Epistemology and Ontology: IVR-Symposium Lund 2003 3515087079, 9783515087070

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Zenon Bankowski (Ed.)

Epistemology and Ontology IVR-Symposium Lund 200 3

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Epistemology andOntology

ARSP BEIHEFT 102

Archiv für Rechts- und Sozialphilosophie Archives de Philosophie duDroit et de Philosophie Sociale Archives for Philosophy and Social Philosophy Archivo

of Law

de Filosofía Jurídica y Social

Epistemology Ontology

and

IVR-Symposium Lund 2003

EDITED BY

Zenon Bankowski

Franz Steiner Verlag Stuttgart

2005

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Table

of Contents 7

Introduction

Anne vanAaken: Deliberative Institutional Economics. Synthesizing the Best of

TwoWorlds: ACombination of NewInstitutional Economics andDeliberative

11

Theories Deniz Coskun:

Lawas symbolic

view of law

Laurent

form. Ernst Cassirer andtheanthropocentric

25

39

DeSutter: Howto GetRidof Legal Theory?

Leopoldo García Ruiz: Onthe Concept Philosophical Research

of LawandIts Place inthe Legal-

Nikolaos Intzessiloglou: Socio-semiotic andsocio-cybernetic approaches regulation inan interdisciplinary framework

Lorenz Kaehler:

49

to legal

77

The indeterminacy of legal indeterminacy

Matthias Mahlmann: Kant’s Conception of Mentalism Matthias Mahlmann

andJohn Mikhail:

ofPractical Reason andthe Prospects

Cognitive Science, Ethics

Gregor Noll: The Exclusionary Construction Lawand Political Theory

Claes Peterson: The Concept

Rights

andLaw

inInternational

of Legal Dogmatics: FromFiction to Fact

Federico Puppo: Law,authority Marie Sandström:

of Human

andfreedom inSophocles’Antigone

TheConcept of Legal Dogmatics Revisited

Burkhard Schafer: Ontological commitment incomparative lawandlegal theory

Sten Schaumburg-Müller:

Xingzhong Yu:Human Faculties Cultural Epistemology

andthe concept of“ legal system”

Wojciech Załuski: TheConcept

95 103

119

127

141 153

ofpersona: a fundamental principle of

andHuman Societies –AThree

85

133

Truth, Law,andHuman Rights

Paolo Sommaggio: Boethius’definition modern legal thought

61

Dimensional

ofKantian Rationality andGameTheory

163

171 185

Introduction Weare here presenting a selection oftheworkofscholars fromtheWorld Congress of Legal andSocial Philosophy heldat Lundin2003. This is oneofmanysuchselections and the general theme of this Beiheft is Epistemology and Ontology. Thus the papers byandlarge dealwithwhatsortofthing laworsystems oflawareandwhatthecriteria

fortalking about themare. Thepapers showthe diversity ofthe Association andwe are especially pleased to be able to publish the work of young scholars at the beginnings

of their scientific careers.

ofEconomics andDiscourse theory. In combining constitutional economics and discourse theory she offers a theoretical synthesis of the two theories by finding points in common and possibilities of fruitful combinations concerning theproblem oflegitimacy, institutional design andeffectiveness oflegal norms. Deniz Coskun outlines a conception oflawas symbolic form. This is donethrough anexamination ofthewayinwhich Ernst Cassirer applied his Philosophy ofSymbolic Formtolaw.This implies thatthough lawis connected withother sciences itcarries its own dynamic within it. It is a mode of giving objectivity and meaning and not legitimacy. Finally, as a product of human creativity, it reflects human dignity. Laurence de Sutter asks whatweshould dowithlegal theory. Practioners find it abstract andpretentious; philosophers find itofpoorintellectual quality. Forhimlegal theory, as ithas been known so far, hastobe replaced because itsees lawonlyas a matter ofobservation ofwhatthecontent given totheformoflawis.Whatis important however isthepractice oflaw;whatis done inthename oflaw.This is notpractice as opposed to theory but rather designates the set of actions rendered probable within the framework ofa specific set ofconstraints. Leopoldo Garcia Ruiz takes up the theme of practice and claims that only by describing andexplaining lawas a social practice willwebe able to confront deeper legal-philosophical issues. Hedoes this through an analysis of the work of Roscoe Pound. ForNikolaos Intzessiloglou the mostgeneral object ofstudy oflegal science is the concept of law as an effective and efficient social system of regulating human behaviour. Inthis concept oflaw,andinthesocial reality oflawrelated tothis concept, general ideas andprinciples concerning lawas wellas legal norms anddecisions coexist withfactual elements related to the law. Lawbecomes an effective part of real social order anda legal order is socially established onlywhenthelegal phenomenon functions successfully as a communicative social subsystem that actively regulates human behaviour Lorenz Kaehler asks whatexactly does itmeantosaythata particular question is notdetermined bythe law? Whatexactly is at issue ifonesays that anappellate court could have decided differently as it did? The main thesis of the paper is that these claims can have different meanings andthat some confusion inthe current debate about theindeterminacy oflawisduetothefactthatdifferent concepts ofindeterminacy are mixed up. Ifthis thesis is correct than the concept of ‘legal indeterminacy’is itself indeterminate or,at least, ambiguous. Matthias Mahlmann tries to reconstruct some core tenets of Kant’s doctrine and attempts to indicate what is truly impressive inthis philosophy. Forhimthe best wayto continue theproject ofenlightened practical reason, topreserve theanalytical insights of Kant’s work, to keep the humanist spirit of its material content, sometimes explicit, AnnevanAaken addresses thequestions

8

Zenon Bankowski

sometimes tobe readbetween thelines, istopursue whathecalls a mentalist theory ofethics andlaw.This theory is notdirectly Kantian inits outline andshape andaims

notat borrowing anyplausibility from Kant’s authority. Butit might be as Kantian as anything canbe given thefindings ofmodern theories ofthe human mind. Ina further paper withJohn Mikhail andhecontinue this theme ofa mentalist theory ofethics and law by developing the case for a moral faculty based on cognitive and linguistic

approaches.

Sten Schaumburg-Müller has some reservations as regards the ability ofhuman lawactually toprovide humans withtheir rights. There aremanywaysofprobing this question. Asthe problem is somehow connected withthe relation between ideas (inthis case human rights) andfacts, he takes a closer look at theories oftruth. He looks at various theories of truth and asks howthey impact on implementation of rights

human rights. Gregor Noll carries on with the theme of human rights. He claims textbook accounts of human rights tendto depict themas safeguards protecting the individual from the excessive use of state authority. Such accounts pre-suppose, amongst others, a clear distinction between lawandpolitics, andan understanding of certain legal norms as being pre-political. He claims that the fictions of universality and inalienability ofhuman rights collude intheir exclusionary function. Human rights take part intheformation ofa polis byexcluding the bare life ofthe human being fromthat community, to then re-include itandsubject itto regulation. Where re-inclusion does nottake place, forone reason oranother, the exclusionary function of human rights creates outcasts which have no more than bare life (refugees being a prominent example). Seenas such, human rights constantly remind ushowdevoid ofprotection weare outside the polis. Yet, as there is noaccess right to the polis, there is no right foranyhuman inanysituation to have human rights. Inlegal historical literature, Puchta has been depicted traditionally as the actual founder ofConceptual Jurisprudence; espousing a legal theoretical perspective which ascribed to legal concepts an independent intellectual existence. This means that Puchta understood legal concepts as separate fromthe empirical reality of the law. According to this model, the scientific creation of the lawis to occur inthe form of abstract conceptual constructions. The method is to be based on an inductive process. The lawis to be cleansed of its impurities and, in an increasing process of pure” basic concepts fromwhich the lawin abstraction, onewould reach a number of“ its entirety would emanate. For Peterson this viewof Puchta as a path breaker for conceptual jurisprudence has been shown to be exaggerated andhas been modified toa highdegree inrecent scholarship. Amore nuanced depiction ofPuchta’s viewas to the relationship between the actual organic nature of the lawandits conceptual form is posited by him. Puppo investigates the relationship between law, authority andfreedom in Sophocles’ Antigone. He dwells firstly on what is meant by the term ‘tragedy’, and secondly onthe relevance ofSophocles’work–andparticularly its twomaincharacters, Antigone andCreon –to that theme. Hetakes a viewwhich goes beyond the usual interpretation thatAntigone’s refusal ofCreon’s decree legitimates contradiction oftheorder whenthewritten law,mere expression ofthatauthority, is atodds withthe dictates ofthe rule identified sometimes inthecustomary lawsometimes inthedivine law. The concept of legal dogmatics has for many years has caused antagonism among European jurists andhas beencompared totheological dogmatism. However, the worst enemies of legal dogmatics, seem to be its advocates. Foryears, jurists

9

Introduction

have trivialised the method oflegal dogmatics to a point ofabsurdity. Legal scholars routinely refer tothe” traditional” method oflegal dogmatics, butwhenasked whatthis phrase entails, theyareunable togive a proper answer. Asa consequence, those who viewthemselves as methodologically advanced have been able to score easy points by pointing out the obvious flaws in the presentation of the method. Despite decades of intense criticism, legal dogmatics seems to be thriving inthe civil law-countries. Marie Sandström looks at the genesis of legal dogmatics and finds it steeped in drama. Burkhard Schafer looks at ontology andlegal system. Hispaper attempts a case study to show howjurisprudence can profit from ideas taken from general theory of science to develop the conceptual vocabulary necessary to engage ina meaningful dialogue with comparative law. Comparative lawis taken as an empirical basis to develop andtest keyjurisprudential concepts, especially theconcept of‘legal system’. Theproblems thatjurisprudence faces inreconciling its ownuse ofl egalsystem’with ‘ from theory of that in comparative law are remedied by borrowing key concepts science, in particular Sneed’s and Stegmueller’s set theoretical structuralism. The thus improved concept is then inturnusedto refine comparative legal methodology. The term ‘person’is only apparently certain inits meaning. Weare sure that it corresponds more orless tothe idea thatwehave ofa subject, corporeal orfigurative, endowed withcharacteristics worthy ofprotection. However, as soonas wegobeyond the level of conventional meaning, we enter a tangle of synonyms and meanings which overwhelm ourintuitive idea ofwhatthetermdenotes. Onething seems certain, however: the concept of person is today considered flawed and unable to fulfil its function inthefield oflegal protection. Infact, proposals have beenmadefromvarious quarters to discard it. Paolo Sommaggio considers Boethius’definition of persona to aidourunderstanding ofthe concept Xingzhong Yu analyses three types of societies. Firstly what he calls legal societies with rule of lawanddemocracy, the striking features of which are demonstrated inanunswerving reliance uponlawandlegal institutions insocial, political and economic life. America is a paradigm. Secondly there are moral societies; in such societies rather thancold, rational legal rules, live andentangled relationships arethe focus of communication, transaction and interactions. China is a paradigm. Thirdly there are religious societies; they make no distinction between matters divine or secular and deals with them by means of a pan-ordering religious system which predetermines thetendency ofits political andeconomic activities. TheMuslim world is a paradigm. Heasks whyare there three types of societies. What is the internal logic, which has determined their separate development andwhat accounts forthe great distinctions between them? Finally Wojciech Załuskilooks at Kantian rationality andgame theory. Thegametheoretical approach tolawis a precise method ofinvestigating thewayinwhich legal rules shape human behavior. Its attractiveness lies notonlyinits formal elegance but also inthefact that itcanbehelpful forlegislators intheir efforts topass efficient laws. Legal philosophers, in turn, are likely to be particularly interested in foundational questions related to it.Załuskiprovides ananalysis ofthis kindofa question –namely one about the place of the concept of Kantian rationality in the game-theoretical considerations. Zenon Bankowski, Professor of Legal Theory, Centre

forLawandSociety,

Edinburgh University

Anne vanAaken Deliberative Institutional Economics. Synthesizing the Best of TwoWorlds: ACombination of NewInstitutional Economics and Deliberative Theories1 I. Introduction NewInstitutional Economics/Constitutional Economics2 andDiscourse Theory stand largely unconnected next to each other, although they both askforthe legitimacy of institutions (normative aspect) and the functioning and effectiveness of institutions (positive aspect). Bothassume rational individuals andtheconcept ofconsensus for legitimacy. Whereas Discourse Theory emphasizes the conditions of a legitimate consensus and could thus enable Constitutional Economics to escape the infinite regress ofjudging a consensus legitimate, Institutional Economics hasa tested social science paradigm (rational choice) of explaining and predicting the functioning of institutions. The article outlines a theoretical synthesis ofthe twotheories byfinding points incommon andpossibilities offruitful combinations concerning the problem of

legitimacy, institutional design andeffectiveness oflegal norms. I shall dealwiththe explicative andnormative content ofwhatI call ‘Deliberative Institutional Economics’; mythesis being that itcanbetter explain existing institutions. I also suggest that those thinking in terms of normative Institutional/Constitutional Economics can better assess institutional alternatives iftheir analysis allows forthe discursive conditions which affect not only cognition but also the preferences of individuals involved in processes of social coordination such as court hearings, democratic procedures, and administrative action. Deliberative procedures are de facto already incorporated inmostofthe institutions governing thethree state powers,

butare neglected byeconomics.

Several implications of incorporating deliberation into economics will be discussed: 1) the possibility to reach consensus through deliberation (positive); 2) the legitimacy of such a consensus (positive andnormative); 3) the utility to be derived from the deliberation process as such (process versus outcome utility); and4) the effect onthe individuals’interest inrule-following as a result ofacceptance ofthe rulemaking process (positive). II. NewInstitutional Economics NewInstitutional Economics is indebted to methodological individualism in its analysis (bounded3) rationality andstable preferences will

andassumes that a person having 1 2

3

This contribution draws on mypaper, 2003, Deliberative Institutional Economics, or does Homo Oeconomicus argue?. In:Deliberation andDecision. Economics, Constitutional Theory andDeliberative Democracy, edited byvanAaken, List, Lütge. Aldershot (2004). Whereas parts of the literature of the NewInstitutional Economics focuses only on the positive aspect, Constitutional Economics focuses more onthe normative aspect. Nevertheless, bothwillbe

treated together here, butwhere issues of legitimacy are discussed, I will refer to Constitutional Economics. The concept of bounded rationality is more andmore widely used ineconomics. Forthe groundbreaking work, see Simon, 1957, Models of Man. London et al; Simon, 1993, Homo Rationalis.

12

AnnevanAaken

seek to maximize (individual) utility when making decisions in conditions of scarcity. Rather than relying onempirical behavioral analyses, itmainly uses whatis known as the REMM4 hypothesis to derive adjustment reactions expected after institutional changes. Stable preferences, and a well-defined utility function of human beings whose actions aretherefore result-oriented, arestandard assumptions. Themodel, no longer limited to economic issues in a narrower sense, nowalso serves to analyze political and general institutional contexts and does not question the presupposed constant preferences andtheir origin orethical assessment. Theunderlying concept is that ofthecitizen whois aware ofhisinterests andpreferences.5 Thestrict analytical separation between stable preferences and restrictions thus permits the empirical examination ofbehavioral changes withnoneedtodiscuss a change ofpreferences.

1. Reaching Consensus Starting from given preferences, NewInstitutional (and particularly Constitutional) Economics deals with the effectiveness andlegitimacy of institutions andlooks for rules producing results that best suit these preferences. Itnormally6 proposes to use consensus as a criterion for assessing the substantive rightness of institutions, a concept derived primarily fromConstitutional Economics, onwhich wemaytherefore focus inthe following. Inseeking consensus, an individual weighs advantages anddisadvantages (not necessarily limited to financial andmaterial ones), an advantage being anything he regards as such. Itis assumed that nobody would accept a worsening ofhispersonal situation caused byrules, andthat rules thought toimprove itareconsidered efficient if and because they can produce unanimity.7 There is an assumed harmony of individual utility maximization andsupra-individual substantive rightness. Economics inthis connection is concerned with individual decision-making anddisregards the possibility ofprevious deliberation andinstitutions established forthis purpose. There are, however, approaches in Constitutional Economics which no longer assume given preferences ona constitutional level. Vanberg andBuchanan8 (analyt-

4

5

6 7

8

Frankfurt a.M.etal., forapplication ofbounded rationality inlawandeconomics see Jolls, Sunstein, 1548. Thaler, 1998, ABehavioral Approach toLawandEconomics. Stanford LawReview 50: 1471– Resourceful, Evaluating, Maximizing Man.The REMMmodel (for basic information see Meckling, 1976, Values andthe Choice of the Model of the Individual inthe Social Science. Schweizerische 560.) isanimprovement onhomooeconomicus Zeitschrift fürVolkswirtschaft undStatistik 112: 545– insofar as the actor thus modeled chooses between ‘given’alternatives. Bycontrast, the ‘resourceful’inREMMemphasizes thatthealternatives arebynomeans given butoften havetobefound and developed through creative human action. As in Frey, Kirchgässner, 1993, Diskursethik, Politische Ökonomie und Volksabstimmungen. 149, 134. Hayek, 1991, Die Verfassung der Freiheit. 3. ed. Tübingen., 133, Analyse&Kritik 15: 129– with reference to Alexis de Toqueville, identifies the advantage of a democracy primarily inthe process ofopinion forming. See instead of many Richter, Furubotn, 1996, Neue Institutionenökonomik: eine Einführung und kritische Würdigung. Tübingen, 477, 493ff. See Aufderheide, 1996, Konstitutionelle Ökonomik versus Theorie der Wirtschaftspolitik: Herausforderung des Herausforderers? Kommentar zuStefan Voigt. In:James Buchanans konstitutionelle 192, 187 for a graphical overview of the Ökonomik, edited by Pies, Leschke. Tübingen: 184– different understandings ofconsensus including the interest andtheory components. As regards the following see Vanberg, 1994, Rules and Choice in Economics. London et al., chapters 10 and 11, see also Hegmann, 1998, Wissenssoziologische Aspekte der Verfassungsökonomik –Das Beispiel der Nachhaltigkeitsdebatte. In: Zukunftsfähigkeit undNeoliberalismus: ZurVereinbarkeit vonUmweltschutz undWettbewerbswirtschaft, edited byRenner, Hinterberger. 195. Baden-Baden: 175–

Deliberative Institutional Economics. Synthesizing the Best of TwoWorlds

13

ically) single outtheories andinterests as components ofconstitutional preferences, the former being a cognitive andfactual element inthe (subjective) forecast of how different rules affect results, the latter involving the subjective assessment of results expected from rules, making it a pure value judgment.9 The twocomponents may cause differences ofopinion andprevent agreement. Toavoid disagreement between individuals andbring the theory components closer together, one can provide more information (e.g. from experts) or have a discourse. The interest components of preferences are assumed to remain constant, however, which excludes modification through discourse, andthequestion of whyorduetowhatprocesses also the interest component of people might change is disregarded.

2. Legitimacy of Consensus InConstitutional Economics, rules are assumed tobe legitimate ifrational individuals seeking to maximize utility (can) unanimously agree tothem. Constitutional Economics assumes thatefficiency cannot bedefined regardless ofindividual choices. This is because Constitutional Economics argues that preferences andtheir intensities can notbe known byoutside observers andthus are notcomparable onaninterpersonal basis. Therefore, consent bytheconcerned individuals is needed.10 Forthecomparisonofgiven preferences relating tothedesirability ofcertain goods orrules there isno superordinate standard enabling the definition ofa social welfare function which could then be optimized.11 Other issues discussed include thevoluntary character ofthe agreement andthe type of exchange taking place, inother words, the conditions for the validity of the consensus. Here we find differences in Constitutional Economics, with Brennan/ Buchanan considering anagreement non-legitimate only ifitwas” extracted byforce or under conditions of total duplicity by one of the parties” .12They are satisfied if “ individuals are observed to be responding freely within the minimally required condi13 Nofurther elaboration, however, is given tions of mutual tolerance andrespect... .” on the minimal conditions of tolerance and respect. Inequalities concerning income andrights orthe ability to express oneself are explicitly neglected, as is the issue of whether thesituation prevailing before theconclusion ofthecontract (the status quo) wasfair.

by contrast, deals more thoroughly with the voluntary character and at the type of restrictions under which the exchange orconsensus take place because” ... in order to specify what is meant by voluntary choice’and voluntary ‘ ‘ exchange’, one has to somehow qualify the conditions under which the respective 14Thequestion then is howto define coercion. Although coercion choices are made.” might already be assumed if individual choice comes up against limiting factors Vanberg,

looks

9 Vanberg, footnote 8, chapter 10 andparticularly 169. 10 This iswhere wefinda conflict withthe Pareto efficiency interms ofwelfare economics. Inthewords of Coleman, 1990, Constitutional Contractarianism. Constitutional Political Economy 2: 135– 148, If, on grounds of utility or welfare, P is preferable to R, then we might expect people to choose 143, ”

P overR. Ifhowever, forwhatever reason, theychoose RoverP thenthat istheendofit;R,notP is efficient.”This contrasts with welfare economics, where Pareto efficiency could be technically determined byanoutside observer. 11 See also Alessi, 1992, Efficiency Criteria forOptimal Laws: Objective Standards of Value Jugdements? Constitutional Political Economy 3: 321– 342, particularly 329. 12 Brennan, Buchanan, 1986, TheReason ofRules. Cambridge, 102. 13 Buchanan, 1984, DieGrenzen derFreiheit: zwischen Anarchie undLeviathan. Tübingen, 6.

14 Vanberg, footnote 8, 211f.

14

Anne vanAaken

(budgetary or physical), such restrictions are simple facts of life. Another criterion Vanberg discusses is the infringement ofabsolute rights. The next question would be whatexactly ‘rights’means, andmight leadonetoconsider twotypes: onea class of pre-positive rights applied regardless oftheones defined inthelegal system, theother limited to positive rights applied in the respective society. The first type is clearly incompatible with the theory of Constitutional Economics as it assumes an external criterion, the second one is contingent because coercion is defined bythe rules and laws ofa society. This version is opposed byVanberg15 because evenrules applying in totalitarian states would then have to be accepted as involving no coercion. Constitutional Economics would get into a never-ending regress if it cannot resolve the following problem: ” (O)ne cannot give normative content to the notion of voluntary choice without introducing at some point inthe chain ofprocedural argument, some substantive criterion of ‘goodness’, a criterion that is more than a reiteration ofthe argument thattheprocess is goodtotheextent thatitis inaccordance withrules thatarethe outcome of a ‘good process’” To the extent that social processes are good, .” measured against some criterion X, the outcomes ofthose processes qualify as good.”16

The problem then is howto specify X. Vanberg therefore looks for a substantial criterion which may link upto a procedural one. The former is known as the cost avoidance criterion which says that the costs ofchoosing to refuse consensus must notbe prohibitively highandman-made. Themore alternatives individuals have, the more voluntary their choice. Vanberg does notgive usa clear qualitative criterion for demarcation butat least makes itpossible todiscuss ‘quantitative’trends. Nevertheparadox of democracy” less, what Michelman calls “ ,17i.e. the problem that there is neither a procedural independent finding ofthe‘good’nora purely procedural solution tothe paradox, canonly be solved ifthere are some substantive elements to escape theinfinite regress oflegitimacy.18 Atthis point ofargument, Iwould suggest a linkwith Discourse Theory because itexactly seeks toguarantee theconditions andvoluntary character ofa consensus interms ofa (non-authoritarian) discourse. Theconditions of Discourse Theory could be a possible candidate forVanbergs’criterion X.

3. Procedural versus

Outcome Utility

Economics looks onlyatthe outcome utility ofdecisions anduses evermore widely a concept ofbounded rationality. This line ofresearch finds its mostelaborated studies undertaken ina field known as experimental orbehavioral economics19 (mainly based 15 Vanberg, footnote 8, 212f. 16 Vanberg, footnote 8, 214. 17 Michelman, 1999, Brennan and Democracy. Princeton, 34. See also for this problem Sabel, Gerstenberg, Directly-Deliberative Polyarchy. An Institutional Ideal for Europe? , 2001, 35. 18 See also Cohen 1991, Deliberation and Democratic Legitimacy. In: The Good Polity, edited by 34., 26: ”Neither the commitment nor the capacity for arriving at Hamilton, Pettit. Oxford: 17–

19

deliberative decisions is something wecan simply assume to obtain independent fromthe proper ordering ofinstitutions. Theinstitutions themselves mustprovide theframework fortheformation of thewill; theydetermine whether there isequality, whether deliberation isfree andreasoned, whether there is autonomy, andso on.” Fora survey offindings, documentation ofexperiments Kahnemann, 1997, NewChallenges tothe 124 and more specifically for lawJolls, Sunstein, Rationality Assumption. Legal Theory 3: 105– Thaler, footnote 3.

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on cognitive psychology),

the Best ofTwoWorlds

15

which deals with the specific conditions (especially cogni-

inwhich individual decisions are made. There are also approaches, which distinguish outcome from procedural utility andtry to measure the latter.20 There,

tive ones) utility

is assumed to be measurable by individuals subjective reported well-being.

The standard model ineconomics assumes that preferences are independent of the situation inwhich they are revealed so that the description andpresentation of alternatives will have no effect on decision-making. However, utility for individuals depends notonlyonultimate networth as anabsolute quantity (asthestandard model assumes), but also on what are called ‘reference points’.21To give an everyday example: the same temperature is felt differently depending onwhether a person is used to warmorcold temperatures. Primary agents of utility are thus notstates but events ina dynamic process. Ifthere are noexogenous fixed reference points, it is possible to frame the situation in a waywhich influences the decision heavily (so

called ‘framing’). Thechoice ofthe reference point is particularly crucial innegotiations (ormediation) whenseeking a consensus. People tendto see things ina light thatfavors their ownpurpose, i.e. they are likely to regard reference points as ‘fair’ifthey serve their interests (‘ self-serving bias’).22 Even those who consider ‘fairness’ important will interpret thefacts fortheir ownadvantage. Thequestion arises, ofcourse, what‘fair’ means. Conversely, perceptions of ‘unfair’behavior or rules willagain depend ona reference point.23 These perceived ‘fair’reference points are of interest inallarbitration procedures such as salary negotiations, and often prevent the parties from reaching agreement. Anomalies may be reduced through learning effects.24 It is plausible toassume thatdeliberation mayalso bea means topromote learning effects andthus reduce individual costs. Ifdeliberative processes could enhance thealleviation of anomalies, institutions should be so designed to allow for exactly those

processes.

4. Effectiveness ofandCompliance withRules Economics explains the question of rule-following with the individual calculus. It is assumed that people comply withrules because of external incentives. Theindividual calculus includes the expected benefit of non-compliance andthe expected sanction (sanction andprobability ofbeing caught). Individuals willcomply ifandonlyifthenet utility of doing so is positive. Furthermore, constitutional economists strictly differentiate between aninterest inthe existence ofrules andaninterest inrule-following and 20 Benz,

21 22

23 24

Frey, Stutzer, 2002, Introducing Procedural Utility: NotOnly What, ButAlso HowMatters. Zurich IEER Working Paper No. 129, (forthcoming in Journal of Institutional andTheoretical Economics (JITE)). Kahnemann, Tversky, 1979, Prospect Theory: AnAnalysis ofDecisions under Risk. Econometrica 327. Formally speaking, the utility function depends notonlyonconsumption at the time t; 47: 312– U(ct), butalso onthe reference point U(ct, rt). Dahl, Ransom, 1999, Does Where You Stand Depend on Where You Sit? Thithing Donations and 727, 703: ” A self-serving bias occurs Self-Serving Bias. American Economic Review 89 (4): 703– whenindividuals subconsciously alter their fundamental viewabout whatis fairorright ina waythat benefits their interests.” See also Hoffmann, Spitzer, 1993, Willingness to Pay vs. Willingness to Accept: Legal and 114. Economic Implications. Washington University LawQuarterly 71: 59– Eichenberger, Frey, 1993, “ Superrationalität” oder: Vomrationalen Umgang mitdemIrrationalen. In: Jahrbuch fürNeue Politische Ökonomie, edited byHerder-Dorneich, Schenk, Schmidtchen: 50– 84, 57 talkprimarily ofindividual incentives to reduce anomalies. This presupposes that individuals are aware ofthe anomaly.

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thus a constitutional interest andan interest to act (similar to rule-utilitarianism and act-utilitarianism).25 This distinction applies bothtotheeffectiveness oflegal rules and theissue ofjustice and,thus, tothelegitimacy ofrules andtheir content. Constitutional Economics links upthetwoproblems byassuming thatthepersons involved willmore probably agree to rules which are incentive-compatible as they are less costly. Incentive compatible rules are expected to be complied with. Herein lies a huge potential forinstitutional analysis, as incentive compatible rules aremoreeffective and less costly thanthose rules which needtobe sanctioned. Nevertheless itis important to look at other determinations of rules-following, which will be done when I deal with Discourse Theory.

III. Discourse Ethics

andDeliberation

Deliberative theories, particularly as they relate to deliberative democracy26, see themselves as successors to Discourse Theory, andthe theory ofjustice developed byRawls (concept of reflective equilibrium).27 Discourse theory regards human communication as something more thanjust an anthropologic feature and, inits assessmentofactions andsociety, concentrate oncommunicative and/or discursive rationality.28 Unlike economics or, more generally, the rational choice paradigm, Discourse Theory is notconcerned withthe aggregation butrather the transformation ofpreferences through deliberative processes. This means that individuals are assumed tobe

25

Brennan, Buchanan, 1986, TheReason ofRules. Cambridge, 129, see also Vanberg, 1997, RuleFollowing. Paper readattheconference “ Abandoning theHypothesis ofOmniscience inEconomics: , 9.-10. January 1997, at Fribourg (Switzerland), chapter IandVanberg, Whatarethe Implications?” 1999, DieAkzeptanz vonInstitutionen. In:Handbuch derWirtschaftsethik, edited byKorff. Gütersloh:

50, 43. 38–

26 For a short

27

28

survey see Cohen, Footnote 18, 17 with the following definition: ” By a deliberative democracy I shall mean, roughly, anassociation whose affairs aregoverned bythepublic deliberaAndon21: The notion of a deliberative democracy is rooted inthe intuitive tion of its members.” ”which thejustification oftheterms andconditions ofassociations ideal ofa democratic association in proceeds through public argument andreasoning among equals.” See also Dryzek, 1990, Discursive Democracy: Politics, Policy, Political Science. Cambridge; Dryzek, 2000, Deliberative Democracy andBeyond: Liberals, Critics, Contestations. Oxford; NewYork; Dryzek, 2000, Deliberative Deliberating about DeliberaDemocracy andDiscursive Legitimacy. Paper readat the Conference “ , 02.-06. Feb. 2000, at Austin/Texas; Elster, ed. 1998. Deliberative Democracy. tive Democracy” Cambridge. See Rawls, 1990, Eine Theorie derGerechtigkeit. 5thed., Frankfurt a.M., 38ff. There are ofcourse important differences between deliberative theories andDiscourse Theory andIwould suggest that the connection between deliberative theories andConstitutional Economics is more easily made than between Discourse Theory andConstitutional Economics. Nevertheless, Discourse Theory provides the theoretical basis fordeliberative theories, see also Habermas, 1999, Drei normative Modelle derDemokratie. In:DieEinbeziehung desAnderen: Studien zurpolitischen Theorie, edited 292 whohimself suggests a model ofdeliberative politics. Fora byHabermas. Frankfurt a.M.: 277– (critical) discussion ofRawls, see Cohen, Footnote 18, 18ff.; Benhabib, 1994, Deliberative Rationality andModels of Democratic Legitimacy. Constellations: AnInternational Journal of Critical and 50, 35ff. For a (critical) discussion of Habermas, 1992, Faktizität und Democratic Theory 1: 1– Geltung. Beiträge zurDiskurstheorie desRechts unddesdemokratischen Rechtsstaates. Frankfurt a.M., see Sabel, Gerstenberg, footnote 17, 31ff. and Sabel, Cohen, 2001, Directly Deliberative Polyarchy, , 11f. Forfundamentals see Habermas, 1988, Theorie des kommunikativen Handelns. 2. vols. Frankfurt a.M., particularly vol. 1 andHabermas, footnote 27.

Deliberative Institutional Economics. Synthesizing

willing

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to change their preferences and/or interests.29 Onemaincharacteristic ofthe of deliberation is the needto give reasons.

process

1. Reaching Consensus Deliberation is defined insomewhat varying terms, depending onwhether theorientation toward the result30 orthe process prevails.31 Whatthe deliberative theories have incommon, however, is that (as inConstitutional Economics) allthose concerned are involved inthe collective decision (democratic element) which is made after hearing andaccepting arguments, andthat participants inthe discourse (at least officially32) feel committed to rationality andimpartiality (deliberative part). This deliberative part concerning the interest component of preferences distinguishes Discourse Theory fromConstitutional Economics. This makes itpossible (butnotnecessary) toinfluence notonly the theory component of preferences butalso the one relating to interests. This is done through learning processes thatmayalter bothinterests andtheories, the

assumption being that people have a private and a public autonomy which supplementeachother. While theformer hastodowithindividual choices andimplementing a personal concept of what is good, the latter revolves around choices to be made together with others and putting into practice a political concept of what is fair or good.33 Thelatter is especially interesting forthedefinition ofthepublic good, which is inprinciple open, that is to say, nodefinition ofthe public goodis given ex ante, butis left to the constantly reversible deliberative process.34 Learning processes have several components. First, the deliberative forum can gather dispersed information and dispersed intelligence. Second, the arguments given need to make sense to everybody. Buteven if there is consensus about the

29 Ferejohn,

Pasquino, 2001, Constitutional Courts as Deliberative Institutions, , 5: ” Butwhether goals orpurposes change as a result of deliberation orwhether they merely remain opento revision, the waythat deliberation changes or reinforces goals or purposes is by giving reasons or arguments. Deliberation in this sense is participating inthe process of reasoning about public action. This entails being open to reasons, and willing to alter yourpreferences, beliefs oractions ifconvincing reasons are offered to doso – being willing tobase attempts topersuade others ingiving reasons rather thanthreatening coercion

or duplicity.”

result-oriented definition of Stokes, 1998, Pathologies of Deliberation. In: Deliberative the endogenous change of Democracy, edited by Elster. Cambridge: 123– 139, deliberation is ” preferences resulting fromcommunication.” : AnEssay on Claro!” Cohen, Footnote 18, 23, Benhabib, footnote 27, fn. 13 andGambetta, 1998, “ 43 bycontrast Discursive Machismo. In: Deliberative Democracy, edited byElster. Cambridge: 19– focus on the process itself by saying that all it takes for deliberation is a conversation whereby individuals speak andlisten sequentially before making a collective decision. According to Alexy, 1995, Diskurstheorie und Menschenrechte. In: Recht, Vernunft, Diskurs: 164, 133, 142ff., elites and Studien zur Rechtsphilosophie, edited by Alexy. Frankfurt a.M.: 127– tyrants see an individual utility injustifying social systems as, inthe long term, legitimacy is less costly andmore stable than pure force. Legitimacy is established where elites make allowance for people’s interest insubstantive rightness (even ifthis isonlyalleged). Therules ofthediscourse can thenbejustified bystability interests (advantageous inthelongterm). Eveniftheinterest intherules ofthe discourse wasnotsubjectively there, orjust a (Machiavellian) pretext, that does notdetract fromat least the objective and/or institutional validity ofthe rules. This differentiation follows Alexy, footnote 32, 127 and the analysis of concepts in the history of ideas made byHabermas, 1992, Faktizität undGeltung, footnote 27, 112ff. See extensively Engel, 2000, Offene Gemeinwohldefinitionen, . See also Sabel, Cohen, footnote 27, 4: ” (T)he deliberate conception of collective decision making extends the idea of treating people with respect from rights and procedures to justifications themselves.”

30 In the

31

32

33

34

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theories concerned, there must still be a weighing between the different interests affected. This weighing maybe structured bygiving some reasons more weight than others. Those reasons maybe constitutional arguments orthose concerning fundamental rights.35

2. Legitimacy of Consensus Discourse theory is primarily a theory on reasoning and accepts rules and value statements as correct andlegitimate ifconsensus canbereached byfollowing certain discourse rules (which make a discourse ‘non-authoritarian’), i.e. through an ideal speach situation. These rules make some general demands onrational andpractical argumentation, are vital forthe substantive rightness ofthe discourse andapply also to monologues. Specific rules aretoguarantee that a discourse (ofseveral people) is impartial. Presenting the whole Discourse Theory here would go too far, anda few brief notes should suffice. Tocite the discourse rules inthe words ofAlexy:36 ” 1. Anyone whocanspeak maytake part; 2.(a) Anyone mayquestion anystatement made; 2.(b) Anyone mayintroduce anystatement into the discourse; 2.(c) Anyone mayexpress their attitudes, desires andneeds; Nospeaker maybe prevented fromexercising the rights listed 3. in 1. and2. bycoercion applied within oroutside the discourse.” Ifthe rules of the discourse apply, then the following condition of universal agreement

andsubstantive rightness applies: “ A norm mayfind universal consent ina discourse only if the consequences of general compliance forsatisfying theinterests ofeach individual canbeaccepted by all. ...Exactly those norms are correct andvalid which are judged correct by 37 everyone inan ideal discourse.”

the ideal of the non-authoritarian discourse is certainly unachievable, Alexy notes38 thatonecould verywellpursue anideal which maynever beattained. Seeking to approach the ideal ofthe Discourse Theory cannonetheless be quite interesting particularly for institutional design and, just as the consensus in Constitutional Economics, would make the ideal discourse an enlarged regulatory idea for shaping institutions. Discursive theory does not limit deliberation to constitutional processes but regards itas ubiquitous onalllevels, meaning thata deliberative process is suitable and advisable not only on the constitutional level but also for all other levels of institutional hierarchy. What makes Discourse Ethics problematic, however, is that is does not make sufficient allowance for the phenomenon of scarcity and the related opportunity costs39, which is eminent froma legal viewpoint. The argument that a discourse and While

Cohen, footnote 27, 6f. However, this does not predetermine the weighing of the conflicting interests itself. Alexy, footnote 32, 130. Alexy, footnote 32, 131. Alexy, 1996, Theorie derjuristischen Argumentation. Die Theorie des rationalen Diskurses der juristischen Begründung. 3. ed. Frankfurt a.M., 158f. See also Avio, 1999, Habermasian Ethics andInstitutional LawandEconomics. Kyklos 52: 511– 535, 528f. Opportunity costs of some participants maybe higher than those of others which might leadto inequality.

35 See Sabel, 36 37

38

39

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the consensus reached byit is fulfilling the discourse criteria is notquite valid ifthe legitimacy of the results has to be judged in reality where discourses have to be restricted or even broken off due to the actual scarcity problem. Legitimacy then depends onwhether the discourse is accepted as such bythe participants, andthe question willhave to be answered empirically inthe end. Thetheories ofdeliberative democracy assume though thatthecrucial criterion forlegitimacy is nottheconsensus (even iftheymaystate thegoal). Results reached bymajority rule are also legitimate ifandonlyifthey are the decisions ondifferent alternatives reached ina discourse of free andequals. Evenifmajority rules area means ofaggregation ofpreferences, the difference to non-deliberatively aggregated preferences andto Constitutional Economics is stressed.40

3. Procedural versus

Outcome Utility

Discourse Theory does notexplicitly account forprocedural utility of deliberation as is not a concept used in Discourse Theory. We maytherefore regard the approaches in economics which explicitly take into account procedural utility as a proxy.41 Itrefers to the utility that people gain fromthe decision making process itself quite irrespective of the outcome of the decision. It was possible to identify empirically the utility derived from processes in political decision making, especially the utility of actual andpotential participation in political decision-making processes. Benz et al. considered participatory decision-making inpolitics a possible source forprocedural utility, especially rights to directly participate in the democratic process, which are supposed to give citizens a feeling anda cognitive understanding thattheir preferences are seriously taken into account ina fair political process. Eventhough this study does notlookatthe details ofthedeliberative process ofparticipation, itnevertheless undertakes a first step, namely that having the possibility oftaking part indeliberative processes does enhance individual well-being. utility

4. Effectiveness ofandCompliance with Rules Aparticularly important factor inthe effectiveness of institutions is the promotion not onlyofextrinsic, butalso ofintrinsic motives foranindividual’s compliance withrules, as this diminishes surveillance costs. Intrinsic motives are found if procedures are regarded as fair, meaning that a person maynot only expect a fair result but can express opinions andis given goodandimpartial reasons fora decision. The participants ofthe discourse will–so the assumption of Discourse Theory –regard thefact that the discourse conditions are adhered to as a sufficient condition forcompliance

with a rule.42 The thinking behind Discourse Theory has been supported by experiments which study the motives for complying with rules and established a link with legitimacy.43 Forrule-following andthe acceptance ofgovernment decisions, particularly those made bycourts and(rights-infringing, interventionist) administrative agencies, botha normative andaninstrumental perspective ofrule-following is found. The 40

Cohen, Footnote 18, 23.

41 See Benz, Frey, Stutzer, footnote 20. 42 See Cohen, Footnote 18, 22: ”(T)he participants suppose that theycanactfromthe results, taking the fact that a certain decision is arrived at through their deliberation as a sufficient reason for complying with it.” 43 Tyler, 1990, Why People Obey the Law. New Haven et al; Tyler, 1994, The Psychology of Legitimacy, Working Paper Series Nr.9425. Chicago and Tyler, 2001, A Psychological Perspective on the Legitimacy of Institutions andAuthorities. In:The Psychology of Legitimacy, edited byJost, Major. Cambridge: 416– 436.

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is based oneconomic analysis of lawandassumes that people comply with rules because of external incentives. The sociological model of social control is also fitting this instrumental perspective as itis result-oriented andnotconcerned withrule application. It is supposed that the results of legal proceedings, for example, are accepted only ifthey are thought to be beneficial in result. Aspecific problem arising in connection with institutional propositions which rely merely on sanctions is the high notexperiencing fair procedures undermines legitimacost of monitoring. Inshort, ” 44 andlack oflegitimacy undermines inturncompliance. cy” latter

IV.Deliberative Institutional Economics

Theapproach of Deliberative Institutional Economics canonlybe briefly summarized inthefollowing,45 butatleast some points ofneedofcombining Discourse Theory with NewInstitutional/Constitutional Economics are outlined. Problems andpossibilities of discursive institutional design will be mentioned. Much more further research is certainly needed.

To putit in a nutshell, Institutional Economics is concerned with a homo oecowhooptimizes given preferences bynegotiating andinteracting withothers and seeking to influence them with the ‘carrot andthe stick’(external incentives). From a normative angle, Constitutional and NewInstitutional Economics looks for nomicus

institutions and/or decision-making rules (institutional comparison) which best help citizens to achieve their (given) interests. Discourse Theory, by contrast, is built around a homocommunicans whomakes a claim tosubstantive rightness bypresentingarguments inpublic, andseeks a dialogue with partners whose preferences he hopes to alter byoffering better reasons. Positions of power orcoercion must notbe used, andthe discourse is subject to rules designed to make it legitimate. While neither approach mayclaim exclusivity, combining them can be quite productive. Forevery homooeconomicus there is, inthebackground, a homocommunicans whoin turn also has to make rational decisions. People normally use both strategies andthus there is the need of a behavioral model of action bringing both approaches together –a homo rationalis communicans. What is helpful here is that thetwoparadigms donotcontradict eachother andmerely usedifferent perspectives, creating several points of contact between the NewInstitutional Economics and Discourse Theory.

1. Reaching Consensus Let us first look at the possibility of reaching

agreement by way of deliberation. Constitutional Economics assumes given preferences, andtheadoption ofrules ina consensus reached by individuals considering their owninterests. If the parties dissent, the status quoprevails as legitimate since it has been proven to be Paretooptimal. Although a discourse onthe theory component of preferences is possible, a possible change also ofthe interest component ofpreferences through deliberation is disregarded. Nevertheless, it is conceivable that public pressure to give reasons (under the rules ofthe discourse) could alter people’s positions incases where they 44 Tyler, 1990, footnote 43, 172. 45 Note thedifference inthe linkestablished between institutional economics andDiscourse Ethics by Avio, footnote 39, whosees hisapproach as following thetradition oftheOldInstitutional Economics represented byVeblen andCommons, andexplicitly remote fromthe NewInstitutional Economics with its neo-classical model of homo oeconomicus which he opposes.

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can noteasily present selfish views, which would at least restrict their strategic or opportunist behavior.46 Framing institutions in a waythat calls for transparency of reason-giving, might therefore create other results. Another question is whether people are always aware of their own interests and/or purposes. Constitutional Economics supposes that people faced with a public decision would rather deliberate ontheir ownandthenjust decide. This maybe costly tothe individual as the proand cons need to be searched individually. Deliberation mayreduce those costs as the different arguments (including ex ante dispersed information) can be expected to be delivered through the discourse.

Ona sub-constitutional plane, economics continues to keepthe theoretical component of preferences constant. Discourse Theory, bycontrast, tolerates changes in preference components relating bothtointerests andtheory, anddoes so atallstages ofthe normative hierarchy. Admitting deliberation onalllevels appears appropriate in this light because of the conflicts, and collective action, required in all conceivable situations and at all levels of normative hierarchy. This implies that deliberative procedures have to be regarded not only in democratic procedures (e.g. direct democratic institutions) butalso within the executive power, i.e. insituations between state andcitizen, especially administrative procedures. Inother words: Deliberative Institutional Economics canbe usedat alllevel of institutional hierarchy. 2. Legitimacy of Consensus Constitutional Economics and Discourse Theory are concerned with procedural rationality and, on a social plane, are basically open to outcomes. Both theories are cognitivistic insofar as theysuppose thatthose moral judgments andnorms mayclaim validity, which are reasonable to everybody concerned and therefore based on commonly agreeable reasons. Another common feature is that, in a consensus on rules, both assume that the consensus is only composed of interests which are capable of generalization.47 While notnecessarily excluding a close lookat decision-

making processes, Constitutional Economics neglects such considerations, being focused onresults. However, therequirements forlegitimizing a consensus cannotbe further specified if,innormative terms, the conditions ofthedecision-making process arelargely neglected andnoclose examination is madeparticularly oftheinstitutional facilities enabling decision processes. As regards the legitimacy of institutions, acceptance is greater if a procedural approach is used allowing individuals to express their opinions andinterests ina discourse, andifeverybody is forced to give reasons fortheir opinions. This calls foropportunities to express one’s views and, not least, institutional pressure to give reasons forthem. Otherwise speaking, discursive rules give positive criteria which have to be fulfilled if a consensus is to be judged legitimate, whereas Constitutional Economics formulates negative criteria beyond which a consensus is deemed illegitimate. Fromtheviewpoint ofDiscourse Theory theconditions ofConstitutional Economics are necessary butnotsufficient conditions fora legitimate consensus –the former apply substantially stricter conditions as the latter.

46 See also Benhabib, footnote 27, Cohen, Footnote 18,andElster, 1998, Introduction. In:Deliberative Democracy, edited byElster. Cambridge: 1– 18. 47 Ofinterest inthis connection is Vanberg, 1999, Ordnungsökonomik undEthik. Freiburger Diskussionspapier zurOrdnungsökonomik 99/2. Freiburg i.B., 9 whorefers to the Discourse Theories of ApelandHabermas andmakes a comparison between ” constitutional interests capable ofconsensus” as a criterion of the substantive rightness of (constitutional) contents, andthe criteria forthe rules of a discourse requiring a capacity foruniversalization, andimpartiality.

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Whereas Discourse Theory mainly discusses requirements that must be metif are to recognize universalistic interests, economic approaches come in later to look at the decision proper and its (formal decision) rules, the scarcity conditions, opportunity costs, and strategic interests. It is plain to see that here, too, decisions are invariably preceded by discourses which may change individual attitudes and, therefore, the resulting decisions. And there is no doubt that these discursive processes must also be (and are, infact) controlled byinstitutions which make allowance for scarcity conditions in society, and individual opportunity costs. This leads tothe question of‘optimal deliberation’.48 Constitutional Economics basically should have no problems accepting the fact that institutional design should match the rules ofthediscourse. First, this is because it, too, wants to give individuals an opportunity to express their preferences in an enlightened manner.49 Secondly, itwants themto follow rules, which is more likely if they recognize rules as legitimate. Deliberative procedures andmandatory reasongiving by state institutions are a substitute or a complement to (direct)democratic legitimacy byagreement. Theyare,toa certain extent functionally equivalent. After all, disclosing authoritative decisions andoffering arguments intheir favor is a necessity if principals are to exercise control over their agents, no matter if the relationship politicians/citizen, administrative agencies/citizen or jurisdiction/citizen is concerned. The theoretical deficit in Constitutional Economics was diagnosed inthe fact that it presupposes the enlightened manner of individuals in choosing rules, and does therefore notaccount forthe institutional necessities enabling the individuals todoso inreality. Here, Discourse Theory canhelptoenhance legitimacy ofconsensus. individuals

3. Procedural versus

Outcome Utility

NewInstitutional Economics is primarily a social science which wants to explain and predict. Aprecondition forthat is anexplanatory model ofhuman behavior, which is as simple as possible forits purposes. Rational choice theory certainly is a verysuccessfultheory, towhich there is noother, better paradigm insight, especially ifthe needof predictions and norm impact analysis is regarded. Outcome utility certainly is an important motivation foracting. Nevertheless, inmyview, the paradigm is inneed of complement, at least if institutional design beyond the market is analyzed. The New Institutional Economics, with its focus on decision utility rather than process utility, does notcover allcomponents ofutility orwell-being andthus does notsketch human behavior in all its facets. Discourse Theory lacks its ownsocial science paradigm which would enable it to make explanations or predictions. Where process utility is important, forexample insocial choice situations andadministrative actions, institutions should be designed accordingly, particularly ifthere is a commitment to normative individualism which takes these ‘utility potentials’into account.

4. Effectiveness ofandCompliance with Rules The acceptance of rules anddecisions is a keyelement of rule-following andvital for political and legal science of institutional design. Even in cases where unanimous decisions are not obtained, rules presumably become more acceptable if decision48 Fordetails see Shapiro, 2000, Optimal Deliberation. Paper read at the Conference “Deliberating , 02.-06.Feb.2000, at Austin/Texas. about Deliberative Democracy” 49 See fora critique oftheviewofenlightening discourse, institutionalized forameliorating preferences

Offe, 2003, Herausforderungen derDemokratie. ZurIntegrations- undLeistungsfähigkeit politischer Institutionen. Frankfurt a.M.

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the Best ofTwoWorlds

making processes are perceived to be fair andjust. The approach of Deliberative Institutional Economics does notdetract from the individualist approach of the New Institutional Economics withitsorientation toward self-interest, butrather expands it.A particularly important factor intheeffectiveness ofinstitutions isthe promotion notonly ofextrinsic, butalso ofintrinsic motives foranindividual’s compliance withrules. The participants ofthediscourse will– sotheassumption ofDiscourse Theory –regard the fact that the discourse conditions are adhered to as a sufficient condition of compliance with a rule. This certainly maybe putto doubt, butagain wefind a possible complement of NewInstitutional Economics. If the latter trusts mainly in incentivecompatible rules (self-interest) forcompliance, theformer focuses onthe acceptance of the decision through reason-giving. Those concepts seems complementary. If

democracy

is more than a mere aggregation of preferences at all levels, then the

discursive element is vital in claiming legitimacy, which inturn affects rule-following andtherefore theeffectiveness oflaw.Thus, forinstitutional design itseems plausible to test notonlyforincentive-compatibility butalso fordiscourse-compatibility. Institutions maythenalso be criticized ontheground that theyare discourse-incompatible.

