihr neukantianischer Hintergrund und ihr staatsrechtlicher Kontext’(n. 33), at 45. 41 Funke, ʻÜberlegung zu Gustav Radbruchs “Verleugnungsformel”. Ein Beitrag zur Lehre vom Rechtsbegriff ’, Archiv für Rechts- und Sozialphilosophie, 2003, 89, 1–16, at 14. 42 Björn Schumacher, Rezeption und Kritik der Radbruchsehen Formel (Göttingen 1985), 19. 43 Radbruch considers here the measures according to Article 48 para. 2 of Weimar Constitution: “If public security and order are seriously disturbed or endangered within the German Reich, the President of the Reich may take measures necessary for their restoration, intervening if need be with the assistance of the armed forces. For this purpose he may suspend for a while, in whole or in part, the fundamental rights provided in Articles 114, 115, 117, 118, 123, 124 and 153.” R. Dreier and Paulson also use this statement as their argument for a non-positivistic interpretation of Radbruch’s legal philosophy. See R. Dreier, ‘Kon-

On the Relation between Law and Morality

279

However, according to Radbruch, the absence of the element of generality does not necessarily result in an invalid law and in this sense, he claims the existence of a “valid shameful law” or “valid non-law”.44 For contemporary legal positivists however, if a norm is legally invalid, it cannot be called a law. In this respect, they also place their focus on the separation of legal validity and morality (instead of the separation of nature of law and morality). Brian Leiter points out that “legal positivists such as Kelsen, Hart, and Raz claim that the legal validity of a norm cannot depend on its being morally valid, either in all or at least some possible legal systems”.45 With the “source thesis”,46 Raz actually wishes to state that moral standards are in no cases part of the conditions for legal validity,47 and a “conformity to moral values or ideals is in no way a condition for anything being a law or legally binding”.48 Kelsen also writes at the beginning of his Pure Theory of Law that the validity of law is an expression simply of the specific existence of the legal norm.49 The proof that a norm is legally valid means that it is simultaneously a law. In this understanding, it is no wonder that John Gardner comes to the conclusion that “legal positivism is a thesis only about the conditions of legal validity”.50 Similarly, Scott Shapiro also claims that the central thesis of both versions of legal positivism (inclusive and exclusive legal positivism) is that the conformity of the law with morals is not a necessary condition of legal validity.51 Based on this conviction, in the following section I will concentrate on the separation of morality and the validity of law within the scope of Radbruch’s earlier legal theory.

44 45 46

47 48 49 50 51

tinuitäten und Diskontinuitäten in der Rechtsphilosophie Radbruchs’(n. 14), at 209–10; Paulson, ‘Zum 50. Todestag von Gustav Radbruch’ (n. 5), at 466. Radbruch, Legal Philosophy (n. 12), at 119–20; Radbruch, ʻDie Problematik der Rechtsidee’ (first publ. 1924), in GRGA, vol. 2 (n. 24), 460–6, at 462. Leiter, ‘The Demarcation Problem in Jurisprudence: A New Case for Skepticism’ (n. 30), at 664. The source thesis maintains that “all law is source based. A law is source-based if its existence and content can be identified by reference to social facts alone, without resort to any evaluative argument”. See Raz, Ethics in the public domain: Essays in the morality of law and politics (Oxford: Clarendon Press, 1995), 21; likewise Raz, The Authority of Law (n. 11), at 39, 47; Raz, Between Authority and Interpretation: On the Theory of Law and Practical Reason (Oxford: Oxford UP, 2009), 386. Raz, The Authority of Law (n. 11), at 49–50. Ibid., at 38. Hart also states that “a concept of law which allows the invalidity of law to be distinguished from its immorality, enables us to see the complexity and variety of these separate issues”. See Hart, The Concept of Law (n. 37), at 211. Hans Kelsen, Reine Rechtslehre, 2nd edn. (Vienna: Franz Deuticke, 1960), 9–15. Gardner, ‘Legal Positivism: 5½ Myths’ (n. 11), at 224. On page 200, Gardner also writes: “We see here how the contrast between ‘sources’ and ‘merits’ in (LP) is meant to be read. ‘Source’ is to be read broadly such that any intelligible argument for the validity of a norm counts as source-based if it is not merits-based.” See Scott Shapiro, ʻWas Inclusive Legal Positivism Founded on a Mistake?’, Ratio Juris, 2009, Vol. 22 No.3, 326–38, at note 1 pertaining to p. 326.

280

Jing Zhao

II. Separation of Morality and Validity of Law After clarifying the positivistic nature or concept of law (“what is law?”) in Radbruch’s earlier legal theory in the previous section, we now pose the other crucial question: “why is law valid?” Are moral standards necessary for identifying what a valid law is? Referring to this question, all positivists reject that moral standards are the reason for legal validity. They separate legal reasons from moral reasons and claim that only the former count when considering the question of the validity of law. They claim that “why is law valid?” must be distinguished from “why should we obey the law?”; the latter question can only be answered by tracing back to moral reasons. In opposition to this separation, all non-positivists defend that “there is a necessary connection between legal validity or legal correctness on the one hand, and moral merits and demerits or moral correctness and incorrectness on the other”.52 They claim that moral correctness is necessary for a norm to become a valid law. 1. Legal Certainty and Validity of Law According to Radbruch, the idea of legal certainty demands positivity, and positive law claims to be valid without regard to the other two ideas, namely justice and purposiveness.53 In this sense, legal validity belongs to the positivistic character of law and its reason is to be found in legal certainty. Although the content of law may prove to be unjust, its very existence always fulfills one purpose, i. e. legal certainty.54 For Radbruch, all theories, which reconcile the validity, the concept/form and the correctness of law through deriving the legal validity from formal justice or substantial especially moral values, are a relapse into the “error” of natural law theory and will damage the reality character of law.55 Even though besides the idea of justice and the idea of purposiveness56, Radbruch also uses the term “idea” to describe legal certainty, this very idea must be attributed to

52 53 54 55

Alexy, ‘On the Concept and the Nature of Law’ (n. 19), at 285. Radbruch, Legal Philosophy (n. 12), at 109. Ibid., at 119. According to Radbruch, natural law theory is an “error” (“Irrtum”), a “thinkable, most fruitful error”. He labels his relativistic doctrine as an “opposition to the natural law doctrine”. See ibid., at 111, 116; In Legal Philosophy, on page 85, Radbruch also explicitly rejects such notions which claim that “the founding of legal validity on morals renders hat validity dependent on the rightness of the law, in the sense of natural law”. See also Radbruch., Grundzüge der Rechtsphilosophie (n. 24), at 23–4; Radbruch, Einführung in die Rechtswissenschaft (n. 24), at 109; Radbruch, ‘Der Relativismus in der Rechtsphilosophie’ (first publ.1934), in GRGA, vol. 3 (n. 12), 17–22, at 17. 56 In Wilk’s English version of Legal Philosophy, “Zweckmäßigkeit” is translated into “expediency”, and “Zweck” into “purpose”, whereas Paulson consistently uses “purposiveness” and “purpose” in his papers. See Paulson, ‘Radbruch on Unjust Laws’ (n. 5); Paulson, ‘Lon L. Fuller, Gustav Radbruch, and the “Positivist” Theses’ (n. 5); Paulson, ‘On the Background and Significance of Gustav Radbruch’s Post-War Papers’ (n. 5). In my paper, I choose Paulson’s translation.

On the Relation between Law and Morality

281

legal positivism, just as Ulfrid Neumann rightly points out.57 Radbruch also writes the following words about the character of this idea of legal certainty: “The certainty of the law requires law to be positive: if what is just cannot be settled, then what ought to be right must be laid down”;58 legal certainty “requires the validity of legal rules laid down by power and factually carried through”.59 The positivity is a fact; legal certainty is a type of power which determines the content of law authoritatively; together with the principle of the rule of law (Rechtsstaat), it demands “commitment to the statute”.60 If we talk about positive law, this already presupposes a power that lays it down. In his pre-war works, Radbruch clearly distinguishes the concept of law qua quid iuris (see Part Two, I) and formal justice from the validity of law. This is expressed through his earlier model of “valid non-law” (“geltendes Nicht-Recht”).61 Through this model, the transcendental-logical impossibility of a law influences only the form of law but not its validity, so that a conceptual “non-law” can still be a valid law. In the theories of the other prominent legal positivists, there is no terminology similar to Radbruch’s formal justice, which is the ideal condition of the cognition of law, but not the condition of its nature or concept. For example, both the “authority of law” of Raz and the “rule of recognition” of Hart are not concepts a priori in the epistemological sense. For them, a “non-law” already implicates the voidness of law. Legal validity is immanent in the nature and character of law; the validity and concept of law always overlap. If law is not valid, it can no longer be called a law. If we concentrate on Radbruch’s concept of law qua quid sit ius, we know that Radbruch would also claim that if a norm satisfies the four features – positive, normative, social and general (see Part One, I) – it can be called a legal norm within a legal system; the value-relatedness of law is not necessarily built into the conditions for the existence of law (see also Part Two, I). This is consistent with his theory of legal validity, and both of these are characterized as positivistic. In parallel with the model of “valid non-law”, Radbruch also claims a “valid incorrect law”: “In the interest of legal certainty, legal power also grants the substantially incorrect judgment applies to this individual case, and the ‘cult of prejudice’ even beyond this individual case”.62 Through the latter, he distinguishes not only between legal validity and justice, but also between legal validity and morality. For him, the overlap between moral cor-

57 Neumann, ʻNaturrecht und Positivismus im Denken Gustav Radbruchs. Kontinuitäten und Diskontinuitäten’, in “Vom Rechte, das mit uns geboren ist”. Aktuelle Probleme des Naturrechts, ed. Wilfried Härle and Bernhard Vogel (Freiburg: Herder, 2007), 11–32, at 15; see also Part One, II of the paper. 58 Radbruch, Legal Philosophy (n. 12), at 108. 59 Ibid., at 109. 60 Radbruch, ʻGesetz und Recht’ (first publ. 1947), in GRGA, vol. 3 (n. 12), 96–100, at 99. Here I quote the translation from Paulson, ‘Radbruch on Unjust Laws’ (n. 5), at 497. 61 Radbruch, ‘Die Problematik der Rechtsidee’ (n. 44), at 462; see also Neumann, ʻRalf Dreiers Radbruch’ (2005), in Ulfrid Neumann, Recht als Struktur und Argumentation. Beiträge zur Theorie des Rechts und zur Wissenschaftstheorie der Rechtswissenschaft (Baden-Baden: Nomos, 2008), 203–23, at 214–5; Neumann, ‘Zum Verhältnis von Rechtsgeltung und Rechtsbegriff – Wandlungen in der Rechtsphilosophie Gustav Radbruchs’, in Die Natur des Rechts bei Gustav Radbruch (n. 2), at 144–6; Neumann, ‘Naturrecht und Positivismus im Denken Gustav Radbruchs’ (n. 57), at 20. 62 Radbruch, ‘Die Problematik der Rechtsidee’ (n. 44), at 465.

282

Jing Zhao

rectness and legal validity is the essential error of natural law theory. Referring to this point, Radbruch holds the same opinion as the recent legal positivists.63 2. Morality as the Reason to Obey or Disobey the Law In his most famous work The Concept of Law, Hart, a proponent of the separation thesis, clearly distinguishes between the question of “validity of law” and the question of “obligation to obey the law”. For him, obedience to the law is a moral question. In this sense, Hart opposes natural law theories which claim that “for a legal system to exist there must be a widely diffused, though not necessarily universal, recognition of a moral obligation to obey the law […]”.64 Raz, another prominent defender of the positivistic thesis, also claims that the normativity or validity of the law and the obligation to obey it are distinct notions.65 It is social facts that make the law a normative existence, whereas the law should be obeyed for moral reasons. In exactly the same sense, Raz criticizes another positivist, Kelsen, who maintains that “by ‘validity’, the binding force of the law – the idea that it ought to be obeyed by the people whose behavior it regulates, is understood”.66 These words are the proof that Raz uses to make the statement that Kelsen “regards the law as valid, i. e. normative only if one ought to obey it”,67 and in this way, Kelsen analytically ties together “the normativity of law” and “the obligation to obey it”.68 According to Raz’s 63 See also Günter Ellscheid, Das Problem von Sein Und Sollen in der Philosophie Immanuel Kants (Köln: Carl Heymanns, 1968), 25. For further discussion on an “open legal positivism” in terms of the “power thesis” of Radbruch and its relation to the separability thesis see Paulson, ‘Lon L. Fuller, Gustav Radbruch, and the “Positivist” Theses’ (n. 5), at 334–8. 64 Hart, The Concept of Law (n. 37), at 156–7. 65 Raz, The Authority of Law (n. 11), at 137. Raz also writes on pages 68–9: “ultimate rules are likewise reasons for the action they require, but not so their source. […] The fact that a rule is an ultimate legal rule means no more than that there is no legal ground, no legal justification for its validity.” 66 Kelsen, What is Justice? Justice, Law and Politics in the Mirror of Science. Collected Essays by Hans Kelsen (Berkeley/Los Angeles: University of California, 1957), 257. 67 Raz, The Authority of Law (n. 11), at 137. 68 Raz, ʻKelsen’s Theory of the Basic Norm’, The American Journal of Jurisprudence, 1974, Vol. 19: Iss. 1, 94–111, at 105. On this issue, scholars have not yet actually reached an agreement. Some authors such as Meyer, in the same direction as Raz, argue that “the Pure Theory of Law should not be considered as obligation-free theory of law; legal validity means for Kelsen the binding force of norm command. The obligation should not be caused as moral duty, but by the basic norm, i. e. the basic norm causes a mere hypothetically binding law”. See Meyer, Juristische Geltung als Verbindlichkeit (n. 8), at 87–8; Detailed research into the solutions of the problem of the binding force of law through the basic norm assumed by Kelsen see Meyer, Juristische Geltung als Verbindlichkeit (n. 8), at 233–318; Jing Zhao, ‘The Justification Problem of Hans Kelsen’s Theory of Legal Validity’, in Truth and Objectivity in Law and Morals II, ARSP – Beiheft 151, ed. André Ferreira Leite de Paula et al. (Stuttgart: Franz Steiner, 2016), 131–45; Uta U. Bindreiter, ‘Presupposing the Basic Norm’, Ratio Juris, Vol. 14, No. 2, June 2001, 143–75. There are also authors who disagree with the statement that Kelsen views the validity of law and binding force of law as the same question. See Horst Dreier, ‘Die Radbruchsche Formel – Erkenntnis oder Bekenntnis?’, In Festschrift für Robert Walter zum 60. Geburtstag, ed. Heinz Mayer et al. (Wien: Manz, 1991), 117–35, at 129–30; Gerald Grünwald, Zur Kritik der Lehre vom überpositiven Recht (Bonn: P. Hanstein, 1971), 23; Neumann, ‘Das Problem der Rechtsgeltung’ (2007), in Recht als Struktur und Argumentation (n. 61), 224–42, at 231–3.

On the Relation between Law and Morality

283

interpretation, Kelsen’s concept of legal validity (i. e. validity qua bindingness) endangers the “purity” of his Pure Theory of Law.69 Turning to Radbruch’s earlier attitude to this issue, it is not difficult for us to see that Radbruch also clearly distinguishes between the validity of law and obedience to law. To explain how Radbruch answers this question, let us firstly turn to some of his own passages. In Legal Philosophy (§ 5), Radbruch traces back to Kant’s moral philosophy in clarifying the relationship between law and morality. Kant distinguishes between morality and legality in the sense that morals require one to do ones duty from duty (aus Pflicht), while every action is legal if it is in conformity with duty (pflichtmäßig);70 morals regard “the individual and his motives”, while law regards “living together, which covers only the external […] conduct of the individual and not his motives as such”,71 or briefly stated that law regards only the coexistence of external freedoms. In this respect, law can be satisfied by mere conduct according to regulations.72 Although Radbruch agrees with this distinction of Kant between legal and moral actions, he is in another sense against Kant. In contrast to Kant, who regards this distinction as being between “modes of obligation” (Verpflichtungsweise), for Radbruch legality has exactly the same meaning as morality with regard to this very point. He borrows from Kant the concept of duty, which means “the relation of a will subordinate to a norm”,73 and makes an uninterruptible connection between law and morality. With this understanding, Radbruch claims that “a duty of mere legality is a contradiction in itself ”; it is impossible if one does not concede that “the body may be obliged without simultaneous obligation of the will”.74 In consequence, the statement that morals and law are different is not because of their modes of obligation, but because of their substrata: personality as the substratum for morals and external conducts of human beings living together as the substratum for law. For Radbruch, legality is not a mode of obligation; without elevating legal duty to a moral duty or without reference to ethics, legal philosophy itself “cannot on its own strength establish the idea of legal duty”.75 In this way, the binding force of law can ultimately only be justified through linking back to morality, i. e. to the moral duty of individuals. The relationship between morality and the obligatory force of law can be expressed through Radbruch’s thesis: “In morals alone may the obligatory force of the law be grounded”.76 Moreover, moral evaluations behoove every individual; however, law is always a general concept, a complex of rules for social life. According to Radbruch, justice, as the only value of law itself, is equality, and equality of law demands generality of legal rule, whereas “purposiveness is bound to individual69 Detailed analysis see Zhao, ‘The Justification Problem of Hans Kelsen’s Theory of Legal Validity’ (n. 68), at 140–1. 70 Radbruch, Legal Philosophy (n. 12), at 81. 71 Ibid., at 82. 72 Ibid., at 81. 73 Ibid., at 82. 74 Ibid. 75 Ibid., at note 2 pertaining to p. 113. 76 Ibid., at 84. Furthermore, morals constitute the purpose of law through the idea of purposiveness.

284

Jing Zhao

ize as far as possible”. In this sense, justice and purposiveness become contradictory.77 Positive law is not supposed to supply individual citizens with the final reason for their obligation to obey the law. The key notion derived from these passages is that morality functions as the only source of the obligatory force of law, and the question of the obedience or disobedience of the law by citizens is stated in terms of a moral justification, but not a juristic one. “True legal duties exist only in jurisprudence, which is concerned with the content of meaning of the legal imperatives.”78 Radbruch never equates the reason for the obligatory force of law with the reason for the validity of law. For him, any blending of these two is the very same error of natural law which claims that a morally incorrect or inexpedient law must at the same time lose its validity. Radbruch in his earlier period is of the same opinion as most legal positivists: the obligation to obey the law is a moral attitude to law, and has no necessary relation with the juristic validity of law. For detailed response to the possible objection by referring to Radbruch’s philosophical doctrine of validity see Part Two, II. As a legal positivist, the early Radbruch chooses legal certainty to be the exclusive reason for the validity of law. He leaves the question of whether a law must be obeyed (which is based on the normative evaluation of the content of law) to be the task of moral philosophy. This question can only be answered by the practical reason of every citizen, so that it is beyond the legal realm. Part Two: Arguments for a Non-positivist Radbruch: Is there a “Reconciliation” of Value and Reality? In this section, I will examine four possible arguments which lead to a non-positivistic interpretation of Radbruch’s earlier legal theory: 1) the value-relatedness of law; 2) the philosophical doctrine of legal validity; 3) the argument from “super-inclusive non-positivism”; 4) Radbruch’s own criticism of legal positivism. I will then claim that these arguments cannot be considered to be persuasive arguments for a non-positivist Radbruch in terms of the connection thesis.

77 Ibid., at 109. See also: ‘Die Problematik der Rechtsidee,’ (n. 44) at 463. 78 Ibid., at 113.

On the Relation between Law and Morality

285

I. A Necessary Connection between Nature of Law and Justice79? In the previous section (Part One, I), we came to the conclusion that Radbruch should be classified as a legal positivist who separates the nature of law from morality. Now let us turn to a possible opposing opinion with reference to Radbruch’s theory of the value-relatedness of law, which is primarily demonstrated in his theory of the concept of law (§ 4, Legal Philosophy): “Law is the reality whose very meaning is to serve the value of law, the idea of law”.80 In “Radbruch’s basic formula”,81 the essential point is how one should understand the relation between law as reality and value as idea of law. There are plenty of authors who argue that, with this formula, Radbruch establishes a necessary connection between law and morality and must be assigned to the non-positivist camp. According to Alexy, “with the concept of the idea of law, Radbruch juxtaposes this real dimension with an ideal dimension”, so that the early Radbruch is “necessarily a non-positivist”.82 For Borowski, this concept formula of law of 1932 is already a material 79 In this paper I will not specifically distinguish between justice and morality when referring to the debate between positivism and non-positivism, because both terms are considered as evaluation of positive law and can therefore be ascribed to the category of “morality”. Hart is for example of the opinion that justice belongs to morality: “Justice constitutes one segment of morality, primarily concerned not with individual conduct but with the ways in which classes of individuals are treated”. See Hart, The Concept of Law (37), at 166. Kelsen is also of the same opinion that insofar as justice is a request of the morals, the relationship between justice and law is included in the relationship between morals and law. See Kelsen, Reine Rechtslehre (n. 49), at 60. If we go beyond the scope of the contemporary discission on this issue and concentrate on Radbruch’s own theory and terminologies, we can see that he already from the beginning strictly distinguishes between justice and morality, the value of law and moral values. Even for the later Radbruch, law has conceptually only to do with justice. According to him, law directly serves justice and lastly serves morality. Although we cannot claim that Radbruch’s legal theory in his post-war works is a “reappearance of (classical) natural law”, no one can deny the fact that with the enhancing of individual values via recognition of human and civil rights as opposed to the whole of the nation and cultural values, the breadth of the epistemological connection between law and justice is enlarged to the practical-normative connection between law and morality. The crucial point lies in Radbruch’s definition of human rights, the essence and core of which consist in the guarantee of external freedom (see Radbruch, Vorschule der Rechtsphilosophie (n. 12), at 148; see also Radbruch, Grundzüge der Rechtsphilosophie (n. 24), at 59); such rights have an absolute nature. Human rights cannot directly serve the fulfillment of ethical duties, because the latter is necessarily an action of internal freedom which cannot be fulfilled through coercion. However, they are able to make the fulfillment of ethical duties possible. In this sense, law can be treated as the enabling of morals; it may create – perhaps unconsciously – the external conditions for a possible fulfillment of morality, which achieves its final goal in another place, i. e. in internal freedom. 80 Radbruch, Legal Philosophy (n. 12), at 73; see also p. 52. Insofar that the idea of law is nothing else than justice, the concept of law can also be formulated as: “Law is the reality whose very meaning is to serve justice”. Wilk translates the term “Sinn” to “sense”, whereas Paulson translates it to “meaning”. I prefer to follow Paulson’s translation. 81 Paulson characterizes this model of Radbruch’s concept of law as the “Radbruch’s basic formula” (Radbrusche Grundformel). See Paulson, ‘Review to: Rechtsphilosophische Tagesfrage’, Archiv für Rechts- und Sozialphilosophie, 90 (2004), 578–83, at 582; Paulson, ‘Radbruch on Unjust Laws’ (n. 5), at 497. 82 Alexy, ‘Gustav Radbruch’s Concept of Law’ (n. 30), at 3. In his earlier work The Argument from Injustice: A Reply to Legal Positivism (1992), Alexy was of the opinion that the early Radbruch is a legal positivist. There are some relevant passages: “The non-positivist presupposes an at least rudimentary no-relativistic ethics. It is no accident that Radbruch, before 1933, establishes his in effect positivistic view. By appealing to relativism, that is, by appealing to the thesis that a universally compelling justification of moral principles is impossible”; “Before the era of National Socialism in Germany, Radbruch was a legal positivist –

286

Jing Zhao

concept, and it goes straight into the disavowal formula in the sense of natural law after 1945.83 Similarly, Ralf Dreier claims that from beginning to end Radbruch’s concept of law contains legal ethical elements.84 With regard to the non-positivistic character of Radbruch’s concept of law, Paulson goes in the same direction as Borowski and R. Dreier, and maintains that with a determination of the nature of law as a striving for justice, Radbruch points out both a normative and a regulative function of the idea of law.85 As a loyal proponent of the unity thesis, Paulson furthermore argues that this concept formula of law is “the key, arguing that […] a unity of viewpoint is apparent when the earlier and later elucidations of the concept of law are compared”.86 To sum up, these authors regard Radbruch’s legal philosophy from 1932 to his writings after 1945 as a strong continual development in terms of a non-positivistic interpretation of this concept formula of law. In the following, I will prove that all of these arguments actually manifest a misunderstanding of Radbruch’s legal philosophy, for they fail to recognize that there is an unbridgeable gap between Radbruch’s concept of law in terms of the value-relatedness and the concept of law in terms of the division of positivism and non-positivism in contemporary legal theory. In my opinion, the key issue in correctly understanding this point is the separation of two concept models: a) the concept of law qua quid iuris & quid facti and b) the concept of law qua quid sit ius & quid sit iuris. I shall claim that the argument of the former model refers to the cognition or knowledge of law and cannot be regarded as an endorsement of the connection or separation thesis which actually deals with the latter model, i. e. the nature or concept of positive law itself (See Part One, I). The model of “the concept of law qua quid iuris & quid facti” which deals with the method of obtaining knowledge is traced back to Kant. In Critique of Pure Reason, Kant begins the chapter “Deduction of the Pure Concepts of the Understanding” with an

83 84

85

86

not in terms of justification, to be sure, but in terms of result, at any rate where the judge is concerned. After 1945, Radbruch changed his mind and defended the view that legal positivist ‘rendered both jurist and the people defenseless against arbitrary, cruel, criminal statutes, however extreme’”; “After 1945, Radbruch extracts a basic repertory of human and civil rights from relativistic skepticism”; “An inclusion of moral elements in the concept of law is now demanded in order to ‘arm jurists against the recurrence of a rogue state (Unrechtsstaat)’ like Nazi Germany”. See Alexy, The Argument from Injustice: A Reply to Legal Positivism (first publ. 1992), trans. Bonnie Litschewski Paulson and Stanley L. Paulson (Oxford: Clarendon Press, 2002), 53–4, 45. Borowski, ‘Begriff und Geltung des Rechts bei Gustav Radbruch’ (n. 2), at 265, 249, 237. R. Dreier, ‘Kontinuitäten und Diskontinuitäten in der Rechtsphilosophie Radbruchs’ (n. 14), at 198, 208– 11, 228. Actually, like Alexy, R. Dreier also underwent a change in his interpretation of Radbruch. In his earlier period, R. Dreier stood by the “transformation thesis” and claimed that Radbruch had “revised his position fundamentally”. See R. Dreier, Recht-Moral-Ideologie (n. 9), at 189. In his later works, R. Dreier represents a non-positivistic interpretation of the early Radbruch. Paulson, ʻEin “starker Intellektualismus”: Badener Neukantianismus und Rechtsphilosophie’, in Rechtswissenschaft als Kulturwissenschaft? ed. Marcel Senn and Dániel Puskás (Stuttgart: Franz Steiner, 2007), 83–103, at 84; see also Paulson, ‘Ein ewiger Mythos: Gustav Radbruch als Rechtspositivist – Teil I’ (n. 5), at 105–11. Paulson, ‘Radbruch on Unjust Laws’ (n. 5), at 496; see also Paulson, ‘Lon L. Fuller, Gustav Radbruch, and the “Positivist” Theses’ (n. 5), at 340; Paulson, ‘Review to: Rechtsphilosophische Tagesfrage’ (n. 81), at 582.

On the Relation between Law and Morality

287

intriguing allusion to the legal practice of his day: “Jurists, when they speak of entitlements and claims, distinguish in a legal matter between the questions about what is lawful (quid juris) and that which concerns the fact (quid facti), and since they demand proof of both, they call the first, that which is to establish the entitlement or the legal claim, the deduction”.87 The conclusion of deduction concerns only the form of the knowledge about the object but not the nature or content of the object itself.88 Radbruch’s legal philosophy is also developed on the basis of this Kantian theoretical philosophy. His conception of value-relatedness must also be understood within the framework of theoretical reason, i. e. it expresses an epistemological relationship between reality and value. Under this condition, I shall argue that through the value-relatedness, in difference to the mentioned authors, Radbruch only poses the question of “how is the knowledge of law at all possible” (the concept of law qua quid iuris), but not the question of “what is law” (the concept of law qua quid sit ius). In the same way as Raz’s assertion that “the word ‘law’ has non-legal uses”,89 I shall also argue that here, Radbruch’s concept of law also refers to a type of non-legal usage. The connection or separation between the knowledge of law and a supra-positivistic principle has no relevance to the question of whether one is a positivist or a non-positivist. The connection or separation thesis in contemporary legal philosophy refers to the concept and validity of the positive law itself, but not to its recognizability. With reference to this point, there is hardly a fundamental difference between the two neo-Kantians, Kelsen and Radbruch. Kelsen maintains that if we wish to understand the law as legal norms at all, a basic norm, which functions as the transcendental-logical condition of the knowledge of law, must be assumed. Turning to Radbruch, the justice-relatedness of law for him also proves ultimately to be a methodological instrument. Therefore, one should not ignore the distinction between justice in an epistemological sense and justice in a normative sense. An analogy between the idea of Radbruch’s “justice” (in his earlier period) and Kelsen’s own “justice” is not allowed. It would rather be the analogy between Radbruch’s justice and Kelsen’s basic norm. (For discussion on the possible material or normative relation between justice and law see Part One, I) In his pre-war works, Radbruch clearly distinguishes between the concept (or nature) and the content (or purpose) of law, and claims that a morally incorrect law will not lose its legal essence, because “justice determines […] the form of law”.90 The idea of justice for Radbruch is not the type of normative standard which is regarded by the 87 Immanuel Kant, Kritik der reinen Vernunft, A 84/B 116. Here, Kant distinguishes sharply between “subjective derivation” and “objective deduction”. In Critique of Practical Reason, Kant also writes: “The Critique has shown by [the] deduction, first that [the Categories] are not of empirical origin but have their seat and source a priori in the pure understanding, and second that, since they are referred to objects in general independently of intuition of these objects, they indeed bring about theoretical cognition only in application to empirical objects.” See Kant, Kritik der praktischen Vernunft, AA V, 141. 88 Radbruch also maintains that “only the form of law can be derived from justice, but not its content”. See Radbruch, ‘ Die Problematik der Rechtsidee’ (n. 44), at 462. 89 Raz, The Authority of Law (n. 11), at 41. Raz claims that “the word ‘law’ has non-legal uses: laws of nature, moral laws, laws of various institutions, the laws of thought, etc.” 90 Radbruch, Legal Philosophy (n. 12), at 91.

288

Jing Zhao

non-positivists as the necessary condition for identifying what the law is. In this sense, Radbruch accepts only a quasi-necessary connection between justice as a cognitive form of law and the reality of law, but not a necessary connection between justice or morality as normative correctness standards and the nature of law. Thus, using an epistemological argument to reject the separation thesis must be considered to be an attack on the wrong target. Neither an inclusive nor an exclusive legal positivist will say that “law” expressed in the separation thesis or source thesis merely means a method of gaining knowledge of law. Their object here is the nature of positive law; they do not care whether or when the knowledge about law is true or false, valid or invalid. The relevant element is not the transcendental category, but the evaluative moral principle. With this understanding, legal value in the sense of justice is not a moral evaluation of law at all, and a transcendental-logical dimension through the conception of value-relatedness is only an external one which cannot lend any support to the non-positivistic interpretation of the earlier Radbruch. Referring to the separation and connection thesis in contemporary legal philosophy, Radbruch still maintains that the question of “law as it ought to be” has no logical necessary relation with the question of “law as it is”. There may also be some who argue that Radbruch has exceeded the strict methodological dualism of neo-Kantianism, especially the Marburger School, with his conception of methodological trialism expressed through the conception of value-relatedness. Referring to the cognition of law, Radbruch criticizes Rudolf Stammler who ignores the value-relating dimension and holds too strictly to the principle of methodological dualism. Tracing back to the tradition of the Southwest German School of neo-Kantianism, Radbruch regards the object of cultural science as a meaning-relating object, whereas natural science has a meaning-free object. In this way, the questioning of the former – we can characterize this as “a question of quasi-iuris” whose method can be viewed as a quasi-critical one – stands nearer to the transcendental philosophy of values which has a critical method through regarding the meaning or value itself as its object. Thanks to this questioning of meaning, a bridging between philosophy and empirical cultural science (e. g. jurisprudence) is enabled. Nevertheless, this does not change the empirical character of legal science or jurisprudence, whose object, namely the legal norm, is not an “ought” in terms of absolute values, but an “ought” in the empirical sense. Therefore, unlike philosophy of values, jurisprudence still raises the question of “quid facti”. In this way, Radbruch successfully adheres to the principle of methodological dualism in separating “what is law” from “what ought to be law”, legal philosophy (whose object is justice) from legal science (whose object is legal reality, positive law or legal norm). For him, the introduction of methodological trialism is not an overcoming or opposition, but an extension or a variety (Spielart) of methodological dualism; the latter includes the former.91 The basic principle of the separation between an evaluative and an empir91 Radbruch, Legal Philosophy (n. 12), at 53. For explicit research into methodological dualism in Radbruch’s legal philosophy see Neumann, ‘“Methodendualismus” in der Rechtsphilosophie des Neukantianismus. Positionen zum Verhältnis von Sein und Sollen bei Gustav Radbruch’, in Wert und Wahrheit in der Rechtswissenschaft, ARSP – Beiheft 145, ed. Annette Brockmöller et al. (Stuttgart: Franz Steiner, 2015), 25–40.