V. Conclusion Economics focuses on explanation and prognosis of social phenomena, whereas Discourse Theory can be considered in the first place to be a normative theory of society, which lacks anelaborate social science paradigm. Economics maytherefore deliver a paradigm to Discourse Theory which, ifitdoes notneglect thecommunicative aspects ofhuman behavior, promises tobeveryfruitful forpositive andnormative questions. New Institutional Economics/Constitutional Economics and Discourse Theory differ intheir normative standpoints andtheir normative focus, even though both are procedural theories of rational decision. Deliberative theories are concerned withthe conditions of decision procedures and their relevance for the individual. This has implications fortheprocedure offinding consensus andtheacceptance andlegitimacy not only for rules and norms butalso for single (legal/administrative) cases. To neglect those conditions bears the danger of not being able to sketch adequate institutional design. The synthesis of both approaches, here named Deliberative Institutional Economics, seems better placed to deliver a normative and positive paradigm fordesigning institutions. Dr. iur. Lic. rer.pol. Anne van Aaken, Senior Research Fellow, MaxPlanck LawandInternational LawHeidelberg, Germany

Public

Institute

for Comparative

Deniz Coskun

Lawas symbolic form. Ernst Cassirer and the anthropocentric viewof law1 Introduction

This paper examines the jurisprudence of Ernst Cassirer. Although most notably Philosophy of Symbolic Forms” known forhis “ (hereinafter: PsF),2 Ernst Cassirer has also offered a systematic elaboration of jurisprudence and moral philosophy in his critical treatment ofthe Uppsala School, also known as the Scandinavian Realists. In Axel Hägerström –eine Studie zurSchwedischen Philosophie derGegenhis book“ in Göteborgs Högskolas Arsskrift of 1939 (hereinafter: Axel Hägerström, AH), wart” Cassirer applies his basic view, as developed in his Philosophy of Symbolic Forms, on newfields, viz. jurisprudence andmoral philosophy. This most interesting writing of Cassirer dates from his period in Sweden, where he lived from September 1935 to March 1941, after he hadto flee from Nazi-Germany in 1933 andhadfound a first refuge in Oxford. When professor of philosophy at Göteborg, Cassirer attempted to refute Hägerström’s critical philosophy on the epistemological as well as practical level,3 and,withthat, heoffered usa general scheme fora Cassirerean jurisprudence, i.e., forlawas symbolic form. What is law as symbolic form? To answer this question, first, we introduce Cassirer’s philosophy of symbolic forms. Second, we give an examination of how Cassirer applied his philosophy of symbolic forms to law and try to answer the question of howlaw is a symbolic form. Third, we explain what Ernst Cassirer’s position injurisprudence is. Finally, wegive anevaluation ofthe results ofthis paper. philosophy of symbolic forms”? 1. What is the “

In the “philosophy of symbolic forms”Ernst Cassirer applied his findings on the structure of mathematical andscientific thought, as presented inhis book Substanzbegriff und Funktionsbegriff (Berlin, 1910) and magnificently elaborated in his treatment of the problem of knowledge (Das Erkenntnisproblem in der Philosophie und Wissenschaft derNeueren Zeit, 4 Volumes, 1906–1957), to the cultural sciences. However, it became clear to himthat general epistemology, with its traditional forms andlimitations could notprovide an adequate methodological basis forthe cultural sciences. For this, epistemology would have to broaden its investigations to the various fundamental forms of man’s “ understanding”of the world, and apprehend “ characteristic each one of them as sharply as possible in its specific direction and 1

jurisprudence in Nijmegen University, The Netherlands. The title is Edmond Cahn, The Sense of Injustice: an anthropocentric viewof law, NewYork University Press, NewYork, 1949. I would like to thank Jes Bjarup (Stockholm), Gerald Hartung (Hannover), andJan Biemans (Nijmegen) forcomments. Ernst Cassirer, Philosophie dersymbolischen Formen, Bruno Cassirer Verlag, Berlin, 3 Bd., 1923– 29; ibid., The Philosophy of Symbolic Forms, tr. R. Manheim, Yale University Press, NewHaven, 3 Volumes 1953–1957 (the references hereinafter are to the translation: PsF I– III). Cf. Peczenik, A., Introduction, Associations, Volume 7, No.1, Special Issue forThe IVR21st World

The author is jr. researcher inspired

2 3

bylate professor

Congress, 2003, p. 7

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Deniz Coskun

4 Through his philosophy of symbolic forms as a general theory of spiritual form.” cultural forms, Cassirer shows howthe different configurations of (pure) subjectivity, that are determined bya specific spiritual perspective, fulfill their ownfunction inthe growth ofthe human spirit andhoweach oneofthemis subject toa particular law. In his Substanzbegriff undFunktionsbegriff Ernst Cassirer made clear that the naïve copy theory of knowledge was discredited in the history of philosophy and had The fundamental concepts of to make wayfor the functional theory of knowledge. “ eachscience, theinstruments withwhich itpropounds its questions andformulates its solutions, are regarded no longer as passive images of something given but as 5 The mathematical physicist Heinrich Hertz symbols created by the intellect itself.” had already formulated this new ideal of knowledge. He observed that in the attempts ofthe natural sciences toforesee future experience, thescientists make useof“inner ofoutward objects, “ fictions orsymbols” andthese symbols areso constituted thatthe necessary logical consequences of the images are always images of the necessary natural consequences of the imaged objects. (...) The images of which we are speaking are ourideas of things; they have withthings theoneessential agreement which lies inthefulfillment ofthestated requirement, butfurther agreement withthings 6Inplace oftherequirement ofa similarity ofcontent is notnecessary totheir purpose.” between the image of the object and the object itself, the natural sciences have introduced a highly complex logical relation. The natural sciences nowdescribe an object only within the essential categories of natural science, and therewith have grasp andcommunication of reality. immediate” come to renounce the claim of an “ The functional theory of knowledge holds, that an object of knowledge can be described onlymediated bya particular logical andconceptual structure, i.e. through symbols. Accordingly, Cassirer concludes, “ a variety of media will correspond to 7 relations.” various structures of the object, to various meanings for“ objective” Next to cognition, the life of the human sprit as a whole knows other modes or objectification” , bymeans ofwhich itraises the particular tothe level ofthe forms of“ universally valid. Although these forms ofobjectification achieve universal validity by methods entirely different fromthe logical concepts andlawoflogic, eachofthemhas in common with cognition, that “ it does not merely copy but rather embodies an original, formative power. Itdoes notexpress passively themere factthatsomething is present butcontains an independent energy of the human spirit through which the meaning,”a particular simple presence of the phenomenon assumes a definite “ 8 Cassirer located the answer to the question of howa certain ideational content.” phenomenon assumes a certain “ meaning”or how it is possible that something , intheconcept of“symbolic pregnance” . Bysymbolic pregnance, meaning” assumes “ the wayinwhich a perception as a ‘sensory’experience contains at Cassirer means, “ the same time a certain nonintuitive ‘meaning’which it immediately andconcretely 9 Itis the condition forthe possibility of allgiving ofsigns andmeaning. represents.” Through the concept of symbolic pregnance, it becomes understandable what every energy of Cassirer means bysymbolic form. Bysymbolic formCassirer means “ a mental content ofmeaning [geistithe mind[Energie des Geistes],” through which “ gerBedeutungsgehalt] is connected toa concrete, sensory sign[konkretes sinnliches 4 5 6 7 8 9

PsF I, supra note 2, p. 69. Ibid., supra note 2, p. 75. Ibid., supra note 2, p. 75. Ibid., supra note 2, p. 76. Ibid., supra note 2, p. 78. PsF III, supra note 2, p. 202.

Lawas symbolic form

27

10Asymbolic form is a certain wayto andmade toadhere internally to it.” interpret signs and images,11 an intermediary by whom we first gain access to Allsymbolic forms,”Cassirer says, “operate between ourselves and the reality.12 “ objects; butby that they do not denote merely the negative distance, in which the object places itself before us, butthey create the only possible, sufficient mediation andmedium bywhich anyintelligible being becomes tangible andunderstandable to us.”13 Copernican Revolution”Kant brought to theoretical philosophy, i.e., the The “ radical modification oftherelation between cognition anditsobject, thatbyananalysis ofreason wemustfirst ascertain thefundamental formofjudgment, andthus thatwe mustbegin withthe lawofcognition, is carried overtotheother phenomena ofculture. Kant himself already recognized that mathematics and physics do not exhaust all because they are far from encompassing all the workings of the human reality, “ spirit.” 14 With the philosophy of symbolic forms, the critique of reason becomes the Itseeks tounderstand andtoshowhowevery content ofculture, in critique ofculture. “ so faras itis more than an isolated content, inso faras itis grounded ina universal 15The project ofthe principle ofform, presupposes an original act ofthe human spirit.” philosophy of symbolic forms directs all the various products of culture toward the common goal of transforming the passive world of mere impressions, “ in which the spirit seems at first imprisoned, into a world that is pure expression of the human spirit.”16 Only when philosophy through the philosophy of symbolic forms extends its analysis to all products of culture, and does not limit itself to the analysis of pure cognition, can it wholly discredit the naïve-realistic view of the world. In addition, the philosophy of symbolic forms attempts to bring a solution to the conflicts ofculture andthe antinomies within the concept ofculture. “ Inthecourse of its development every basic cultural formtends torepresent itself notas a partbutas the whole, laying claim toanabsolute andnotmerely relative validity, notcontending itself withitsspecial sphere, butseeking toimprint its owncharacteristic stamp onthe 17 The spiritual conflicts that whole realm of being andon the whole life of the spirit.” result from the demonstration of the specific power of each cultural form in battle with the other, can be overcome by philosophy only when it finds a standpoint that is situated above thespecific cultural forms andyetdoes notrelate themtoanyexternal, “ transcendent”being or principle. Through the philosophy of symbolic forms, it is possible to recognize the autonomy of all cultural forms bytaking into consideration “ nothing other than the purely immanent relation of all these forms to another.”18 Inthe philosophy ofsymbolic forms, each particular formtakes its meaning solely from the systematic place in which it stands. The content andsignificance of each Zeichen]

10 11 12

13 14 15 16 17 18

Ernst Cassirer, DerBegriff dersymbolischen FormimAufbau derGeisteswissenschaften, Vorträge der Bibliothek Warburg, 1921/1922, 6, p. 175. Translation by Krois, J.M., Symbolic Forms and History, Yale University Press, NewHaven andLondon, 1987, p. 50. Krois, J.M., Cassirer, Neo-Kantianism and Metaphysics, Revue de Metaphysique et de Morale, Volume 97:2, 1992, p. 449. Lindahl, H., Democracy and the Symbolic Constitution of Society, Ratio luris, Volume 11, 1998, p. 19. Ernst Cassirer, DerBegriff dersymbolischen FormimAufbau derGeisteswissenschaften, Vorträge der Bibliothek Warburg, 1921/1922, p. 176. PsF I, supra note 2, p. 79. Ibid., supra note 2, p. 80. Ibid., supra note 2, p. 81. Ibid., supra note 2, p. 81. Ibid., supra note 2, p. 82.

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form is characterized by “ the richness and specific quality

Deniz Coskun

of the relations and

concatenations in which it stands with other spiritual energies and ultimately with totality.” 19 Forthis, according toCassirer, wehave todiscover a factor which recurs in each basic cultural form butin no twoof them takes exactly the same shape, i.e., without losing the incomparable particularity ofanyofthem. The question is whether there exists a medium through which all the configurations effected inthe separate but which nevertheless retains its particular branches of cultural life must pass, “ 20 nature, its specific character.” Cassirer finds this medium in the concept of the ‘symbol’taken in its broadest meaning, i.e., the expression of something intellectual through sensory signs and images.21 Through the concept of the symbol, Cassirer finds “ an all-embracing medium in which the most diverse cultural forms meet,” andforwhich the (idealistic) opposition between the mundus sensibilis andthe mundus intelligibilis is no longer irreconcilable andexclusive.22 Anewformofreciprocity andcorrelation, i.e., cooperation between the senses andthe spirit, characterizes the symbol. The cooperation Thecontent of the spirit is disclosed only inits manifestations; the consists inthat “ ideal formis known onlybyandintheaggregate ofthesensible signs which ituses for 23ForCassirer, “ Theconceptual definition ofa content goes handin its expression.” 24 hand with its stabilization in some characteristic sign.” What wecall intellectual orspiritual has to find its fulfillment ultimately insomething sensory; it appears only by and in a sensory sign.25 However, the sensory material, thematerial ofperception is nota realbeing thatcould be isolated andputto Forthesignis no thefore inthis isolation as a pure given, as a psychological datum. “ mere accidental cloak oftheidea, butits necessary andessential organ. Itserves not merely to communicate a complete andgiven thought-content, butis an instrument, by means of which this content develops and fully defines itself.”According to Cassirer, sensibility consists notmerely of passivity andreceptivity, butalso has an active element of formation. Outof the chaos of immediate sense impressions man creates order orsome kindofpermanence, foremost byusing linguistic signs, suchas names. Through language, then, thecontent ofwhatwasfirst chaos receives a certain intellectual mark. Consequently, the content of sense impressions rises above the mere sensual level: because it has acquired an intellectual articulation, the sensory qualities nolonger regulate itabsolutely. Other systems of sensuous symbols, i.e., symbolic forms, also display this typical function or mode of objectification. It is characteristic of symbols that they transgress individual consciousness and claim universal validity by confronting the subjective fundamental principle of withthe universal. Inthesciences, thesymbol embodies the“ cognition thattheuniversal canbeperceived onlyintheparticular, while theparticular According toCassirer, this function canbe thought onlyinreference totheuniversal.” of the symbol is not limited to the sciences, but runs through allthe other cultural forms as well.26

19 Ibid., supra note 2, p. 82. 20 Ibid., supra note 2, p. 84.

21

Ernst Cassirer, DerBegriff dersymbolischen FormimAufbau derGeisteswissenschaften, Vorträge der Bibliothek Warburg, 1921/1922, 6, p. 174. 22 PsF I, supra note 2, pp. 86–87. 23 Ibid., supra note 2, p. 86. 24 Ibid., supra note 2, p. 86. 25 See: Ernst Cassirer, ZurLogik des Symbolbegriffs, in: Ibid., Wesen und Wirkung des Symbolbegriffs, Wissenschafliche Buchgesellschaft, Darmstadt, 1959 (urspr. Teubner, Leipzich, 1925), p. 210. 26 PsF I, supra note 2, p. 86.

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Lawas symbolic form

In this respect, all symbolic forms contain and display a specific kind of symbolic formation, whereby the symbol represents the relationship between the idea andthe sign, the universal andthe particular. Nevertheless, Cassirer is not interested in a substantial definition ofthe ‘symbol’orwhatthesymbol signifies inthis orthatspecific discipline. Herather asks inwhatrespect a certain discipline, suchas language, myth, orscience carries withitthegeneral function ofsymbolic formation: “ alltruly strict and 27 exact thought is sustained by the symbolics andsemiotics on which it is based.” in all Symbolic forms are, therefore, functional systems. According to Cassirer, “ symbolic forms that basic phenomenon comes to expression that ourconsciousness does notsuffices itself to receive the impression of the exterior, butthat itaccompanies andpermeates every impression witha free act of expression. A world ofselfcreated signs andimages confronts what wecall the objective world of objects and 28 affronts itinindependent substance andoriginal force.” that The insight of critical philosophy known as Kant’s “ Copernican revolution,” objects are not “ given” to consciousness in a rigid and finished state, but is first constituted by a synthetic unity of the consciousness, is taken upby the philosophy of symbolic forms and broadened to any cosmos that was formed out of a chaos of impressions. Accordingly, Cassirer follows this process of objectifying mere impressions into formed representations, i.e., into a cosmos or a characteristic andtypical worldview, back to strata even preceding theoretical object-consciousness. Forthis, Cassirer explores the typical formation of objectifications in the depths of mythical Allsymbolic forms,” thought.29 “ donotcome tothefore as separate, w rites Cassirer, “ independent and identifiable forms, but originate very gradually from the common matrix ofMyth. Allcontent of themind, although wehave togrant it anindependent area andanautonomous principle, is factually first given tousonly inthis concatenation. The theoretical, the practical, and the aesthetic consciousness, the world of language andknowledge, ofart, oflawandofethics, thefundamental forms ofsociety andthat of the state: they are all still originally connected to the mythico-religious 30 consciousness.” The symbolic forms first attain an independent form when they manage to cut themselves loose from this layer and gradually go through the various stages of objectification, termed byCassirer as thethree basic functions ofconsciousness, viz. theexpressive function orAusdrucksfunktion, therepresentational function orDarstellungsfunktion, andthe significative function or Bedeutungsfunktion.31 Because they are notgenetically autonomous creations (they rather originate from myth andstay interrelated withmythaccordingly) andgothrough analogous stages ofobjectification in their logico-historical evolution, the various symbolic forms fulfill the model of a critically conceived universal history and denote the essential unity of human culture.32 27 28 29

note 2, p. 86; cf. Ernst Cassirer, DerBegriff der symbolischen Form imAufbau der Geisteswissenschaften, Vorträge der Bibliothek Warburg, 1921/1922, 6, p. 174.

Ibid., supra

176. Ibid., 1921/1922, 6, pp. 175– PsF II, supra note 2, p. 29. 30 Ernst Cassirer, Axel Hägerström –eine Studie zur Schwedischen Philosophie der Gegenwart,

31

Göteborgs Högskolas Årsskrift, Göteborgs Högskolas Årsskrift, Elanders Boktryckeri Aktiebolag, Göteborg, 1939, p. 85n (hereinafter: AH); Ibid., Sprache und Mythos, Leipzich, 1925, p. 37 f. This latter function is dominated bywhat Cassirer calls the purely “ Cf. Verene, D.P., symbolic.” Metaphysical Narration, Science and Symbolic Form, The Review of Metaphysics, Volume 47,

1993, pp. 116–117. 32 See: Gadol, E.T., TheIdealistic Foundations ofCultural Anthropology: Journal ofthe History of Philosophy, Volume 12, 1974, p. 224.

Vico,

KantandCassirer, The

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2. What is lawas symbolic

form?

During his exile inSweden Cassirer encountered a jurisprudence underpinned byan epistemological philosophy that Cassirer sought to overcome with his philosophy of symbolic forms.33 Furthermore, the nihilist account of practical philosophy by the Scandinavian Realists was in stark contrast with the belief of Ernst Cassirer in absolute andobjective values. Most striking for Cassirer, though, is a prima facie agreement that he perceived between his conception ofthe study of lawandthat of the Scandinavian realist Axel Hägerström, whoalso presumed the interconnectedness of myth and law. It is this encounter which provides a general scheme for a Cassirerean jurisprudence, because it was for Cassirer an opportunity “ to grasp accurately and apply on new fields” , his basic view, as developed in his Philosophy of Symbolic Forms.34 ForCassirer lawis a symbolic form, andhence interconnected with myth. However, this does notmean, as AxelHägerström holds, thatlawiscaptured byrepresentations ofsuperstition created bylaw’s fantasy andcarried overthrough thecenturies. Cassirer agrees with Axel Hägerström as to the genetic origin of lawas a cultural datum, according to which, behind a façade ofa rigid logical system ofconcepts, law magical” representations; butinnowaydoes that result for contains a hidden layer of“ Cassirer as the endsolution. AxelHägerström is the geologist of lawwhosearches forthe deeper layers and ultimately forthe deepest layer of lawinorder to give a formation plan of law. His formation planconcludes thatthefundamental bearing layer oflawdoes notlie inthe immediate data given to us bythe documents of law, butto comprehend the true meaning of these documents we have to go back to the mythical origins of these documents. Cassirer, thecultural philosopher oflaw,ontheother hand, isnotsatisfied withthis single point ofdeparture oflaw’s concepts; he insists that wemustgrasp the s concepts, particularly considering totality ofthepossible meanings tobegiven tolaw’ their continuous reshaping andactive motives.35 Cassirer understands the genetic account of lawinpositive terms, i.e., there has notbeen a mere forgetting ofthe mythico-religious subsoil, buta transformation that has established a newform in place of the old. The development of Roman law demonstrates this exemplarily. The Romans thought of lawas given andordered by the gods andforthemlawcould notbe an autonomous phenomenon. Allof ius, law created byhumans, ultimately has its origin infas, the divine law.36 Nevertheless, we can distinguish fromthe sheer “animistic”imagery andsensational that Hägerström perceived, a theoretical core that wasalready present inpre-Socratic thought.37 Cassirer emphasizes thatitwastheessential achievement ofpre-Socratic thought to have discovered the pure form of theoretical, deductive science andgradually to have wonfield of myth. This universal struggle, initiated bythe pre-Socratic philosophers in the form of replacing the power of myth by that of the force of reason (Logos), also affected Dike (law), the intellectual center andfocus point of Greek thought.38

33

Krois, J.M., Symbolic Forms

154. 7. 34 AH, supra note 30, pp. 6– 35 Ibid., supra note 30, p. 90.

andHistory, Yale University Press, NewHaven andLondon, 1987, p.

36 Cf. Kaser, M., Das altrömische lus. Studien zur Rechtsvorstellung und Rechtsgeschichte der Römer, Vandenhoeck &Ruprecht, Goettingen, 1949, p.28. 95. 37 AH, supra note 30, pp. 91–

38 Jaeger, W., Paideia. Die Formung des griechischen Menschen, Bd. 1, Walter de Gruyter & Co., Berlin, dritte Auflage, 1954, p. 96.

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31

theclassical tragedies ofancient Greek literature centered ontheessential link between truth andlaw, they related themboth to a common origin andrendered the notion ofjustice its universal propensity.39 Accordingly, the development ortransformation of Roman lawfrom the initial narrowness of a local agrarian lawto a more encompassing state lawandfinally to that of a cosmopolitan account of law, was in fact no more than a synthesis andconsistent pursuance of the Greek conception of natural lawor Dike. By applying the methodology of Greek philosophy to jurisprudence, Roman lawyers created a jurisprudence subjected to the logical principles of identity andnon-contradiction. Roman lawcame loose fromits mythical restraints by transcending archaic logic andthe undifferentiated unity ofspeech andthought, and established, just as the Greeks didforthe theoretical world, a cosmos of law.40 AxelHägerström represents lawas a totality ofheterogeneous factors [Kraftekonglomerat], such as those of religious representations, the so-called consciousness of justice, class interests, andthe general tendency to conform to existing relations, or thefearofanarchy, allcooperating here.41 ForCassirer, this cannot be a terminus ad quemforjurisprudence. Ithasinstead a dutytosearch fora solution tothefundamental problem of howthe human intellect fuses these latter discords into some kindof unity. For the theoretical world, Kant has devised the concept of the “ unity of the plurality” [Einheit des Mannigfaltiges].42 The concepts of law, forCassirer, have the same task of synthesis to fulfill as the “pure concepts of the intellect”[reine Verstandesbegriffe] orthe “ categories”[Kategorien]. ForKant, these were nothing more thana means ofmaking usable to “ spell outrepresentations andhence tobe able to read themas experience” [Erscheinungen buchstabieren, umsie als Erfahrung lesen zukönnen].43 Theyrepresent the logical conditions forevery synthesis ofobservation andformthe means bywhich the latter first attains its objective meaning. Theconcepts oflawandthatofnature maydiffer as totheir proper object, i.e., the former represent a unity ofactions, while the latter represent a unity ofobservations, they donot, forCassirer, differ as to their content oftruth orobjective meaning. This insight of Cassirer, already formulated by himin his Substanzbegriff undFunktionsbegriff, entails that we must give upthe copy theory of knowledge for a functional theory of knowledge.44 As indicated above, according to the functional theory of knowledge, the objects donotdetermine the concepts they correspond to, butrather the concepts already contain certain questions directed to reality, and from the particular direction ofthese questions depends theanswers wesubsequently receive. This also applies forthe concepts of law. Inthis regard, the concepts of lawoffer a newdimension next to the concepts of the natural sciences by bringing the real and possible acts of experience under a While

39

40

41 42

43

44

Ernst Cassirer, Logos, Dike, Kosmos, InderEntwicklung dergriechischen Philosophie, Göteborgs 21. Hogskolas Arsskrift, Vol. 37, 1941: 6, Elanders Boktryckeri Aktiebolag, Göteborg, 1941, pp. 20– Inhisarticle Logos, Dike, Kosmos Ernst Cassirer stresses the importance ofthis link, first achieved firmly by early Greek thought, for the intellectual future of humankind and without which the subordination ofthe oneorthe manyto a single other is soondue. 93. AH, supra note 30, pp. 92– See: J. Bjarup, Skandinavischer Realismus, Verlag KarlAlber, Freiburg-München, 1978, p. 136, for a fullenumeration ofthese heterogeneous factors ofAxelHägerström. 96. AH,supra note 30, pp. 95– Fora recent attempt at reconciling Kant’s critical insights with respect to legal phenomena, see: Summers, R.S., On Giving Legal Form Its Due – A Sketch, Associations, Volume 7, No. 1, Special Issue for The IVR 21st World Congress, 2003, p. 209: “ A phenomenon cannot be reduced, without remainder, toitsparts. Itis a fallacy tothink thata legal phenomenon is a mere aggregation ofparts. Itis more. Its parts are organized into a whole that is unified.” 98. AH,supra note 30, pp. 97–

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category (sub specie) oflaw.45 Theconcepts oflawdirect themselves towards social experiences, for which they try to establish a logical scheme of order. In this scheme, Cassirer recognizes a progression from narrower to wider andfinally to universal or ideal representations of unity,46 i.e., a movement fromthe mythical tothe symbolical. “ Lawis indeed, genetically viewed, interwoven with Myth; butit seems never to be

47 initentirely.” Lawestablishes a gradual independence frommythwhenitenters thedomain of language. Language, as another general formofintellectual expression, is a conditio sine quanonforlawifitwishes todistinguish itself fromhabit orcustom. Inopposition to the (positive) enactments of the state, the latter are in no need of an explicit wrapped

formulation to have effect. In this respect, when law necessarily has to cloak itself in linguistic forms, thesubordination oflawtolanguage supplants thatofmyth. However, whenlawenters the dominion oflanguage andclothes itself intheforms oflanguage, it has also achieved a newwayorstage of objectification; it has achieved a certain intellectual mark.48 This objectification is carried further whenweno longer perceive theessence of(legal) language intheword, butinthesentence, i.e., theprovision of law.49 The provisions of lawdisplay a certain finality that renders a certain endtothe plurality, variety and conflicts of individual interests. By bringing a certain social experience under a category oflawwegive shape toour(future) world ofactions. Law,forCassirer, just like language, possesses a typical function of objectification; itelevates mantoa level ofobjective notion missing intheanimal that lives inthe immediate sense impressions.50 The linguistic concepts of the field of action, the concepts of law, therefore attain a newmeaning andtask, notonly dothey have the taskofrepresenting a given course ofevents, butalso ina certain sense theyhave to grasp into another dimension oftime: speech directed towards thefuture becomes a “ promise” . Thepresupposition, thata “given wordbinds” , “thataction isprescribed ina ofallconsciousness certain direction” a source andconstantly recurring element” , is “ 51 andlegal order.” Itisa conditio sine quanonforanylegal order totranscend itsclaim fromthegiven ofthe here andnowandtoextend its provisions into thefuture.52 Alegal order, inthe strict sense oftheword, first comes into being whenthought elevates itself inorder to distance theposited ofthehere andnowoverthesingle moment ofits positing, andto stretch it, inprinciple, uponthefuture. “ Thedeterminacy ofthefuture bythepresent and the binding of the former to what the present has decided for the future is a moment that holds inanypossible legislation.” Lawas a datum of culture [Kulturfaktum]finds itsfoundation uponthis anticipation, onthe prejudgment ofthefuture bythe

45 Ibid., supra note 30, p. 98. 46 Ibid., supra note 30, p. 102. 47 Ibid., supra note 30, p. 102. 48 Ibid., supra note 30, pp. 102–103. 49 Ibid., supra note 30, p. 103. 106. Schwemmer, O., Ernst Cassirer, EinPhilosoph dereuropäischen 50 Ibid., supra note 30, pp.105– Moderne, Akademie Verlag, Berlin, 1997, p.154, 95n, makes clear that: “ (...) Cassirer spielt hierauf Nietzsches Schrift ZurGenealogie derMoral an.” This is also made clear byCassirer’s reference to Nietzsche in: Ibid., VomWesen undWerden des Naturrechts, Zeitschrift furRechtsphilosophie in Lehre undPraxis, Volume 6, 1932, p.22. 51 AH,supra note 30, p. 104. 52 Cf. Finnis, J., Revolutions andthe Continuity of Law, in: Simpson, A.W.B. (ed.), Oxford Essays in Jurisprudence (Second Series), Clarendon Press, Oxford, 1973, p. 65; Postema, G.J., Law’s Melody: Time and the Normativity of Law, Associations, Volume 7, No. 1, Special Issue forThe IVR 235, 238. 21st World Congress, 2003, pp. 232–

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present, without which anticipation, Cassirer emphasizes, that of society is able to (continue to) exist.53

no human

legal order

or

3. What is Ernst Cassirer’s position injurisprudence? It is difficult not to read Cassirer’s writings on practical philosophy, in particular on jurisprudence, in the context of his biography andthe period in history, he lived in. Whereas in Wilhelmine Germany it was impossible for as a Jewish philosopher to attain a professorship at a university, the Weimar Republic established a democratic state andgave newopportunities totalented outsiders ineligible forpublic commission inWilhelmine Germany. Furthermore, Weimar opened centers ofprestige andpower among others toprogressive professors, suchas the newly founded Hamburg University. Because democracy necessarily entails equal access to public offices without (negative) discrimination, outsiders in Wilhelmine Germany, e.g. Jews and Social Democrats, became insiders of the Weimar Republic. This implicated the establishmentofa theoretically favorable (political) climate that stimulated thethriving ofErnst Cassirer, which most essentially consisted of the commission of a professorship in Hamburg University, the appointment to rector (the second Jewish rector ofa university inGermany), andtheavailability ofa library suchas thatoftheWarburg Institute.54 Moreover, Weimar represented that corpus offundamental values that were dear to Cassirer. Already in his first publication in 1902, in his treatment of the philosophy of Leibniz and the first formulation of individual human rights by Leibniz in his struggle against slavery, didCassirer take notice ofthefundamental andinalienable rights he later himself wastoadvocate. Several instances markhispublic engagement fortheconstitutional democracy ofWeimar. InAugust 1928, Ernst Cassirer defended at the tenth anniversary ofthe Weimar Republic the Weimar Constitution, inhis speech entitled DieIdee derrepublikanischen Verfassung (The idea ofthe republican constitution).55 In1930, as rector ofHamburg University, despite strong protest fromwithin the university, heset himself to commemorate the constitution in an effort to search for a common notion of the state andits tasks.56 Finally, in1932 Cassirer underlined the merits ofthe natural law tradition forthe constitutional state, notbeing merely historical, before the Hamburg Society of Lawyers.57 Cassirer’s position injurisprudence, although heis aware oftheindebtedness of contemporary jurisprudence tothattradition, is notmerely a restatement ofthenatural 53 AH,supra note 30, p. 105. 17; cf. 54 Gay, P., Weimar Culture. Theoutsider as insider, Secker &Warburg, London, 1968, pp.16– Moynahan, G.B., Hermann Cohen’s Das Prinzip derInfinitesimalmethode, Ernst Cassirer, andthe 75. Politics ofScience in Wilhelmine Germany, Perspectives onScience, Volume 11, 2003, pp.35– 55 Ernst Cassirer, Die Idee der republikanischen Verfassung, Rede zur Verfassungsfeier am 11. August 1928, Friederichsen, De Gruyter & Co. M.B.H., Hamburg, 1929. 56 See: Ernst Cassirer, Wandlungen der Staatsgesinnung undder Staatstheorie in der deutschen Geistesgeschichte, in:Enge Zeit. Spuren Vertriebener undVerfolgter derHamburger Universität im Auditorium Maximum der Universität, Von-Melle-Park 23. Februar – 4. April 1991, Hg. von Angela Bottin unter derMitarbeit vonRainer Nicolaysen, Hamburg, 1991. 57 Ernst Cassirer, VomWesen undWerden desNaturrechts, Zeitschrift fürRechtsphilosophie inLehre 27. Forthe question ofwhyandforwhatCassirer set out undPraxis, Volume 6, No.1, 1932, pp.1– to defend the Weimar Constitution, see: Coskun, D., Ernst Cassirer andEuropean Constitutionalism, in: Nergelius, J., Policastro, P., Urata, K. (eds.), Challenges of Multi-Level Constitutionalism, 169. Polpress Publisher, Kraków, 2004, pp. 153–

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law tradition. For Cassirer natural law entails a fundamental and a constitutive moment fortheconcept oflaw,because ithas managed toovercome twoobstacles of jurisprudence. On the one hand, natural lawyers detached law from theological dogmatism –as initiated byGrotius andcarried further byPufendorf58 –onthe other hand, they provided forthe determination andmarking outof the pure realm of law as embodied byHobbes’Leviathan.59 against therealm ofstate power orabsolutism – ForCassirer lawis a phenomenon distinct from religion andstate power, i.e., as a particular symbolic form it exists, albeit interdependently, independent from others forms ofobjectification. Primarily, lawis nota means oflegitimating a certain (preexisting) entity, butfunctions as a mode bywhich humans give objective meaning ororder toanotherwise less objective ororderly world. Asa symbolic form, lawexpresses the “ classifying instinct” ofman;“ thedesire ofhuman nature tocome toterms withreality, to live inan ordered universe, andto overcome the chaotic state in which things and 60 thoughts have notyetassumed a definitive shape andstructure.” Bylanguage directed to the future inthe formofa promise, humans tryto give shape to a cosmos of (possible) actions. Forthis, manenters into a social contract, which is not a mere historical fact, buta pure idea of the mind that has a certain practical reality, such as Kant hadinmind. According to Kant, every legislator has to legislate insucha waythat itcould have hadoriginated fromthe united willofa whole people; andithas toviews every subject notas a mere subject, butalso as a citizen, as to have agreed withthegeneral will.61 Inaddition, itentails forCassirer theethical imperative, that it is the responsibility of every legislator that it demands from the totality of the people nothing else than that this totality, out of ethical claims and maxims, could demand fromitself.62 Inline with Kant, butalso withthe social contract theory of Rousseau, Cassirer writes, “ The social consciousness of mandepends on a double act of identification anddiscrimination. Mancannot find himself, he cannot be aware of his individuality than through the medium of social life. But for manthis medium is not merely an external determinative force. Man, like the animal, subjects itself to the rules of society, but, moreover, he has an active contribution in producing and an active 63However, whatdistinguishes Cassirer’s capacity inchanging theforms ofsocial life.” account ofthesocial contract fromthatofRousseau andKant(orGrotius, Leibniz and

58 See respectively Grotius’famous statement inPrologomena 11ofhis Dejure belli ac pacis libri tres (1625) andforPufendorf’s separation ofnatural lawandmoral theology, see: Luig, K., Samuel von Pufendorf, ÜberdiePflicht desMenschen unddesBürgers nachdemGesetz derNatur, Insel Verlag amMainundLeipzig, 1994. 59 Ernst Cassirer, VomWesen undWerden des Naturrechts, in: Zeitschrift furRechtsphilosophie in Lehre und Praxis, Volume 6, 1932, pp. 6–18.

60 See: Ernst Cassirer, Themythof the state, Yale University Press, NewHaven, 1946, pp.15–17. 61 See: Immanuel Kant, ÜberdenGemeinspruch: DasmaginderTheorie richtig sein, taugt abernicht

62

63

398: S. 380f. [Akad.-Ausg. VIII, 297]; cited in: Ernst für die Praxis, in: Werke, Bd. VI, S. 355– Cassirer, Freiheit undForm. Studien zurdeutschen Geistesgeschichte, Gesammelte Werke Band 7, Felix Meiner Verlag, Hamburg, (1916) 1998, p(p). (509–509) 343; cf. AH,supra note 30, p. 104. See: Lüthje, Jürgen, Verneigung vorErnst Cassirer, Rede ausAnlaß derBenennung des Hörsaals Als im Hautgebäde der Universität Hamburg in Ernst Cassirer-Hörsaal am 11. Mai 1999; in: 1945), Ansprachen aufder Hamann, F., Lipert, J. (Red.), ZumGedenken an Ernst Cassirer (1874– Akademischen Gedenkfeier am 11.mai1999, Hamburger Universitätsreden Neue Folge I, Herausgegeben vonderPressestelle derUniversität Hamburg, Dölling undGalitz Verlag, Hamburg, 1999, pp. 10–15.

Ernst Cassirer, Anessay onman.Anintroduction toa philosophy ofhuman culture, Yale University Press, NewHaven, 1944, p. 223; cf. Ernst Cassirer, Rousseau, KantandGoethe, tr. J. Gutmann, P.O. Kristeller, andJ.H. Randall, Jr., Princeton University Press, Princeton, 1945; here: Chapter 1: KantandRousseau.

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Hobbes) is that Cassirer attempts tosituate theorigin ofthesocial contract inthat of language, a condition sine quanonforanyactive participation inandhence construction of social reality.64 In other words, Cassirer initiated a linguistic turn of social contract theory.65 Moreover, byvirtue of man’s characteristic use of language, he is notbound solely to his immediate practical needs andsensory impressions, buthe hasthe ability toanticipate anddetermine the (hence his) future. This is possible only for beings that possess the capacity for symbolic formation.66 For the human being it is even inevitable, because humans no longer live merely in a physical universe; humans live in a symbolic universe. “ Manhas, as it were, discovered a newmethod ofadapting himself tohis environment. Between the receptor system andtheeffector system, which are tobe found inallanimal species, wefindinmana third link which wemaydescribe as thesymbolic system. This new acquisition transforms the whole of human life. As compared with the other animals manlives notmerely ina broader reality; he lives, so tospeak, ina newdimension of reality. (...) Mancannot escape from his ownachievement. (...) Nolonger can man confront reality immediately; hecannot see it,as it were, face toface. Physical reality seems torecede inproportion as man’s symbolic activity advances. Instead ofdealing with the things themselves manis ina sense constantly conversing withhimself. He has so enveloped himself inlinguistic forms, inartistic images, inmythical symbols or 67 religious rites that he cannot see orknowanything except bythis artificial medium.” Insocial life, the individual first, most notably through linguistic forms, discovers its true, i.e., symbolic nature, because the term symbolic as such excludes the merely subjective and includes the other. Inthis sense, the concept of animal symbolicum is synonymous to the whole of humanity, andgives a philosophical anthropological justification ofhuman rights. The concept of the animal symbolicum determines the limits of the exercise of political power by considering the humanity of its actions, to which every individual has a natural right. Themostimportant natural orhuman right forCassirer is that ofthe right to develop freely one’s ownpersonality. Byvarious examples, Cassirer makes clear the importance ofthe symbolic capacities ofa person forits personality. Persons that have lost (some of)their symbolic capacities, forinstance thatofspeech inthecase of aphasiacs, display a correlative deformation of their personalities. This consists among others in an impairment of the capacity to anticipate future events andin a dependence on the actual given things of the here andnow, thus being unable to “ grasp”the possible. Moreover, by virtue of their symbolic capacities humans first attain access to the normative, again foremost bylanguage. Ourfirst grasping at the right meaning of words, as a child, andourefforts to use the right andappropriate words in the right meaning, constitutes ourfirst contact with the normative. In this sense, thedevelopment ofone’s (symbolic) personality is essential to participate ina social entity.

64 Cf. Deacon, T.W., Thesymbolic species: the co-evolution of language andthe brain, Norton, New 401; Oort, R. van, Cognitive Science and the Problem of Representation, York, 1997, pp. 393– Poetics Today, Volume 24, 2003, p. 277.

65 Cf. Coskun, D., Derlinguistic turn inderTheorie des Gesellschaftsvertrags. Ernst Cassirer unddie Bedingungen der Möglichkeit des Versprechens, in; Schneider, M. (Hrsg.), Die Ordnung des Versprechens. Naturrecht –Institution –Sprechakt, Wilhelm Fink Verlag, Paderborn, 2005, pp.

66

270. 253–

Humans whohave not (yet) developed the capacity for symbolic formation or have lost it, such aphasiacs, cannot enter this specifically human domain. 67 See: Ernst Cassirer, Anessay on man: an introduction to a philosophy of human culture, Yale 25. University Press, Newhaven, 1944, pp. 24–

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Furthermore, Cassirer writes, “ If a mancould give uphis personality he would cease being a moral being. Hewould become a lifeless thing –andhowcould sucha howcould itmakea promise orenter intoa social contract? (...) thing obligate itself – The contract of rulership which is the legal basis of all civil power has, therefore, its

inherent limits. There is nopactum subjectionis, noact ofsubmission by which man can give up the state of a free agent and enslave himself. For by such an act of renunciation he would give upthatverycharacteristic which constitutes hisnature and 68 Whereas, it is fundamental that the state essence: he would lose his humanity.” guarantees the freedom foreveryone to develop his or herpersonality, which is a condition forthe possibility ofthe social contract, the animal symbolicum also carries with himan ethical responsibility, viz. a responsibility to reflect and to gain selfFreedom is notthenatural inheritance ofman. Inorder to knowledge. Inother words, “ possess it wehave to create it. If manwere simply to follow his natural instincts he would not strive for freedom, he would choose dependence. Obviously, it is much 69In easier todepend uponothers than to think, tojudge, andtodecide forhimself.” effect, nexttoa linguistic turnofthesocial contract tradition, thejurisprudence ofErnst Cassirer orders a reflective turnforevery citizen.

Conclusion Ernst Cassirer conceives of law as a symbolic form. This assertion has different consequences andwhenreconstructed itoffers some remarkable insights. First, law is a phenomenon that stands interrelated to other forms of intellectual expression, such as that of myth and language, but essentially contains its ownfundamental carrying principles. As such, it has hadto undergo a development that entailed a struggle to cut itself loose fromthe dominating influence of other symbolic form. All symbolic forms, thatoflanguage, myth, religion, morality, thestate, etc., are means by which wehave a world of ourown, however, they alltryto expand their significance (byencompassing more andmore (objects of)reality). Second, lawis notprimarily an

instrument of legitimacy, but it is a wayof having objectivity and giving meaning. Through law,wemanage tohave anordered universe orcosmos ofactions. Ineffect, the provisions of law, be they (incorporated in)enactments ofthe legislator orjudicial judgments, are notmere means ofcommunicating a certain ideal content, rather they have formative power (inthesymbolic sphere) themselves. Theprovisions oflawthat areformulated inlanguage directed tothefuture, give expression toa certain promise, andaccordingly prescribe ouraction ina certain direction. Allthis is possible because manhas the capacity ofsymbolic formation.70 Third, lawis a product ofhuman creativity andpersonality, andas such, itreflects human dignity. Without regard tothefree development ofhuman personality, which is a dutyforthe state as wellas forthe citizen, humans become incapable of entering into the social contract as a pure idea ofthe mind. Whenexternal or internal factors

68 Ernst Cassirer, The myth of the state, Yale University Press, New Haven, 1946, p. 288. Cited by Krois, J.M., Symbolic Forms andHistory, Yale University Press, NewHaven andLondon, 1987, pp. 168–169. 69 Ernst Cassirer, Themyth of the state, Yale University Press, NewHaven, 1946, p. 288. Cited by Krois, J.M., Symbolic Forms andHistory, Yale University Press, NewHaven andLondon, 1987, p. 169. 70 Cf.the recent elaboration onthis theme byDeacon, T.W., Thesymbolic species: theco-evolution of language andthebrain, Norton, NewYork, 1997.

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seriously confine human creativity andpersonality, respectively humans either have little tonodifference fromslaves orare unable totranscend themerevital levels oflife. In that case, they cannot participate in the specifically human level of the symbolic. In this respect, finally, as to the substantive view of law, human rights constitute for Cassirer the real connection of philosophy with the world. For Cassirer there are absolute andobjective values, e.g. inthe form of human rights. It is notright to deny the existence of absolute values in law, merely because the concepts of lawdonot directly refer to (tangible) objects and/or their substance. Even the natural sciences useinner fictions orsymbols thatdonotbearanydirect relation toreality. This makes thenatural sciences as wellas thehumanities, ofwhich jurisprudence isa part, noless objective. Analogous tothe natural sciences, jurisprudence tries to establish a logical scheme of order foroursocial experiences inthe form of a cosmos of law, which is characterized bya functional unity. Lawhasbecome a referential system, wherein the concepts oflawdonotdirectly refer to orconstitute a certain substance, butexpress a relationship withother concepts andthetotality oflaw(as a general system of(legal) concepts). Accordingly, it is the generality or universality of the concepts of lawthat determine objectivity. Deniz Coskun,

MA,Doctoral Candidate/ jr. researcher injurisprudence, Radboud

University Nijmegen

Laurent

DeSutter

Howto Get Rid of Legal Theory?* To Vlad F. Perju. Time hascome toaskourselves whattodowithlegal theory. Regarded bypractitioners as an esoteric andpompous blah-blah foramateurs of abstraction that seemto have forgotten the pragmatic reality oflaw, laughed at by“ philosophers whocan real” donothing butoutline the poorintellectual quality ofthe works of legal theorists, and endured by students whowould prefer to flirt or have a drink rather than spending precious hours inside a class room trying to listen to dusty theories, legal theory nowadays seems to have friends among legal theorists only. Ina certain respect, it occurs for legal theory what Richard Rorty described about general philosophy: it has

become a literary genre whose readers are also its writers1. Legal theory belongs to the realm ofwhat Peter Sloterdijk called “ : the practice ofa discourse epistolography”

as sending of letters between friends2. My point in this paper, then, will be the one: dowehave to complain about this state offact, oronthe contrary can wepresent ourselves as entitled toenjoy it?Toputitmore radically: shall weconsider this state of fact as a state of fact, or are wegoing to enforce it into an even worse scenario? Inshort: are wegoing to get ridof legal theory at last, welegal theorists? To address this question, a preliminary step is required. We have first to ask

following

ourselves whylegal theory is, as it is often said, so dull, poor, un-useful, un-interesting, and–yes –outstandingly boring, nomatter ifweconsider ita goodora badthing, a relevant thing ornot,fromourownpoint ofview. Mythesis is thattheanswer tothat question lies inan un-sufficient conceptualisation of the practice of legal theory. It is because, as legal theorists, wedon’t knowwhatwedo,thatwedoitso badly. But,to putit immediately, whatdowe,legal theorists, do? The answer is obvious: weread, wewrite, wetalk, andwegaze into the skywiththe attitude ofthe Penseur of Rodin ), nothing more, andthesame pretence as his(i.e. thepretence thatweactually “think” nothing less. Andthespecificity oftheso-called “ ofallthese activities (i.e. the object” law) does not change anything to that: legal theorists do confine themselves to intellectual activities that put themselves into the category of what the French call “ lettrés” people who play , which can be etymologically described as the category of “ with words” . But legal theorists do not accept this label. They know–and they assume –that lawis a veryconcrete “object” whose “ social” importance goes without a doubt. They know–andthey assume –that there is a huge difference between lawand jokes, evenifinbothcases itis onlya matter ofwords. Theyknow–andtheyassume article results fromresearches directed byProf. Dr.S. Gutwirth (Vrije Universiteit Brussel), and * This conducted in the framework of the Pôle d’ The loyalties of Attraction Interuniversitaires (PAI) “ Knowledge: The Positions andResponsibilities ofSciences andScientists ina Democratic Constitutional State” project, on behalf of the Belgian State, Services fédéraux des affaires scientifiques, techniques et culturelles (SSTC). I am thankful to Prof. Dr. Serge Gutwirth, Vlad F. Perju and Christophe Mincke forcomments onearlier versions. 1 See forinstance Richard Rorty, “Déconstruction et circonvention” , in:Science etsolidarité. Lavérité sans le pouvoir, Fr. transl. J.-P. Cometti, Paris, L’Eclat, 1990, 85 sq.; Id., “ La philosophie comme genre d’ écriture. Unessai surDerrida” 1983, Fr. , in: Conséquences dupragmatisme. Essais 1972–

2

J.-P. Cometti, Paris, Le Seuil, 1993, 193 sq. Cf.Peter Sloterdijk, Règles pourle parc humain. Unelettre enréponse à la Lettre surl’humanisme deHeidegger, Fr.transi. O. Mannoni, Paris, Mille et unenuits, 1999, 7 sq.

transi.

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–that their words concern at first the theoretical dimensions of law, which are assumed to heavily differ fromthe practical dimensions of lawthat theyare expected to enlighten. Butthis expected enlightenment is paradoxically why, at the end, their

intellectual work is so much and so often oriented towards the possibility of practical outcomes, even if this orientation, or this “ intellectual posture” , leads only to more laughs from the practitioners: the first interest of legal theorists, they say, is indeed law, not theory. Itis only ifweaccept this verysimple consideration, that wecanunderstand why such a delirious abstraction as Kelsen’s “pure theory of law” has been so widely and forso longaccepted among legal theorists andlegal scholars. Whatwasatstake with Kelsen’s theory was to implement the Kantian distinction between “ theory”and practice” “ into the legal field, andto assume that law,as everything else inthe world, practical” wasa “ thing that a science could study3. The development of a theoretical language, fromthis perspective, wasonlya secondary problem, andthis problem was of an epistemological nature. So, with Kelsen (but it was already the case with Savigny), a strong division oftasks wasintroduced intothelegal field: ononehand, we hadthose whodomanipulate thelaw,those whoare within it,thepractitioners; andon another hand, we had those who are manipulated by law, those who are outside the law and who limit themselves in contemplating it, the theoreticians. But what is interesting in such a wayof dividing tasks is precisely notthis division. It is around whatthis division is drawn. Because, whatarticulates this division? Thelaw,ofcourse! The lawas such, as anobject, as a Thing (Ding, inHeideggerian terms4) that requires study ormanipulation: this is thetruth behind the division oftasks between practitioners andtheoreticians5. Forboth ofthem, there is nothing more obvious than the law itself. There is no difference between the so-called “ positivists”and the so-called “ iusnaturalists” , between theso-called “constructivists”andtheso-called “deconstruc, between the so-called “realists”andthe so-called “critical”lawyers fromthis tionists” respect; all of them firmly believe in the obviousness of law–in its reality, in its naturalness. Ofcourse, tosayso does notmeanthat Iclaim that legal theorists would consider lawas a part of“ nature. Itdoes notmeaneither that I claim that legal theorists the” would all share a certain naturalistic viewonthe legal Thing that would give to their metaphysical” twist. No.Ithas become a common thoughts some Platonist ormerely “ place tosaythat lawhas nothing todowithsuch understandings oftheword“ 6. nature” Weall know–andweall assume –that lawis “socially constructed” , so that every theoretical inquiry towards itmusttake into account the sociological orevenanthropological grounding of it. Butthis is not what I have in mind now. What I say is much simpler. I just make the observation that, nowadays, lawis natural to legal theorists. Lawdoes not make any problem to them, period. Andhere lies the fundamental paradox ofcontemporary legal thinking: it is precisely because ofthe unproblematic status of law (or of the word “law” ) that the division of knowledge inherited from the

3

4

5 6

Cf. Hans Kelsen, Théorie pure du droit, Fr. transi. Ch. Eisenmann, 2nded., Paris –Bruxelles, L.G.D.J. –Bruylant, 1999, 3 sq. Cf. Martin Heidegger, Qu’est-ce qu’une chose?, Fr. transi. J. Reboul and J. Taminiaux, Paris,

Gallimard, 1971. See Roger Cotterrell, The Politics of Jurisprudence: A Critical Introduction to Legal Philosophy, London –Edinburgh, Butterworths, 1989, 4 sq. Comp. Christian Atias, Epistémologie dudroit, Paris,

PUF, 1994, 15 sq. Cf., for instance, Michel Villey, Philosophie dudroit. Définitions et fins dudroit. Les moyens dudroit, Paris, Dalloz, 2001, 223 sq.

Howto Get Ridof Legal Theory?

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positivist tradition could have been kept alive. It is only because lawis assumed to make noproblem thatthedivision between theory andpractice has beenso widely (I should say: “ without a single exception” ) admitted into the legal realm. Whatmakes problem, forthe practicing lawyers, is what to do withlaw. What makes problem, for the legal theorists, is whatto think about law. That is forsure. Butinboth cases, the word“law” remains void. The lawis the grand absent ofthe legal world7. It sounds absurd, isn’t it? Andindeed it is! When legal theorists begun their treatises bysaying, forinstance, that “ thefirst preoccupation oflegal philosophy –or legal theory, jurisprudence, etc. –is the definition ofwhatwemean by‘law’, weall ” knowthat it is a lie8. Nobody is actually, i.e. really, interested bythe definition ofthe word“law” . Nobody is actually interested inwhatlaw“is” , inwhatare its predicates, its attributes, andso on.Andeverybody knows it. Whateverybody is actually interested in, is to try to grasp what law does. But the problem is that nobody would dare to , because theconsequences oftheacceptance ofsuch accept it–evenifheknows it– a starting point should leadtoredefine thequasi-entirety oftheexisting legal concepts coming fromthe legal theoretical tradition. That is whywe,legal theorists, continue to speak about “ legal theory” as ifsomething like a theory ofa Thing called “law” could be possible, even ifweperfectly knowthat this word–“law” –makes noproblem to us; even if weperfectly knowthat wedon’t need a theory about this Thing called “law” ; even if weperfectly knowthat wedon’t even need to knowanything about it. That is the paradox of the desire of knowledge: to try to know when you know that there is

to know9. So, as such there is nothing to knowabout law.There are onlythings to do.The belongs to the realm of action. “ word“law” is a practical term. Butwhat is the Law” formofthis practice? Itis the formofa discourse, weallknowthat. Asa word, “law” refers toa practice ofdiscourse, toa parole. Andthis parole has nothing todowiththe tree ofverycomplicated concepts thatthelegal theoretical tradition hasbuilt around it. Italso has nothing to dowithallthese “ that have been agitated under our bigwords” noses to make us respect the name of law. As a word, “law” is without anycontent; without any“ understandable” explainable” content; without any content; without any“ “ knowable” content. The word“ is indeed void. What is important withthis word law” andwithallthewords thatare pronounced within thesame flowis theeffect ofit.But once more, this effect has nothing to dowithwhatthe linguists have taught us.The legal effect is nota mere effect oflanguage. Itis nota type ofeffect among others. Itis rather theopposite. Thelegal effect is theeffectiveness ofevery word. Theword“ law” designates the moment whena wordhas aneffect; the moment whenreality collides withlanguage; the moment whenreality is given its reality through thevoidofa mere effect. When we re-read Austin’s theory of speech-acts –which is the only linguistic theory ofthe linguistic effect –under the legal prism, it becomes absolutely obvious that what Austin tried to show is nothing but the strength of the institution. The performance of a “ performative” act, inAustin’s work, exists only as a legal performance. Performance is synonymous with legal effect. It is whyeach andevery one of nothing

7

Itis so thatwecanconsider that, inthis process, lawhasshifted fromthe Heideggerian Thing tothe Lacanian Thing: from philosophy to desire. Onthis very point, see Jacques Lacan, Le Séminaire, Livre XI.Lesquatres concepts fondamentaux delapsychanalyse, Paris, LeSeuil, 1973, 77 sq.; and

, in: Ecrits, t. 2, 2nd ed., Paris, Le Seuil, 1999, 243 sq. See also the comments Kant avec Sade” Id., “

ofSlavoj _i_ek, ForTheyKnownotwhatTheyDo:Enjoyment as Political Factor, 2nded., London,

8

9

Verso, 2002, 147 sq. See forinstance, very recently, Michel Troper, Philosophie dudroit, Paris, PUF,2003, 3 sq. Cf. Jacques Lacan, Le Séminaire, Livre XX. Encore, Paris, Le Seuil, 1975, 115 sq.

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gave are intheendrelated toaninstitutionalized moment oflife: andso on10. Andwith Pierre Legendre, weeven maybroaden Austin’s picture to show that the principle of life its elf lies into the linguistic effect (into the effect tout court) of the institution11. The institution is institution of life. Andthis institution is only possible through the words that say life. Frombirth to death, each andevery onemoment ofourlife is saidthrough thewords oftheinstitution. Eachand every moment ofourlife is given a name, andthis name is given bylaw,as voice, as wording, of the institution. Beyond anymystical echo thatwecan–ifwewantto–hearinto Legendre’s way of looking at the name of law, wemust keep inmindthat, first of all, this remains a pragmatic andhumble way, andBruno Latour himself has given very goodexamples of itinhis analyse ofthe practice ofthe French Conseil d’Etat–which is, as itis well known, thetopadministrative jurisdiction ofFrance12. Because, whatis important here . InhisLafabrique dudroit, Bruno Latour hasshowed is once again theword“practice” howlittle important wasthe use of“rules” and“norms”into the practice ofthe French Etat. Farfrombeing a mere practice of“ Conseil d’ , “interpretation”oreven application” “ creation” ofrules ornorms, the practice oflaw,inthe practice ofthe Conseil d’Etat, is a practice ofimputation13. Whatthe conseillers d’Etatactually dointheir palace ofthe Palais-Royal inParis is togive a name, inthe name oflaw,tothings andpeople, and to bound themtogether bythe set of correspondences drawn byallthe names that theyhave voiced. Theysay: youhave donethis, youmustdothat. Theysay: whatyou have done is this (this is the name ofwhatyouhave done), whatyoumustdois that (this is the name of whatyoumust do). There is noontology inthose declarations of

theexamples

Austin

marriage, judgment

imputation. There is no content. There is only the effect of words that allow things and people to stick together14. getridoflegal theory” Andthis isprecisely whywehaveto“ . Forlegal theory as we have known it so far, lawis only a matter of observation, of science, of concept, of system, of norms, of rules, of rationality, of truth, and so on. For legal theory, the word “ law” is a fullword, a wordsaturated byits content, byits formal content –thecontent , which istheformofa concept. Butwehave nothing ofthe formgiven totheword“law” . Concepts belong to the realm of what Bruno Latour called concepts” to do with “ –thathedefines as thepolitical bodyofdiscourses thatallows political epistemology” “ the political division between action and knowledge, between humans and nonhumans (objects, etc.), between nature andculture; that allows thepolitical division of power between those who are expected to “ describe facts”and those who are about this facts, as if both actions were notconcerned produce norms” expected to “ of withboth results15. Withthe vocabulary ofepistemology, wehave built a “ concept”

10 Cf.John L.Austin, Quand dire, c’est faire, Fr.transi. G. Lane, Paris, LeSeuil, 1970. 11 Cf. Pierre Legendre, Leçons VI.Les enfants duTexte. Etude surla fonction parentale des Etats, Paris, Fayard, 1992, 87 sq. Note that the Roman maxim (“ ) to which Pierre Vitam Instituere” Le sujet de droit, la Legendre refers in his developments has been contested byYanThomas, “ personne et la nature” , LeDébat, No100, mai-août 1998, 86, note 2, whopretends thatthere is no text inthe Roman tradition that features this maxim. To me, nevertheless, this does notweaken Legendre’s position. 12 Cf. Bruno Latour, Lafabrique dudroit. Uneethnographie duConseil d’Etat, Paris, La Découverte, 13 14

2002. Ibid., 289 sq. Ibid., 283 sq.

Latour, Politiques de la nature. Comment faire entrer les sciences en démocratie, Paris, La Découverte, 1999, 23 sq. It goes without saying that I use here the word “ concept”as a tool of “ political epistemology” . Butthere is another meaning to the word“concept” , that frees it fromthe compulsory framework ofpolitical epistemology, andthatallows ittocreate newpossibilities beyond

15 Cf. Bruno

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lawthat has puta veilonthefact that lawwasnota fact –something which creates , andthat hasgiven us,legal theorists, thepower phenomena around” observable “ it– to speculate inthe mosttotal abstraction about whatlaw“ . or“should be” is” So, it is nowtime to say that wedon’t care anymore about allthose questions. Theyarenotlegally relevant. Theyarenotevenlegally interesting. Whatis interesting is precisely what is done withthe name “law” , what is done inthename oflaw, as a curious kind of discursive anamorphosis16. Andthis is the practice of law. Butnota practice as it would be opposed to “ . Onthe contrary, I understand the word theory” “ practice” as Isabelle Stengers described it with herusual Deleuzian fashion17. For her, the word“ practice” designates the set of actions rendered probable within the framework ofa specific set ofconstraints. Butthe particularity ofthese constraints is that they are ignored bythe ones whoexercise their practice within the frame of it, insofar as they are silently assumed bythem. They recognize these constraints de facto, since thequestioning ofthemis notpartoftheactions usually madebyactors of a specific practice. Of course, these constraints have nothing to do with Thomas Kuhn’s concept of “ paradigm” ; it is rather the opposite since Kuhn’s paradigms referred to what was possible to accept as knowledge, when Stengers’constraints refer towhatwillprobably be accepted as a relevant action ina specific situation –as a relevant action forthe construction of a relevant situation18. Butthe goal of every practice –ofevery goodpractice –is indeed to identify these constraints so that what wasprobable –which means: calculable –within theframe ofitcanopentopossibilities, which means: newevents that use constraints as resources forthe building ofa better practice, inthe mostpragmatic sense19. The history ofa specific practice is then made of this perpetual quest for identification of its constraints, of which theory in general is always a huge part, butonly a part. Iwould like tomaketheclaim thatthehistory ofwhathappened around thename “ law” isthehistory ofsucha practice. Inthis practice, itis thename “law” itself that has been forming themainconstraints. Itis bystarting fromthename “law” as a constraint forthose whodecided to use it,that such linguistic businesses as legal theory, legal philosophy, jurisprudence, andso on, could have been conceived. The name “ law” have been the basic constraint upon which all the other constraints of the legal discourses have been drawn. But this constraint was not only a lexical one. The question wasnotwhether weshould usetheword“ instead ofanother wordinthis law” orthat specific case. Since itwasa question ofaction, notofspeculation, this question wasmore a question of qualification20. Qualification, as thefirst action required bythe wasandstill isthefirst –andmaybe theonlyone–constraint of useofthe name “law” thelegal practice. Withregard totheimportance oftheactofqualification, alltheother problems (such as the systemic dimension of law, its obligatory force, its efficiency, etc.) areonlyadditional academic talkative features. Wecould evensaythatthesilent purpose ofallthese academic elaborations wastohidethequestion ofthename“ law” division institutionalised by the political epistemology. On this second concept of “ concept” , see Gilles Deleuze andFélix Guattari, Qu’est-ce quelaphilosophie?, Paris, Minuit, 1991,

the political

7 sq., spec. 16.

16 Onthis concept of“ anamorphosis” , see Jurgis Batru_aitis, Anamorphoses ou Thamaturgus opticus. Lesperspectives dépravées –II,Paris, Flammarion, 1996. 17 Cf. Isabelle Stengers, Cosmopolitiques, t. 1, Laguerre des sciences, Paris, La Découverte –Les Empêcheurs de penser en rond, 1996, 51 et s. 18 Ibid., 70. See also Ead., L’invention des sciences modernes, Paris, LaDécouverte, 1993, 59 sq.

19 Cf. Isabelle Stengers (note 17), 27 and note 10. , Droits, No 18, 1993, 4 sq. 20 Cf. Olivier Cayla, “ La qualification ou la vérité en droit”

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as such, the question ofthe legal qualification as the metamorphosis of“real”reality reality. legal” into “ This point, to me,is crucial. Whatthe most recent developments ofanthropology

of sciences have showed us was the fact that the main activity of the so-called scientific practices was to render visible what was discussed as their object21. The maingoal of every scientific practice is to give a literal ora visual existence to what, until then, does not exist as such. What Bruno Latour and Steve Woolgar called “ laboratory life” is indeed thelife oftheso-called scientific objects themselves: theydo not exist –from the metaphysical or philosophical point of view as well as from the pragmatic or realistic point of view –until the moment when their existence is proclaimed; whenthere are signs of this existence; andwhenthese signs compose the whole network of humans and non-humans that makes them live22. Andthe lawyers dothe same, withjust a slight difference: a sign traced inthe name of law does notonlyexist as a sign, butthere is also nopossibility to denyitotherwise than bytracing another sign that explicitly annihilate it inthe same name of law. Inthe meantime, reality orlife iswhatithasbeensaidinthenameoflaw–inthenameofthe name “law” . This difference ofthelegal practice compared tothescientific practice, is

precisely the difference induced by the exclusivity of the performative power of what is said inthe name of law. So, this difference does notalter the fact that legal practices share the common , which is a practice ofqualification, nomination, knowledge” core ofevery practice of“ visualisation, andso on. Butitdoes change the range ofplausible discourses around . Ifthe core ofanylegal practice is to make emerge a possible that the name of“law” could be named or qualified with regard to the name “law” , it does meanthat every kind of discourse that assumes this act of qualification, every kind of discourse that shares thesame concern about thequestion ofthename andtheforce ofit,is legal by nature. Thatalso means thatthere is norealdifference between allthepossible types of discourses around the name “law” , precisely because all of these discourses are legal discourses. Every legal discourse is the discourse ofthe lawandthe other way

round, but nothing else. There is no difference between “ of discourses, or levels” levels of reflexivity, whenthe time comes to talk “ legal” . Andthat means furthermore that there is nometa-discourse inlaw, as Bruno Latour perfectly puts it23. Of course, it is a shame that one could find necessary to recall such obvious considerations, butIdoso onlybecause I have the impression that legal theory seems nowadays tohave decided toforget thembyhiding thembehind a maskofverytrendy culture” . What happens now, from the point pluralism” difference”or “ ,“ labels such as “ ofviewof“knowledge” , is that legal theory seems tohave decided toputanincreased ), when emphasis ontheory (with therisktoignore whatever could considered as “ law” the considerations I just recalled put an emphasis on the legal events; on what emerges into reality, andquestions, bythe mere fact of this emergence, the name “ law” . Thedifference between thecontemporary developments oflegal theory andthe viewI have just described is, ifyouprefer, thedifference between thegeneral andthe particular, between abstraction andreality, between intellectual violence andsheer

21 Cf.Olivier Martin, Lasociologie des sciences, Paris, Nathan, 2000, 97 sq., spec. 104 sq. 22 Cf.Bruno Latour andSteve Woolgar, Laviedelaboratoire. Laproduction desfaits scientifiques, Fr. transi. M.Biezunski, Paris, La Découverte, 1988. See also Bruno Latour, La science en action.

23

Introduction à la sociologie des sciences, Fr. transi. M. Biezunski, 2nd ed., Paris, Gallimard, 154 sq. Compare with the criticisms of Pierre Bourdieu, Science de la science et réflexivité. Cours du Collège de France 2000– 2001, Paris, Raisons d’agir, 2001, 55 sq. 279. Cf. Bruno Latour (note 12), 278–

Howto GetRidof Legal Theory?

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curiosity. My view is to look at things the way they happen, whereas legal theory prefers to tryto make themfit into the very rigid framework oftheory. To make mypoint clearer, I willendwitha very practical andvery contemporary example: the so-called principle of representation as it is nowchallenged bypopular contestations forwhatconcerns genetically modified organisms (GMOs). Forpolitical science as wellas legal theory (or,tobe more precise, fortheory ofconstitutional law), there is nothing more obvious that the principle of representation. What is usually claimed is that this so-called principle is orwould be the mainfeature of occidental democratic constitutional states24. Following this claim, occidental democratic constitutional states would be democracies only insofar that something like an institutional construction ofanimage ofthe nation orthepeople would be legally guaranteed. And political science as well as legal theory finds this guarantee inthe interpretation of constitutional texts mentioning the fact that, forinstance, “ Parliament represents the 25.Weallknowthat verywell. Butwealso knowverywellthat sucha principle nation” has been widely criticized, from Burke andRousseau to Pitkin, Barber orNegri. The main argument of this flow of criticisms is usually this one: it is impossible to admit anything like representation ina democratic state, since representation always leads to reduction. Andin the framework of democracy, we cannot tolerate anyform of distortion to the will of the people: democracy is possible only if each and every one citizen (oreven human being) can have notonlythe chance butthe realpossibility to make his voice heard whenever hefind it useful orinteresting26. The lawyers usually answer to that that this is a completely unrealistic view of

democracy. Tolive together, theysay, weneedtomake some concessions, andthen toaccept thefact that thevoice ofthe people willbe transferred ona free basis (the elections, whether they are compulsory –like inBelgium –or not) to a more limited amount of persons, so that the management of the state can remain possible. And they add: this is whyourconstitutions have institutionalized the principle of representation: it is precisely the willof the original people –ofthe constituent –to make the management ofthe state possible. It is nota kindof political trusting ofthe people’s voices; it is a legal guarantee. Why? Because it is written inthe constitution, that’s

why, they reply. For the lawyers, the only one legal justification of the principle of whatprecisely makes this principle a principle –istheusual tautology representation – of legal reasoning that Pascal outlined already in 17thCentury: people obey the law because itis the law, notbecause itisjust, compulsory oreven merely usual27. So, if, fromthe legal point ofview, there is a principle ofrepresentation, itis because the law says so, nothing more, nothing less. Andofcourse itwould be pointless to make use

24 See, for instance,

Georges Burdeau, Traité de science politique, 2nd ed., t. V, Les régimes politiques, Paris, L.G.D.J., 1970, 275 sq.; Ernst-Wolfgang Böckenförde, “ Démocratie et représentation: pour unecritique dudébat contemporain” , in: Le droit, l’Etat et la constitution démocratique. Essais de théorie juridique, politique et constitutionnelle, Fr. transi. O.Jouanjan, Paris –Bruxelles, L.G.D.J. –Bruylant, 2000, 294 sq.; Blandine Kriegel, “ Démocratie et représentation” , in: Les Etat, t. 3, Propos surla démocratie. Essais surunidéal politique, Paris, Descartes & chemins de l’ Cie, 1994, 25 sq.; David Plotke, “ , Constellations, Vol. 4, No 1, 1997, Representation is Democracy”

19 sq.

25 Cf.Bernard Manin, Principes dugouvernement représentatif, Paris, Calmann-Lévy, 1995, spec. 259 sq.

26 See the studies in: TheCrisis of Representative Democracy, H.Köchler (ed.), Frankfurt amMain, Peter Lang, 1987. See also Michel Miaille, v° Représentation, in: Dictionnaire encyclopédique de 27

théorie et de sociologie du droit, A.-J. Arnaud (ed.), 2nd ed., Paris, L.G.D.J., 1994, 525– 526. Cf. Blaise Pascal, Pensées, G. Haldas (ed.), Genève, Albert Skira, 1943, 175 sq. See also the beautiful bookof Clément Rosset, Le démon de la tautologie suivi de Cinqpetites pièces morales, Paris, Minuit, 1997.

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ofthe nowcommonly accepted hermeneutical apparatus totryto explain to lawyers the fact that the two branches of such a tautology don’t belong to the same level: for them, itdoes notmake anydifference. And,tome,theyare right inclaiming so. Or,at least, let mesay that there are no reasons to deny themto claim so. Itdoes indeed make nodifference: the alternative is onlyto tryto knowifthere is representation or not, and then which form this representation takes. We do not need any form of investigation onthe conceptual, epistemological, ethical, political, natural or rational grounding ofit. Lawis nota thing that wehave to understand, to explain ortojustify; it is something weare living in. So, if, fromthe legal perspective,

there is a problem forwhat concerns the socalled principle of representation, this problem occurs only when this principle becomes object ofa theoretical inquiry. Itis onlyatthatverymoment that onecanbegun ofthis principle, and, bywayofconsequence, ofits nature toargue about the“nature” ofprinciple28. Itis onlyatthatverymoment thatonecanbegun todiscuss thequestion whether, forinstance, a topconstitutional jurisdiction mustobeyornottothe principle ofrepresentation since itexercises also some kindoflegislative activity byinterpreting the constitution29. But what does this change? Nothing as far as we have not representation” . Why? Because the word“representaelucidated this simple word: “ , and we have to identify which one, that’s law” tion”is one of the faces of the word “ why. Itis notenough to saythat there exists a principle of representation at the very represenmoment the lawsays so; wehave also tosaywhathappens withthis word“ thatwefindinlaw.Andifwedoso, wewillveryeasily observe thefactthatthe tation” representation”is said in the name of law by the lawyers. It is constructed by word “ them, yes, butyetitdoes exist as such, since itis said inthename oflaw. Itexists as a word–andas a worditcanbe pronounced byeverybody, notonlythe lawyers. Andthat isthepoint where therealproblems occur. Whenthelawyers pronounce a word as a word of law, this word does notbelong to them anymore. It does not belong to their theories and their conceptualisation. It belongs to everybody. It inter-esse” , in interests everybody, which means that it ties everybody together –“ 30.Whenthe lawyers give something a name, inthe to be inbetween” Latin, means “ name of law, it makes ita common thing, a thing that is between everybody; that is shared byeverybody. Butthelawyers seemtoignore that. So, whenthepeople come outandcomplain about the infidelity ofthe principle of representation towards reality, orabout thefact that itcannotbe a goodprinciple (andso a principle at all) since itis notrealistic, the lawyers don’t understand. Andthey repeat theanswer thattheyhave There is no reason to complain about the principle of representaalways repeated: “ AndI amsure thatthey tion, since itis a legal principle. Whatcould be wrong withit?” truly believe inwhatthey say. I amnotclaiming that the lawyers consciously tryto lie to the people. But still, the fact is that they do lie: a legal principle is a principle institutionalized by lawyes, butthis principle is first of all a name, anda common name. The best example of that hiatus is the GMOs problem. People are complaining about the fact that the GMOs concern them, since it affects what they eat. So, they

Surla théorie 28 Cf. Michel Troper, “ PUF, 1994, 5 sq, spec. 20 sq.

juridique

, in: Pourunethéorie juridique del’Etat, Paris, de l’Etat”

expérience américaine et la Constitution française du 3 L’ Michel Troper, “ septembre 1791” , in: La théorie dudroit, le droit, l’Etat, Paris, PUF, 2001, 115 sq., spec. 125 sq.; Id., “ « Lasouveraineté nationale appartient aupeuple ». L’article 3 de la Constitution de 1958” , in:Ibid.,

29 See, for instance, 299 sq.

, see Isabelle Stengers 30 Onthe concept of “interest”

(note

18), 108 sq.

Howto Get Ridof Legal Theory?

47

expect to have the possibility to speak publicly about it. Nothing unusual, isn’t it? But notforthe lawyers: they don’t even see whatmakes problem. Such claims, forthem, areprecisely claims forwhich theprinciple ofrepresentation hasbeenelaborated. The principle of representation in a democratic state, they say, is aimed to assume the people’s desire to speak of their own problems. “ No, answers the public, this does not satisfy us. We want to confront ourselves to the scientists, to the specialised firms, to those whomake the decisions in which we are involved and bywhich we are also –“Okay, reply bound. Wewantto make themearwhatwehave tosayface-to-face!” the lawyers, but this is the old fantasy of direct democracy. We have known for centuries that this is nothing butimpossible to even begin to realize. This is a dream. Be realistic. Remember the constitution.”Andso continues the dialogue –or, to be more precise, the absence thereof. So, where is the real problem? Here: withthefact that the problem is a newone. There is a newvoice that maybe seems to claim something that sounds old. Butit is still a newvoice. It requires something newbythe mere fact that it is a newvoice. There is an event coming oninthe lexical world ofthe law.The word“ representation” is claimed as proper tothepeople, which means as common toeverybody. Andtothis formof“ community ofcommunication” (Jean-Luc Nancy), the lawyers answer bytheir owntheoretically grounded monopoly. Theyanswer withthe existing apparatus ofthe tradition ofconstitutional legal theory. Butit is a badanswer, the worst answer ofall: one cannot answer to a “ byusing an oldanswer that could nothave something new” something new” into account! It is completely absurd! Butthis does not taken this “ seem to bother lawyers. Here again, they will answer that the history of lawis the history of its adaptation to social changes. Butthis is wrong! Wrong again! It is the other wayround: lawdoes notadapt itself to social change; lawis the language of social change. Law,fromthis perspective, is revolution –everyday revolution. Andthis is whylawyers should worry when people come outwiththeir owncommon vocabulary (for instance the word “ ) andsay that they don’t understand it representation” anymore, instead of bashing them downbysaying that there is noproblem; that the lawhasalways saidthis orthat. Whentheydoso, itis nothing less thana technocratic coupdeforce. Tooppose a state of(legal) affairs toa state ofconcerns istocontradict the community ofthe words which is the basis of every legal act of qualification; and . Lawyers whooppose a past state of affair to a present state of then of every “law” concern are, properly speaking, anti-lawyers. What lawyers do, andwhat they should not deny to do, is to create the common vocabulary of the present life. That is what law is all about. Andthat is whythe lawyers should never trust anything that is. Instead, they should trust what becomes orwhat happens. Theirony isthat, tosome extent, theyactually doit:as – once again –Bruno Latour explained it,toopena file, fora lawyer, is tobegin to imagine the newbounds which will insert the case of the file into the social order of life, which is an order of becoming rather than of being31. This is the same with the so-called “ principle of representation” . Whatis at stake withthe current popular controversies about GMOs, is precisely something thatdoes notfitintothetraditional categories ofrepresentation vs. participation. It is something new. It is a newwordwithan oldsound, maybe, but still itis new. Itis a wordthat does notrefer anymore toa logic ofdecision (which was formerly the case with the “ principle of representation” ), but to a logic of endless creation. Fromnowon,wehave toseparate representation andpolitical decision. We

31 Cf. Bruno

Latour (note 12), 294 sq.

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have to lookatwhatis going on.Andwehave toaskourselves whattodowithit,not whatweknowabout it,since weknownothing yet. There Laurent

weare, we,legal theorists.

DeSutter, Law,Sciences, Technology &Society (LSTS), Vrije

Universiteit Brussel

Leopoldo García Ruiz

Onthe Concept of Lawand Its Place in the Legal-Philosophical Research*

I. Approaching the question Legal scientists do not need to resort to philosophical argumentation in order to describe the meaning andfeatures of a particular contract, a given statute orjudicial decision, ora constitution (ora whole legal system, forthat matter). However, whenit comes tosay whatis lawitself, whenitcomes tofindoutthereason whylawis present inourlives, things change a little bit. Forwhatever “law” means is neither a legal nora scientific question, buta philosophical one. Infact, themaintaskoflegal philosophy is precisely that of dealing with a global understanding of legal phenomena, andultimately ofadopting a concept oflaw1. Some other legal-philosophical questions canbe more orless dispensed with. This one is not. But, alas, theconcept oflawis anelusive, controversial one. Andlegal-philosophical conceptions in the past, however thoughtful and well-constructed, often have turned out to be too predetermined, too one-sided to be true2. Inthe words of Lon Fuller:

“ On the one hand, there are competent scholars whoseem to deny the very

of problems of institutional design. Their program seems to be a maximum exploration of governmental power –without any inquiry to its moral forwhatever ends seemworthy ata given time. Ontheother handthere sources – are those who (...) resist the suggestion that the solution of these problems requires anything like aneconomic calculation oranapplication ofthe principle of marginal utility. Fromthis entrenched position they are likely to regard those who disagree withthem, notmerely as being mistaken, butas being unprincipled an 3 immoral.” existence

Indeed, some mayhave identified “ just law” with“ inthe past, thus downplaying law” the formal aspects of it. Others have postulated lawas a set of commands coming from a sovereign, or a set of precepts more or less logically interconnected, but skipping any reference to pretensions of justice historically present in the mind of every lawmaker. Still, others have seen law as a mere fact, leaving behind any consideration about its enforcement; etc. origins of this paper trace backto a series of interchanges withfellow members of myformer * The Department ofLegal Philosophy at Navarre, followed bya couple ofresearching periods at Harvard 01). Its closer inspiration comes from a rethinking of LawSchool (spring of 1998, andyear 2000– several topics already present inmybookDerecho, intereses y civilización (2002). Inbothcases my intellectual debtwithPedro Serna, nowJurisprudence Professor atthe University ofACoruña, isthe most apparent. I also want to thank here the “ Fundación Séneca –Centro de Coordinación de la Investigación” andthe Provost’s Office atthe UCAMinMurcia (Spain), whose financial support has been instrumental inorder tocomplete this study. 1 Ultimately, butnotonly: there is ofcourse a vast number ofareas inlegal philosophy, apart fromthis one. However, itis also true that, sooner orlater, a legal thinker willnecessarily adopt (oradhere to) some conception about law’s nature. Inthis respect, Alexy has recently reminded thatthemaintask oflegal philosophy is precisely the “reasoning about the nature oflaw” . See ALEXY (2003), 64. 2 AsSerna points out,these conceptions should often be regarded as false notso muchforwhatthey

3

affirm, but rather for what they omit. FULLER

(1978), 181.

See

SERNA

(2002), 325.

50

Leopoldo García Ruiz

Itis true that legal theories have progressively become muchmore sophisticated inthis respect. Andso itwould verybe interesting totest howcontemporary theories, intheir aimto avoid this one-sidedness, have managed to keep a balance between their owninner consistency andtheir respective intellectual heritage4. Asthe reader willunderstand, I cannot give an in-depth appraisal ofthose conceptions here, andit

be pretentious (not to say stupid) on my part to dismiss them in a few words. Needless to say, I don’t have myself anyready-made solution forthe lasting controversy about the nature of law, either. Butonce I have plunged into this thorny topic, I willtryandsketch myownviews onthe subject. Orto be more precise, myviews on how (and at which stage of the legal-philosophical discourse) should the concept of lawbe acquired. To mymind, perhaps the most sensible wayto avoid falling into partial, unreal concepts of lawmayconsist instarting notbyestablishing an a priori definition oflaw, but by giving a description (the fullest possible one) anda subsequent explanation (however limited maybe) of lawas we experience it inoureveryday lives5. Inother words: todescribe andtoexplain lawas a social practice6. Onlythenwewillbeable to confront deeper legal-philosophical issues. This effort to incorporate right fromthe start certain data of ourdaily experience intoourresearch comes availed bythemultiplicity ofuses thatwords like “law” , , “legal” “ right” ... (and their correlatives) receive in common language. Such a plurality of expressions should prevent usfromtrying tocomprise the meaning oflawinto a single verbal expression7. Perhaps itwould bewiser foruslegal philosophers tosee lawina broader perspective, as a complex human creation developing intime; a multifaceted entity that cannot properly be understood outside the context of social life and of culture. To be sure, lawis a “cultural reality”(and this is notso mucha definition as an statement about law–oneamong manypossible others). And“ (that cultural realities” is, man-made objects, institutions, procedures, activities, etc.) when analyzed in vacuo, always leadto abstract, lifeless, ultimately false conclusions. Bycontrast, itis whenweconsider those entities within the horizon defined bythe whole universe of human creations that we begin to grasp them fully. That is why, eventually, all the conducts, uses, andlinguistic expressions which make upthe realm of laware best perceptible whentaken as a whole (that is,whenwerecognize thattheyarerelative to each other). Itis thenthatwerealize howtheyare more orless consciously designed would

4

5

6 7

A powerful study of this kind is ORREGO, H.L.A. Hart. Abogado del positivismo jurídico (1997), where both Hart’s workandhis ambiguous relation to the positivist tradition before himare explored. A “ soft” legal positivism has recently tried to refine Hart’s position inmanyways, specially as to the relation between law and morality (e.g., W. WALUCHOW, 1994). However, this re-rebirthing of positivism is notfree fromsome oldandnewinconsistencies (cf. thedebate between Villa andSerna 97 and 99–146). For a balanced critique of natural-law theories in Persona y Derecho (2000), 33– just law” and“ , thus disregarding the historical andinstitutional side oflegal that hastily identify “law” phenomena, see SERNA (1997), at 306– 313. Inthis Iamfollowing Sergio Cotta’s advice inhiswork//diritto nell’esistenza (COTTA, 1987, at21). My aiminso doing is todepart fromthose theories that settle a definition oftheir object ofstudy at the beginning of their owndiscourse, thus narrowing their field of exploration insuch a waythat they for, mostprobably, become unable toverify iftheyhave leftsomething important outofthepicture – that verification could only take place by falling into sheer contradiction with their own initial premises.

I borrow the expression fromFrancesco VIOLA’S book Ildiritto comme prattica sociale (1990). Inthis regard, it is important to recognize that the concept of “law” should notbe regarded as a

judicative one. For this question, cf. SERNA (2002),

326.

51

Onthe Concept of LawandIts Place inthe Legal-Philosophical Research

to fulfill some goals, andthat those goals are linked to some needs andaspirations which pertain to human existence considered as such8. Three steps, then: description, explanation, andenquiry intothemeaning ofthose previous activities inthe context of human existence. Now, if wefollow that path, it goes without saying thattheconcept oflawcannot befound atthebeginning, butonly at the endofthe legal-philosophical discourse9. II.Thedescription andexplanation of lawas a social practice

Butwhat does it mean to “ broaden the field of experience”inourdescription of the legal phenomena? Above all, itmeans tokeepourselves awayfromequating “ thelaw” 10.Although this looks like a commonplace today, the fact is that a set of laws” to “ contemporary legal philosophy seems reluctant toputupwiththeutmost consequences of this differentiation. Modernity still looms large on us, in many ways. Andlegal modernity introduced the ideal of law, notjust as an order, butas a formal, wholly “ rational” system, inthe style oftheoretical sciences. Inthis respect, both 19thcentury legalism and conceptualism were instrumental in spreading a strongly formalistic approach to law, incivil-law as wellas incommon-law countries11. The anti-formalist revolt that came along in the first part of the 20th century both in lawand social sciences is also toowell-known to be retold here12. Leaving aside anyother consideration about the merits andflaws ofthose legal thinkers, mymaininterest here lies in the unashamed finalistic shift theygave totheir reflections about law13. Theycalled for a return to experience as a source of verification for legal science, and a closer attention tothe purposes andconsequences oflawinits social milieu. Certainly, a thorough legal-scientific analysis of precepts, institutions andconcepts is both necessary andfruitful. Buta theoretical approach about lawcanalways go further. Legal philosophers are compelled to wonder whythe elements that constitute the universe of lawhere andknoware precisely whatthey are. Even ifwe mustpaya veryclose attention toactually given legal systems (that is,tothedifferent forms oflawthat govern political societies, andspecially tothose ofourowntime), at a certain point ourfocus willhave toshift fromthecurrent set ofprecepts tothesocial 23. 8 Cf. ibid., 328; COTTA (1987), 22– 280. 9 Cf. SERNA (1997), 279–

10

Philologically speaking, this distinction becomes evident inlanguages like German, French, Spanish, etc. 11 A deeper study of this topic in GARCÍA RUIZ (2003), 391– 394. Another consequence of the modern legal mentality would betoconsider legislation andprecedent respectively as themainsource oflaw in civil-law and common-law systems. In the long run, this has brought about a widespread perception of lawas something conceptually dissociated frommaterial patterns ofjustice. Cf.here SERNA (2002), 330 in fine. 12 The classic story of this movement is WHITE, Social Thought in America. The Revolt Against Formalism (1961). Fromthen onwards, the mainstream among legal historians holds that jurisprupendulum-like”quality as to what the place of form and logic in the processes of dence has had a “ lawmaking andadjudication should be. More recently, N.Duxbury has made a openstand against 2). Of course, both positions have gone through middle this view (see DUXBURY, 1995, chaps. 1– terms andreinterpretations along theyears. There isanschematic butverybalanced account ofthe whole “ formalism

299. (2001), 267–

vs. instrumentalism”explanation of American jurisprudence in LÓPEZ

HERNÁNDEZ

13 Fora summarial approach tothis revolt andits leading figures onbothsides oftheAtlantic

(Jhering, 25, and the quotes therein. See also Heck, Gény, Holmes, Cardozo, etc.) cf. GARCÍA Ruiz (2002), 18– 90; BELLEAU (1997), 379– 424; and SCHWARTZ (1989), passim. LARENZ (2001), 57–

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order and the human relations and processes shaped (or generated by) those precepts, andthen to the actual human goals andideals affect andare affected by them. Andthen weshould go back to the precepts again, for at that stage of our research wewillnecessarily see those precepts under a different light14. Inthis line, oneofthemostcomprehensive conceptions oflawIknowofwasgiven in his day by Roscoe Pound (1870–1964), the Harvard law professor and leading proponent of “ sociological jurisprudence” . Even though I don’t share some of the premises andconclusions present inhistheory15, Ideemhischaracterization oflawto be surprisingly balanced andworth of revaluation. Pound classifies theanswers historically given tothequestion about thenature of lawinthree maingroups16: lawas an order, lawas a bodyofauthoritative grounds to determination of controversies; and lawas a process. To Pound’s mind, all three meanings, far from excluding one another, are complementary, for none of them would be capable of describing fully the complex social task that law carries out in society.

A) Lawas order would make reference tothe legal order, that is, “ law” First ofall, theterm“ the regime ofadjusting relations andordering conduct bythe systematic andorderly application inthis sense stems from(andis 17.“Law” oftheforce ofa politically organized society” maintained by)thejudicial, administrative andlegislative action. Therefore, itmustnot be considered only as a state or condition but as a dynamic reality as well18. In

Pound’s view, both the body of guides to determination and the processes by which are applied helpouttocreate andtomaintain anspecifically legal order within which a society is able toadjust individual conducts inasmuch as theyaffect the economic orsocial order, andingeneral, theactivity ofthe rest ofthe members ofthat particular society19. This regime, he adds, involves trusting menwithwide powers to direct andeventually judge their fellow men’s conduct ineveryday relations20.

those guides

14 This poses the question of the hermeneutic circle present in philosophical discourses, which will be dealt withinthethird part ofthis article. 15 Pound conceives lawas an specialized phase of social control, whose proper task would be the protection of human interests, and, ultimately, the fostering of civilization. See GARCÍA Ruiz (2002), IV,passim. His insistence on social control as the unifying factor of the 115, andchaps. III– 102– three senses of lawseems specially unfortunate to me, if only because does notgive an specific note of lawas distinct from other normative orders which control human conduct, protect human interests, andfoster civilization as well. However, I dothink that Pound’s threefold characterization canstill beveryuseful evenifonestarts froma different setofpremises (as itisthecase here). The sociological point of view, it goes without saying, is not the only possible way to hold together the . Asforthe rest ofPound’s theory, I law” different elements that make upthesocial practice wecall “ 119, andchap. V,passim. refer the reader to mycritical assessment inibid., 115– 96. 16 Cf. POUND (1959), II, 3– 17 POUND (1959), II, 104–105, and ID. (1997), 40. Pound explains these three meanings in what he considers to be its logical order. Chronologically speaking, first menwould have experienced lawas a process ofadministering justice; andonlythenas a setofabiding guides forconduct oranspecific order within society. Cf. ID.(1967), 153. 18 Cf. ibid., 156. 19 Cf. POUND (1959), II, at 5. 2. Unsurprisingly, both the normative and the coercive qualities present in every 20 Cf. ID(1932), 1– legal order can be easily detected here, for they are to be counted on in any description and explanation

ofthe legal order.

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B) Lawas a bodyofauthoritative grounds to determination ofcontroversies Ina second sense, Pound identifies “law” a bodyof authoritative withwhat he calls “ materials orofgrounds” to determination andresolution ofcontroversies21. This set of

patterns which obtain in a given politically organized society guide the activity of judges and other legal officials while they conduct the judicial and administrative processes (third sense). Itis thus thattheymaintain thelegal order within that society (first

sense).

Far from being a mere aggregate of laws, “law” in this sense would be an articulated, organic conception, made up by three elements: a set of precepts, developed and applied by an authoritative technique in the light of some received ideals.

Theprecept element Pound includes under the label of “ precepts”four heterogeneous types of legal materials: rules, principles, legal conceptions andstandards22. They conform a catalogue which enable us to see hownormative systems andlegal science are more intertwined than is commonly supposed (incivil-law countries, at least). Legal rules, the earliest type of law and the work of power, provide a definite detailed consequence for a definite detailed state or situation. When experience shows the impossibility of setting a precise rule for every situation of fact, legal principles appear. Usually shaped byteachers orlawyers, these authoritative starting points for reasoning enable jurists and legal officials to organize the experience acquired in their study, interpretation andapplication of rules. In later stages, two elements make their appearance, usually embedded either inprinciples orinthetext , “fair duecare” ofrules which establish themas authoritative23. Legal standards (like “ , etc.), are measures ofconduct prescribed bylawfromwhich people depart conduct” atthe peril offinding themselves liable, ortheir actions invalid. Theyare to be applied according to the circumstances of each case. Finally, legal conceptions, usually developed by scholars, are generalized categories (e.g. ‘trust’, ‘sale’, ‘bailment’...) intowhich particular situations offact are put,whereupon certain rules, principles and standards become applicable24.

Thetechnical element As legal systems mature, they start to develop a certain set of traditions or mental habits as tohowinterpret andapply theprecepts. Once this technique element settles in, Pound says, it become no less authoritative andno less part of the lawthan the precepts themselves, for it abides every member of the legal profession in that particular time andplace. The constant presence of this element throughout history 21 Cf. ID.(1997), 40.

22

Pound sketched this classification for the first time in AnIntroduction to the Philosophy of Law (1922), and refined itthroughout his life. His definitive statement on this matter, in ID.(1959), II, 124– 128. 23 “Clearly, theprescription tocomply witha given standard is initself a legal rule, whereas a standard is a model of conduct practiced insocial life”(PATTARO 1994, 181). Unsurprisingly, Pound always

24

speaks of rules andprinciples as legal precepts, on one hand, andof legal precepts defining (or establishing) standards andconceptions, onthe other. This very wayof referring to the latter two categories showthat their normativity mustbe regarded as indirect, incontrast tothat of rules and principles. ItwasPedro Serna whodrawmyattention to this distinction (see SERNA 1993, 35– 36). Cf. POUND (1997), 41 ff.; (1994), 43 ff.; (1959), II, 124 ff.

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would imply, among other things, that a mechanical handling of precepts by legal officials is nothing butan illusion25. Indeed, he adds, it this “ art ofthe lawyer’s craft” thatserves todistinguish fromeachother thetwogreat traditions oflawinthemodern, Western world: civil lawandcommon law26.

Theideal element

Asa final component oflawinits second sense, Pound speaks ofa set ofauthoritative, historically given ideals which act as the background forthe other twoelements referred above. Notthat every mental picture of the end of a precept must be considered as a legal ideal, andtherefore a part ofthe law. Butas it happens, some basic images of what precepts andtechnique should be doplay a controlling part in legislative, adjudicative, andadministrative processes. Whenthat is the case, Pound says, andinasmuch as they doplay thatpart, those ideals are as authoritative as the precepts andthetechnique effectively governed bythem27. Sometimes theinteraction ofprecepts andtechnique looks all-sufficient tosolve a case, so the role ofthe legal ideals at stake passes more orless unnoticed. Butthis element becomes both apparent and crucial when new cases arise in which is necessary tochoose fromamong equally authoritative starting points forlegal reasoning.

To acknowledge the role played by ideals must notbe seen as a hindrance to certainty. Onthe contrary, that open recognition should be of great help in order to build upa true, realistic certainty onlegal matters, whereas ignoring themwould only leadto maintain anillusory confidence. Therefore, Pound says, theories that exclude those dimensions from the juridical realm are just self-deceiving: in the end, their explanation about lawis anideal planas well, and scientific” determination tooffer a “ only serves to harmpeople’s trust inlegal institutions28. C) Lawas process

To Pound’s mind, there is a third main sense that can be applied to the term “law” , namely, theactivity, process, setofprocedures, etc. (both judicial andadministrative) that maintains the legal order (1stsense) insociety29. Itis through the legal process For his early critique of the late 19th-century model of formalistic legal adjudication, cf. POUND (1908), 623. 605– 43. Pound speaks there of the analogical mode of 26 See this explanation, i.e., ID. (1997), 42–

25

reasoning attached to the civil lawtradition of handling precepts, incontrast to the technique of tojudicial precedents, so cherished incommon-law countries. 6 &ff.; (1959), II, 116 ff. These ideals willoften be traditionally received; i.e., ideals Cf. ID.(1958), 2– transmitted through thelegal profession as towhatthesocial order orthepurpose ofsome precept orpolicy are, etc. Other times, they maybe convictions that, after being assumed inthe course of legal or jurisprudential research, end updetermining the action of the courts or the legislatures. Needless tosay, legal scholars, lawyers, social groups, etc. maylobby tosee some values infused into legal practice. But they should not be considered as legal ideals until they are effectively adopted. Ontheother hand, itis a fact thatthese ideals mayanddochange intime andinspace. In fact, the Harvard professor suggests thatthose ideals are sometimes keytoexplain transitions from oneage oflegal history toanother (something which is apparent throughout Interpretations ofLegal History –POUND, 1967). Cf. also ID.(1923), 661. 661, 814. Atbottom –just like some natural-law schools 656, 660– Cf. ID.,(1958), 15 ff.; (1923), 654– , legal theorists like Bentham, Austin orKelsen would have schemed an ideal ofthe Modern Age– plantoexplain lawandits adjudication. Thelogically interconnected bodyofrules theyspeak about is nota purefact atall; itis anideal: animage (their ownimage) oflawas itshould be.Cf.ID.(1958), looking

27

28

29

at 15. 52. 124; (1944), 51– Cf. ID.(1959), II, 123–

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that precepts are shaped and effectively applied, techniques improve, and ideals are molded (2ndsense). –traceable backtotheancient Roman tradition –was This sense oftheterm“law” strongly emphasized inthe writings of Holmes andCardozo. Pound basically shared their viewpoint, butwarned about the riskoffocusing toomuchonthis sense oflawthe wayAmerican legal realists didafterwards, because he sawitwholly andnecessarily compatible withthe other two30. Beyond Pound’s succinct statements about this third meaning oflawas process, onecansee howdecisive mayitbecome inorder tostress thedynamic dimension of legal phenomena. To be sure, lawis not a normative, institutional order only (and certainly is nota static one). Noris it a heavenly-sent body of precepts, techniques, andideals, tobe mechanically applied whenever theoccasion arrives. Lawis itself an activity as well, a whole set ofprocedures without which theabove-referred order and materials would never come toexistence, nordevelop intime. Both lawas order and as a setofguides arethefruit ofhuman actions anddecisions thatwehave ended up

adjudication” , etc., , “legislation” , “administration” , “mediation” , “contract” calling “ LonFuller usedto explain31.

as

D) An appraisal of Pound’s conception of law

To myview, a conception like Pound’s opens the doorto a rich, realistic description andexplanation oflegal phenomena as they actually take place, so that thetwofirst steps of legal-philosophical research as proposed above mayeffectively be taken by legal theorists32. Obviously, Pound’s formulation is farfrombeing perfect33. Buteven so it is still a fresh, quite comprehensive approach to law, which has proved to be seminal forothers34. Ontopofthat, I think itis strikingly fitting forcontemporary legal science andphilosophy. 30 Cf. ibid., 52. American legal realists focused only inthis third sense of law, putting the other two aside. Somehow, theysawthemselves as thetrue heirs ofOliver W.Holmes (andhis–lately quoted ad nauseam –aphorism on lawas “ the prophecies of what the courts willdo, andnothing more pretentious” ), in their recognizing of legal status to whatever legal officials decide and, more generally, to any official control that actually takes place in an organized political society (Inthe

31 32

33

34

words of LLEWELLYN (1991, 3): “ ). Obviously, What these officials do about disputes is... the lawitself” these rough statements cannot dojustice to a multifarious group ofjudges, professors andsocial scientists whonever sawthemselves as a proper school of thought, but only as scholars with a common (empiricist and/or psychologist) approach to the study of legal phenomena. Otherwise, there is anabundant bibliography onthis movement andits lasting impact inAmerican legal culture. Agoodselection ofsources (anda guide tothe rest ofthem) is FISHER-HORWITZ-REED (1993), passim. On the ambiguous, strained relationship between Pound and the Realist generation, see HULL (1997); GARCÍA Ruiz (2002), 37– 67, 271–290; and SANCHEZ DíAZ, (2002), chapter I, 1.2. 43, 57– There are masterly studies by Fuller on these various legal processes that were posthumously collected in FULLER (1981), 86 ff. A description of lawas “ activity”in OLLERO (1996), 474. Pound indeed followed this advice: a gooddealofhiswritings are devoted todescribe andexplain a whole gamut of legal institutions andprocesses. Further details inABibliography ofthe Writings of Roscoe Pound, two volumes edited by F.C. Setaro (1942) and G. Strait (1960), and published by Harvard University Press. Forinstance, some mayrightly regard hisconsideration oflegal technique andideals as parts oflaw as anexaggerated one. True, those elements fulfill anindispensable mission inbringing lawto life. Butif legal techniques are authoritative it is probably because there are some rules or principles (explicit or not) that prescribe their use. Asfor ideals, they can also be redirected to the precept element inmanyways (wefind them expressed in rules, principles, standards, andlegal conceptions; inlegislation as wellas inadjudication, etc.). Similarly, Alexy has proposed inourdays a study ofthe legal system after a model that takes into account notonlyrules andprinciples, butalso the procedural dimension oflaw.Sucha model would

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Firstly, such a characterization urges legal theorists (to use another Pound’s phrase) to confront “ 35. This dynamic the law in action”to “ the law in the books” perspective is a powerful means to overcome the reduction of lawto a bodyof rules, forit leads to admit the actual presence of values andideals inthe development of legal institutions and precepts36. It should also help us to understand lawin a nonessentialist way37. Rather, lawmaybe seen as a set of actions that produce certain visible consequences in society; in short, as a social, human practice. This angle enable usto notice howlegal precepts are actually ina permanent state ofchange – andnotonly because or promulgation andderogation. The precise meaning of that “ set of authoritative materials”that Pound speaks about is being constantly redetermined andupdated witheach act of interpretation andadjudication38. Secondly, itis apparent thatlawmakers operate witha series ofgoals orvalues of ethical and political nature, together with a variety of technical andfactual data of diverse origin39. Besides, every legal order needs some measure of non-forced, spontaneous support fromthose whoareabide byit,andtherefore, always purports to be valuable. The content andstructure of legal systems, andthe activity of legal officials are conditioned ina variety ofways bythis fact. Theconclusion is that botha coherent description and explanation of law require to take values into account40. Such acknowledgement has become urgent nowthat constitutional rules andprinciples have acquired a clearly normative status, andthe highest possible one, thus bringing about a considerable transformation inourlegal systems. So muchso that the respect forthe principles andvalues infused inthose Constitutions is considered today as thetouchstone tojudge theappropriateness ofpolitical andlegal activities41.

III. Fromanalysis to comprehension: study of law in context

a note on legal hermeneutics andthe

Characterizations like Pound’s mayrender a fairly accurate picture of what lawis about ina given historical milieu. Butsucha concept willstill remain within thelimits of a functional perspective. A philosophically-oriented approach is always able to go

35

allow practical reason toplaythehighest possible role inourreflections about law,andsoitwould preferable to any other. Cf. ALEXY (1997), 161, 172– 174.

be

36. Cf. POUND (1910), 12–

36 I.e., thecase ofthe infusion ofmorality into lawthrough the useoflegal standards ina sober –and 185). masterly –exercise of analysis by PATTARO (1994, 177–

a 37 Tobe sure, lawmaybe seen indeed as anartifact, inthe sense ofa cultural creation, butnotas “ (i.e. a rock) or“ a hand-made product” thing” (achair, forinstance). ToputitinAristotelian terms, law belongs tothe realm ofpoiesis, andnotofpraxis. 38 Some drawimportant consequences ofthis, namely, that legal positivity should be seen more as a result of a process than as a starting point; anda provisional one, at that. Cf. OLLERO (1996), 474–

347; and SERNA (2002), 315. 494; ZACCARIA (1989), 344– but lawinits second sense” Pound himself understood that an ideal dimension affects notonlythe “ the entire legal order –cf. POUND (1958), 3; and GARCÍA Ruiz (2002), 91, ch. IV passim. Such a conviction could be regarded as matter-of-fact today, butitwasnotso onlya fewdecades ago. 40 Value references are also needed (andmore so) tofindouthowlegal officials are to behave inthe fulfilling oftheir task. However, this question does notpertain toaninquiry ontheconcept oflaw,but

39

41

to a theory ofjustice instead. Controls ofconstitutionality currently established inourlegal systems sometimes entail a judgment, not only on the formal aspects of precepts, buton their content as well, inasmuch as they may contradict the literality of a constitutional clause, orviolate the core content of a fundamental right. 68; and SERNA (2002), 132–135. Cf. in this respect V. VILLA (2002), 65–

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beyond, totryanddiscern notonlywhatlawconsists of,butwhatcanitbeits meaning inourlives. Note that, once again, the question here should notbe directly “Whatis , butrather “Why(is there) law?” law?” Description andexplanation have lead us to this point. They constitute an indispensable, “ previous” work, butthey are not the final word in the exploration of the juridical realm. Even iffunctional analysis of lawis necessary, itjust cannot substitute forphilosophical understanding. Ifthat were so, the question “ would be howis law?” thelast possible oneinlegal philosophy. Butthatcannot bethecase whentheobject ofourinquiry is anartifact, a human creation. Human creations remain incomprehensible until weknowabout their reason of being, that is, the intended purpose(s) they were designed for42. Therefore, it is not only legitimate, but necessary to ask ourselves about the whatforandthe whyoflegal matters. Andthat implies a study oflaw inthecontext ofsocial life, andeventually inthecontext ofhuman existence as such43. Wewillnotice thenthat legal texts andconcepts, legal processes andinstitutions are human devices, more or less consciously destined to perform some task(s), andto serve some goal(s). And,willy-nilly, those goals willthemselves be directed toobtain orto maintain some goods deemed to be relevant forhuman existence. Nowletuspause toconsider something wehave taken forgranted until this point. , “descriptive”or“explanatory moment” previous work” , and , “steps” Expressions like “ so forth, have been repeatedly mentioned here. But all in all, there are powerful reasons to putthose words ininverted commas. Onone hand, it has been said that mere analysis is notenough: weneeda global comprehension inorder tograsp what the lawis aimed at. Butonthe other hand, it has also been saidthat the wayto gain access to that understanding is the description of legal phenomena. Allof which seems to demand that the object whose functions weare going tostudy is previously delimited. Is notthat a contradiction? Well, there is a paradox here, tobe sure, butnot a contradiction. Ascontemporary hermeneutics has showed, some peculiar circularity is attached to any philosophical argumentation, and to human understanding in general44. This should notbe a disqualification. Inorder to grasp this fully, itis enough to consider that, methodologically speaking, the rough, general image of law we presuppose is the prejudice from which all human understanding must start. That image (which, strictu sensu, is nota concept) can, andmost probably willgothrough several alterations during the process ofinquiry, andtherefore its validity willonlybe temporary. To our present purpose, all this means that description, analysis, and

42 43

44

Cf. ORREGO (1997), 141–162, specially at 142. 23; BALLESTEROS (1992), 90–102; D’AGOSTINO (1996), 5– 28, specially at 21– 8. Cf. COTTA (1987), 13– Arthur Kaufmann has powerfully showed howthecore ofvirtually alllegal-philosophical theories fall into some sortofcircularity. Instead ofembracing a barren nihilism, Kaufmann concludes thatthere must be sound reasons to suppose that “ a circular reasoning is notsimply –notinevery circumstance, at least –a by-product that a careful way of thinking could avoid. Rather, [circularity] somehow belongs to the very nature of ourthought” . Menwould be able to avoid this circularity in their argumentations iftheycould useterms thatwere explicit andabsolutely defined. Butthat inturn implies that the terms usedforthese definitions are ofthe same nature; and, secondly, that nobody mayputforward guesswork orconjectures whose truthfulness hasnotbeenproven. This entails that the proof ofveracity has to lean onlyonarguments that showthemselves previously as being true. Forthe German theorist, it is obvious that this method would lead to an unending appealing to highest grounds orpetitio principii.–andso itproves itself tobe unfeasible. Cfr. KAUFMANN (1993), 23 andpassim. Alexy too mentions this hermeneutical circularity present in legal-philosophical argumentation, andsees itas something notonlyunavoidable, butevenbeneficial whenpracticed under close scrutiny: that sort of “ circularity (...) is notvicious butvirtuous incharacter”(ALEXY, 2003, 65– 66).