On the Relation between Law and Morality

289

ical viewpoint of law is retained. We must limit our understanding of this methodological trialism within an epistemological framework, as it has not reached the area of the very nature of positive law. With reference to the nature or concept of law, Radbruch holds a positivistic view. In this respect, I stand by the position of Neumann and Funke, who also articulate the distinction between the early Radbruch’s own value-relatedness in terms of a constitutive form of law within the framework of epistemology on the one hand and the value-relatedness in terms of a normative-practical evaluation on the other.92 To sum up, formal justice has only a constitutive function for law (the concept of law qua quid iuris) which cannot reach the very nature of law (the concept of law qua quid sit ius). The debate over the separation and the connection thesis in Radbruch’s earlier legal philosophy regards not the idea of formal justice but the other one, namely the idea of practical evaluative purposiveness. This will be our task of the next section. II. A Necessary Connection between Validity of Law and Moral Correctness? Although a “necessary connection” between law and justice in terms of the concept of law qua quid iuris must be restricted in an epistemological sense and cannot be treated as a valid argument for a non-positivist Radbruch (in his pre-war period), there are also arguments which can be stated in a true normative-evaluative sense, for example morals supply the reason for the obligation to obey the law. This argument is also in favor of some kind of necessary relation between law and morality, however, none of the legal positivists would deny it, because for them it has no relation with the nature or validity of law (see Part One, II). A possible argument for a non-positivist earlier Radbruch would only be that if Radbruch indeed claims that a morally incorrect law will lose its validity. With regard to this point, in the following I will clarify an important yet still obscure theory of Radbruch’s legal philosophy, namely the philosophical doctrine of legal validity; then I will point out that it is a misunderstanding to regard this doctrine as an argument for a necessary connection between legal validity and morality. According to Radbruch’s philosophical doctrine of legal validity, besides the idea of legal certainty (as an argument for the positivistic thesis, see Part One, II. 2), the idea of formal justice and material purposiveness could also be treated as legitimate reasons for the validity of law. Through the theory of purposiveness, Radbruch attempts to build a bridge between theoretical and practical reason, between legal and moral philosophy. This theory allows each citizen to go back to his own conscience and choose either jus92 See Neumann, ‘Naturrecht und Positivismus im Denken Gustav Radbruchs’ (n. 57), at 17–9, 28; Neumann, ‘Ralf Dreiers Radbruch’ (n. 61), at 214–5; Funke, ‘Überlegung zu Gustav Radbruchs “Verleugnungsformel”. Ein Beitrag zur Lehre vom Rechtsbegriff ’ (n. 41), at 10–4; Funke, ‘Gustav Radbruchs Rechtsbegriff, ihr neukantianischer Hintergrund und ihr staatsrechtlicher Kontext’ (n. 33), at 39. However, I am of a different opinion than Funke insofar as he claims that with the disavowal formula the later Radbruch has also not gone beyond the framework of epistemology. See Part Three, I of the paper; see also Funke, ‘Überlegung zu Gustav Radbruchs “Verleugnungsformel”. Ein Beitrag zur Lehre vom Rechtsbegriff ’ (n. 41), at 4.

290

Jing Zhao

tice, purposiveness or legal certainty as his/her reason to obey or disobey the law. In this respect, Radbruch argues that the justification of legal imperative by the individual conscience with moral obligatory force is the condition of legal validity.93 As far as the content of law is evaluated in this process, this doctrine does appear to lend support to a non-positivistic interpretation of Radbruch’s earlier theory. There are also authors, for example R. Dreier and Paulson, who endorse this thesis. R. Dreier argues that through this philosophical doctrine of validity, the idea of law obtains a normative function besides its constitutive function.94 Paulson regards this doctrine as essential evidence that Radbruch is already a non-positivist in his earlier period.95 In agreement with Funke, I shall however point out that these arguments are not convincing, because both ideas of justice and purposiveness are stated as non-juristic – in Funke’s words, they are “without any juristic consequence” (“juristisch folgenlos”).96 In this sense, the juristic doctrine of legal validity is independent of the philosophical doctrine.97 This can be easily understood by tracing back to Radbruch’s recognition of the “valid non-law” and “valid incorrect law”, according to which both non-law and incorrect law are valid laws in the sense that they both have juristic validity98 (see Part One, II). One may refuse to obey an “evil law” that is not in accordance with his/her conscience. However, this type of refusal does not necessarily lead to the consequence that this law is a void law. It may be considered as morally defective, but in no way as legally defective; it may lose moral validity, but not legal validity. If a law conforms to the four necessary features of law which we analyzed in Part One, I, it should still be used by courts in their judgment. The statement that a norm is philosophically recognized as not binding does not necessarily imply that it does not belong to a legal system and is not a valid legal norm. Radbruch himself also clearly states that the legal philosophical doctrine of validity is unable to “deny the validity even of the imperatives of a paranoiac who believes himself to be a king”.99 He accepts 93 Radbruch, Legal Philosophy (n. 12), at 85. 94 R. Dreier, ʻGustav Radbruchs Rechtsbegriff ’, in Gesellschaft und Gerechtigkeit: Festschrift für Hubert Rottleuthner, ed. Matthias Mahlmann (Baden-Baden: Nomos, 2011), 15–45, at 31; see also Funke, ‘Gustav Radbruchs Rechtsbegriff, ihr neukantianischer Hintergrund und ihr staatsrechtlicher Kontext’ (n. 33), at 37–8. 95 See Paulson, ‘Zur Kontinuität der nichtphilosophischen Rechtsphilosophie Radbruchs’ (n. 5), at 167; Paulson, ‘Ein ewiger Mythos: Gustav Radbruch als Rechtspositivist – Teil I’ (n. 5), at 111; Paulson, ‘Zum 50. Todestag von Gustav Radbruch’ (n. 5), at 466. 96 See Funke, ‘Gustav Radbruchs Rechtsbegriff, ihr neukantianischer Hintergrund und ihr staatsrechtlicher Kontext’ (n. 33), at 45, 51. Funke’s thesis is a direct conclusion from the following famous passage in Radbruch’s Legal Philosophy: “It is the professional duty of the judge to give expression to the intended validity of the statute, to sacrifice his own sense of what is right, in deference to the authoritative command of the law, to ask only what is legal, never whether it is also just. […] We hold in contempt the clergyman who preaches contrary to his own convictions, but we revere the judge whose fidelity to the statute is not compromised by his own conflicting sense of what is right.” See Radbruch, Legal Philosophy (n. 12), at 119. Here I quote Paulson’s translation (see Paulson, ‘Radbruch on Unjust Laws’ (n. 5), at 496). Furthermore, Radbruch writes: “Even when [the judge] ceases to be the servant of justice, he remains the servant of legal certainty.” See Radbruch, Legal Philosophy (n. 12), at 119. 97 Funke, ‘Gustav Radbruchs Rechtsbegriff, ihr neukantianischer Hintergrund und ihr staatsrechtlicher Kontext’ (n. 33), at 37–9. 98 Ibid., at 38. 99 Radbruch, Legal Philosophy (n. 12), at 114.

On the Relation between Law and Morality

291

an “unlimited validity of positive law” which is for him a “positive-legal truth, the true meaning of positive law, whereas is not yet the truth (itself)”.100 The reason for a positive law being valid must be separated from the reason for it being epistemologically possible on the one hand and whether its content is correct on the other. III. Early Radbruch as a Super-inclusive Non-positivist? In the following I will concentrate on the argument from “super-inclusive non-positivism” by Alexy and its relation to Radbruch’s legal theory. In two recent papers,101 Alexy develops his own classification within legal non-positivism: a) exclusive non-positivism; b) inclusive non-positivism and c) super-inclusive non-positivism, in order to correspond to the classification within legal positivism (i. e. exclusive and inclusive legal positivism). According to inclusive non-positivism, which is also Alexy’s own position, only an extreme unjust positive law can be repudiated on moral grounds. Below the threshold of this extreme injustice, an immoral norm still retains its legal character and its legal validity, but it must be considered to be legally defective.102 This thesis combines with Alexy’s another central thesis, namely the “correctness thesis”. According to it, an ideal or qualifying connection requires a claim to correctness, “which includes a claim to moral correctness and which, if violated, implies legal defectiveness in normal cases and legal invalidity in extreme cases”.103 In both cases however, the connection between law and morality is conceptually necessary, i. e. every product of the law-making act – the individual legal norms, the legal system or judicial judgments – necessarily raises a claim to moral correctness. This claim to correctness is a necessary element of a legal order as such. Turning to super-inclusive non-positivism, which is defined by Alexy as “the highest degree conceivable of the inclusiveness of non-positivism”, we find “a doubtful bias in favor of the real or factual dimension of law”104 that “legal validity is in no way at all affected by moral defects or moral incorrectness”.105 According to Alexy, although this extreme version of non-positivism maintains that an immoral norm is always a valid norm, but is a legally defective one. In this sense, it recognizes an ideal or qualifying connection between law and morality, which “suffices to establish a necessary connection between law and morality, a connection that cannot be reconciled with the positivistic separation thesis”.106 In this respect, Alexy defines the position of the early Radbruch with his own theory and argues that Radbruch is “necessarily a non-positivist, at least a 100 Radbruch, Grundzüge der Rechtsphilosophie (n. 24), at 181. 101 Alexy, ‘On the Concept and the Nature of Law’ (n. 19), at 281–99; see also Alexy, ʻThe Dual Nature of Law’, Ratio Juris, 23, 2 (2010), 167–82. 102 Ibid., at 289; see also Trevor R. S. Allan, ‘Constitutional Rights and the Rule of Law’, in Institutionalized Reason. The Jurisprudence of Robert Alexy, ed. Matthias Klatt (Oxford: Oxford UP, 2012), at 139. 103 Ibid., at 281–99, 290; see also Alexy, The Argument from Injustice: A Reply to Legal Positivism (n. 82), at 35–9. 104 Ibid., at 290. 105 Ibid., at 290, 288; see also Alexy, ‘The Dual Nature of Law’ (n. 101), at 176. 106 Ibid., at 289.

292

Jing Zhao

super-inclusive non-positivist”; his concept of law “can be considered as an early representative of the claim thesis”.107 In terms of a broader understanding of natural law, Borowski distinguishes between the nature of law and the character or validity of law. This distinction may have a close relation with Alexy’s distinction between a qualifying and a classifying connection between law and morality. Borowski maintains that a morally defective law is always a legally defective one, and it has already at the very beginning lost its nature as a law. However, the answer to the question of whether such a statute must also at the same time lose its legal character and validity is different depending on different positions within non-positivism. Within the scope of Borowski’s distinction, Alexy’s position of super-inclusive non-positivism would probably be interpreted as the following: although an extreme incorrect law still retains its legal character and validity, it is no longer a law by nature, i. e. it lacks the nature of law.108 It is an obvious fact that this type of interpretation is not adaptable to the later Radbruch; it is now an issue of whether Radbruch in his pre-war period would be treated as a “super-inclusive non-positivist”. Insofar as Alexy’s correctness thesis is stated in the sense of substantive correctness of law, i. e. it is a necessary claim referring to the content of law, we cannot draw a parallel between this conception and the idea of justice of the earlier Radbruch, because Radbruch clearly defines justice as the formal principle of law, as opposed to purposiveness as the evaluative standard of the substantive correctness of law. For him, any mixing of these two ideas would be a relapse into the old natural law. If this parallel between Alexy’s correctness thesis and Radbruch’s justice is not possible, one might further question, whether another parallel could be drawn between Alexy’s correctness thesis and Radbruch’s purposiveness. Radbruch follows Emil Lask and regards purposiveness as one of the most important objects of legal philosophy. He emphasizes a distinction between value and idea, between legal value and ethical values. The purpose of law can only be found in the ethical values of the good,109 which is however not the value of law itself. The value of law can only be justice. The difference between Radbruch and Alexy may be that the earlier Radbruch considers “right moral” or “highest value” to be rationally impossible, based on the principle of relativism,110 whereas Alexy maintains a rational morality.111 Moreo107 Alexy, ‘Gustav Radbruch’s Concept of Law’ (n. 30), at 3. 108 See Borowski, ‘Begriff und Geltung des Rechts bei Gustav Radbruch’ (n. 2), at note 22 pertaining to p. 234. Alexy himself also distinguishes between the nature and concept of law, which however is not the same as Borowski’s own distinction. See Alexy, ‘On the Concept and the Nature of Law’ (n. 19), at 290–2. 109 See Radbruch, Legal Philosophy (n. 12), at 91–2; see also p. 85. Law may intend to serve only one of the ultimate values (the ethical, logical, and aesthetical values; the ideals of the good, the true, and the beautiful) directly, namely the ethical value of the good. However, as far as the logical value of the true and the aesthetical value of the beautiful enter the theory of ethical goods as the ends of ethical action, they are invested again with an – ethical – value character. In this way, the ethical value of the good takes in the other absolute values. 110 Kant teaches us that only the form, never the content is universally possible. See Radbruch, Legal Philosophy (n. 12), at 60. 111 See Neumann, ‘Notwendigkeit und Grenzen von Idealisierungen im Rechtsdenken. Anmerkungen zu Robert Alexys Modell der “Doppelnatur” des Rechts’ (n. 8), at 74–5.

On the Relation between Law and Morality

293

ver, for Alexy, the correctness argument is analytical and only the injustice argument is normative. In contrast, Radbruch regards the idea of purposiveness itself as a normative idea (which is merely relative to theoretical reason). According to him, through purposiveness, not analytical, but normative arguments are supplied for the justification of law. There also appears to be another possible relation between Alexy and Radbruch, which regards Alexy’s model of the “qualifying connection between law and morality” and Radbruch’s model of “valid non-law” and “valid incorrect law”. According to Alexy’s model, the failure of raising a claim to correctness will make a law become a defective law, but will not necessarily cause it to be a non-law or an invalid law. This seems to be similar to Radbruch’s model which states that there may be substantive defective law or inexpedient law concerning the idea of purposiveness, but this defectiveness does not necessarily cause the law to be a non-law or an invalid law. In order to clarify this point, we must go back to super-inclusive non-positivism itself. According to this model, a moral defectiveness results neither in an invalid law nor in a non-law, but merely in a legally defective law, and the legal validity is in no way at all affected by moral defects or moral incorrectness.112 Now, the key issue is, what does this term “legal defect” actually mean? Does it express at all a distinction between moral and legal defectiveness? Funke puts forward the question of what actually does such a concept of legal defectiveness precisely mean? We all know that a theory can be called a non-positivistic theory only if it maintains a necessary connection between the concept and the validity of law on the one hand and morality on the other hand, i. e. moral defects necessarily lead either to a non-law or an invalid law (for most legal positivists, these two elements always overlap each other). Funke argues that a concept of legal defectiveness, which does not change the legal validity of law at all, is hardly filled with meaning.113 If law is attributed with a defect which has neither an impact on the concept of law itself nor on the validity of law, therefore a defect which is without significance to the concept of valid law, then a conceptual connection between law and morality is no longer evident.114 I agree with Funke on this point. The position of so-called super-inclusive non-positivism, which claims that moral defects lead only to a legal defect but have no influence at all on the concept and validity of law, is actually no different than a positivistic position. With regard to this issue, Alexy himself also acknowledges the source thesis by claiming that this extreme version of non-positivism classifies “each and every norm, if only authoritatively issued and socially efficacious” as “a legally valid norm”; and “every norm based on social facts is a legally valid norm”.115 There is a further point that can be criticized with reference to super-inclusive non-positivism: Alexy’s concept of legal validity within scope of this model is actually 112 Alexy, ‘On the Concept and the Nature of Law’ (n. 19), at 288. 113 Funke, ‘Gustav Radbruchs Rechtsbegriff, ihr neukantianischer Hintergrund und ihr staatsrechtlicher Kontext’ (n. 33), at 47. 114 Ibid. 115 Alexy, ‘On the Concept and the Nature of Law’ (n. 19), at 289.

294

Jing Zhao

stated in the sense of obedience to law. He finds this model in Kant’s and Hobbes’ theory, but both authors speak of the obedience or disobedience to law by citizens. For example, Alexy also states that Kant argues that “everyone has the obligation, established a priori by practical reason, to subject himself to positive legislation and the positive administration of law”.116 However, as we all know, legal positivists are also of the opinion that the duty of obedience to law is a moral justification, the answers to which cannot be considered as a classification element of positivism and non-positivism. Unlike Alexy, Radbruch clearly separates the reason of validity of law and the reason of obedience to law (see Part One, II). We may say that the earlier Radbruch stands by moral positivism, for that it is the professional duty of the judge, according to which the judge is always bound to the law – even an evil law – and must apply it. However, this has a direct impact on his theory of legal validity, so that it cannot be excluded from juristic justification. Referring to citizens, we may say that Radbruch defends moral non-positivism because every citizen has a free choice not to obey an evil law according to his/her moral conscience, this statement however can be reconciled with legal positivism (see Part One, II. 2). IV. Radbruch’s own Criticism of Legal Positivism In several papers, Paulson develops his “two-front thesis”: legal positivism of the first front against natural law theory and of the second front against naturalism.117 In accordance with this thesis, Paulson comes to his own classification criterion within the positivist camp. According to him, Kelsen counts as a proponent of legal positivism without naturalism and defends what he terms a normative legal philosophy, whereas other legal positivists argue that the facts are sufficient to explain ostensibly normative material and they should be counted as proponents of legal positivism qua naturalism.118 The latter is 116 Ibid., at 288. 117 See Paulson, ‘Review to: Rechtsphilosophische Tagesfrag’ (n. 81), at note 23 pertaining to p. 581; Paulson, ʻThe Very Idea of Legal Positivism’, Revista Brasileira de Estudos Políticos, 2011, n. 102, 139–65, at 165. 118 Paulson, ‘The Very Idea of Legal Positivism’ (n. 117), at 152–65. See also Paulson, ‘Review to: Rechtsphilosophische Tagesfrag’ (n. 81), at 580–2; Paulson, ‘Ein ewiger Mythos: Gustav Radbruch als Rechtspositivist – Teil I’ (n. 5), at 109–10; Paulson, ‘Zur Kontinuität der nichtpositivistischen Rechtsphilosophie Gustav Radbruch’ (n. 5), at 163; Paulson, ‘Zwei radikale Objektivierungsprogramme in der Rechtslehre Hans Kelsens’, in Hans Kelsen. Staatsrechtslehrer und Rechtstheoretiker des 20. Jahrhunderts, ed. Stanley L. Paulson and Michael Stolleis (Tübingen: Mohr Siebeck, 2005), 191–220, at 192–3, 204–6. I do not agree with Paulson in one point. According to him, there are two different versions of “is/ought-distinction”: a) methodological dualism and b) the separation of law and morality. Kelsen claims both the separation thesis and methodological dualism, whereas most of the other positivists, for example Hart and Raz, claim the separation thesis but with a monistic method; they are of the opinion that the facts are sufficient to explain the law. He continues to place Radbruch in this framework. However, I am of the opinion that there is a difference between Radbruch’s and Kelsen’s criticisms of naturalism. In the scope of Kelsen’s legal theory, “ought” refers to the legal norms and the “is/ought-dualism” has nothing to do with “values” or “moral principles”, whereas the “ought” for Radbruch is understood as absolute values; positive law as a cultural reality belongs to the category of “is”. There is a radical separation of “ought” and “is”, “value” and “reality”. I do not think that Radbruch’s “value/reality-dualism” and the “law/morality-separation” in

On the Relation between Law and Morality

295

in opposition to the neo-Kantians (Radbruch and Kelsen above all as prominent representatives of juristic neo-Kantians), who maintain a methodological dualism. This distinction of Paulson implicates that whether someone is a naturalist or a non-naturalist is not relevant to whether he is a positivist or a non-positivist in terms of the separability and connection thesis. In line with this interpretation, all of Radbruch’s own explicit criticisms of legal positivism (in the sense of naturalism) and statutory positivism in his earlier period119 can be regarded as criticisms of positivism of the second front, namely the rejection of naturalism in legal science. Paulson also persuasively concludes that in the Kiel lectures of 1919,120 Radbruch did not touch upon positivism of the first front, namely the positivism qua separation thesis.121 Consequently, in Paulson’s statement that “[n]o reader would come to the idea that Radbruch was until the Nazi period a convinced positivist”,122 he does not use arguments from Radbruch’s own critique of positivism. In a word, Radbruch’s own criticism of positivism means not a necessary exclusion of the separation thesis. Part Three: From Positivism to Non-positivism The key issue in this section is whether the idea of justice in Radbruch’s later works is still expressed in a merely epistemological-methodological sense, or does it already embody a normative-ontological accent and can therefore penetrate into the nature and validity of positive law? Is there a modification of Radbruch’s position regarding the principle of relativism and the function of legal philosophy as well as the legal philosophers and jurists?

119

120

121 122

the contemporary sense are spoken as two unrelated aspects. Although Radbruch maintains the thesis of “value-relatedness of law”, it is not the overcoming of the “value-reality-dualism”, but is a variety of it. For detailed discussion of this point, see Part Two, I of the paper. Paulson has conducted a full-scale research on Radbruch’s own criticisms of legal positivism. For detailed analysis see Paulson, ‘Ein ewiger Mythos: Gustav Radbruch als Rechtspositivist – Teil I’ (n. 5), at 108–15; ‘Zur Kontinuität der nichtpositivistischen Rechtsphilosophie Gustav Radbruch’ (n. 5), at 158–77; Paulson, ‘Review to: Rechtsphilosophische Tagesfrag’ (n. 81), at 580–2. Radbruch writes here: “The age of realpolitik, of politics qua power, appears in the form of legal positivism. The law, according to legal positivism, is identical with the statute, with the will of the state. The distinction between law and power, between law and the unchecked exercise of political will, appears to have been abandoned: The law marches along in lock step with the power of the state, and every exercise of state power becomes, in the form of a statutory decree, law. Legal science is the idolatry of power.” See Radbruch, Rechtsphilosophische Tagesfragen. Vorlesungsmanuskript. Kiel, Sommersemester 1919, ed. Hidehiko Adachi and Nils Teifke (Baden-Baden: Nomos, 2004), 33. Quoted from Paulson, ‘On the Background and Significance of Gustav Radbruch’s Post-War Papers’ (n. 5), 17–40. This paper is available at: (last viewed on April 10, 2018). Paulson, ‘Review to: Rechtsphilosophische Tagesfrag’ (n. 81), at 582. Ibid., at 580.

296

Jing Zhao

I. Normative-practical Meaning of Justice 1. Overlap between Concept and Validity of Law In his pre-war writings, Radbruch isolated the concept of law qua quid iuris from the validity of law, whereas in his post-war works he changed this thesis by overlapping them. This development is analyzed in several essays of Neumann.123 He persuasively points out that the later Radbruch has abandoned the “separation model” of justice and the concept of law (“valid non-law”) and turned to endorse an “integration model” of these two (“invalid non-law”). During this period, the concept of law overlaps with the validity of law; correspondingly, the two types of concept of law, i. e. the concept of law qua quid iuris (“philosophical concept of law” or “epistemological concept of law”) and the concept of law qua legal validity (“juristic concept of law” or “normative-practical concept of law”)124 no longer exist. According to Radbruch’s statutory lawlessness thesis of 1946, a precept which is not justified by the concept of law will a fortiori lose its validity.125 In this way, Radbruch’s earlier criticism of natural law theory, which falsely mixes the concept and validity of law (see Introduction, II and Part One), is also moderated in his later theories. 2. Moderation of Epistemological Justice-relatedness In Radbruch’s post-war writings, the value- or justice-relatedness is no longer a pure transcendental-logical conception, because the idea of justice now also takes on a normative-practical meaning;126 it has exceeded the border of the unilateral determination of the form of law, and incorporated into the content and validity of law. In Radbruch’s later writings, especially through the “disavowal formula”, the justice-relatedness, which functions in his early times merely as a determining principle of the form of law, is now 123 Neumann, ‘Naturrecht und Positivismus im Denken Gustav Radbruch’ (n. 57); Neumann, ‘Ralf Dreiers Radbruch’ (n. 61); Neumann, ‘Zum Verhältnis von Rechtsgeltung und Rechtsbegriff – Wandlungen in der Rechtsphilosophie Gustav Radbruchs’ (n. 61); Neumann, ‘“Methodendualismus” in der Rechtsphilosophie des Neukantianismus. Positionen zum Verhältnis von Sein und Sollen bei Gustav Radbruch’ (n. 91). 124 Neumann, ‘Zum Verhältnis von Rechtsgeltung und Rechtsbegriff – Wandlungen in der Rechtsphilosophie Gustav Radbruchs’ (n. 61), at 142; see also Neumann, ‘“Methodendualismus” in der Rechtsphilosophie des Neukantianismus. Positionen zum Verhältnis von Sein und Sollen bei Gustav Radbruch’ (n. 91), at 33–4; Neumann, ‘Naturrecht und Positivismus im Denken Gustav Radbruch’ (n. 57), at 19–20; Neumann, ʻNaturrecht und Politik zwischen 1900 und 1945’, in Naturrecht und Politik, ed. Karl Ballestrem (Berlin: Duncker & Humblot, 1993), 69–85, at 77–9. 125 Ibid., at 142–7; see also Neumann, ‘“Methodendualismus” in der Rechtsphilosophie des Neukantianismus. Positionen zum Verhältnis von Sein und Sollen bei Gustav Radbruch’ (n. 91), at 36–7. 126 See Neumann, ‘Naturrecht und Positivismus im Denken Gustav Radbruch’ (n. 57), at 19–20; see also Kaufmann, Gustav Radbruch: Rechtsdenker, Philosoph, Sozialdemokrat (n. 4), at 197; Hans-Peter Schneider, ‘Gustav Radbruchs Einfluss auf Rechtsphilosophie der Gegenwart’, in Gustav Radbruch, Rechtsphilosophie, ed. Erik Wolf and Hans-Peter Schneider (Stuttgart: K. F. Koehler, 1973), at 359; Alessandro Baratta, ‘Relativismus und Naturrecht im Denken Gustav Radbruchs’, Archiv für Rechts- und Sozialphilosophie 45 (1959), at 516.

On the Relation between Law and Morality

297

elevated to a justice criterion of law in the sense of an evaluative standard; the validity of an intended unjust law may be denied if there is a lack of the justice-relatedness.127 Referring to this transformation of a constitutive to a normative value-relatedness, Radbruch abandoned his original neo-Kantian position to certain degree. The original methodological relatedness between the idea of justice and the concept of law in the framework of the neo-Kantian epistemology takes on here a normative-practical meaning. Justice as a practical-normative meaning now embodies “human rights”.128 This leads to the consequence that if a law denies justice or is in conflict with these basic human rights, this law is “devoid of validity”.129 Simultaneously, an ontological turn of the transcendental-logical justice-relatedness of law and “the intentional value orientation of the originator of the norm (Normautor)” also become a criterion for the existence of a legal norm.130 We can see that if the later Radbruch talks about the nature or the concept of law, he no longer talks only about the concept of law qua quid iuris, but rather, according to Neumann’s interpretation, a penetration of justice into the ontic “is” (das ontische Sein) of positive law. During this transformation, justice obtains the ability to determine both the nature/ concept and the validity of law, and the value-relatedness becomes a normative-ontological term.131 In certain extreme cases, Radbruch no longer seeks arguments in morality, which expresses itself in the idea of purposiveness and the philosophical doctrine of validity, but in justice. In this period, through the idea of justice, the evaluation of a positive law as a “horrendously unjust law” or “flawed law” exceeds a merely moral relevance and results in a lack of legal validity in the sense that its impact extends to judges.132 In Five Minutes of Legal Philosophy (1945), Radbruch states that “a law in conflict with [principles of law, namely the natural law or the law of reason] is devoid of validity”; “If laws deliberately betray the will to justice – by, for example, arbitrarily granting and withholding human rights – then these laws lack validity, the people owe them no obedience, and jurists, too, must find the courage to deny them legal character”.133 In another lecture Erneuerung des Rechts (1946), Radbruch also writes: “We must reflect again on human rights, which prevail over all laws, and on natural law, which denies the validity of justice-hostile law”.134 In these statements, obedience to the law is no longer justi127 Neumann, ‘Naturrecht und Positivismus im Denken Gustav Radbruch’ (n. 57), at 19. 128 See Radbruch, ‘Five Minutes of Legal Philosophy’ (first publ. 1945), trans. Bonnie Litschewski Paulson and Stanley L. Paulson, Oxford Journal of Legal Studies, Vol. 26, No. 1 (2006), 13–5, at 14; also in GRGA, vol. 3 (n. 12), 78–9, at 79; See also Radbruch, ‘Erneuerung des Rechts’ (first publ. 1946), in GRGA, vol. 3 (n. 12), 80–2, at 80. 129 Radbruch, ‘Five Minutes of Legal Philosophy’ (n. 128), at 14. 130 Neumann, ‘Naturrecht und Positivismus im Denken Gustav Radbruch’ (n. 57), at 19. 131 Ibid., at 19, 28. 132 Radbruch, Vorschule der Rechtsphilosophie (n. 12), at 154. See also Radbruch, ‘Statutory Lawlessness and Supra-Statutory Law’ (first publ. 1946), trans. Bonnie Litschewski Paulson and Stanley L. Paulson, Oxford Journal of Legal Studies, Vol. 26, No. 1 (2006), 1–11, at 7; also in GRGA, vol. 3 (n. 12), at 89. Alexy describes this degree with the simple term “extreme” and transforms Radbruch’s intolerability formula into the short form “Extreme injustice is no (valid) law”. 133 Radbruch, ‘Five Minutes of Legal Philosophy’ (n. 128), at 14. 134 Radbruch, ‘Erneuerung des Rechts’ (n. 128), at 80.

298

Jing Zhao

fied only through the individual moral conscience but also through justice and human rights. In this way, the idea of justice becomes a relevant element in classifying a position as positivism or non-positivism. We can in this respect conclude that the transformation of Radbruch’s legal philosophy from an epistemological to a practical reconciliation of justice and law makes him change from a positivist to a non-positivist. II. Relativization of Relativism In his earlier legal thought, Radbruch strictly adheres to the principle of relativism. According to this principle, there are no universal valid values and all value statements are relative from the viewpoint of legal philosophy. For example, only with reference to the individualistic world view, individual values as higher values compared with collective and work values. The determination of different types of world views finds its expression in different party-political opinions.135 In his post-war essays, Radbruch changes this relativistic attitude to individual values. Neumann also points out this modification in Radbruch’s works before and after 1945. Whereas in Radbruch’s earlier conception there was no “protection of minorities for the recessive elements of the inferior position”, he now requires a minimal guarantee of liberalism, i. e. of the individualistic conception of obligated rights for state orders.136 In this sense, liberalism is now proven to be a “necessary impact in every view, […] even in an authoritarian view”.137 The total denial of human rights from the supra-individualistic or the transpersonal point of view will therefore lead to an “absolutely incorrect law”.138 Through these statements, individual values, compared with the supra-individual and the transpersonal values, are ascribed a higher status. In Radbruch’s pre-war writings, under the requirement of the principle of relativism and legal certainty, the final decision belongs only to the state; now it is transferred to justice in extreme cases. If the decision of the state would totally sacrifice individual values by requiring them to serve supra-individual or transpersonal values, the idea of justice is supposed to take their place in making final decisions. In this way, the principle of relativism is to a certain degree weakened. In another post-war paper, we can also clearly see this change. Radbruch initially writes: “As a rule, the positivistic doctrine must stand, which is to say that the statute, without regard to its content, is to be considered binding law. The rule of law and legal certainty demand this fundamental commitment to the statute” (this undoubtedly expresses his positivistic position before the War, see Part One, II. 1 and Part Two, II); however, he then directly claims that this

135 Radbruch, ‘Problematik der Rechtsidee’ (n. 44), at 463–4. 136 Neumann, ‘Naturrecht und Positivismus im Denken Gustav Radbruch’ (n. 57), at 26. For further discussion on the relativization of relativism also see R. Dreier, ‘Kontinuitäten und Diskontinuitäten in der Rechtsphilosophie Radbruchs’ (n. 14), at 218–9, 227. 137 Radbruch, Vorschule der Rechtsphilosophie (n. 12), at 147. 138 Ibid.

On the Relation between Law and Morality

299

commitment will be relaxed “in very exceptional and unique cases”.139 This presents the obvious fact of a “relativization of relativism”, through which Radbruch apparently departed from his earlier position to legal philosophy. However, we should retain an awareness that, as Paulson convincingly points out,140 although Radbruch states that “Natural Law” should be as a subtitle added into his postwar – also his final – lecture (1947/48) on legal philosophy, he should not be considered as a “classical natural lawyer”. On the one hand, the “suprastatutory law” is not “the supra-national and supra-temporal permanence” of classical natural law, but a “natural law with changing content”. From the viewpoint of epistemology, Radbruch does not give up the two basic principles, namely methodological dualism and relativism. They are still valid in the theoretical realm, in which legal philosophy is understood as the function of theoretical reason. If one inquires about the obtainment of the knowledge of law, Radbruch would still answer this question through the concept of law qua quid iuris; if one questions how a decision about the highest values is scientifically possible, relativism is also valid. The extension of the idea of justice from an epistemological principle to a normative-practical one means not that this idea also loses its original meaning and function. On the other hand, this type of suprastatutory law can only be applied when extreme injustice occurs. Radbruch never completely gives up the principle of relativism and the idea of legal certainty, which is still valid for all standard cases except the “exceptional, indeed, unique cases, only in cases rivaling what we have experienced in the Nazi period”141 (in Radbruch’s own words), or the “extreme and indeed improbable cases”142 (in Alexy’s words). If the injustice does not reach an intolerable degree, positive law “takes precedence even when its content is unjust and fails to benefit the people”.143 Alexy labels this type of position as “inclusive legal non-positivism”, whereas classical natural law theory mostly represents an “exclusive legal non-positivism” and allows only the correct/right law to be valid, so that every unjust legal rule must turn to be void. Actually, Radbruch already underwent similar sufferings regarding such “extreme cases” in his early years. During the time that he was the minister of justice, in order to fight against terrorism and protect the Weimar Republic, he had to apply the death penalty, which was determinately rejected by him. Kaufmann describes this as one of the many sufferings which made Radbruch’s life tragic.144

139 Radbruch, ‘Gesetz und Recht’ (n. 60), at 99. Here I quote the translation from Paulson, ‘Radbruch on Unjust Laws’ (n. 5), at 497. Paulson also points out on page 496 that “in Radbruch’s post-War work, it is precisely this hard-headed notion of legal certainty that, in truly extreme cases, yielded to justice.” 140 Paulson, ‘Radbruch on Unjust Laws’ (n. 5), at 498; see also Paulson, ‘Lon L. Fuller, Gustav Radbruch, and the “Positivist” Theses’ (n. 5), at 336–8, 341. 141 Radbruch, ‘Gesetz und Recht’ (n. 60), at 99. Here I quote the translation from Paulson, ‘Radbruch on Unjust Laws’ (n. 5), at 497. 142 Alexy, The Argument from Injustice: A Reply to Legal Positivism (n. 82), at 35. 143 Radbruch, ‘Statutory Lawlessness and Supra-Statutory Law’ (n. 132), at 7. 144 See Kaufmann, Gustav Radbruch: Rechtsdenker, Philosoph, Sozialdemokrat (n. 4), at 84–5.