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existential inquiry about lawwillfeedback each other time andagain (just as legal order, materials andprocesses do)... Andeven ifcircularity is unavoidable here, we can still maintain those steps in inverted commas, if only for the sake of logical argumentation. Wecannot have a complete control ofourprevious background when wetackle the nature of law, butwecan tell ourprejudices from ourjudgments while this process is taking place, andso give thema purposive direction. After all, that is more important thanpermanently trying totrace backtotheroots ofourunderstanding (something that is always doomed to failure). Insum, wecan still say without contradict ourselves that, strictly speaking, theconcept oflawshould be themostripe fruit of legal philosophy, and not its first result. There is ofcourse muchmoretosayabout thenature oflawthanthese schematic considerations ofmine. Infact, I have just tried toplota route tobefollowed, andthen had to stop at the threshold of its first anthropological implications. Hopefully, there shall be further occasions, and many other people who will put to that work. In this sense, legal philosophy cannot be a one-man task. Wemust have confidence inour ability to clarify legal problems together: truth (truth about lawincluded) is neither simplistic, noreclectic, butsymphonic.

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–(1997) “ Sobre las respuestas al positivismo jurídico” 313. , Persona y Derecho (37), 306– –(2000) “Sobre el Inclusive Legal Positivism: unarespuesta al Prof. Vittorio Villa” , Persona y Derecho (43), 99–146.

–(2002) Proyecto docente e investigador, ACoruña (pro manuscripto). VIOLA, F., (1990), Ildiritto comme pratica sociale, Milano, Jaca Books. VILLA, V. (2000), “ , Inclusive Legal Positivism e giusnaturalismo: lineamenti di unaanalisi comparativa” 97. Persona y Derecho (43), 33– WALUCHOW, W.(1994), Inclusive Legal Positivism, Oxford, Clarendon Press. G. (1989), “ Sul concetto di positività del Diritto” , in ID.(ed.), Diritto positivo e posivitá del diritto, 347. Torino, Giappichelli, 344–

ZACCARIA,

Leopoldo García Ruiz, Associate Professor ofLegal Theory, Universidad Católica (Murcia)

Av.de los Jerónimos s/n, 30107 Guadalupe

SanAntonio

(UCAM),

Nikolaos Intzessiloglou

Socio-semiotic andsocio-cybernetic approaches to legal regulation in an interdisciplinary framework 1. Introductory

remarks

The concept of lawas an effective andefficient social system of regulating human behavior seems tobethevehicle (ortheexpression) ofthemostgeneral, complex and inclusive formofthe legal phenomenon. Inthis concept oflawandinthesocial reality oflawrelated tothis concept, general ideas andprinciples concerning lawas wellas legal norms anddecisions cohexist withfactual elements related to the lawsuch as judgments, compliance withlegal norms, social relations, social situations andhuman behavior. Hence, this conception oflawas regulative system isthebroadest andmost general object ofstudy oflegal science, inwhich allfeatures ofthelegal phenomenon maybe included as effective orpotential partial andspecial objects ofstudy ofevery

legal discipline. Indeed, lawbecomes aneffective partofrealsocial life; itis notonly“ lawinbooks” ), and a legal order is socially established only law in action”(or “living law” but also “ whenthe legal phenomenon functions succesfully as a communicative social subsystemthat actively regulates human behavior. The legal phenomenon, as an effective andacting communicative social subsystem that regulates human behavior, introduces organizational negative entropy (negantropy)1 insociety andinteracts with other regulative systems2. Itsefficacy andefficiency depend uponthis interaction. Fromthis point of view, at least, the legal phenomenon is an open social communicative subsystem interacting withother regulative systems andsubsystems. Itinteracts with them through processing information and transforming political, cultural, economic and societal meanings into legal ones3. Atthe epistemological and methodological levels, interdisciplinarity isbydefinition theapropriate strategy forstudying theinterac-

1

2

3

According tothesecond axiom oftheuniversal lawofthermodynamics (transformation ofallkinds of energy inthe Universe into heat), entropy (positive entropy) describes the natural state ofa closed system in that it tends to use upits energy and rundown. In their struggle against this general entropic tendency, living biological and effective social systems, which are not closed but open systems, develop and maintain transaction with their external environment with which they exchange energy, material elements andinformation, andso canreverse, locally andduring a period of time necessary for their survival, positive entropy into negative entropy or negantropy. By achieving negantropy such opensystems, biological andsocial, cansurvive andattain newsteady states indispensable fortheir adaptation to changing conditions. Interms oforganizational theory, positive entropy means disorder, andnegative entropy (ornegantropy) signifies increase of order ina system. Fora social system, “ (see Durkheim) is an anomie” entropic tendency, and, regarding law,the“ legitimization crisis” (see Habermas) ofa particular legal system is also a formofpositive entropy against which this legal system is obliged tofight, otherwise itcannotsurvive andfulfill its principal social function ofintroducing a particular order (negantropy) inthe social system. Other regulative systems (or subsystems) are other than through lawways of regulating human behavior, and they are of ethical, biological, psychological, economic, political, ecological etc. nature. The legal regulative social subsystem or process is notonly influenced, butalso influences other social regulative processes; therefore theanswer tothequery about the influence exercised bythe other social regulative processes upon legal regulative process depends, at least partially, Onthe knowledge about the influence exercised bythe latter upontheformer.

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tion among divers regulative social subsystems each one of which is a particular object of study of a different social science. Insuch a perspective, legal science inits broadest andmostgeneral sense is a social science, the object of study of which has to be elaborated so that all kind of legal thinking might be included in it. The interest of constructing such a general and

inclusive object of study is theoretical-epistemological, educational andtheoreticopractical as well. Froma theoretical-epistemological point ofview, theconstruction oftheenlarged andinclusive object ofstudy oflegal science fulfills principally thefollowing functions: a. It assures a unified field of scientific investigation for legal science. Inthis unified field, every wayofthinking about lawandapproaching to the legal phenomenonmayoccupy itsparticular place andpossess itsspecial field ofscientific investigation. b. It establishes a global view of the legal phenomenon, which includes all its aspects andforms of appearance. Hence the enlarged object of study of the legal science makes itpossible to conceive lawinits complexity, that is without reducing it to any particular dimension or feature. This global wayof conceiving lawincludes lawin and“ statutory lawandcase law, official-hard lawandsoft law, “ lawinbooks” as well as the normative, the decisional, the organizational andthe factual action” dimensions ofthe legal phenomenon. c. It emphasizes the necessity for an interdisciplinary approach to the legal phenomenon andpromotes the collaboration among the specialists of diferent legal branches (civil law, trade law, public lawetc.) on the one hand, andamong legal scientists andother specialists ofsocial andhuman sciences (philosophers, sociologists, economists, anthropologists, ethnologists, psychologists etc.), on the other hand. Inorder to obtain aneffective andefficient interdisciplinary approach, the object ofstudy ofeachsocial science mustbedefined ina waythatconceives thephenomenon under study not in a state of isolation but in one of interrelation with other phenomena studied byother social sciences. Atsuchanepistemological level, where every particular object of study is elaborated inthe framework of each discipline or science byputting theemphasis onthesystem ofinteractions among thephenomena, interdisciplinarity must be integrated inandconveyed bythe definition ofthe fundamental concepts utilized byeach social discipline. Inthis case, the interdisciplinary attitude becomes an epistemological demand for achieving an effective andglobal understanding ofanyparticular phenomenon intheframework ofeach social science ordiscipline. Socio-semiotics andsocio-cybernetics aretwoefficient andcomplementary methodological means for studying law and answering the above mentioned epistemological demand for achieving an effective andglobal understanding of the legal phenomenon intheframework of interdisciplinarity. Froman educational point of view, the enlarged andinclusive object of study of legal science should contribute tothe adoption anddevelopment ofa global conception andunderstanding ofthe legal phenomenon, andto incite teachers andstudents of law to relate their theoretical-dogmatic knowledge with lawyers’, judges’ and administrators’practices, insucha waythatthedistance between theoretical-dogmatic approach to lawon the one hand, and practical experience of exercising legal professions ontheother hand, might be diminished. From a theoretico-practical point of view, the enlarged object of study of legal science enhances the understanding andexplaining of the reasons forwhich: a) a method or technique of interpretation is proposed by the interpeter of a legal text and is adopted by a judge; b) a majority anda minority of opinion is formed among the

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ina court; c) a particular legal meaning is given to a non-technical legal term ina legal text, suchas theeconomic termof“undertakings”inthecompetitive law. Fromthe same theoretico-practical point ofview, the enlarged object ofstudy of legal science mayprocure a theoretical basis for establishing a legal syllogism or argumentation andfinding persuasive arguments inthe context of an efficient legal rhetoric which is adressed todifferent kinds ofaudience (forinstance, theaudience of a court orjurists ingeneral ora community oflaymen).

judges

included

2.

Defining

system

the enlarged object of study of legal science as a regulative

mentioned in the introductory remarks, the fulfillment of the epistemological prerequisites of the interdisciplinary approach in the area of legal science, depends to a great extent onthe definition ofanenlarged object ofstudy of the legal science. This definition mustcontain a conception ofthe legal phenomenon initsfullcomplexity, that is as living lawandlegal regulation composed bynormative andother nonnormative, that is factual, social data. socio-legal data” The “ at which wetake a “naive look”(in a phenomenological meaning ofthis term) inorder toconstruct theenlarged andinclusive object ofstudy of legal science, are principally ofthree kinds: norms, behavior (orsocial situations) and judgments (ordecisions). Indeed, everybody whohas the intention to conceive and define lawingeneral, thatis inanysociety, independently ofspace andtime considerations and of theoretical pre-conceptions, looks for norms regulating behavior and social situations about which a judgment maybe formulated byanauthority. Indeed these norms, behavior andjudgments as wellas their combination become legal only whenthey are conceived as constituent parts of a social system inwhich judgments are formulated by a specialized social mechanism-process vested with authority. Such an authority-vested social mechanism-process is any institutionalized form of producing judgments. Through applying this phenomenological approach to the legal phenomenon, one might overtake the limits and frontiers of perception imposed by his own sociohistorical conditions, andinclude inthelegal phenomenon suchsocial data as norms, behavior, judgments, as wellas anytheories relevant to lawinanyhuman society. In this phenomenological perspective, the legal phenomenon is defined not only as an exclusively normative phenomenon, but as a totality (system) of relations between norms, behavior andprobabilities of intervention of some social mechanisms, structures or processes vested with authority and measuring the behavior by using the appropriate norms (isomorphism). Through adopting this systemic definition of the legal phenomenon, anyform of law(forinstance “ soft” and“hard” -official law)maybe included inthe object ofstudy of the legal science. Atthesame time, there is nomore place forconfusing lawwithother more or less similar to the lawregulative mechanisms such as morals. Hence the object ofstudy ofthelegal science is simultaneously sufficiently broad andspecific, so that legal science is invested with a universal character, as anyscience, andat the same time delimits clearly its special field ofscientific investigation. Therefore and for pedagogical reasons, the general object of study of legal science maybe schematized inthe following way:

As it has been already

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S.E. = social environment N=Norms B= Behavior orsocial situations J= Judicial authority (councils ofelders, arbitrations, tribunals, judges, courts, etc.). Pr= Project ofjustice. Justice is the goalto be attained byanyparticular legal system; andbecause every particular legal system is organized insucha waythat permits theachievement ofthis end, justice becomes the organizational principle of any particular legal system. Protecting forinstance, human dignity is the project ofjustice andthe organizational principle of human rights; protecting a degree of competition is the project ofjustice andthe organizational principle inthe field ofcompetitive law; protecting such goods as human life and property are some particular projects of justice in penal law; protecting the consumer is the project ofjustice of consumer law; facilitating investments andexchanges maybe the project ofjustice intrade law;equal distribution of goods andhonors (distributive justice), liberty andthe rule of laware three general projects ofjustice andorganizational principles ina democratic legal order; efficiency is another general project ororganizational principle ofjustice which mayconcern all formoflegal order inanymodern society, etc.. Atthesame time, the project ofjustice contains a code according towhich a behavior ora social situation maybejudged and qualified as just or unjust. This code is registered in the subsystem of norms or in some general principles inaccordance withwhich thenorms are interpreted. Through relating the three internal to the system of lawcategories of data, the following systemic attributes emerge: a) the normbecomes a measure; b)the behavior is transformed into a size to be measured; c) the eventuality or probability of a judgment endowed withauthority becomes aneventuality orprobability ofanimposed act ofmeasuring the behavior andimputing the latter toa norm. Hence, there are notsome qualities intrinsic to the norms, neither to the process oftheir production nortothe process oftheir application that render norms legal. The legal quality of the legal norms emerges from or is the consequence ofthe fact that these norms are a constituent part ofa whole legal system organized into a particular totality of relations among norms, jurisdictions andbehavior. This systemic totality, conceived as action, constitutes the legal regulation within a society. Weclassify the norms-measures under the name ofsubsystem of norms (or normative subsystem), the behavior-size to be measured under the name of the subsystem ofbehavior (orbehavioral subsystem), andallthe institutionalised mechanisms-processes ofmeasuring behavior byapplying norms, under thenameofjudicial subsystem. This concept of the legal system is an analytical instrument that is useful for identifying4 the existence andco-existence (comlementary, hierarchical, antagonistic

4

Intzessiloglou Nikolaos: Essai d’identification de la totalité sociale duphenomène juridique entant que système” , in “ Rechtstheorie ”, Beiheft 10, 1986, pp. 271– 279. “

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of legal phenomena as well as their form andwayof functioning inthe social of anyparticular society, andalso forassessing, affirming andmeasuring, by the socio-empirical techniques of research, the degree of integration and openness ofthe systems-institutions under study, the dimensions of which vary (e.g. thesystem-institution ofthefamily ina village, thesystem ofmultinational enterprises, the system of a court, the global legal order of a State, the international legal order etc.) inanyspecific case andinrespect tothe researcher’s scientific interests. Inorder to avoid anyconfusion, itis necessary to clarify that: a) Thelegal system insome normativistic orlegal state positivistic anddogmatic approaches tolaw,is usually defined as a system ofnorms that is a totality ofrelations among legal norms. These norms are, inprinciple, considered legal because theyare produced bythe official sources of law, that is, at least inthe continental European countries, bysources of lawrecognized as such bythe State, that is bylegal norms produced byState institutions that define the official sources of law. This is a kindof normative closure ofthelegal system, because thelegal norms produced bytheState determine bythemselves the procedure oftheir ownproduction. This dogmatic andexclusively State-normativistic definition of the legal system discribes onlya particular formofthe normative subsystem defined above as theone of the three subsystems of the tridimensional (see enlarged) object of study of the legal science. Therefore, everything that is said bythese dogmatics about the legal system as anexclusively normative system isalso valuable andcanbe included inthe normative sub-system of the enlarged object of study of the legal system defined above as a tridimensional one (norms- jugements-behavior), withthefollowing differetc.)

reality using

ence: b) The adoption of the Tridimensional Object of Study of the legal science conceived as system (the TOS system) obliges the researcher to study or keep in mindnotonly the normative dimension of the legal phenomenon, butalso its social “ depth” . Keeping inmindorstudying thesocial “ orthesocial dimension ofthelegal depth” system means, forinstance, that phenomena related to lawsuch as legal pluralism, compliance with norms, social effectiveness of the latter and legal efficiency are included in the object of study of legal science as essential features of the legal

phenomenon. From an epistemological point of view, studying the social “ or the social depth” dimension of the legal system implies the interdisciplinary approach of the legal phenomenon andreveals the complexity ofthe latter (normative overregulation, legal “ black holes” , legal inefficiency, various degrees of understanding, accepting and applying legal norms, legal pluralism, legal acculturation, legal strategies of the legislator andlegal individual counterstrategies etc). Through identifying the legal phenomenon as a social system defined above, legal science also obtains itsownautonomy as a scientific activity vis-à-vis other kinds of activities and especially vis-à-vis political activity. The scientific object of legal science is, in this case, elaborated only under the scientific pursuit for truth5 and

5

criterion of falsification as the appropriate criterion for distinguishing a scientific theory from myth (and metaphysics), is certainly not contradictory to the assertion that scientific activity, bydefinition, is anactivity oriented towards the search fortruth. Inthecase oflegal science as social science, discovering truth, at the most general epistemological level at which the TOS system is elaborated, means toproduce knowledge about whatreally happens whena legal normis produced, interpreted andapplied. This knowledge refers towhathappens inthe realsocial life ofa and even, death” legal norm from the moment of its conception and birth till the moment of its “

The Popperian

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Nikolaos Intzessiloglou

independently from any kind of power (economic, political, cultural etc.), and especiallyfrom anycentral state power which used to claim, in the dominant framework of legal-state positivist current, foritself the monopoly ofproducing andapplying law.By defining theobject ofstudy ofthelegal science as a totality ofrelations between norms and behavior under the probability of intervention by an authority-vested social mechanism measuring behavior and utilizing as measure the related to the latter norms, it becomes possible to discover in every society a great number of legal systems participating in the production of a total legal order, even if these legal systems are notrecognized as suchbythedominant ideological current oflegal State positivism. In such a landscape of legal pluralism, legal systems mayhave among them complex relations, that is interrelations ofcomplementarity, antagonism, concurrence, competition, hierarchy etc. These interrelations influence theefficacy andefficiency of legal regulation in a society and must be taken into account in the interdisciplinary research of the interrelations existing among the various mechanisms of social regulations (legal, economic, political, cultural etc.).

sometimes, after its death. Hence, theentire continuum

oftheobject ofstudy ofthelegal science is

fully developed. Contrary to this global perspective, the various legal disciplines, and the doctrines developed within each one of them, are specialized either to the study of a part of the object of study

of legal science or to the elaboration of a particular point of view which permits to reveal some particular features ofthe legal phenomenon, or, usually, both. Legal dogmatics, forexample, conceived as a kindof Begriffjurisprudenz (that is a legal theory of concepts) studies thenormative partofthelegal system andtries toproduce meanings byclarifying concepts andbyinterpreting legal texts. The methods andtechniques of interpreting texts vary in relation to the interpreted text itself, but also in relation to the general theoretical perspective adopted bylegal dogmatics. Thus, forexample, the legal dogmatic maybe inone ofthe following situations concerning his workofanalysing andcombining concepts orinterpreting texts: a) Thelegal dogmatic works ina state-positivistic theoretical framework orperspective andtries to findtherealmeaning ofa legal texteither byusing orbymaking reference totheconcrete words and concepts constituting the text itself orbycombining this text withother texts orwithanentire system ofnorms constituting thetotal normative State legal order. b) Inanidealistic neo-kantian conception ofthelegal phenomenon, theinterpretation ofa legal text is produced inthe framework of a system of norms organized around a concept ofjustice that is identified, forexample, withthe enlargement offreedom insociety. c) The interpretation of legal texts insocialist countries is produced byapplying, ina more or less systematic way,a teleological interpretation that imposes as objectif tobeattained theadvancement ofsociety inthedirection ofrealising socialism. Ingeneral, inthis marxist-leninist perspective, Lawis conceived only as an instrument inthe hands of political power: aa) ina capitalist country, Lawis considered as an instrument of the capitalist State which is considered as an instrument of domination inthe hands ofthedominant capitalist class; andbb)ina country engaged inthe roadto socialism andfora period of time that seems to be necessary forits construction, Lawis putinthe service ofthis objective andthedogmaticians have toadjust the meaning oflegal texts toserve inan optimal waythe achievement ofsocialism. d)Intheframework ofsome jusnaturalistic (jus naturale) perceptions ofthe legal phenomenon, the truth that mustbe found bythe dogmatics clarifying concepts andinterpreting texts, is aninterpretation ofthe legal texts that complies the best witheither a natural order that is attributed to human nature, orto the nature of society ingeneral, orto the nature of society conceived at a concrete historical period of time and space, or to the nature of human reason, or to the nature of a metaphysical order, etc. according totheparticular theoretical tendency adopted about thenature of the order towhich legal order is really related ormustbe related. TheTOSystem perspective is situated atthehighest epistemological level ofgenerality atwhich the object ofstudy oflegal science ingeneral is elaborated byincluding alltheabove mentioned partial perspectives.

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Thenexttwogeneral schemes illustrate, forinstance, twotypes oflegal pluralism: the first represents a pluralism of antagonistic legal systems andthe second depicts an hierarchical legal pluralism.

Scheme

Arepresents the case oftwoantagonistic

legal systems which coexist

ina

wayinthe same society, because each oneclaims the exclusive applicationofits ownnormative subsystem as wellas the intervention ofits ownjurisdictions formeasuring the same behavior. Itis a wellknown conflictual situation inthearea of Private International Law,butalso inallthese cases ofconflict, forinstance, between a colonialist’s lawintroduced byforce ina colony andthe indigenous customary law, as wellas inthecase ofaneventual conflict between Ecclesiastical (Canonical) Law andsecular Law. Scheme B represents the case of two complementary legal systems which cohexist andareequally recognized as valid andeffective inthesame society. Itisthe case, for instance, of legal pluralism ina feudal society inwhich social classes are legally recognized as wellas ina society ofcasts6. Inallsocieties7, every legal system attempts to develop andsocially legitimize its ownreproduction byreproducing, ina more orless faithful way,intothesubsystem of conflictual

6

7

Formore details, examples andschemes about various kinds of legal pluralism andthe relations among legal systems coexisting inthe same society, see Intzessiloglou Nikolaos: “ Système juridique et culture: Uneapproche sociologique globale duphénomène juridique” , inChazel F., Com413. Normes juridiques et régulation sociale” , Paris: LGDJ, 1991, pp.391– maille J. (dir.): “ Especially in contemporary developed societies, legal systems are in general autopoietic (selfmade) and self-referential, and are characterized by a certain degree of autonomy andclosure (about autonomy and closure as characteristics of autopoietic systems, see Luhmann Niklas: “ Soziale Systeme” , Franfurt a. Mein (2nd edition), 1988, p.22, and about autopoietic and selfreferential systems, see also Luhmann Niklas: op.cit., pp.603 ff). Asanyother autopoietic system, thelegal system is notclosed to, butclosed withtheenvironment. This relative closure ofthe legal system as anautopoietic one is operational orfunctional, because itis necessary forthe legal system insatisfying twobasic needs ofthe latter. Itis necessary: a) for achieving a high degree of autonomy of the legal system; andb) forattaining justice which is the principal endofthe latter. Byattaining justice, thesystem oflawrenders active its above mentioned just-unjust” “ code. Autonomy does notmean a state of isolation or of autarchy. Autonomy is only a condition forthe legal system inorder to be connected to other social systems. Theautonomy ofthe legal system is indeed a condition forits openness. Openness andclosure areequally qualities ofevery legal system, butevery legal system, as a social system, is characterized byvarying degrees ofclosure andopenness. Weconsider that there are onlytendencies of openness andclosure which are conditioned notonly bythe historical development of the legal system andof its ownsocial environment, butalso bythe dominant ideas and

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behavior the prototypes (models) contained inthe normative subsystem. That is, in genetic code” the production ofevery specific legal system, norms convey a sort of“ (or“ codified genetic program” ) that disposes a dynamism ofproducing anisomorphic behavior through the process principally ofproducing meaning andtherefore influenc-

ing the consciousness of people. This process is studied through the adoption of socio-semiotic approach tothe legal phenomenon. Butproducing anisomorphic behavior remains onlya potentiality which becomes active under some structural, functional andcommunicational conditions qualifying the system of law. These structural, functional andcommunicational conditions may be studied in the framework of a cybernetic approach to the legal phenomenon, because forming-producing behavior onthebasis ofa model ofbehavior included ina system of norms means, indeed, that a control is exercised onthe behavior; and, by definition, cybernetics is the science ofcontrols.

3. Socio-semiotic andsocio-cybernetic approaches to law From a methodological point of view, and according to the thesis defended in this paper, the socio-semiotic andthe socio-cybernetic approaches are twoof the most appropriate methodological means inorder to demonstrate andstudy howthe legal phenomenon functions as a communicative system transforming all forms of social (economic, political, societal andcultural) information andmeanings into legal ones.

3.1. Thesocio-semiotic approach tothe legal phenomenon Thesocio-semiotic approach ormethod refers principally tothe inter-subjective social dimension of lawas a communicative system. By adopting the socio-semiotic approach to lawthejurist (andthe legal sociologist) studies the process ofconstituting a system of legal meanings which emerges in the consciousness of people (legal professionals as well as lay persons) every time they interpret andapply the law, either ineveryday transactions andrelations orintheTribunals, Courts etc.. Through applying the socio-semiotic approach, it becomes clear howthe legal system integrates in a coherent totality, on the one hand its objective and “ material” -factual constituent parts (forexample thelegal texts andtheregulated human behavior), and, ontheother hand, the meanings attributed to legal norms andto regulated behavior, into a communicative whole. The socio-semiotic approach has twodimensions: a methodological-analytical (ontological) anda normative (deontological) one. Theformer is useful fordescribing andunderstanding howlawfunctions effectively as a communicative system, andthe

theories about the nature and the functions of the legal system. In consequence, the degree of openness andclosure ofthe legal system must be measured bythe researcher inevery particular case. Inorder forthe researcher tobeable todothat, hemustbeprovided withtheabove described concept of the enlarged object of study of the legal science which is an analytical instrument that includes a multi-level openness: anontological-existential anda cognitive openness as well. Openness is ontological-existential whenreference is done tothenecessary, fortheproduction and functioning ofthelegal phenomenon-system, interaction which exist between thelegal phenomenon and its ownsocial environment. Openness is qualified as cognitive either in contrast with the normative closure ofthe legal phenomenon-system orwhenreference is done either tothecognitive relation existing between the subject-researcher andhis object ofstudy ortothe cognitive relation created intotheinterdisciplinary framework among theresearchers ofvarious social disciplines who collaborate inthestudy ofthe legal system.

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latter indicates howlawmust be organized in order to be effective andefficient in producing some effects orinattaining some goals orinrealizing some ends included inthe concept ofjustice inits variable general andparticular signification. Whenwetake, consciously andsystematically, orevenunconsciously andthrough oureveryday experience, into consideration thesocio-semiotic dimension ofthe legal system, webecome able: a)tosufficiently, froma rational point ofview, andefficiently, froma social point ofview, interpret legal texts according totheir legal nature (that is as texts that are produced with a serious intention to be applied, to regulate social bypersuadbehavior andattain specific andprecise goals); b)tojustify orlegitimize – inga particular orgeneral audience oflegal professionals orevenoflaypersons –the choice ofoneoranother method ortechnique ofinterpretation, especially inthecases inwhich thejudge’s creative power is ondemand. Inevery case ofunderstanding, complying withanddeciding orjudging inaccordance withlawbyeither legal professionals orlaymen, thefollowing elementary sociosemiotic structure ofthe legal system is necessarily formed andachieved as a totality:

Sa(N) = signifier ofa normora subsystem ofnorms (forexample, the legal text in its material dimension, i.e. the black letters written onwhite paper). se(N) = signified ofa normorofa subsystem ofnorms (i.e. the meaning ofa legal

text-signifier, which is produced byanactofinterpreting this text). R(B) = the behavioral referent to which reference is done bythe sign Sa(N)se(N)8. Hence, R(B) isthespecific regulated behavior towhich reference is madebya concrete norm (or subsystem of norms) applied in a particular case. This behavioral referent R(B) (i.e. a concrete behavior or a form of behavior that takes place in real

8

Every sign is constituted bytwoconstituent parts: the signifier (that is the material dimension ofthe sign) andthe signified (that is the meaning which is borninthe mindwhenthesignifier is perceived byat least oneofthefeelings). Usually, thesignified makes reference toa referent that is generally an object or something that is already known or experienced in the past bythe sender andthe receiver (the twopoles ofthecommunication process) ofthesign. Whenthesender andthereceiver utilize the same rules of decoding the sign (for instance the same syntaxical rules or the same language ingeneral) andhave a more orless common experience ofthe referent, thecommunication between them is successful anda complete understanding ofthe sent message is produced. Hence, inthis case ofsuccessful communication anymisunderstanding is avoided. Onthecontrary, many misunderstandings mayintrude into the communication process, when either the rules of decoding thesent signareviolated orunknown byanyoneofthetwopoles (sender andreceiver) of the communication process, oreither the sender orthe receiver have nota common experience of thereferent. Forinstance, whenI,coming froma European country, pronounce ina speech theword “ tree” before twochildren, thefirst ofwhich comes froma Siberian tundra while thesecond froman African jugle, it is doubtful whether all of us understand the same meaning even if we perfectly understand the English language. Inthis example, the misunderstanding maybe produced inour communication through the absence of a common experience of the real trees existing in natural environment foreach oneof us.

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social life) represented inthe framework of the first socio-semiotic triangle, is also a sign that may be broken down in the second socio-semiotic triangle in its two dimensions: its material dimension (significant) Sa(B) and its meaning (signified) se(B). Sa(B) = the behavioral signifier that is the external-material aspect (form) of a behavior orofa formofbehavior that takes place inrealsocial life. se(B) = thebehavioral signified, i.e. themeaning imputed toa particular behavioral signifier Sa(B). R(B) = the behavioral referent. The behavioral referent is usually the context in which behavior takes place orought tobeconsidered andtowhich reference mustbe made inorder toattach a concrete meaning tothebehavioral signifier. Sucha context

may be, for instance, specific social practices, religion, etc..

myth, competive market, ideology,

Pr= Project ofjustice (as ithasbeenexplained above intheframework ofthefirst inthis paper). Themeanings se(N) andse(B) as wellas their relation constitute theideal (not in thesense ofidealized orutopian) superstructure ofthe legal system. Theconstituent scheme

elements Sa(N), R(B), Sa(B) and R(B) of the socio-semiotic system constitute the material infrastructure ofthe legal system. The organization ofthe total socio-semiotic legal system is conditioned, froman internal point of view, bythe need for achieving a specific andconcrete project of justice (see above about the organisational principle ofjustice), and,fromanexternal point of view, by the other social subsystems (the political, cultural, societal and economic subsystems) which constitute thesocial environment ofevery legal system. The socio-semiotic system is formed inits totality, forexample, inevery case of concluding a valid contract andcreating or accomplishing in a legally correct way contractual obligations. That is, fora valid contract the presence ofallthe constituent elements of the socio-semiotic system is absolutely necessary. Otherwise, the contract maysuffer ofvarious types ofnullity orof legal non-existence. Forexample, the appropriate movement of myhand [Sa(B)] inthe direction of a taxi circulating inthe street maybe introduced ina legal socio-semiotic system andinconsequence itmay belegally qualified as a proposition toconclude a contract oftransporting persons only in societies in which, according to the social practices [R(B)], I can take a taxi everywhere, that is even outside ofthetaxi stations. Byutilizing thesocio-semiotic approach to law,itbecomes also possible tobetter understand howthe legal syllogism is formed andarticulated in a judicial decision through interpreting legal norms andqualifying the regulated bythe latter behavior in respect toa specific project ofjustice andinrelation tosome concrete social practices orcontext. Inthe branch of competitive law, forexample, inorder to obtain a better s) Commission9 and understanding ofthe arguments adopted bythe EEC’s (nowEU’ accepted bythe EEC’s (now EU’s) Court of Justice10 andto explain the reasons for which the “ undertaking”is recognized (that is the term “ undertaking”[Sa(N)] is interpreted) bythis Court inthe“ Continental Can” case, as a newandoriginal subject oflaw[se(N)], itis necessary totake inaccount the waythe socio-semiotic system is 1– 1971 (OJEC no L 7/25, 8– 9 See the decision of the EEC’s Commission: Continental Can, 9–12– 1972) inwhich the Commission considers that, because theAmerican company Continental Canis the onlyshareholder ofthe American holding company Europemballage which possesses the 85% oftheshares ofthe European company S.L.W., Continental Cancontrols thetwoother companies, andforthis reason the behavior ofthelatter maybe imputed totheformer, that istoContinental Can. 2–1973 (6/72 Continental Can case, Coll. 1973, XVIII, 2, p. 243). 10 Decision 21–

Socio-semiotic

andsocio-cybernetic approaches to legal regulation

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initstotality inthis specific case as wellas inother similar cases11. Hence, itis necessary to consider ina socio-semiotic totality: a) the internal economic structure ofthe undertaking-group ofcompanies, that is the degree of the economic and decisional dependence or independence of the formed

companies-members

case, the EECCourt of ofthe group (in the “Continental Can”

Justice considered that the existing economic dependence (possession ofmore than fifty percent oftheshares) among thethree companies-members ofthegroup, wasa sufficient indicator forconcluding onthedependence ofthedecision taking process in twoofthelatter fromthemother company Continental Can,andthat, inconsequence, there wasa unique untertaking [Sa(B)] theactivity ofwhich mustbejudged as a whole inaccordance withthe provisions ofthe article 86 EECTreaty [Sa(N)] that prohibits the abuse ofdominant position within the common market byone ormore undertakings);

b) the structure ofthe particular European market inthe production anddistribution of boxes [R(B)]; c) the wanted degree or level of competition inthe specific European common market of boxes (project ofjustice) within which the activity under consideration had taken place. Inthe light ofalltheabove mentioned considerations, the position ofthegroup of companies (that is a unique undertaking) may be qualified as dominant and the specific activity under judgment as anabus ofdominant position [se(N)-se(B)]. Hence, thesocio-semiotic approach to lawmaybe utilized as a guide, which is its practical and educational function, in order not only to describe the global legal phenomenon, butalso to contribute to the development of a legal theory or a legal teaching about, forexample, the normative andfactual requirements that are ormust be satisfied foranagreement to be legally binding anda judicial decision welltaken andstructured in a rational (efficiency), logical (formality) and normative-axiological (legitimization) way. 3.2. Thesocio-cybernetic approach tothe legal phenomenon As a system of control, the legal system constitutes a socio-cybernetic system and can be studied by cybernetics, because by definition cybernetics is the science of controls12. The socio-cybernetic approach to law is conceived, in this paper, as a complementary to the socio-semiotic approach to the legal phenomenon. Indeed, if, by using socio-semiotic approach to law, it becomes possible to study the global way inwhich legal meaning is emerging inthe system oflawthrough the consciousness of people (that is an internal view of the legal system), by using a socio-cybernetic approach to law, it becomes possible to study, ina complementary wayandfroman

external point of view, howthe system of law is organized and functions as a mechanism ofcontrolling human behavior. Lawas a cybernetic system, that is, as a system ofsuccessive controls, fulfills its principal function ofsocial regulation through stabilizing some ways ofsocial commu-

The DIAS proposal: A 11 Fora more detailed analysis ofthis example, see Intzessiloglou Nikolaos: “ research program conceiving lawas anopensocial system” , inKrawietz Werner andVarga Csaba (eds): “ OnDifferent Legal Cultures, Premodern andModern States, andtheTransition totheRule of 482 4, 2002, pp.413– LawinWestern andEastern Europe” , 33. Band, Heft 2– , in“Rechtstheorie” 477. andmore especially pp.471– Cybernetics” , London: Hodder and Stoughton Ltd, 1971 (5th impression, 1976), 12 See George F. H. : “ p. 3.

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nication, conflict resolution, adjudication, legal change individuals.

and legal

socialization

of

Indeed, as anyother cybernetic system, the legal system has: a) a goalorobjective: that is, social regulation which canbe broken downinsome subfunctions13 such as conflict resolution, legal socialisation of individuals, social

integration etc; b)a program ofaction registered inthe sub-system ofnorms; c) some decision-making processes: formal (judicial andadministrative decisions) andsome informal processes (everyday decisions oflegal subjects toassume binding obligations in terms of legal relations, through, for example, a legally valid contract); d) a function of execution, that is inthe legal system: aa) a formal execution of judicial andadministrative decisions by administrative organs, and bb) a formal or informal fulfillment of the respective obligations on the part of the legal subjects bound by legal relations; e) some feedback loops which provide the legal system with the necessary information concerning the changes provoked inthe social environment bythe action ofthelegal system itself, andhelpthelatter tomaintain a dynamic, thatisevolutionary, stable anddurable which are necessary forthefunctioning oftheveryfundamental for the legal system principle of legal security through which legal expectations are born andmaintained. Inthe long run,these feedback loops are conducive tothe evolution

ofthe legal system. Oneofthe ways of representing, forexample, State Lawas a socio-cybernetic system is the next scheme:

–GP= General

Program and General Programmer; that is the fundamental constituent norms andgeneral principles according towhich the system ofstate legal order is constituted and functions, and the particular programs (see the PPs) are produced. Here are also included some fundamental institutions suchas a constituant assembly which votes a newconstitution or reforms it.

13

andgeneral functions fulfilled by Law, see Ferrari (V): “Funzioni del Diritto” , Roma-Bari: Gius.Laterza, 1989 (Greek translation andedition of the same book inThessaloniki: Sakkoula, 1992).

About some principal

Socio-semiotic

andsocio-cybernetic approaches to legal regulation

–PPs= Particular

Programs

andParticular

Programmer; that is the legislator

73

in

general andits legislative production. Herearealso included, forexample, formal laws voted byparliament (statutory law), andother legal acts having similar to the formal laws legal effects, as wellas the precedent especially inthecommon lawcountries. All . strategic decisions” these Particular Programs are, incybernetical terms, “ –ACD= Administrative Centers of Decision. –JCD= Judicial Centers of Decision. ACDandJCDare both FD=Formal Decision-making orDecision-taking process. tactical decisions” es orinstitutions andtheir decisions are, incybernetical terms, “ –ICD= Informal Centers of Decision in which are included Informal Decision making and taking processes as well as the legal subjects (physical and legal persons) whotake, forinstance, a decision to be engaged ina contract. –FE= Formal Executors orExecutions ofthedecisions taken according toandby FD(such as the institutions andprocesses ofexecution ofa judicial oranadministrative decision). –IE = Informal Executors or Executions of the decisions taken according to and byICD(such as the wayofpaying debts bya legal subject, that is a physical orlegal person). –IGK = Information Gate-Keepers, such as every judicial or administrative institution (forexample, attorney andpolice) having competence ofinquiring, accumulating andaggregating information andstarting some legal procedures, as wellas the deputies accumulating, aggregating andtreating, ingeneral, demands submitted to thembyindividuals orsocial groups (for example, pressure groups, trade unions etc) andtransmitted tothe ministers orto Parliament inorder toproduce newlegal norms.

The aforementioned socio-cybernetic construction constitutes a cybernetic development of the TOSystem of the legal order of a state into which the three dimensions (normative, behavioral andjudicial) of every legal system are included. This sociocybernetic construction makes possible an inter- andmulti-disciplinary confrontation of the complexity of State Lawinthe perspective of its efficiency, andconstitutes a unified conceptual basis on which one can elaborate a scientific research program within the science of lawconceived as a social science and not only as an art of elaborating andinterpreting norms. This program integrated inthe framework of the enlarged object of study of legal science combines legal theoretical and empirical (principally sociological andeconomic) research, andserves as a guide forattaining a concrete general or particular project of justice (see above the definition of the

enlarged object ofstudy of legal science). Forexample, inorder to understand andexplain thesyllogism ofthe EECCourt of Justice inthe above-mentioned judgement delivered bythis Court inthe “ Continental case, itis necessary to have inmindtheconcrete project ofjustice which ought Can” to be attained bythe system of competition lawthat is the protection of a certain degree ofcompetition inthe common European market through defining whatconstitutes inthis concrete case an undertaking which abuses its dominant position inthe European common market (article 86 ofthe EECtreaty). The principal criterion ofthe existence of an undertaking-original legal subject acting and abusing its dominant position inthe European market is its decisional independence; that is the presence or the absence ofcontrol exercised byonecompany onanother. Froma cybernetic point ofview, the existence orabsence ofthis formofdependence maycorrespond to one orother ofthe following schemes: a) Aneconomic structure that is independent (from an economic ordecisional or managerial point of view) andmaybe recognized as an acting person (oran original

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subject) in lawbythe EEC (now EU)Court of Justice, is an autopoietic cybernetic system. Thus, a group ofenterprises, ofcompanies, ofsocieties, etc., maybe recognized as an original legal person when it has as a totality, i.e. as a global system, its economic andmanagerial independence, according tothefollowing cybernetic model:

(UA= undertaking A)that is dependent (from an A” b) Aneconomic structure “ (UB= undertakB” ordecisional ormanagerial point ofview) fromanother “ ingB) is notrecognized as anacting person (oranoriginal subject) inlawbythe EEC (nowEU)Court ofJustice. Inthis case, thecybernetic conception ofthis dependence

economic

may be as follows:

Socio-semiotic andsocio-cybernetic approaches

75

to legal regulation

Rb=receiver structures ofan undertaking B (UB) Alb=accumulating information structure of UB CDb=decision making andtaking center ofUB Mb=memory structure of UB Eb=executive structures of UB Ra=receiver structures of undertaking A(UA) CDa=decision-making anddecision-taking structure Ea=executive structures of UA

ofUA

The output of both systems-undertakings is received as part of the environmentmarket inputs.

Inthis case, only one global undertaking maybe recognized legal subject of the field of EEC (now EU) competition Law.

as a neworiginal

Nikolaos Intzessiloglou, Professor inthe Faculty ofLaw,andDeanofthe School ofLegal, Economic Political Sciences, Aristotelian University ofThessaloniki, Greece

and

Lorenz Kaehler

The indeterminacy of legal indeterminacy Whatexactly does itmeanthata particular question is notdetermined bythelaw? And what exactly is at issue if one says1 that an appellate court could have decided differently as it did? The mainthesis ofthe following paper is that these claims can have different meanings andthat some confusion in the current debate2 about the indeterminacy of lawis due to the fact that different concepts of indeterminacy are mixed up. If this thesis is correct than the concept of “ legal indeterminacy”is itself indeterminate or, at least, ambiguous.3 To demonstrate this thesis I will distinguish three kinds of indeterminacy and argue that these kinds donotdepend oneach other, i.e. that to say that the lawis indeterminate inonesense does notimply that itis indeterminate inanother sense as well. Furthermore, Iwilldiscuss some consequences ofthese distinctions andexplain whypositions like the thesis that there is always a right answer4 andthe thesis that appellate courts could frequently come to different decisions do not necessarily contradict each other. The purpose ofthe paper is very limited: I willnotanswer the question whether the lawingeneral orofa particular legal system is indeed indeterminate andwhether indeterminacy is a good orbadfeature ofthe law5. Furthermore, I

leave aside the question howone shall apply legal propositions to facts andwhether this application is legally determined. Rather, Iwilldealonlywiththeclaim thatthelaw does ordoes notdetermine a particular legal proposition.

I. Formal indeterminacy A particular legal proposition is legally indeterminate if it lacks a formal basis in the law, i.e. if there is no norm inthe constitution, statutes, precedents or another legal source the decision-maker can, at least, prima facie refer to.That sucha reference is ultimately justified is notnecessary forthe formal determination ofa legal proposition as long as there is a consistent interpretation bywhich a particular normjustifies the legal proposition under dispute. In this aspect “ formal indeterminacy”differs from “ substantial indeterminacy”meaning that the lawdoes not provide sufficient argu1

Cf. Heinrich Gerland, Probleme des englischen Rechtslebens, Leipzig 1929, p. 22; Martin Kriele, derRechtsgewinnung, p.53;Jeffrey A.Segal/Harold J. Spaeth, TheSupreme Court andthe

Theorie

2

3 4 5

Attitudinal Model, Cambridge et. al. See Jane B. Baron, The Politics

1993, p. 45. of Indeterminacy, 22 Cardozo L. Rev. 797 (2001); Günter

Frankenberg, Down by Law, in: Christian Joerges/David M. Trubek, Critical Legal Thought: An American-German Debate, Baden-Baden 1989, pp.315, 345; Katja Langenbucher, DasDezisionismusargument inderdeutschen undinderUS-amerikanischen Rechtstheorie, ARSP2002, pp.398; Russell Pannier, D’Amato, Kripke, and Legal Indeterminacy, 27 Wm. Mitchell L. Rev. 881 (2000); David Kennedy, Spring Break, 63 Tex. L. Rev. 1377, 1417 (1985); Mark Tushnet, Defending the Indeterminacy Thesis, 16 Quinnipiac L. Rev. 339 (1996). The ambiguity of “indeterminacy”is mentioned by David Kennedy, supra (note 2), p. 1422; Frankenberg supra (note 2), p. 348. Ronald Dworkin, Taking Rights Seriously, 7thed., London 1994, p. 279, came close tothis position. Theindeterminacy ofthelawis usually criticized. Butthere arearguments that indeterminacy canto a certain extent be useful, cf. Ehud Kamar, A Regulatory Competition Theory of Indeterminacy in Corporate Law, 98 Colum. L. Rev. 1908, 1919 (1998).

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ments to interpret a particular norm. The idea behind this distinction can best be explained bya Robinson-like example: Imagine that passengers fromdifferent countries andcultures become thevictims ofa shipwreck somewhere inthe Pacific Ocean andcome toanuninhabited small island. Theydonotknowwhether theycould travel home oneday.Therefore, they have toarrange their life onthe island. Todothatthey have to decide on many issues like who may use which land, whether the former property of each passenger shall remain his or her property or whether it shall be redistributed to people whose belongings were totally lost in the shipwreck, etc. Therefore, they organize a constitutional assembly like manyconstitutional theorists would wish. Butbecause ofthe difficult questions to decide uponandthe competing interests andconcepts of communal life the construction of the constitution willtake some time. Therefore, they decide to appoint a judge whoshall decide alldisputes in the mean time. Allthey can preliminarily agree upon are just twoprovisions that are the first norms in the new established legal system: (1) Alldisputes shall be decided by Judge Robin. (2) Judge Robin shall make his decisions according to justice. When we ask whether Judge Robin’s decisions are determined by the law it is worthwhile tonotice thatwhatever decision hemakes hecanrefer tonorm1 and2. In this aspect his position is different from the situation before the constitutional assemblyhadadopted the preliminary norms. For nowJudge Robin can always give the According tonorm2 Ishall make a just decision. Justice requires following reasoning: “ the proposition x because of y. Therefore the issue before me shall by lawbe decided inthe following way...” One maydisagree with himwhether a particular decision is just andis therefore ultimately legitimized bynorm2 butone can hardly deny that Robin mayrefer tothis normas long as he pretends that inhisconception ofjustice a particular proposition is legitimate. Thus, the norms 1 and 2 provide the formal determinacy ofhisdecisions. Whether his reasoning andthe conception ofjustice he prefers is determined by the lawor whether there is such a conception at all is a question of substantial indeterminacy. Insofar as he refers to norm2 he maysaythat he onlyapplies the lawanddoes notmake it, i.e. that he is onlythe officer ofthe law andnotits creator. Asvague as themere mentioning ofjustice innorm2 is itmayhelptodecide what kindofarguments Judge Robin shall offer inhisopinions. Forinstance, itmayhelpto argue against somebody claiming thatthe proper standard todecide is notjustice but the lawof the shipowner’s country, the previously existing international lawor some other legal system. Hopefully, the assembly will in the future make more detailed provisions but in the mean time Judge Robin is in a certain sense not a dictator because hisdecisions are (formally) authorized bynorm1 and2. This authorization is what I mean bya formal determination of legal propositions. It gives the judge the opportunity to refer inhis reasoning to a normthatjustifies, at least, at a first glance the legal propositions he needs to decide a case. Criticizing himfornoteven offering a formal basis for his decision (formal indeterminacy) is different from criticizing himfor notoffering a convincing interpretation ofthis norm(substantial indeterminacy).

II.Substantial indeterminacy

The second point that shall be noticed inthe example is that one hardly knows what reasons Judge Robin willgive forhisdecisions because thetwonorms donotdefine is, whatcounts as anargument fororagainst justice andhowa justice” whatexactly “ particular question shall therefore be decided. They leave itto thejudge. It might be

Theindeterminacy oflegal indeterminacy

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justice” disputed whether “ innorm2 is nothing butwhatJudge Robin thinks isjust (as sceptics could argue) or whether “ justice”refers to some objective or, at least, intersubjectively agreed upon moral standard (as moral realists andconstructivists would probably argue). Buteveninthe latter case the normative arguments necessary to decide a question are notdetermined bythe constitutional assembly’s explicit or justice” implicit agreement other than by reference to “ . IfJudge Robin, forinstance, decides to redistribute all personal belongings equally among the passengers and does notrespect theformer property hemight saythatthelegislator wanted himtodo justice andthat this is exactly whathe does. Buthecould only ina loose sense claim thatthelegislator wanted himtoredistribute thepersonal belongings. Forsubstantially the legislator didnotsay anything about the redistribution of property. Insofar the law is substantially indeterminate butonecould still argue thatthebest theory ofjustice is implied inthe lawandcompensates its indeterminacy. Before I look closer at this claim one crucial consequence of the distinction between formal andsubstantial indeterminacy shall be mentioned: As long as one or“determination”itdoes not does notexplain whatexactly one means by“intention” make sense to askwhether the legislator “really” intended a particular solution of a determines the outcome of a particular really” certain question or whether the law“ intention” and“determination” . They decision. There are just different concepts of “ could refer either to general notions like “ Dojustice!”orto more specific propositions Redistribute all property!” like “ . Thus, one can argue that the lawin our example provides a formal basis foralldisputs andis insofar formally determined andnevertheless one could deny that it does provide the necessary substantial arguments to decide them, i.e. that itis substantially determinate. Without anexplanation whatkind of intention ordetermination one means it is hardly possible to answer the question whether a particular legal proposition is inaccordance withthe legislator’s intent. Thesubstantial arguments necessary to decide disputes canbe different inkind. Judge Robin could, forinstance, come upwitha detailed theory ofjustice, askwhat thepassengers hadinmindwhentheywere sitting intheassembly orwhatthey now would like himtodo.These arguments maynotdiffer fromthearguments thecourts of the current legal systems use in their everyday decision-making. Andyet in one aspect Judge Robin is ina radically different position than the judges inthese legal systems: He can neither use arguments mentioned in precedents or in the legal discourse outside the court nordrawan analogy to a similar question decided in a particular statute. Forthere are no precedents and no other statutes. If there were such arguments and if these arguments would by virtue of statutory or judicial authority be part of the law than he could claim that the law provides not only the formal basis of his “ just” decision butthe substantial arguments forthe determination ofwhatjustice requires. Inthis case theclaim, forinstance, thatthe legislator didnot wantto redistribute property butrather wanted todecide that issue intheconstitution would be an argument against redistribution not only because it might in itself be convincing butalso because theintent ofthelegislator wasusedas anlegal argument before. The difference between Judge Robin’s situation inwhich there are noacceptedlegal arguments andanestablished legal system is that inthe latter theclaim that an argument is accepted as a legal argument can have an independent weight besides the fact that it is in itself a plausible argument. This is not only true of precedents that give a decision anauthority independently of its content6 butalso of other arguments for which one maintains the establishment in the legal discourse. Onecan, therefore, distinguish between substantial arguments that necessarily de-

6

Cf. Larry Alexander, Constrained byPrecedent, 69 California LawReview 1, 6 (1989).