300

Jing Zhao

III. Status of Legal Philosophy: From Theoretical to Practical Reason Through those two transformations identified in the above research, namely the overlap between the concept/nature and validity of law on the one hand and the relativization of relativism on the other, Radbruch’s attitude towards legal philosophy itself also shows a practical-normative tendency. According to his pre-war writings, legal philosophy is “only the scientific representation of everyone to law” which merely “shows contradictions, without being able to solve them”; legal philosophy “should not make decisions, it should just place itself before decisions”.145 The idea of justice is also a pure form of law which has no normative significance and is not able to make any practical decision. It has no influence on the validity of positive law. If one exits epistemology and enters the realm of practical philosophy, justice becomes meaningless. Whether a citizen obeys or disobeys a shameful law is a moral appeal, and this decision remains only in his/ her own hand. Philosophers cannot take part in this process, as for them, all practical decisions are only contingent decisions. If turning to the case of the judge, only legal certainty is binding. For the later Radbruch however, the original formal idea of justice is materialized through claiming human rights or individual values;146 in this sense, the concept of value is also no longer a pure concept within the scope of the Southwest German School of neo-Kantianism. From this reason, I cannot agree with Paulson, who regards the Radbruch’s formula as a delayed triumph of absolute values that Radbruch adopts from the neo-Kantians.147 Through moderating the transcendental dimension of the idea of justice and the relativization of relativism, legal philosophy is no longer merely a function of theoretical reason; legal philosophers and jurists should also no longer consider themselves as pure theoretical individuals. They do not need to appeal every time to practical reason (of parties or individual conscience) in order to make final decisions. With this understanding, Radbruch’s later positioning of the legal philosopher, clearly expressed in his quotation from Goethe – “Man is not born to solve the problems in this world, but rather to seek where the problems start and to stay with the boundaries of the understandable”148 – must perhaps be modified in the face of extreme cases. For us, it is now probably easier to understand Radbruch’s “defenselessness thesis” (Wehrlosigkeitsthese149), i. e. in the pre-war period, it is the non-practical orientation which makes jurists defenseless against injustice. This modification frees legal philosophy from the autocracy of theoretical reason and makes the development of Radbruch’s legal theory not only an “accent-shifting” 145 Radbruch, ‘Die Problematik der Rechtsidee’ (n. 44), at 466–7. 146 Radbruch, ‘Statutory Lawlessness and Supra-Statutory Law’ (n. 132), at 6; see also Radbruch, Vorschule der Rechtsphilosophie, (n. 12), at 149–50. 147 Paulson, ‘Zur Kontinuität der nichtpositivistischen Rechtsphilosophie Gustav Radbruchs’ (n. 5), at 182. 148 Conversations of Goethe with Johann Peter Eckermann (at 15.10.1825). Sämtliche Werke nach Epochen seines Schaffens. Münchener Ausgabe in 20 Vol., ed. Karl Richter (München: Carls Hanser Verlag, 1986), vol. 19, at 149. Quoted from Radbruch, Grundzüge der Rechtsphilosophie (n. 24), note 4, at 44. 149 Radbruch, ‘Gesetzliches Unrecht und übergesetzliches Recht’, in GRGA vol. 3 (n. 12), at 88; Radbruch, ‘Die Erneuerung des Rechts’ (first publ. 1947), in GRGA vol. 3 (n. 12), 107–14, at 108.

On the Relation between Law and Morality

301

from legal certainty to justice, but rather changes his position from being a positivist to a non-positivist. From the viewpoint of the later Radbruch, if extreme injustice occurs, if fundamental human rights are transgressed, justice will take over the decision making power from legal certainty and deny the legal character and legal validity of these laws. Concluding Remark It is important to realize that a unilateral approach of position classification in terms of positivism and non-positivism is far from sufficient in order to research and understand the whole Radbruch. This would on the one hand lead readers and researchers to a disregard of the strong neo-Kantian influence in Radbruch’s legal philosophy, and on the other hand to neglect the “nuance” or “tension” throughout his philosophical thought and his person. Furthermore, besides classifying Radbruch as a proponent of the separation or the connection thesis, there are numerous interesting and substantive questions which are important to his legal philosophical thought. I had no ambition in this essay to embark on a full-scope investigation of Radbruch’s legal philosophy, but I do hope to have outlined a plausible view of its development from the pre-war to the post-war period. My central thesis is that Radbruch experienced a transformation from being a positivist (in terms of a proponent of the separation thesis) to a non-positivist (in terms of a proponent of the connection thesis). I. Positivist Radbruch in his Earlier Period Through researching Radbruch’s pre-war works from the viewpoint of the relationship between law and morality, I come to the conclusion that the early Radbruch is a positivist according to whom, a norm will not lose its legal character or nature on the one hand and its validity on the other hand, if it is incorrect or immoral, i. e. if its content does not conform to certain moral merits or merits in other aspects. My central arguments are the following: 1. Radbruch develops a concept of law qua quid sit ius which expresses a positivistic nature of law (Part One, I). His criticism of natural law theory already assumes at the beginning that only an epistemological reconciliation of justice and the concept of law is possible. The understanding of the value-relatedness and its result, namely the concept of law qua quid iuris, must be restricted within an epistemological especially neo-Kantian framework, and are irrelevant to the debate between positivism and non-positivism with regard to the concept and the nature of law. (Part Two, I) 2. As a legal positivist, the early Radbruch chooses legal certainty (which requires legislators to make the final decision) to be the reason for the validity of law. In his prewar works, there is a strict separation of legal validity and the concept of law qua quid

302

Jing Zhao

iuris on the one hand (valid non-law) and of legal validity and moral correctness on the other (valid incorrect law). (Part One, II. 1) 3. For Radbruch, the justification of the obligation to obey the law is a moral and not a legal justification; The reason of the obedience to law can only be found in morality. (Part One, II. 2) 4. Although the idea of purposiveness determines and evaluates the content of law, it does not penetrate into the validity of law. According to the philosophical doctrine of legal validity, the decision of whether one should obey an unjust law is left to the practical reason and conscience of individuals; however, this doctrine has no juristic consequence because the judge is always bound to statutory law and must apply both good and evil laws under all circumstances. In this respect, we cannot conclude that Radbruch establishes a necessary connection between legal validity and moral correctness. (Part Two, II) 5. Alexy’s correctness thesis and super-inclusive non-positivism are not compatible either with the earlier or with the later Radbruch. Moreover, a merely qualifying connection between law and morality is not sufficient for claiming a non-positivistic position; it is difficult to see a fundamental difference between this extreme version of legal non-positivism and legal positivism. (Part Two, III) 6. Radbruch’s own criticism of legal positivism cannot be regarded as a valid argument for a non-positivist Radbruch, because his criticism and the criticism of legal positivism from contemporary non-positivism are situated on different levels and cannot be overlapped. (Part Two, IV) II. Non-positivist Radbruch in his Later Period With reference to the separation and connection thesis, it is an obvious fact that the development of Radbruch’s legal theory is not continuous from the pre-war to the postwar period. Through a series of essays after the war, Radbruch presents a transformation of his earlier legal theory in the following four points: 1. Through his works in the post-war period, especially Radbruch’s formula, Radbruch establishes a necessary connection between justice and the validity of law on the one hand and between justice and the nature or the concept of law qua quid sit ius on the other hand. In this way, the model of “valid non-law” no longer exists; the concept of law (qua quid sit ius) overlaps with the validity of law. (Part Three, I. 1) 2. During the development of Radbruch’s legal philosophy, the idea of justice detaches itself from the neo-Kantian concept of the theoretical value to certain degree. In his post-war writings, the value-relatedness can be regarded not only as a relevant principle in the cognition of law, but also as a necessary element of the nature and validity of positive law. Justice is no longer a pure formal idea; it is able to deny the validity of the grossly unjust laws. A necessary connection between law and justice is established. (Part Three, I. 2)

On the Relation between Law and Morality

303

3. In specific cases, individual values are considered into absolute values that are above collective and transpersonal values. In this way, the principle of relativism is relativized. A law which totally denies human rights will lose its validity and the court can refuse to apply it. (Part Three, II) 4. Regarding the modification within the idea of justice, the status of legal philosophy also transforms from a function of theoretical reason to a function of normative-practical reason. This change is apparently neither a continuous development nor a socalled “accent-shifting”, but a transformation from a positivistic to a non-positivistic legal theory. (Part Three, III)

Non-Positivism and Encountering a Weakened Necessity of the Separation between Law and Morality Reflections on the Debate between Robert Alexy and Joseph Raz Wei Feng*

Introduction Nearly thirty years ago, Robert Alexy in his book The Concept and Validity of Law as well as in other early articles1 raised non-positivistic arguments in the Continental European tradition against legal positivism in general, which was assumed to be held by, among others, John Austin, Hans Kelsen and H. L. A. Hart. The core thesis of legal positivism that was being discussed among contemporary German jurists, just as with their Anglo-American counterparts, is the claim that there is no necessary connection between law and morality.2 Robert Alexy has argued, however, that the law, besides consisting conceptually of elements of authoritative issuance and social efficacy, necessarily lays a claim to substantial correctness,3 which is derived from analytical arguments.4 Furthermore, if this claim to substantial correctness necessarily requires the incorporation of * 1

2

3 4

Postdoctoral researcher at the Renmin University of China, Beijing. The author is also working on a further doctoral project at the Christian-Albrechts-University of Kiel, Germany. I should like to thank Stanley L. Paulson for suggestions and advice on matters of English style. See Robert Alexy, Begriff und Geltung des Rechts (Freiburg/Munich: Verlag Karl Alber 1992); and its translation in English, see Robert Alexy, The Argument from Injustice: A Reply to Legal Positivism, trans. Bonnie Litschewski Paulson and Stanley L. Paulson (Oxford: Clarendon Press, 2002). The earliest publication of Robert Alexy on this subject was, however, in English twenty-nine years ago, see Robert Alexy, ‘On Necessary Relations Between Law and Morality’, Ratio Juris, 2 (1989), 167–83. His first relating publication in German followed in the next year, see Robert Alexy, ‘Zur Kritik des Rechtspositivismus’, Archiv für Rechts- und Sozialphilosophie, Beiheft 37 (1990), 9–26. See e. g. Ralf Dreier, ‘Recht und Moral’ (1980), in Ralf Dreier, Recht – Moral – Ideologie. Studien zur Rechtstheorie (Frankfurt a. M.: Suhrkamp Taschenbuch Verlag 1981), 181, 184, 186–7; his ‘Der Begriff des Rechts’, Neue Juristische Wochenschrift, 39 (1986), 890; and his ‘Neues Naturrecht oder Rechtspositivismus? In Erwiderung auf Werner Krawietz’, Rechtstheorie, 18 (1987), 383–4; see also Norbert Hoerster, ‘Zur Verteidigung des Rechtspositivismus’, Neue Juristische Wochenschrift, 39 (1986), 2480; Alexy, ‘On Necessary Relations Between Law and Morality’ (n. 1), at 167–8; and his The Argument from Injustice (n. 1), at 3. See Alexy, The Argument from Injustice (n. 1), at 3. Ibid., at 20–1, 35–39.

306

Wei Feng

moral elements into law, then the ‘necessary connection thesis’, as defended by non-positivism, can be justified. Some of the most significant objections to this sort of claim, stemming from the Anglo-American world, are those introduced by Joseph Raz. In his ‘Reply’ to Robert Alexy, Raz raises at least three interesting criticisms, including, first, the ambiguity of ‘legal theory in the positivistic tradition’, second, the indeterminate formulations of the ‘separation thesis’, and, third, the necessary claim of law to legitimate authority as a moral claim.5 As a point of departure, I will argue that Raz’s three criticisms are misleading. For they do not enhance our understanding of the genuine compatibility or incompatibility between legal positivism and non-positivism. Despite the frequently reformulated theses of legal positivism and the various kinds of opponents responding thereto, the essential divergence between legal positivism and non-positivism was and remains the answer to the question of the relation between law and morality. Furthermore, I will clarify that in the strictest sense there can be three and only three logically possible positions concerning the relation between law and morality: the connection between them is either necessary, or impossible (i. e. they are necessarily separate), or contingent (i. e. they are neither necessarily connected nor necessarily separate). The first position is non-positivistic, while the latter two positions are, indeed, both positivistic, but in different forms: one may be called ‘exclusive’ legal positivism, the other ‘inclusive’ legal positivism. I will continue by showing that these three positions stand to one another in the relation of contraries, not contradictories, and that, taken together, they exhaust the logically possible positions concerning the relation between law and morality, never mind the tradition or authority from which these positions are derived. Raz mentions, however, many changeable formulations of the separation thesis, which even leads him to acknowledge ‘necessary connections between law and morality’.6 One who is trying to understand legal positivism would no doubt be puzzled by this claim. Nevertheless, I will argue that this is an alternative strategy of legal positivism, and it points to naturalistically oriented view. Although this necessary separation between law and morality, understood naturalistically, strikes one as strengthening the separation, in the end it leads to a weakened notion of necessity. This weakened necessary separation thesis, however, cannot be justified through the so-called claim of the law to legitimate authority, defended by Raz, for it is difficult to answer the question of whether a normally justified but factual authority can gain legitimate authority. Finally, the necessary connection between law and morality in a strong sense can still be justified by the claim of law to correctness, as per Alexy’s argument.

5

6

See Joseph Raz, ‘The Argument from Justice, or How Not to Reply to Legal Positivism’, in Law, Rights and Discourse: The Legal Philosophy of Robert Alexy, ed. George Pavlakos (Oxford: Hart Publishing 2007), 17–35, repr. in Joseph Raz, The Authority of Law: Essays on Law and Morality (first publ. 1979), 2nd edn. (Oxford: Oxford UP 2009), 313–35. Ibid., at 318: ‘So there are conceptually necessary connections between law and morality which no legal positivist has any reason to deny.’

Non-Positivism and Encountering a Weakened Necessity

307

Part One: The Traditions of Legal Positivism and of Non-Positivism The debates between the two leading figures in contemporary legal philosophy and related fields might well date back to the year 1999, when Robert Alexy attended a ‘Colloquium on the Work of Joseph Raz’ in Bielefeld but without any direct response from Raz. These essays were then published in 2003.7 Thereafter, Raz attended a workshop on Robert Alexy’s work in 2004 in Belfast. There he gave voice to his relative comprehensive attitude toward Alexy’s theory, while Alexy, for his part, found it necessary to give Raz a separate reply. Both articles were published in 2007.8 There would be yet another meeting in 2005 in Granada, specifically to take up the ‘Agreements and Disagreements’ between the two writers. As it turned out, this event took place without Raz, but he was represented by his erstwhile Schüler Andrei Marmor.9 The line of debates moved further, from Alexy’s side,10 but until now with no further response from Raz. The controversy about the relation of law and morality has acquired through these exchanges a ‘methodological dimension’, since Alexy and Raz disagree with one another not only on the nature of law, but also on the nature of legal philosophy, especially its relation to moral philosophy.11 These, however, are not to be understood as totally separate questions. Nor is it appropriate simply to move straightaway to the methodological dimension and claim that the conceptual relation is no longer of importance. Some commentators, however, are not inclined to view positively the value or necessity of the so-called debate between these two thinkers.12 Nevertheless, the matter is not insignificant either for Alexy or for Raz. In his new edition of The Authority of Law See Robert Alexy, ‘The Nature of Arguments about the Nature of Law’, in Rights, Cultural and the Law: Themes from the Legal and Political Philosophy of Joseph Raz, ed. Lukas H. Meyer et al. (Oxford: Oxford UP, 2003), 3–16. See also Raz, ‘Comments and Response’, ibid., at 253: ‘I […] confine myself to reflections on direct criticism of my work and related points. For this reason, for example, I will not comment on the rich and suggestive paper by Robert Alexy.’ 8 See Raz, ‘The Argument from Justice, or How Not to Reply to Legal Positivism’, in Law, Rights and Discourse: The Legal Philosophy of Robert Alexy (n. 5), 17–35; and Alexy, ‘An Answer to Joseph Raz’, ibid., at 37–55. 9 See Robert Alexy, ‘Agreements and Disagreements. Debate with Andrei Marmor’, Anales de la Cátedra Francisco Suárez, 39 (2005), 737–42; the immediate reply from Andrei Marmor and discussions of various participants, ibid., at 769–93. 10 See Robert Alexy, ‘On the Concept and the Nature of Law’, Ratio Juris, 21 (2008), 281–99. 11 See Joseph Raz, ‘Can There be a Theory of Law?’, in Blackwell Guide to the Philosophy of Law and Legal Theory, ed. Martin P. Golding (Oxford: Blackwell Publishing 2005), 324–42; Robert Alexy, ‘The Nature of Legal Philosophy’, Ratio Juris, 17 (2004), 156–67; and his ‘On Two Juxtapositions: Concept and Nature, Law and Philosophy. Some Comments on Joseph Raz’s “Can There Be a Theory of Law?”’, Ratio Juris, 23 (2010), 162–9. 12 Stanley L. Paulson represents an exception, see Stanley L. Paulson, ‘A “Justified Normativity” Thesis in Hans Kelsen’s Pure Theory of Law? Rejoinders to Alexy and Raz’, in Institutionalized Reason. The Jurisprudence of Robert Alexy, ed. Matthias Klatt (Oxford: Oxford UP 2012), 61–111; his ‘The Very Idea of Legal Positivism’, Archiv für Rechts- und Sozialphilosophie, Beiheft 136 (2013), 89–103; and his ‘An Issue in Robert Alexy’s Theory of the Nature of Law’, Archiv für Rechts- und Sozialphilosophie, Beiheft 144 (2015), 179–87. Discussions by other authors see e. g. Paula Gaido, ‘The Place for Morality in Law. An Exchange between Robert Alexy and Joseph Raz’, in Rechtsphilosophie und Grundrechtstheorie. Robert Alexys System, ed. Martin Borowski, Stanley L. Paulson and Jan-Reinard Sieckmann (Tübingen: Mohr Siebeck 2017), 133–44. 7

308

Wei Feng

(2009) after nearly thirty years, Raz revised nothing in the book but he added, as appendices, two articles, one of which is concerned with Kelsen’s special ‘Pure Theory of Law’,13 and the other – last but by no means least – the earlier reply to Alexy.14 Moreover, it should be emphasized that both appendices focus still on the problem of relation of ‘law and morality’, the very reference of the subtitle of his book.15 The importance of this controversy lies furthermore in the fact that it involves the most significant legal philosophers of the last century, namely Gustav Radbruch,16 Hans Kelsen,17 H. L. A. Hart,18 Lon L. Fuller, Ronald Dworkin,19 Jules L. Coleman,20 and John Finnis, each of whom belongs either to positivistic or to the non-positivistic tradition. I. Tradition of Legal Positivism Actually, Raz dislikes both labels, ‘legal positivism’ and ‘non-legal positivism’. On the one hand, he prefers only the ‘legal theory in the positivistic tradition’ rather than ‘legal positivism’, which, he contends, is totally indeterminate and varies with the various possibilities of writers or cultures: After all ‘positivism’ in legal theory means, and always did mean, different things to different people. What Radbruch, one of Alexy’s heroes, meant when he first saw himself as a legal positivist and then recanted was not the same as what ‘legal positivism’ means in Britain (and nowadays in the U. S. A. as well) among those who engage in philosophical reflection about the nature of law. Perhaps Alexy is simply addressing himself to a German audience, and refuting, or attempting to refute, legal theories of a kind identified in Germany as ‘legal positivism’. Perhaps, though his references to Hart show that he does not intend it that way.21

One the other hand, he does not rely with any certainty on ‘non-legal positivism’: I do not care whether my views are classified with legal positivism, as they commonly are, or not. I believe that the classification of legal theories as legal positivist or non-legal positivist, which underpins the structure of Alexy’s book, is unhelpful and liable to mislead. … These theories [of Lon Fuller and of John Finnis – emphasis added], among the central examples of natu-

13 14 15 16 17 18 19 20 21

See Raz, ‘The Purity of the Pure Theory’, in his The Authority of Law (n. 5), at 293–312. See Raz, ‘The Argument from Justice, or How Not to Reply to Legal Positivism’, ibid., at 313–35. Ibid. See Part One, I and II, especially footnotes 27, 28, 35, 46: Radbruch on legal positivism as well as on natural law theories; and Radbruch being considered as non-positivist. See also Part Three, III. 1, especially footnotes 72, 73: Radbruch’s anti-naturalistic stance. See footnote 98, and Part Three, III. 4: Kelsen being considered as normativist, or positivist without naturalism. See Part One I, especially footnote 24: H. L. A. Hart on legal positivism. See also Part Three, III. 2, especially footnote 98: Hart considering himself eventually as ‘soft-positivist’; while he still undergoes a naturalistic strategy. See Part One, II: Dworkin being considered as modern natural law theorist and/or anti-positivist. See Part Three, III. 2: Coleman on the contingent connection between law and morality. See Raz, ‘The Argument from Justice, or How Not to Reply to Legal Positivism’ (n. 5), at 314.

Non-Positivism and Encountering a Weakened Necessity

309

ral law theories in recent times, at the very least show the possibility of both meeting Alexy’s test for being legal positivist theories, and being at the center of the natural law tradition.22

Still, he grants the ‘common core of the positivist tradition’, which is ‘the separation thesis’ formulated by his erstwhile Schüler, Andrei Marmor, as follows: [But] possibly there is a fairly important thesis which is common to all the theories within the tradition of legal positivism. If so, then it is likely to be ‘that determining what the law is does not necessarily, or conceptually, depend on moral or other evaluative considerations about what the law ought to be in the relevant circumstances’. Andrei Marmor, whose formulation this is, calls it ‘the separation thesis’, and as it is much more successful in getting at the common core of the positivist tradition, when referring to the separation thesis without qualification it is this I will have in mind. I believe it to be correct.23

One can easily ask, however, whether this is the one and only adequate thesis of the legal positivistic tradition. Raz’s teacher, H. L. A. Hart, has surely distinguished between the genuine theses of legal positivism and those theses mistakenly attributed to positivism. Legal positivism, according to Hart’s understanding, consists at least of contentions (2) and (3): […] (2) the contention that there is no necessary connection between law and morals or law as it is and ought to be. (3) the contention that the analysis (or study of the meaning) of legal concepts (a) worth pursuing and (b) to be distinguished from historical inquiries into the causes or origins of laws, from sociological inquiries into the relation of law and other social phenomena, and from the criticism or appraisal of law whether in terms of morals, social aims, ‘functions,’ or otherwise.24

22 Ibid., at 317. 23 Ibid., at 319. See also Andrei Marmor, Positive Law and Objective Law (Oxford: Clarendon Press 2001), 71. 24 H. L. A. Hart, ‘Positivism and the Separation between Law and Morals’, Harvard Law Review, 71 (1958), 601–2, footnote 25 (emphasis added). With slight revision, also see H. L. A. Hart, The Concept of Law (first publ. 1961), 2nd edn. (Oxford: Oxford UP 1994), 302, notes for page 185: ‘Legal Positivism’: ‘[…] (3) that the analysis or study of meanings of legal concepts is an important study to be distinguished from (though in no way hostile to – emphasis added) historical inquiries, sociological inquiries, and the critical appraisal of law in terms of morals, social aims, functions, & c.’ Finally, in his Postscripts, Hart is willing to restate this position with somehow new expressions, i. e. his understanding of legal theory as ‘a descriptive enterprise’: ‘My aim in this book was to provide a theory of what law is which is both general and descriptive. … My account is descriptive in that it is morally neutral and has no justificatory aims: it does not seek to justify or commend on moral or other grounds the forms and structures which appear in my general account of law.’ See Hart, The Concept of Law, ibid., at 239–41 (emphasis original). Besides, Hart abandons eventually other theses once being assumed as ‘legal positivism’, including the command theory of law, the theory of reduction of legal rights and powers, the legal formalism as well as the ethical non-cognitivism. See Hart, ‘Positivism and the Separation between Law and Morals’, ibid., at 602–6, 608–10, 624–6.

310

Wei Feng

In this context, Hart also quotes his intellectual ancestor, John Austin: The existence of law is one thing; its merit or demerit is another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry. A law, which actually exists, is a law, though we happen to dislike it, or though it vary from the text, by which we regulate our approbation and disapprobation.25

Most notably, Hart writes in The Concept of Law as follows: Here we shall take Legal Positivism to mean the simple contention that it is in no sense a necessary truth that laws reproduce or satisfy certain demands of morality, though in fact they have often done so.26

By contrast with the Anglo-American counterpart, however, the German legal philosopher Gustav Radbruch, in his post-War period, sets out his relatively clear criticisms directed to legal positivism as follows: Positivism, with its principle that ‘a law is a law’ (Gesetz ist Gesetz), has in fact rendered the German legal profession defenceless against statutes (Gesetze) that are arbitrary and criminal. Positivism is, moreover, in and of itself wholly incapable of establishing the validity of statutes. It claims to have proved the validity of a statute simply by showing that the statute had sufficient power behind it to prevail. But while power may indeed serve as a basis for the ‘must’ of compulsion, it never serves as a basis for the ‘ought’ of obligation or for legal validity. Obligation and legal validity must be based, rather, on a value inherent in the statute.27

What is mainly of concern here is, in the first place, finding the core formulation(s) of legal positivism – but not yet, at this initial stage, to criticize them. Radbruch’s formulations as well as his criticisms, however, are often deemed to be merely rejoinders to so-called ‘statutory positivism’ (Gesetzespositivismus), familiar from German publica-

25 See John Austin, The Province of Jurisprudence Determined, (first publ. 1832), ed. Wilfrid E. Rumble (Cambridge: Cambridge UP 1995), 157. See also Hart, ‘Positivism and the Separation between Law and Morals’ (n. 24), at 596; and his The Concept of Law (n. 24), at 207. 26 Hart, The Concept of Law (n. 24), at 185–6 (emphasis added). 27 Gustav Radbruch, ‘Gesetzliches Unrecht und Übergesetzliches Recht’, Süddeutsche Juristen-Zeitung 1 (1946), 107; repr. in Gustav Radbruch, Gesamtausgabe (Collected Works), ed. Arthur Kaufmann, vol. 3: Rechtsphilosophie III, ed. Winfried Hassemer (Heidelberg: C. F. Müller, 1990), 88; and its translation in English, see Gustav Radbruch, ‘Statutory Lawlessness and Supra-Statutory Law (1946)’, trans. Bonnie Litschewski Paulson and Stanley L. Paulson, Oxford Journal of Legal Studies 26 (2006), 6 (original texts and emphasis added). In another post-War article, Radbruch also writes that ‘[a] law (Gesetz) is valid because it is a law (Gesetz), and it is a law if, in the general run of cases, it has the power to prevail. This view of a law (Gesetz) and of its validity (we call it the positivistic theory) has rendered jurists and the people alike defenceless against arbitrary, cruel, or criminal laws, however extreme they might be. In the end, the positivistic theory equates law (Recht) with power; there is law (Recht) only where there is power.’ See Gustav Radbruch, ‘Fünf Minuten Rechtsphilosophie’, Rhein-Neckar-Zeitung (Heidelberg, 12 September 1945); repr. in Radbruch, Gesamtausgabe, vol. 3, ibid., at 78; and its translation in English, see Gustav Radbruch, ‘Five Minutes of Legal Philosophy (1945)’, trans. Bonnie Litschewski Paulson and Stanley L. Paulson, Oxford Journal of Legal Studies 26 (2006), 13 (original texts and emphasis added).

Non-Positivism and Encountering a Weakened Necessity

311

tions.28 This species of positivism identifies law with statutes or claims that the legal system consists solely of statutes. It is criticized by Raz in these terms.29 Nevertheless, despite this verbal overlapping of statute and law (Gesetz und Recht) to one degree or another, the positivists go on to claim, according to Radbruch’s understanding, an essential separation between the power ‘behind the statute’ and the value ‘inherent in the statute’, so that only the former would be decisive for the validity of law.30 To this extent, Radbruch’s characterization of legal positivism may contain some kind of separation between power and value of law. Contemporary German jurists such as Ralf Dreier then go on to formulate the central or general thesis of legal positivism as follows: ‘it is easy to draw the positivistic consequence, that there is no necessary relation between law and morality, and the legal obligation and moral obligation are strictly to be separated.’31 Dreier terms it the ‘separation thesis’.32 As he puts it, the ‘law’ (Recht) here is always formulated in the sense of the positive law (das positive Recht), while ‘morality’ means what was traditionally called ‘natural law’ or, in the early modern period, ‘rational law’ and/or ‘justice’ (Gerechtigkeit).33 Norbert Hoerster, as a rare defender of legal positivism in Germany, agrees with Dreier’s formulation of the ‘legal positivistic separation thesis’, and he adds, further, ‘that the concept of law as well as the derived concepts of legal validity, legal obligation and legal binding force are determined as strictly morally neutral (and not: morally affected).’34 II. Tradition of Legal Non-Positivism When we shift from the tradition of legal positivism to that of legal non-positivism, it is very natural to have a look at the so-called ‘natural law theories’.35 Throughout the 28 See e. g. BVerfGE 3 (1954), 225, 232: ‘value-free statutory positivism’; BVerfGE 34 (1973), 269, 286–7: ‘[A] narrow statutory positivism opinion is being rejected. The wording supports the sense that statute and law do in fact generally coincide, but not necessarily and always. The law is not identical with the totality of written statutes.’ The citations of above decisions of the German Federal Constitutional Court, see Alexy, The Argument from Injustice (n. 1), at 6, 8. An enlightening discussion about ‘Gesetzespositivismus’ in German writings and especially concerning the so-called ‘Radbruch problematic’, see Stanley L. Paulson, ‘Statutory Positivism’, Legisprudence 1 (2007), 1–29. 29 See Raz, ‘The Argument from Justice, or How Not to Reply to Legal Positivism’ (n. 5), at 313, footnote 2. 30 See Radbruch, Gesamtausgabe, vol. 3 (n. 27), at 88; and its translation in English, see Radbruch, ‘Statutory Lawlessness and Supra-Statutory Law (1946)’ (n. 27), at 6. 31 Ralf Dreier, ‘Recht und Moral’ (n. 2), at 181. 32 Ibid., at 186. 33 Ibid., at 184 (original text and emphasis added). 34 Hoerster, ‘Zur Verteidigung des Rechtspositivismus’ (n. 2), at 2481. 35 Gustav Radbruch formulates in his earlier period the doctrines of natural law theory, and eventually abandoned it. As he put it, ‘in all its forms [natural law] is characterized by four essential properties, though these are differently emphasized at different times: It delivers content-determined legal value judgments. These value judgments are according to their sources – nature, revelation, reason – universal valid and unchangeable. They are available for knowledge. They gain priority to, when acknowledged, the confronted enacted laws: natural law derogates positive law.’ See Gustav Radbruch, Rechtsphosophie (first publ. as

312

Wei Feng

history of ideas, natural law was and is deemed even today to be these theories being attacked by legal positivists. As an instructive example, Hart considers that his predecessors, Bentham and Austin, ‘condemned natural-law thinkers precisely because they had blurred this apparently simple but vital distinction [between law as it is and law as it ought to be – emphasis added].’36 Many modern writers go so far as to formulate the core thesis of natural law theories in a way opposite to legal positivism, namely as the ‘necessary connection between law and morality’. Or they offer related theses,37 without examining the profound ideas behind them, such as the ideas of ‘laws of God’, ‘laws of nature’, ‘natural law’, ‘rational law’, ‘higher law’, and the like. This is not the place, however, to scrutinize the greater project of the classic and/or modern traditions of natural law. Nevertheless, we can still discuss the natural law theories and other anti- or non-positivistic positions insofar as they belong to one and the same ‘tradition’. A very good example is Ronald Dworkin’s stance. As one of the most prominent critics of legal positivism, Dworkin is sometimes considered as a ‘modern natural law theorist’,38 while, at other times, he is labeled as an ‘anti-positivist’.39 What is more interesting is, however, that Dworkin by himself refers to neither of them. A terminological problem turns up as soon as we begin to think about how the expression ‘non-positivism’ came to be used in the first place. Chronologically, one should say, Joseph Raz for the first time in Chapter 3 of his celebrated book The Authority of Law first published in 1979, intentionally used the phrase of ‘non-positivist’ for the opponents of the legal positivists.40 This usage, however, did not appear again in English until Robert Alexy published his article ‘On Necessary Relations between Law and Morality’ in 1989; Alexy, however, does not appear to be following Raz.41 By contrast, the parallel

36 37

38 39 40 41

Grundzüge der Rechtsphilosophie, 1914), 3rd edn. (Leibzig: Verlag von Quelle & Meyer 1932), 14; reprinted in Gustav Radbruch, Gesamtausgabe (Collected Works), Vol. 2: Rechtsphilosophie II, ed. Arthur Kaufmann (Heidelberg: C. F. Müller 1993), 240; and its translation in English, see The Legal Philosophies of Lask, Radbruch, and Dabin, trans. Kurt Wilk (Cambridge, Massachusetts: Harvard UP 1950), 59–60 (For the reader’s convenience, I have included citations throughout to the English edition of Rechtsphilosophie; the quotations themselves, however, are newly translated by myself). Hart, ‘Positivism and the Separation between Law and Morals’ (n. 24), at 594. Brian Bix e. g. formulates natural law theory as ‘a mode of thinking systematically about the connections between the cosmic order, morality, and law. … Some of the modern legal theorists who identify themselves with the natural law tradition seem to have objectives and approaches distinctly different from those classically associated with natural law. … In fact, much of modern natural law theory has developed in reaction to legal positivism, an alternative approach to theorizing about law’. See Brian Bix, ‘Natural Law: The Modern Tradition’, in The Oxford Handbook of Jurisprudence and Philosophy of Law, ed. Jules Coleman and Scott Shapiro (Oxford: Oxford UP 2002), 61, 63 (emphasis added). Finally, Bix concludes that ‘ “natural law” has, within the jurisprudential community, come to mean any theory in which moral evaluation is considered central or necessary to either determining the content of legal rules, evaluating the legal status of particular rules or rule systems, or the analysis of the natural law.’ See Bix, ibid., at 98–9 (emphasis original). Ibid., at 82–5. See Andrei Marmor, ‘Exclusive Legal Positivism’, in The Oxford Handbook of Jurisprudence and Philosophy of Law, ibid., at 104; Kenneth Einar Himma, ‘Inclusive Legal Positivism’, ibid., at 141; Jeremy Waldron, ‘Legal and Political Philosophy’, ibid., at 356. See Raz, ‘Legal Positivism and the Sources of Law’, in his The Authority of Law (n. 5), at 37, 39. See Alexy, ‘On Necessary Relations Between Law and Morality’ (n. 1), at 167.