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Lorenz Kaehler

pendonwhether they were previously accepted inthe legal discourse (” legal argu) and arguments that depend only on whether they are ments in a narrow sense” legal intrinsically sound, that is independently of their previous usage plausible (” ). Thefirst kindofarguments provide the determinacy by arguments ina broad sense” tradition, the second kindthe determinacy byreference. Ifthere are onlyarguments independent ofthe legal tradition the situation would beexactly thesame as ifthere were noconstitutional assembly andnolawatall.The claim thata proposition is required bylawwould nothing addtotheclaim thatthere are goodmoral orpolitical arguments forit.Furthermore, theopinion whatthelawrequires would totally depend onone’s moral andpolitical position. Because ofthe disagreementinmoral andpolitical matters sucha kindofsubstantial determinacy iscompletelydifferent fromthe claim that there is some text ora tradition that independently on the varying moral andpolitical positions determines a legal proposition. These difficulties ofdeterminacy byreference disappear at a first glance, whena legal tradition is established. Thenjudges can, at least, sometimes refer topreviously used andaccepted arguments. Butstill the problem remains that there is hardly an agreement on what these accepted legal arguments are andinwhich situation one mayuse them. For instance, Judge Robin maydecide nine times that a passenger having lost everything intheshipwreck cannot claim belongings fromtheother people. But still in the tenth similar case there may be a dispute about the outcome. A passenger whoargued andwonas a lawyer these cases would, probably, saythat Judge Robin has nowevery argument he needs for the current decision (and that eventheargument that hemayrefer totheprevious decisions is wellestablished). So inhis opinion the question is substantially determined byarguments inthe previous legal discourse. Other shipwrecked passengers wholost their belongings can disagree. They could take on a sceptical position and deny both the possibility to deterjustice” requires andthe relevance ofthe previous cases. Therefore, the mine what“ disputed question would intheir opinion be as substantially indetermined as before andJudge Robin could even after nine decisions throw a dice inorder to decide. A moral philosopher whois sceptical about the lawyer’s useofarguments butoptimistic about the possibilities of moral philosophy could instead argue that as in the first decision the lawis determined bythe best theory of justice andthat (t)his theory requires theequal distribution ofallbelongings. So hewould askthejudge tooverrule theprecedents. Therefore, thedisagreement about thequestion whether andhowthe issue is substantially determined would still remain. The sceptic denies that before Judge Robin has made a decision one could say what the “right answer” would be. Whatever the judge decides is correct as long as it is in his opinion what justice requires. Themoral philosopher andthe lawyer mayagree thatthere is a right answer to the question under dispute butthey disagree on which answer it is. The former argues that itis irrelevant whether a certain argument wasestablished inthe previous legal discourse while the latter argues that itisthis discourse that nowdetermines the correct decision. Their dispute is about determinacy byreference versus determinacy by tradition. As mentioned before, I will not argue for one of these positions. Instead, I will highlight onlythree features ofthe dispute. First, indeciding different questions Judge Robin cantake ondifferent positions. So he canargue that the redistribution-issue is nowdecided bythe legal discourse andat the same time saythat the question who mayusewhich landmuststill be answered according tothe most plausible theory of justice. Whenthese issues come upinthe same case he could consistently decide partly bythe best theory ofjustice about a certain issue andpartly byreference tothe already established arguments. Therefore, thesituation ofJudge Robin is comparable

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Theindeterminacy oflegal indeterminacy

tothe situation ofanordinary judge ina modern legal system. Inthe latter there are certainly more thantwonorms andit is less obvious that the substantial determinacy ofa decision depends, at least, partly onthe use ofarguments notdetermined byits formal basis. Thediscretion duetothe reference toconcepts like justice is usually less obvious than in norm 2. But such a reference is unavoidable as soon as vague concepts are used andas soon as contradicting rules andprinciples are accepted. Second, the more cases Judge Robin decides the more difficult it might become to decide according to the established arguments inthe previous discourse. Foronthe one hand, the more opinions he gives the more arguments he willuse andthe less newsituations emerge. Therefore, thetenth decision might beeasier toreach thenthe first one. Butonthe other hand, the general arguments that were used over a long period of time and in different cases might contradict each other, at least, in some aspect so that there will be good arguments on both sides. Therefore, the 50th decision might be more difficult than the 10th. If there are competing arguments equally wellfounded inthe legal discourse Judge Robin cannotjust refer to some of thembuthas tojustify whyhe prefers one argument overthe other. The reason for legal indeterminacy is thenthat there aretoomuchlegal arguments andnottooless. Themore substantial arguments andvague concepts a legal system entails the more . legal argument” difficult it becomes to exclude an argument because it is not a “ Consequently, even if we knowwhat the right answer is there is almost always a wrong answer that canbe presented as required bylaw. Thethird point to notice is that unless one explains whatone means bythe “right the question whether there is a right legal answer for a particular dispute answer” might leadtosome confusion. Foronecanconsistently denythatthe legal discourse provides the necessary arguments, thereby maintain that the law is substantially indeterminate andstill offer arguments whyonethinks a particular decision is required bynorm2. Themoral philosopher proud ofthe reference tojustice maynotcare about thecontradictions inthedaily legal discourse. Andalljudges andscholars might even agree uponwhatthe most persuasive answer to a certain question is. Therefore, to criticize the claim that statutes and precedents would determine a particular issue does not imply that one is sceptical about the possibility rationally to argue for a particular solution. It is just to say that there is no specific legal character of the relevant arguments. Because of the reference to “ justice”in norm 2 one could nevertheless claim that it is notjust one’s owntheory butalso the lawthat provides a certain answer (= substantial determinacy byreference). Butthis would mean something different thanthe position that each piece ofone’s argument wasdetermined by the legal tradition andnocounter-argument would legally be possible (= substantial determinacy bytradition). III. Factual indeterminacy

The positions so far discussed were all normative in kind, i.e. they concerned the question howJudge Robin shall decide a case andwhatarguments hemayuseforhis decision. Another question is howhe willdecide infact.7 Interestingly, the answer to this question does notnecessarily depend onwhether wethink a particular question is formally orsubstantially determined bynorm1 an2 andthe emerging legal tradition ontheisland. Certainly, onemight saythatbecause ofthevagueness ofnorm2 wedo 7

Cf. Frankenberg’s distinction between indeterminacy because of“rule scepticism”andindetermina/ the unruly legal practice” 347. cy because of“ the unruly social world” , supra (note 2), p. 346– ”

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notknowhowJudge Robin willdecide a particular issue. But, maybe, wecandothat just because weknowfromwhich country Judge Robin originally comes, howhewas brought up,whether he lost all his belongings or what the dominating views inthe community or among the lawyers are. I will notdiscuss whether such predictions on the basis offactors like revealed attitudes are possible andwhether the lawis inthis sense determinate ornot.8 Itis sufficient tonotice twopoints: First, toknowhowJudge Robin will decide it is not necessarily to claim that one knows the correct legal answer.9 This is because the reasons whyone can make such a prediction maybe different fromthe reasons a judge hastogive forhisdecision. Generally, toknowhow the judges will decide in fact and how they usually look at certain issues (empirical determinacy) does notexclude that bylawthey could as well decide the other way

around.10 Asmentioned before, itis crucially important to specify whatone means by “ could decide” . If all it means is that the legal tradition does not provide sufficient certainty because it entails competing principles andarguments then one could still argue that a judge would, probably, decide in a certain waybecause of his or her political preferences. Explicit andimplicit overruling decisions illustrate the distinction between factual andsubstantial indeterminacy. Suchdecisions are usually rare andonecould, therefore, predict withconsiderable probability that the court willfollow its precedents. But this does notexclude the opportunity to refer to notions ofjustice orgeneral principles andto present a newtheory as the already existing law.Tosaythat overruling is and

should begenerally anexception does notcontradict thethesis thatthere exist ineach particular case previously accepted techniques for it. Such arguments are, for instance, that a statute means something different as previously thought or that a particular precedent is against “ common sense” .11Whether ornottheyare useddoes not completely depend on what was done before but on the conception of the lawthe judge prefers. Thetechniques ofoverruling determine this conception inthesame way as norm2 determines the decision ofJudge Robin. Formally, onecould always claim that itis just the lawthat demands tooverrule orfollow a precedent. Butsubstantially justice”or similar vague the issue is resolved only by virtue of the reference to “ concepts. To predict that overruling will rarely occur does notmeanthat it is legally almost always impossible. Second, as factual determinacy does notexclude substantial indeterminacy, a decision can, vice versa, be substantially determined andstill be factually indeterminate. For even if there is a right answer to each legal question and even if it is determined by the previously accepted legal arguments nobody guarantees that Judge Robin willcome to this answer. Hisdecision does, obviously, notdepend on whatonethinks the best argument would be. Forifoneknows thepersonality ofJudge Robin andhis political preferences one mayexpect himmaking a decision that is by one’s ownstandards wrong. Thus, the critique about the reality of the legal process and the political factors that might or might not influence it does not necessarily depend onthe question whether the lawis formally orsubstantially indeterminate. If

8 Forthe discussion of empirical determinacy see Segal/Spaeth, supra (note 1), pp.30; DanHunter, 1217 (2001). Reason is too Large: Analogy andPrecedent inLaw,50 Emory L.J. 1197, 1215– 9 Butsee thefamous dictum ofOliver W.Holmes, ThePathoftheLaw,Bedford, p.6, “thata legal duty so called is nothing buta prediction that if a mandoes oromits certain things he willbe made to suffer in this or that way by judgment of the court” .

10 PaulKahn, TheCultural Study ofLaw,Chicago 1992, p.54, forinstance, argues that DredScott (a . butnotbecause the lawdoes notpermit it” decision allowing slavery) willnotbe repeated, “ 11 For a more detailed discussion see Kaehler, Strukturen und Methoden der Rechtsprechungsänderung, Baden-Baden 2004, pp. 80, 199.

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oneisinterested intherelationship between thelawinaction andpolitics onedoes not need a lesson inmoral theory or inlegal reasoning butrather an analysis about the reality inthecourts. This reality also depends onwhatresources thejudges mayuse, what time they have for their decision, whether there are personal conflicts and informal hierarchies among them, etc. None ofthese factors is usually accepted as a “ legal argument” . But they mayjust explain whyone could empirically predict the outcome of a case. Therefore, it is certainly useful to look whattechniques of legal reasoning the courts use andwhether gaps andcontradictions inthe legal tradition could provide justifications forpolitically motivated arguments. Buttheopportunities of legal reasoning are not conclusive for such an analysis about the reality of the legal standards” one maystill decision-making process. Foreven ifthere are these “ maintain that the majority ofthe court will, probably, make a decision that is bythese standards wrong orthat the majority could, at least, get away with such a decision. Whatever thejudges decide might infact beaccepted as thelawandthelegal system might insofar be factually indeterminate. This kindof indeterminacy does notexclude a theory whythe judges shall decide in a particular wayandwhythis wayis best supported bythe legal tradition. Theclaim that the court could decide the other way around is then nota normative argument about theformal orsubstantial indeterminacyofthe lawbuta judgment about the reality ofthe legal discourse. Onecancriticize itwithout denying that the legal system provides the formal oreven substantial basis fora particular decision. IV.Consequences andConclusion

Asshall beclear bynow,there are manyways inwhich thelawcanbe indeterminate and the described distinctions are by no means conclusive. Therefore claims that there is always a right answer andthat a court could have decided the other way around donotnecessarily contradict each other. Italldepends onhowconcepts like “ indeterminacy” ,“ correct answer” or“required bylaw” are used. Thedistinctions between theseveral kinds ofindeterminacy are important notjust in order to know what a particular claim is about. They also reveal an interesting feature ofmanylegal theories thatcompensate thepessimism about legal determinacyinonesense byanoptimism about legal determinacy inanother sense. So Kelsen, forinstance, was rather sceptical about the substantial determinacy of legal propositions while he was optimistic about the formal determinacy ofjudicial decisions.12 He thought that thejudge hasfrequently great discretion inthe subject matter butdidnot doubt that the lawwould definitely authorize himtodecide.13 Some political scientists like Segal andSpaeth denythe influence of“ legal factors” inthedecision-making so that judicial decisions would be legally indeterminate butargue that these decisions are to a great extent determined by political attitudes.14 Dworkin has expressed doubts about the possibility of a pedigree-test of each legal proposition so that the formal determinacy of the lawwould become questionable butargued that there is almost always a right answer15 whatis, as I understand it,a claim about the substantialdeterminacy ofthe law.Alexy denies thelatter kindofdeterminacy bysaying that it 351. 12 Hans Kelsen, Reine Rechtslehre, 2nd ed., Wien 1967, pp. 347– 13 Id. 14 Segal/Spaeth, supra (note 1), pp. 30, 255, 363.

15

Dworkin, supra (note

4), pp.17, 279.

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isfrequently notpossible todecide whatthecorrect solution would be16andargues at the same time forthe procedural determination of legal questions.17 So while theyall maintain theindeterminacy oflawinonesense theystill claim thatthelawisinanother sense determinate. Hardly anybody denies allkinds oflegal determinacy. Scepticism is notthe issue. Furthermore, the distinctions between the several kinds of indeterminacy might helpto explain whyprinciples andbalancing tests are so widely used bythe courts. First, judges canclaim that principles have a basis inthe constitution ortradition ora code (formal determinacy). Second, they could maintain that the best theory about equality, the compensation of damage andsimilar concepts determine a right legal answer to each question (substantial determinacy by reference). Third, they could argue that the outcome of most of their decisions is hardly surprising (empirical determinacy). Indeed, considering the decision-making process inthe current courts one can to a certain extent be sure howthe judges will use these principles infact. Being elected by Parliament or appointed by the government and having decided similar issues thejudges willnotinterpret a Western constitution ina socialist way.18 Thus, principles help to present the lawas determinate. But nevertheless they are tools that can help to transfer ones’political and moral arguments into legal ones (determinacy byreference). Insofar principles playthe same role as “ justice” innorm 2. The shipwrecked passengers should, therefore, adopt more detailed provisions because, after all, they can hardly be sure of howJudge Robin decides. Andeven if theyare, itis notbecause theypreviously adopted norms 1 and2. Whether ornothis decision is determined bythe lawdepends on what concept of indeterminacy one refers to. Fortheconcept ofindeterminacy is itself indeterminate. Dr.Lorenz Kaehler, LawFaculty, Georg-August-Universitaet Goettingen, Platz derGoettinger Sieben Nr. 6, D-37073 Goettingen

16 17

18

Robert Alexy, Theorie derjuristischen Argumentation, Frankfurt amMain 1983, p.339. Id. pp. 259 But as Mark Tushnet, Following the Rules Laid Down: A Critique of Interpretivism and Neutral Principles, 96 Harv. L. Rev. 781, 823 (1983) argues this is not to say that there are no legal arguments

forsuch an interpretation.

Matthias Mahlmann

Kant’s Conception of Practical Reason andthe Prospects of Mentalism Kant’s conception of practical reason forms a landmark in the history of moral philosophy. There are three attitudes towards this body of thought that each in its particular wayunderlines the special status of Kant’s workas a core reference point forethical explorations. First, there are the thinkers that denounce it as a profoundly erroneous attempt to understand what ethics is really about. In this category fall contextualists or particularists who think that anything like the abstract rules of the categorical imperative can do nothing but miss the core of ethics. The second category acknowledges some merits of Kant’s ethics butdisagrees with its central tenets. Hegel is certainly a good example for this attitude. One of his first major writings criticised theformalism ofKant’ s ethics andprepared theground forhisown doctrine of objective Sittlichkeit, opposed to the subjective Kantian ethics of ought.1 Despite this criticism Hegel was conscious of the cultural importance of Kant’s sometimes derided concept of duty.2 Inthis group one might also rankthe classical arguments of Adorno and Horkheimer whoacknowledge the importance of Kant’s thought butfeelthat Kant’s ethics as a central part ofthethought oftheenlightenment does notescape its dialectic: the critic of mythology becomes itself a mythology ina newform.3 In contemporary literature Habermas can serve as an example of this second group ofwriters. Hisdiscourse ethics is deeply indebted to Kant’s ethics, for example in respect to the idea of universalisation by the discourse principle or its formalism. Nevertheless Habermas discerns fundamental flaws inKant’s theory, most importantly the so-called monological structure of his ethics: The idea that moral judgement is something done by an individual on her own. Habermas in contrast prefers a viewwere theprocess ofuniversalisation is something actually happening in the opensocial space ofdeliberative practises.4 The third group has the most positive attitude towards Kant’s ethics. This is of course true forthe traditional Kantians whojust agree with the general outline and content of his work. This is true as well forthe influential workof Rawls that is very muchinspired byKant’s ethics. This becomes veryclear inhis Lectures onthehistory of moral philosophy where Kant is taken as the best example in the history of thought to illustrate what practical reason is about –in contrast, for example to Hume’s psychological account of ethics: The core verdict of Rawls about Hume is that he unlike Kant was lacking a concept of practical reason.5 The central quality of Kant’ s doctrine that renders it in comparison so attractive is its principle andconception dependent constructivism: Ethical maxims are constructed inRawls viewonthebasis ofspecial conceptions ofhuman existence thatprovide principles thatinturnjudge our desires anddetermine whether it is moral to pursue themornot.6

1 2 3

4 5 6

G.W.F. Hegel, Überdiewissenschaftlichen

Behandlungsarten des Naturrechts, seine Stelle inder praktischen Philosophie undsein Verhältnis zudenpositiven Rechtswissenschaften, 1802/03. G. W. F. Hegel, Grundlinien der Philosophie des Rechts, 1821, § 133 Zusatz. M. Horkheimer/T.W. Adorno, Die Dialektik der Aufklärung, 1969. J. Habermas, Faktizität undGeltung, 1992. J. Rawls, Lectures on the History of Moral Philosophy, 2000, p. 50, 96pp. Ibid. p. 36, 46, 47 Fn 3, 148, 213, 305, 308. Cf. M. Mahlmann/J. Mikhail, The Liberalism of Freedom in the History of Moral Philosophy, ARSP 2003, p. 122pp.

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Thefollowing remarks willbeverysympathetic totheviews expressed inthis third group butondifferent grounds like the traditional Kantians or Rawls. They willtryto reconstruct some core tenets of Kant’s doctrine andattempt to indicate what is truly impressive inthis philosophy. Thensome criticisms willfollow that wantto illustrate a simple thesis: Thebest waytocontinue the project ofenlightened practical reason, to preserve the analytical insights of Kant’s work, to keep the humanist spirit of its material content, sometimes explicit, sometimes to be read between the lines, is to pursue a mentalist theory of ethics andlaw.7 This theory is notdirectly Kantian inits outline andshape andaims notat borrowing anyplausibility fromKant’s authority. But itmight be as Kantian as anything canbe given thefindings ofmodern theories ofthe human mind.

1. Kant’s Concept of Practical Reason

a) Ethical Formalism, the pursuit ofhappiness andthe spirit ofhumanity Oneofthe most discussed aspects of Kant’s ethics is its formalism. Thecategorical imperative has noother content thanthe demand that anymaxim ofa subjective will has to be universalizable.8 With this theoretical move Kant aims at assuring the autonomy ofthe human will. Inhisviewanycontent ofa moral maxim would make the will heteronomously determined. The will would become dependent on the aimof achieving this content andwould notbe motivated anymore bymorality alone. The doctrine Kant is implicitly andexplicitly rejecting here is onethat bases moral judgeare ment onthe aspiration of happiness, inLocke’s classical formulation that things “ good or evil, only in reference to pleasure or pain” .9 If something like the human interest in happiness forms the basis of moral judgement the autonomy of the will would disappear: itwould become a slave tothe pursuit ofhappiness. This is another core tenet ofKant’s ethical philosophy. Kanthasa goodargument forthedistinctness of moral commands and the commands of the interest in happiness: He rightly observes that wedonotjudge everything that fosters ourhappiness to be moral, but, tothe contrary, that wecanonlyaspire tothose object ofourdesires that are morally legitimate.10 The lust forpower, forexample, the pleasure to rule of Macbeth makes the murder of Duncan not morally justifiable. The reason is clear enough: morality says ifatallandwithwhatmeans thesatisfaction ofcertain desires canbelegitimately pursued. This observation is unrelated to Kant’s argument for formalism from the necessity to preserve autonomy andmerits veryclose attention.

It is worth noting that the relation of happiness and morality is intricate in Kant’s doctrine. Kant is bynowaya drymoralist denying the legitimacy ofhumans’desires forhappiness –a critique famously formulated bySchiller. Tothecontrary heasserts explicitly that happiness is the natural aimof human beings even in the eyes of practical reason itself.11 Oneofthetwoduties ofhuman beings is the promotion ofthe happiness of others.12 His doctrine of God’s existence itself is based on the will to 7 8 9 10 11 12

Compare foranoverview: M.Mahlmann, TheCognitive Foundations ofLaw,in:H.Rottleuthner, The Foundations of Law, 2005. I. Kant, Kritik derpraktischen Vernunft, Akademie Ausgabe Bd.V.p.27. J. Locke, AnEssay Concerning Human Understanding, BookII,Chapter XX,§ 2. Cf.forthemodern non-cognitivist heirs to this kindofethics, P. Foot, Natural Goodness, 2001, p. 6pp. I.Kant, DieReligion innerhalb derGrenzen derbloßen Vernunft, Akademie Ausgabe Bd.VI,p.3 Fn. I. Kant, Kritik derpraktischen Vernunft, Akademie Ausgabe Bd.V,p. 110. I. Kant, Die Metaphysik der Sitten, Akademie Ausgabe Bd. VI, p. 385p.

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assure human beings’happiness: Onlyifonepostulates God’s existence thecongruence of moral acting andhappiness willbe achieved given the injustice ofthe world where moral acting leads often toquite different states ofaffairs thanhappiness ofthe moral actor.13 Morality famously forms the condition oftheworthiness ofhappiness of human beings: again the moral lawis taken as an aimin itself butone that is not pleasure denying in an absolute sense but rather opens doors to a very distinct contentness.14 It is worth noting inthis context that inKant’s viewmoral acting itself canyield a certain pleasure butthis pleasure is the consequence notthe reason for moral acting. This reason lies inthedemands ofmorality alone.15 Ormore precisely: it is the effect of acting according to the feeling of respect forthe moral law, as this respect is thecentral basis formoral motivation inKant’s view. Again, this seems tobe a fine andaccurate observation: There is some contentment to be found in moral behaviour but behaviour ceases to be moral if pleasure as such without regard to morality is the reason foracting. Forsure, say, Sophie Scholl derived some austere contentment (amongst dominant desperation, I suppose) from resisting the Nazi barbarism. But would we think it to be moral if she didwhat she didto safe herself from

thefuture consequences ofa lost war,orjust tofeel goodandnotforthesake ofthe concern forthe suffering ofothers? Theformalism ofKant’s ethics is a classic object ofattacks andthepoint hasbeen made bymanyothers since Hegel’s classical formulation of it16–Horkheimer/Adorno among them17 –and the problem implied is real enough. Universalisation alone provides fornomaterial ethics inanyplausible form. According tothetest ofuniversalityanymaxim canbe moral depending onthe make-up oftheagents concerned –ina world ofDeSadean sado-masochists cruelty forexample is certainly universalizable. Things become morecomplicated though, ifoneregards another characteristic of the categorical imperative. To a certain degree the description of the categorical imperative as formal is misleading as Kant provides for what he calls a material version.18 This is theformula of human beings as ends inthemselves notto be used merely as means for other purposes. This formula is perhaps the real core of the categorical imperative. The demand of universalisation makes only sense if every human being counts morally –ifanyindividual orgroup ofindividuals does notcount, there is noreason toinclude itinmoral deliberation. Thatevery human being is anend initself isconsequently theprecondition foruniversalisation. Isthis material version of the categorical imperative immune against the critique offormalism? Onecanargue that this is notthe case as inthis formula it is notspecified whatthe material aims of human life are thatforms anendinitself. Again a cruel community ofsado-masochists could be reconciled withhuman beings regarded as ends inthemselves, ifthis is what human beings wishto enjoy. 13 I. Kant,

14

15

16

17

18

Kritik der reinen Vernunft, Akademie Ausgabe Bd. III, p. 523pp; Kritik der praktischen Vernunft, Akademie Ausgabe Bd.V,p. 110pp. I. Kant, Kritik der reinen Vernunft, Akademie Ausgabe, Bd. III, p. 525pp; Grundlegung zurMetaphysik der Sitten, Akademie Ausgabe, Bd. IV, p. 450. I. Kant, Metaphysik derSitten, Akademie Ausgabe, Bd. VI, p. 399 where he explains that moral feeling as a formofpleasure is theconsequence ofthe moral law,notits reason: “Alle Bestimmung derWillkür abergeht vonderVorstellung dermöglichen Handlung durch das Gefühl derLustoder Unlust, an ihroder ihrer Wirkung ein Interesse zunehmen, zurThat; woderästhetische Zustand (derAfficierung des inneren Sinnes) nunentweder einpathologisches odermoralisches Gefühl ist. –Das erstere ist dasjenige Gefühl, welches vorder Vorstellung des Gesetzes vorhergeht, das letztere, wasnuraufdiese folgen kann” . Compare above Fn. 1. Compare above Fn 3. I. Kant, DieGrundlegung derMetaphysik derSitten, Akademie Ausgabe Bd.IV,p.436.

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This argumentation, however, misses the central point: Kant’s ethics is notonly about hisfamous three formulas ofthe categorical imperative. Kant’s ethics consists ofthematerial statements hemakes as well–andtheyindicate veryclearly which kind of material vision of humanity he had in mind. Kant is rightly criticised for some remarks onthe status ofwomen,19 servants20 ordifferences of ethnic groups.21 Here as inother famous examples like thedefence ofthedeath penalty wecertainly cannot learn anything fromKant. Buttheprofile ofhisethics itself is thebest basis tocriticise these unconvincing statements. Kantrebels against thedegradation ofhuman beings inwarforthe idle pursuit ofvain motives of rulers,22 the warof nations instead ofthe association of states to achieve perpetual peace,23 the inhumanity of colonisation,24 against despotism andhuman serfdom,25 against intellectual submission under religious prejudice26 andforthe right of human beings to unfold their humanity. Itseems that only if one overlooks this vision of human life one can entertain the idea that Kant’s ethics canbe shelved as uninteresting because of its empty formalism.

b)Apriori Metaphysics andthefreedom ofthe homonoumenon The moral lawis forKant a lawa priori. It is notdeduced from human needs or–as mentioned –their demands for pleasure. It is a categorical, not a hypothetical imperative. It is not predicated on the achievement of an aim beyond the moral

command itself. It is part of metaphysics of morals. The concept of metaphysics is far from clear. Kant himself defines metaphysics as a “ system of knowledge a apriori .27Morality is connected withfreedom: ForKantfreedom derived fromconcepts alone” is unthinkable without a law. The idea of unrestrained freedom seems to hima contradiction in terms. Thus, he concludes that the moral law is for the realm of freedom what causality is for the external world: it gives this world its order and governing law.28 Freedom is forKantthe core property of maninitself. Agooddealof the Critique of Pure Reason is dedicated to the proof of the possibility of freedom but gives nopositive reason forcertain knowledge of its existence. The moral lawserves this central function in Kant’s philosophy. Morality is the only way to understand something about the homo noumenon, maninitself beyond the homo phenomenon that is –as anyother appearance –constructed bythe concepts of reason. Itis the ratio cognoscendi ofhuman freedom: Asweexperience a moral ought wecanbesure offreedom.29 Amoral ought makes namely onlysense ifonecanactotherwise though being under its command –it is thus nota determination of the will buta resistible influence that presupposes freedom. This ought is motivating without referring to any secular or religious authority just byits ownpower.

19 I. Kant, DieMetaphysik derSitten, Akademie Ausgabe Bd.VI,p.314. 20 Ibid. 21 I. Kant, Vorlesungen über Anthropologie, Akademie Ausgabe Bd. XXV, p. 1187. 22 I. Kant, Der Streit der Fakultäten, Akademie Ausgabe Bd. VII, p. 89. 23 I. Kant, Zumewigen Frieden, Akademie Ausgabe Bd.VIII, p.341pp. 24 Ibid. p. 358. 25 I. Kant, DieReligion innerhalb derGrenzen derbloßen Vernunft, Akademie Ausgabe Bd.VI,p.34 Fn. 26 I. Kant, Die Religion innerhalb der Grenzen der bloßen Vernunft, Akademie Ausgabe Bd. VI, p. 149pp.

27 I. Kant, Die Metaphysik derSitten, Akademie Ausgabe, Bd. VI, p. 216 “ System derErkenntnis a priori aus bloßen Begriffen” . 28 I. Kant, Grundlegung zurMetaphysik derSitten, Akademie Ausgabe Bd.IV,p.446. 29 I. Kant, Kritik derpraktischen Vernunft, Akdademie Ausgabe Bd.V,p.4 Fn.

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c) Thefact ofreason doctrine andKant’s moral psychology Oneofthe mostcontentious aspects ofKant’s practical philosophy concerns thefinal basis ofthe moral law. Famously, heholds inthe Critique ofPractical Reason thatthe moral lawis nothing buta fact ofreason –its existence is given andindubitable dueto its effects onthe human will.30 Fromthe papers ofKant’s Nachlass itis clear that Kant tried tofindanother basis ofthe moral law. Hewanted tofound itina comparable way as theconcepts oftheoretical reason bya transcendental deduction. Hemadevarious

attempts inthis direction butconcluded evidently that none ofthe arguments would be conclusive. Hethus ended upwiththeapparently weakest foundation a moral lawcan have –he asserted its existence as a fact of reason.31 Hequalifies his statement by saying that this fact is notan empirical fact butone of reason itself. Butit is notquite clear what a non-empirical fact possibly could be. Beckthus called the passages on the fact of reason “ famous butobscure” .32 There are different approaches bycommentators to this fact of reason doctrine. Some take itsimply as the collapse of Kant’s ethical system showing that there is no convincing basis ofthe moral lawas the reference to fact is simply nota reason for anything but smells of sheer dogmatism.33 Others attempt to interpret the fact of reason doctrine ina waythat itbecomes notwhatitseems tobe: anassertion offacts instead ofmoral reasoning. O.O’Neill andRawls belong tothis group, Ithink.34 Athird group takes the fact of reason doctrine as an untenable account of the basis of the moral lawbut argue that Kant in other places –especially in the Groundworks – provide a better andperhaps even conclusive foundation ofthe moral law.35 Inthese remarks the fact of reason doctrine willbe respected muchmore than is usually the case. To start with: There seems to be noconvincing wayaround the fact that Kant assumes: Whatever the explanations are –morality as a normative order emanating ofthe human conscience is clearly part ofhuman existence. Secondly, acceptance of facts is notan absurd move fora theory even if one does not knowthe reasons for these facts. There are many facts in the world that are of great interest for moral philosophers without there being anyknown reason whythese facts have to exist and not something else. To take an example: There is no known reason whyhuman beings should notlike slavery. Itjust happens to be the case that human beings are apparently constituted ina waythatserfdom does notincrease their bliss. This is nota necessary truth about an organism. It is notan analytical statement. Itseems to be quite different forexample forother beings like dogs orworms. Nevertheless this fact of human nature is very relevant for moral philosophy. Itseems actually tobe a core virtue fora scientist totrust hereyes evenifthere is no explanation at hand for the existence of a phenomenon. This attitude actually seems to one of the most important forscience. Perhaps Kant has to be credited to have done that –to have tried to deduce morality, being honest enough to acknowl-

30

Ibid.

p. 31.

31 D. Henrich, DerBegriff dersittlichen

Einsicht undKants Lehre vomFaktum derVernunft, in: Die imneueren Denken, Festschrift fürGadamer, 1960, p. 110pp; D.Henrich, Die Deduktion des Sittengesetzes. Über die Gründe der Dunkelheit des letzten Abschnittes von Grundlegung derMetaphysik derSitten” Kants “ in:Denken imSchatten des Nihilismus, Festschrift

Gegenwart derGriechen

fürW. Weischedel, 1975, p. 111p.

32 L.Beck, Acommentary onKant’s Critique of Practical Reason, 1960, p. 167. 33 R. Bittner, Moralisches Gebot oder Autonomie, 1983, Nr. 97–101. 34 O. O’Neill, Autonomy and the Fact of Reason, in: Höffe (Hrsg.), Kritik der praktischen

2002, p. 81pp. J. Rawls, Lectures on the History of Moral philosophy, 2000, p. 253pp. 35 This is howA. Wood, Kant’s ethical thought, 1999, p. 171 seems to proceed.

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edge tohavefailed andtohave continued tohavetrusted hisexperience thatmorality is a reality inhuman life. Itdoes notseemthat weare today muchfurther advanced thanhewas.There have beenmanytheories ofmorality butitdoes notseemthatany ofthemhas provided anything remotely as explanatory powerful as saychemistry for the understanding of molecules. Still, nobody can sensibly doubt that morality is a anyshort viewoutofthewindow oftheivory tower willshowthe reality inhuman life – opposite. There is one wayof interpreting the fact of reason doctrine that is not often proposed –namely tointerpret itpsychologically. Thenitloses muchofits mysterious status andbecomes an empirical hypothesis about human moral cognition. Itturns into the proposition that human beings judge morally according tothe principles that are expressed bythe categorical imperative andthat these judgements intrinsically motivate themforaction. There is, however, oneproblem withthis interpretation. Kant himself rejects it. Hehas explicitly in various works, including the Critique of Pure Reason andthe Critique of Practical Reason criticised the idea that anyconcept of reason andmore concretely the moral lawcould be based onthe mental nature of human beings.36 This is a very important point forhim. Inhisview, anypsychological foundation ofthe moral lawwould deprive itfromits necessity andthus fromits main property, itscategorical character. Thereason forhisdiscussion is clear enough. Main authors of the Enlightenment relied onthe idea of an inborn human faculty of moral judgement, e.g. Hutcheson andthe later HumeandKantwanted to make very clear that hedisagreed withthem.37 Atthis point a certain inconsistency in Kant’s doctrine might become visible. In manyplaces hedevelops namely something whatis without doubt a moral psychology.This isforexample true fortheremarks intheMetaphysics ofMorals whenhetalks about the preconditions of the receptivity of the human mind to concepts of duty.38 He singles out moral feeling, conscience, love for humanity andrespect forthe lawas suchconditions. Heexplicitly treats themas subjective conditions ofmorality andthus as psychological facts.

d) Construction Kant once countered the criticism of a reviewer whocriticised that Kant formulated onlya newformula butnonewprinciple that this is whatis to be expected frommoral philosophy andthat it is erroneous to think that humanity is completely ignorant of whatis morally obligatory andthat moral philosophers have toinvent itanew.39 This is quite true andraises the question ofthe worth of moral formulas ifthis worth consists notinnewmaterial principles ofmorality. Thecategorical imperative is often interpretedas a testing device.40 Itserves as a means to ascertain the morality ofanaction. Suchtesting device rightly implies that notevery moral decision is immediately clear. Concrete situations canbeverycomplex anda formula like thecategorical imperative might help to clarify the issues involved and aid to give an consistent answer, especially, as indicated above, if one keeps Kant’s material concept of humanity in mind. Here lies the truth of Kantian constructivism: Whatever the basis of moral 36 I. Kant, Kritik der reinen Vernunft, Akademie Ausgabe, Bd. III, p. 128p; Grundlegung der Metaphysik derSitten, Akademie Ausgabe, Bd.IV,p.425; Kritik derpraktischen Vernunft, Akademie Ausgabe, Bd. V, p. 38. 37 J. Rawls, Lectures onthe History of Moral Philosophy, 2000, p.227pp shares this view. 38 I. Kant, Die Metaphysik der Sitten, Akademie Ausgabe Bd. VI, p. 399. 39 I. Kant, Kritik der praktischen Vernunft, Akademie Ausgabe Bd. V. p. 8 Fn. 40 J. Rawls, Lectures onthe History of Moral Philosophy, 2000, p. 200.

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judgement is –a fact of reason orsomething else –itis inanycase onlythe basis for a constructive process that tries to find answers to sometimes very complicated matters where often noeasy solution is at handto unfold a system ofpractical reason inwhich abstract formulas canhave their useful place. After this short overview oversome issues of Kant’s practical philosophy lets turn tothe core concern ofthese remarks: Whatis Kant’s constructive legacy?

Kant’s constructive legacy

2.

Kant’s ethics illustrates the limits offormalism. IfKant’s moral lawis taken tobeformal it is opento valid criticism along Hegel’s lines. Thus, formalism is nota property ofa promising theory of ethics. The doctrine of Godas guarantor of the congruence of merit andbliss is often disregarded quickly andit is certainly right that this argument does notestablish anything apart fromonething one should, however, notoverlook: Kant’s rather moving (though unfortunately untrue) idea that the world cannot be so badthat moral acting willnotfind its reward inhappiness. There is noreason to be convinced ofthe necessary connection offreedom and the moral law. It is a classical question whether freedom of the will exists or notor whether determinism and indeterminism are compatible in some way. If ones assumes thereality ofthefreedom ofthewillitdoes notfollow atallthata being thathas this property has to be moral as wellas Kant assumes –the willmight be undetermined bycircumstance butstill devoid of anymoral motivation. This being would be free anda-moral which maynotbe pleasing to imagine butis certainly possible to

conceive.

The metaphysics ofthe homonoumenon willnotteach us a lot, either. Whatever

morality is –it will not build any bridges into realms that are nototherwise open for scientific understanding. Other parts of Kant’s ethics constitute its greatness and explain its constant appeal: Mostimportantly perhaps itis (ifinterpreted inthe material sense as pursued above) a magnificent statement of what morality seems to be about. It is a powerful statement loaded withmoral wrath against war, serfdom andintellectual submission

andthe sometimes even majestic moral demand for universal respect for human beings, for fostering their happiness, for taking them as ends in themselves, for unfolding the richness of their human potentials andfor the equality and dignity of men. These material values form a material agenda for any theory of practical philosophy that does not want to fall below the level of humanity that Kant expressed inhis moral doctrine. Itis verydifferent fromthevision of humanity other accounts of humanity paint, that areveryinfluential e.g. socio-biology ortheeconomic analysis of

law.

Second, itseems to be true that morality has priority overthe pursuit of individual

self-regarding happiness andis notidentical with it, even though some qualifications as tolegitimate self-interests are necessary –nobody has, forexample, a dutytoselfsacrifice her life for the most moral of deeds. It seems convincing that morality is actually the condition forsomething to be pursued andnotsimply constituted byany wish human beings might have individually or as a collective. Or in Rawls’terms: desires are principle dependent, principles not desire dependent.41 Macbeth’s example seems to illustrate that quite well. 41 See Fn 6 above.

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Matthias Mahlmann

The relation of morality and happiness as developed by Kant in its other complex parts has something to tell us, too. One of the beautiful ideas in Kant’s workis that morality is the precondition of worthiness of happiness. Something very true about human psychology seems to be said here –that self-respect is invery intricate way connected tosome kindofrespect formoral obligations andthatmoral acting canoffer a verydistinct emotional satisfaction without this feeling being thedecisive reason for moral acting itself. Kant’s account ofthemotivational force ofought isveryimportant. Heisoneofthe authors like e.g. Grotius42 that understood that ought is motivating itself without any reference to the authority e.g. of God like Locke43 or Pufendorf44 argued. This is a crucial point of moral phenomenology. What might be ofcore importance, too, is the sometimes hidden andsometimes explicit moral psychology inKant. Itseems that the most promising wayto achieve a rational restatement of the fact of reason doctrine is to understand it as a quite fascinating hypothesis about human moral cognition andthe foundations of moral judgement. That this path has not been pursued has many reasons among them Kant’s ownperception, shared by many of his interpreters that he instantiated a “ Copernican revolution”establishing a third path for philosophy beyond rationalism andempiricism ruling outanyrecourse topsychology. Another reason maybethelack of a promising theory of the human mindthat could integrate complex propositions about human moral cognition. This situation has changed. Mentalism has made the claim plausible that human beings have richly textured higher mental faculties –the best researched example is the language faculty –that create cognitive phenomena like vision, language, face recognition etc.45 Formoral philosophy this means thatthe hypothesis istobepursued whether there might bea uniform inborn moral faculty that generates moral judgement byoperative, andnotexpress principles universal to the human species.46 These principles are triggered byexperience ineducation butnot inscribed on a tabula rasa as in much of empiricist thought. They form part of the cognitive nature ofhuman beings andarethe precondition forthe richanddifferentiatedmoral world ofhuman beings tounfold. Theymayencompass principles ofaltruism

42 H.Grotius. DeJure Belli ac Pacis, I, X. 43 J. Locke, AnEssay Concerning Human Understanding, Book II,Chapter XVIII, § 8.

44 S. Pufendorf, De Officio

Hominis

et Civis

luxta Legem Naturalem libri duo, §

10.

45 N.Chomsky, NewHorizons inthe Study ofLanguage andMind, 2000; R.Jackendoff, Patterns inthe 46

Mind, 1994, S. Pinker, The language instinct, 1994. Compare N.Chomsky, Language and Problems of Knowledge, 1988, p. 152pp; M.Bierwisch, Recht linguistisch gesehen, in: Grewendorf (eds.), Rechtskultur als Sprachkultur, 1992, p. 42; S. Stich, Moral Philosophy andMoral Representation, in:Hechter/Nadel/Michod, TheOrigin ofValues, 1993, p. 215; G. Harman, Explaining Value, 2000; R. Jackendoff, The Natural Logic of Rights and Obligations, in: Jackendoff/Bloom/Wynn (eds.), Language, Logic and Concepts, 1999, p. 66; An Agenda fora Theory of Social Cognition, Manuscript, 2003; Mikhail/Sorrentino/Spelke, Towards a Universal Moral Grammar, in: Gernsbacher/Derry, Proceedings, Twentieth Annual Conference of the Cognitive Science Society, 1998, p. 1250; J. Mikhail, Rawls’Linguistic Analogy, 2005 (forthcoming); S. Dwyer, Moral Competence, in: Murasugi/Stainton, Philosophy and Linguistics, 1999, p. 169; J. Rawls, ATheory ofJustice, 1971, S. 46ff madesome remarks onthelinguistic analogy butdidnot pursue this question. Instead hefavours a “ principle-and-conception dependent constructivism” , vgl. Mahlmann/Mikhail, The Liberalism of Freedom in the History of Philosophy, ARSP 2003, 122pp. J. Mikhail, Law, Science, andMorality, 54 Stanford LawReview 1057 (2002). Compare Mahlmann, Rationalismus in der praktischen Theorie, 1999. On recent neuro-imaging studies: Heekeren/ Wartenburger/Schmidt/Schwintowski/Villringer, AnfMRI study of simple ethical decision-making, NeuroReport 2003, p. 1215.

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andjustice.47 Itseems to bevery unlikely that anything like parameters as developed by linguistic theory exist in the moral domain as –to name just one important youcanargue people outofcertain moral points view–andchange your difference – ownmindas well. This is impossible for natural languages. Thus it is implausible to assume that moral differences are fixed like the differences of natural languages. Itis reasonable to assume that this faculty is also the basis forthe legal orders to develop eventhough these orders are surely highly artificial andculturally dependent because theypresuppose as thenecessary cognitive preconditions oftheir existence the intricate world ofnormative concepts like ought, duty, justice orrights. The study of this faculty in a mentalist framework will have to account forthe complex phenomena mentioned –the material content of moral intuitions, the principledependence ofdesires, theexistence ofmoral feeling, therelation ofmoral feeling to general happiness and the mysterious relation of moral acting to human selfrespect orthe autonomous motivational force ofought, to namejust some that Kant’s analysis brought tothefore. Myguess isthattheanswers tosome ofthese questions are veryfarawayindeed, ifachievable at all. Thestudy of morality froma mentalist point ofviewwillinmyviewnotleadtotheconclusion that moral reflection andthus an important part ofpractical reason is superfluous. Tothe contrary itwillclarify thevery base ofthis reflection butwillnotbe a substitute foritbecause itseems tobetrue that some issues of moral evaluation are so complex that without such construction a solution cannot be easily attained. Thus, moral philosophy will be reconciled with

moral psychology but not be dissolved in it. The prospects are enticing. Withthe idea ofa human moral faculty based onthe conceptual framework of mentalism the tools might have been developed to renew withthe means ofthe modern theory ofthe mindthegreat idea often formulated inthe history of ideas of a special human faculty –a conscience, a moral sense, practical reason –thatdirects withits gentle force the human willtoactions thatcanbesome of the most admirable features of human beings. Dr. Matthias Mahlmann, Fachbereich Rechtswissenschaft, Freie Universität Berlin, Van’t-Hoff-Str. 8, 14195 Berlin

47

Cf. M. Mahlmann, Sprache im Spiegel der praktischen Vernunft, Zeitschrift für Rechtsphilosophie, 2003, p. 168pp; M.Mahlmann TheCognitive Foundations ofLaw,in:H.Rottleuthner, TheFoundations of Law, 2005.

Matthias Mahlmann and John Mikhail

Cognitive Science, Ethics and Law

a)

Morality

andNatural Law

The history of philosophy is rich with different accounts of the foundations of morality andlaw.The significance ofthis history is more than merely academic. Theories of morality and law specify the duties and rights of individuals, the scope and limits of state authority,

andthe legitimate

distribution

of wealth andpower ina community.

Theythus have profound implications forhuman life. Oneclassic, recurring viewinthe history of philosophy holds that human beings are capable ofrecognizing material standards fora just andmorally goodsocial order by a special cognitive capacity –be it logos in the Stoic tradition,1 synderesis in moral sense” of the British Moralists,3 or “reason”in the Scholastic thought,2 the “ tradition of modern Natural Law.4 Legal orders were often heldto be bound bythese material standards. Incertain respects, this concept ofa natural, normative order that is insome sense permanent, immutable, a-historic, anduniversal is the core idea of thetheory ofnatural law.

b) The NewScience of ManandIts Abandonment Natural lawideas formed the basis of the Enlightenment’s newscience of human those nature. OnHume’s view, forexample, the aimofthis science wasto discover “ 5 secret springs andprinciples bywhich the human mindis actuated inits operations.” With respect to morality, this meant locating the capacity for moral judgment inthe “ original fabric andformation ofthe human mind,” some internal sense inthe formof“ 6 In a famous or feeling which nature has made universal in the whole species.” passage, Hume depicted human nature as the capital of the territory science must

conquer: 1 2

3 4

Vgl. Chrysipp, Stoicum Veterum Fragmenta, 1903–1905, III, 314, 323; M.Pohlenz, Die Stoa, 1992,

p. 133. See, e.g., Thomas Aquinas, Summa Theologiae, I–II, Q. 94, Art. 1: “Dicendum quod synderesis dicitur lex intellectus nostri, inquantum est habitus continens praecepta legis naturalis, quae sunt prima principia operum humanorum.” Synderesis is saidto be the lawofourintellect because itis (” ). a habit containing the precepts ofthe natural law,which are thefirst principles ofhuman actions.” 1800 (IndianaSee, e.g., thecollection ofexcerpts edited byD.D. Raphael, British Moralists: 1650– polis, Indiana: Hackett, 1991), especially those byHutcheson, Butler, Hume, Smith, andReid. See, e.g., Hugo Grotius, De Jure Belli ac Pacis, I, X: “ lus naturale est dictatum rectae rationis indicans, actui alicui, ex eius convenienta aut disconvenientia cumipsa natura rationali, inesse moralum turpitudinem autnecessitatem moralem, ac consequenter ab auctore naturae Deotalem

5

Natural lawis a dictate ofright reason, showing the moral necessity actum autvetari autpraecipi.” (“ ormoral baseness ofanyact according to its agreement ordisagreement withrational nature, and indicating that such an act is therefore either commanded or forbidden bythe author of Nature, ). Cf.onKantandpractical reason, M.Mahlmann, Kant’s Conception ofPractical Reason and God.” the Prospects of Mentalism, inthis volume, p.85– 93. David Hume, AnEnquiry Concerning Human Understanding, p.8 (Hackett edition, 1993, edited by

6

David Hume,

Eric Steinberg). edited

6 (Bobbs-Merrill edition, 1957, AnEnquiry Concerning the Principles ofMorals, pp.5– byCharles W.Hendel).

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andJohn Mikhail

“ Here then is the only expedient,

from which wecan hope for success in our philosophical researches, to leave the tedious lingring method, which we have hitherto followed, andinstead of taking nowandthen a castle orvillage onthe frontier, to march updirectly to the capital orcenter ofthese sciences, to human nature itself; which being once masters of, wemayevery where else hope foran

7 easy victory.”

Overthe nexttwocenturies, however, Hume’s combination ofnaturalism anduniversalism gradually lost its hold on the philosophical imagination. Philosophers became less concerned with human nature as the focus of their investigations. To a great degree, this decline was attributable to alternative models of the human mind that came to dominate academic philosophy andpsychology. Until Locke’s influence, the mindwaswidely assumed at birth tobe tabula rasa, a blank slate, andlittle morethan anall-purpose learning machine thereafter. Allhuman knowledge wasthus assumed toderive fromexperience andeducation. Moral knowledge, inparticular, wasregardedas merely the product ofever-shifting social andcultural formations. Andhowcould itbeotherwise? Isn’t this viewamply confirmed bysimple reflection onthediversity of moral beliefs among different peoples andhistorical epochs? Doesn’t it explain the sharp differences one finds, forexample, between the repressive sexual morality of

theVictorian eraandthepermissive, free-love ethic oftheflower-power generation, or between the widespread acceptance of slavery in the ancient world andthe wide-

spread abhorrence felt toward that practice today? This view, thatthe human mindis notfurnished withanydistinct capacity formoral judgment, forms the shared backdrop to many of the 20thCentury’s leading moral theories. Intuitionism, Utilitarianism, Analytic Metaethics, Rawlsian/Neo-Kantian Constructivism, Discourse Ethics, Virtue Ethics, Particularism –these schools differ in manyrespects, buttheyshare a general aversion togrounding normative systems on the intrinsic moral capacities of human beings. In their eyes, Hume’s research program is simply notworth pursuing anylonger. The“ may science ofhuman nature” be an interesting topic in the history of ideas, but it offers little guidance to those seeking to understand orcritique thefoundations of morality andlawtoday.

c) A NewTrend

is, however a different trend. This trend emanates fromthe second cognitive ofthe 1950s and1960s that putHume’s research agenda backinthecenter of attention. The first cognitive revolution occurred inthe 17thcentury, when philosophers and scientists, having developed successful mechanical and mathematical models of the physical world, turned their attention to the properties of the human mind. Thestage wasset byDescartes’reflections onres cogitans, thethinking matter, anditsmysterious relation tothehuman bodyandtheexternal world. Acentral tenet of common notions engraved in Descartes’analysis wastheexistence ofinnate ideas –“ –which differ qualitatively fromthecorporeal motions occasioning them, yet themind” formthe basis of ourintellectual representation ofthe world.8 This strikingly modern perspective was further developed by the Cambridge Platonists and Port-Royal Grammarians, as well as by subsequent Rationalist philosophers like Leibniz and

There

revolution

7 8

David Hume, A Treatise P.H. Nidditch).

ofHuman Nature, Introduction, p.xvi. Selby-Bigge

edition,

1978 (revised by

Rene Descartes, Comments ona Certain Broadsheet, in ThePhilosophical Writings of Descartes, trans. John Cotingham, Robert Stoothoff, andDugald Murdoch (Cambridge, 1985), pp.303f.

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Kant. Withgoodreason, onecancredit modern Rationalism withlaying the scientific foundation forcontemporary representational theories of mind. The second cognitive revolution of the 1950s and1960s built uponthis foundation, while simultaneously freeing itself from certain dubious metaphysical assumptions. The human mind was no longer assumed to be a separate, non-material substance, metaphysically distinct fromthe material world. Instead, itwastaken tobe the functional manifestation of a specific biological organ, the human brain. Today, most philosophers and cognitive scientists assume without question that human mental activity, withits mysterious andvexing properties ofconsciousness, intentionality, volition, andso forth, nonetheless depends insome manner ontheneurophysiological properties ofthe brain. Other questions are more contentious. Onemain problem is whether the mind’s properties aregenetically determined. This isthecore oftheso-called “ nature/nurture” debate. Formulated inthis manner, however, the problem is misleading. Even ifone accepts the traditional Empiricist assumption that the mind is a general-purpose learning device, this still implies a very specific inborn mental capacity – namely, the capacity to acquire any type of knowledge, and to do so more or less uniformly. Further, that this capacity is distinctively human is clearly illustrated by the fact that non-human animals donotpossess this ability. Onecannot teach a chimpanzee what onecanteach a human being. Hence eventhe modern empiricist orbehaviourist “ is 9 knowingly andcheerfully uptohis neckininnate mechanisms oflearning-readiness.” Thus, properly formulated, there appears tobe nothing controversial about nativism in principle. Therealissue is notwhether some aspects ofhuman knowledge areinnate, buttheextent andspecificity ofinnate knowledge invarious cognitive domains.

d) The Inspiration from Linguistics Thesecond cognitive revolution wasinspired bytheoretical linguistics, inparticular by theresearch program ofgenerative grammar initiated byChomsky andhiscolleagues in the 1950s and 1960s. This research program argued that every normal human being possesses a rich knowledge oflanguage that goes wellbeyond anything heor she isformally taught. Theonlywaytoaccount forthefacts oflanguage acquisition is that language is in a certain sense not acquired at all. Instead, it must be largely inborn. “ Universal Grammar” is the theory that describes this innate knowledge. The maturation of the language faculty is certainly triggered by linguistic experience; a Caspar Hauser without anyexposure to language orsignificant human interaction will not acquire language in any normal sense. But experience only yields a natural language with its rich structural properties because many of those structures are already in place.10 Universal Grammar

has gained prominent status among linguistic paradigms in the last several decades. Its main findings have been extended and reinforced by manyfields ofresearch, including child development, psycholinguistics, neuroscience, andsign languages. Onefascinating set of studies involves the children of parents 9 10

W.V.O. Quine, “ Linguistics andPhilosophy,” inSidney Hook, ed., Language andPhilosophy (New York: NewYork University Press, 1969); reprinted in Stephen P. Stich, ed., Innate Ideas, p. 200. See, e.g., NoamChomsky, Aspects ofthe Theory ofSyntax (Cambridge: MITPress, 1965); Noam Chomsky, Knowledge of Language: Its Nature, Origin, andUse (Westport, Connecticut: Praeger, 1986); NoamChomsky, The Minimalist Program (Cambridge: MITPress, 1995); RayJackendoff, TheFoundations ofLanguage, 2002.

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rudimentary communication systems which whospeak so-called “pidgin” languages – are developed inmultilingual contexts byindividuals whodonothave theopportunity tolearn oneanother’s first languages. Within a generation, these children often create new, sophisticated creole languages whose grammatical complexity faroutstrips the impoverished pidgin to which they are exposed.11 Given allofthese findings, theinteresting question today is notwhether there isan innate language faculty, butwhatits properties are. Here thedebate is lively andthe problems considerable –as inanyserious science.12

e) TheCase fora Moral Faculty In light of these developments, the question naturally arises: What about morality? Wasn’t Hume correct to locate it in the capital he meant to conquer? Doesn’t the modular” viewofthe mindithelped spawn existence ofthe language faculty andthe “ lend plausibility to the view that human beings likewise possess a distinct moral faculty? Canpostulating such a faculty help explain the facts of moral development andthe phenomenology ofmoral judgment? apart fromthe There are manyreasons forthinking this idea is nottoooutlandish – long tradition of thought that espoused this view.13 To begin with, even casual observation suggests that every normal human being develops more or less independently of his or her social upbringing some kind of pre-determined normative orientation. Inthis sense, morality is just part ofhuman existence as such. Moreover, this knowledge is complex andincludes concepts like justice, fairness, obligations, onecannot, rights, permissions, values andthe like. These conceptions are mental – forexample, touch or smell an obligation. The normative realm of morality is something human beings create with their minds andthus depends onthe mind’s nature andstructure. 11 See, e.g., Ray Jackendoff, Patterns in the Mind, 1994, p. 83f, 101f, 146f; Steven Pinker, The 39. See generally Bickerton, The Roots of Language, 1981. Language Instinct, 32– 12 Forone such debate, see, e.g., M.Hauser, N.Chomsky, andT. Fitch, The Faculty of Language: what is it, whohas it, andhowdidit evolve? Science 2002, p. 1569, andSteven Pinker andRay Jackendoff, The Faculty of Language: What’s Special about it? Cognition (forthcoming). See generally Ray Jackendoff, The Foundations of Language, 2002. 13 For some recent discussion of this topic, see, e.g., N. Chomsky, Language and Problems of Knowledge, 1988, p. 152f; M.Bierwisch, Recht linguistisch gesehen, inGrewendorf, ed., Rechtskulturals Sprachkultur, 1992, p.42; S. Stich, Moral Philosophy andMoral Representation, inHechter, Nadel, and Michod, eds., The Origin of Values, 1993, p. 215; J. Mikhail, C. Sorrentino, and E., Spelke, Towards a Universal Moral Grammar in Gernsbacher and Derry, eds., Proceedings, Twentieth Annual Conference oftheCognitive Science Society, 1998, p. 1250; Susan Dwyer, Moral Competence, in Murasugi andStainton, eds., Philosophy andLinguistics, 1999, p. 169; M.Mahlmann, Rationalismus in derpraktischen Theorie, 1999; RayJackendoff, The Natural Logic of Rights andObligations, inJackendoff, Bloom, andWynn, eds., Language, Logic andConcepts: Essays in Honor of John McNamara, 1999, p. 66; J. Mikhail, Rawls’ Linguistic Analogy: A Study of the ‘Generative Grammar’Model of Moral Theory Described byJohn Rawls in ‘ A Theory ofJustice,’ Cornell University Ph.D., 2000; G. Harman, Moral Philosophy andLinguistics, inExplaining Value, 2000; J. Mikhail, Law, Science, and Morality: A Review of Richard Posner’s The Problematics of Moral and Legal Theory,’ 54 Stanford LawReview 1057 (2002); M.Mahlmann, Sprache als Spiegel Zeitschrift fürRechtsphilosophie 2003, p. 168; J. Mikhail, Rawls’Linguistic derpraktischen Vernunft,” Analogy, NewYork: Cambridge University Press (inpress). InATheory ofJustice, Rawls discusses thelinguistic analogy atlength butdoes notexplicitly embed hisremarks within a mentalist theory. In

his later works, he appears to abandon the naturalism implicit inthe linguistic analogy altogether in principle-and-conception dependent constructivism.”For a critical favour of a what he terms a “ review, see M.Mahlmann andJ. Mikhail, The Liberalism of Freedom inthe History of Philosophy, ARSP 2003, 122.

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Moral judgment appears to be rule governed, in that the properties of moral judgment imply that the mind contains certain moral rules or principles (a “ moral grammar” ). These are notcase-based imperatives like “Hannah should refrain from –this is toconfuse a principle withits application. hitting heryounger brother Andrew” Rather, the principles inquestion are more impersonal, general, andabstract, much like a well-developed legal code. Moreover, if other cognitive domains are anyguide, the operative principles of moral competence mayturnouttobe unconscious andnon-introspectible, andtobear little or no relationship to the actual statements an individual makes when she attempts to describe, explain, orjustify hermoral judgments. The existence of such unconscious principles is a core insight of Universal Grammar. The operative principles ofthe language faculty donotconstitute propositional knowledge inthesense of “ knowing that,” norconditioned dispositions in the sense of “knowing how,”to use Ryle’s influential categories.14 Rather, they represent a form of unconscious knowledge that maygive rise incertain circumstances to instances of propositional knowledge about the properties of linguistic expressions. Something similar maybetrue inthemoral domain. Indeed, thebasic idea seems both familiar and plausible. Moralists and jurists have long recognized that the “ locus 15 is often the intuitive moral judgment itself, not its articulate of moral certitude” justification. TheAmerican jurist Oliver Wendell Holmes putthe matter incharacteristically succinct fashion whenhe observed:

“ Itisthemerit oftheCommon Lawthatitdecides thecase first anddetermines the principle afterwards. Looking at the forms of logic, it might be inferred that when youhave a minor premise anda conclusion, there mustbea major, which youare also prepared then and there to assert. But in fact lawyers, like other men, frequently see well enough howthey ought to decide on a given state of facts without being very clear as to the ratio decidendi. ... It is only after a series of determinations onthe same subject matter that it becomes necessary to ‘reconcile thecases’, as itis called, that is, bya true induction tostate theprinciple which 16 has until then been obscurely felt.”

AsHolmes’observation suggests, the idea ofunconscious moral knowledge notonly fits comfortably within the contemporary cognitive sciences, butalso within the traditional theory of (common law) adjudication. Itis important toemphasize thattheconcept ofa “Universal Moral Grammar” oran innate moral faculty does not lead to a thoroughly deterministic account of human behaviour. Itmaybe that moral perceptions are largely involuntary anddeterministic, once the initial state ofthe moral faculty andsubsequent experience are fixed. Butit does not follow that conduct or actual physical behaviours are also deterministic. Indeed, it is anoldinsight that the motivation engendered byjudgments of“ is ought” notanirresistible determination, buta resistible compulsion thatleaves freedom intact –a “Nötigung”ofthewillinKant’s perceptive observation.17 Inaddition, manyfactors other than moral obligation clearly playa powerful role indetermining howindividuals act–greed, ambition, andthe pursuit ofpower, to name a fewprominent examples.

14 G. Ryle, The Concept of Mind, 1949. 15 A.Jonson andS. Toulmin, TheAbuse of Casuistry, 1988. 16 O.W. Holmes, “ Codes, andthe Arrangement ofLaw,” 5 Am.L.Rev. 1 (1870).

17 I. Kant,

Kritik

Rationalismus

der praktischen Vernunft, Akademie Ausgabe, Bd. V, S. 80. Cf. M. Mahlmann, 211. inderpraktischen Theorie, p. 184–

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Matthias Mahlmann

f) ANewMentalist

andJohn Mikhail

Universalism

Apersistent challenge forthetheory oflanguage is to account fordifferences among natural languages. Atechnical device to doso are parameters –options inUniversal Grammar that can be set in one way or another, depending on the course of experience. One of the appealing consequences of this so-called “ principles and parameters” approach to linguistic theory is that itreveals that manyoftheperceived differences among languages tobe merely superficial. Froma scientific perspective, it makes sense to postulate the existence ofa single human language withonly minor variations, as Chomsky andothers have often explained. 18underlying diverse human languages also single mental design” This idea ofa “

has interesting implications for the so-called “ Sapir/Whorf hypothesis,”which holds thatlanguages determine conceptual systems. Universal Grammar describes notonly syntactic structure ina narrow sense, butalso the semantic properties oflanguage.19 Ifthetheoretical claims ofUniversal Grammar aretrue, thenhuman beings mayinfact common notions” share a common conceptual system, involving “ such as agent and patient, cause andeffect, ends andmeans, andsimilar concepts. Inshort, manyofthe building blocks of moral andlegal cognition mayindeed turnoutto be universal, while manyoftheclaims ofconceptual relativism mayturnouttobefalse andtogotheway of phlogiston. There is good reason to suppose that the development of moral competence is more constrained than the development of linguistic competence. In the case of language, what is common to the species is the initial state of the language faculty.

However, the systems of linguistic intuition children in diverse cultures acquire are undeniably different, andinfact inthenormal course ofevents mutually unintelligible. Nocomparable diversity exists inthe moral domain. Hence the moral faculty maybe quite unlike the language faculty inthis respect; there maybefewifanyparameters to be set inthis domain.20 Perhaps a better comparison is between morality andvision. Vision is a complex cognitive system, butthere are no parameters involved in the relevant sense. AGreek woman does notsee an island inthe Cyclades differently thanherGerman husband oranenchanted American visitor. The prevalence of moral disagreement maybe based ona multitude of factors other thana lackofshared principles. Further, there areother differences between the properties of moral intuitions andlinguistic intuitions that pose a challenge formoral relativism. For example, one can, and often does, change one’s mind on moral matters; moral intuitions appear less fixed andmore malleable thanlinguistic intuitions inthis sense. By contrast, one cannot change one’s mother tongue, andonce the development ofthe language faculty reaches its steady state, the resulting system of linguistic intuitions is more orless fixed. Additionally, there is the very real phenomenon of historical convergence and “overlapping consensus”on moral issues, as evidenced bythe slowbutsteady growth ofa global human rights culture, which has no apparent analogue in the linguistic domain.21 Thus, there appear to be good reasons to resist at least the more extreme claims ofconceptual andmoral relativism. 18 S. Pinker, The Language Instinct, p. 430, 1994. 19 See, e.g., N.Chomsky, NewHorizons in the Study of Language andMind, 2000; R. Jackendoff, The Foundations ofLanguage, 2002.

20 J. Mikhail, “Law, Science, andMorality: A Review of Richard

Posner’s The Problematics

of Moral

and Legal Theory,’ 54 Stanford LawReview 1057, 1110 (2002); M.Mahlmann, Rationalismus inder praktischen Theorie, ”p. 93, 107–110. 21 See J. Mikhail, Rawls’Linguistic Analogy, NewYork: Cambridge University Press (forthcoming); M. Mahlmann, Elemente einer ethischen Grundrechtstheorie (forthcoming).

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g) The Relevance for Law on the cognitive foundations of moral judgment naturally raise a of important questions about the lawandlegal systems. Ona practical level, they have implications for ourunderstanding of fields such as crime, tort, contract, evidence, andagency, andoftopics such as proportionality, mens rea, insanity, and culpability generally. Ona more philosophical level, they have implications forquestions ofperennial importance, suchas those withwhich webegan. Cana theory ofthe moral faculty provide a satisfactory account ofthe nature andorigin ofthe law’s basic normative categories, such as duty andobligation?22 Can it provide a satisfactory account ofthe demands ofjustice andof human rights?23 Questions like these have been asked inone formoranother forcenturies. Oneinviting prospect ofa mentalist theory of ethics is that it mayoffer a newbasis forgrounding concepts like these on humankind’s common moral nature. To prevent misunderstanding, it should be emphasized that the discovery or invention of“ new” moral principles is nottobe expected ofthis inquiry. Thepurpose of moral andlegal philosophy inthis sense is notto invent newsystems to replace the norms of common sense, but simply to describe, explain, and if necessary justify those normative principles already known and intuitively recognized by common explicative” sense.24 This “ function of philosophy has been emphasized before –for example byKant, whocalmly countered the criticism of a reviewer whocomplained These reflections

variety

that his Foundations of the Metaphysics of Morals proposed no new moral principles, butonly a newformula, by insisting that this was precisely his objective. OnKant’s view, the invention of new moral principles is beyond philosophy’s properly (and modestly) determined scope.25

Byexplaining moral judgment interms ofa universal moral faculty –a “Universal –a mentalist theory ofethics maybe able tovindicate a core insight Moral Grammar” ofthenatural lawtradition: theexistence ofnatural normative yardsticks, accessible to all, against which to measure the legitimacy ofpositive law.

22 See, e.g., H.L.A. Hart, TheConcept ofLaw1961, 85 (describing obligation as a “figure, which haunts much legal thought” ).

23 See, e.g., M.Mahlmann, Cognitive Foundations of Law–an Introduction to the Mentalist theory of Ethics and Law, in: H. Rottleuthner, The Foundations of Law, (forthcoming); M.Mahlmann, Elemente einer ethischen Grundrechtstheorie; J. Mikhail, “ Islamic Rationalism andthe Foundation of inPluralism andtheLaw:Proceedings ofthe20th IVRWorld Congress, Volume 3: Human Rights,” Global Problems 61 (Arend Soeteman, ed., Franz Steiner Verlag, 2004). 24 Forexample, wecansurely expect that disinterested concern forthe interests ofothers willplaya prominent role ina mentalist theory ofethics, insofar as this has been recognized as a core feature of normative systems for centuries. See M. Mahlmann, Cognitive Foundations of Law–an Introduction to the Mentalist theory of Ethics andLaw, in: H.Rottleuthner, TheFoundations of Law (forthcoming).

25 See I.Kant, Kritik derpraktischen

Vernunft, Akademie Ausgabe Bd.V,p.8 note: “ EinRecensent, der zumTadel dieser Schrift sagen wollte, hat es besser getroffen, als er wohlselbst gemeint haben mag, indem er sagt: daß darin kein neues Prinzip der Moralität, sondern nureine neue Formel aufgestellt worden. Werwollte aber aucheinen neuen Grundsatz aller Sittlichkeit einführen unddiese gleichsam zuerst erfinden? gleich als ob vor ihmdie Welt in dem, was Pflicht sei, unwissend oder im durchgängigem Irrthume gewesen wäre (emphasis original).”(” A critic who wished tosaysomething against thatworkreally didbetter thanheintended whenhesaidthatthere wasnonewprinciple of morality init butonlya newformula? Whowould wantto introduce a new principle ofmorality and, as itwere, be its inventor, as iftheworld hadhitherto beenignorant ofwhat duty is or hadbeen thoroughly wrong about it?

etwas

102 Dr. Matthias

Matthias Mahlmann

andJohn Mikhail

t-Hoff-Str. Mahlmann, Fachbereich Rechtswissenschaft, Freie Universität Berlin, Van’

8,

14195 Berlin

John Mikhail, Associate Professor of Law, Georgetown NW,Washington, DC20015

University

LawCenter, 600 NewJersey Ave.,

Gregor Noll

The Exclusionary Construction of Human Rights in International Lawand Political Theory1 1. Introduction Textbooks tend to depict human rights as safeguards protecting the individual from the excessive use of state authority.2 Such accounts presuppose, amongst others, a clear distinction between lawandpolitics, andanunderstanding ofcertain legal norms as being pre-political. Drawing bothonpositive international lawandthe increasingly rich theoretical exploration of human rights, this article claims that the fictions of universality and inalienability of human rights collude their exclusionary function. Human rights take part in the formation of a polis by excluding the bare life of the human being from that community, to then re-include it andsubject it to regulation. Where re-inclusion does nottake place, forone reason oranother, the exclusionary function ofhuman rights creates outcasts which have nomore, are nomorethanbare life (refugees being a prominent example). Seen such, human rights constantly remind us howdevoid of protection weare outside the polis. Once re-inclusion has taken place, human rights maywork reasonably well as protective devices. Yet, as there is noaccess right tothe polis, there is noright foranyhuman inanysituation to have human rights. Sections 2 and 3 develop two opposed accounts of the relationship between human rights lawandpolitics. Inthefirst account (section 2), the riskofhuman rights advocacy infusing human rights research with its agenda is considered, illustrating howpolitics maycolonise the law. The second account (section 3) draws oncontemporary critiques of human rights, which warn of the opposite: the colonisation of politics byhuman rights law.Ashuman rights are heldtobe universal andinalienable, while being positive law, sections 4 and5 lookinto the universality andinalienability claims from a positivist perspective, showing that neither of them is tenable. The concept of human rights is overinclusive, as it neglects the contingency of rights on both the limitations of the state and the autonomy of its polity. The structure of international lawstrangles anytransnational politics of human rights, thus confirming that lawcolonises politics (section 4). Conversely, international lawis butthe product of political decisions within a polity organised as state, suggesting that politics also colonises law (section 5). Against this background, the idea of a demarcation line between human rights lawandstate politics appears tobea confusing oversimplification. Section 6 seeks toexplain thegenesis ofthetwoexcesses linked totheconcept of human rights by looking at the exclusion of what has been termed “bare life” inherent init. Finally, Section 7 offers conclusions.

1

2

Associate Professor ofInternational Law,Faculty ofLaw,LundUniversity. Theauthor is indebted to the participants of the Special Workshop onthe Politics of Human Rights at the 21st IVRWorld Congress in Philosophy of LawandSocial Philosophy, held on 15 August 2003 in Lund, fortheir valuable comments onearlier drafts. Special thanks areduetoMs.EvaErsboll, Danish Institute for Human Rights, Copenhagen, as wellas Ms.Päivi Leino-Sandberg, ErikCastrén Institute, Helsinki. See, e.g., Malanczuk, whoattempts to single outthe “ essence ofthe concept” of human rights as every individual hascertain inalienable andlegally enforceable rights protecting himorher follows: “ against state interference andthe abuse of power bygovernments” . Peter Malanczuk, Akehurst’s Modern Introduction to International Law, Routledge, London 1997, at 209.

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2. Human Rights Research and the Politics of Advocacy

Ininternational law, human rights research is entangled ina problematic relationship with human rights advocacy, and, as a consequence, with politics. A good many international lawyers appear to take human rights forgranted: as a black boxof the common good. Consequently, much human rights writings have been inspired by ideals of proliferation and maximisation of human rights. At times, its agenda is reflective of that pursued by advocacy organisations, although there might be divisions onthe appropriate strategy to be pursued. Onecould describe suchwritings as promotional human rights research. Doing promotional human rights research is nice: there is a feeling ofbelonging to thegoodguys, working forthe goodcause. Inaddition, international lawyers enjoy the privileged status flowing frombeing so close to the authority ofthe law, marking them outfromhuman rights researchers belonging toother disciplines. Thatnice, privileged feeling comes at a price, though. Inevitably, the advocacy agenda conflicts with the established technical modes of identifying and construing international legal obligations, which host a number of mechanisms to minimise rather than maximise state obligations.3 Putsimply, itcanbe mutually exclusive tobe a goodinternational lawyer inthetechnical sense anda goodguy.4 Those whoresist the promotional temptation, feeling thatthe professional identity

of the international

lawyer

is different from that of the international

human rights

. or “positivist” formalist” advocate, often resort to approaches that maybe termed “ This exposes themto the suspicion of advocates: after all, state lawyers fending off human rights claims typically use formalism andpositivism. Within academia, formalismseems to produce outcomes prone to exploitation bystates with a reductionist agenda. Atthe endof the day, the workof both promotional andpositivist human 3

4

Asinternational lawis to anincreasing degree contractually determined, suffice itto recall that the idea ofcontracting is characterised byeconomising obligations. Human rights treaties are odd, as their beneficiaries are notcontracting parties. Yetthis oddity hasnotledtoa specific bodyofsecondorder rules ininternational lawonhowto dealwithhuman rights obligations. Itis regularly assumed thatstates wishtopreserve their sovereignty tothemaximum extent inrule-making, which entails a burden of producing counter-arguments by advocates of third party interests as human rights indubio mitius” lawyers. Atraditional reflection is the doctrine of “ , suggesting that interpretation be informed bythe assumption that states have implicitly opted forthe less onerous reading when Interpretation in consenting toanobligation. This doctrine maywellbe outdated (see R. Bernhardt, “ , inR. Bernhardt (ed.), Encyclopaedia of Public International Law(1992) Volume International Law”

26, at 1421), but the burden of arguing its inapplicability rests on the human rights 1 (1992) 1416– lawyer. Inearly 2002, thethen Danish Centre forHuman Rights wasthreatened bya government-imposed merger withother research institutions, compromising itsindependence as a National Human Rights Institution. Theensuing debate brought outthetension between the promotion ofhuman rights and research of such rights. Adversaries ofthe Centre claimed that itconstantly interfered into Danish politics with human rights arguments. Friends of the Centre were disappointed that its lawyers did notreject theharsh Danish Aliens’legislation launched concurrently as incompatible withDenmark’s international human rights obligations, and suspected that this reflected a political compromise with the government. Both criticisms were misguided in substance. Adversaries forgot –perhaps on purpose –that the usage of human rights arguments inthe political domain does notnecessarily politicise human rights intheir totality. TheCentre’s friends mistook thepromotional agenda tobean apolitical one. Yet, as the 2002 amendments to the Aliens Actwere smartly crafted inthe legaltechnical sense, theCentre’s lawyers were unable toreject themoutright without swapping their role withthat ofadvocates. Bothadversaries andfriends failed to understand thedivisive lines between lawand politics. Yet, it should be acknowledged that human rights institutions carrying outboth research and promotion would typically be exposed to tensions of the kind described here.

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be itby rights lawyers are easily subjected tooneorother formofpolitical hi-jacking – NGOs, orbystates. Faced withsuch choice, itcan be suspected that manylawyers prefer to be hijacked byhuman rights advocacy. Worse still, the promotional straitjacket ofmuchhuman rights research inthe legal field also fetters inquiries into the theoretical core of human rights. Itseems that the black boxofcommon goodmustnotbe opened, because this would expose a flank to those resisting the idea of human rights.5 What does it mean that human rights are “ universal” and“inalienable” ; howcan they be beyond politics in a secular world? Indeed, I would argue, it is precisely the fact that manywritings in human rights law omitthese andrelated foundational questions that makes their arguments imprecise, andtheir workas wellas that oftheir advocacy friends vulnerable. Ifit is correct that human rights have largely become a matter of “ applied restrategic research”or “ search” , weshould remind ourselves that the discipline of international human rights lawhas notdone its homework inbasic research. Inpractice, twostandard attempts tobypass the black boxhave gained currency. Oneequals human rights to basic orconstitutional rights, theother posits themas an emerging constitution ofa cosmopolitan world order inthemaking. Ifhuman rights are distinct in that they belong to every human being, regardless of belonging, neither attempt can succeed. Basic and constitutional rights can be grounded on a social contractarian account of the nation state; their limits are largely concurrent with its personal, territorial andjurisdictional delimitations.6 However, the idea of universality implied in human rights might be at loggerheads with that of a personally circumscribed contractual base. Theoretically, the contract metaphor underlying much of contemporary constitutional thinking stops making sense wheneveryone is a contract party by nature.7 The cosmopolitarian explanation fails to convince in international law,as longas states remain its ultimate power holders, legislators andimplementing agents.8 If anything, refugees remain the primary test case for the universality of human rights, as writers fromHannah Arendt9 toGiorgio Agamben10 have pointed out. Withmillions ofdisplaced persons being clearly beyond anymeaningful formofcivic membership whatsoever11, bare empiry would suggest the cosmopolitan argument to be idealist excess. 5

6

7 8 9

“ Analyses ofthefoundations andscope ofinternational human rights lawfrequently lapse into heroic ormystical language; itis almost as ifthis branch ofinternational lawwere bothtoovaluable andtoo , Hilary Charlesworth, “ Whatare ‘Women’s International Human Rights’?” fragile tosustain critique.” in R. Cook (ed.) Human Rights of Women: National andInternational Perspectives, University of Pennsylvania Press, Philadelphia 1994, 58, at 59. See section 3 below. Indeed, social contractarianism collapses visibly into natural lawthinking at this point. Itisproblematic toassume thatthefunctioning ofanycosmopolis would belargely analogous tothat of a nation-state, which lives precisely off its delimitation. There are good reasons forthe Kantian tradition preferring a federalist account to a world-statist. Arendt famously devoted a chapter to the tension between conceptions of human rights andthe reality ofrefugeehood inHannah Arendt, TheOrigins ofTotalitarianism, Harcourt Brace, SanDiego,

1951.

10 See section 6 below. 11 Itmustbe recalled thatthe right toasylum, ifits existence canbe shown at all, remains incomplete, as long as states remain free tocontrol the immigration ofasylum seekers, andhence theexercise oftheright tonon-refoulement. See Gregor Noll, Negotiating Asylum. TheEUacquis, Extraterritorial Protection and the Common Market of Deflection, Martinus Nijhoff Publishers, The Hague 2000, 62 (ontheconstruction ofthe right toasylum inArticle 14ofthe Universal Declaration ofHuman 357– 49 (onthe impossibility to mount conclusive discrimination arguments against the Rights) and476– imposition ofvisa requirements affecting asylum seekers).

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Regardless of personal convictions, human rights lawyers are expected to “ funcinthe reality of international lawandtherefore workinthe mainstream positivist tion” tradition. Intuitively, theyknowthatarguing theuniversality andinalienability ofhuman rights as legal rights is at odds withthe underlying premises ofthis tradition. Asthere is little to be gained by alienating your advocacy friends, foundational questions remain taboo. Crafting a legal theory of human rights would risk to either pull the positivist leg under advocates, or that positing universality and inalienability. Or, indeed, both. Thepragmatic alternative istobypass thechallenge bya metaphysics of Ibelieve inhuman rights” ), orbydelegating convenience (expressed instatements as “ it to moral philosophers, political theorists and social scientists.

3. Critiques of Human

Rights

Now,the black boxhas definitely started to crack open. Theoretical explorations and critiques of human rights readily developed in a variety of disciplines12, andimpact international legal thinking to an increasing degree. Anevolving consensus on the frailty of metaphysical justification of human rights and a widespread rejection of natural lawpositions provided a backdrop forthese developments.13 Scepticism on universalist narratives andmisgivings about the liberal subject spread amongst poststructuralists and postmodernists, proliferating onwards into feminist theory, and ultimately transformed into a persistent questioning of human rights as sharing the alleged defects of enlightenment modernism. This debate made its wayinto international lawinthe late Eighties, with focal interest being legal indeterminacy andthe masquerading ofmight as right.14 However, itseemed thatthesceptics didnotwishto pouroutthebabywiththebathwater, as theyreadily acknowledged theemancipatory 12 I would notpretend to have a grasp ofthe multifarious attempts to critique andreconstruct human rights. Muchof it is located within social andpolitical theory, andbased onnation-statist premises (see, e.g. Jürgen Habermas, Faktizität undGeltung, Suhrkamp, Frankfurt a.M., 1992, andJohn Rawls, TheLawofPeoples, Harvard University Press, Cambridge 1999), butpossesses at least an inspirational potential for an international reconceptualisation of rights. Gert Verschraegen has recently brought Niklas Luhmann’s systems theory to bear onhuman rights withmuchmerit: Gert Human Rights andModern Society: ASociological Analysis fromthePerspective of Verschraegen, “

in 29 Journal of Lawand Society 258 (2002). A major rethink has been going on Systems Theory” Fora well-argued attacks on the universality of international human Universal Human Rights: ACritique” rights, see Chris Brown, “ , 1 TheInternational Journal ofHuman Rights 41 (1997), andfor a rejoinder to Brown’s critique, see Michael Freeman, “ Universalism, Communitarianism and Human Rights: A Reply to Chris Brown” , 2 The International Journal of Human Rights 79 (1998). Fora good analysis of howhuman rights theory has lost focus onthe connection between rights andthesubjects exercising them, see David Chandler, “ Universal Ethics , 5 The International Journal of andElite Politics: The Limits of Normative Human Rights Theory” within international relations.

13

14

Human Rights 72 (2001). However, natural lawis farfrombeing a deserted position. Fora recent example, see Stephen Hall, “ The Persistent Spectre: Natural Law, International Order andthe Limits of Legal Positivism” , 12 EJIL 269 (2001), who criticises the politicisation of human rights and proposes the recovery of a “ thin” version ofhuman rights onthe basis ofnatural law,which would guarantee thestrengthening 5. of compliance. Ibid, at 301– There are historical precursors to that debate. Challenging of universality is a core feature of antiliberal thought inthe 1920s, withCarl Schmitt andLeoStrauss as main proponents. Schmitt’s He,whosays mankind, wishes to deceive” ) finds its WerMenschheit sagt, willbetrügen”(” dictum “ contemporary reverbations inthesceptical accounts onhuman rights as a Trojan horse forWestern hegemony. While there are topics common to antiliberals andpostmodernists, itshould be underscored that both schools ofthought diverge intheir viewonequality.

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potential of human rights. This merits underscoring, as the critique of human rights should notbe confused withthose suggestions pushing fortheir practical relativisation

after 11 September 2001.15

The evolving bodyof critique targeted various dimension of human rights, some writers being inclined to look at contradictions inpractice of states, advocacy organisations and lawyers16, others embarking on a radical scrutiny of the philosophical premises underlying human rights arguments.17 Whatever the preference, the relationship between rights and politics is a ground where both theoretical and practical inquiry converge. Letusgive three subjectively chosen examples, broadly within the tradition of critical legal thought, and stretching from pragmatism to the history of ideas.

Inhis reflections onthe international legal order andits politics, David Kennedy questioned whether the pre-eminence ofwhathecalls “ the human rights movement” has restricted the possibilities of emancipation andlegitimised existing power structures byconfirming their critique to the language of human rights.18 Hesuggests to think pragmatically about human rights, andto assess the benefits of human rights vocabulary against its costs. Kennedy’s piece explicitly restricts itself to list “ pragmat19raised by human rights, amongst them the ical worries and polemical charges” foregrounding ofparticipation andprocedure attheexpense ofdistribution ofresources, its strengthening ofthe state, its downgrading ofthe legal profession andits belief that “workto develop lawcomes to be seen as anemancipatory endinitself, leaving the human rights movement too ready to articulate problems inpolitical terms, and solutions inlegal terms” .20Kennedy’s agenda is topushforanincreased focus onthe distributional outcomes of international governance, including that influenced bythe human rights movement. Eventually, this would repoliticise the issues dealt withbyit. This runscounter tostandard accounts, which frame human rights as something tobe isolated from politics.

15 Mostinfamous inthis respect is theproposal ofpermitting torture tocounter certain security threats, spearheaded byAlan Dershowitz andpublicly supported byRichard Posner. Alan M.Dershowitz, WhyTerrorism Works: Understanding the Threat, Responding to the Challenge, Yale University The Best Offense” Press, 2002; Richard Posner, “ , The NewRepublic Online, 9 March 2002.

16 Fora discussion ontheexcessive ambitions ofthehuman rights movement anda callfora strategic minimalism inframing human rights, see Michael Ignatieff, “ in Human Rights as Politics andIdolatry” AmyGutman (ed). Human Rights as Politics and Idolatry, Princeton University Press, Princeton 100. 2001, 3–

17 Foran argument that human rights andWestern liberal democracy are virtually tautological, see Makau wa Mutua, “ , 36 Virgina Journal of International Law589 The Ideology of Human Rights” 6). For an inquiry into human rights from a perspective incorporating postcolonial and (1995– feminist argumentation, see Shelley Wright, International Human Rights, Decolonisation andGlobalisation. Becoming Human, Routledge, London 2001. Foran interweaving ofempirical data with theoretical argumentation onthe bias ofcontemporary human rights practices, see Upendra Baxi, “ Voices of Suffering andthe Future of Human Rights” , 8 Transnational Lawand Contemporary

18

19 20

Problems 125 (1998).

David Kennedy, “ The International Human Rights Movement: Part ofthe Problem?”2001 EHRLR 245 (2001) [hereinafter Kennedy, Human Rights Movement]. Thearticle is the second ina series of three, allofwhich areseized withtheconcealment ofpolitical choices inanincreasingly technocratic perception ofinternational governance invarious forays. David Kennedy, “ TheForgotten Politics of International Governance” , 2001 EHRLR 117 (2001); David Kennedy, “ The Politics of Invisible College: International Governance and the Politics of Expertise” , 2001 EHRLR 463 (2001). Kennedy, Human Rights Movement, at 250. Kennedy, Human Rights Movement, at 258.

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Martti Koskenniemi has engaged inthe debate withtwopieces, one describing rights on political culture21, the other equating human rights with love to capture their elusive character, trapped between politics and non-political priority ofthe right overthe normativity.22 Inbrief, Koskenniemis argument is that the “ good” results inthe colonization of political culture bytechnocratic rights language23, and that rights are defined in application procedures, which, in turn, cannot be controlled bythe very rights they are set to define.24 Hepoints to fourways inwhich rights defer to politics in the context of political practice: field constitution (i.e. the characterisation of reality interms of rights)25, the indeterminacy of rights language, the fact that rights come with exceptions, andthe possibility to formulate opposed interests in the language of rights, sometimes even in terms of the same right.26 Justification andlimitation of rights bring outa “ 27:tothe extent rights curious paradox” are assumed as foundational, there can be no perspective from which to justify or examine them. Koskenniemi asserts that rights do not exist outside the structures of political deliberation, and are not a limit, but an effect of politics.28 This turns the alleged pre-political character of human rights on its head. Hemapsfive “familiar legal strategies forthemanagement ofthetension between : human rights formalism (limiting human rights to a human rights and sovereignty” legal-technical exercise, which he charges with instrumentalising human rights as a weapon ofthe hegemon), human rights fundamentalism (mystifying human rights with essentialist argumentation, thus making themvulnerable tocompeting essentialisms), human rights scepticism (viewing human rights as an irrationalist strand in liberal theory, yetfalling victim toitsownextravagant validity claims), cosmopolitan democracy(seeing rights as oneaspect ofanexpanding democratic realm, yetunderestimatingthe role of institutional power and badfaith) and radical democracy. The latter strategy emphasises the role ofpower inthedemocratic process, thus moving further than cosmopolitan democracy, andKoskenniemi obviously hosts some sympathy for it. Reflecting on its implications, he suggests that asserting a right will remain an Itistoclaim inthenameofuniversality: this attempt tofulfil thespace oftheuniversal: “ belongs not only to me but to everyone in myposition. Thus, it always implies ,29 membership ina community, andhaving the benefit because ofthatmembership” Hedescribes this membership as a horizon that recedes whenitis approached.30 One of the most elaborate critiques of human rights is developed in Costas .31 Douzinas inquires into the the end of human rights” Douzinas monograph on “

the effect of human

reasons for what he describes

as a huge gap between

theory

and practice: the

, in Philip Alston et al. (eds.), The EU The Effects of Rights on Political Culture” Martti Koskenniemi, “ and Human Rights, OUP, Oxford 1999, 99–116 [hereinafter Koskenniemi 1999]. , 4 Mennesker & Rettigheder 33 (2001) 22 Martti Koskenniemi, “Human Rights, Politics and Love” [hereinafter Koskenniemi 2001]. 23 Koskenniemi 1999, at 99. Yet rights are notfoundational butdepend oncollective goods that are 24 Koskenniemi 2001, p. 35. “ Koskenniemi 1999, p. 105. evaluated independently fromthe rights through which welookatthem.”

21

25 For an excellent retracing of the field constitution effectuated by EU institutions through the AllDressed UpandNowhere toGo:TheDebate onthe instrument ofhuman rights, see Päivi Leino, “ EUCharter ofFundamental Rights” , forthcoming inXIFinnish Yearbook ofInternational Law(2003).

26 27 28 29 30

Koskenniemi Koskenniemi Koskenniemi Koskenniemi

7. 2001, at 35– 1999, at 105. 2001, at 38. 2001, at 43 (emphasis in the original).

Ibid.

31 Costas

Douzinas, Oxford 2000.

TheEndofHuman Rights: Critical Legal Thought at the TurnoftheCentury,

Hart,

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paradox of persisting barbarity at a time where human rights seemto have wonthe ideological battles ofpostmodernity.32 Making human rights legal, theargument goes, strips themoftheir critical andtransformational potential. Douzinas reaches far beyond the standard fare opposition between natural law andpositivism, andbrings outhowtransformations inthe idea ofnature bythe Stoics relate to the decline of human rights as a critical device. While nature was a selfstanding, malleable system of practical reasoning inthe Attic period, the “ Stoic turn” transformed it into a static set of rules. Douzinas links the decline of natural law reasoning to the “ deification of the individual”by Hobbes and liberal thought, leading 33andthe intimate connection ofsovereign individual tothe“primacy ofright overduty” When they and state sovereign. This introduced the devaluation of human rights: “ movefromtheir original aimofresistance tooppression andrebellion against domination, to the contemporary endof total definition andorganisation of self, community andthe world, according to the dictates of endless desire, they become the effect rather thanthe resistance to nihilism” .34Ultimately, Douzinas believes that the incorporation of human rights into the end of history, ideology and utopia would “ bring human rights to anend” as they lose their utopian end.35 In one wayor other, all three critiques are seized with the defense of politics, utopia anda rich conversation onthe good life against the muting effects of human rights.36 Against Kennedy, Koskenniemi and Douzinas, it could be argued that human rights, rather than consuming space for political deliberation, also produce such human rights talk”is a political esperanto with all its benefits space.37 After all, “ (transnationalism) anddrawbacks (elitism andartificiality). To perform this function, andto create this space, it needs to be coupled to excessive claims about its own capabilities. WithKennedy, Koskenniemi andDouzinas, wecould still askwhether itis worth the while, whether the benefits of this excess outweigh the drawbacks of infusing politics with a dose of bad faith, and whether the arena of human rights talk is the mostadequate one, given its weakcapacity toarrive at binding decisions. Thepurpose ofthis text is nottofollow uponthat question. Rather, I would like to further pursue the clash between the positivist legal techniques and the foundational assumptions ofuniversality andinalienability attached tothecontemporary concept of human rights. It seems to me that this issue, specific to and central for the credibility andconsistency of human rights as a project of international law, merits a detailed scrutiny. Douzinas suggests that human rights treaties have brought about “ a new type ofpositive law,the last andmostsafe haven ofa suigeneris positivism” .38Letus revert to the mainstream “ human rights formalists”working in the tradition of this positivism, andhave a closer lookat the particular contradictions it hosts.

32

33 34

35 36

37

38

Douzinas, supra, at 2. Douzinas, supra note 31, at 74. Douzinas, supra note 31, at 214. Douzinas, supra note 31, at 380. Forananalogous argument rejecting rigid definitions andanalysing human rights as anevaluative term from the vantage point of language philosophy, see Alexander Matthews, “ Philosophy and ‘Human Rights’” 30. , 1 TheInternational Journal ofHuman Rights (1997) at 19– Foranexample, see Klaus Günther, “ TheLegacies ofInjustice andFear: AEuropean Approach to Human Rights andtheir Effects onPolitical Culture” , inPhilip Alston etal. (eds.), TheEUandHuman Rights, OUP, Oxford 1999, 117– 44, framing human rights as a process inwhich a victim of injustice regains voice andcontrol. Douzinas, supra note 31, at 184.

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4. Legal Positivism Cannot Affirm Universality , I mean rights that are owed to a person in a legally binding human rights” With “ manner merely byvirtue of his orherbeing human. The absence offurther preconditions –as citizenship, location, personal attributes ordemeanour –is a core element of human rights as understood in this definition. With the “universality”of human rights, I mean that rights with a concretely identifiable andlegally binding normative content, are owed to any human being, regardless of membership, location in the world, personal attributes ordemeanour. Hence, universality is already implied inthe above definition of human rights. A positivist understanding of human rights law collides head-on with this notion of universalism. Technically, three interrelated arguments support this contention:

• Onlystates are duty-bound under international law International lawis a state-centrist normsystem. This sets itapart from, say, moral

philosophy, which can afford to be anthropocentric. Hence, the philosopher finds every human being to respect human rights39, while the positivist international lawyer is limited to states as respondents to human rights norms.40 This notwithstanding, rights can unfold reflexive obligations on others thanstate parties, buttheir existence delege hinges onthemediation ofa state.41

no problem inobliging

obligations follow thefoundational delimitations ofnation states The allocation of human rights obligations is based onthe trinity ofstate-population-territory, andthe force of obligation decreases withthe distance to each of these determinants. Human rights have less tooffer those whoarevictims ofnonstate violations.42 Their scope is limited for non-citizens, andgravely limited for non-denizens43. Asa matter ofprinciple, nationality is a matter ofstate discretion, avoid” statelessness.44 Actions or although states are under a qualified duty to “

• Human rights

39 See e.g. Alan Gewirth, whoconceptualises human rights as “rights of every human being to the necessary conditions of human action” andstates that “they must be respected byevery human . The term “human”in the concept of human rights thus refers both to claimants and being” respondents. AlanGewirth, Human Rights. Essays onJustification andApplication, The University of Chicago Press, Chicago 1982, at 3.

40 To borrow further fromGewirth, human rights can be conceptualised as claim-rights, structured as follows: Ahas a right to X against B byvirtue ofY. Ininternational law,the respondent B is perforce a state. Gewirth, supra note 39, at 2. 41 Take thedoctrine of Drittwirkung (third party effect) as anexample. Thehuman rights normobliges the state notonly to refrain fromviolating it in its ownactions andomissions, butalso to see to that such non-state actors forwhich the state is legally responsible under international lawrefrain from interfering withthesaid right. Astate maydeliver onthis specific obligation bydomestic legislation. Towit,theindividual obligation created bysuchlegislation is nolonger inthedomain ofinternational law.

42 See Shelley Wright’s analysis of howhuman rights lawcovers state violence inthe prohibitions of torture, while it remains incapable ofcapturing gendered violence inanallegedly “ private” domain. Wright, supra note

86. 17, 172–

43 Bywayofexample, industrialised states showa tendency toreduce health care forrejected asylum seekers toa bare minimum ofemergency care. Atthetime ofwriting, the UKgovernment pursues a proposal toextend this rule toasylum seekers withpending applications. 44 The European Convention onNationality, 6 November 1997, ETS 166, nicely reflects thetensions [e]ach between state discretion andthe individual right to a nationality. Its art. 3 (1) lays downthat “ State shall determine under itsownlawwhoare its nationals” . This state right is generally regarded as being part of general international law(Tunis andMorocco Nationality Decrees, PCIJ Reports (1923), Series B, No.4). TheConvention subjects a state’s competence todetermine its nationals to “ applicable international conventions, customary international lawandthe principles of lawrecog-

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omissions bya state outside its territory entail responsibility only inexceptional cases.45 Hence, norms of state responsibility, the territorial, jurisdictional as well as personal delimitations of human rights treaties create white spots in the universe ofhuman rights –spots where nomeaningful legal responsibility canbe determined46, andvictims remain unprotected. Attimes, states consciously move persons to such white spots, or consider doing so, to decrease their legal obligations.47

disintegrate into a diversity

ofsingular state obligations to ratify ornotto ratify treaties, they enter reservations at times, reservations on occasions, allow or deny monitoring, accept or reject

• Human rights

States choose

protest decisions by monitoring bodies. The ensuing body of norms is highly diverse and split upinto particularised sets of obligation for each state. It forces us into the specifics of treaty law (and the odd customary law argument, although the potential fordissent ongenesis andinterpretation ofsuch norms dissuades most positivists). The universe of human rights, and its credibility as an umbrella

45

46 47

nised with regard to nationality”in art. 3 (2). In an attempt to flesh outthe principles governing nationality, art. 4 lists inter alia every person’s right to a nationality andthe avoidance ofstatelessness. The Explanatory Report says the latter to be part of customary international lawandmakes theprinciples enumerated inart.4. Chapter IIIof obligation to regard” clear thatstates are under an“ theConvention thenattempts tospecify whatthedutytoavoid statelessness means forContracting States, providing inter alia forthe acquisition of nationality by birth andlimiting the state right to withdraw nationality on the consequence of statelessness to cases of fraudulent acquisition. However, art. 29 (1) stipulates that Contracting Parties remain at liberty to file reservations onthe specific rules relating to nationality laiddowninChapter IIIoftheConvention (as longas those are compatible with the object andpurpose of the Convention). Hence, the specificity of the rules in Chapter IIIwould seemto exceed whatis borne outingeneral international lawat the moment. As the Convention deals exclusively with the matter of dejure statelessness, persons whoremain unprotected defacto are left tothe benevolence ofstates (Council ofEurope, Explanatory Report to the European Convention on Nationality, comment on art. 4, para. B). Neither does it provide a mechanism by which those illegitimately denationalised by one state gain access to another nationality. See the case of BankoviC and Others before the European Court of Human Rights (hereinafter ECtHR), where the Court ruled anapplication bycivilian victims ofthe 1999 NATOaerial attack on the Belgrade TVandradio station to be inadmissible, dueto it being outside thejurisdiction ofthe respondent state parties. The case can be read as a subordination of the right to life as a human right to rules of international lawdelimiting jurisdictional responsibility of a state. Given that the Federal Republic of Yugoslavia waswilling to protect the life andhealth of Bankovičandthe other claimants., butlacked effective military means todoso, thealleged violation is hardly attributable to themeven under the most extensive doctrine of Drittwirkung. BankovičandOthers v Belgium and Others, ECtHR, Decision of 12 December 2001, Appl. No. 52207/99. Kosovo has delivered an illustrative example. Foran elaboration of lacunae inthe human rights , [2001] EHRLR WhoGuards theGuards –the Rule ofLawinKosovo” framework, see Nuala Mole, “

281.

Guantanamo Bayis perhaps the best known recent example of howpersons where moved outof the legal protection owedunder norms governing occupation, without moving themintothescope of US constitutional andhuman rights protection. Another one is the idea presented inearly 2003 by the UKandseconded bythe Danish andDutch governments to remove arriving asylum seekers to “ transit processing zones” and“ zones of protection”elsewhere to bring them outof the realm of judicial review andfully fledged asylum procedures. Towit,this idea is practiced byAustralia since 2001, removing asylum seekers arriving bysea to neighbouring countries within the framework of the so-called Pacific Solution. Again, thewilful diminishment oflegal protection canbe identified as a core aim. Fora legal andtheoretical analysis, see Gregor Noll, “Visions ofthe Exceptional: Legal andTheoretical Issues Raised byTransit Processing Centres andProtection Zones”5 European Journal of Migration andLaw(2003) 303.

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concept inthe legal sense, is broken upinto a multitude ofsingular legal obligations. We are left with a host of questions stemming from the law of state responsibility andthelawoftreaties. Isanalleged violation attributable toa state? Is that state bound bya pertinent human rights obligation? Howis that obligation to be interpreted andapplied incasu? Hence, positivists cannot affirm that human rights belong to everybody regardless of belonging, merely onaccount ofbeing human.48 Atanypoint intime andspace, there willbe individuals whoare denied pertinent human rights, given that they cannot be identified as human rights obligations incumbent ona state ina position tocontrol their implementation. Here, a divide in the use of language emerges. Different from philosophers, international relationists or human rights advocates, positivist international lawyers cannot speak ofa singular “ ingoodfaith. Ifweare true tothe bodyof human rights” methodological tools oflegal positivism, “ human rights” is buta termofconvenience, a conceptual exaggeration that willdisintegrate into casuistically determined legal relationships under rigorous scrutiny. Asother disciplines are notnecessarily fettered by state-centrism and its consequences to the same degree as international law, a generic concept of human rights canverywellbe designed andmake sense inthem, as itwilldoingeneral, non-scientific parlance. Byconsequence, international lawyers adapt to a superimposed language which ultimately collides withthe dominant methodology usedintheir profession. This, inturn, creates false expectations andmiscommunication, perhaps even a “ culture of badfaith” .49

5. Legal Positivism Cannot Affirm Inalienability 50,their unconditional existare generally heldto be “inalienable” ence as anendcannot be represented ina positivist system.51 “Inalienability”implies that human rights are notat the disposal of politics. Fromthe perspective of international law,this does notmake muchsense. While human rights

48 Atface value, muchhuman rights writings appear to contradict this conclusion. However, authors tendtoomitprecise definitions ofuniversality orto broadly survey developments towards universality. Bywayofexample, Eibe Riedel has delivered anexcellent account ofdevelopments inpositive law,arguing that mostofthenorms inthe Universal Declaration ofHuman Rights have acquired the status of customary law. However, he fails to define “ universality”and admits the continuing existence of gaps inobligation andimplementation. Eibe Riedel, “ Universeller Menschenrechtss, in Eibe Riedel, Die Universalität derMenschenrechte. chutz –VomAnspruch zurDurchsetzung” Philosophische Grundlagen. Nationale Gewährleistungen. Internationale Garantien, Duncker & 49

37. Humblot, Berlin 2002, 105– “ ), but Finally, a political culture that officially insists that rights are foundational (” inalienable” ,“ basic” inpractice constantly finds that theyare not, becomes a culture ofbadfaith” . Koskenniemi 1999, at 100.

50 Thepreamble ofthe 1948 Universal Declaration of Human Rights suggests that the“recognition of theinherent dignity andoftheequal andinalienable rights ofallmembers ofthehuman family is the . Universal Declaration of Human Rights foundation of freedom, justice and peace in the world” (1948), GARes. 217 A (III).

51 Inhis seminal study onthe conception of violence, Benjamin opposes positivism with natural law anddescribes theformer as “blind forthe unconditionality ofends” blind fürdie Unbedingtheit der (” ). Walter Benjamin, ZurKritik derGewalt undandere Aufsätze, Suhrkamp, Frankfurt 1965, Zwecke” at 32.

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• Technically, human rights norms are hostage ofprecisely thesame mechanisms as other international legal obligations. Asanytreaty under international law, a

human rights treaty is the product of consent among states. States can abstain a party; parties canalter themorwithdraw fromthem, provided the procedural rules to that effect are duly followed. Should we choose to accord the quality ofiuscogens tocertain human rights norms, this makes change procedurally more demanding, butdoes not rule it outaltogether. Inthe field of custom, practice canchange eventothedetriment ofhuman rights, andifopinio juris does so, too, anyhuman rights normcanbe downgraded orevenabolished.

frombecoming

human rights obligations are derived from the will representation of a particular political community organised ina nation-state withdelimited territory.52 Aslongas thesocial-contractarian paradigm is hinged ontheidea ofthestate and replicates all its limitations, there are no cogent reasons to grant rights to noncontractarians “ outside” thestate. This would explain whySerbian civilians remain unprotected under Belgium’s ECHRobligations53 (inspite ofthewording inArticle 1 ECHR, which refrains froman explicit territorial confinement of ECHR rights), and it would also explain whyrefugees, asylum seekers and undocumented migrants find themselves at the verges of, or even outside, the human rights universe.

• Legal

Thetechnical andthesocial-contractarian aspects are buttwosides ofthesame coin, both illustrating various dimensions in the political contingency of human rights. A goodpositivist has to acknowledge that human rights are created bystates, andthe very same states can alter and abolish them as well. Admittedly, the increasing density inthe meshofhuman rights obligations makes their alteration orabolishment a complex matter. Yet, provided the political stakes are high enough, there is no absolute impediment for a state determined to liberate itself from its human rights obligations de lege.54 If we coalesce the state-centric features of international lawwith the political contingency ofhuman rights, weare left witha paradox. Theeffective implementation ofhuman rights presupposes functioning andpowerful political communities incontrol oftheir territory andpopulation55, yetthecontent ofhuman rights cannot be insulated frommanipulation bythe politics ofsuch communities.

6. Human

Rights Beyond the Polis?

This has brought us to a point where no comfortable conclusions await us. As the suffocating embrace

ofhuman rights

formalists

byhuman rights

advocates illustrates,

52 This opens upa vista towards a communitarian argument: “Rights have no separate ontological status; they are a by-product of a particular kindof society... To overemphasize rights inisolation

fromtheir social context is counterproductive, potentially undermining theveryfactors which create thecontext inwhich rights are respected” 9. . Brown, supra note 12, at 58– 53 See the case of BankovičandOthers before the ECtHR, supra note 45. 54 Inrecent years, certain Western governments have indeed publicly discussed the possibility to pull outof core human rights obligations to accommodate counterterrorist agendas. Most notably, the

55

UKhas at times questioned its commitment under the European Convention forthe Protection of Human Rights andFundamental Freedoms (ECHR). Gewirth states that the “ primary justification of governments is that they serve to secure these rights” . Gewirth, supra note 39, at 3.