Non-Positivism and Encountering a Weakened Necessity

313

phrase in German ‘Nichtpositivismus’ (non-positivism) was used by Alexy’s teacher, Ralf Dreier, from 1987 on,42 and it was then adopted by Alexy himself from 1990 on.43 In the same series of publications with Alexy, Norbert Hoerster as well as Hans-Joachim Koch also formulated another German phase, ‘Antipositivismus’ (anti-positivism).44 After the English translation of Alexy’s book The Concept and Validity of Law published in 2002, ‘non-positivism’ finally became widespread, both in the German- and English-speaking worlds and far beyond.45 Notably, Radbruch is frequently considered, nowadays, as a non-positivist.46 Robert Alexy then goes on to define the position of legal positivism and non-positivism as follows: All positivistic theories defend the separation thesis, which says that the concept of law is to be defined such that no moral elements are included. The separation thesis presupposes that there is no conceptually necessary connection between law and morality, between what the law commands and what justice requires, or between the law as it is and the law as it ought to be. … [A]ll non-positivistic theories defend the connection thesis, which says that the concept of law is to be defined such that moral elements are included.47

42 See Ralf Dreier, ‘Neues Naturrecht oder Rechtspositivismus? In Erwiderung auf Werner Krawietz’ (n. 2), 368–9, and especially 377, footnote 40: ‘Besides there is another way, through which the difference between positivistic and non-positivistic (nichtpositivistisch) positions in the legal science is decided, that is, whether a necessary relation between law and morality is denied or admitted.’ 43 See Alexy, ‘Zur Kritik des Rechtspositivismus’ (n. 1), at 9: ‘nicht-positivistische Theorien’ (non-positivistic theories). 44 See Norbert Hoerster, ‘Zur Verteidigung der rechtspositivistischen Trennungsthese’, Archiv für Rechtsund Sozialphilosophie, Beiheft 37 (1990), 29, 31; Hans-Joachim Koch, ‘Zur Methodenlehre des Rechtspositivismus’, ibid., at 160–1. 45 See Alexy, The Argument from Injustice (n. 1), at 4. Other Writers, who also use phrase as ‘Nichtpositivismus’ or ‘non-positivism’, are among others only to be mentioned here: Ulfrid Neumann, ‘Positivistische Rechtsquellenlehre und naturrechtliche Methode. Zum Alltagsnaturrecht in der juristischen Argumentation’, Archiv für Rechts- und Sozialphilosophie, Beiheft 37 (1990), 141–51; Raz, ‘The Argument from Justice, or How Not to Reply to Legal Positivism’, in Law, Rights and Discourse: The Legal Philosophy of Robert Alexy, ed. George Pavlakos (n. 5), 17–35; Stefano Bertea, ‘How Non-Positivism Can Accommodate Legal Certainty’, ibid., at 69–82; Stephen Perry, ‘Beyond the Distinction between Positivism and Non-Positivism’, Ratio Juris, 22 (2009), 311–25; Eugenio Bulygin, ‘Alexy Between Positivism and Non-positivism’, in Neutrality and Theory of Law, ed. Jordi Ferrer Beltrán et al. (Dordrecht: Springer 2013), 49–59; Paulson, ‘An Issue in Robert Alexy’s Theory of the Nature of Law’ (n. 12), 179–87; Volker Haas, ‘Der nichtpositivistische Rechtsbegriff von Robert Alexy’, Rechtsphilosophie 3 (2017), 311–31; Júlio Aguiar de Oliveira, ‘Beyond Positivism and Non-Positivism’, in Rechtsphilosophie und Grundrechtstheorie. Robert Alexys System (n. 12), 145–60. 46 See Robert Alexy, ‘A Defence of Radbruch’s Formula’, in Recrafting the Rule of Law: The Limits of Legal Order, ed. David Dyzenhaus, (Oxford/Portland: Oregon 1999), 15–39; also see Paulson, ‘Statutory Positivism’ (n. 28), at 5, 20, 27; his ‘Ein ewiger Mythos: Gustav Radbruch als Rechtspositivist’, Juristenzeitung, 63 (2008), 105–15; and his ‘Zur Kontinuität der nichtpositivistischen Rechtsphilosophie Gustav Radbruchs’, in Die Natur des Rechts bei Gustav Radbruch, ed. Martin Borowski and Stanley L. Paulson (Tübingen: Mohr Siebeck 2015), 151–182; Martin Borowski, ‘Begriff und Geltung des Rechts bei Gustav Radbruch – Gegen die These seiner naturrechtlichen Bekehrung’, ibid., at 230–65. 47 Alexy, The Argument from Injustice (n. 1), at 3–4 (emphasis original).

314

Wei Feng

What I would like to examine, below, is therefore the controversy between this non-positivistic connection thesis along with the various positivistic theses. One will quickly discover that the phrase ‘necessity’ occurs repeatedly in all the various theses from both camps, non-positivism and positivism. Thus, the basic positions cannot be determined without close scrutiny of the notion of necessity. Part Two: The Relation of Law and Morality: Three Basic Positions Supposing that the notion of necessity, taken here as a point of departure, is only understood on the strictest reading, namely analytical necessity, we can then distinguish between four relations, namely: necessary connection, necessarily no connection, and no necessary connection, and not necessarily no connection between law and morality. Furthermore, we can characterize these basic positions on the concept of law with the help of modal logics. The position of legal non-positivism says that law and morality are necessarily connected, which can be symbolized as ‘□I’. According to modal logic, it is not difficult to determine that this legal non-positivistic position implies, furthermore, that the connection between law and morality is also possible, which can be symbolized as ‘¬□¬I’.48 The position of exclusive legal positivism says that law and morality are necessarily separated (‘□¬I’). It is, once again, not difficult to determine that this exclusive positivistic position implies, furthermore, that the separation between law and morality is also possible (‘¬□I’).49 Now the above four statements together – necessary connection, necessary separation, possible connection, and possible separation between law and morality – can be construed in terms of the so-called ‘modal logical square’. In the frame of this ‘square’, we can prove that the logical relation of the necessary connection (‘□I’) and necessary separation (‘□¬I’) is not contradictory; they stand to each other merely as contraries, to wit: They cannot be both true, although they can be both false at one and the same time; in other words, at least one of them is to be proven as false.50 48 It is equivalent to use ‘◇I’, but for convenience here I choose to only use the modal operator of necessity ‘□’ combining with the negation operator ‘¬’. 49 Or equivalently as ‘◇¬I’. 50 The contrary (as well as sub-contrary) relations in the frame of various kinds of ‘logical squares’ would better be proven, firstly in analogous to the ‘categorical statements’ with quantifiers, and secondly with the help of the Venn’s diagrams:

Non-Positivism and Encountering a Weakened Necessity

315

On the basis of these four statements, furthermore, we talk about the last two statements in terms of a conjunction, which can be symbolized as ‘¬□¬I ^ ¬□I’. That is to say, law and morality are not necessarily separate (or possible connected) as well as not necessarily connected (or possible separate). Here I suggest, following Robert Alexy,51 that this conjunction of last two statements can be construed as an independent, frequently discussed position of ‘inclusive legal positivism’, which says that the connection of law and morality is possible but not necessary, i. e. simply contingent. What is more significant, we can prove that the logical relations of two of the three positions – necessary connection, necessary separation (or impossible connection), and contingent connection – are not contradictory; again, they stand to each other merely as contraries.52

(i) Supposing they are both true,

It is presupposed that there are F, which differs from Quine’s opinion on circumstances ‘where there are no F’, see W. V. O. Quine, Methods of Logic (first publ. 1950), revised edn. (New York: Holt, Rinehart and Wilson 1959), 69–72. Then ‘all F are G’ and ‘all F are not G’ cannot be both true. (ii) Supposing they are both false,

Then ‘all F are G’ and ‘all F are not G’ can be both false. Therefore, they are contrary to each other. Analogously, presupposing that there are laws, we can say that the assertion ‘necessarily law incorporates morality’ and the assertion ‘necessarily law incorporates no morality’ cannot be both true, although they can be both false; in other words, they are in contrary relation to each other. Furthermore, presupposing that there are laws, we can prove that the assertion ‘it’s not necessary that law does not incorporate morality’ and the assertion ‘it’s not necessary that law incorporates morality’ can be both true, although they cannot be both false; in other words, they are in sub-contrary relation to each other. 51 See Alexy, ‘On the Concept and the Nature of Law’ (n. 10), at 286, footnote 7; and his ‘Law, Morality, and the Existence of Human Rights’, Ratio Juris, 25 (2012), 4. 52 Since we have already proved that the legal non-positivism and the exclusive legal positivism are contrary to each other (n. 50). Let us prove further the logical relation of the inclusive legal positivism (‘¬□¬I ^ ¬□I’) and the legal non-positivism (‘□I’) as follows: (i) Supposing they are both true, we can then prove the conjunction of them as (¬□¬I ^ ¬□I) ^ (□I) ↔ ¬□¬I ^ ¬□I ^ □I ↔ ¬□¬I ^ (¬□I ^ □I), which is definitely false. This result means that they cannot be both true.

316

Wei Feng

Therefore, we can illustrate their relations as follows:

¬□¬I ˄ ¬□I 53 One may well doubt whether the position of inclusive legal positivism can be characterized as a disjunction (‘¬□¬I ˅ ¬□I’), rather than as the conjunction suggested above. Law and morality are, so to speak, either not necessarily separate (or possible connected) or not necessarily connected (or possible separate). This needs to be considered in detail. In the frame of the ‘modal logical square’ we can determine once again that the possible connection (‘¬□¬I’) and the possible separation (‘¬□I’) are in a sub-contrary relation to each other: They can be both true, while cannot be both false; in other words, they stand in a disjunctive relation to each other. Therefore, their disjunction

(ii) Supposing further they are both false, we can then prove the conjunction of their respective negations as ¬(¬□¬I ˄ ¬□I) ˄ ¬(□I) ↔ (□¬I ˅ □I) ˄ ¬□I ↔ (□¬I ˄ ¬□I) ˅ (□I ˄ ¬□I) ˅ (□¬I ˄ □I ˄ ¬□I), which is not definitely false. This result means they can be both false. Therefore, the inclusive legal positivism and the legal non-positivism are contrary to each other. The logical relation of the inclusive legal positivism (‘¬□¬I ˄ ¬□I’) and the exclusive legal positivism (‘□¬I’) can be proven in the analogous way as follows: (i) Supposing they are both true, we can then prove the conjunction of them as (¬□¬I ˄ ¬□I) ˄ (□¬I) ↔ ¬□¬I ˄ ¬□I ˄ □¬I ↔ (¬□¬I ˄ □¬I) ˄ ¬□I, which is definitely false. This result means that they cannot be both true. (ii) Supposing further they are both false, we can then prove the conjunction of their respective negations as ¬(¬□¬I ˄ ¬□I) ˄ ¬(□¬I) ↔ (□¬I ˅ □I) ˄ ¬□¬I ↔ (□¬I ˄ ¬□¬I) ˅ (□I ˄ ¬□¬I) ˅ (□¬I ˄ □I ˄ ¬□¬I), which is not definitely false. This result means they can be both false. Therefore, the inclusive and the exclusive legal positivism are contrary to each other. 53 One may like to substitute the variable ‘I’ with ‘¬I’, then the illustration would change into the following:

Nevertheless, no essential difference emerges. There are still the same three positions, since ‘□(¬I)’ is equivalent to ‘□¬I’ (exclusive legal positivism), ‘□¬(¬I)’ equivalent to ‘□I’ (legal non-positivism), and ‘¬□¬(¬I) ˄ ¬□(¬I)’ equivalent to ‘¬□I ˄ ¬□¬I’ (inclusive legal positivism). More importantly, they are still in contrary relations to each other.

Non-Positivism and Encountering a Weakened Necessity

317

(‘¬□¬I ˅ ¬□I’) is a tautology, and it is always to be proven as true. In this situation, we could have a three-fold set of considerations. (i) Whether is it possible to assert the possible connection thesis only (‘¬□¬I’), but not to acknowledge the possible separation thesis at the same time (‘¬(¬□I)’)? The latter means, however, eventually accepting the necessary connection thesis (‘□I’), i. e. the position of legal non-positivism, which would even imply the former (‘¬□¬I’), as we have said above. (ii ) Whether, turning things around, is it possible to assert solely the possible separation (‘¬□I’), but not to acknowledge the possible connection at the same time (‘¬(¬□¬I)’)? The latter means, however, eventually accepting the position of necessary separation (‘□¬I’), i. e. the position of exclusive legal positivism, which would even imply the former (‘¬□I’), as we have stated above. (iii) The last possibility is to assert both of the possible connection thesis (‘¬□¬I’) and the possible separation thesis (‘¬□I’). This is, however, nothing other than their conjunction (‘¬□¬I ˄ ¬□I’), i. e. the position of inclusive legal positivism as we have suggested above. After all these considerations, we can conclude here: (i) There are in the end three and only three logically possible positions concerning the relation of law and morality, i. e. legal non-positivism, which insists upon the ‘necessary connection thesis’, the exclusive legal positivism, which claims the ‘necessary separation thesis’, and inclusive legal positivism, which relies on the ‘contingent connection thesis’. (ii) The three positions altogether exhaust the logically possible relations between law and morality, that is to say, any other suggestion would be reducible to one or another of these three positions. (iii) The logical relations between every pair of these three positions stands in the relation of contraries, that is, each pair of the positions, namely legal non-positivism, exclusive legal positivism, and inclusive legal positivism cannot be both true, although they can be both false. Therefore, one can arrive at only a single position consistently, and in order to justify one’s position, the task is presented of defeating the claims of both of other two positions. Therefore, the reply from Raz can only speak to a single position. It cannot speak to two positions, that is to say two different forms of legal positivism. Where Alexy is concerned, it does not suffice for him to refute a single position; he must defeat both forms of legal positivism. There are many misleading ‘traps’ in the debate between Alexy and Raz. The opponents whom Alexy presupposes are for the most part the inclusive legal positivists, who insist that ‘there is no conceptually necessary connection between law and morality’.54 But this thesis is in fact rejected by Raz. Therefore, the inclusive legal positivism whom Alexy opposes is not the same as the exclusive legal positivism defended by Raz. In the end, even if Alexy’s non-positivism can survive the challenge presented by inclusive legal positivism, we are not yet in a position to take a judgment on the debate between Alexy and Raz’s exclusive legal positivism. 54 Alexy, The Argument from Injustice (n. 1), at 3, 21, 22.

318

Wei Feng

Part Three: The Weakened Necessity of Separation between Law and Morality I. Notions of Necessity The controversies between legal non-positivism and legal positivism, as well as the debates within the legal positivist tradition, do not allow simplification in terms simply of the logical possibilities at hand. The modality of necessity plays a significant role in the discussion about the relation of law and morality. It is not only, at least not always, to be considered simply as a modality, but as a more profound notion in relation with other fundamental categories such as universality, truth, and causality. To this extent, I would like to shed some light on a few more sophisticated disputes about the notion of ‘necessary’, i. e. a clarification comprising at least six variants as follows: (1) Necessity as pure coercion, or ‘coercive necessity’, which is opposite to the volition or motivation of the subjects or agents.55 (2) Necessity as relation of consequent to antecedent in the propositional logic, or ‘necessary conditions’. As rule of reference, it is necessary that if the antecedent is true, then the consequent is true. According to Immanuel Kant, however, this is only a ‘formal necessity’.56 (3) Necessity as predestination according to (the law of) God, ‘laws of nature’, etc., which essentially combines coercion and the form of lawfulness (law-likeness, ‘Gesetzlichkeit’).57 Hence, it is said that ‘all the realities are necessary’.58 (4) Necessity as the relation of means to end, or ‘teleological necessity’, in which the end would, once again, be ‘laws of nature’ or simply the practical purposes of some agent. (5) Necessity as causal truth according to natural scientific causal explanation, or ‘natural necessity’, ‘causal necessity’. It could be further classified into three groups: (i) The blind,59 causal-mechanical necessity as ‘predestination’, once again according to the ‘natural law’ or to the ‘rational law’. This is the theory of rationalism, be it skeptical (Descartes) or dogmatic (Spinoza, Wolf), both of which are rejected by Kant.60

55 See Aristoteles, Phys. IV, 8, 215 a 1 below; Eth. Eud. II, 8, 1224 b 12 below, quoted from Ursula Wolf, ‘Notwendigkeit I’, in Historisches Wörterbuch der Philosophie, Band 6, ed. Joachim Ritter et al. (Basel: Schwabe Verlag 1984), 948. 56 Immanuel Kant, Kritik der reinen Vernunft (Hamburg: Felix Meiner Verlag 1993), B 279; and its translation in English, see his Critque of Pure Reason, trans. Paul Guyer and Allen W. Wood (Cambridge: Cambridge UP 1998), 329. 57 See Heraklit, VS 22 A 5, 8; and Parmenides, VS 28 B 8, 30, quoted from Ursula Wolf, ‘Notwendigkeit I’ (n. 55), at 946–7. See also W. Schulz: Der begriffene Gott. Neue Rdsch. (1977) 546 below, quoted from Dieter Wandschneider, ‘Notwendigkeit III 6’, ibid., at 973. 58 B. Spinoza, Ethica 1, prop. 29. 35. Opera, hg. C. Gebhardt 2, 70. 77, quoted from Dieter Wandschneider, ibid., at 973. 59 See Kant, Kritik der reinen Vernunft (n. 56), at B 280; see also his Critque of Pure Reason (n. 56), at 329–30. 60 Ibid.

Non-Positivism and Encountering a Weakened Necessity

319

(ii) Necessity as customary conjunction between natural events known only by experience according to David Hume,61 or, as Kant reads it, ‘the illusion of necessity’ (Schein der Notwendigkeit).62 Kant names it as the ‘subjective necessity’ in relation to empirical universality.63 Hume is one of the pioneers in the English-speaking world who takes a standpoint of skeptical empiricism concerning the notion of ‘necessary connection’, and he insists that this notion of causality is only a customary, habitual association, which is based in the end on empirical knowledge. This understanding of the necessary connection introduced by Hume still prevails, one would say, in the English-speaking world. (iii) The objective necessity presupposing the concept of cause as an a priori concept according to Kant’s transcendental philosophy, or strict necessity in relation to strict universality.64 By contrast to the notion of blind necessity, Kant understands the causality of nature as ‘the connection in the sensible world of one state with a preceding state on which it follows according to a rule.’65 In continental Europe, the understanding of necessary connection is on the most part in Immanuel Kant’s sense. Perhaps there was and still is a deep controversy between Continental and English philosophies. However, this culture-oriented understanding is too simplified, and it cannot explain the general influence of natural science and the positivistic standpoint either in Continental Europe or in English-speaking world. According to Kant, the notion of necessity, joined with that of universality, is one of the characteristics of so-called ‘causality’. In order to refute the notion of ‘subjective necessity’ assuming to be held by Hume and others, Kant writes:

61 See David Hume, An Enquiry concerning Human Understanding (first publ. as Philosophical Essays concerning Human Understanding, London: Millar 1748), final edn. in David Hume, Essays and Treatises on Several Subjects, Vol. II (London: Cadell, Donaldson and Creech 1777): ‘This influence [of volition over the organs of the body], we may observe, is a fact, which, like all other natural events, can be known only by experience’ (E 7. 10, emphasis added); ‘[W]e only learn by experience the frequent Conjunction of objects, without being ever able to comprehend anything like Connection between them’ (E 7. 21, emphasis original); ‘But when one particular species of event has always, in all instances, been conjoined with another … [w]e then call the one object, Cause; the other, Effect’ (E 7. 28, emphasis original); ‘We suppose, that there is some connexion between them; some power in the one, by which it infallibly produces the other, and operates with the greatest certainty and strongest necessity.’ (E 7. 28, emphasis added) 62 Kant, Kritik der reinen Vernunft (n. 56), at B 20; see also his Critque of Pure Reason (n. 56), at 146: ‘appearance of necessity’. 63 See Kant, Kritik der reinen Vernunft (n. 56) at B 5, 127, 238, 788, 792; see also his Critque of Pure Reason (n. 56), at 138, 225, 307, 654, 656. Besides, see Immanuel Kant, Prolegomena zu einer jeden künftigen Metaphysik, die als Wissenschaft wird auftreten können (Hamburg: Felix Meiner Verlag 2001), IV 257, 277; see also his ‘Prolegomena to any future metaphysics that will be able to come forward as science (1783)’, trans. Gary Hatfield, in his Theoretical Philosophy after 1781, ed. Henry Allison et al. (Cambridge: Cambridge UP 2002), 54–5, 73–4. 64 See Kant, Kritik der reinen Vernunft (n. 56), at B 183, 184, A 189, B 238–248, 266; and his Critque of Pure Reason (n. 56), at 275–6, 304, 307–12, 321–2. See also his Prolegomena (n. 63), at 260, 310, 312; and his ‘Prolegomena’ (n. 63), at 57, 103–4, 105. 65 Kant, Kritik der reinen Vernunft (n. 56) at B 560; also his Critque of Pure Reason (n. 56), at 532.

320

Wei Feng

Experience never confers on its judgments true or strict, but only assumed and comparative universality, through induction. … There is no exception to this or that rule. … Necessity and strict universality are thus sure criteria of a priori knowledge, and are inseparable from one another.66 Indeed, the very concept of a cause so manifestly contains the concept of a necessity of connection with an effect and the strict universality of the rule.67

(6) Finally, there is necessity as analytical truth in intensional modal logic, according to possible worlds semantics, or ‘analytical necessity’.68 It is said that ‘something cannot be otherwise’ and that ‘something is always so and so’. In one of his criticisms against Raz, with a direct reply by Marmor, Alexy introduces a classification of necessity as used by various legal philosophers into at least six groups. Those especially remarkable notions are (i) the ‘natural necessity’ as mentioned by Hart, (ii) the empirical necessity and (iii) the logical necessity assumed to be used by Raz, as well as (iv) the ‘practical necessity’ e. g. in the context of the Radbruch’s Formula. Besides, Alexy also emphasizes (v) the universalistic, essentialistic ‘necessary properties’ of some objects such as law, or ‘nature’ of law; and (vi) ‘necessary connections directly related to the content’ of some objects such as law.69 These considerations are of course helpful when we engage in the concrete analysis of various positions of legal theorists, to which we shall turn below. II. Strategies to Understand the Natural Necessity: Supra-Naturalism, Naturalism, and Anti-Naturalism After scrutinizing the notions of necessity in their general philosophical background, it is clear that the concept of nature is actually implied in notions of necessity. One possible concept of nature is the ‘law of nature’ or ‘natural law’, and it could means either predestination or teleological understanding of nature, but both entail the supra-naturalistic notion of necessity. The other possible concept of nature is the natural necessity, and it could be understood by following either a naturalistic or an anti-naturalistic strategy. Naturalism in philosophy is too complicated to lend itself to characterization in terms of a single thesis. Nor is there a well-founded notion of naturalism in legal philosophy. Here it is not important whether the naturalistic understanding of necessity is or not 66 Kant, Kritik der reinen Vernunft (n. 56), at B 3–4; also his Critque of Pure Reason (n. 56), at 137–8 (emphasis original). 67 Kant, Kritik der reinen Vernunft (n. 56), at B 5; also his Critque of Pure Reason (n. 56), at 138. 68 See Rudolf Carnap, Meaning and Necessity. A Study in Semantics and Modal Logic (Chicago, Illinois: The University of Chicago Press 1947), 7–13; See also Saul A. Kripke, Naming and Necessity (first publ. Dordrecht, Netherlands and Boston: D. Reidel Publishing 1972), 2nd edn. (Oxford: Basil Blackwell 1980), 38–9. 69 See Alexy, ‘Agreements and Disagreements. Debate with Andrei Marmor’ (n. 9), 737–42, 786.

Non-Positivism and Encountering a Weakened Necessity

321

in accordance with one or another of the philosophers who openly declare themselves as naturalistic. When here a naturalistic reading, strategy or tendency is mentioned, it focuses only on the way of understanding and explanation of the very conception of (natural) necessity. It is also partly due to the central or unavoidable status of necessity both in natural sciences and in practical philosophy. As an example of a naturalistic explanation of the natural necessity, one can quote the following paragraphs: The motivation in early modern to the self-reference of subjectivity found already its mature expression in the experimental natural research of Galileis. The experiment to some extent has been the reenactment of the objective natural necessity through the subject, in which this ‘operationalization’ of nature can be appropriately categorized only with help of the mathematical functioning concepts and then justified Galileis’ belief that the book of nature were written in the mathematical letters. This mathematical conception of natural necessity, with the purpose of possible control of the nature, becomes the leading intention of the modern physics. … Descartes insists ontologically the conception of the continuous determination in the field of physical extensive beings; things, plants, animals, as well as human organism, according to Descartes, all function with blind, causal-mechanical necessity. At the meantime, a conception of nature has widespread, according to which although the nature is teleological constructed, it should not prescript the end by its self. This problem, after its radicalization by Kant, influenced the understanding of nature until present.70

Furthermore, it is emphasized that the naturalistic strategy or understanding of natural necessity is definitely a weakened notion (5.ii) of necessity. Nevertheless, there could also be supra- and/or anti-naturalistic understanding of natural necessity. III. The Practical Significance for the Concept of Law and Its Relation to Morality My concern, then, is over the practical significance of the notions of necessity for our discussion of the relations of necessary, not necessary, or necessarily no relation as these relations address the tie between law and morality. Although in the strictest notion (6) of analytical necessity, there are three and only three logically possible positions concerning the relation of law and morality, the notions of necessity would probably vary with different writers. In this context, the questions could be reformulated as follows: Which notion or notions of necessity ought a legal philosopher to bear in mind? Which strategy or strategies would the legal philosopher choose in order to uphold the position or positions concerning the relation of law and morality that he or she defends? In order to avoid the indeterminacy of formulations that are peculiar to individual writers and to make one’s notion of necessity as explicit as possible, I will analyze one’s attitude, at first 70 See H. Blumenberg, Säkularisierung und Selbstbehauptung (1974); E. Husserl, Die Krisis der europ. Wiss. und die transzendentale Phänomenol. § 9. Husserliana 6 (Den Haag 1962), 20–60; Cassirer, Das Erkenntnisproblem 1 (31922, ND 1974), 387–402; Descartes, Principia philos. 4, 188 f. AT 8/1, 315 below, quoted from Dieter Wandschneider, ‘Notwendigkeit III 6’ (n. 57), at 972–3 (emphasis added).

322

Wei Feng

glance (prima facie), as he or she commits oneself to one or another of the three basic positions mentioned above. 1. Necessary Connection between Law and Morality (natural law theorists, Radbruch, Alexy) All the non-positivists insist on a necessary connection of law and morality (‘□I’). This is true, as well, of the natural law theories. One may speculate that they were perhaps sharing a ‘naturalistic’ strategy with an eye to understanding the necessity of nature, and even going so far as to emphasize that the notion of necessity is (1) coercive, (2) predestinate, (4) teleological, and/or (5.i) blind to nature itself.71 But, of course, this is not what ‘naturalism’ means as it is understood currently. Rather, in the natural law tradition a supra-naturalistic strategy was adopted in order to understand nature, the requirement of which is so rigorous, but at the same time can hardly be justified. The legal non-positivists as such, sans these profound ideal backgrounds, hold undoubtedly to a strict notion of necessity. Firstly, the notion (6) of analytical necessity is attractive to them. To justify the analytical or conceptually necessary connection of law and morality, however, one needs always to rely only on analytical arguments without recourse to empirical or normative arguments. One of the most prominent legal philosophers among those who are not favorably disposed to empirical arguments or naturalistic strategies for the understanding of law is Gustav Radbruch. In his earlier period, he differentiates the value-relating constituted concept of law to the value-blind, natural concept of law as follows: The law is human product, and can like each human product only be understood from its idea. … The desk is a device to be seated, for those who sits on it. … A natural science of crime,

71 In his criticisms against ‘natural law’, Jeremy Bentham comments that ‘[t]he law of nature is a figurative expression, in which nature is represented as a being, and such and such a disposition is attributed to her, which is figuratively called a law. In this sense, all the general inclination of men, all those which appear to exist independently of human societies and from which must proceed the establishment of political and civil law are called laws of nature.’ See Jeremy Bentham, The Theory of Legislation, ed. C.K. Ogden (first publ. 1931), 2nd edn. (London: Routledge & Kegan Paul 1950), 82–3 (emphasis original). It seems that Bentham considers the natural law theory as a ‘naturalistic’ one. In the contrary, he admits only that ‘[w]hat is natural to man is sentiments of pleasure or pain, what are called inclinations. But to call these sentiments and these inclinations laws, is to introduce a false and dangerous idea. It is to set language in opposition to itself; for it is necessary to make laws precisely for the purpose of restraining these inclinations.’ See Bentham, ibid., at 83 (emphasis original). In another much more widespread paragraph against natural law theories, Bentham writes that ‘[a] great multitude of people are continually talking of the Law of Natural; and then they go on giving you their sentiments about what is right and what is wrong. … Instead of the phrase, Law of Nature, you have sometimes, Law of Reason, Right Reason, Natural Justice, Natural Equity, Good Order. … On most occasions, however, it will be better to say utility: utility is clearer, as referring more explicity to pain and pleasure.’ See Jeremy Bentham, An Introduction to the Principles of Morals and Legislation (Printed in the year 1780, and now first published. London: Printed for T. Payne, and Son 1789) 13, note b. 6–7 (emphasis original). These paragraphs show at least that natural law theories could not sincerely be naturalistic-oriented.

Non-Positivism and Encountering a Weakened Necessity

323

which the criminal anthropology quests to be, is only possible, if one would before that substitute the value-relating legal concept of crime with a natural concept of crime. It would be a miracle beyond all miracles, a not expectable pre-established harmony of two fundamentally different perspectives if a value-relating constituted concept, such as that of law or that of crime, could be made to coincide with a natural concept acquired from a value-blind perspective.72

Following neo-Kantian doctrine, Radbruch then rejects ‘the positivism, which derives from something’s being existent […] to something ought to be.’73 In this sense, it is said that Radbruch, already in his earlier period, criticized ‘positivism qua naturalism’.74 Nevertheless, Robert Alexy is probably the first writer who tries intentionally to introduce analytical arguments in support of the conceptually necessary connection of law and morality, i. e. the argument from law’s claim to substantial correctness.75 Originally, this argument is adopted from the linguistic philosophy, which says that the content of one speech art, i. e. an utterance as behavior, must be in accordance with its claim, explicitly or implicitly, to correctness of its content.76 If the agent does not rise this claim to correctness, or the agent even explicitly claimed his or her behavior to be wrong, then he or she would make utterance with ‘conceptual defect’ in a broad sense, i. e. ‘a performative contradiction’.77 ‘Performative utterances’, which is first used by John L. Austin, is analogous to the phase ‘operative part of a legal act’ used by lawyers.78 Reversely, Alexy incorporates this kind of claim of speech acts into the conceptual elements of the law, 72 Radbruch, Gesamtausgabe, Vol. 2 (n. 35), at 227; and its translation in English, see The Legal Philosophies of Lask, Radbruch, and Dabin (n. 35), at 51–2 (emphasis added). Radbruch maintains the distinction between nature, value, culture and religion as follows: ‘Nature and value, and over the cleavage between them there are two connections: the never accomplishable bridge of culture, and the in every moment to the goal flapping wings of religion.’ See Radbruch, Gesamtausgabe, Vol. 2 (n. 35), at 226; and its translation in English, see The Legal Philosophies of Lask, Radbruch, and Dabin (n. 35), at 51. 73 See Radbruch, Gesamtausgabe, Vol. 2 (n. 35), at 230; and its translation in English, see The Legal Philosophies of Lask, Radbruch, and Dabin (n. 35), at 53: ‘The kantian philosophy had taught us about the impossibility to derive from what is the case to what is valuable, what is right, what ought to be. Anything is never soon right just because it is or because it was, or even because it will be the case. This results to rejection to the positivism, which derives from something being existent, the historism, which from something been existed, and the evolutionism, which from something will be existent, to something ought to be.’ (emphasis original) 74 See Paulson, ‘Statutory Positivism’ (n. 28), at 12–7. By ‘naturalism’ Paulson means ‘the view that everything is a part of nature, in other words, a part of the world of space and time’, and according to his research, ‘Radbruch gives expression to his broad-based anti-naturalist stance’, ibid., at 12–3. See also his ‘Zur Kontinuität der nichtpositivistischen Rechtsphilosophie Gustav Radbruchs’ (n. 46), at 158–64. 75 See Alexy, The Argument from Injustice (n. 1), at 4, 35–9. 76 Ibid., at 35–6. 77 Ibid., at 38, footnote 66. The analysis of ‘performative contradiction’, see also John L. Austin, How to Do Things With Words (Oxford: Oxford UP 1962), 51: ‘Just as the purpose of assertion is defeated by an internal contradiction (in which we assimilate and contrast at once and so stultify the whole procedure), the purpose of a contract is defeated if we say “I promise and I ought not.”’ 78 See John L. Austin, ‘Performative Utterances’, in his Philosophical Papers (first publ. 1961), 2nd end. (Oxford: Oxford UP 1970), 235–6. Nevertheless, the combination of and comparison between John L. Austin’s ‘performative utterance’ and Jürgen Habermas’ ‘claim to correctness’, see Robert Alexy, A Theory of Legal Argumentation, trans. Ruth Adler and Neil MacCormick (Oxford: Oxford UP 1989), 107–11.