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politics colonise human rights in a number of ways. Conversely, as the critiques of human rights remind us, human rights colonise politics. Weare left withthe question whether the political space ofhuman rights canbe decoupled at allfroma specific state community, so as to be truly “ . Arethere human” human rights beyond the polis? And beyond the contract? Apparently, the “ white onthe mapof human rights are beyond the legitimate reach ofthe polis: “ spots” The lack of an autonomous human subject means that human rights advocates’aspirations fora better andmorejust society mustnecessarily focus ona beneficent agency, external tothepolitical sphere, toachieve positive ends. There maybea dutytoactto fulfil human rights needs butthere is nopolitically accountable institution that canbe 56 In the following attempt to inquire into the question of polis and relied upon.” contract, I would like to focus on human rights as access rights, as devices for

inclusion.

Gert Verschraegen has recently attempted to develop a sociological theory of human rights based onNiklas Luhmann’s systems theory.57 According toVerschraegen’s reading of Luhmann, human rights have emerged together with, and are necessary for, the formation of a functionally differentiated society. This society is characterised bythe existence of several subsystems –e.g. economy, politics, law, science –which are diverging, yetinterdependent spheres ofmeaning, each hosting its own symbolically generalised medium of communication (e.g. money, power, legality, truth). Notably, these media ofcommunication arenotnecessarily confined by state borders. Functional differentiation allows society tomaster anincreasing degree of complexity. Human rights regulate the participation of individuals within societal subsystems ina number ofways. Inpremodern society, individuals could be wholly included insystems foreconomy, religion, politics or science. This is no longer possible. Infunctionally differentiated societies, an individual can engage indifferent subsystems, yetwillnotlive inthem. Fundamental freedoms ensure thatthe individual is first wholly excluded fromsociety as an individual, allowing himor her to re-enter into sub-systems under specified conditions set upbythose (e.g. to possess resources when entering the economy). Anyinclusion will only be partial, andlife will be characterised by multiple engageByencouraging theindividual toparticipate freely indifferent function systems ments. “ andby preventing one subsystem or social group to completely control himor her, human rights strengthen and protect the high degree of individual mobility and 58Additionally, equality communicative openness uponwhich modern society is built.” rights secure that individuals have access to subsystems regardless of social position.59 Yet, human rights also protect society as a whole and its subsystems from regress, that is, inLuhmann’s terminology, “ de-differentiation” . Based onVerschraegen’s development of Luhmann’s theory, one could characterise human rights as access rights. They host a negative component, fending off intrusions into indivdiual freedom ofchoice andhalting theappropriation ofindividuals bysocietal subsystems. This creates preconditions formultiple accesses. Moreover, theyhost a positive component, securing equality andnon-discrimination inaccess to subsystems, governed only bythe specific access criteria of that subsystem rather than functionally irrelevant factors attached to the individual’s social position. To my

56 Chandler, supra note 12, at 84. 57 Verschraegen, supra note 12. 58 Verschraegen, supra note 12, at 270, witha reference to Luhmann. 59 Verschraegen, supra note 12, at 278.

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mind, there is muchmerit inthis attempt totrack thedynamics between exclusion and inclusion hosted inthe conception of human rights. Indeed, human rights doexclude individuals fromsocietal organisation first: anyone willenjoy a “ fundamental freedom” fromtotal, all-embracing inclusion byonesingle subsystem. However, whowillprotect the individual beyond this freedom in a pre-inclusionary situation? Effective protection is premised onsome formof inclusion. Otherwise put, the protective function human rights are embedded into societal subsystems as, for example, law. Those denied access tothat subsystem60, are denied the protective dimension ofhuman rights. To them, human rights are but radical exclusion, andtranslate into insupportable freedom.61 Put in system-theoretical terms, one could claim that human rights place

human beings inthe environment, andnotinthe system. Another aspect ofthis account ofhuman rights merits ourattention. Different from standard liberal-individualist accounts, Luhmannian human rights set societal organisation prior to the modern individual. Their function is to secure autopoiesis through individual participation infunctional differentiated societies, andanycreation of individual dignity, autonomy orrights is derived fromit. This seems to fall inline withthe misgivings ofcritical legal theorists, whosuspect human rights forbeing affirmative of existing power structures.62 Faced withthe question ofwhatthe polis ofhuman rights is, a Luhmannian account would point to the functional systems, while the positivist points to the state. Quite clearly, both accounts rest ona logic ofexclusion. Although stemming from starkly different paradigms, the system theoretical account of exclusion through human rights goes welltogether withGiorgio Agamben’s biopolitical conception of human rights. Agamben distinguishes bare life –zo_ –from political life –bios – in his attempts to explain the ordering of societies:

Declarations ofrights represent theoriginary figure oftheinscription ofnatural life inthe juridico-political order of the nation-state. The same bare life that inthe ancien régime waspolitically neutral andbelonged toGodas creaturely life andin the classical world was (at least apparently) clearly distinguished as zo_ from political life (bios) now fully enters into the structure of the state and even becomes the earthly foundation ofthe state’s legitimacy andsovereignty.63 Seen insuch manner, the nation state appropriates birth, and, withit, natural life: Thefiction implicit here is that birth immediately becomes nation suchthat there can be no interval of separation [scarto] between the two terms. Rights are attributed to man (or originate in him) solely to the extent that man is the immediately vanishing ground (who must never come to light as such) of the citizen.64

60 61

62

the “unlawful combatants”at Guantanamo Baycould serve as an example. German holds the term“vogelfrei” forthis state, which is characterised bybeing completely stripped oflegal orother protection. Itis congruent withAgamben’s HomoSacer –a manwhocanbe killed, yet notsacrificed. See Giorgio Agamben, HomoSacer. Sovereign Power andBare Life, Stanford 4. University Press, Stanford 1998, at 71– The linkage between systems theory andpostmodern thought (which is a source of inspiration for critical legal theory) is particularly striking intheconceptualisation ofexclusion. See Wilhelm Rasch, “ The Limit of Modernity: Luhmann and Lyotard on Exclusion” , inW. Rasch andC. Wolfe (eds.), Observing Complexity, Systems Theory andPostmodernity, University of Minnesota Press, MinneAgain,

214. apolis 2000, 199– 63 Agamben, supra note 61, at 127. 64 Agamben, supra note 61, at 128.

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A look at contemporary international lawconfirms the relevance of Verschraegen’s andAgamben’s analysis. The international lawof nationality reflects a desire foran almost total appropriation of the individual through nationalisation at the moment of birth.65 Withreservation made fora sole exception66 andadministrative imperfections inthe application of the rules onthe acquisition of nationality, formal statelessness

would disappear. Seen such, international law would seem to be at the verge of between birth andnation, between bare life and interval ofseparation” eliminating the“ political life. Byvirtue ofbeing born, everyone enjoys theright toa nationality, which is in fact the critical access right to the enjoyment of human rights. At this stage of appropriation, human rights might become congruent withcitizens’rights, protecting fromtotal inclusion rather thanfromexclusion.67 Weknowthis tobefictitious, because dejure nationality does notmeandefacto nationality, andanentitlement toprotection

dejure does notnecessarily translate into defacto protection. Inreality, there are menandwomen whohave beendelivered tolife inan“interval

of separation”between biology and politics, who are de facto without protection by any state. Forthem, theequation is a different one. Where theaccess right ofnationality is

effectively unavailable, human rights are reduced totheir exclusionary function, which nowbecomes counterproductive forthe individual. Where a human being emerges merely as a human being, heorshe is characterised by such exclusion. As Agamben has pointed out, the refugee brings out the radical crisis intheconcept ofhuman rights,68 included solely bymeans ofexclusion. Asbare life is appropriated bypolitics atthe moment ofbirth through inclusion intothe nation, human rights cannot be apolitical. The critiques of human rights exposed in Section 3 above, a system-theoretical account andAgamben’s reconstruction overlap in their affirmation of the polis and membership as central elements, thus making universality andinalienability contingent onother factors than being human.

7. Conclusion Thefictions ofuniversality andinalienability collude anexclusionary aspect ofhuman rights. Itcan be laid bare byapplying a positivist method, andits logic explored with either a system-theoretical oranAgambenite approach. Human rights take partinthe formation ofa polis byexcluding thebare life ofthehuman being fromthatcommunity, to then re-include it andsubject itto its regulation. Where re-inclusion does nottake place, forone reason or another, the exclusionary function of human rights creates outcasts which have nomore, are nomore thanbare life (refugees being a prominent example). Seen thus, human rights constantly remind ushowdevoid ofprotection we are outside the polis. Atleast conceptually, human rights work reasonably well as

65 See art. 24 (3) ofthe International Covenant onCivil andPolitical Rights, 19 December 1966, 999

UNTS 171; art. 7 of the Convention on the Rights of the Child, 20 November 1989, UNDoc. A/Res/ 44/25, andthe norms laid downinthe European Convention onNationality (supra note 44). 66 Save forcases offraud, states bound bythe European Convention onNationality are prohibited to denationalise a person ifthis would leadto statelessness. Art.7 (3) ofthe European Convention on Statelessness. 67 Ina double sense, though: they would be rights held bycitizens, butalso determined bycitizens, folding back law into the political. 68 Agamben, supra note 61, at 134.

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protective devices once re-inclusion hastaken place. Yet, as there is noaccess right to a polis, there is noright foranyhuman inanysituation to have human rights.69 Gregor Noll, Faculty of Law, Lund University, Box 207, SE-221 00 Lund, Sweden

69 To be sure, this is nocandidate fora quick legislative fixto be pursued bylawyers, advocates or Just because oncanobserve the excluded as excluded does notmeanthat the excluded others. “ can nowbe painlessly included, forthis logical observation also operates bywayofexclusion and canonlysee a former exclusion, a ‘latency’, bywayofnewexclusion. Tryas wemight, wehave not developed alternative logics, ones that could promise exclusion-free inclusion. Thus, remediating the effects of the process of exclusion can only happen by replicating the effects of the process of 4 (emphasis inthe original). exclusion.” Rasch, supra note 62, at 203–

Claes Peterson

The Concept of Legal Dogmatics: From Fiction to Fact1 Inhis major work, Cursus derInstitutionen, first published in1841/42, Georg Friedrich 1846) declared inanalmost programmatic way,thatthepurpose ofthe Puchta (1798– Romanistic studies of lawwasnotto investigate the history of Roman lawforits own sake. Thegoal instead wasto transcend the historical limitations of Roman lawand find its c ommon significance” . By doing so, an a utonomous science”would be “ inthe field of law.What Puchta hadin“ established mindwasanacademic discipline that was not subjected to an object limited in time and space. Consequently, he encouraged his colleagues to pursue this aiminthe following way: We shall liberate ourselves fromthe dependency ofthe wording. Letus instead be guided “ bythe spirit ofthe Roman law” .2Legal scholars should notbe trapped ina historical viewofthe inherited law, but devote themselves to analysing Roman lawas it transcended historical context. T hrough Roman law, beyond Roman law” was the message. In order to find the universality of Roman lawandthereby make roomforit inmodern “ legal dogmatics, its limited national scope hadto be overcome. The subject of the study of Roman law, according to Puchta, should thus be pure Roman law (das reine römische Recht), i.e. Roman lawpurged ofits specific historical traits. Inlegal historical literature, Puchta traditionally has been depicted as the actual founder of Conceptual Jurisprudence.3 Puchta, in other words, espoused a legal theoretical perspective which ascribed to legal concepts an independent intellectual existence.4 This means that Puchta understood legal concepts as separate fromthe empirical reality ofthe law.According tothis model, the scientific creation ofthe lawis to occur inthe formof abstract conceptual constructions. The method is to be based

on an inductive process. The law is to be cleansed of its impurities and in an basic conincreasing process of abstraction, one would reach a number of pure” cepts, fromwhich the lawinits entirety would emanate. Inthe reverse, “ thediversity of legal suppositions andlegal rules would be deducted fromtheframed basic concepts. Puchta’s method, abstracting froma mass oflegal rules thecommon elements which later can be summarised as concepts, fromwhich newsubstantive legal rules could be deducted, wasrejected byPhilipp Heckandthe Interessenjurisprudenz as simply conceptual jurisprudence. That which wasprimarily objectionable withrespect to the method (by Heck christened the Inversion method” ) wasthat more was ascribed to the general concepts than what was “ originally placed in them.5 The boundaries of logic were transgressed inan impermissible manner. Another famous picture is Karl Larenz’critical description of Puchta’s systematic ideal as a “ conceptual pyramid” ordered after thestrict rules offormal logic.6 Sucha statement byPuchta thatscientific 1

2 3

4 5 6

This essay is closely linked to the contribution to this volume by Marie Sandström, The Concept of Legal Dogmatics Revisited. Mypaper should be seen as a tentative outline. G. F. Puchta, Cursus derInstitutionen, vol. I, 1841, p. 107. See GerdKleinheyer &Jan Schröder, Deutsche undeuropäische Juristen ausneunJahrhunderten, 330. 4th ed., Heidelberg 1996, p. 329– Franz Wieacker, Privatrechtsgeschichte derNeuzeit, Göttingen 1952, p.254. Wieacker also maintains that Puchta follows thenatural lawlegacy fromChristian Wolff andhisstrict deductive method. Heck, Philipp, DieBegriffsjurisprudenz, in Theorie undTechnik derBegriffjurisprudenz, ed.Werner Krawietz, Darmstadt 1976, p. 191 ff. KarlLarenz, Methodenlehre derRechtswissenschaft, Berlin 1960, p. 17 f.

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lawinthe strict meaning wasthe result ofa scientific deduction, whentaken fromits context, has been seen as irrefutable proof that Puchta was a conceptual jurisprudence scholar.7 The viewof Puchta as a path breaker forconceptual jurisprudence however has been shown to be exaggerated and has been modified to a high degree in recent scholarship.8 A more nuanced and overall depiction of Puchta’s view as to the relationship between the actual organic nature ofthe lawandits conceptual formhas conceptual pyramid”had little in emerged. It has been demonstrated that Larenz’“ common with Puchta’s ownsystemic view. Inhis criticism of the historical school’s altogether too strong emphasis on the law’s organic-historical character, Puchta certainly maintains the law’s logical or rational side, but without asserting a strict hypothesising of the legal concepts. On the contrary, he underscores that it ought to be a crime against thehistorical nature ofthelawtodeduce, fromseveral overarching principles, legal principles andlegal rules.9 According to Puchta, the problem actually wasthefact that the historical school didnotsufficiently recognize thesignificance of the logical, rational side of the lawinthe creation of the law.10 Consequently, itwas simply a question of a different emphasis of the systemic conceptual elements than those invoked by Savigny. In that aspect, Puchta maintained that Savigny’s view meant “ einHinausgehen überdenStandpunct derreinen historischen Schule” , when he, in addition to legislation and customary law, counted legal science as a third source of the law.11 The balance between the different sources of the law, Puchta meant, is better if the scientific side is allowed to have a larger influence on the creation ofthelaw.However, itcanbeargued thatthis shift inemphasis as tothelaw’s conceptual element gives the impression of a certain ambivalence, notto mention contradiction, byPuchta. This is particularly clear inthe polemic with Friedrich Julius Stahl as tothetrue nature ofthe legal system. Whenconfronted withStahl’s criticism that his logical deductive system approach could notbe combined withthe law’s own organic structure, Puchta responded bystating that the lawcould notbe mastered by anything other than a hierarchical system, ordered under a fundamental principle. If instead onechose to describe the lawinits actual organic nature, which is more fluid andvague, onewould have toconsequently abandon allattempts attrying toachieve a systematic control ofthe law.This inits turncould have devastating consequences forpredictability andlegal certainty. Puchta therefore rejected allsystemisation ofthe legal materials that didnotstemfroma principle. Atthesame time, allsystemisation of the legal materials as institutions, concepts andprinciples mustbe proven against the historical free law. Inorder to give a place to this free side ofthe law, Puchta denied legal science the ability to be able to change legislation orcustomary law.The lawin

7 8

Puchta, Cursus derInstitutionen, I, p. 37. , Frankfurt Begriffsjurisprudenz” Hans-Peter Haferkamp, Georg Friedrich Puchta unddie “

amMain

2004, p. 257 ff. 9 Inthe Encyklopädie als Einleitung zuInstitutionen-Vorlesungen, 1825, § 12, Puchta maintains that mitträumenden anyone whobelieves that they can construct an ideal lawfrom rationality can “

. verglichen werden, welche zufliegen wähnen, aberaufdenFedern nurliegen” 10 AstotheHistorical School’s rather strong emphasis onthehistorical element atthecost ofthelaw’s [d]ies wirdeinleuchten, wenn manerwägt, dass diese Schule logical rational side, Puchta states “ vorzugsweise derfreien Seite des Rechts, denn dies eben ist die geschichtliche, sich zugekehrt, seine logische undvernünftige dagegen zwarnicht negirt, aberdochindenHintergrund gestellt, und , cited from Walter Wilhelm, Zurjuristischen ihrweniger Einfluss, als ihrgebührt, zuerkannt hat” 11

Methodenlehre im 19. Jahrhundert, Frankfurt am Main 1958, p. 80. Citerat efter Wilhelm, p. 79.

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was placed inthe foreground, while legal science, as Hans-Peter Haferkamp notes, wasallowed toplaya secondary role as a supplementary legal source withthe task of filling in the gaps when the judge was left without aid bythe legislator and general legal knowledge.12 Those which appear to be irreconcilable sides of the law– could becombined, according to Puchta, by logical necessity andhistorical freedom – assuming that the lawwas rational –in other words, that reality was understood as causal –andthat itwasthetaskoflegal science tosearch andidentify thatwhich was rational inthe historically changing law.Thelaw,inits creation through legislation and customary law, wasa gestalt infreedom, while inits continued development, itwas cast under a logical necessity.13 There therefore is noreason toassume that Puchta hadabandoned Friedrich Carl 1861) opinion that the abstract ordogmatic element only reprevonSavigny’s (1779– sented one aspect of the law, which continually must interact with its social aspect. EvenPuchta emphatically stressed that legal dogmatics, separated fromits historical context, represented “ a one-sided approach”that would never fulfil scientific or methodological requirements.14 Like Savigny, Puchta regarded lawas a historical, social phenomenon, that inanorganic wayadjusted itself tothe changes oftime and space. The subject of legal science accordingly could only consist of law that was in force at a specific time, among a specific people. Consistent withthis conception of law, Puchta pointed outthatjurisprudence was“ the most national ofallsciences (die . Inresponse tothe needofthepractical lawyer to nationellste aller Wissenschaften)” fulfil his tasks, Puchta therefore, inaccordance with Savigny, understood legal dogforce

matics as a fiction. Although lawinitself waschanging constantly andorganically ina changing society, the lawyer hadto pretend as ifthe lawfora moment stood still and waslimited toa narrow circle oflegal sources. Hecould nottake theongoing changes oflawintoconsideration whensolving a problem. Savigny’s andPuchta’s understand-

12

13

14

Haferkamp, p. 375. Die Entstehung des Rechts durch den Puchta formulated the context in the following way: “ unmittelbaren Willen derNation isteine freie; wassie hervorbringen, unterliegt imEinzelnen keiner eine bestimmte Linie vorschreibenden Nothwendigkeit ... ImGanzen [aber] besteht auch fürsie eine gewisse Schranke indervernünftigen Natur des Rechts; das Recht ist etwas vernünftiges, in seiner Entwicklung einer logischen Nothwendigkeit unterliegendes. Wennz.B. derGesetzgeber das Eigenthum anerkennt, so anerkennt er damit nothwendig auch die verschiedenen Consequenzen ausdieser seiner Natur, wonach es z.B. inseiner Wirkung eine ganzandere Beschaffenheit hat, als , G.F. Puchta, Vorlesungen über das heutige römische Recht, Bd1, 6thed., Leipzig die Obligatio” 1873, p. 23. Citing Hans-Peter Haferkamp, Recht als System bei Georg Friedrich Puchta, Forum historiae iuris 2003, p. 54. preferably” could concentrate on the historical, positive and Legal science according to Puchta “ scientific, dogmatic aspects of law, respectively, as long as they were notheld as separate from each other. Cf. Cursus derInstitutionen, vol. I, p. 100: “Nicht die Hervorhebung einer Seite des Ganzen ist ein einseitiges Verfahren, nurderist einseitig zu nennen, welcher eine Seite als das . Cf. Puchta, Gewohnheitsrecht, vol. I, 1828, p. 166 where Puchta discusses the Ganze behandelt” issue as to whena scientifically produced legal concept is true, i.e. whenit has fulfilled a scientific criterion. Inthis connection, Puchta underlines that “ [e]ine juristische Ansicht ist nurdann Recht, wenn sie wissenschaftlich begründet, also wenn sie wahr ist. Umdieses zusein, muss sie indas . The System eingefügt, d.h. innerlich begründet, undsie muss demVolksgeist angemessen sein” scientific nature ofa legal concept notonlypresupposes a correspondence withthelogic-systematic demands onconsistency andindisputability, butalso mustexpress the realornatural aspect oflaw. Thus, itwasinthe balance between the dogmatic andhistorical elements of lawthat the scientific method found its guiding principle. Cf. G.F. Puchta, Cursus derInstitutionen, vol. I, 8thed., Leipzig 1875, p. 56. For a different opinion on Puchta’s approach to the methodology of the Historical school, see Walter Wilhelm, Zurjuristischen Methodenlehre im 19.Jahrhundert, Frankfurt amMain

87. 1958, pp. 70–

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ingoflegal dogmatics as a fiction, as a matter offactwasa condition thatlegal science be of any significance in legal practice. Without this fictitious limitation of the legal material, the systematisation of lawwould be a hopeless undertaking anda secure and predictable application of lawon the other hand would be a chimera without systematisation. The relationship between the need forsystematisation and thefiction oflegal dogmatics wasthus inreality dialectic. Puchta’s appeal tothe Romanists ofhistimetonotbeenslaved totheletter ofthe sources of Roman lawhowever inanother context would be a guiding principle of a newgeneration of legal scholars, whoduring the second half of the 19thcentury revolutionized the methodology of law. Among the principle representatives of this newdirection in legal science, conceptual jurisprudence (Begriffsjurisprudenz), we would

1891), a Germanist, and Rudolph von Jhering find Carl Friedrich von Gerber (1823– 1892), a Romanist. Gerber andJhering levelled criticism against thejurispru(1818– dential approach oftheHistorical school as theyfound ittobetoohistorically receptive incharacter. Fromthis point ofdeparture, theydeveloped intheir respective fields of research a method of jurisprudence that stressed the specific legal or dogmatic element as opposed tolaw’s dependence ofthesocial conditions oftime andspace.15 Incomparison to the successful analysis of Roman lawby Romanist lawyers, especially Puchta, German law, according to Gerber, still lacked a systematic structure. Roman lawthat bynowconsisted ofanelaborate system ofabstract legal institutions “ founded inthe potential of human will” represented to Gerber “ the unprejudiced and absolute supremacy of legal thought, i.e. purely mathematical exercise with legal .16The Romanists thereby hadshown the wayto a legal science that with concepts” the absolute nature of the help of the historical sources of Roman lawdetermined “ . Asfaras theGerman lawanditsscientific analysis wereconcerned, thesituation law” wasdifferent. Dueto its emphasis onthe historical aspects of law, German jurisprudence hadbeenstuck onthe level ofreceptivity. Gerber argued that German lawyers hadneglected the logical andrational aspect oflawandcontented themselves witha description of German lawin immediate connection with the economic and political conditions of society.17 Theresult wasa science dominated bythe historical legal material. According to Gerber, thelegal element thereby appeared tobesomething secondary, like a formal legal recognition offactual conditions. Thelackofa scientific character oftheGerman lawoffers anexplanation tothepoorstate oftheGermanist legal science. German law initself didnotamount to a separate entity, since it still wasdirectly linked to actual social conditions. Inorder toachieve a systematic anddogmatic unity ofGerman law, legal scholars hadtodisregard thetrue character ofGerman law,i.e. thelackofunity, a politically paralysed legislator, and last but not least, its historical character that seemed to represent the realthreat to legal unity. Inorder to be able to fulfil its task ofcreating unity inGerman law, legal science hadto suppress its dependency on historical context. Jhering was very clear about this when he stated that “ time shall be suppressed by system, since the latter will .18Inopposition to Savigny’s opinion that lawcannot exist develop freely outof itself” Independently of each other, Jhering andGerber developed the same scientific principle fortheir separate fields ofwork. Later on,they formulated a common program forlegal science which was , which was published in 1857, Jahrbücher fürdie Ourtask” summed upbyJhering in his article “ Dogmatik des heutigen römischen unddeutschen Privatrechts. 16 Gerber, Carl Friedrich, Gesammelte juristische Abhandlungen, 1872, p. 28. 17 Gerber, Carl Friedrich, System des deutschen Privatrechts, 12thed., p.XVII. 18 Jhering, Rudolph von, Geist des römischen Rechts, vol. I, 1852, p. 75.

15

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byitself, butmustbe understood as anintegrated partofsociety, Gerber andJhering argued that lawinits development hadfreed itself fromthe economical andpolitical conditions. Lawthereby hadbecome abstract andself-sufficient. Gerber pointed out that a truly systematic, i.e. scientific presentation, demanded a form that was not narrative in its character, but emphasised the spontaneous movement and selfdas Recht hatkein Dasein development of law.19 Ifone, like Savigny, assumed that “ fürsich” , according toGerber that meant that lawlacked a specific legal character. In that case, its legal character was hidden as an integral part of the legal material.20 Instead of being dominated by the demands of society, social conditions would be ruled bylaw.Gerber stated thatthelegally determined conditions thereby appeared to be practical expressions ofautonomous legal institutions, which remained unchanged despite the infinite variety andvariation offactual conditions.21 Private lawconstituted “ a system of means of controlling property that in principle didnot represent any historical orsocial conditions, butinstead only requires the willpower ofthe personal.22Thesystematic consistency of lawwasfounded inlegal principles orconcepts ity” andnotinhistorical facts orpolitical considerations. Theassumption wasthat behind the historical variations of positive lawthere was a core that wasfirm andwithout limitations intime andspace, guaranteeing jurisprudence the position of an autonomous discipline. The goal of jurisprudence was to establish a dogmatic totality of “ inner unity andautonomous life” . Theanalysis based onthe legal dogmatic assumpas such” tion concerned law“ . Facts not related to this legal core, i.e. all that was historical in character, were left out of the scientific analysis. The dogmatic analysis consisted of two stages: 1. Historical analysis of the legal material; and 2. The dogmatic refinement andsystematisation of principles that hadbeen extracted from history. Thefirst stage wasofaninductive character. Inorder toachieve a higher level ofunderstanding, transcending time andspace, historically contingent facts hadtobe abstracted. The trick was to find “ (das Geist des Rechts). Atthe the spirit of law” second level, legal institutions representing a higher level of systematisation were , “logiessences of law” constructed. Legal institutions were considered “ ,“ characters” , and“legal bodies” witha separate existence anda life separate from cal individuals” the legal material. The result, inJhering’s words, was“ a legal system reduced to its .23 In this context, the applicability and utility of legal norms did not logical form” represent a relevant criterion. Onlythe systematic or logical formcould provide the scientific basis for a legal principle. If one assumes that lawhas an autonomous existence separate from social conditions, the question or rather dilemma arises of howtoexplain thecontinual development oflaw.Iflawis notregarded as anexponent of actual societal conditions –social, economical, political, cultural etc –only one .24 growth from within” explanation remains, i.e. to perceive legal development as “ Concepts are productive; they mate andcreate newconcepts.25 Inhismajor work, System des deutschen Privatrechts from1848, Gerber summarizes his methodological credo in the following way: “ In principle myaim was to analyse andconstruct the purely legal elements oflegal institutions as opposed tothe 19 Gerber, System, p. IV. 20 Gerber, System, p. XVII. 21 Gerber, System, p. 189. 22 Gerber, CarlFriedrich, ZurTheorie derReallasten, inGesammelte juristische Abhandlungen, 1872, p. 215. 23 Jhering, Geist, vol. I, p. 41. 24 Jhering, Geist, vol. I, p. 40.

25

Ibid.

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factual andunimportant elements which especially inGerman lawoften hidethelegal substance. Furthermore an attempt would be done to consistently separate the historical element from the dogmatic andespecially the political element would be separated fromthe legal substance” .26 Since legal dogmatics inthe understanding ofconceptual jurisprudence excluded the relation to other sources of law, legal science turned into a politically andmorally neutral enterprise. When the connection with other sources of lawwas considered unnecessary, legal dogmatics lost its function as a fiction. Lawin force (geltendes Recht) as a fiction was consequently redefined by the adherents of conceptual jurisprudence into a factual description of the structure of law. Legal dogmatics as a fictitious limitation of the legal material wasthus replaced byanother understanding. According to this newconception, legal dogmatics was nothing other than the construction of legal institutions “ in accordance with the principles hidden in the material .27Thedescription oflaw andtheir development as consequences ofthese principles” inforce as something that existed thus implied that its fiction wastransformed into a fact. Thestrict demarcation oflegal dogmatics andthesocial conditions oflawmade it difficult to explain legal development. Savigny andthe Historical school maintained that inthe last instance, changes insociety compelled the lawto develop. This was obviously unacceptable to Gerber andJhering. Inorder to avoid the conclusion that legal scholars arbitrarily developed law, one hadto assume that the driving force behind legal development wasto be found inthe lawitself as a growth from within. This inturnmeant that lawandlegal concepts hadtobeconsidered as organic entities withtheir ownlives. The legal scholars consequently were to devote themselves to exploring thefundamental categories andconcepts oflawandtheir dialectic continuity. By describing the fundamental elements of law, they would then come into possession of the instruments that render a scientific development of lawpossible. Whenstressing thattheconstruction ofthe legal system onlyfollowed thepattern ofa strict logic deduction, Jhering andhis colleagues gave themselves the right to suppress the historical context of law. The significance of history was in fact thereby reduced to a medium bywhich the lawexpressed itself. Jhering made this point very [a]jurisprudence which hasbeeninoperation forthousands of clear whenstating that“ years hasdiscovered thefundamental elements orfundamental characters oflawand theycontain allfurther movement ... sucha jurisprudence willnolonger bedominated .28Through legal scholars, concepts ruled the world. The only thing the by history” legal scholar hadto be concerned about wasthe scientific correctness of his deduction. The usefulness or practicability of his conclusion was nota criterion of scientific argumentation inthe wayit hadbeen to Savigny andPuchta.29 This development constitutes a paradox in two different ways: The historical school emanated froma critique ofnatural lawtheory anditsweaklinktopositive law andlegal practice. Aclassical theory ofnatural lawassumes that lawhasanabsolute essence that only legal scholars canfind andputinto use bya deductive method. In this sense, conceptual jurisprudence would seem to resemble natural lawtheory. It might therefore be seen as paradoxical thatthe Historical school wassucceeded bya theoretical approach, which in many respects is reminiscent of the legal theory that wasthemaintarget ofits critique. Onemight further assume thattheemphatic stress 26 Gerber, System, p. XI. 27 Gerber, System, p. 20.

28 Jhering, Unsere

Aufgabe,

p. 16.

29 Jhering, Unsere Aufgabe, p. 18.

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ofpure lawinthe conceptual jurisprudence, i.e. the opinion that everything that is not a legal concept has to be rejected by legal scholars, would lead to a legal science unable to contribute to the development of society. The truth, however, is that conceptual jurisprudence created a system ofprivate lawthatfulfilled thedemand and the needs ofa developing capitalistic society. Claes Peterson, Professor of Legal History, Faculty

of Law, Stockholm University, Sweden

Federico Puppo

Law, authority andfreedom in Sophocles’Antigone Mypaper investigates the relationship among law, authority and freedom in Sophocles’Antigone. Todoso, itdwells firstly onwhatis meant bytheterm‘tragedy’, and secondly onthe relevance ofSophocles’work–andparticularly its twomaincharacters, Antigone andCreon –tothetheme under discussion here. Ittakes a viewwhich goes beyond the usual interpretation that Antigone’s refusal of Creon’s decree legitimates contradiction of the order when the written law, mere expression of the authority, is atodds withthedictates ofthe rule identified sometimes inthecustomary lawsometimes inthe divine law. In Sophocles’Antigone the tragic moment (I shall explain this concept shortly) is antecedent tothe narrative: itis the moment whenAntigone decides to burythe body of her brother Polynices, whereas the play begins with her communication of her decision tohersister Ismene. Antigone’s situation is highly distinctive, because she is caught in an irresolvable dilemma between twomutually exclusive options, with no middle waybetween them. Thechoice facing heriswellknown. She mayobeyCreon, whohasdecreed that noonemayburythetraitor Polynices, whose corpe mustbe left to rotoutside thewalls ofThebes, the preytowildbeasts, orshe mustcontravene the sovereign’s written lawandconsequently be puttodeath. Herchoice, that is tosay, is between life and death: tertium non datur. Her situation is very similar to that of another classical hero, Hector, whoin Book XXII of the Iliad, found himself ingreat difficulty during his mortal combat with Achilles, running along the walls of Troy. He hadthus tochoose between twoalternatives. Hecould interrupt hisflight andcontinue his combat with Achilles, meeting certain death andleaving his wife andson at the mercy of the victor, but also securing the imperishable glory that saves from the anguish ofannihilation. Orhecould forgo the combat inorder todefend hisfamily, but thereby lose fame andhonour. Here toothesituation is tragic: notbecause itis sador that is, desperate (which is the modern sense oftheterm) butbecause itis a-nomic – devoid of a customary and known criterion which can guide menin their actions. Consequently, neither ofthetwooptions isdecisive withrespect totheother. Yeteven intheabsence ofthis criterion, bothAntigone andHector make a similar choice: both ofthemoptforthe alternative that willcertainly leadtotheir death. Why? There are various possible explanations. The one most relevant to myargument here is that Antigone decides tocontravene Creon’s decree because she chooses to obey a command (that of burying the dead) which emanates from a source that is thanthewritten law.Thelatter may hierarchically higher –andtherefore inviolable – therefore bebreached because itinturnviolates a superior law,andtherefore loses its value andlegitimacy. I believe that this explanation is inadequate, however, because itis unable togive thorough account ofAntigone’s action, owing totheabove definition ofthe ‘tragic moment’. If,as said, Antigone’s situation wasdistinctive because itwas that is, devoid ofanydirective choice criterion –then itnecessarily follows a-nomic – that nosuch criterion resides insimple respect fora ‘hierarchically superior’law. Ifit did,wewould have to conclude that the criterion exists andthat oneneedonlysingle it outfrom those possible andtranslate it into a cogent rule which must be obeyed because itcan (indeed must) be understood byallthrough their reason. Buta tragic situation is, as said, one inwhich there is nota choice that prevails over the other following a search made withthe usual criteria. It is inthis existential

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realization that the tragedy ofthe moment is manifest: whatever choice manmakes, the result willnever be guaranteed. Thetragic situation therefore reveals theabyss of ignorance before which manstands alone. Alone hemaybe,yet, however paradoxical it mayseem, he is finally free: whenthe possible choices are such to exclude each other, andtherefore when the solution depends solely on the subject and nothing external canconstrain it,manmanifests hisfreedom. Ofcourse, this is a freedom very different frommodernity’s conception ofit:that a person maycall himself free as long as he has options to choose from, removing the obstacles that prevent his achievement of what he wants (so-called ‘freedom-from’). This is a very familiar conception of freedom. Yetitseems intrinsically flawed: ifa manis thought to befree onlyifhecan eliminate the obstacles that prevent himfromfulfilling hischoices, ifbyhypothesis he manages to eliminate all of them what remains of his freedom? Nothing. Freedom exists infunction oftheobstacles against it,andcontinues toexist as longas theyare present. In other words, without obstacles there is no freedom. Indeed, once all imaginable obstacles have been removed, only one extreme obstacle is left: namely the self. Like the other obstacles this too can be eliminated, but if it is, we are condemned tonullity. Orelse itmaysurvive inthedespair ofscepticism andmeaning-

less existence. Butifclassical manis also alone inthetragic moment, whyis hisdestiny different? Itis so because the conception offreedom that classical manembodies is different. In fact, in the impossibility of choosing one of the two alternatives, he has only one option: agere. Thus Hector andAntigone act andchoose: theychoose theoption that brings them the immortality of eternal fame –doing so for no other reason than the intrinsic value ofthecircumstance, andwithnoother purpose thanrealization oftheir particular subjectivity. This agere is prattein –which stands inopposition to poiein, that is, facere, the undertaking of action fora predetermined purpose andwhich is

therefore conditioned bythe intent to accomplish a specific endbeyond the action. Prattein instead has its purpose within itself, within its own intent. It is free action because it manifests the sense of original freedom that cannot be imposed butonly freely grasped. Thus, forexample, prattein is living or thinking: ulterior purposes or particular ends maybe attributed to these activities, but living or thinking in themselves have only the purpose of Dasein. In all their various forms they simply are there, andthis is a purpose fulfilled inevery single instant oftheir being-there, living or thinking. Ithas the distinctive feature that manifest to maninagere is gratuitousness: a reality notguaranteed byanytechnique norsubsceptible tocommand orprohibition by any rule. Gratuitousness is primarily manifest in listening. The manwhostands alone onthe brink of the abyss is exposed, andhe sets about listening. Andas he listens he hears the voice of the Principle which acts within himand directs him the ‘freedom-for’manifest whenmanlets towards immortality. This is true freedom – the original potency (what gives himunique andunrepeatable existence) act within him and become manifest through him. It is a freedom that is not exhausted in achievement of a particular andtransient end, because it has no endexcept for its endless self-maintenance. Tograsp this freedom is to grasp the tragedy ofexistence –which is not to be conceived as painful, but rather as resistant to uniformization according to a criterion purportedly applicable to every formofbehaviour. Antigone, therefore, contravenes Creon’s decree because she maythus manifest herfreedom-dominated existence to herself andto others. But, note, this is herown existence, Consequently, this is an action that holds solely for Antigone. As the manifestation ofa unique existence itcannot betaken as a universal rule. Accordingly, myinterpretation is borne out by Sophocles’tragedy. Ismene initially seeks to persuade hersister to desist fromherintention to buryherbrother. ButwhenAntigone is

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captured bytheTheban guards andbrought before Creon, Ismene changes hermind and announces that she intends to share her sister’s fate. Antigone spurns her, however, saying “ since youwere notwilling to helpwiththe deed, nordidI give youa part init” (670); “ Donotshare mydeath. Donotclaim deeds towhich youdidnotput your hand”(680– 682). The reason, I believe, confirms what has been said so far. If Antigone made herchoice inrespect ofa lawuniversal andsuperior towritten lawand therefore valid for all men, one fails to understand why that law does not apply to Ismene as well. But Antigone hadcontravened Creon’s decree because only and solely in that way–her way–could she realize her subjectivity. Consequently, Antigone’s action could notbe ‘normativized’ortaken merely as anexample tofollow. Ifitcould, the prattein would change into poiein because thefoundation ofthe action washeteronymous. However, this is certainly nottosaythatthis agere is meaningless orvalueless because itcannot holdsway, Although itcannot be imitated, something similar canbe recognized init,notinorder tofulfil animpossible repetition, buttotake one’s measure against itstarting fromtheself. Respect forimmutable justice therefore remains in the background as a mere occasion for meditation-mediation and for choice conditioned byother principles. The motive forthe fundamental decision thus transcends observance of the lawto dissolve into a non-objectifiable andunrepeatable expression of individuality. Antigone’s decision has no purpose orjustification other thanrealization ofheruniqueness. Hence, because thedecision is notinformed bya heteronymous criterion butexpresses only whatAntigone is, wemustconclude that itconstitutes free action. Forthese reasons Antigone represents the instance of classicism that stands in opposition tothat ofmodernity (concepts, these, used inthe categorial notchronological sense) personified by Creon. The latter entirely matches the model of the sovereign described many centuries later by Hobbes. According to the English philosopher, thesovereign is the homoartificialis. Hehas beenattributed every power andevery faculty byhissubjects, since onlythus canthestate ofnature be prevented from degenerating into the bellum omnium contra omnes, andhuman relations into theparadigm ofhomohomini lupus. AstheHobbesian sovereign governs, heistotally andmodernly free: heneedobeynobonds except those that hehimself hascreated; heisfree todowhatever hewants because there is nothing andnobody above him.In a word, heis ab-solutus. Hemaydispose ofthe law,state andcitizens as hesees fit, encountering no resistance because all powers have been devolved to himby all subjects. Hemaythus impose andimplement hispolity, which is orderly because itis rational, and rational because it complies with the notion of rationality typical of modernity: namely, that rationality which connoted solely the procedures ofscientific, analytical and empirical method. This alone could substantiate the truth-claims of knowledge which henceforth became Knowledge par excellence in a blind and fallacious endeavour to establish dogmatic dominion overexistence which collapsed withthe advent of relativist andsceptical post-modernity. Hence the sovereign thus conceived, artificially created, is the sole authority. But what sort of authority is this? Obviously a merely authoritarian authority, which functions to the extent that it is able to maintain a position of enforced supremacy. It comprises nofurther meaning; it has nofoundation other than the tautological axiom of its owncapacity to govern. Indeed, the only truth that holds is the truth that emanates from the authority itself, which is absolute insofar as superiorem non recognens. This is the authority embodied byCreon, whoina dramatic dialogue withhisson Haemon, asks himwhether he believes that the state does not belong to he who

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dominates it, whether power should notsolely serve the purposes ofthe sovereign, whether thesovereign should take orders fromhiscity. Creon wields absolute power, the might of which terrifies the Thebans, because, as Antigone remarks, among the manyprivileges ofthetyrant is hispower tosayanddoas hewishes. Thesovereign is therefore constrained solely bythe imperative of his changing andmutable will. The Chorus nowaddresses Creon, stating that the lawis hisalone andthat he mayissue whatever order hewishes, forboththeliving andthedead. Creon declares unthinkingly,blinded byhis power, that whomsoever a state has appointed to its government, that manmust be obeyed. Hence the sovereign in the modern sense of the term governs under the rationalistic conviction that existence is subject ad libitum to his power, rejecting the value of dialogue andthereby denying anypossibility of being contradicted until itis toolate. Creon is inerror, andforthis hewillbe punished bythe death of his family, as foreseen bythe soothsayer Tiresius. Andwhenhe realizes his errors, his behaviour changes. However, the dogmatism that has hitherto guided Creon can only change into scepticism –which is onlyapparently antithetical todogmatism, butinstead shares its ultimate outcomes. Indeed, those whobelieve thatthere is notruth canonlyhave one truth prevail overanother byresorting to force, given that nocriterion exists withthey can appraise opposing positions and mediate between them. Recourse to force, therefore, is the feature shared by both the dogmatic and the sceptic, whodiffer only in thepositions fromwhich theybegin. This, Ibelieve, iswhymodernity’s blind faith inthe dogmatism of scientific knowledge (which imposed itself over other forms of knowledge by dint of its operational power) was followed by the scepticism of postmodernity, which condemns allentities to nothingness because nothing has value in itself. Such l oss of certainty’is also manifested bySophocles’Creon, whopersonifies ‘ but post-modernity as well. Infact, when he hears that his wife not only modernity Eurydice has committed suicide, he wishes for nothing more than his owndeath, you myattendants/lead hence, take distant/this mynothing that remains” saying “

(1630–1632). Is this the final outcome, therefore? Is nothingness the fate of all entities, our-

selves included? The answer is ‘no’ . In fact, between modernity and post-modernity, between dogmatism andscepticism, there is a third waywhich mediates those only partially opposed instances. Wemayconclude that truth exists (given the logical impossibility ofthe sceptic’s position) andthat itcannot be stated definitively (given the unsustainability of the dogmatic’s position). This indicates another conception of authority, that is authoritative andable to escape the dogmatism of obedience andthe silence of scepticism. This viewrejects theassertion thatauctoritas, nonveritas, facit legem and instead states that authority has nothing to do with unquestioning obedience to a command, but instead concerns knowledge. Such knowledge goes beyond mere recourse to the analytical-empirical method of modern science in that it must take account of all the procedures of discourse –andtherefore also, andespecially, of topic, dialectic andrhetoric, which bytheir nature are used inepidictic, deliberative andjudicial discourses. These discourses assert that dialogue is necessary toascertain the undeniability of a proposition (either because it is non-contradictory or because it is accepted by both parties) which, once agreed, can then be made manifest through persuasion. Allthis is entirely antithetical to Creon’s behaviour, forwhom, as wehave seen, dialogue is an unheeding monologue which dismisses the statements of the other

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as worthless. This is evident whenCreon talks toAntigone andentirely fails to understand the injustice of his decree. Butit is even more evident when he talks to Haemon, whoreminds himof the value of dialogue andthe virtue that derives from recognizing one’s errors, because those who believe that they possess greater wisdom than others prove on closer scrutiny to be empty and deserving of scorn. However wise a manmaybe, infact, he should notbe ashamed of being flexible and willing to learn. Thus is authority interrogated on its foundations, on its raison d’être, from a perspective which denies both the deaf imposition of dogmaticity and the inane anarchy of scepticism, andwhich constantly andtirelessly seeks the truth –a truth irreducible to knowledge alone butwhich cannot forthis reason be said notto exist. Authority andknowledge, therefore, butalso andnecessarily authority andfreedom.Indeed, onemaysaythatonlywhere there isauthority canthere befreedom. But this mustbe authority able toconceive the lawnotas a self-referential instrument with which toimpose one’s will, rightly orwrongly, butwhich embodies fundamental values deduced from a pre-established axiological –though purportedly ‘natural’– framework. Itmustbeanauthority which, since anorder cannever beconsidered definitive, assumes the task of guaranteeing the problematicity of values, andof the forms – perfectable andprovisional –able toexpress them. Itis anauthority, therefore, which comprises the mystery of that Principle which resides within everything and transcends everything, andwhich amounts to more than the sumof its parts, being the object butalso thesubject, andwhich therefore cannot seektosubjugate existence to its will. party

Federico Puppo, Department of Legal Sciences, University of Trento, Italy

Marie Sandström

The Concept of Legal Dogmatics Revisited I amgoing totellyoua story. WhatI amgoing totellyouactually tookplace, buttoall intents andpurposes itmight as wellhave beena fairy tale. Myaimis nottoadvance the general knowledge of 19thcentury Germany, butinstead toacquaint –orpossibly re-acquaint –youwithoneofthe mostessential concepts ofthecivil lawtradition. Ithas been saidthat familiarity breeds contempt. Ifanything, the concept oflegal dogmatics seems to substantiate this claim. The concept is often used, but rarely understood. I realise that this might seemparadoxical: Anotion onwhich a large part of the civil law tradition hinges is fading away like the fabled Cheshire cat. This disappearing trick is perhaps mainly due to age. As concepts age, they tend to become almost over-familiar, flowing so smoothly off ourlips that we begin to take themforgranted. Gradually the concept’s cognitive function becomes less important, while its ability to provoke anemotional response increases. It does not necessarily follow that notions suffering this particular fate are uncontroversial –infact, quite the opposite appears to be true. The concept of legal dogmatics formanyyears has caused antagonism among European jurists. Oneof mycolleagues, ina fit of temper, recently compared legal dogmatics to theological dogmatism; heevenproposed thattheconcept beavoided byjurists, as itindicated a general narrow-mindedness. However unfair, this remark points tothe level ofindignation to which this concept gives rise. However, the worst enemies of legal dogmatics, seemto be its advocates. For years, jurists have trivialised the method of legal dogmatics to a point of absurdity. Legal scholars routinely refer tothe “ method oflegal dogmatics, butwhen traditional” asked what this phrase entails, they are unable to give a proper answer. As a consequence, those whoviewthemselves as methodologically advanced have been able to score easy points bypointing outthe obvious flaws inthe presentation ofthe method. Despite decades ofintense criticism, legal dogmatics seems to bethriving inthe civil law-countries. Infact, judging bythedevelopment ofSwedish jurisprudence inthe 1990’s, itappears tohave evengained momentum overthelast decade. Asa result of this predominance, it is all butimpossible to pursue legal studies without at least a reference tothe importance of legal dogmatics andits method. Itmaysafely be said that mainstream jurisprudence inthe 19thand20thcenturies equals legal dogmatics. Tothe legal historian, theconcept oflegal dogmatics represents anunparalleled challenge. Theconcept –a pivot ofthecivil lawtradition –is enigmatic. Emotions run high whenever the concept of legal dogmatics is discussed, though very fewlegal scholars feel upto the challenge of defining its precise meaning. Despite the huge success of legal dogmatics at lawfaculties, ithas received surprisingly little methodological or theoretical attention. But if the description of the trials andtribulations of modern legal dogmatics doesn’t quench the jurist’s thirst for the slightly lurid, its history certainly will. Thegenesis oflegal dogmatics is steeped indrama.

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Once Upona Time

Inthe tumultuous yearof 1848, a man’s love forthe lawturned sour. During his long andsuccessful career, theGerman lawyer andlater civil servant Julius vonKirchmann

gave ample proof of his devotion to law and aptitude for the legal profession. Gradually, however, Kirchmann’s enthusiasm waned. Hehaddiscovered the downside tohischosen profession: German courts were ina deplorable state, justice wasa rare commodity and, to laymen at least, rulings appeared arbitrary andunfair. Proceedings, both criminal and civil, were pitifully slow and uncertain. Like Hamlet, , butquite Kirchmann wasenraged bythe “ s delays”and“ law’ the insolence ofoffice” unlike the Prince of Denmark, Kirchmann wasa manofaction. Kirchmann’s actions were carefully planned. Ifhisattack wastoprove effective, it first hadto be directed against those responsible forthe state ofthe German courts. Kirchmann found histarget withsurprising ease. Secondly, hisactions were carefully timed andthe perfect venue waschosen. Infront ofa gathering of Germany’s most prominent jurists inthe Berlin LawSociety, he painted the state of legal practise in Germany indarkcolours. Then he struck: Jurisprudence, hesaid, is worthless. No,it is worse than worthless. The root of most –if not all –evil in the German courts according to Kirchmann, wasto be found at the lawfaculties.1 Bythis time, Kirchmann hadreally caught theattention ofhisaudience; everyone washanging onhis lips forthe continuation ofhis speech. Above allelse, Kirchmann stated, jurisprudence is completely worthless toscience. Like allacademic disciplines jurisprudence concerns anobject thatis independent ofourknowledge. Whether legal scholars understand lawornotis hence immaterial. Theobject ofjurisprudence is law, natürliches Recht or the lawof the people.2 However, unlike other academic disciplines, the object ofjurisprudence is ina state ofconstant flux. While the astronomer might rely on the calculable movements of the celestial bodies –the sun will rise tomorrow as it has from time immemorial3 –legal changes seem to be erratic and accidental:

Wennalso dieGesetze ihrer Natur undKräfte aucherst nach langen Bemühungenentdeckt wurden, so sindsie dochfürdieGegenwart nochsowahrwiefürdie Vorzeit undbleiben wahrfüralle Zukunft. Anders inderRechtswissenschaft.4

Inthis sense, at least, jurisprudence would seemto resemble the weather forecasts. The plight of the legal scholar, Kirchmann argued, should remind us of the wanderer inthe desert. Inthe morning the wanderer, refreshed bya night’s rest, sets forth onhisjourney. Confidently hewalks, allday,towards thevision ofa lushoasis or a golden city, butas evening approaches, andthelight vanishes, hisdestination isjust as distant as ever–a mirage onthe horizon, always just beyond his reach. Once a legal scholar believes he has a grasp of his subject, the lawhas already changed.5 Jurisprudence is always behind time; it can never reach its object.6 Even a partial revision ofthe lawturns lawlibraries into collections ofwaste paper.7 1 2 3 4 5 6 7

Kirchmann, Julius von, DieWerthlosigkeit derJurisprudenz als Wissenschaft, Darmstadt 1966, p.7. Dieser Gegenstand ist das Recht, wiees imVolke lebt undvonjedem Einzelnen in Ibidem, p. 9: “ . seinem Kreise verwirklicht wird; mankönnte es das natürliche Recht nennen” Ibidem, p. 8. Ibidem, p. 15. Ibidem, p. 8. Ibidem, p. 15. Ibidem, p. 15.