324

Wei Feng

so that for the lawgiver or the law-making process on the one hand, it implies a claim to justice;79 and for the judges or the law-applying process on the other hand, it implies a claim to justification.80 Therefore, this argument of correctness is analytically necessary in the strict sense of performative contradiction, which is also admitted by Raz as ‘a conceptual truth’.81 Since, however, the claim to substantial correctness is just a claim, not correctness itself, further steps are required to ensure that this claim to correctness can be sufficiently justified.82 It is in this context that Alexy introduces two further arguments, i. e. the argument from injustice, which is a rational reconstruction of the famous ‘Radbruch Formula’,83 as well as the argument from principles, which is adopted and adapted from Josef Esser, Ronald Dworkin, etc.84 It is thought that through the argument from correctness, combined with these two additional arguments, that moral elements can be shown to be necessarily incorporated into the law.85 The problem, however, is that the latter two arguments are not analytical; rather, they are normative arguments. To this extent, a purely analytical necessary connection of law and morality, in the strictest logical sense, still awaits fully adequate analytical arguments. Still, the landscape of legal non-positivism has been changed as a result of the above three arguments introduced by Alexy. One is analytical, and the other two are normative, but they are not empirical. In this sense, we can say Alexy follows intentionally an anti-naturalistic strategy in order to understand the notion of necessity. First, Alexy draws a conceptual framework which extends from extreme legal positivism to the most extreme non-positivistic position.86 But this is not simply a dichotomy of legal positivism and natural law theories, the latter being committed to the notion (5.i) of blind necessity. In other words, the non-positivists do not always have to choose the position of natural law theories, following their supra-naturalistic strategy. Second, law’s claim to substantial correctness is, according to Alexy, not reducible to a rudimentary claim of ‘appropriateness’, just opposite to Raz’s reading;87 it is irreducible in turn to one of the two positivist elements, namely authoritative issuance or social efficacy. Third, although the law analytically necessarily rises the claim to correctness, it only possibly fulfills this

79 80 81 82 83 84 85 86 87

See Alexy, The Argument from Injustice (n. 1), at 36–8. Ibid., at 38–9. See Raz, ‘The Argument from Justice, or How Not to Reply to Legal Positivism’ (n. 5), at 326. See Alexy, The Argument from Injustice (n. 1), at 40. Ibid., at 40–68. Ibid., at 68–81. Ibid., at 43–4, 75–81. Ibid., at 26–7. See Raz, ‘The Argument from Justice, or How Not to Reply to Legal Positivism’ (n. 5), at 326–7. The instant reply from Alexy, see Alexy, ‘An Answer to Joseph Raz’, in Law, Rights and Discourse: The Legal Philosophy of Robert Alexy (n. 5), 49–50. Recently, Ulfrid Neumann also considers Raz’s criticism as wrong interpretation of Alexy’s argument from correctness, since this argument bases on some institutional background. See Ulfrid Neumann, ‘Notwendigkeit und Grenzen von Idealisierungen im Rechtsdenken. Anmerkungen zu Robert Alexys Modell der “Doppelnatur” des Rechts’, in Rechtsphilosophie und Grundrechtstheorie. Robert Alexys System (n. 12), at 69–70.

Non-Positivism and Encountering a Weakened Necessity

325

claim, or it possibly does not. This results in a ‘qualifying’, but never a ‘classifying’, necessary connection between law and morality, so as Alexy describes.88 Moreover, since the notion (5.iii) of ‘objective necessity’ pursued by Kant was and still is a commonplace notion for most theorists in Continental Europe, including Gustav Radbruch and Robert Alexy, and since it is also a possible goal for the issues being discussed here, we can no doubt say that the arguments adduced by Alexy are suitable as a candidate for justifying the objectively necessary connection of law and morality. 2. Contingent Connection between Law and Morality (Austin, Hart, Coleman) The inclusive legal positivists all acknowledge the contingent connection of law and morality (‘¬□¬I ˄ ¬□I’), or as Jules L. Coleman puts it, ‘the separability thesis’: The separability thesis is the claim that there is no necessary connection between law and morality. … The separability thesis asserts that it is not the case that morality is necessarily a condition of legality, whereas the claim with which it is here confused asserts that necessarily morality is not a condition of legality. To be sure, many positivists defend the latter, stronger claim; it is a corollary of the sources thesis – the distinctive claim of exclusive legal positivism. However, no one defends the claim that necessarily morality is not a condition of legality ever confuses it with the separability thesis.89

It is to be observed that Coleman obviously distinguishes between his ‘inclusive’ position of no necessary connection (‘¬□I’) and another ‘exclusive’ position of necessarily no connection (‘□¬I’). Moreover, he grants that ‘the separability thesis’ is a ‘very weak claim of negative positivism’.90 We can also see that Coleman is inclined to use the notion (2) of ‘necessary conditions’, but he only mentions the notion (6) of ‘analytic, necessary, or essential truth’ negatively.91 Along this approach to the ‘separability thesis’, even Hart in his ‘Postscript’ seems to be convinced of so-called ‘soft positivism’. He writes: […] my explicit acknowledgement that the rule of recognition may incorporate as criteria of legal validity conformity with moral principles or substantive values; so my doctrine is what has been called ‘soft positivism’ …92 […] soft positivism, which allows that a criterion of legal validity may be in part a moral test …93

The separability thesis together with the notion of a necessary condition is not, however, the whole story that the inclusive legal positivists would tell. What is more, Coleman 88 89 90 91 92 93

See Alexy, The Argument from Injustice (n. 1), at 26, 36. Jules L. Coleman, The Practice of Principle (Oxford: Oxford UP 2001), 151–2 (emphasis original). Jules L. Coleman, ‘Negative and Positive Positivism’, The Journal of Legal Studies, 11 (1982), 163. See Coleman, The Practice of Principle (n. 89), at 63. Hart, The Concept of Law (n. 24), at 250 (emphasis added). Ibid., at 253 (emphasis added).

326

Wei Feng

always emphasizes another, more essential thesis of legal positivism, i. e. ‘the social facts thesis’, or as it is specified by Coleman, ‘the conventionality thesis’: Legal positivism is a general jurisprudence that asserts that morality is not a necessary condition of legality or that whether there is law, the criteria of legality are conventional.94 Positivism claims that the possibility of legal authority is to be explained not in terms of substantive morality, but rather in terms of certain social facts. Call this the ‘social fact thesis’; no claim is more central to legal positivism.95 Like every legal positivist, I maintain that the possibility of law is to be explained in terms of social facts. Like Hart, I further maintain that the possibility of legal authority is to be explained in terms of a conventional social practice, namely the adherence by officials to a rule of recognition that imposes a duty on them to apply all and only those rules valid under it. This is the conventionality thesis. In explaining the possibility of legal authority in terms of a rule of recognition, the conventionality thesis gives content to the idea that law is a normative social practice which, while satisfying the social fact thesis, nevertheless avoids reducing legal authority to social facts.96

It is enlightening to see that Coleman, a leading figure in the legal positivistic tradition, always mentions the two theses simultaneously. According to him, morality is not a necessary condition of legality, while social facts or the conventional practices among officials are indeed ‘(conceptually) necessary elements’97 of law. To this extent, it seems clear that the inclusive legal positivists actually undergo a naturalistic strategy in order to understand the concept of law, which is found in tandem with a definitely weakened notion (5.ii) of necessity.98 Furthermore, this process of weakening could be better reflected as follows: (i) the ‘exclusive’ position of necessarily 94 95 96 97 98

Ibid., at xix (emphasis added). Ibid., at 75. Ibid., at 77 (emphasis original). Ibid., at 84, 98 (emphasis added). I am grateful to Professor Stanley L. Paulson for his illuminating characterization of legal positivism in relation to ‘positivism writ large’ i. e. naturalism. Taking John Austin’s stance as a very example, Paulson writes: ‘My first thesis: Austin’s naturalism – his reduction of ostensibly juridico-normative concepts to matter of fact (namely, to habit) – is, as he contends, sufficient to make out his case on the nature of law. My second thesis: If Austin’s naturalism has him claiming that every aspect of the law lends itself to respecting in factual terms, then it is scarely surprising that he makes no claims respecting a non-contingent link between the law and morality.’ See Paulson, ‘The Very Idea of Legal Positivism’ (n. 12), at 90 (emphasis added). Meanwhile, he initiates a distinction between legal positivism qua naturalism and legal positivism without naturalism, taking Hans Kelsen as a very example, which is according to him more fundamental as the distinction between inclusive legal and exclusive legal positivism. See Pauslon, ibid., at 90; also see this article, Part Three, III. 4. Paulson himself is not inclined, however, to label H. L. A. Hart or even Joseph Raz as ‘naturalist’. See Paulson, ibid., at 93, 96–7. These researches by Paulson has surely encouraged me to make my own comments on Jules L. Coleman and Brian Leiter here, and furthermore to initiate a more comprehensive frame for the contemporary debates. According to my usage in this article, however, the naturalistic, non-naturalistic and even supra-naturalistic stances are only strategies to understand the notion of necessity as well as the relation necessary relations of law and morality, rather than a substitution of the basic distinction between legal non-positivism, inclusive and exclusive legal positivism.

Non-Positivism and Encountering a Weakened Necessity

327

no connection (‘□¬I’) undergoes a weakening process that yields the ‘inclusive’ position of no necessary connection (‘¬□I’), as Coleman himself already grants; (ii) then the latter is further weakened into the position of no necessary connection on behalf of the naturalistic understanding of necessity, which, for convenience, may be characterized in the following as □w¬I. Moreover, Coleman’s specific comments on the so-called ‘naturalized jurisprudence’ of Brian Leiter99 also reveal the close relation between the tradition of legal positivism and that of naturalism-oriented legal theories. The naturalist is thus in the same boat with every other analytic philosopher of law – his project requires analytic legal philosophy as much as Raz’ or mine does. … [N]aturalized jurisprudence presupposes a positivist conception of how to think about the criteria of legality. … At best, naturalism is not an alternative but a supplemental element of a positivistic picture of adjudicatory content […], let alone to analytic legal philosophy generally.100

3. Necessarily No Connection between Law and Morality (Raz) In our line of argumentation, the exclusive legal positivist is assumed to acknowledge that there is necessarily no connection between law and morality (‘□¬I’). But the statements by its leading figure, Joseph Raz, are not quite that simple. First, in many paragraphs in his writings Raz expresses his views in a way similar to other legal positivists: That the primary organs follow and apply the rules of recognition does not entail that they hold them to be morally justified. … It is normal to find that some at least of the subjects of an institutionalized system hold it to be morally justified. … But it is of great importance to remember that these facts though common and widespread are not logical necessary. Moreover, it is not only logically possible but also not uncommon for an official of the system to follow his rules of recognition without regarding them as morally justified.101

Since, according to Raz, it is not logical necessary that the legal rules be morally justified (‘¬□I’) and it is logically possible that the legal rules are not morally justified (‘¬□¬(¬I)’), which is equivalent to the former, we can find no difference between him and other inclusive legal positivists. Coleman, however, insists that Raz be labelled as an ‘exclusive legal positivist’ when he argues:

99 See Brian Leiter, ‘Realism, Hard Positivism and Conceptual Analysis’, Legal Theory, 4 (1998), 533–47, repr. in his Naturalizing Jurisprudence. Essays on American Legal Realism and Naturalism in Legal Philosophy (Oxford: Oxford UP 2007), 121–136. 100 See Coleman, The Practice of Principle (n. 89), at 214–6 (emphasis added). 101 Joseph Raz, Practical Reason and Norms (first publ. 1975), 2nd edn. (Oxford: Oxford UP 1990), 147–8 (emphasis added).

328

Wei Feng [T]he debate between exclusive and inclusive legal positivism turns not on the controversiality of moral criteria of legality, but instead on the question of whether or not such criteria are compatible with legal authority. On Raz’ view, the concept of legal authority precludes inquiring into a law’s justifying (or dependent) reason in order to determine its identity or content.102

It is then the ‘authoritative sources thesis’ of Raz, which would make a difference. According to Joseph Raz, saying that the law undoubtedly has factual authority, presupposes that it also lays a claim to legitimate authority,103 which stands in contrast to law’s claim to substantial correctness, as Robert Alexy argues. A full-fledged comparison between the two authors will show that, there are significant differences between them, both in the manner of the problems that arise and in the respective theoretical resources they have at hand.104 The problem that arises in Raz’s case is how to explain the normativity of law. According to his teacher, Hart, law consists of social rules, which instruct people what to do and how to do it, so that people usually adopt an internal point of view, i. e. a reflective and hence normative perspective, to one another’s behavior.105 Belonging to this tradition, Raz asserts furthermore in his celebrated work Practical Reason and Norms106 that behind all behavior there are more or less diverse reasons. Since reasons motivating the behavior directly can be called first-order reasons or prima facie reasons, and should be all considered and balanced before deciding which reason or reasons ought to be followed.107 By contrast, norms function as ‘second-order reasons’, i. e. reasons supporting or standing in the way of the direct reasons mentioned above.108 Since a legal norm does not only instruct people that they are to behave in compliance with it as their one and the only reason, but also precludes taking all other reasons into consideration. Therefore, it is assumed that the legal norms play the role of ‘negative second-order reasons’, or ‘exclusive reasons’ for action,109 or, as he puts it at some points, legal norms are to be considered both as first-order and as exclusionary reasons.110 The system of legal norms, namely the legal system, is not necessarily valid; it is only binding from a point of view. 102 Coleman, The Practice of Principle (n. 89), at 68. 103 See Raz, The Authority of Law (n. 5), at 8–9. 104 There are, of course, researches which compare as well as criticize just specifically on these two kinds of claims of law with different content considerably, see Neil MacCormick, ‘Why Law Makes No Claims’, in Law, Rights and Discourse: The Legal Philosophy of Robert Alexy (n. 5), 59–67; Gardner, ‘How Law Claims, What Law Claims’, in Institutionalized Reason. The Jurisprudence of Robert Alexy (n. 12), at 29–44; Paula Gaido, ‘The Place for Morality in Law. An Exchange between Robert Alexy and Joseph Raz’ (n. 12). Nevertheless, there are still commentators discussing the two claims in separated context, see Paulson, ‘A “Justified Normativity” Thesis in Hans Kelsen’s Pure Theory of Law? Rejoinders to Alexy and Raz’ (n. 12); Neumann, ‘Notwendigkeit und Grenzen von Idealisierungen im Rechtsdenken. Anmerkungen zu Robert Alexys Modell der “Doppelnatur” des Rechts’, in Rechtsphilosophie und Grundrechtstheorie. Robert Alexys System (n. 12), at 69–70. 105 See Hart, The Concept of Law (n. 24), at 56–7, 88–90. 106 Raz, Practical Reason and Norms (n. 101). 107 Ibid., at 36–9. 108 Ibid., at 39–40. 109 Ibid., at 142. 110 Ibid., at 144.

Non-Positivism and Encountering a Weakened Necessity

329

Hence, if the primary organs do not regard themselves as bound to apply a certain norm, it does not belong to the system.111 The judgments from a point of view are partial and incomplete, but surely exclusionary: [T]he judges who judge a man from the legal point of view do not necessarily deny the validity of other reasons which bear on his action. … In this usage a judgement from a point of view is merely a partial, incomplete judgement of what ought to be done. … The judge […] both regards his judgement as based on a partial assessment of the valid reasons and as justifying action. This means that he regards himself as justified in acting on some reasons to the exclusion of others.112

Raz’s view, as expressed here, seems to be nearer to Alexy’s theory of the law’s claim to correctness, e. g. the claim to correctness by a judge. They differ from one another, however, in the objects and the contents that are to be justified. This is clear in connection with ‘authoritative source thesis’. On the one hand, the law in general consists of directives, which have been proven by the cognitive and effective sources of authority, independent of their contents, values, morality, etc., so as the ‘pre-emptive thesis’ says.113 On the other hand, the law cannot be separated from moral elements, for the reason that the claim to legitimate authority is always a moral claim, in so far as it requires a so-called normal justification. This is the ‘normal justification thesis’.114 Through this device, Raz is seen to stand at some distance from both non-positivists and inclusive legal positivists. All these complexities result, at least in an essential part, from the ambiguous notion of necessity as such. Raz seems, however, to have only a weak concept of legal authority: It should be remembered that this test [of claiming authority to regulate – emphasis added] sets at most a necessary condition and not sufficient condition for a system to be a legal system. … Once again this condition [of claiming authority to be supreme – emphasis added] is a weak one …115

Therefore, it seems reasonable to conclude that even Raz follows the above two steps of the ‘weakening process’, namely, asserting no necessary connection and adopting a weakened notion (5.ii) of necessity itself. Nevertheless, we should not neglect Raz’s expressions of ‘human necessity’ in contrast to that of ‘logical necessity’, when he discusses the possibility of a sanctionless legal system: It cannot be denied that all known legal systems are based on widespread resort to sanctions and that all of them rely ultimately on the use of force. … First, all known legal systems prohibit the use of force against the officials of the system when those are engaged in their official duties. Secondly, they all authorized the use of force to enforce compliance with sanctions. … Perhaps 111 112 113 114 115

Ibid., at 142. Ibid., at 143–4. See Joseph Raz, The Morality of Freedom (Oxford: Clarendon Press 1986), 46. Ibid., at 53. See Raz, Practical Reason and Norms (n. 101), at 151–2.

330

Wei Feng

there is a third feature: all known legal systems provide for sanctions for intentional violation of all legal rules addressed to ordinary individuals. … Our three generalizations allow for the existence of mandatory norms addressed to officials which are backed by sanctions, but more important still they are empirical generalizations true of known legal systems. They do not represent a logical feature of our concept of law. … … Is it possible for there to be a legal system in force which does not provide for sanctions or which does not authorize their enforcement by force? The answer seems to be that it is humanly impossible but logical possible.116

That a sanctionless legal system is logical possible (‘¬□¬(¬S)’), is equivalent to the notion that a sanction-based legal system is not logically necessary (‘¬□S’). And the idea that a sanctionless legal system is humanly impossible (‘□w¬(¬S)’) is equivalent to the notion that a sanction-based legal system is humanly necessary (‘□wS’). That is to say, the notion (6) of logical necessity becomes irrelevant, while the notion of ‘human necessity’ proves to be of great significance in Raz’s view. This ‘human necessity’ is better understood in terms of the ‘empirical generalizations true of known legal systems’. This understanding is inevitably naturalism-oriented, when he further asserts: I suggested three generalizations concerning the minimum regulation of force and sanctions. … The necessity referred to is factual not logical necessity. These are not part of the identifying features of law. They are features which a legal system must have if it is to enjoy enduring existence in human society.117

Now we can surely say, here, that the notion of necessity is definitely weakened in the legal positivistic tradition. 4. Excursus: Necessarily No Connection between Law and Morality (Kelsen) One may wonder whether there is any exception to the weakened necessary separation thesis in the legal positivistic traditions. In this connection there arises the case of the so-called ‘Pure Theory of Law’ introduced by Hans Kelsen.118 This is not the place for close scrutiny of every detail of his theory, but we can establish that Kelsen, as a leading figure in the legal positivistic tradition, intentionally follows an anti-naturalistic strategy in understanding the law, what many writers describe as a strategy of ‘normativism’.119 116 Ibid., at 158 (emphasis added). 117 Ibid., at 168–9 (emphasis added). 118 See Hans Kelsen, Reine Rechtslehre. Einleirung in die rechtswissenschaftliche Problematik, 1st edn. (Leipzig and Vienna: Franz Deuticke 1934); repr. as Hans Kelsen, Reine Rechtslehre. Studienausgabe der 1. Auflage 1934, ed. Matthias Jestaedt (Tübingen: Mohr Siebeck 2008); and its translation in English, see Hans Kelsen, Introduction to the Problems of Legal Theory, trans. Bonnie Litschewski Paulson and Stanley L. Paulson (Oxford: Clarendon Press 1992). 119 See Stanley L. Paulson, ‘Introduction. On Kelsen’s Place in Jurisprudence’, in Hans Kelsen, Introduction to the Problems of Legal Theory (n. 118), at xviii; and his ‘Der Normativismus Hans Kelsens’, Juristenzeitung 61 (2006), 529–80; also see Riccardo Guastini, ‘Normativism or the Normative Theory of Legal Science:

Non-Positivism and Encountering a Weakened Necessity

331

A normativist may, on the one hand, as in Kelsen’s own case, have the notion (5.ii) of natural necessity or causality, which is still naturalistically oriented. On the other hand, this naturalistic notion (5.ii) of necessity is not relevant to the normativist theorist’s understanding of law and its relation to morality. What counts, however, is the so-called ‘imputation’ of legal consequence to legal condition. The core paragraphs by Kelsen, in his early period, goes as follows: Just as laws of nature (Naturgesetz) link a certain material fact as cause with another as effect, so positive laws (Rechtsgesetz) link legal condition with legal consequence (the consequence of a so-called unlawful act). If the mode of linking material facts is causality in the one case, it is imputation in the other, and imputation (Zurechnung) is recognized in the Pure Theory of Law as the particular lawfulness, the autonomy, of the law (besondere Gesetzlichkeit des Rechts). … The connection of the punishment to the delict, of the execution of the lien to the material fact of unlawful civil act, has normative import (normative Bedeutung), not causal import. … ‘[O] ught’ (Sollen) expresses the unique sense in which the material facts belonging to the system of the law are posited in their reciprocal relation. In the same way, ‘must’ (Müssen) expresses the law of causality.120

Whether it is still proper to use ‘necessity’ or ‘must’ in the case of ‘imputation’ as an alternative to natural causation, is the crucial problem. It is in this context that Stanley L. Paulson understands Kelsen as he ‘wishes to underscore a law-like, necessary or nomological relation in the law running parallel to the law-like, necessary or nomological relation manifest in causality.’121 I will not try, however, to use either notion of ‘necessity’ to describe the normative relation between material facts, which is determined by norms. Verbally Kelsen thinks about something parallel to the notion (5.ii) of necessity, but it is still law-like. In other words, Kelsen is never willing to use the notions of necessity or lack of necessity in order to describe legal norms, but with the concept of ‘imputation’. Moreover, it is through this normativistic understanding of law that Kelsen maintains the full separation between law and morality, as he writes: The Pure Theory of Law seeks to free the conceptual characterization of the law from this ideological element by completely severing the concept of the legal norm from its source, the concept of the moral norm, and by securing the autonomy of the law even vis-à-vis the moral law. The Pure Theory does this not by understanding the legal norm, like the moral norm, as an

Some Epistemological Problems’, in Normativity and Norms: Critical Perspectives on Kelsenian Themes, ed. Stanly L. Paulson and Bonnie Litschewski Paulson (Oxford: Clarendon Press 1998), 317–30; and Matthias Jestaedt, ‘Hans Kelsens Reine Rechtslehre. Eine Einführung’, in Hans Kelsen, Reine Rechtslehre. Studienausgabe der 1. Auflage 1934 (n. 118), xxx–xxxiii: ‘normativistic positivism’ or ‘normativism without (legal) moralism and positivism without (legal) naturalism’. 120 See Kelsen, Reine Rechtslehre. Studienausgabe der 1. Auflage 1934 (n. 118), at 34; and its translation in English, see Kelsen, Introduction to the Problems of Legal Theory (n. 118), at 23–4 (original texts and emphasis added). 121 See Paulson, ‘The Very Idea of Legal Positivism’ (n. 12), at 99 (emphasis added).

332

Wei Feng

imperative […], but by understanding the legal norm as a hypothetical judgment that expresses the specific linking of a conditioning material fact with a conditioned consequence.122

One can surely consider further that Kelsen declares such a strict cleavage between law and morality that he meets, in this sense, the requirement of the strictest ‘necessarily no connection thesis’. In other places, however, Kelsen may well admit ‘not [to] exclude the possibility of the claim that the formation of positive law ought to conform to other moral system – and possibly in fact conforms to it – while it contradicts still another different moral system.’123 This would lead one to consider Kelsen as an inclusive legal positivist.124 But the similar ambiguity occurs also in the case of Joseph Raz, as stated above, and since Kelsen insists nothing other than that ‘the definition of law does not include the element of moral content’,125 his position is still exclusive. Still, following the normativistic strategy, the notion (5.ii) of necessity is no longer relevant for his understanding of law. The separation between law and morality is not a naturalistic, but a normativistic methodological requirement. This normativistic understanding is one kind of anti-naturalistic strategies. In other words, for understanding the concept of law and its relation to morality, normativism is not only contrary to, but also an alternative to, naturalism. In this sense, we can characterize Kelsen’s position only roughly as that there is necessarily, anti-naturalistically or normativistically understood, no connection between law and morality.

122 See Kelsen, Reine Rechtslehre. Studienausgabe der 1. Auflage 1934 (n. 118), at 33–4; and its translation in English, see Kelsen, Introduction to the Problems of Legal Theory (n. 118), at 23 (original texts and emphasis added). 123 Hans Kelsen, Reine Rechtslehre (first publ. Leipzig and Vienna: Franz Deuticke 1934), 2nd completely new revised and expanded edn. (Vienna: Deuticke 1960), 68; and its translation in English, see Hans Kelsen, Pure Thoery of Law, trans. Max Knight (Berkeley: University of California Press 1960), 66 (emphasis added). (For the reader’s convenience, I have included citations throughout to the English edition of Pure Theory of Law; the quotations themselves, however, are newly translated by myself.) Another related paragraph would be quoted here: ‘[T]he question of the relationship of law and morality … has two meanings: One, what is the relationship between the two? The other, what ought it to be? If both questions are intermingled, misunderstanding result. The first question is sometimes answered by saying that law by its very nature is moral … The question is also answered, however, by stating that the law may, but need not, be moral …’ see Hans Kelsen, Reine Rechtslehre, 2nd edn. ibid., at 65; and its translation in English, see Kelsen, Pure Theory of Law, ibid., at 63 (emphasis original). 124 I am grateful to Professor Robert Alexy for indicating that Hans Kelsen might be an inclusive legal positivist, who would admit the ‘contingent connection thesis’. 125 Kelsen, Reine Rechtslehre, 2nd edn. (n. 123), at 68; and its translation in English, see Kelsen, Pure Theory of Law (n. 123), at 66.

333

Non-Positivism and Encountering a Weakened Necessity

The variety of positions and strategies, along with typical writers, may be illustrated as follows: logical relation of law and morality

necessary connection

contingent connection

necessarily no connection

supra-naturalistic strategy

natural law theorists

vacant

vacant

naturalistic strategy

vacant

Austin; Hart; Coleman

Raz

anti-naturalistic strategy

Radbruch; Alexy

vacant

Kelsen

notion of necessity

Concluding Remark So far, it can be concluded that: I. All the theories in the legal positivistic tradition share the ‘separation thesis’, while all the theories in the legal non-positivistic tradition share the ‘connection thesis’. II. In the sense of the strictest, analytical necessity, there are three and only three logical possible positions concerning the relation of law and morality, i. e. legal non-positivism, insisting on the ‘necessary connection thesis’, exclusive legal positivism, claiming the ‘necessary separation thesis’, and inclusive legal positivism, relying on the ‘contingent connection thesis’. These three positions together exhaust the logically possible relations of law and morality. The logical relations between any two of these three positions are contrary, that is to say, as contraries the two members of each pair cannot be both true, although they can both be false. Therefore, one can present only one of the three positions as a focus of one’s justification. By the same token, in order to justify one’s own position, it is well that the other two positions be shown to be indefensible. III. The notion of necessity, however, varies and can be depicted in six groups: (1) coercive necessity; (2) necessary condition; (3) predestinate necessity; (4) teleological necessity; (5) natural necessity, which can be further classified into three groups: (i) blind natural necessity, (ii) subjective natural necessity, (iii) objective natural necessity; and (6) analytical necessity. Moreover, the understanding of natural necessity can follow either supra-naturalistic, naturalistic, or anti-naturalistic strategies. IV. To justify the necessary connection between law and morality, theorists can follow either a supra-naturalistic strategy (i. e. natural law theories) or an anti-naturalistic strategy (i. e. legal non-positivism). For the latter, however, it remains difficult to confine one’s case to analytical arguments alone (e. g. Robert Alexy’s argument from correctness).

334

V.

Wei Feng

To insist on the contingent connection between law and morality, the inclusive legal positivists may undergo a naturalistic strategy for his understanding of the concept of law, which is in tandem with a definitely weakened notion (5.ii) of necessity (e. g. Coleman’s conventionalism thesis). VI . To assert that there is necessarily no connection between law and morality, the exclusive legal positivists could follow either a naturalistic strategy (e. g. Joseph Raz’s authoritative sources thesis) or a normativistic strategy (e. g. Hans Kelsen’s pure theory of law). VII. Alexy’s argument from law’s claim to correctness is a strict analytical argument, but it still requires support by appeal to other normative arguments, in order thereby to arrive at the non-positivistic thesis of necessary connection between law and morality. While Raz’s authoritative sources thesis is only a normative argument, since it does not reflect logico-analytical themes but, rather, politico-philosophical themes. Hence this thesis can hardly justify the exclusive positivistic thesis of necessarily no connection between law and morality. Since the notion of necessity in the legal positivistic tradition is definitely a weakened one, it cannot be justified in strictly logical sense.

The Separation Thesis and H. L. A. Hart’s Legal Positivism Yanxiang Zhang*

Introduction In the 1950s and 1960s, H. L. A. Hart began to elaborate on the thesis of the separation of law and morals and established the school of the analytical jurisprudence. To avoid endless disputes about his legal positivism and find authoritative intellectual support for his general descriptive legal theory, Hart resigned from his Oxford professorship in 1968 and devoted himself to the study of Jeremy Bentham until his health deteriorated in 1991. Hart regarded himself as a follower of John Austin and Jeremy Bentham.1 Hart recognised that Bentham’s jurisprudence was of positivism that separated fact and value, and that it thus had the same philosophical basis as his own. Hart recognised Bentham as the originator of legal positivism. However, things changed in 2003 when Philip Schofield, the director of the Bentham Project and general editor of The Works of Jeremy Bentham, made his professorial inaugural speech Jeremy Bentham, the Principle of Utility and Legal Positivism. In the speech, Schofield pointed out that Hart’s contention was wrong that one of Bentham’s objectives was to offer a morally neutral definition of law.2 In 2010, Schofield published the article Jeremy Bentham and H. L. A. Hart’s ‘Utilitarian Tradition in Jurisprudence’ based on almost 30 years of special study of Bentham. Schofield concluded that Hart completely misinterpreted Bentham’s jurisprudence. Bentham was not a legal positivist as Hart understood, and Bentham’s linguistic philosophy was quite different from that adopted by Hart. Bentham’s jurisprudence was one of naturalism, not positivism.3 How*

1 2 3

Special thanks will go to Prof. Yanlin Du, Dr. Yimin Zou and Dr. Xiangbo Han for their valuable comments. This paper also benefitted from the comments from the special workshop of Law and Morals in 28th IVR. This paper was written with the support of the grant from China National Foundation for Philosophy and Social Sciences (Grant No.14CFX003). Nicola Lacey, A Life of H. L. A. Hart: The Nightmare and the Noble Dream (Oxford: Oxford UP, 2006), 4. Philip Schofield, ‘Jeremy Bentham, the Principle of Utility, and Legal Positivism’, Current Legal Problems, 56 (2003) ,1–39. Philip Schofield, “Jeremy Bentham and H. L. A. Hart’s ‘utilitarian tradition in jurisprudence’”, Jurisprudence, 2 (2010), 147–167.

336

Yanxiang Zhang

ever, Schofield did not explore the philosophical source that contributed to Hart’s mistake. In this article, I will try to demonstrate the fundamental contradictions in Hart’s legal positivism and identify the ultimate philosophical source of Hart’s mistake. Part One: The Philosophical Nature of H. L. A. Hart’s Legal Positivism What is the fundamental theoretical claim of legal positivism? What is the philosophical nature of legal positivism? In the circle of legal philosophy, the term ‘legal positivism’ is a familiar one, and the school of legal positivism is a major school. It is natural to assume that the meaning of ‘legal positivism’ would be obvious. However, this is not the case. In the preface of The Philosophy of Positive Law: Foundations of Jurisprudence, James Bernard Murphy wrote, This is not a book about positive law, emphatically about legal positivism. I studiously avoid the whole complex and contentious question of legal positivism. Indeed, legal positivism turns out to have a contingent relation to the discourse of positive law. Some of the major theorists of positive law, such as Thomas Aquinas, have never been described as legal positivists, while some major legal positivists, such as Jeremy Bentham, almost never refer to positive law.4

Stephan R. Perry’s distinction can play a crucial role in clarifying the philosophical nature of legal positivism. According to Perry, legal positivism can be distinguished into two modes, including substantive legal positivism and methodological legal positivism: Substantive legal positivism is the view that there is no necessary connection between morality and the content of law. Methodological legal positivism is legal theory can and should offer a normatively neutral description of social phenomenon, namely law. Methodological legal positivism holds, we might say, not that there is no necessary connection between morality and law, but rather there is no connection, necessary or otherwise, between morality and legal theory.5

There is no ambiguity in Perry’s assertion on methodological legal positivism that ‘there is no connection, necessary or otherwise, between morality and legal theory’. However, there are multiple interpretations of Perry’s assertion on substantive legal positivism that ‘there is no necessary connection between morality and the content of law’. According to the conventional understanding, the substance of the law, or even its procedures, does not have to correspond to a particular set of moral principles – or, in the legal positivist’s words, bad law is law because law is fact. However, within that understanding lies the implied question of how to identify the content of a legal system. The answer provided by that understanding is that a law can be identified in a morally neutral way. Thus, follows the question that whether the identification of a legal system itself is val4 5

James Bernard Murphy, The Philosophy of Positive Law: Foundations of Jurisprudence (New Haven: Yale University Press, 2005), 21. Stephan R. Perry, ‘Hart’s Methodological Positivism’, in Hart’s Postscript: Essays on the Postscript to The Concept of Law, ed. Jules Coleman, 2nd edn. (Oxford: Oxford UP, 2001), 311–13, 311–54.

The Separation Thesis and H. L. A. Hart’s Legal Positivism

337

ue-laden. So, the issue turns out to be not so simple. Schofield pointed out that the core of substantive legal positivism was morally neutral6 – in philosophical terms, the separation of value and fact. Thus, it is necessary that legal positivism be interpreted from the more fundamental philosophical perspective. Many important legal philosophers such as Perry7 and Jules L. Coleman8 have thus used the term ‘positivism’ instead of ‘legal positivism’ to refer to the theory of legal positivism. Hart used both ‘positivism’ and ‘legal positivism’, but emphasised that his legal positivism was in the sense of epistemology, so he used ‘positivism’ more.9 Hart titled the milestone lecture he delivered at Harvard Law School in 1957 Positivism and the Separation of Law and Morals.10 Lon Fuller, a major critic of Hart’s legal positivism, preferred ‘positivistic theory of law’ or ‘positivism’ to ‘legal positivism’.11 Gerald Postema referred to ‘legal positivism’ as ‘positivism’ and argued that the fundamental issue of law was a philosophical one and that those who participated in the debate were philosophers and jurists: Recent debates in Anglo-American philosophical and legal circles concerning the nature and foundations of law and the forms and limits of judicial reasoning (and theories of constitutional judicial review) have been decisively shaped by the history of our legal practice and attempts to understand it. A key piece of that history was written in seventeenth- and eighteenth-century Britain at the birth and maturing of two dominant legal ideologies: positivism and common law theory. The dispute between these two ideologies is not only historically interesting, it is philosophically fundamental.12

It is obvious that the theoretical nature of legal positivism is simply the positivism in philosophy. For the convenience of investigation, I adopt Perry’s distinction of substantive legal positivism and methodological legal positivism as the framework to examine Hart’s legal positivism and identify how legal positivism developed with the application of the positivism in philosophy.

6 7

See Philip Schofield, “Jeremy Bentham and H. L. A. Hart’s ‘utilitarian tradition in jurisprudence’” (n. 3). Stephan R. Perry, ‘Beyond the Distinction between Positivism and Non-positivism’, Ratio Juris, 1 (2009), 311–325. 8 Jules L. Coleman, ‘Negative and Positive Positivism’, The Journal of Legal Studies, 1 (1982), 139–164. 9 In The Concept of Law, 2nd edn., the term ‘legal positivism’ appears 13 times, while ‘positivism’ appears 45 times. See H. L. A. Hart, The Concept of Law, 2nd edn., eds. P. Bulloch＆J. Raz (Oxford UP, 1994). 10 See Lacey, A Life of H. L. A. Hart: The Nightmare and the Noble Dream (n.1), at 196–9. 11 In the seminal book The Morality of Law, Lon Fuller did not use the term ‘legal positivism’; instead, he used ‘the positivistic theory of law’. In the famous critique article ‘Positivism and Fidelity to Law: A Reply to Professor Hart’, the number of uses ‘legal positivism’ is only one fifth that of the number of uses of ‘positivism’ and ‘positivistic’. See Lon L. Fuller, The Morality of Law, Rev edn., (New Haven, Yale University Press, 1969) and Lon L. Fuller, ‘Positivism and Fidelity to Law: A Reply to Professor Hart’, Harvard Law Review, 4 (1958), 630–672. 12 Gerald J. Postema, Bentham and Common Law Tradition (Oxford: Oxford UP, 1986), viii.

338

Yanxiang Zhang

Part Two: Positivism and Naturalistic Fallacy Regarding the legal positivist separation thesis, Schofield wrote: The assumption that underlies both doctrines (substantive legal positivism and methodological legal positivism) is that there exists a conceptual separation between fact and value, or in other words between descriptive and normative language. This distinction can be traced to the concern of many twentieth-century philosophers to avoid the so-called naturalistic fallacy famously defined by G. E. Moore.13

Schofield did not elaborate further on this distinction. It is thus necessary to investigate Moore’s naturalistic fallacy. If it is indeed a fallacy, then legal positivism is justified; if it is not, then legal positivism is a fallacy too. What is Moore’s naturalistic fallacy? Moore wrote: … Ethics aims at discovering what are those other properties belonging to all things which are good. But far too many philosophers have thought that when they named those other properties they were actually defining good; that these properties, in fact, were simply not “other,” but absolutely and entirely the same with goodness. This view I propose to call the “naturalistic fallacy”.14

For Moore, good could not be defined: If I am asked ‘What is good?’ my answer is that good is good, and that is the end of the matter. Or if I am asked ‘How is good to be defined?’ my answer is that it cannot be defined, and that is all I have to say about it. …That propositions about the good are all of them synthetic and never analytic; and that is plainly no trivial matter.15

Moore’s direct argument against ‘naturalistic fallacy’ is that good is ‘simple, indefinable, unanalysable’.16 In ascertaining good as the subject-matter of Ethics, Moore adopted several sets of corresponding terms: simple and complex, adjective and substantive, intrinsic value and extrinsic value, end and means, good in itself and good as means, whole and part, and organic whole and mechanic whole. Moore accordingly held that good was simple, not complex; not a mechanic whole, but an organic whole that could not be separated into several parts. Good thus could not be defined by the various concepts of constituent parts and should be understood as adjective rather than noun because although ‘the good that which is good,’ could be defined, good in itself could not be defined. 17 Moore argued that if someone thought that the colour red was good because it could make people happy, such a person had fallen into the naturalistic fallacy. Those who committed this fallacy endorsed the view that ‘good’ means a property of a thing, and they sought to identify such properties. 18 ‘Good’ had intrinsic value, was universal, 13 14 15 16 17 18

See Philip Schofield, Jeremy Bentham and H. L. A. Hart’s ‘utilitarian tradition in jurisprudence’, (n. 3), at 151. G. E. Moore, Principia Ethica, ed. Thomas Baldwin (Cambridge: Cambridge UP,1993), 62. Ibid., at 58. Ibid., at 72. Ibid., at 60–61. Ibid., at 64–66.

The Separation Thesis and H. L. A. Hart’s Legal Positivism

339

and could not change in different contexts or became ‘bad’. ‘Good’ itself was an end, not a means. Ends and means were quite different, and were neglected by many philosophers. Moore argued that the question ‘what is the right thing to do?’ consisted of two parts: what is ‘good’ and how this ‘good’ can be procured. Thus, ethical judgment was more difficult and more complex than the establishment of the laws of natural science. So the naturalistic fallacy oversimplified ethical judgments as natural scientific judgments. Ends had intrinsic value because they were universal, while means did not have intrinsic value. Accordingly, Moore argued that all of the ethics before him committed the naturalistic fallacy in that all of them tried to define ‘good’ by natural properties, which ran counter to the idea of good as an independent entity that was simple, indefinable, unanalysable, organic and of intrinsic value. Moore thus concluded that the naturalistic fallacy oversimplified ethics as pure experience or positive science. Moore answered the question ‘What things have intrinsic value, and in what degrees?’19 as thus: Good is not merely a bare cognition of what is beautiful in the object, but some kind of feeling or emotion. 20 By far the most valuable things, which we know or can imagine, are certain states of consciousness, which may be roughly described as the pleasures of human intercourse and the enjoyment of beautiful objects. No one, probably, who has asked himself the question, has ever doubted that personal affection and the appreciation of what is beautiful in Art or Nature, are good in themselves … That it is only for the sake of these things … these complex wholes themselves, and not any constituent or characteristic of them – that form the rational ultimate end of human action and the sole criterion of social progress: these appear to be truths which have been generally overlooked.21

Thus, ‘goods’ are ‘complex wholes themselves’, the organic wholes of emotion and cognition. Considering the question of ‘in what degree?’, Moore held that, as an organic whole, the amount of the intrinsic value of ‘good’ is not the total amount of the value of its essential constituents; rather, it is its value as the organic whole, for any constituent itself has little or no value. Moore wrote, Aesthetic and affectionate emotions had little or no value apart from the cognition of appropriate objects, and that the cognition of these objects had little or no value apart from the appropriate emotion, so that the whole, in which both were combined, had a value greatly in excess of the sum of the values of its parts; so, according to this section, if there be added to these wholes a true belief in the reality of the object, the new whole thus formed has a value greatly in excess of the sum obtained by adding the value of the true belief, considered in itself, to that of our original wholes.22

19 20 21 22

Ibid., at 236. Ibid., at 238. Ibid., at 237–238. Ibid., at 247.

340

Yanxiang Zhang

What, then, are the constituents of ‘good’? As to the degrees of intrinsic value, what are the relationships between the correlations of the constituents and the whole? The following figure roughly illustrates the general picture of Moore’s thinking on this issue.

Cognition

{

Actual existence

{

Evil or ugly Hatred Good or beautiful

Belief

Non-existence

{

Evil or ugly Love Good or beautiful

}

Emotion

Good or Evil

‘Good’ has two essential constituents: cognition and emotion. The degrees of the value of ‘good’, according to Moore, are determined by the correlation of these two essential constituents. Cognition is right or wrong, while emotion is either love or hatred. The varieties of the degrees of the value are thus determined in the corresponding correlations. The states of mind formed by those corresponding correlations are different. Moore wrote: It is, however, important to observe that the very same emotions, which are often loosely talked of as the greatest or the only goods, may be essential constituents of the very worst wholes: that, according to the nature of the cognition which accompanies them, they may be conditions either of the greatest good, or of the greatest evil.23

Moore distinguished the states of mind into three varieties and offered analyses. He identified the states as ‘unmixed goods’, ‘evil’ and ‘mixed goods’. Constituents could have positive or negative values. If all of the constituents of the whole had positive values, then the whole was an ‘unmixed good’. If the cognition and the emotion in the whole opposed each other, the whole was ‘evil’. Moore distinguishes three varieties of ‘evil’: loving evil or ugliness, hating good or beauty and the painful consciousness. If the whole had a positive value and some constituents had intrinsic negative value, then the whole was a ‘mixed good’. Accordingly, ‘mixed goods’ were distinguished into two varieties: loving evil or ugliness and sympathy.

23 Ibid., at 257.

The Separation Thesis and H. L. A. Hart’s Legal Positivism

341

In addition to these two essential constituents of cognition and emotion, which directly determined the degrees of value, Moore argued that belief was ‘a third essential constituent’.24 He wrote: It is commonly and rightly thought that to see beauty in a thing which has no beauty is in some way inferior to seeing beauty in that which really has it.25

He argued that when people saw beauty in a thing having no beauty, it was either because the beauty did not exist in actuality or because although a feeling of beauty did exist, the beauty itself did not exist. Moore wrote: The former may be called an error of judgment, and the latter an error of taste; but it is important to observe that the “error of taste” commonly involves a false judgment of value; whereas the “error of judgment” is merely a false judgment of fact.26

Moore thus set ‘an error of judgment’ and ‘an error of taste’ in opposite positions. Moore took ‘an error of judgment’ as ‘a false judgment of fact’; if, then, he took taste as value, he put value and fact in opposite positions. However, the issue is not so simple, as Moore held that the ‘error of taste’ was not straightforwardly ‘a false judgment of value’ but one that ‘commonly involves a false judgment of value’. Moore implied that in addition to judgment of value, taste also involved other constituents – hence the extraordinary difficulty of analysing the relationship between Moore’s fact and value. Then, what is Moore’s judgment of value? Whenever he thinks of ‘intrinsic value,’ or ‘intrinsic worth,’ or says that a thing ‘ought to exist,’ he has before his mind the unique object – the unique property of things –which I mean by ‘good.’27

However, because good is the organic whole of cognition and emotion, judgment of value is actually the judgment of the complex correlations of cognition and emotion. What, then, is the relationship between cognition and emotion? The above analysis shows how degrees of value are determined by cognition, emotion and belief. Moore used the word ‘accompany’ regarding the correlation of cognition and emotion. Although good and evil are organic wholes of cognition, emotion and belief, cognition and emotion can maintain their independence. This gave rise to Moore’s definition of the naturalistic fallacy. Is the naturalistic fallacy defined by Moore really a fallacy? Are fact and value or cognition and emotion really separate? Is cognition purely independent? Modern positivists claim that the separation of fact and value comes ultimately from David Hume. Hume’s most definitive statement on the separation thesis is as follows:

24 25 26 27

Ibid., at 241. Ibid. Ibid. Ibid., at 68.

342

Yanxiang Zhang

I cannot forbear adding to these reasonings an observation, which may, perhaps, be found of some importance. In every system of morality, which I have hitherto met with, I have always remarked, that the author proceeds for some time in the ordinary way of reasoning, and establishes the being of a God, or makes observations concerning human affairs; when of a sudden I am surprised to find, that instead of the usual copulations of propositions, is, and is not, I meet with no proposition that is not connected with an ought, or an ought not. This change is imperceptible; but is, however, of the last consequence. For as this ought, or ought not, expresses some new relation or affirmation, it is necessary that it should be observed and explained; and at the same time that a reason should be given, for what seems altogether inconceivable, how this new relation can be a deduction from others, which are entirely different from it.28

Hume argued that ‘is or is not’ and ‘ought or ought not’ represented two quite different relations. However, Hume’s statement is so concise, as giving rise to multiple interpretations. Thus, the question arises whether ‘is or is not’ is purely objective for Hume, lacking moral elements. Generally speaking, there are two modes of interpretations of Hume’s philosophy: empiricist and naturalistic. The philosophers Thomas Reid and Thomas Hill Green contributed most significantly to the mainstream empiricist interpretation, which H. O. Mounce regarded as the mainstream view.29 Much later, Norman Kemp Smith (1872–1958)30 and Mounce challenged the empiricist interpretation with the naturalist interpretation. Following Smith’s naturalist interpretation, Mounce published his study Hume’s Naturalism in 1999, in which he pointed out that while Hume’s empiricist element and naturalist element were contradictory, naturalism was the fundamental element.31 For Hume, what is cognition? It is reason: Reason is the discovery of truth or falsehood. Truth or falsehood consists in an agreement or disagreement either to the real relations of ideas, or to real existence and matter of fact.32

For Hume, what is emotion? In Hume’s own words, it is ‘passion’ and ‘emotion’. Hume sometimes used the two words together, ‘passions and emotions’,33 and took them to mean nearly the same thing, with the only difference lying in their liveliness and force: “While those other impressions, properly called PASSIONS, may decay into so soft an emotion, as to become, in a manner, imperceptible.”34 At other times, Hume considered passion as a kind of emotion: “Of the second are the passions, and other emotions 28 David Hume, A Treatise of Human Nature, eds. David Fate Norton＆Mary J. Norton (Oxford: Clarendon Press, 2007), 302. 29 H. O. Mounce, Hume’s Naturalism (London and New York: Routledge, 1999), 1–2. 30 Norman Smith, ‘The Naturalism of Hume I’, Mind, New Series, 54 (1905), 149–173; Norman Smith, The Naturalism of Hume II, Mind, New Series, 55 (1905), 335–347. Norman Kemp Smith, The Philosophy of David Hume (London, Macmillan, 1941). 31 See H. O. Mounce, Hume’s Naturalism (n.29), at1–2. 32 See David Hume, A Treatise of Human Nature (n.28), at 295. 33 Ibid., at 7. 34 Ibid., at 181.

The Separation Thesis and H. L. A. Hart’s Legal Positivism

343

resembling them.”35 However, because for Hume both passion and emotion belong to ‘those perceptions, which enter with most force and violence’,36 Hume’s passion and emotion are equivalent to Moore’s emotion. Hume wrote, ‘A passion is an original existence, or, if you will, modification of existence, and contains not any representative quality, which renders it a copy of any other existence or modification’.37 As to the relationship between reason and emotion or passion, Hume wrote: We speak not strictly and philosophically when we talk of the combat of passion and of reason. Reason is, and ought only to be the slave of the passions, and can never pretend to any other office than to serve and obey them. As this opinion may appear somewhat extraordinary, it may not be improper to confirm it by some other considerations.38

Thus, reason is not independent of passion, but is the slave or under the control of passion. Let us revisit Hume’s ‘is or is not’ and ‘ought or ought not’. The separation of fact and value – the positivistic interpretation of Hume’s distinction of ‘is or is not’ and ‘ought or ought not’ – is a theory that Hume criticised and opposed. For Hume, ‘is or is not’ and ‘ought or ought not’ refer to two different relations: one is the object of reason, and the other is the object of passion. What, then, is the rationale of Hume’s assertion that ‘ought or ought not’ could not be deduced from ‘is or is not’? Hume elaborated: Whatever, therefore, is not susceptible of this agreement or disagreement (an agreement or disagreement either to the real relations of ideas, or to real existence and matter of fact), is incapable of being true or false, and can never be an object of our reason. Now it is evident our passions, volitions, and actions, are not susceptible of any such agreement or disagreement; being original facts and realities, compleat in themselves, and implying no reference to other passions, volitions, and actions. It is impossible, therefore, they can be pronounced either true or false, and be either contrary or conformable to reason.39

Because of this rationale, the first section of Book III On Morals is entitled ‘Moral Distinctions not Derived from Reason’. For Hume, fact and emotion are not separate because emotion itself is a fact, an original existence. Hume distinguished between reason and emotion; he did not separate them. According to Thomas Baldwin, Moore’s definition of the naturalistic fallacy is ‘standardly associated with Hume and the possibility, or not, of deriving an “ought” from an “is”’.40 Moore separated cognition and emotion based on a misunderstanding of Hume’s is-ought. Moore’s definition of the naturalistic fallacy is thus itself a fallacy. Mounce drew a picture of the vicissitudes of positivism and naturalism. From the 18th to the 20th century, Great Britain experienced severe struggles between empiricism 35 36 37 38 39 40

Ibid. Ibid., at 7. Ibid., at 266. Ibid. Ibid., at 295. See Thomas Baldwin, Introduction, in G. E. Moore, Principia Ethica (n.14), at xviii.

344

Yanxiang Zhang

and naturalism, with empiricism holding the advantage. In the 18th century, Hume’s naturalism successfully destroyed arbitrary rationalism and facilitated the rise of naturalism in the 19th century. In the middle of 19th century, the empiricist J. S. Mill (1806–1873) criticised the leader of the Scottish naturalists, William Hamilton (1788–1856). Mark Pattison remarked, ‘The effect of Mr. Mill’s review is the absolute annihilation of all Sir W. Hamilton’s doctrines, opinions, of all he has written or taught. Nor of himself only, but all his followers, pupils, and copyists, are all involved in the common ruin. The whole fabric of Hamiltonian philosophy is not only demolished, but its very stones are ground to powder’.41 Empiricism regained dominance. In the later 19th century, due to T. H. Green’s critique of empiricism, naturalism experienced a brief revival. Bertrand Russell and Moore, Cambridge philosophers, inherited the English tradition of empiricism and became the main figures of the empiricist analytic philosophy. A.J. Ayer and the logical positivists followed Russell, and empiricism flourished. However, the triumph of empiricism was a catastrophe for philosophy arising from a misunderstanding of Hume’s philosophy.42 Recently, naturalism has experienced another revival.43 Positivism underwent many changes. Issac Newton made a distinction between phenomena and the ultimate reason, which George Berkeley took as the basis for differentiating the first philosophy and natural philosophy. In the early stages, positivism adopted Newton’s method. In the 19th century, physics achieved the preeminent status due to its swift and vigorous advances, and many people came to believe that physics was the comprehensive science. Thus, the difference between phenomena and their ultimate reasons were greatly reduced, and the fundamental difference between them disappeared, leaving only the degrees of the difference. This way of thinking has persisted to the present. This view of natural science as the only reliable source of truth has been called scientific naturalism or positivism.44 Thus, classical positivism evolved into a mutilated version of positivism that cut passion away from human experience.45 This is essentially Moore’s separation thesis. From this general picture of the vicissitudes of naturalism and positivism, I will investigate the relationship between Moore and positivism. For Moore, Henry Sidgwick’s influence was most important. When Moore was a student at Cambridge, he attended Sidgwick’s lectures and read his masterpiece The Methods of Ethics. In Ethica Principia, Moore referred to The Methods of Ethics more than to any other work. The two core theses in Ethica Principia were actually a further development of the thesis in The Methods of Ethics. One was the thesis of the indefinable: in The Methods of Ethics, Sidgwick 41 Mark Pattison, cf. Alan Bryan Introduction, in J. S. Mill, An Examination of Sir William Hamilton’s Philosophy (Toronto; Buffalo: University of Toronto Press,1979), viii. 42 See H. O. Mounce, Hume’s Naturalism (n.29), at 131–132. 43 About the revival of naturalism, please see James Lenman, Moral Naturalism, http://plato.stanford.edu/ entries/naturalism-moral; Paul Thagard, The Brain and the Meaning of Life, (University Press Group Ltd, 2010). 44 See H. O. Mounce, Hume’s Naturalism (n.29), at 9, 18–19. 45 Mary Pickering, Auguste Comte: An Intellectual Biography, Vol. 1 (Cambridge: Cambridge University Press, 2006), 697.

The Separation Thesis and H. L. A. Hart’s Legal Positivism

345

observed that the concept of practical reason was the mark of ethical thought, but was indefinable. Correspondingly, in Ethica Principia, Moore pointed out that ‘good’ was indefinable and that all previous ethical theorists had committed the ‘naturalistic fallacy’ of defining ‘good’ in terms of natural properties. The other thesis was intuitionism. Sidgwick endorsed the utilitarian account of obligation but emphasised that it needed to be supplemented by an intuitionist specification of the ideal ends of action. Correspondingly, in Ethica Principia, Moore put forward ‘non-hedonistic ideal utilitarianism’ – that actions should have the best possible consequences rather than only maximising pleasure.46 Sidgwick stated that his ‘first adhesion to a definite Ethical system was to the Utilitarianism of [ John Stuart] Mill’.47 Thus, Mill, Sidgwick and Moore comprise a line of intellectual development. That is, although Moore criticised all previous empiricist ethical theorists for committing the naturalistic fallacy, his intellectual source was positivism, which followed from empiricism – that is, the separation of fact and value. Yet Moore upheld the part of value, not fact. Moore’s definition of the naturalistic fallacy was based on his own theory of the mind and on an interpretation of Hume’s distinction of ‘is’ and ‘ought’ that led him to separate cognition and emotion. However, the fundamental reason for Moore’s separation of cognition and emotion lies in his common sense philosophy. In lectures and articles, Moore used as an illustration ‘I know that here is my hand’. This was fiercely criticised by Ludwig Wittgenstein. According to Wittgenstein, ‘to know’ and ‘to believe’ were fundamentally different. ‘Knowledge’ and ‘certainty’ belonged to different categories; they were not mental states like ‘surmising’ and ‘being sure’.48 ‘To know’ and ‘to believe’ were not separate to Moore, and ‘knowledge is in the end based on acknowledgment’.49 That is, reason is based on belief, and reason and belief are not separate. Thus, without a critical reflection of reason, Moore’s common sense philosophy is not far from the dilemma of John Locke’s ‘double existence’, that is ‘the idea of existence, and of external existence’ which is identified by Hume.50 In Moore’s view, common sense knowledge is the truth. This prevented him from further explorations. In light of this, Moore seems to be far from the profoundness of Berkeley, Hume, Bentham and Wittgenstein.

46 See Thomas Baldwin, Introduction (n.40), at xiii–xiv. 47 Philip Schofield, “Sidgwick on Bentham: The ‘double aspect’ of utilitarianism”, In Proceedings of the Second World Congress on Henry Sidgwick: Ethics, Psychics, Politics, ed. Placido et al. (Cantania: Cooperativa Universitaria Editrice Catanese di Magistero), 412–469. 48 Ludwig Wittgenstein, On Certainty, eds. G. E. M. Anscombe＆G. Ho. von Wright, trans. Denis Paul＆G. E. M. Anscombe (Oxford: Basil Blackwell, 1969), Sect. 308. 49 Ibid., Sect. 378. 50 David Hume, A Treatise of Human Nature (n. 28), at 48–9, 65–6, 411, 425, 728.

346

Yanxiang Zhang

Part Three: Fundamental contradictions in H. L. A. Hart’s Legal Positivism Next, I will investigate whether Hart’s legal theory is consistent with the meaning of positivism. Hart stated: The still young sciences of psychology and sociology may discover or may even have discovered that, unless certain physical, psychological, or economic conditions are satisfied … no system of laws or code of morals can be established, or that only those laws can function successfully which conform to a certain type.51

Hart called the conditions by which laws or codes of morals could be established ‘necessary conditions’ and called the relationship between ‘necessary conditions’ and the legal system a ‘causal connection’.52 These necessary conditions are ‘simple truisms’53 that comprise the following four ‘natural facts’54: human venerability, approximate equality, limited altruism and limited resources.55 As to the causal connections of natural conditions and systems of rules, Hart stated: Causal explanations of this type do not rest on truisms nor are they mediated by conscious aims or purposes: they are for sociology or psychology like other sciences to establish by the methods of generalisation and theory, resting on observation and, where possible, on experiment’.56 Hart concluded that sanctions were both possible and necessary in a municipal system – a natural necessity – and that the minimum forms of protection for persons, property and promises were similarly indispensable.57

This is Hart’s ‘minimum content of natural law’, which includes not only those conditions by which laws or codes of morals could be established but also a third category for an adequate description of law in addition to definitions and ordinary statements of fact.58 In Hart’s theory, human society is mechanical and of natural necessity, thus endowing the legal system with natural necessity. However, Hart emphatically argued that ‘the minimum content of natural law’ is the natural necessity for a human society. Thus, internal conflicts are brought about in Hart’s view of human institutions, and Hart’s sociology is inconsistent. In his discussion of the substantive content of legal systems, Hart constructed an edifice of legal positivism using such terms as ‘necessary condition’, ‘causal explanation’, ‘science’, ‘natural fact’ and ‘natural necessity’. However, Hart’s edifice has a weak pillar: ‘the minimum content of natural law’. For Hart’s legal positivism, however, ‘the minimum content of natural law’ is indispensable. Consequently, internal 51 52 53 54 55 56 57 58

See H. L. A. Hart, The Concept of Law (n.9), at 193–194. Ibid., at 194. Ibid., at 193. Ibid. Ibid., at 194–196. Ibid., at 194. Ibid., at 199. Ibid., at 199.

The Separation Thesis and H. L. A. Hart’s Legal Positivism

347

conflicts arise in Hart’s legal positivism, making it inconsistent. To alleviate the conflict, Hart called his legal theory ‘soft positivism’; however, his legal positivism turns ultimately to be a failure. Then I will focus on the core content of Hart’s methodology, combining external and internal points of view. In the postscript of The Concept of Law, Hart stated, regarding his methodology, that participants manifest their internal point of view in accepting the law as providing guides to their conduct and standards of criticism. Of course a descriptive legal theorist does not as such himself share the participants’ acceptance of the law in these ways, but he can and should describe such acceptance, as indeed I have attempted to do in this book. It is true that for this purpose the descriptive legal theorist must understand what it is to adopt the internal point of view and in that limited sense he must be able to put himself in the place of an insider; but this is not to accept the law or share or endorse the insider’s internal point of view or in any other way to surrender his descriptive stance.59

In brief, the descriptive legal theorist must understand the law as an insider but not give up his neutrality, thus facilitating a morally neutral description. The idea that the internal perspective is the only feasible way to describe a legal system is not held by the legal positivists; it belongs to Ronald Dworkin, who steadfastly opposed Hart.60 Why did Hart adopt the combination of external and internal points of view instead of only the external point of view? Hart opposed the purely external point of view, as exemplified in his article Scandinavian Realism.61 In his analysis of natural law theory, Hart adopted Mill’s separation of the laws in the descriptive sense and the laws in the prescriptive sense: The former, which can be discovered by observation and reasoning, may be called ‘descriptive’ and it is for the scientist thus to discover them; the latter cannot be so established, for they are not statements or descriptions of facts, but are ‘prescriptions’ or demands that men shall behave in certain ways.62

Hart argued that the Scandinavian realism ‘fails to mark and explain the crucial distinction that there is between mere regularities of human behaviour and rule-governed behaviour. It thus jettisons something vital to the understanding not only of law but of any form of normative social structure’.63 Hart considered that the pure empirical realist method could not succeed in the study of law because it could not grasp the normative social structure of law. Thus, the internal perspective is necessary for understanding law. If a general and universal concept of law is brought about, theorists must separate

59 Ibid., at 242. 60 Ronald Dworkin, Law’s Empire (Cambridge: The Belknap Press of Harvard University Press, 1986). 61 H. L. A. Hart, Scandinavian Realism, in Essays in Jurisprudence and Philosophy (Oxford: Clarendon Press,1983), 161–169. 62 See H. L. A. Hart, The Concept of Law (n.9), 186–7. 63 H. L. A. Hart, Essays in Jurisprudence and Philosophy (Oxford: Clarendon Press, 1983), 13.

348

Yanxiang Zhang

themselves from a particular legal system and maintain moral neutrality for an objective description of law. This is Hart’s external point of view. This methodology of Hart was met with fierce criticism from Dworkin, who held that the nature of legal theory could not be general and descriptive but only contextual, interpretative and argumentative: Legal practice, unlike many other social phenomena, is argumentative. Every actor in the practice understands that what it permits or requires depends on the truth of certain propositions that are given sense only by and within the practice; the practice consists in large part in deploying and arguing about these propositions.64

Dworkin argued that the external perspective is not feasible and that ‘Theories that ignore the structure of legal argument for supposedly larger questions of history and society are therefore perverse. They ignore questions about the internal character of legal argument, so their explanations are impoverished and defective’. In light of this, Law’s Empire takes up the internal, participants’ point of view; it tries to grasp the argumentative character of our legal practice by joining that practice and struggling with the issues of soundness and truth participants face.65

With Dworkin’s criticism as his main concern, Hart wrote the postscript ‘to clarify what is obscure, and to revise what I originally wrote where it is incoherent or contradictory’.66 Hart sought to endorse his own theory with a revised defines. However, Dworkin did not change his position. First, they had a fundamental divergence of opinion on the subject of legal practice and the nature of legal theory. Second, in Dworkin’s view, because of the combination of external and internal points of view, Hart’s methodology was not consistent. Dworkin called Hart’s linguistic analytical methodology a ‘semantic sting’67 and ‘plain-fact view of law’,68 as exemplified in Hart’s rule of recognition. According to Hart, a developed legal system comprises primary rules and secondary rules. Primary rules are rules of obligation, which require the internal point of view to understand. Primary rules have three defects: uncertainty, stasis and inefficiency. The corresponding remedies for these defects are rule of recognition, rule of change and rule of adjudication. The validity of law depends on the rule of recognition, the ultimate and supreme rule of a legal system, which recognises the truth of propositions of law. The existence of the rule of recognition is a matter of fact.69 As to the disagreements regarding the truth of propositions of law, Dworkin distinguished two kinds: empirical and theoretical disagreements. Empirical disagreement is easy to resolve, but theoretical 64 65 66 67 68 69

See Ronald Dworkin, Law’s Empire (n.60),13. Ibid., at 14. See H. L. A. Hart, The Concept of Law (n.9), at 239. See Ronald Dworkin, Law’s Empire (n.60), at 45–46. Ibid., at 6–11, 15, 20, 31. See H. L. A. Hart, The Concept of Law (n.9), at 91–110; See Ronald Dworkin, Law’s Empire (n.60), at 6–11, 31–35.

The Separation Thesis and H. L. A. Hart’s Legal Positivism

349

disagreement is very difficult to resolve because it concerns the grounds of law, which relate to fundamental political issues. However, the linguistic analytical method cannot cope with the fundamental political issue. Dworkin observed, ‘[Austin and Hart] said that propositions of law are in essence factual and therefore make, in themselves, no claim at all about what any official or citizen should actually do’.70 Dworkin put forward a quite different proposition: A full political theory of law, then, includes at least two main parts: it speaks both to the grounds of law – circumstances in which particular propositions of law should be taken to be sound or true – and to the force of law – the relative power of any true proposition of law to justify coercion in different sorts of exceptional circumstance. These two parts must be mutually supportive. … A general theory of law therefore proposes a solution to a complex set of simultaneous equations.71

Mainly in response to Dworkin’s attribution of semantic sting and plain-fact positivism to him, Hart wrote the special section ‘Soft Positivism’ in the postscript, stating emphatically that his methodology was not complete positivism and not necessarily exclusive of morality because, as he had elaborated before, nothing can eliminate this duality of a core of certainty and a penumbra of doubt when we are engaged in bringing particular situations under general rules. This imparts to all rules a fringe of vagueness or “open texture”, and this may affect the rule of recognition specifying the ultimate criteria used in the identification of the law as much as a particular statute.72

Hart necessarily reserved space for moral argument, as embodied in his acknowledgment of judicial discretion.73 However, according to Dworkin, this would run counter to not only the fundamental political principle of separation of powers but also the rule of law that law cannot be retroactive.74 The descriptive-explanatory method has not fully been carried out in the morally neutral sense in Hart’s legal theory; instead, the method he adopted is conceptual analysis, which has value judgment as its basis.75 Through his analysis of ‘the minimum content of natural law’ and ‘the external point of view’, it is evident that Hart, in his legal positivism, acknowledged that a legal system could be established only if some moral conditions were satisfied, although this means that law and morality cannot be separated. Hart also acknowledged judicial discretion, but this also means that law and morals are necessarily intertwined. Finally, legal theorists can offer objective descriptions of law with an outsider’s morally neutral external point of view. Thus, it is obvious that in Hart’s legal positivism, there arose fundamental sharp contradictions between his particular claims, including the necessary relation beSee Ronald Dworkin, Law’s Empire (n.60), at 109. Ibid., at 110. See H. L. A. Hart, The Concept of Law (n.9), at 123. Ibid., at 272–276. See Ronald Dworkin, Law’s Empire (n.60); Ronald Dworkin, Taking Rights Seriously, (Cambridge: Harvard UP, 1978), 81. 75 See Stephan R. Perry, ‘Beyond the Distinction between Positivism and Non-positivism’ (n.7), at 315.

70 71 72 73 74

350

Yanxiang Zhang

tween law and morals and the separation of law and morals. Hart struggled to establish his legal positivism, robbing Peter to pay Paul due to the fundamental contradictions between his particular claims in his general legal theory. Concluding Remark From the publication of The Concept of Law in 1961 until his death in 1992, Hart had been constantly defending his legal positivism with some revision. Despite long-time criticisms from others and his own acknowledgement of inconsistency in his legal positivism, Hart steadfastly stuck to legal positivism. Why? I think there are two direct reasons. First, Hart thought his soft positivism had strong explanatory power for legal practice. Second and more fundamentally, Hart strongly believed in the theoretical basis of his legal positivism – that is, of the ordinary linguistic philosophy of which he was a co-founder. Despite his persistent and painstaking efforts, however, the edifice of Hart’s legal positivism finally collapsed. The fundamental reason for this collapse was his mistaken understanding of the core issues of meaning and truth in philosophy, as exemplified in his misunderstanding of Wittgenstein’s later philosophy.76 Following Moore’s separation of emotion and cognition, modern positivism cut passion away from experience and thus became a mutilated version of classical positivism.77 Nevertheless, Hart went farther than Moore, not only cutting passion away from experience but also regarding necessary moral conditions as morally independent social facts, as thus ultimately leading to the failure of his legal positivism.

76 In The Concept of Law, there are several references to Wittgenstein’s later philosophy. But his understanding of Wittgenstein’s later philosophy is obviously wrong. I will dedicate a special essay to address it. 77 Mary Pickering, Auguste Comte: An Intellectual Biography, Vol. 1 (n. 45).

The Minimal Content Of Natural Law In What Sense is it Really Natural? Henrique Gonçalves Neves*

Introduction This paper is focused on the thesis of the minimal content of natural law proposed by H. L. A. Hart. Since Hart proposed it, the thesis is subjected to considerable criticism. The convergence point of most of the criticisms are to consider Hart’s account of Natural Law, by claiming consequently its incompatibility with theories of Legal Positivism. My aim is to defend how the minimal content of Natural Law in Hart’s Legal Positivism should be interpreted. I argue that the minimal content of Natural Law displays both a natural and a conventional aspect. The former is related to human nature concerning in its factual aspect, whereas the latter concerns the human conventions that set the normative core of the minimal content of Natural Law by means of collective intentionality. This paper is divided into four parts. First, I argue that the investigation of the minimal content of Natural of Law is inserted in the field of General Jurisprudence. After that, I contextualize the issue of Natural Law in Hart’s Legal Positivism. In the second part, I treat the thesis of Hart’s essay Are there any natural rights?. The third part is devoted to the explanation of the five truisms that build the reasoning for the minimal content. In the fourth part, that reasoning is analyzed by showing Hart’s account resembles David Hume’s account of human nature in A Treatise of Human Nature, Book III, Part II, Of Justice and Injustice. Subsequently, I reply the naturalistic fallacy objection to normativity of the minimal content of Natural Law using the assumption of survival as human goal and John S. Searle’s concept of collective intentions. Concluding, I advance an interpretation of how the minimal content of Natural Law should be understood.

*

Ph.D. Student at Hermann Kantorowicz Institute, Christian-Albrechts-Universität zu Kiel, DAAD scholarship holder ([email protected]). I should like to thank André Ribeiro for suggestions and advice on matters of English style.

352

Henrique Gonçalves Neves

Part one: Natural Law on Hart’s Legal Positivism In The Uses of the Study of Jurisprudence, John Austin considered General Jurisprudence as “the science concerned with the exposition of principles, notions, and distinctions which are common to systems of law. […] Of the principles, notions, and distinctions which are the subjects of general jurisprudence, some may be esteemed necessary.”1 In Austin’s view, there must be common necessary elements to all legal systems, which the General Jurisprudence should deal with. In the introduction of Austin’s The Province of Jurisprudence Determined, H. L. A. Hart writes that Austin ascribe to General Jurisprudence an analytical perspective. In accordance with it, the legal Jurisprudence “is concerned with what is ‘necessary’ and “bottomed in the common nature of man.”2 For that reason, Hart asserted that Austin “has identified himself with what is most intelligible in the Natural Law theories which he despised.”3 It is worth noting that the investigation concerning the minimal content of Law can be situated in the field of General Jurisprudence. Thus, it leads to regarding Hart’s minimal content as a necessary element, but not sufficient, for the existence of legal systems. Over the years, several criticisms have been addressed against the thesis of the minimal content of Natural Law. The focus of those criticisms is an alleged theoretical, and conceptual, incompatibility of Natural Law with Legal positivism. The general claim that is made for this criticism is that the existence of natural rights would collide with two main thesis of Legal Positivism: the separation of law and morals and the inexistence of natural rights. On Hart’s Legal Positivism it can be noted an attempt to harmonize, on one side, the existence of a necessary core of rights and obligations with systems of positive law. Hart has labeled such necessary core the minimal content of Natural Law. His argumentation takes into account facts concerning human nature that are undeniable, though contingent, and that are related both to the survival as human goal and to the association of individuals for a community life. On this context one can say of a normative framework within with the minimal content of Natural Law can be set out by creating a set of rights and obligations. On Hart’s work, the thesis of minimal content of Natural Law can be found explicitly in: (i) Positivism and the Separation of Law and Morals, 1958, section V; (ii) The Concept of Law, 1963, chapter 9 Law and Morals; (iii) Problems of the Philosophy of Law, 1967, section Problems of the criticism of Law.

1 2 3

John Austin, The Province of Jurisprudence Determined and The Uses of the Study of Jurisprudence (edition reprinted) (Indianapolis-Cambridge: Hackett Publishing Company, 1954), at 367. H. L. A. Hart, Introduction, in John Austin, The Province of Jurisprudence Determined and The Uses of the Study of Jurisprudence, (Indianapolis-Cambridge: Hackett Publishing Company, 1954). Ibid.

The Minimal Content Of Natural Law

353

In 1955, Hart published Are there any natural rights?. In this essay, Hart’s main thesis is that “there is at least one natural right, the equal right of all men to be free.”4 I would like to point two things regarding this article before analyzing it. First, a collection of Hart’s essays was published in 1983 under the heading Essays in Jurisprudence and Philosophy. In this book, Hart did not include the aforementioned essay by justifying as follows: “[A]n article ‘Are there any natural rights’ published in 1955, and though it attracted some attention I have not included it here, since its main argument seems to me to be mistaken and my errors not sufficiently illumination to justify re-printing now.”5 I think Hart has underestimated the importance of that essay and has neglected that it could conform with his others works. Hence, one of my aims is to demonstrate that the thesis of Are there any natural rights? and the minimal content of Natural Law go well together. Second, the claim that only one natural right exists does not seem to have prima facie any connection with the thesis of the minimal content of Natural Law. However, one of this paper’s purposes consists in demonstrating the compatibility of the minimal content with the aforementioned core thesis. In this way, the next section is addressed to tackle the main issues of the essay Are there any natural rights? Part two: Are There Any Natural Rights? Hart postulates that “if there any moral rights at all, it follows that there is at least one natural right, the equal right of all men to be free.”6 In the form of a hypothetical proposition, the thesis has an antecedent and consequent. That is, such equal right as a natural right can only exist, if there exist moral rights. The thesis expresses a “general principle”, namely “the equal right of all men to be free” that assures to each human being capable of choice (i) “the right to forbearance on the part of all others from the use of coercion or restraint against him save to hinder coercion or restraint”7, and (ii) “the liberty to do […] any action which is not one coercing or restraining or designed to injure other persons.”8 According to Hart, the very two reasons that give a natural character to the general principle have already been “emphasized by the classical theorists of natural rights.”9 The first reason, the so called argument of capacity of choice, ascribes the equal right of all men to be free to every human being capable of choice, regardless of whether “they are members of some society or stand in some special relation to each other.”10 The second H. L. A. Hart, Are There Any Natural Rights, in The Philosophical Review, Vol. 64, No. 2, (Apr., 1955) (at 175–191), at 175. 5 H. L. A. Hart, Introduction, in H. L. A. Hart, Essays in Jurisprudence and Philosophy, (Oxford: Clarendon, 1983), at 17. 6 See Hart, Are there any natural rights? (n. 4), at 175. 7 Ibid. 8 Ibid. 9 Ibid. 10 Ibid., at 175. 4

354

Henrique Gonçalves Neves

reason, the argument of human convention, states that the general principle has not been created by an act of will. Furthermore, I would add the argument of absolute character in accordance with which the equal right of all men to be free is “absolute, indefeasible or imprescriptible.”11 The key to understand the aforementioned general principle lies in the antecedent of the hypothetical proposition. And the concept of moral right is crucial here. Hart claims that “the concept of a right belongs to that branch of morality which is specifically concerned to determine when one person’s freedom may be limited by another’s and so to determine what actions may appropriately be made the subject of coercive legal rules.”12 It follows from this passage that “to have a [moral] right entails having a moral justification for limiting the freedom of another person and for determining how he should act.”13 Summarizing: The interference with the freedom of another person requires a moral justification that has to be based on rights, since to have a right gives rise to a moral justification for imposing limits on freedom of the other. It is important for this account to spell out the distinction between (1) special rights14 and (2) general rights15. 1 Special Rights Special rights are those that arise from special transactions or special relationships, in which parties create for themselves rights and obligations. Special rights are moral rights, whereby the moral justification for limiting the freedom of the other is only related to certain parties and the normative content of the relationship or transaction. The paradigmatic case of a special right is a promise.16 Whereas one person waives part of his freedom by committing himself to do or not to do something, i. e. by assuming an obligation, the other person acquires a right that entails a moral justification for demanding the performance of the assumed obligation. Another case concerns consenting and authorizing17 another person to interfere with specific affairs. In this case, the authorized individual becomes entitled, by means of consent or authorization, to determine how those affairs should be. There is still the case of mutuality of restrictions. It has to do with the notion of the social contract as the origin of socio-political obligations. On this view, the individuals decide to settle a political community through association and by abdicating a parcel of their freedom. The community rests on social agreements and a system of mutual co-operation; and it can then be conceived as a collective enterprise based on a set of 11 12 13 14 15 16 17

See Ibid., at 176. Ibid., at 177. Ibid., at 183. Ibid., at 183–7. Ibid., at 187-8. Ibid., at 183–4. Ibid.

The Minimal Content Of Natural Law

355

rules concerning distribution and limitation of individual freedom. The purpose of those rules is to bring about basic conditions for social living. Consequently, community members have the moral duty of following the rules, only to the extent that those rules ensure the provision of basic conditions. All in all: Special rights deal with cases whereby one person grants freely a right (i. e., moral authorization) to other individuals by means of which they are allowed to interfere with her freedom. 2 General rights In contrast to special rights, general rights are created neither by special transactions nor by special relations. According to Hart, “[t] o assert a general right is to claim in relation to some particular action the equal right of all men to be free in the absence of any of those special conditions which constitute a special right to limit another’s freedom.”18 Hence, general rights have to do with the right that each human being has to demand from others, in the absence of a legitimate moral justification that they abstain from interfering with his freedom. It is important to emphasize that “[t]he assertion of general rights directly invokes the principle that all men equally the right to be free; the assertion of a special right […] invokes indirectly.”19 Still, I draw attention to two terms: moral right and moral justification. I am concerned with the meaning of moral, because of the effects brought out by Hart’s assumption of moral relativism. The claim that “the equal right of all men to be free would be compatible with gross inequality”20 is a theoretical consequence of this assumption. In this way, it can be seen that moral justifications for limiting the freedom of another person (including the use of coercive measures) might build distinct modes of behavior, physical differences, disagreements concerning beliefs, and so on. Hart fastens on the absolute, indefeasible and imprescriptible character of the equal right of all men to be free. But he drains from this natural right the character of justice typical of Natural Law theories. However, he makes explicit that in the case of promise, consent and authorization exists a fair justification for limiting the freedom, whose results depends on the capacity for free choice. Regarding the mutuality of restrictions, the legitimate justification arises from the “equal distribution of restrictions and so of freedom among this group of men.”21

18 19 20 21

Ibid., at 188. Ibid. Ibid., at 189. Ibid., at 191.

356

Henrique Gonçalves Neves

Part Three: Explaining the Minimal Content of Natural Law 1 General View Three years before the final account of minimal content of the Natural Law on his work The Concept of Law, Hart has already tackled with this issue on the essay Positivism and the Separation of Law and Morals. On the framework of the General Jurisprudence, Hart’s account can be regarded as an investigation addressed to find out the necessary provisions for legal systems. In this view, the minimal content shows up as the outcome of a theoretical-philosophical analysis whose purpose is to suggest the common elements that are necessary for all systems of law. The account of the minimal content of Natural Law is based on five truisms. They are related to “elementary truths concerning human beings, their natural environment, and aims.”22 In this section, I will spell out each truism. However, let me begin by pointing out four relevant aspects relating to that account. (i) Contingent character. Although the facts that underpin the truisms display a contingent character, “on it at present rest huge structures of our thought and principles of action and social life.”23 (ii) Necessary character. The rules related to the minimal content are fundamental and necessary, so that without them it would make no sense to conceive the existence neither of moral system nor of a legal one. (iii) Connection between Law and Morals. “Such rules do in fact constitute a common element in the law and the conventional morality of all societies.”24 (iv) Connection between facticity and normativity. The minimal content points to a “rational connection between natural facts and the content of legal and moral rules.”25 2 The Five Truisms 2.1 Human Vulnerability The first truism regards the natural fact concerning the human physiology. Although it can be considered as a matter of evolutionary contingency that can lead to other facts and circumstances, at present it is undeniable the truthfulness of following claim: Human beings are vulnerable to physical attacks. Therefore, it is imperative for the social living that individuals (have to) commit with a system of mutual forbearance “that restrict the use of violence in killing or inflicting bodily harm.”26 22 H. L. A. Hart, The Concept of Law, second edition, (New York: Oxford University Press, 1994), at 193. 23 H. L. A. Hart, Positivism and the Separation of Law and Morals, in H. L. A. Hart, Essays in Jurisprudence and Philosophy, (Oxford: Clarendon, 1983), at 80. 24 See H. L. A. Hart, The Concept of Law (n. 22), at 193. 25 Ibid. 26 Ibid., at 194.

The Minimal Content Of Natural Law

357

2.2 Approximate Equality The second truism is also related to the abovementioned natural fact. The approximate equality rests on the fact that “men differ from each other in physical strength, agility, and […] in intellectual capacity.”27 However, although men differ in physical and intellectual capacities, the differences among them are not so considerable, that it can result in individuals with much more power than others. That “[e]ven the strongest must sleep at times and, when asleep, loses temporarily his superiority”28 substantiate the current truism. This fact strengthens the necessity of a system of mutual forbearance that embeds “basic moral principles vetoing murder, violence, and theft.”29 2.3 Limited Altruism The fact that supports the third truism does not refer to biological verifiable facts, rather to human intentionality. That is, while the two-abovementioned truisms are found out by observing the human physiology, the limited altruism is grounded on human desires, beliefs and intentions. It is true that human beings do swing between goodness and wickedness. This fact constitutes another justification to carry out a system of mutual forbearance. 2.4 Limited Resources In order to spell out the fourth truism, I would like to introduce two categories of facts referring to human nature: (i) natural category and (ii) social category. (i) The natural category refers to fact that the “human beings need food, clothes, and shelter; that these do not exist at hand in limitless abundance; but are scarce, have to be grown or won from nature, or have to be constructed by human toil.”30 Hart affirms that this state of affairs is contingent to the extent that it could be otherwise. (ii) The social category touches on the human disposition to social living. The social life reposes on social agreements that set out a basic system of forbearance and compromise and a system of mutual co-operation. Without such normative basis none human association could be carried out and consequently the attainment of several human goals would be ruled out.

27 28 29 30

Ibid., at 195. Ibid. See Hart, Positivism and the Separation of Law and Morals (n. 23), at 80. See Hart, The Concept of Law (n. 22), at 196.

358

Henrique Gonçalves Neves

From the truth of such facts follows the indispensability “of some minimal form of institution of property […] and the distinctive kind of rule which requires respect of it.”31 Initially, such rules concerning property create rights and impose obligations that are alterable.32 They are namely static rules. But over the development of the social life it becomes needful another type of rules that “enable individuals to create obligations and to vary their incidence.”33 Dynamic rules in turn make a crucial contribution to the division of labor and system of co-operation. Such rules make it possible promises that then are recognized as a source of obligations; and contractual arrangements therewith may emerge. In that context, a network of mutual expectations and beliefs arises. With all of this, the social life gets more complex. 2.5 Limited Comprehension and Strength of Will The limited comprehension and strength of will is closely connected with the limited altruism. If in small and cohesive societies the commitment to the system of mutual forbearance and compromise is so strong that the deviation would be rare, that could no be applied to complex societies. In these societies, enforcing sanctions and punishments are then both (i) possible and (ii) necessary. (i) The possibility of sanctions and punishment rest on human vulnerability and approximate equality. In the case of transgressors do have much more physical power than the enforcer of sanctions, it would not be possible to punish deviations. (ii) Regarding necessity, sanction aims at intervening in the limited altruism by discouraging the individuals from transgressing the common rules. According to Hart, “‘[s]anctions’ are therefore required not as the normal motive for obedience, but as a guarantee that those who would voluntarily obey shall not be sacrificed to those who would not.”34 Part Four: Analyzing the Minimal Content of Law 1 On Hume’s Account Concerning the Human Nature Dealing with the relationship between human nature, association of individuals and laws of equity and justice, Hart makes explicit the reference to Hume’s reasoning in A Treatise of Human Nature35. But it is worth noting that Hume’s influence on the account

31 32 33 34 35

Ibid., at 196. Ibid. Ibid. Ibid., at 198. Ibid., at 191.

The Minimal Content Of Natural Law

359

of minimal content of Natural Law goes beyond those issues. Hereafter I will spell out the points of convergence of both accounts. 1.1 Limited Altruism Hume approaches the limited altruism and its relation with normative contents that guide human behavior.36 Hart’s reasoning resembles to Hume’s. 1.2 Limited Resources On this issue the common grounds can be again ascertained. Hume asserts human survival depends on labor, ownership of things like shelter, clothes, as well as means of food production.37 It follows from this that property should be laid down by setting rules. Hume argues that rules addressed to create the institution of property are necessary to the establishment of human society.38 1.3 Mutual Co-Operation Both Hume and Hart stress out the fundamental importance of the co-operation for social life. Hume argues that labor division and a system of co-operation back up human society. It is about a social agreement whose normative content comprises rules that “enable men to live and organize their lives for the more efficient pursuit of their aims.”39 This notion lies in the framework of social contract theories. Hume clears up that the state of nature is very fiction40, because “[i]t is utterly impossible for men to remain any considerable time in that savage condition, which precedes society.”41 The social commitment for social life comes out of the empirical verification that distributing and limiting the freedom brings more benefits that damages. “Society is necessary to the 36 “[I]t is only from the selfishness and confined generosity of men, along with the scanty provision nature has made for his wants, that justice derives its origin”. David Hume, A Treatise of Human Nature (first publ. 1888), (Oxford: Clarendon Press, 1965), at. 495. 37 “Not only the food, which is required for his sustenance, flies his search and approach, or at least requires his labour to be produced, but he must be possessed of cloths and lodging, to defend him against the injuries of the weather; though to consider him only in himself, he is provided neither with arms, nor force, nor other natural abilities, which are in any degree answerable to so many necessities”. Ibid., at 495. 38 “No one can doubt, that the convention for the distinction of property, and for the stability of possession, is of all circumstances the most necessary to the establishment of human society”. Ibid., at 491. 39 H. L. A. Hart, Problems of the Philosophy of Law, in H. L. A. Hart, Essays in Jurisprudence and Philosophy, (Oxford: Clarendon, 1983), at 113. 40 “This state of nature, therefore, is to be regarded as a mere fiction”. See Hume, A Treatise of Human Nature (n. 36), at 483. 41 “[I]t is utterly impossible for men to remain any considerable time in that savage condition, which precedes society”. Ibid., at 483.

360

Henrique Gonçalves Neves

satisfaction of those very passions, they are naturally induced to lay themselves under the restraint of such rules, as may render their commerce more safe and commodious”42, in Hume’s words. 1.4 Contingency of Facts and Human Conventions Justice is deemed by Hume to be an outcome from human conventions, in whose creation human intentionality, contingent facts and social conditions are crucially important. Justice is relative because of the relativity of human conventions and the contingency of facts. Both are presented on Hart’s reasoning. 1.5 Promises Hume underscores the promises as sources of obligations. They figure as human conventions that contribute for the stability of social structure.43 Hart also defends the crucial role of promises in the social life.44 It is possible to observe that Hart’s reasoning takes into account the arguments developed by Hume to a great extent in the argumentation of the minimal content of Natural Law, as I briefly already demonstrated it. I have drawn attention above to the five points of convergence. But there still remains one quite important point I have to empathize, namely that both Hart’s minimal content of Natural Law and Hume’s account on Justice and Injustice raises no claims of justice. That is, they can embrace unjust or unfair normative contents. Both accounts only argue the necessity of a normative core for having a society, in Hume’s case, and a legal or moral system, in Hart’s. 2 Analyzing the Truisms The minimal content of law indicates a normative core, on which morality and law must build. It consists of a system of rules that regulates the distribution of human freedom in social life. Thus, such a system zeros in on “restricting the use of violence, protecting certain forms of property, and enforcing certain forms of contract45” through the enforcement of sanctions in the case of transgressions. Implementing such normative

42 “After men have found by experience, that their selfishness and confined generosity, acting at their liberty, totally incapacitate them for society; and at the same time have observed, that society is necessary to the satisfaction of those very passions, they are naturally induced to lay themselves under the restraint of such rules, as may render their commerce more safe and commodious”. Ibid., at 498–9. 43 Ibid., at 516–25. 44 See Hart, The Concept of Law (n. 22), at 196–7. 45 See Hart, Problems of the Philosophy of Law (n. 39), at 112.

The Minimal Content Of Natural Law

361

core by means of “general rules clearly framed and publicly promulgated”46 is “the most efficient form of social control”47 towards a complex society. The current analysis will be divided into four stages. First, I will cope with (2.1) the natural character of the facts. Second, I will tackle the issue of (2.2) human association and social co-operation. Third, I will outline the (2.3) naturalistic fallacy objection concerning the normativity of the minimal content of Natural Law. At last, I will reply to this objection by using (2.4) survival as human goal on the framework of collective intentionality. 2.1 The Natural Character of the Facts It has been stated that human vulnerability, approximate equality and limited resources rest on empirical findings. All human beings are subject to natural conditions that match a common facticity. They all live, hence, with their natural body under natural circumstances. Therefore, this class of facts I will call human nature in physical sense. In turn, the natural facts concerning the limited altruism and the limited comprehension and strength of will can be understood by taking into account human nature in another sense. The human disposition to goodness and wickedness is an empirically observable fact on human behavior. Hence, this class of facts I will call human nature in intentional sense. 2.2 Human Association and Social Co-operation One of the grounds for the minimal content of Natural Law is the assumption of human association and social co-operation. Grouping individuals under certain set of rules is a way to organize the social life based on the coordination of activities. Such understand is in conformity with the basic account of social contract theories. If there are human beings only within a society, then there must be an elementary social structure that enables the social life. Therefore, human association and social co-operation belongs to human nature in intentional sense, since the disposition for social life leads to forming a collective intentionality.

46 Ibid., at 115. 47 Ibid.

362

Henrique Gonçalves Neves

2.3 Naturalistic Fallacy Objection The naturalistic fallacy has to do with the is-ought problem48. According to it, normative propositions (ought) cannot be deduced from descriptive proposition (is). That is, from facts cannot result norms. Applying it in Hart’s account, it can be argued that his account fails for incurring in such fallacy. In my opinion, this objection is not applicable; and I will demonstrate why is it not applicable in the following. 2.4 Survival as Human Goal on the Framework of Collective Intentionality Hart assumes “that the proper end of human activity is survival.”49 This assumption is related to a teleological conception of nature, whereon the continued existence would be the proper end of human beings50. This point has attracted many criticisms51. I do not intend to cope with this issue for two reasons. First of all, for it doesn’t seem to me so problematic. Secondly, for it is possible to vindicate the thesis of the minimal content of Natural Law without dealing with that issue. I do focus on demonstrating that human survival is a type of intentional state. In order to explain the will to live as an intentional state, I refer to two facts. The first is the “contingent fact that most men most of the time wish continue in existence.”52 It is contingent, for nothing prevents the world to become suddenly a suicide club. The second is verifiable on human language by the way of words and expressions, whose meanings exhibit such will to live, are used.53 The general will to live is an expression of collective intentionality. It bridges the gap between facticity and normativity. Each individual shares with others a collective 48 The is-ought problem, also called Hume’s Law, was so formulated: “In every system of morality, which I have hitherto met with, I have always remark’d, that the author proceeds for some time in the ordinary way of reasoning, and establishes the being of a God, or makes observations concerning human affairs; when of a sudden I am surpriz’d to find, that instead of the usual copulations of propositions, is, and is not, I meet with no proposition that is not connected with an ought, or an ought not. This change is imperceptible; but is, however, of the last consequence. For as this ought, or ought not, expresses some new relation or affirmation, ’tis necessary that it shou’d be observ’d and explain’d; and at the same time that a reason should be given, for what seems altogether inconceivable, how this new relation can be a deduction from others, which are entirely different from it. But as authors do not commonly use this precaution, I shall presume to recommend it to the readers; and am persuaded, that this small attention wou’d subvert all the vulgar systems of morality, and let us see, that the distinction of vice and virtue is not founded merely on the relations of objects, nor is perceiv’d by reason”. See Hume, A Treatise of Human Nature (n. 36), at 469–70. 49 See Hart, The Concept of Law (n. 22), at 191. 50 Ibid., at 189. 51 Concerning this criticism, see S. B. Drury, H. L. A. Hart’s Minimum Content Theory of Natural Law, in: Political Theory, Vol. 9, No. 4 (Nov., 1981), at 533–546; Rachel Patterson, The Minimum Moral Content of Law: a critique of Hart’s descriptive theory of positive and natural law, in: Canberra law review, vol. 8, 2005, at 9–23; Richard A. Epstein, The Not So Minimum Content of Natural Law, in: Oxford Journal of Legal Studies, Vol. 25, No. 2 (2005), at 219–255. 52 See Hart, The Concept of Law (n. 22), at 191. 53 Ibid., at 192.

The Minimal Content Of Natural Law

363

intentionality concerning survival as a common goal. As a rational being, they come to a decision of establishing social normativity that facilitates the achievement of their individual goals on the basis of a system of rules. It can therefore be concluded that the minimal content of Natural Law is carried out by way of human conventions. It is based on the human experience over the years, whereby the individuals have realized they must have a normative structure composed of rights obligations in order to assure social life. The normativity of the minimal content does not spring from the natural facticity; rather it comes from the collective human decisions based on collective intentionality. 3 Normative Framework of the Minimal Content of Law The minimal content of Natural Law encompasses four types of rules, and each of them has a particular normative framework. The four types are: (i) rules regarding mutual forbearance, specially those that restrict the use of violence; (ii) static rules that institute forms of property and its protection; (iii) dynamic rules concerning the creation, alteration and extinction of obligations; (iv) rules that provide for sanctions for the non-compliance with the rules. Here I bring up Searle’s distinction concerning regulative rules and constitutive rules. “Regulative rules regulate activities whose existence is independent of the rules; constitutive rules constitute (and also regulate) forms of activity whose existence is logically dependent on the rules.”54 It has to be noted that only the first type (i) is a regulative rule. They are rules that regulate very forms of behaviors that exist even in the absence of such rules. The other three types, in turn, are constitutive rules. By using latter rules, individuals institute, in this case, property55, promise, forms of contract, and sanctions. Constitutive rules create institutional facts that exist only because they are collective accepted or recognized. Institutional facts embrace rights and obligations that regulate the relations between individuals.56 Hence, they arise from the collective intentionality57, but they depend on brute facts to come into being.58 This view makes explicit the conventional character of the minimal content of Natural Law. Being actually implemented means that individuals have laid down rules with specific contents. The natural facticity obviously precedes the minimal content, once 54 John S. Searle, How to Derive “Ought” From “Is”, in: The Philosophical Review, Vol. 73, No. 1. ( Jan., 1964) (at 43–58), at 55. 55 According to Searle, “[i]nstitutional structures enable brute physical possession”. John S. Searle, The Construction of Social Reality, (London: Penguin Books, 1995), at 85. 56 See Searle, The construction of social reality (n. 55), at 100. 57 For a thorough account concerning intentionality, see John S. Searle, Intentionality, (Cambridge: Cambridge University Press, 1983). 58 See Searle, The construction of social reality (n. 55), at 56.

364

Henrique Gonçalves Neves

the human nature exists before the creation of any kind of social and legal normativity. Notwithstanding, facticity and normativity are closely connected; nonetheless, without the latter to be derived from the former. The minimal content of Natural Law can be regarded as the institutionalization of the basic normative structure for social life. Concluding Remark: In What Sense is the Minimal Content of Natural Law Really Natural? The step towards the correct understanding of the minimal content of Natural Law is to withdraw it from framework of Natural Law theories. Considering it as one of such theories would lead us to do the same with Hume’s theory of justice, because of the resemblances between Hume’s reasoning and Hart’s. And it is not the case as I have already proved it. The minimal content of Natural Law does not spring from the natural facticity. Even though it takes into account this facticity, it was brought about by human conventions “that acquire[d] force by a slow progression, and by our repeated experience of the inconveniences of transgressing.”59 Its normativity is closely connected to the natural facticity, for the implementation of the rules and the achievement of individual goals take place there. It has to be distinguished the theoretical account of the minimal content of Natural Law and its implementation in the reality. Such account spells out its foundation and the normative framework, and justify its necessary character. But the content of rules is relative, even though they are bounded to a normative framework. Hence, the content of rules can vary from society to society, although they achieve their objective by assuring the social life. The thesis of minimal content of Natural Law and the core thesis of Are there any natural rights? can be aligned in the following way. The four types of rules concerning the former thesis are special rights, since they provide moral justifications for limiting the freedom of another person. On this account, the existence of such rules confirms the existence of moral rights (postulated by the latter thesis), and consequently the equal right of all men to be free. Hence, the former thesis proves the latter. Moreover, neither of the two theses raises claims of justice. On Are there any natural rights? Hart makes explicit the possibility of unfair or unjust moral justifications.60 On The concept of Law, both Morality and Law cannot recognize to all individuals the system of mutual forbearances, leaving individuals or groups of them outside the range of minimal protection.61 59 “Nor is the rule concerning the stability of possession the less derived from human conventions, that it arises gradually, and acquires force by a slow progression, and. by our repeated experience of the inconveniences of transgressing it”. See Hume, A Treatise of Human Nature (n. 36), at 490. 60 See Hart, Are there any natural rights? (n. 4), at 189. 61 See Hart, The Concept of Law (n. 22), at 200–1.

The Minimal Content Of Natural Law

365

The minimal content of natural law is a necessary but not sufficient condition to have a system of rules able to provide adequate reasons for following its rules and basic conditions for social living. It has to be underscored that the set of rules cannot be applied extensively and must not be just or fair at all. Human history substantiates this claim by verifying the existence of extreme unjust moral and legal systems. Searle’s distinction between regulative rules and constitutive rules makes the conventional character of the minimal content of Natural Law explicit. Its normative content, that regulates human behavior and brings into being institution, are underpinned by collective intentionality and natural facticity. The minimal content of Natural Law represents the basic institutional structure of a society. The term Natural Law on the minimal content of Natural Law must not be taken as an expression of theories of Natural Law. The proper sense of it is related to human nature in physical and intentional sense. But the rules are laid down by act of will. Hence, the minimal content of Natural Law display a natural and a conventional aspect. The natural aspect is connected with the facticity regarding human nature. The conventional one refers to the normativity concerning collective intentionality and capacity of choice. In this way, the collective rational decision to bring about basic conditions for assuring social life by taking into account the will to live, the social co-operation and the human nature culminates in setting out rules on the normative framework of the minimal content of Natural Law. It is much more likely that those rules have come about within the group culture, so that on its origin there was no separation into different normative frameworks. Thus, law, morality and customs formed an indivisible social normativity. Following the rules depend more on the acceptance and internalization of them, than on the enforcement of sanctions and punishments. The benefits that are provided by such system of rules constituted the best reasons for compliance of them. Without stabilizing arbitrary behaviors and building an interpersonal trust for social arrangements, no society comes into being. Any society requires routine, predictability and internal peace in order to flourish; and the basic condition for meeting such requirement is the minimal content of Natural Law.62 Its normative core figures as a common element both in legal systems and moral ones. On this view, it can be regarded as a necessary connection between Law and Morals. By concluding, I would like to underline two points. First, the minimal content of Law does not raise a claim of justice. Second, it is a necessary but not sufficient condition for existence legal and moral systems. Consequently, the exclusion of its content does not lead to invalidity of some rules or the whole system, rather to impossibility of its existence.

62 For the relation between internal peace and institutions in tribal societies, see Peter J. Richerson, Robert Boyd, Not By Genes Alone, How Culture Transformed Human Evolution, Chicago: Chicago Press, 2005, p. 288.

Is There a Moral Obligation to Obey the Law? Separation Thesis and Legal Theory in Croatia Marin Keršić

Introduction The question of the moral obligation to obey the law raises fundamental questions regarding the nature of both law and morals and their mutual relation, and as such is easily one of the most continuously discussed topics in legal theory. The purpose of this paper is to present some arguments of the position advocating the separation of law and morals in the context of the question of a moral obligation to obey the law from the background of the integral theory of law (integralna teorija prava), the representative for legal theory in Croatia.1 The first part of the paper will very briefly present the historical development and positions in contemporary legal theory in Croatia through the presentation of the integral theory of law of Nikola Visković, and in the second part the position on the relationship between law and morality and the question of the moral obligation to obey the law will be elaborated from the mentioned perspective. Part One: Croatian Legal Theory and Integral Theory of Law As a part of the continental civil law system, Croatia belongs to its Romano-Germanic branch, with a historically strong Austrian and later Yugoslavian influence, to the current EU and other international influences.2 The period under Austria in legal education 1

2

On the position of the integral theory of law as the dominant contemporary theory in Croatia, see Ivan Padjen, ‘Pouke pravnog monizma – povodom Marijan Pavčnik, Teorija prava: prispevek razumevanju prava, 5. pregledano i dopunjeno izdanje s novim poglavljem Aleša Novaka’, Collected Papers of Zagreb Law Faculty, 66 (2016), at 595 and at 600. See also Žaklina Harašić, ‘Viskovićeva teorija tumačenja u pravu’, Collected Papers of Split Law Faculty, 48 (2011), at 57–58. Padjen, ‘Pouke pravnog monizma – povodom Marijan Pavčnik, Teorija prava: prispevek razumevanju prava, 5. pregledano i dopunjeno izdanje s novim poglavljem Aleša Novaka’ (n. 1), at 596. For an overview of the development of the legal theory in Croatia in the 20th century, see Ivan Padjen, ‘Croatian Legal Philosophy and General Jurisprudence in the 20th Century’, in Enrico Pattaro, Corrado Roversi (eds.), A Treatise of Legal Philosophy and General Jurisprudence, vol. 12, t. 1 (Dordrecht: Springer, 2016), ch. 20.2. (at 662–674).

368

Marin Keršić

and legal thought was marked by the influence of other social and humanistic sciences, especially by the importance of legal history, while the period of first (monarchist) Yugoslavia was marked by the analytical, positivistic and legalistic approach.3 After the Second World War and the second (communist) Yugoslavia, the legal theory was, understandably, defined by Marxist influence. After the collapse of Yugoslavia, the legal culture in Croatia was back to its Western roots, as it was before Second World War. Nikola Visković developed his integral theory of law in his book Pojam prava (The Concept of Law, first published in 1976, second edition in 1981). The reason why the integral theory of law from Visković is taken as the framework in this paper is that it definitely shaped the legal theoretical thought in the decades following its publishing and as such is the best representative of the legal theory in Croatia, being widely accepted by other legal theorists.4 The starting position for the definition of the phenomenon called ‘law’ is the historical experience of the lawyers, and according to this position, ‘law’ should be observed through the objects of the experience of the lawyers; this position is labelled as ‘radically empirical’ by the author himself.5 This object of the historical experience of lawyers (‘law’) is comprised from the unity of three elements: relations, values and norms in a society; law forms social order, alongside with moral and custom.6 An important position in the integral theory of law is the indication of the importance of the methodological and ideological debates regarding the ‘law’ and the differentiation of legal theorists into three groups: natural lawyers, which see law primarily as a system of values, and only secondarily as a norm and behaviour, legalist and normativists which see law primarily as a system of norms which are valid regardless of their perceived (im)morality or efficacy, and sociologists, which see law primarily as social relations and interactions, where values and norms are ‘dependent factors’.7 These three ‘groups’ are differentiated from the following four criterions (points of dispute between legal theorists):8 1) the methodological problem of legal science (what is the approach and the method of understanding the law, e. g. dogmatic approach, empirical approach and others); 2) the problem of the nature of the definition (essentialism versus conventionalism); 3) the problem of the content of the law (what are the most important characteristics of the phenomena called ‘law’ and 4) the problem of the criteria of validity (what is the characteristic according to which we differentiate between law and other similar phenomena, such as morals and customs). The advantage of the integral theory of law, according to its advocates, is that it evades the overestimation of the significance of any of these three elements on the concept of law (values, norms or social relations and interactions), pointing out the ‘fundamental unity of the legal experience’ and the 3 4 5 6 7 8

Padjen, ‘Pouke pravnog monizma – povodom Marijan Pavčnik, Teorija prava: prispevek razumevanju prava, 5. pregledano i dopunjeno izdanje s novim poglavljem Aleša Novaka’ (n. 1), at 596–598. On the impact of Visković’s theory in Croatia see Padjen, ‘Croatian Legal Philosophy and General Jurisprudence in the 20th Century’ (n. 2), at 669. Nikola Visković, Pojam prava: prilog integralnoj teoriji prava, 2nd rev edn (Split: Logos, 1981), at 47–48. Ibid., at 300. Ibid., at 31. See also Harašić, ‘Viskovićeva teorija tumačenja u pravu’, (n. 1), at 58. Visković, Pojam prava: prilog integralnoj teoriji prava, (n. 5), at 7.

Is There a Moral Obligation to Obey the Law?

369

necessity to ‘grasp its object in its entirety’.9 What integral theory of law does is that it overcomes the reductionism made by these earlier legal theorists.10 Georges Gurvitch is mentioned as an influence:11 ‘The jural phenomenon is extremely complex, its structure being antinomic. Within it there come together autonomy and heteronomy, ideal elements and real elements, stability and mobility, order and creation, power and conviction, social needs and social ideals, experience and construction, and finally, logical ideas and moral values.’12

There are several other authors that are listed as forerunners of this integralist way of viewing the law, such as Friedrich Carl von Savigny and G. W. F. Hegel.13 Authors mentioned as an influence on the integral theory of law are, amongst others, Rudolf Stammler, Giorgio Del Vecchio, François Gény, and especially Emil Lask, Max Ernst Mayer and Gustav Radbruch with their culturalist approach.14 Visković is particularly influenced by Miguel Reale’s three-dimensional theory of law (a ‘factual’ one consisting of social relations, an ‘evaluative’ one consisting of values and a ‘normative’ one consisting of positive norms) which aims to overcome the shortcomings of the natural law, normativist and sociologist perspectives.15 Also, an important influence to contextualize the integral theory is Carlos Cossio with his egological theory of law, based on the relations, values and norms, with roots in phenomenology and existentialist philosophy.16 Visković later published a book titled Law as a Culture: Egological Theory of Law of Carlos Cossio.17 These three elements (relations, values and norms) form the content of the law18, which is defined by Visković as a system of norms, created by both state and society, which regulates the most important and most conflicting social relations in order to achieve values such as peace, justice, legal certainty and other dominant values.19 In this 9 10 11 12 13 14 15 16

17 18 19

Ibid., at 31–33. See also Nikola Visković, Teorija države i prava, 2nd rev edn (Split: Birotehnika, 2006), at 111–113. Visković, Teorija države i prava (n. 9), at 89–90; Harašić, ‘Viskovićeva teorija tumačenja u pravu’, (n. 1), at 58. Visković, Pojam prava: prilog integralnoj teoriji prava (n. 5), at 33. Georges Gurvitch, Sociology of Law (London: Kegan Paul, Trench, Trubner & Co. Ltd., 1947), at 40. Visković, Pojam prava: prilog integralnoj teoriji prava (n. 5), at 34. Ibid., at 34–35; Nikola Visković, Teorija države i prava (n. 9), at 112. Ronaldo Porto Macedo Jr., Carla Henriete Bevilacqua Piccolo, ‘Philosophy of Law in Brazil in the 20th Century’, in Enrico Pattaro, Corrado Roversi (eds.), A Treatise of Legal Philosophy and General Jurisprudence, vol. 12, t. 1 (Dordrecht: Springer, 2016), at 851–852. Padjen, ‘Croatian Legal Philosophy and General Jurisprudence in the 20th Century’ (n. 2), at 669; Visković, Teorija države i prava (n. 9), at 112. On the phenomenology and existentialism and its relation with Cossio’s work, see Manuel Atienza, ‘20th Century Philosophy of Law in Argentina’, in Enrico Pattaro, Corrado Roversi (eds.), A Treatise of Legal Philosophy and General Jurisprudence, vol. 12, t. 1 (Dordrecht: Springer, 2016), at 820–823. Nikola Visković: Pravo kao kultura: egološka teorija prava Carlosa Cossija (Rijeka: Izdavački centar Rijeka, 1990). Visković, Pojam prava: prilog integralnoj teoriji prava (n. 5), at 23; Padjen, ‘Croatian Legal Philosophy and General Jurisprudence in the 20th Century’ (n. 2), at 668–669. Visković, Pojam prava: prilog integralnoj teoriji prava (n. 5), at 46–47 and 64; Visković, Teorija države i prava (n. 9), at 111–112 and 115.

370

Marin Keršić

sense, social relations, values and norms are not only elements of the law, but its sources: social relations are material sources of law, legal values are ethical sources of law, while legal norms are formal sources of law.20 This division into three elements derives from the three criteria of validity, which come from the analysis of the relationship between the is (Sein) and the ought (Sollen).21 Regarding the is and the ought distinction, Visković indicates three dimensions (the threefold distinction is based on the ‘split’ in the three ‘camps’ in legal theory thought) where the relation of the is and the ought should be analyzed: first, the ‘ontological’ level, secondly, the ‘socio-psychological’ level and, thirdly, the ‘linguistic’ level.22 In this context, these three positions differ in the approach to the relation between behaviours, values and norms: in the first, ontological perspective the is and the ought form a unity; in the second, socio-psychological perspective the is and the ought are mutually influenced; in the third, linguistic perspective, the is and the ought are conflicted.23 Part Two: Law and Morals The important position in the integral theory of law is the conceptual separation of law and morals; they are seen as different normative orders which regulate the complexities of the society (together with custom as the third one).24 Society is full of conflicting relations that need to be disciplined, controlled or ordered, so the society maintains its stability and integrity by regulating those relations through law, morals and custom.25 The distinction between law, morals and custom follows the previously mentioned understanding of the (content of) law as consisting of three elements (relations, values and norms), differentiating between these three ways of normative orderings of the society on the basis of the difference on the level of relations, values and norms. In accordance with the mentioned ordering of the societal relations, the question is posed: what qualifies any social relation as a legal relation? What is the differentia specifica between legal and moral order on the level of the social relation? The answer to this question differentiates between law and other normative orders which regulate society. It is, from the standpoint of the integral theory first, the possibility of external public control and coercion and, secondly, the conflict of interest which endangers the society.26 The conflicting social relations (previously mentioned material sources of law), as the first element of the law, which are the object of the experience of the lawyers, nec20 Harašić, ‘Viskovićeva teorija tumačenja u pravu’ (n. 1), at 58–59. For more details, see Visković, Teorija države i prava (n. 9), at 130–133 and at 180. 21 Padjen, ‘Croatian Legal Philosophy and General Jurisprudence in the 20th Century’ (n. 2), at 668–669. 22 Visković, Pojam prava: prilog integralnoj teoriji prava (n. 5), at 64–70. See also, particularly for the translation of the three levels of the relationship between the is and the ought Padjen, ‚Croatian Legal Philosophy and General Jurisprudence in the 20th Century‘ (n. 2), at 669. 23 Visković, Pojam prava: prilog integralnoj teoriji prava (n. 5), at 70. 24 Ibid., at 62–64 and at 300. 25 Ibid., at 62–63. 26 Ibid., at 83–84.

Is There a Moral Obligation to Obey the Law?

371

essarily arise in the most important and most conflicting social relations, such as the protection of life and bodily integrity, ownership, organizational structure of the community and similar ones.27 Building up on this, questions how to regulate these relations arise – which behaviour to prohibit and sanction, which to allow and support, are answered by ‘evaluative qualification’ of some of the behaviour as positive or negative, as desired or unwanted, and these qualifications reflect the positions of the dominant groups in the society, and form the ethical sources of law.28 The third element of the law are legal norms, which regulate these conflicting legal relations according to the accepted evaluation. It is precisely here – on this normative level, where the important differences between law and morals (or more precisely, legal and moral norms) can be seen:29 first, law regulates relations which are ‘externally controllable’, as opposed to morals, which also regulates relations which are not ‘externally controllable’. Secondly, the true intention in morals is highly relevant (manifested conscience), while in law it is relevant (and can be relevant) only in the sense of the possibility to prove it. Thirdly, the creators of legal norms are relatively easily determinable, as opposed to the creators of moral norms. Fourthly, legal norms are created in an organized manner and according to the posited procedures, also in contrast to moral norms. Fifth, the moral normativity is more autonomous, while legal normativity is more heteronomous. Sixth, the law has limited pluralism and stronger hierarchy, while morals have unlimited pluralism and much weaker hierarchy between the norms. Lastly, sanctions in law are predominantly physical, while sanctions in morals are predominantly mental, and the subjects who sanction in law are easily determinable and they do it in a procedural manner. As two normative orders, law and morals and their norms can stand in three potential positions: they can support and reinforce each other, they can conflict or they can be substantively unrelated or indifferent.30 Visković elaborates two variants of natural law positions regarding the consequence on the validity of legal norm in the situation where the norm is unjust: according to the milder variant, unjust legal norm remains valid in the ‘external’ world, but loses its validity from the ‘internal’ perspective (effectively meaning that it is valid, but should not be accepted from the moral perspective because it is unjust).31 The second, more radical position holds the position that the unjust legal norm loses both its ‘external’ and ‘internal’ validity, is not considered obligatory, and subjects have the right to disobey it.32 The problem with ‘justice’ as the criterion of legality presupposes ‘a single system

27 Visković, Teorija države i prava (n. 9), at 131. 28 Ibid., at 132.–133. 29 These differences are systematically presented in Visković, Teorija države i prava (n. 9), at 122.–124. For more on law and morals, see Ivan Padjen, (Ne)ćudorednost (međunarodnog) prava: pristup filozofiji prava (Rijeka: Izdavački centar Rijeka, 1988), at 89–95. Some of the points of differentiation are shared by other authors, for example Steven Shavell, ‘Law versus Morality as Regulators of Conduct’, American Law and Economics Review, 4 (2002), at 233–241. 30 Visković, Teorija države i prava (n. 9), at 129. 31 Visković, Pojam prava: prilog integralnoj teoriji prava (n. 5), at 111–112. 32 Ibid., at 112.–113.

372

Marin Keršić

of objective and absolute values’, the existence of a higher natural law.33 The existence of universally valid morals can be criticized from the positions of (ethical) relativism, rejecting the idea of the existence of such universally valid values.34 On the other side, law (in the formal sense) as the criterion of justice is also rejected as a ‘legalist conception of justice’.35 The resolution of this conflict is made in the approach of the integral theory of law; but undoubtedly, a legal norm is considered valid, regardless of its moral content, if it was enacted by the responsible organ and according to the procedure; in this sense, this resolution follows the position of the sociological positivism, since the social relations and values are taken into account. In this sense, regarding the validity of the norm, the separation thesis is accepted, meaning that ‘the conditions of legal validity do not depend on the moral merits of the norm in question. What the law is, cannot depend on what it ought to be in the relevant circumstances’.36 Concluding Remark Regarding the main question – the existence of the moral obligation to obey the law, in the context of the integral theory of law, a stance advocating the negative answer to the question can be defended from two positions: first, from the position of the power relations: the answer to the particular question of how to legally regulate a specific social relation derives, according to the integral theory of law, from the ethical evaluation, which is done by the creators of the norms. In this sense, a very real potential disagreement on the quality of the evaluation makes it problematic to oblige an addressee by the externally posited moral understanding(s) infused into the law. This is especially visible in the case of norms which cause (and with a convincing reasons do so) strong disagreement, such as those on abortion or euthanasia; it seems problematic to construct the moral obligation to obey the law in the sense of obeying the whole legal system, while a moral disagreement on such particular issues undoubtedly causes moral disobedience on a daily basis, as the morals is the internal and the predominantly autonomous aspect. Again, from the perspective of the integral theory of law, the validity of such norms will not be denied, but that only reinforces the presented differences between the legal and moral norms. This argument goes hand-in-hand (and overlaps) with the position of (ethical) relativism: it also seems (by a continuity of contemporary and historical experience) that a system of universally valid moral norms cannot be established, and as such, returning to the first position, legal norms which oblige and present a specific evaluation (ethical element) of how a specific legal issue should be resolved, are posited 33 Ibid., at 113. 34 See Hans Kelsen, Pure Theory of Law (New Jersey: The Lawbook Exchange Ltd, 2005), at 66–67 and Torben Spaak, ‘Meta-Ethics and Legal Theory: The Case of Gustav Radbruch’, Law and Philosophy, 28 (2009), at 264–265. 35 Visković, Pojam prava: prilog integralnoj teoriji prava (n. 5), at 113–116. 36 Stanford Encyclopedia of Philosophy, The Nature of Law (https://plato.stanford.edu/entries/lawphilnature/), accessed 01/02/2018).

Is There a Moral Obligation to Obey the Law?

373

by the creators of the norms and represent their (moral) view on the issue. People might obey the law because they, among other reasons, find it reflecting, supporting or reinforcing morals, but the problems in the construction of the moral obligation to obey the law per se still remains.

About the authors André Ferreira Leite de Paula Law studies in Belo Horizonte (Brazil), Jena (Germany) and Coimbra (Portugal); law degree by Universidade Federal de Minas Gerais (Brazil). Master of Laws by Goethe-University Frankfurt am Main and Clifford-Chance-Prize for the best master thesis of the academic year 2012/13. Ph.D. candidate at Goethe-University Frankfurt am Main under the supervision of Prof. Dr. Dres. h.c. Ulfrid Neumann and scholarship provided by DAAD and CNPq-Brazil. Contact the author: [email protected] Andrés Santacoloma Santacoloma Ph.D. candidate under the supervision of Prof. Dr. Dres. h.c. Ulfrid Neumann, Philosophy of Law Department, Goethe University in Frankfurt am Main. He obtained a Master of Laws (summa cum laude) at the same University, and also completed the master programs Global Rule of Law and Constitutional Democracy (Genoa, Italy), and Legal Argumentation (Alicante, Spain). He is scholarship holder of the German Academic Exchange Service (DAAD). Bruce Anderson Professor of Law at Saint Mary’s University Nova Scotia. He teaches courses in business law and legal theory. His publications are concerned with the decision making process, art and law, and economic theory. He is working on a book focused on methodology and law. Gabriel Alejandro Encinas Duarte Degree in Law (Licenciado en Derecho) from the Autonomous University of Baja California, Ensenada campus in Mexico. “Globalization College” (Colegio de la Globalización) grant holder in 2015. Student of the LLM in Legal Theory in the Johann Wolfgang Goethe University in Frankfurt am Main, Germany. Giulia Terlizzi Postdoctoral fellow and Adjunct Lecturer in law at the Department of Law, Università degli Studi di Torino, Italy. Research Scholar at Paul André Crépeau Centre for private and comparative law, Faculty of Law, McGill University, Montreal, Canada. Her main fields of research are comparative law, civil law and multilingualism. Her interests focus on the bijural and bilingual experience of Quebec and on the implications between law and social pluralism. She obtained her PhD in Law at Università degli Studi di Torino in 2012.

376

About the Authors

Héctor A. Morales Zúñiga Héctor A. Morales Zúñiga is instructor professor at the University Adolfo Ibáñez (Chile) where he teaches legal theory and constitutional law. He has published papers about constitutional law, bioethics, and legal education. Currently, he is Research Assistant and PhD Student at the Karl-Franzens-Universität Graz (Austria). Henrique Neves H. G. Neves is Ph. D. Student in Law at the Hermann-Kantorowicz Institut für juristische Grundlagenforschung-University of Kiel (Germany). Under the supervision of Prof. Dr. mult. h. c. Robert Alexy, he investigates the objectivity of legal reality and the construction of legal facts. He has been granted a Scholarship by the German Academic Exchange Service (DAAD). Master of Laws in Legal Theory (summa cum laude) at the Pontícia Universidade Católica de Minas Gerais (Brazil), under the supervision of Prof. Dr. Alexandre T. G. Trivisonno (2012). Law degree at the Universidade Federal de Ouro Preto, Brazil (2009). He was lecturer at the Law School of the Universidade Politécnica, in Mozambique (2013) and at the Law School of the Pontícia Universidade Católica de Minas Gerais, in Brazil (2014). Fields of research: Legal Philosophy and Legal Theory. Jing Zhao Jing Zhao, studied Law at Goethe-University of Frankfurt am Main, Germany, LL.M (2012), Candidate of the DAAD scholarship; and at CUPL (China University of Political Science and Law), China, Master of Laws Degree (2014). From 2012 PhD Candidate at Goethe-University of Frankfurt am Main, Candidate of the CSC (China Scholarship Council) scholarship. Main research area: legal philosophy, especially Neo-Kantianism. João Andrade Neto João Andrade Neto, Dr. iur., is lecturer at the Pontifical Catholic University of Minas Gerais and the Arnaldo Janssen Faculty of Law, in Brazil. Court Legal Advisor at the Regional Electoral Court of Minas Gerais. Awarded a PhD with the highest distinction (Summa Cum Laude) by the University of Hamburg / Albrecht Mendelssohn Bartholdy Graduate School of Law 2016. Earned a Master in Laws from the Federal University of Minas Gerais 2010. Brazilian federal prize for a Monograph in Election Law 2012. Published papers on Legal Theory and Constitutional and Comparative Law. Member of the Brazilian Academy of Election and Political Law. João Maurício Adeodato Professor at Faculdade de Direito de Vitória and Faculdade Damas, Former Titular Professor at Faculdade de Direito do Recife, Livre-Docente at Faculdade de Direito da Universidade de São Paulo and Senior Researcher 1-A at CNPq. Full Curriculum at: http:// lattes.cnpq.br/8269423647045727

About the Authors

377

Lorenz Kähler Study in Heidelberg, London, Goettingen; 2001–2002 visiting researcher at the Harvard Law School; PhD 2003 at the University of Goettingen; 2004–2011 Project Associate at Hengeler Mueller, Berlin; 2010 habilitation at the University of Goettingen; since 2011 Professor at the University Bremen; since July 2015 Dean of the Law Faculty. Representative publications: Structures and methods of overruling decisions (in German), 2nd edition 2011; The concept and justification of default rules (in German), 2011; First person perspectives in legal decisions, in: Freeman/Smith, Language and Law, 2013, p. 533. Marin Keršić Born in 1991 in Split, Republic of Croatia. Assistant at Faculty of Law, University of Split, Department of Theory of Law and State (2017). Law degree from Faculty of Law, University of Split (2015). Master of Laws (LL.M. in Legal Theory) from Goethe University, Frankfurt am Main (2017). Ph. D. candidate in Law (Tarello Institute for Legal Philosophy, University of Genoa). Michael Shute Michael Shute is Professor in the Religious Studies Department at Memorial University of Newfoundland. He is founder and editor of the open source Journal of Macrodynamic Analysis devoted to exploration of interdisciplinary methodologies. He is the author of Lonergan’s Discovery of the Science of Economics. Wei Feng Wei Feng, born in 1986 in China, graduated in 2008 at the China University of Political Science and Law with bachelor thesis on Gusatv Radbruch’s Legal Philosophy. In 2011 he finished his master thesis on Robert Alexy’s Argument from Law’s Claim to Correctness. Until 2015 he worked on his dissertation “Legal Principles and the Dogmatics of Constitutional Rights”. Thereafter he initiated a postdoctoral research program “Immanuel Kant on Human Dignity and Theory of Rights” at the Renmin University of China. He is also working on a further doctoral project since 2012 at the Christian-Albrechts-University of Kiel, Germany. Yanxiang Zhang Yanxiang Zhang is Professor of Legal Philosophy at the Legal Philosophy Research Center, Law School, Hebei University of Economics and Business (China), and Research Fellow at Lawtotem Institute(China). He received his Ph.D. in Jurisprudence from Jilin University (China) in 2012. Prof. Zhang is a Jeremy Bentham scholar. He was visiting scholar at Rutgers University, and currently he is appointed as an Affiliate Academic at the Bentham Project, Faculty of Laws, University College London.

a rc h i v f ü r r e c h t s - u n d s o z i a l p h i l o s o p h i e

–

beihefte

Herausgeben von der Internationalen Vereinigung für Rechts- und Sozialphilosophie (IVR). Die Bände 1–4 sind im Luchterhand-Fachverlag erschienen.

Franz Steiner Verlag

ISSN 0341–079x

125. Edward Schramm / Wibke Frey / Lorenz Kähler / Sabine Müller-Mall / Friederike Wapler (Hg.) Konflikte im Recht – Recht der Konflikte Tagungen des Jungen Forums Rechtsphilosophie in der Internationalen Vereinigung für Rechts- und Sozialphilosophie in Tübingen und Göttingen 2010. 308 S., kt. ISBN 978-3-515-09729-1 126. Kristian Kühl (Hg.) Zur Kompetenz der Rechtsphilosophie in Rechtsfragen Tagung der Deutschen Sektion der Internationalen Vereinigung für Rechts- und Sozialphilosophie vom 24.–26. September 2008 in Tübingen 2011. 140 S., kt. ISBN 978-3-515-09816-8 127. Stephan Kirste / Anne van Aaken / Michael Anderheiden / Pasquale Policastro (Hg.) Interdisciplinary Research in Jurisprudence and Constitutionalism 2012. 267 S. mit 2 Abb. und 2 Tab., kt. ISBN 978-3-515-09941-7 128. Stephan Ast / Julia Hänni / Klaus Mathis / Benno Zabel (Hg.) Gleichheit und Universalität Tagungen des Jungen Forums Rechtsphilosophie (JFR) in der Internationalen Vereinigung für Rechts- und Sozialphilosophie (IVR) im September 2010 in Halle (Saale) und im Februar 2011 in Luzern 2012. 315 S., kt. ISBN 978-3-515-10067-0 129. Bénédict Winiger / Matthias Mahlmann / Philippe Avramov / Peter Gailhofer (Hg.) Recht und Verantwortung / Droit et responsabilité Kongress der Schweizerischen Vereinigung für Rechts- und Sozialphilosophie, 11.–12. Juni 2010, Universität Zürich / Congrès de l’Association Suisse de Philosophie du Droit et de Philosophie Sociale, 11–12 juin 2010, Université de Zurich

130.

131.

132.

133.

134.

2012. 206 S. mit 6 Abb., kt. ISBN 978-3-515-10066-3 Thomas Bustamante / Oche Onazi (Hg.) Global Harmony and the Rule of Law Proceedings of the 24th World Congress of the International Association for Philosophy of Law and Social Philosophy, Beijing, 2009. Vol. 1 2012. 133 S., kt. ISBN 978-3-515-10081-6 Thomas Bustamante / Oche Onazi (Hg.) Human Rights, Language and Law Proceedings of the 24th World Congress of the International Association for Philosophy of Law and Social Philosophy, Beijing, 2009. Vol. 2 2012. 192 S., kt. ISBN 978-3-515-10082-3 Yasutomo Morigiwa / Hirohide Takikawa (Hg.) Judicial Minimalism – For and Against Proceedings of the 9th Kobe Lectures. Tokyo, Nagoya, and Kyoto, June 2008 2012. 99 S., kt. ISBN 978-3-515-10136-3 Thomas Bustamante / Carlos Bernal Pulido (Hg.) On the Philosophy of Precedent Proceedings of the 24th World Congress of the International Association for Philosophy of Law and Social Philosophy, Beijing, 2009 Volume 3 2012. 144 S., kt. ISBN 978-3-515-10150-9 Matthias Kaufmann / Joachim Renzikowski (Hg.) Zurechnung und Verantwortung Tagung der Deutschen Sektion der Internationalen Vereinigung für Rechts- und Sozialphilosophie vom 22.–24. September 2010 in Halle (Saale) 2012. 184 S., kt. ISBN 978-3-515-10180-6

135. Carsten Bäcker / Sascha Ziemann (Hg.) Junge Rechtsphilosophie 2012. 214 S., kt. ISBN 978-3-515-10268-1 136. Ulfrid Neumann / Klaus Günther / Lorenz Schulz (Hg.) Law, Science, Technology Plenary lectures presented at the 25th World Congress of the International Association for Philosophy of Law and Social Philosophy, Frankfurt am Main, 2011 2012. 173 S., kt. ISBN 978-3-515-10328-2 137. Winfried Brugger / Stephan Kirste (Hg.) Human Dignity as a Foundation of Law Proceedings of the Special Workshop held at the 24th World Congress of the International Association for Philosophy of Law and Social Philosophy in Beijing, 2009 2013. 267 S., kt. ISBN 978-3-515-10440-1 138. Philippe Avramov / Mike Bacher / Paolo Becchi / Bénédict Winiger (Hg.) Ethik und Recht in der Bioethik / Ethique et Droit en matière de Bioéthique Kongress der Schweizerischen Vereinigung für Rechts- und Sozialphilosophie, 11.–12. Mai 2012, Universität Luzern / Congrès de l’Association Suisse de Philosophie du Droit et de Philosophie Sociale, 11–12 mai 2012, Université de Lucerne 2013. 226 S., kt. ISBN 978-3-515-10436-4 139. Tetsu Sakurai / Makoto Usami (Hg.) Human Rights and Global Justice The 10th Kobe Lectures, July 2011 2014. 167 S., kt. ISBN 978-3-515-10489-0 140. Bernhard Jakl / Beatrice Brunhöber / Ariane Grieser / Juliane Ottmann / Tim Wihl (Hg.) Recht und Frieden – Wozu Recht? Tagungen des Jungen Forums Rechtsphilosophie (JFR) in der Internationalen Vereinigung für Rechts- und Sozialphilosophie (IVR) im September 2012 in Münster und im April 2013 in Berlin 2014. 206 S. mit 3 Abb., kt. ISBN 978-3-515-10806-5 141. Axel Tschentscher / Caroline Lehner / Matthias Mahlmann / Anne Kühler (Hg.) Soziale Gerechtigkeit heute

142.

143.

144.

145.

146.

147.

Kongress der Schweizerischen Vereinigung für Rechts- und Sozialphilosophie, 7. Juni 2013, Universität Bern 2015. 139 S., kt. ISBN 978-3-515-10907-9 Daniela Demko / Kurt Seelmann / Paolo Becchi (Hg.) Würde und Autonomie Fachtagung der Schweizerischen Vereinigung für Rechts- und Sozialphilosophie, 24.–25. April 2013, Landgut Castelen, Augst 2015. 216 S., kt. ISBN 978-3-515-10949-9 Jean-Christophe Merle / Alexandre T. G. Trivisonno (Hg.) Kant’s Theory of Law Proceedings of the Special Workshop “Kant’s Concept of Law” held at the 26th World Congress of the International Association for Philosophy of Law and Social Philosophy in Belo Horizonte, 2013 2015. 138 S., kt. ISBN 978-3-515-11037-2 Júlio Aguiar de Oliveira / Stanley L. Paulson / Alexandre T. G. Trivisonno (Hg.) Alexy’s Theory of Law Proceedings of the Special Workshop “Alexy’s Theory of Law” held at the 26th World Congress of the International Association for Philosophy of Law and Social Philosophy in Belo Horizonte, 2013 2015. 187 S., kt. ISBN 978-3-515-11043-3 Annette Brockmöller / Stephan Kirste / Ulfrid Neumann (Hg.) Wert und Wahrheit in der Rechtswissenschaft 2015. 113 S., kt. ISBN 978-3-515-11053-2 Marcelo Campos Galuppo / MÔnica Sette Lopes / Karine Salgado / Thomas Bustamante / Lucas Gontijo (Hg.) Human Rights, Rule of Law and the Contemporary Social Challenges in Complex Societies Proceedings of the 26th World Congress of the International Association for Philosophy of Law and Social Philosophy in Belo Horizonte, 2013 2015. 155 S. mit 2 Abb., kt. ISBN 978-3-515-11130-0 Paul Tiedemann (Hg.) Right to Identity Proceedings of the Special Workshop “Right to Identity” held at the 27th World

148.

149.

150.

151.

152.

Congress of the International Association for Philosophy of Law and Social Philosophy in Washington DC, 2015 2016. 185 S., kt. ISBN 978-3-515-11244-4 Hajime Yoshino / Andrés Santacoloma Santacoloma / Gonzalo Villa Rosas (Hg.) Truth and Objectivity in Law and Morals Proceedings of the Special Workshop Held at the 26th World Congress of the International Association for Philosophy of Law and Social Philosophy in Belo Horizonte, 2013 2016. 158 S., kt. ISBN 978-3-515-11260-4 Alain Papaux / Simone Zurbuchen (Hg.) Philosophy, Law and Environmental Crisis / Philosophie, droit et crise environnementale Workshop of the Swiss Society for Philosophy of Law and Social Philosophy, September 12–13, 2014, Swiss Institute of Comparative Law, Lausanne / Congrès de l’Association Suisse de Philosophie du Droit et de Philosophie Sociale, 12–13 septembre 2014 2016. 153 S. mit 2 Tab., kt. ISBN 978-3-515-11387-8 Markus Abraham / Till Zimmermann / Sabrina Zucca-Soest (Hg.) Vorbedingungen des Rechts Tagungen des Jungen Forums Rechtsphilosophie (JFR) in der Internationalen Vereinigung für Rechts- und Sozialphilosophie (IVR) im September 2014 in Passau und im April 2015 in Hamburg 2016. 231 S., kt. ISBN 978-3-515-11389-2 André Ferreira Leite de Paula / Andrés Santacoloma Santacoloma / Gonzalo Villa Rosas (Hg.) Truth and Objectivity in Law and Morals II Proceedings of the Second Special Workshop held at the 27th World Congress of the International Association for Philosophy of Law and Social Philosophy in Washington D.C., 2015 2016. 210 S. mit 4 Abb., kt. ISBN 978-3-515-11484-4 Kosuke Nasu (Hg.) Insights about the Nature of Law from History The 11th Kobe Lecture, 2014 2017. 146 S., kt. ISBN 978-3-515-11570-4

153. Jochen Bung / Armin Engländer (Hg.) Souveränität, Transstaatlichkeit und Weltverfassung Tagung der Internationalen Vereinigung für Rechts- und Sozialphilosophie (IVR) im September 2014 in Passau 2017. 133 S., kt. ISBN 978-3-515-11620-6 154. Bénédict Winiger / Matthias Mahlmann / Sophie Clément / Anne Kühler (Hg.) La propriété et ses limites / Das Eigentum und seine Grenzen Congrès de l’Association Suisse de Philosophie du Droit et de Philosophie Sociale, 26 septembre 2015, Université de Genève / Kongress der Schweizerischen Vereinigung für Rechts- und Sozialphilosophie, 26. September 2015, Universität Genf 2017. 274 S., kt. ISBN 978-3-515-11688-6 155. Gralf-Peter Calliess / Lorenz Kähler (Hg.) Theorien im Recht – Theorien über das Recht Tagung der Internationalen Vereinigung für Rechts- und Sozialphilosophie (IVR) im September 2016 in Bremen 2018. 224 S., kt. ISBN 978-3-515-12102-6 156. Dennis-Kenji Kipker / Matthias Kopp / Peter Wiersbinski / Jan-Christoph Marschelke / Falk Hamann / Martin Weichold (Hg.) Der normative Druck des Faktischen: Technologische Herausforderungen des Rechts und seine Fundierung in sozialer Praxis Tagungen des Jungen Forums Rechtsphilosophie (JFR) in der Internationalen Vereinigung für Rechts- und Sozialphilosophie (IVR) im September 2016 in Bremen und im September 2017 in Regensburg 2019. 261 S., geb. ISBN 978-3-515-12196-5 157. Miguel Nogueira de Brito / Rachel Herdy / Giovanni Damele / Pedro Moniz Lopes / Jorge Silva Sampaio (Hg.) The Role of Legal Argumentation and Human Dignity in Constitutional Courts Proceedings of the Special Workshops Held at the 28th World Congress of the International Association for Philosophy of Law and Social Philosophy in Lisbon, 2017 2019. 239 S. mit 3 Abb., kt. ISBN 978-3-515-12235-1

The relationship between law and morality is a topic which receives special importance and attention, especially in “liberal democracies” in which the law is supposed to regulate highly pluralized and fragmented societies. Under conditions of plurality of values, many social forces and legal theories require a certain kind of neutrality from the legal system, a means of compatibility of the many “world views” and “moral systems” that are present within the same so-

cial space. Such a conciliating commitment sounds particularly relevant in times of the doctrinal ubiquity of ideas such as “peace based on human rights”. This was the title of the 28th World Congress of the IVR in Lisbon, with the special workshop “Law and Morals” on which this book is based. It is divided into four parts: “Law and Practical Reason”, “Conceptual Approaches on Law and Morals”, “Legal versus Moral Normativity”, and “Morals and Legal Positivism”.

www.steiner-verlag.de Franz Steiner Verlag

ISBN 978-3-515-12278-8

9

7 83 5 1 5 1 2 2 7 88