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Since the true object ofjurisprudence –the lawof the people –is incompatible withthe ontological demands ofscience, legal scholars have substituted natürliches Recht foran all-together more manageable object, namely the positive law. Bythis manoeuvre, legal scholars were given the impression thatjurisprudence actually had a scientific basis. Kirchmann concluded that, although jurisprudence wasworthless, academic lawyers were nottobe blamed. Theabsence oftheoretical foundation is not theresult offree choice; instead, theverynature ofjurisprudence makes itscientifically worthless.8 Legal scholars were thus on the horn of a dilemma: They either can resign themselves tothedemands ofscience, andabandon thelawofthepeople infavour of positive law, or relinquish their academic status.9 Legal scholars, according to Kirchmann, chose the former, claiming a distinction that does notbelong tojurists. Worse, their choice –however unintentional or involuntary –hadconsequences reaching far beyond the confines of the university. German jurisprudence hadmanaged to infect the courts withthe same fatal disease. Lawinitstruest form, justice, is unattainable as longas jurists persist insearching forlegal truths outside themselves. Lawyers andjudges spend their days looking for lawinallthe wrong places –inold, musty dissertations orinhefty codes. Justice, or the lawof the people, can only be found in the human heart. However, German judges, with their scientific pretensions, had completely forgotten this simple truth. Instead, they mimicked their idols –the academic lawyers –andsubstituted natürliches Recht forpositive law.Hence legal practise became a matter ofthemindinstead ofthe heart, the court’s rulings were turned into a gamble andthe popular sense of justice wasfinally alienated fromthe law. Kirchmann’s solution wasas simple as itwasself-evident. Themalign influence of jurisprudence mustcease, ifnecessary bydismissing theparasitic legal scholars from the universities. In one bold stroke, legal conditions in Germany would, Kirchmann assured his audience, improve. German judges would recover from their bout of intellectual pretension andturntheir attention, once again, tothe lawofthe people.

AKnight inShining Armour The meeting inthe Berlin LawSociety ended inuproar. Tothe astonishment oflegal scholars, Kirchmann’s speech was rewarded with a storm of applause. During the hey-day ofGerman jurisprudence, lawprofessors were depicted as the mainthreat to society. Ernst Landsberg gave a telling description of the consternation that Kirchmann’s speech caused among legal scholars:

Aberdaßschon solche Sätze inBerlin, imMittelpunkte derhistorischen Schule, zuLebzeiten Savignys, voneinem solchen Mann, voreinem Publikum vorgetragenwerden konnten, das lauter gelehrte Juristen, darunter die höchsten Spitzen derpraktischen undtheoretischen Jurisprudenz des Landes umfaßte; –daßsie, wenigstens zunächst, unter der Wucht der Rede, mitder Unmittelbarkeit des Gefühls wirkend, beieinem solchen Publikum frenetischen Applaus fanden; – daß sie alsdann, gedruckt, von weiteren Kreisen gierig aufgenommen wurden; – kommt das nicht einer Bankrotterklärung der herrschenden wissenschaftlichen Richtung gleich?10 8

9 10

Ibidem, p. 13. /S/ie willdenGegenstand nurbegreifen undsie zerdrückt ihn” Ibidem, p. 34: “ . Stinzing, Roderich von–Landsberg, Ernst, Geschichte der Wissenschaft in Deutschland. Neuere

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Kirchmann’s reputation as an influential andscholarly lawyer made this a threat that legal scholars simply could notafford toignore. Thelawfaculties were forced outonto the public arena in order to defend jurisprudence. One scholar in particular rose to Kirchmann’s challenge. Together withFriedrich CarlvonSavigny, the German jurist Friedrich Julius Stahl hasbeenlabelled themainideologist oftheGerman Historical School. Inreality, Stahl was probably the brain of the operation11, while Savigny’s talents made him, among other things, a hugely successful, 19thcentury version of a spin-doctor. Seemingly unfazed byKirchmann’s furious attack, Stahl opened hisargument witha rather bland remark: Positive law, notthe lawof the people, is the true object ofjurisprudential studies. Kirchmann had got it wrong in this respect. But at the same time, Stahl conceded Kirchmann’s point that this aspect of law–positive law–is an artificial construction that lacks mostofthe qualities attributed to reality. Inthis sense, jurisprudence really differs from other fields of knowledge. Undeterred by this admission, Stahl went on to describe the true character of jurisprudence. Science, argued Stahl, always aims at finding, creating or recreating systemic consistency. Inorder toachieve thepurpose ofjurisprudence, legal scholars –regardless ofchanges inthetheory ofscience –have hadto make useofinductive reasoning. However, induction is an operation that requires rawmaterial. Scholars traditionally follow the pathofleast resistance; at least since thedays ofSocrates and Plato, philosophers and jurists alike have set their hopes on a particularly pliable material, namely empirical knowledge. This epistemological penchant, however, causes a host ofproblems forscholars. ToallbutGod, itis impossible toapply aninductive method to an infinite quantity of knowledge. The raw material of science must therefore be subject to certain limitations. Thejurisprudence of the 19thcentury only recognised legal norms fixed intime andspace. Since metaphysical norms –thanks to David HumeandImmanuel Kant– weredeemed toexist outside oftherealm oftheknowable, concepts without time and space co-ordinates hadtobeexcluded fromjurisprudence. Asa consequence, natural law became more or less taboo during the better part of the19th century and the Historical School initiated the tradition of legal positivism inGermany andScandinavia. However, despite this important limitation, the scope wasstill toowide. Thedifferent branches ofjurisprudence arebasically expressions ofdifferent sets oflimitations. Alegal historian, forinstance, might choose to study property lawinthe 17thcentury orpossibly thedevelopment ofcontract lawinthe 19thcentury. Ingeneral, legal history deals with legal rules inthe past tense. Others, like legal philosophers, mayspeculate onthe future development of property laworthe lawof contracts, or even propose changes ofexisting rules. Inbothcases, the interests primarily concern potential rules rather than actual ones. Most legal scholars, however, avoid these extremes andrestrict their scope of inquiry to rules that neither belong tothe past nor

11

Zeit, vol. VIII, Geschichte derdeutschen Rechtswissenschaft, Munich 1898, part III: 2, p. 737. One might argue that the enthusiastic reception of Kirchmann’s speech was mainly dueto the political bias of the audience. Furthermore, it is not inconceivable that Kirchmann’s distrust towards the Historical School, at least inpart, wasmotivated byhispolitical beliefs. Kirchmann wasforinstance a keenadvocate of lay-courts andjury trials. Stahl was the originator of the Rechtsinstitutslehre. The doctrine of legal institutions is possibly the cardinal point ofthe Historical School, andSavigny made useofthedoctrine as anintroduction tohis magnum opus, System des heutigen römischen Rechts. Fora more detailed account, see Sandström, Marie, Rättsvetenskapens princip. Omrättsvetenskapens värdelöshet och Friedrich Julius Stahls rättsinstitutslära, Stockholm 2004.

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toa hazyfuture. Thevast majority ofjurists, according toStahl, dealexclusively with rules fixed inthe present. Legally relevant norms have to be fixed inspace as wellas intime. The content andmeaning of legal norms normally varies fromone country or region to another. A scientific determination of a legal norm therefore presupposes spatial limitations; a Swedish legal scholar forinstance tends to payparticular attention to Swedish rules, butmayalso take aninterest, letussay, inGerman law.Theonething heorshewould

never forget, however, is the difference. Apart from territorial limitations, legal rules must be distinguished from other norms, bethey political, moral orreligious innature. Hence law,defined as a bodyof rules, mustbe perceived as a separate, essentially autonomous, entity –inthis sense, lawseems to be a world of its own.Jurists, including legal scholars, as a rule focus mainly orexclusively onlegal rules, withthe exclusion ofother sets of norms. This line of reasoning seems to beg the question, why“now” and“ here” should inthefuture” and“ elsewhere” attract more attention, forinstance than“ . Stahl, however, didaddress this issue: Boththe temporal andthe spatial qualifications oflaware based ona well-established convention. Between jurists –inparticular judges –there seems to be a tacit understanding that onlylegal norms fixed ordetermined inoneor more sources of lawbelong to positive lawin the strictest sense of the word. The ultimate consequence of this custom, the doctrine of legal sources, is the concept of lawinforce, or as Stahl putit, geltendes Recht.12 The limited scope of legal inquiry characteristic to legal practise, according to Stahl, at the same time solves the epistemological problems of jurisprudence. The bulk of legal scholars therefore fix their attention ongeltendes Recht, since thelawofthepeople, oras Kirchmann putit, “ Recht, wiees imVolke lebt” does notconform to scientific limitations.13 Theinterests of both legal scholars and lawyers hence are fulfilled by the same concept. The concept of legal dogmatics is notto be found in Stahl’s polemical essay. It does not, however, follow that the notion of legal dogmatics is absent. Kirchmann argued thatthetrue object ofalllegal knowledge is natürliches Recht. Inopposition to Kirchmann, Stahl claimed that jurisprudence is the science –Wissenschaft –of positive and geltendes law. Kirchmann quite simply had mistaken the “ imVolke 14.Stahl, however, recognised the lebenden Recht” imVolke geltenden Recht” forthe “ jurisprudence ofthe 19th century forwhatittruly was, namely knowledge ofthe lawin force or, inother words, legal dogmatics.15 The target of Kirchmann’s critique should have been the notion of law in force instead of jurisprudence.16 The basis for Kirchmann’s attack onjurisprudence suddenly started to crumble. If Stahl is correct in his assumption that Kirchmann’s critique ofjurisprudence is misdirected, then it is fair to assume that the influence ofjurisprudence onGerman

is a poor, butstill useful equivalent to geltendes Recht. Inthis essay, lawinforce is Lawinforce” 12 “ used synonymously withgeltendes Recht.

Friedrich Julius, Rechtswissenschaft oder Volksbewußtsein?, Berlin 1848, p. 4. “ Denn daß dieJurisprudenz nicht demrastlos jagenden Leben nachkomme, daßsie nicht denvernünftigen, sei es denewigen oderdenfürZeit undZustand gemäßen. Inhalt gebe ...” 14 Ibidem, p. 4. Kirchmann had, according to Stahl, “macht zu ihrem Gegenstande das, was nur innerlich undnurpotentiell undunbestimmt imVolke ist, statt das, wasbereits äußerlich undactuell

13 Stahl,

inbestimmter Gestalt verwirklicht ist” . Dagegen das imVolke geltende Recht, welches inWahrheit dasObject derJurispruIbidem, p. 5: “ denz ist, erreicht sie vollständig, jeder Aenderung darin kann sie nachkommen, undseinen Inhalt stellt sie adäquat dar” . 16 Ibidem, p. 11:“ Waserals verwerflich bezeichnet, istdurchaus nichts anders als dieunvermeidliche Folge dessen, daß ein positives Recht besteht und kann nicht gehoben werden, außer durch

15

. Abschaffung des positiven Rechts”

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courts should be rather benign. Stahl’s arguments gomuchfurther. Ononehand, the method of legal dogmatics meets the strict scientific demands of the early legal positivist movement. Onthe other hand, its mainpurpose is practical, nottheoretical. Inorder forjurisprudence tobe relevant forlegal practice, ithastodealwiththesame object –the same aspect oflaw–as judges andlawyers. Ajudge, working within the civil law-tradition, to a highdegree willconform to a specific pattern ofargumentation. This custom –the legal method in general and the doctrine of legal sources in particular –is at the same time the foundation or Grundnorm of legal dogmatics. At this point, legal practice andjurisprudence seemto merge. ToStahl, legal dogmatics is theequivalent ofapplied orat least applicable jurisprudence. Moreover, the restraints placed upon legal reasoning by the doctrine of legal sources are notonlybeneficial tojurisprudence, butalso, andperhaps primarily, tothe application of law. Infact, the foreseeability anduniformity of the rulings in German courts largely hinged onthe reluctance ofwell-educated judges toventure outside the boundaries set upbythe legal method.17 To this day, it is difficult to fault Stahl’s arguments. The notion of legal dogmatics, implicit in Stahl’s reasoning, represents a level of legal realism that latter-day legal realists have been hardpressed to reach. However, Stahl’s line ofreasoning contains one glaring contradiction. Stahl hadconceded Kirchmann’s point that the notion of positive andgeltendes lawis an artificial creation. Infact, the notion of lawinforce hadbeen tailor-made to suit boththe scientific andpractical demands onlegal reasoning. Theobject oflegal dogmatics does notexist inanyreal sense ofthe word. Stahl evenwentso faras to claim that lawis an integral part of human life in general. If this is true, howcan geltendes Recht be purely legal incharacter? Lawinforce, again according toStahl, cannot be separated from the history of law, since the growth of legal institutions, muchlike the development oflanguages, is organic incharacter. Onemight infer from Stahl’s line of argumentation that jurists should take care not to exclude historical

perspectives. Stahl wasnotunaware ofthis problem. Natürliches Recht is lawinallitswondrous variations, geltendes Recht is not. The first is a historical fact, the latter pure makebelieve. Jurists however have not been averse to making up facts to suit their immediate needs. When Roman officials –the praetors –discovered that only the property rights of Roman citizens were protected byRoman lawinthe strict sense, ius civile, they created fictions to close this loophole in civil law. This man, they stipulated, is a Roman citizen and his property rights have been violated, so the court will intervene. Ofcourse, the Roman praetor knewthatthefacts ofthecase andthe legal arguments were at odds –the maninfact wasa peregrine –butinorder to achieve specific political orsocial ends, hepretended otherwise. Muchthesame applies tothe notion ofgeltendes Recht, itis notexactly true, butitserves twoimportant purposes: It safeguards the objectivity of both judges and legal scholars. The fictional quality of legal dogmatics also accounts for Stahl’s unwillingness to rely completely onthe system of legal rules labelled geltendes Recht. Inmostcases, these rules supply thejurist witha fairly quick andreliable answer tolegal queries, but in hard cases, this maynotbe the situation. Hence Stahl andhis colleagues inthe Historical School made sure that jurists hadaccess to both the belt andthe braces.

17

Istdemnach vondemVolksurtheil eine gerechtere Entscheidung dereinzelnen Fälle Ibidem, p. 19:“ als die Rechtswissenschaft sie gewährt, keineswegs zu erwarten, so noch viel weniger eine Gleichmäßigkeit der Entscheidungen fürdie sämmtlichen Fälle. Diese aber ist nicht minder eine . Anforderung derGerechtigkeit”

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The legal method provided by the school included principles for statutory interpretation andthe doctrine of legal analogies. Ineach of these instances, however, jurists are forced to change tack andadopt other, supplementary views ofthe law, be they historical, linguistic oreven political incharacter. Finally, if according to Stahl all was well, howcould it be so bad? Stahl agreed with Kirchmann thatthelawofjurists andthepeople’s sense ofjustice toa large extent had parted company. This, however, wasa problem that neither judges norlegal scholars should try to resolve, since it concerned law-making rather than the teaching or application oflaw. Ifpeople were allowed to participate morefreely inthe law-making process, Stahl claimed that the gapbetween positive lawandthe lawofthe people would gradually diminish.18 Inthis sense, the emergence oflegal dogmatics is closely linked to notions of legal positivism and the supremacy of the people.

The Moral of the Story It might seem surprising that the history of this particular brand of jurisprudence stretches backnomorethanapproximately 200years. Thegenesis oflegal dogmatics inthe civil law-tradition is without a doubt closely connected tothe rise ofthe German Historical School in the early 19th century. The doctrine of legal dogmatics was advanced byFriedrich Julius Stahl andhiscolleagues as a means tocreate legal unity inGermany. Theunderlying factors oftheemergence oflegal dogmatics however are more complicated. Ina broader sense, the doctrine of legal dogmatics constituted a battering ram against theconcept ofnatural lawandthe natural lawyers ofthe late 18thcentury. The scholars of the Historical School launched a furious attack against the inability of natural lawyers to assist the legal practice. Since judges, according to the Historical School, hadbeen left to their owndevices, the citizens, as a result, hadsuffered unpredictable and arbitrary judgements. Jurisprudence, the Historical School maintained, instead must be regarded as an applicable science, since only academic jurists ultimately canguarantee the uniformity oflaw.This, however, presupposes that alljurists, including legal scholars, concentrate their efforts onthe one thing they all have incommon, namely positive law. In shifting the focus of jurisprudence –from natural lawto positive law–the Historical School unwittingly caused legal scholars a host of epistemological problems. By1848, the issue ofthe academic value ofjurisprudence hadcome toa head. Kirchmann’s attack onjurisprudence was long overdue. Indefence ofjurisprudence, Stahl wasforced toadvance a newandimproved definition ofpositive law;theinterest ofjurists, as opposed to laymen andpoliticians, mainly concerns geltendes Recht. Stahl arrived at the conclusion that the lawin force can be distinguished from other aspects of legal reasoning by its connection to the doctrine of legal sources. Only those norms supported by a legal source can be considered legally relevant. Stahl’s definition of positive lawis nevertheless underlined with reservations. The concept of lawinforce, according to Stahl, is a fiction. Like every other fiction, ithas a limited scope and,although itcannot beproven wrong, clearly reflects a simplified and “ dogmatic”representation of the law. Jurists subsequently have to transcend the boundary lines between lawinforce –the sole object of legal dogmatics –andother aspects oflawwhendealing withhardcases. 18

Ibidem, p. 25: “ Rückführung der Rechtswissenschaft zum Volksverständniß. Mittel dafür im Allgedes Volkes fürdie Gesetzgebung durch constitutionelle Verfassung ...”

meinen sind die Mitwirkung

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The genesis of legal dogmatics also highlights the fact that legal dogmatics and its method were never intended to be the alpha and omega of jurisprudence. Onthe contrary, legal dogmatics was intended to cater to the specific needs of the legal practice, without inanywaycompromising the academic character ofjurisprudence. Consequently, Stahl wasperfectly aware ofthefictional quality ofthe notion oflawin force; it is an invention, butan undeniably useful one. Despite Stahl’s persuasive arguments, this caveat turned outto be short lived. The emergence of the Begriffsjurisprudenz –conceptual jurisprudence –in Europe meant that the notion oflawinforce became more ofa fact thana fiction. Law,inthe form of legal concepts and principles, not only could, but also should be set apart from society. Legal dogmatics, especially in private law, no longer was restrained by historical andeconomical conditions. Instead, the mainly descriptive jurisprudence of the Historical School wastransformed into the productive –orconstructive –jurisprudence ofthe Begriffsjurisprudenz.19 Despite theheavy criticism levelled bytheUppsalaschool against conceptual jurisprudence, its radical formoflegal dogmatics seemed to prevail. Thefictitious quality oftheconcept oflawinforce is rarely emphasised or indeed evennoticed bylegal scholars. This omission haseffectively transformed legal inthe legal universe. black hole” dogmatics into a “ Under these circumstances, it is a sobering thought that legal dogmatics, like a giant withclay feet, rests ona rather treacherous foundation. Since conventions –in this case the doctrine of legal sources –are subject to change, so willthe scope of legal dogmatics. Inthis sense, evenlegal scholars arealso doomed toplay“ follow the leader” , oras Stahl putit:“ DieWissenschaft muß,wiederHeilige inderLegende, den stärksten Herrn suchen” . Professor Marie Sandström, Faculty

ofLaw,Stockholm University

19 Foranin-depth study. see Peterson, Claes, TheConcept ofLegal Dogmatics –fromFiction toFact inthis volume.

Burkhard Schafer

Ontological commitment andthe concept comparative lawand legal theory

of “legal system”in

1. Introduction Dialogues between theory oflawandcomparative legal studies areanoften demanded, butseldom delivered undertaking.1 Exchanges between comparative law, jurisprudence andgeneral theory of science are rarer still. This paper attempts a case study to show howjurisprudence can profit from ideas taken from general theory of science to develop the conceptual vocabulary necessary to engage ina meaningful dialogue with comparative law. Comparative lawis taken as an empirical basis to legal sysdevelop andtest keyjurisprudential concepts, especially the concept of “ . The problems that jurisprudence faces in reconciling its ownuse of “legal tem” withthat incomparative laware remedied byborrowing keyconcepts from system” theory of science, in particular Sneed’s andStegmueller’s set theoretical structuralism. The thus improved concept is then in turn used to refine comparative legal

methodology. Typical macro-comparative claims are oftheform: “ Legal system X is member of .2Applying Quine’s criterion forontological commitment, wenotice the legal family Y” thattheyquantify overbothlegal systems andlegal families, andarehence committed tothe existence ofsuch objects.3 However, comparative lawtheories donotprovide explicit identity criteria for these objects and base their analysis instead on pretheoretical intuitions about them. The violation of the philosophical principle that we has however ramifications beyond the should notaccept an “ entity without identity” mere theoretical, weakening the explanatory power of comparative legal theories. Philosophy oflawbycomparison hasdeveloped elaborate theories thataimtoprovide precisely these criteria. Formalism inparticular has taken the notion of“ toits system” very heart. As I will argue below, the most prominent contemporary variations of formalism, inparticular Weinrib’s coherence-based account, fail oncloser inspection to account for some of ourmost basic intuitions about the usage of the concept of “ legal system” incomparative lawcontexts. Nordowefare anybetter withfunctionalist theories of law. As Weinrib has convincingly argued, most functionalist theories, in particular lawandeconomics, are bytheir very nature inimical to the notion of legal system.4 Since they cannot take the internal ordering principles of lawserious and tendto impose conflicting external demands onthe legal material instead, they have to deny legal systems their internal unity, andhence byimplication their status as independent objects. Forthis reason alone, they are unsuitable fora non-reductive analysis of statements such as the one given above, a semantic analysis that takes object formation incomparative lawatface value. AsI have argued elsewhere, those non-formalist theories that at least tryto account forthe unity of legal systems and families as discreet objects, for instance sociological or cultural approaches, face

1 2 3

4

See e.g. R.H.S. Tur,(1977) Thedialectic ofgeneral jurisprudence andcomparative law,22 Juridicial Review p.249; E. Örücü (1982) Symbiosis between comparative lawandtheory oflaw:Limitations ofLegal Methodology, Mededelingen vanhetJuridisch Instituut vol.16

See E. Örücü, (1987) Internal logic of legal cultures, 7 Legal Studies p.310 212 See W.v.O Quine (1968). Ontological relativity. 65 Journal of Philosophy p.185– E. Weinrib, Theidea ofprivate law. Harvard UP1995 chap. 3

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even more serious problems than the ones described below forformalist theories.5 Forthe purpose of this paper therefore, it is assumed that formalist, “ Weinribbean” arethemostpromising inprinciple. Theyneed legal system” accounts ofthenotion of“ however a radical reformulation of their approach to the notion of legal system, one that abandons the idea that legal systems are maximal coherent sets of sentences closed under deduction. This paper then gives an indication of howwecan preserve the spirit of formalism while further developing the formalist vocabulary. It does so by wayofanextended analogy, using solutions developed inthetheory ofscience forthe subject under discussion here. Formalist approaches inthe theory of science, from

to Popper’s critical rationalism, faced problems structurally similar to those encountered by formalism in law. Stegmueller analysed the problems emerging fromKuhn’s criticism offormalism as posing thefollowing questions to any convincing formalist theory ofscience:6 traditional positivism

1. howcanweaccount forthe idea thattwoscientists are partofthesame paradigm, say that both are Newtonians, even ifthey disagree on individual statements of Newtonian physics?

2. howcan weexplain ourintuition that one scientific theory has been developed from another, that they form part of the same, wider research project? (in other words, that Newtonian andrelativistic physics share something they don’t share with,

say, Freudian psychology)

3. howcanweaccount ingeneral fortheidea thatscientific theories might develop in a notpurely cumulative way(The Kuhnchallenge)? For Stegmueller and his school, formalist theories of science were unable to give as atoms” satisfactory answers to these questions because they chose the wrong “ building stones of scientific theories. Traditional formalist epistemologies treated scientific theories as sets ofsentences closed under deduction, withcertain sentencenjoying privileged status.7 Sets es, universal rules of the form “Always if Athen B” have however very unforgiving identity criteria. As soon as twoscientists disagree over a single sentence, they believe in different theories –disagreement within a system becomes difficult toexpress. Similarly, theonlyrelation between theories that canbe unproblematically expressed is that ofcumulative improvement –adding true sentences to a theory so that the earlier version is a subset of the later theory. Historical change that replaces propositions of the theory is as problematic as synchronical comparisons between theories. Freud’s psychoanalysis andtheory of relativity are different objects fromthe theory of Newton, the relative closeness between twoof them cannot be formulated intraditional formalist approaches. Stegmueller’s non-statement-view” , an approach to epistemology answer was what he called the “ that does nottreat isolated sentences, butsentences-cum-application(s) as building blocks of scientific theories. We will introduce this idea semi-formally in the third part. Questions twoandthree willfindtheir counterpart inthesecond part, which introduces basic concepts andtheories of comparative lawto illustrate the structural similarity between problems discussed in comparative lawandinthe theory of science. The methodology is again Quinean: Wewilllookforthe objects that are required to make ourbest comparative theories true. This requires the ability toexpress ideas suchas

5 6 7

B.Schafer, (1999) Formfollows function fails –as a sociological foundation ofcomparative law. 13 Social Epistemology p.113–128 24 W.Stegmuller, (1976). TheStructure andDynamics of Theories. Berlin: Springer-Verlag, p.10– fora paradigmatic treatment see Carnap’s DerLogische Aufbau der Welt, Leipzig: Felix Meiner Verlag 1928

Ontological commitment

andthe concept of”legal system”incomparative lawandlegal theory

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“ legal system Adeveloped fromlegal system B” , and“legal system Ciscloser tolegal ). Question 1 is potentially the most system Dthan to system E” forms a family with D” (” interesting. Itshows whyexactly functionalist theories oflaw, like their counterparts in epistemology, are in need of reformulation. Law, by its very nature, is a contested discipline. Inthose cases were the facts are agreed between the parties, both sides will argue for mutually incompatible interpretations of the law. If legal systems are coherent systems of rules closed under deduction –the picture of lawdeveloped by amongst others Weinrib –then the twolawyers donotso muchdisagree within the same legal system, buteach hold mutually incompatible “ . The rigidity legal systems” ofthe identity criteria sees to itthat inprinciple, theyare as farapart fromeachothers as lawyers from different countries. Followed through to its logical conclusion, traditional functionalism entails thatnotwolawyers caneverbesaidtobe part ofthesame legal system –a counterintuitive conclusions which would indeed render comparative lawmeaningless. Thetheoretical analysis inpart three willtherefore develop a more relaxed identity criteria for legal systems, one that weakens in particular the coherence requirement, while at the same time remaining both formalistic and indeed formalized. Wecansummarise these pre-theoretical findings thus:

Anytheory of “ legal systems” legal families” , inorder to be adequate, must be and“ able to account forthese pre-theoretical intuitions:

– It is possible to say that twolawyers, say Peter andPaul, are members of the same legal system o This mustalso notbetrivially true, i.e. there are lawyers whoare notpart ofthis system

– Itis possible tosaythate.g. Johnis member ofa legal system thatisdifferent from that of Paul, butnonetheless member of the same legal family (tradition, culture

etc). HeandPaultherefore have something incommon, this something being in needoftheoretical analysis o again, this claim mustnotbetrivially true –there areat least twolegal families with mutually disjunct membership this relation as changing overtime, i.e. to be able to speak about twolegal systems as converging ordiverging

o itis desirable to express

Inaddition tothese twocriteria, the analysis ofinfluential comparative lawtheories in the next paragraph provides us with additional criteria, amongst others the requirement to express the idea that one andthe same legal system can have at different points intime different legal rules.

2. Categorisation andObject Formation in Comparative Law 2.1 Diachronic Categorisation Comparative lawas a practise predates anytheoretical categorisation8. However in thelate 19thandthenfinally the20thcentury, comparative lawbecame anacademic subject in its own right. With that, the need for a more systematic, conceptual approach became evident. Due to the interest in Roman lawat this time, most 8

K. Zweigert, and H. Kötz, (1998) Clarendon Press chap. 4

An Introduction to Comparative Law, (transi

Weir) Oxford:

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comparatists werealso legal historians. Asa result, theearly proposals forcategorisation of legal systems where based on diachronic relations of historic dependency. Esmain, the Linné ofcomparative law, introduced forthefirst time thebynowfamiliar

division into distinct legal families ortraditions, andestablished thegeneral framework arbitrary” for further analysis. On the basis of his work, although highly critical with his “ divisions, Arminjon, Nolde andWoff (ANW) devised the still predominant division into seven legal families. These categories were based on a diachronic dependency features ofthe legal systems inquestion. Inorder to formal” relation, notintrinsic, or“ qualify” “ forthe English common lawtradition, the French orthe German family, the . This the right pedigree” legal system of a nation state needed nothing else but “ means that itis possible inprinciple thattwohighly similar legal systems are members ofdifferent families. Equally, itwould have beenpossible thattwomembers ofoneand the same legal tradition display considerably different features.

2.2 Synchronic Categorisation

In reality, none of the above mentioned “deviant”cases emerged inANWor inany of the “tradition”doctrine of legal categorisation. Their legal traditions showa remarkable homogeneity andcoherence. Inparticular, there seems to be no toa system moresimilar” category intheir scheme which contains a member which is “ ina different family. Wemight therefore suspect thatthese categories relyuponmore other version

than simple historical dependence, that the similarity of the systems involved is a hidden parameter fromthe beginning. Thefirst to make this assumption explicit was . Hereplaced the Lesgrandes systemes dudroit contemporaine” René David inhis“ diachronic dependency relation by a categorisation that relied directly on similarity. , so Forhim,thewhole domain oflegal systems canbedivided into “similarity classes”

. However, the way ideology” that members of the same family display a similar “

“ ideologies”are introduced makes again use of diachronic, historic notions. In this version, say French andSpanish laware part of the same legal family notso much because Spanish lawwas directly derived from French law, but because the two nations share a common history, which resulted ina convergence ofreligion, philosophyandpolitical andsocial structure. Legal families withdissimilar members areas a result ruled out, butthis left room for different legal families whose members are nonetheless similar to each other. Zweigert andKötz based their categorisation bothonANWandDavid. Theytook the partition proposed byANW,butinterpreted it inthe light of a radicalised David. legal tradition”and replaced David’s They finally rejected any historical notion of “ “ ideology”by the notion of a “ . This finally is supposed to be a pure legal style” synchronic criterion forlegal families: Twoormore legal systems forma family ifthey , regardless ofthe (external) reasons whytheyacquired it. legal style” have a similar “ Withthis move, thecategories were finally defined onformalist grounds. Thefact that the members ofthesame family are similar is notanylonger (as inANW)anempirical fact inneed ofexplanation, butan analytic truth. However, Zweigert andKoetz donotoffer anyexplicit definition ofstyle that could serve as an independent yardstick to evaluate the adequacy of the classificatory scheme. Despite the explicit demise of historical notions of dependency in Zweigert andKötz, itseems thattheir pre-theoretical notion offamily similarity is a result ofour knowledge of historical dependency. If it is already known that two systems are historically related, the vagueness ofthe notions of style always allows finding some similarity between them.

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Zweigert and Koetz ultimately give upformalism to solve this problem. Two systems are said to be sufficiently similar if they try to solve the same societal problems, iftheyfulfil thesame function. “ , initially a formalist notion developed Style” in contrast to historical accounts of the notion of a legal system, thus becomes explained inexternalist, functionalist vocabulary. Ifwehave twostates whose citizens frequently exchange cabbage for money, then their laws regulating this exchange should be comparable, despite all possible surface dissimilarities. Unfortunately, things are notthat easy. Only under extremely unlikely circumstances dowefindindeed “ andpeople oftwosystems dealing onlyand cabbage laws” exclusively incabbage. More likely is thefollowing situation: Bothsystems have laws onthe exchange of “goods” , andthe first state applies these rules frequently to the exchange of apples, andthe second to the exchange of bananas. Arethese cases sufficiently similar? Probably yes. Andif one exchanges radios, andthe other fruit? Still, probably yes, butwe might find particularities inthe legal systems that reflect these differences. Thequestion ofthe coherence ofdifferent legal families (abstract, linguistic entities, maybe tobe understood as sets ofrules) becomes a question ofthe similarity between certain states ofaffairs or“ processes. realworld” Again, things are notthateasy. Rather thanbeing a pure sense data, thesimilarity of functions seems to be directly dependant upon theoretical notions of the legal system involved. Awestern lawyer willperceive the exchange ofmoney forcows and that of pigs as similar, the exchange of humans for money as dissimilar. This is animal”(often but not because most western systems have a uniform category “ ) anda different category “legal person” things” . Fora slaveholder always subgroup of“ society however, which believes ina supreme “ , the exchange of pigs can Cow-God” be more similar tothat ofhumans thanthat ofcows. The similarity relation turns outto be a theoretical, legal relation, defined over state of affairs under a legal description. Inthe worst case, this could meanthat the similarity relation becomes asymmetrical: system Amight be similar tosystem B from the point ofviewofsystem A, butdissimilar fromthe point ofsystem B.

3. Similarity inthe theory of science 3.1 Elements ofStructuralism Traditional theories ofscience, fromthe neo-positivists viaPopper to Lakatos, usually were interested inexplicitly formalised theories andhence sentences as smallest unit of analysis. Wehave seen that comparative lawfollowed largely this picture, andI have mentioned some of the problems connected with this view. Van Fraasen’s “ constructive empiricism” 9andSneed-Stegmüller structuralism10 differ fromthis view inthattheytake (set-theoretical) structures ormodels as smallest unitofinvestigation. Together they form a family of “ model-theoretical”or “ semantic”approaches to epistemology. In what follows, I will introduce in particular ideas from the SneedStegmueller approach, as itis less tied conceptually to empirical sciences. Animportant result oftheKuhn-Popper-Lakatos debate mentioned above wasthe insight thatthelaws ofscientific theories, just as normative laws, arenotself-applying. Newton’s laws of motion say don’t tell the reader what kind of system they are 9 B.van Fraasen (1982) Thescientific Image. Oxford: Oxford University Press 10 see W.Stegmüller, W.(1973) Froma structuralist point ofview. Berlin: Springer, andW.Balzer, C. Moulines, (1996) Structuralist Theory of Science. Berlin: DeGruyter

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canalways be rejected falsification” supposed todescribe. Asa result, anyapparent “ . Structuralist theories have this idea at their very as “using the wrong application” heart, andchose as building blocks forscientific theories notgeneral rules, butthose systems to which ourtheories are applied, such as forinstance the real” individual, “ lunar system, three billard balls ona table or,forourpurpose, Peter giving cabbage to John inexchange formoney. Since scientific (orlegal) theories are seen as cultural, butabstract objects (similar to computer programs, symphonies, or languages inthe sense ofKatz), theythemselves however arenotspatio-temporally located –although wecanintroduce time parameters explicitly. Inorder tobecommunicated, theyrelyon objects results inset-theoretical strucabstract” to “ real” language. This move from “ ourtheories. tures as simplest units ofhighly complex, structured entities – systems are set-theoretical structures, the models Theformal equivalent to “real” ofa theory. They have theformofa list:

, the objects it assumes. The Riare relations The Diintroduce a theory’s “ontology” overthe Di.Ina mathematical example, D1could bee.g. three lines andD2a circle on , the is tangential to” andR2the relation “ is parallel to” a blackboard, R1the relation “ first defined between members ofD1,thesecond onD1X D2.Inourlegal example, D1 John could be the set {John, Jim}, D2the set {cabbage}. The Relation R1 would be “ , defined over D1× D2 offers Cabbage to Jim” Models so conceived decide the identity ofa theory. Theyare assumed tosatisfy thebasic laws ofthetheory. Instructuralism, anymeans todescribe these models will do.Rather thanrequiring anexplicit setofaxioms, these conditions aresummarised in set-theoretical predicate. second order” informal set theory, bythe introduction of a “ Tointroduce these predicates, a refinement ofthe notion ofmodel is necessary. We have saidabove that ourmodels satisfy the (unspecified) axioms orbasic laws ofour theory. Some ofthese laws willhave a special form: Theymake useofonlyoneofthe relations introduced above. A model that contains only laws of this form is called a potential”model Mp.They provide the conceptual frame of a theory, but are not “ claims. Intuitively, theydescribe allthose structures for sufficient to make “ empirical” without answering makes sense – aretheya model ofourtheory” which thequestion: “ it. It makes sense to ask for a system that contains two humans whether it is a . Itdoes notmake sense toaskthis question fora system consist“ contract situation” ingoftworocks. cluster “ Actual” models onthe other handare models which satisfy at least one“ , thatis a lawwhich links atleast tworelations ina waythatthecontent cannot be law” expressed bya translation using only one. Anexample from lawwould be: If Peter offers Jimcabbage andPeter accepts, then there is a contract between them. This , and is a contract between” offers”and the relation: “ sentence uses the relation: “ neither ofthemcanbe replaced bythe other. Obviously, M Mp . They are the smallest elements model element” The tuple is called a “ necessary to formulate a statement about the world: Mpprovides the conceptual frame, a larger class of possible models, andMthe class of structures that actually satisfy the claims of the theory. With this, we have already the components necessary to formulate the settheoretical predicates mentioned above. Letuslookatanexample. Wecandefine the predicate “ sothatx is a model ofthetheory x is a German lawcontract theory (GCT)” GCT iff there are D1,.... Dk:R1,... Rkso that

x = and

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1. B1 (D1,....Dk; R1,...Rk> s. BS (D1,....Dk: R1,...Rk) introduces the underlying ontology ofcontract law–allthose real life for which it makes sense to query whether a contract relation is present. The B(D,...R) symbolise the basic laws of the theory, e.g. the relation between contract andoffer mentioned above. Sucha scheme defines theclass ofall canbesubstituted. This set isthenthesetofallmodels forGCT. x” entities forwhich “ Wehave now“solved”ourfirst question. Set-theoretical predicates of this form will playthe role ofourcomparative lawcategories. Westart withsimple categories ofthe form: “ x is a German contract lawtheory”andextend them systematically to more on complex andgeneral predicates as “ x is a contract theory ofthe Roman lawfamily” the one hand, “ x is a German lawtheory”on the other hand. We note that these categories are not defined explicitly, andwedon’t use either similarity or historical

Thefirst clause configurations

dependence

at this stage

which only provides

a conceptual framework. This reflects

the idea mentioned above that we do not want empty analytical truisms when or“appliintuitively wesearch forempirical explanation. Ontheother hand, “ models” cations”are used directly in ourdefinition. This reflects Zweigert and Koetz’idea mentioned above that applications orproblems, andnottextbook definitions are the common denominator oflegal systems inone andthe same family. , and Legal systems andlegal families are seen as “ co-ordinated theory elements” this leads us to the next distinguishing feature ofourapproach. Oneconsequence of this approach, in both lawand natural sciences, is that universal laws lose their privileged status. Rather than treating sentences of the form: If someone injures another, hemustpaycompensation” as building blocks ofa theory, here models ofthe form: “ theevent thatsomeone injures another hastheproperty that itis a damage law formthe basis of law. Application andrule become one, andthe notion ofthe event” 11 is directly and formally expressed. Evolution of law is legal case as a “ story” modelled as a progression of cases (or rather rules-cum-applications) regardless whether change wasintroduced through court judgements orformal legislation. One of the basic assumptions of structuralism is that “mini-theories”which are based

on single

model elements, never stand alone. Models

of different

model

are mutually connected. Intuitively, these links between different models can have twoforms: They can be links between models of the same theory, orthey can

elements

linkmodels ofdifferent theories. Links between models of the same theory are called constraints. The most important are identity links, which are functions that assign the same value to the same objects intwomodels. Inclassical mechanics, a particle will have the same mass in all models in which it appears. Ifwe transfer a billiard ball from its table to our laboratory, its mass remains thesame. Inlaw,thevalue ofthe loss ofbodily organs in insurance lawis such an identity function. I loosing a finger while repairing mydoor and I loosing a finger during sports are two (partial) models of the “insurance law . The “monetary value”functions assigns the same value to myfinger inboth theory” models, Iwillgetthesame compensation. Formally, constraints are relations overthe power set ofpartial models ofa theory element. More precisely, a constraint C forMp is a non-empty subclass of Po(Mp). The triple will also be called the (formal)

core Kofa theory.12

11 See B. Jackson, (1996) Making sense inthelaw. London: Deborah Charles Publication 12 this expression is chosen intentionally to emphasise that this approach can be understood as a

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More important for ourpurpose however are links between models of different .13Again, they are relations over the products of their partial bridges” theories, the “ models, but of a more complex form. One example from physics is the relation and“ volume” energy” between the pressure function inhydrostatic andthefunctions “ inthermodynamics. Inlaw, wecould forinstance construct the multi-party contracts that set upa company fromthe simple contract relations ingeneral private law. Inthe same sense inwhich hydrostatic is a pre-theory tothermodynamics, contract lawis a pre-theory to company law. Similar constraints canbe found between contract theories ofdifferent systems. German andEnglish contract lawforinstance have an(ideal, nothistorically real) precursor theory: anelement whose models are contracts inboth systems. Theywould include e.g. ourcabbage example. German lawhas inaddition consideration”(the money) is missing, e.g. gifts. English and other models, where “ , that is twotheory elements witha bridge, theory-complex” German lawformhence a “ a relation between the partial models ofbothelements. Inourexample, this “bridge” ; the partial models of English laware a true subset ofthose of reductive” relation is “ German law. Formally: M (E) Mp(G) Legal families andthe legal systems of nation states are in principle theory anda pragmatic “scientific time” complexes ofthis kind. (even ifwewilladdlater a “ element forthe latter). Themore links there are between twotheories and community” the denser the complex they build, the more similar they are.14 Pragmatic elements

So far, theset ofmodels ofourtheory is a fairly platonic entity. Theyare meant tobe omniscient the applications of the theory, but only in the sense of Davidson’s “ 15or better, his jurisprudential counterpart, Dworkin’s “Hercules” . Inthe interpreter” precursor same sense, the model element which wehave constructed as idealised “ to both German and English contract lawis nota model of a theory inthe theory” sense that at least some lawyers everheldthat theory. Itmaywellbe that nolawyer are things forthe purpose of property electrons” ever has considered forinstance if“ property law law, yet they either are or are not members of the set of models of “ theory” –just ask Hercules. We get a more realistic picture if we add a newset, the set . Formally, wewillrequire that I is a subset ofMpIntuitively, ofintended applications “I” theyarethose realstructures towhich some scientists intends toapply thetheory –in Newton’s example e.g. apples falling fromtrees. Theformal requirement does notsay progressive which willgrow(” openset” muchabout the boundaries of I.Theyare an“ ) during research programme” inthe sense ofLakatos) ordiminish (” degenerative RP” the life of a theory. They depend onpragmatic andhistorical facts. The similarity to legal questions is striking. Parliament enacts model elements, andcommunicates in set I of core” different ways (e.g. the records of parliamentary debates) an initial or“ intended applications. This set willincrease ifjudges apply thecore tonewstructures formal version of the common core approach in comparative law, see See M. Bussani, (1998) Current trends inEuropean comparative law:the common core approach 21 Hastings Int’l &Comp.

L. Rev., p. 785

13 C. Moulines., M. Polanski (1996) Bridges, Constraints, and Links, in: W. Balzer/C.U. Moulines 232 (eds.), Structuralist Theory ofScience. Focal Issues, NewResults. Berlin: Springer p,219– , in:J. Echeverría, A.Ibarra, 14 C. Moulines (1992).: “Towards a Typology ofIntertheoretical Relations” 411 Th. Mormann (eds.), TheSpace ofMathematics. Berlin: Springer p.403– 15 D.Davidson (1977) The Method of Truth in Metaphysics, in P.A. French, T.E.Uehling Jr., and H.K.Wettstein (eds.), Midwest Studies in Philosophy 2: Studies in the Philosophy of Language, Morris: University of Minnesota Press

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which where notenvisaged explicitly bythe historical lawgiver, butleave the core K intact. Relations between different I as muchas between different Mp canbe a source for“similarity” . Oneexample: whenGerman lawintroduced the concept of“retention oftitle” , the intended applications were e.g. producers delivering goods to retailers so thatthe producer remained owner ofthe goods until theywere soldandthe proceeds , thatis relations between consumers and usedtopayhim.“Hirepurchase” or“leasing” retailers, were not envisaged. But when the newcontract form of “ leasing”was introduced to German markets fromthe UK,German lawyers “ that the old found out” concept could be applied to that neweconomic exchange relation as well. The core remained the same, the applications grew. Conversely, the intended applications of the English lawconcept of hire purchase were as an alternative to consumer credits. Butwhen retention oftitle was introduced into English lawthrough a Dutch (international private law) case, English lawyers “ that they already had that found out”

intheformofhire purchase. . Then a theory-element (as opposed to“model element” at a certain time ti, the theory elements of German retention oftitle andEnglish hire purchase were different, despite some abstract “ between therelative sets Mp, bridges” because ofthe disjunct sets I. Butat a later stage tj, bothsystems hadincreased their intended applications in a waythat the intersection of the twoIs was notempty any longer; thetwoelements became more similar. (Notidentical though, German lawhas the additional intended application “ to which no English counterextended retention” concept,

Let’s callthetuple

part exists, I(G) | I(E) (E)≠)

Wecannowreformulate theidea fromabove: Legal systems aretheory elements, which are interrelated byset-theoretical relations either overthesets I orMp.Several interrelated theory elements forma theory net. The denser the net, the more similar are thesystems. Similarity becomes (partly) a quantitative notion. Inthe reconstruction so far, theory elements are linked by bridges. There is no difference inprinciple between elements coming fromthesame national legal system andtheory elements from different national laws. To express this qualitative difference, we can make the notion of “ intended application”more explicit anddescribe legal systems as genidentical, historical objects. Onewaytotackle historical evolution oftheories explicitly has been proposed byMoulines.16 Weenrich ourtheory element bya set Hof “historical intervals” , hidetermined as intervals of real numbers, anda ). is historically prior to” dyadic, antisymmetric and transitive ordering relation ≤(” Secondly, weintroduce a set SC forscientific communities. This set has thefollowing

features:

1. Itis a group ofpeople which normally lasts more thanonegeneration (= is genidentical) 2. The members ofthe group communicate ina specific “scientific language” 3. They share particular techniques for problem solving, a particular wayto relate theory

models

to

applications

The last remark becomes important inthe light of a third refinement. Weintroduce a subset of I, the acknowledged paradigm set P. These are the typical examples the members ofSC have inmindwhenusing their theory, quite often, theywillbe thefirst textbook examples studied as students. InGerman lawforexample, “ minors buying motorbikes that get destroyed in an accident” , an example to be found in most textbooks to introduce the “ . With this newconcept, we can abstraction principle” formally represent AlanWatson’s insight intheimportance ofstudent textbooks forthe 16 C. Moulines, (1979) Theory nets andthe evolution oftheorie. 41 Synthese p. 417– 439

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evolution of law17 –textbook examples provide the historical glue that keeps legal systems fromdisintegrating. Finally, werequire thatthemembers ofP stand ina “ totheother similarity relation” is the equivalent to Similarity as seen bya specific group of lawyers” members of I. “ the different use of analogy in different legal systems. We introduce it as a basic theoretical termnotofcomparative lawitself, buttoconstruct itsatomic parts, national legal systems. The observation from above, that legal system A might be seen as similar to B fromthe perspective ofB butnotAfinds here its technical solution. Inthis indeed as a theoretical term, dependent uponthe legal similarity” way, wecansee “ system itself. This allows us to analyse it in the same way theoretical terms in empirical theories were analysed, e.g. in the form of a Ramsey sentence of the theory.18

Theory nets then become a complex object , (that is, synchronic theory nets relative to a moment intime), andtheory evolutions finite sequences of theory nets Njso that P andSC remain constant andthe MpandIpare insome form legal linked to each other. Theory evolutions correspond to whatwenormally call a “ . Its different elements are kepttogether: system”

• bythe identity of the scientific

community through time,

and by a constant set of paradigmatic

examples

• bythe quantity oflinks

• by the quality of these

between theory elements links

4. Conclusions andoutlook With this last step, we have assembled all those elements from epistemological structuralism that weneedto answer the questions posed inthefirst paragraph. Theory nets ofthesame evolution (same national law)willshare anidentical SC, sufficient to distinguish them from theory nets of different legal systems. Even if there is high amount of bridges between the models of the two legal systems, they have a different SC.There is however oneimportant exception tothatrule. Explicit borrowing, as we have seen, is one important way in which legal families are constituted.

Borrowing can be understood as a communication between twodifferent scientific higher order” community. Inthis case, wehave the same communities, which forma “ relations short of identity between the sets SC (e.g. inclusion) that wehave normally only between different sets I or Mp This shows that that our theory of choice has indeed the expressive power necessary to account forallthe intuitions welisted for . “Legal systems”are a-temporal legal system” the comparative law concept of “ snapshots that are similar to theories at a given point intime, legal traditions corre, andlegal families paradigm” spond tothe structuralist reconstruction ofthe notion of“ finally are a third type of intra-theoretical relation expressible as bridges and links theory holons” inthe language ofstructuralism.19 between theories –or“

45 , American Journal ofComparative Law42 pp.1– 17 A.Watson (1994) The Importance of“Nutshells”

18 W.Balzer, andC. Moulines, (1996) Structuralist Theory ofScience. Berlin: DeGruyter, 19 W.Balzer, C. Moulines, J. Sneed, (1987), AnArchitectonic forScience, Dordrecht: Reidel p. 124 This analysis differs markedly froma similar parallel reading oftheory ofscience andcomparative lawproposed byvanHoecke andWarrington. See their VanHoecke, MarkandMarkWarrington, (1998), Legal Cultures, Legal Paradigms, andLegal Doctrine: Towards a NewModel forCompara536 tive Law,47 International andComparative LawQuarterly, pp.195–

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Atpresent, this analysis only indicates howa translation of jurisprudential and comparative themes and discussions into the language of the general theory of science would work. Whatis needed nowis a detailed analysis ofa fragment oflaw, say the law of obligations of a specific country, how it develops over time while maintaining its identity, and how it is linked to the corresponding laws of other countries, both within and outside its legal family. The present analysis gives us reasons to pursue this endeavour, but no guarantee yet of its success. Should however the tentative translation proposed here be scalable to detailed, empirical accounts of law, then it has the potential to give a newperspective notjust to the methodology of comparative law, but also to some of the most basic questions of jurisprudence. Inoffering ananalysis oflawthat reaches beyond the mere syntactical form of rules, and re-integrates applications in a formally rigorous way, theory of science might have the best explanation yet howit is possible that laws remain identical overtime, andyetchange radically their field ofapplication. Burkhard Schafer, Edinburgh University, School of Law,Joseph Bell Centre

Sten Schaumburg-Müller Truth, Law, and Human Rights1 Introduction

Theunderlying concern ofthis paper isthatwhereas Isee human rights as intrinsically “ good” , I donotwanthuman beings tobetortured, heldas slaves, denied the right of speaking outortobewithout food, shelter ormedical care, just topicka fewexamples fromthe Universal Declaration of Human Rights. Butat the same time I have some reservations as regards theability ofhuman rights lawtoactually provide humans with their rights. There are many ways of probing this question. As the problem is somehow connected withtherelation between ideas (inthis case human rights) andfacts, Ishall take a closer look at the theories of truth. Inthis paper theapproach totheories is inspirational inthedouble meaning that it uses existing theories as inspiration forunderstanding the subject matter rather than rejecting oradopting such theories. Secondly, itdoes notpurport to suggest a theory thatcanprovide a general explanation. Thepoint is thataninspirational approach is in fact more satisfactory than a comprehensive understanding or system building approach. Comprehensive theories tendtobeeither wrong orvoid, wrong as theydistort reality forthe sake of uniformity, orvoid as they tend to be general without anyreal content ormere coherent without anyconvincing connection totherealworld. However, comprehensive theories often have very important points that enrich ourunderstanding ofthe subject matter andare necessary forthe managing of ourrespective professional fields. Letmecite twoexamples: ‘Ethics ofcare’2could be regarded as a comprehensive theory, interesting, necessary andwith good points, but unfit for a wholesale explanation. Ontheonehand, itis a valid point that abstract justice willnot suffice. Human beings are notdetached entities, wedo have feelings of love (and hate), andmoral andlegal theories thatdonottake this aspect into consideration are incomplete anddistorting. Asregards human rights, these are notmere abstract rules butare also connected to oursentiments. Onthe other hand, as a hyperbole theory ‘ethics of care’does not seem to work. We also need the detached position. In a modern world wehave to deal with people wedo notknow, andinall societies we have to dealwithpeople whomwespecifically care for(orwhomwedespise), andin certain situations these sentiments ought notinfluence ouractions. Thediscussion of this topic is, ofcourse, muchmore complex, butI hope togetmypoint through: ‘Ethics ofcare’is a source ofinspiration, itadds toourunderstanding andis necessary even whendealing with law. However, when being regarded as a comprehensive theory, claiming to be able to provide the best explanation and the only view, it looses its attractiveness andbecomes yetanother intellectual tiresome andpractically useless attempt to stuff the plurality ofideas into one basket. Second example: Feyerabend’s 3 is certainly wrong. There are claim that as regards scientific methods “ anything goes”

1

Mypresentation at the IVR2003 was entitled ” The Pragmatic Challenge to Human Rights” . The of departure forthe presentation wasan inquiry into theories of truth inspired bythe Danish philosopher, Justus Hartnack. I have decided to elaborate more on this aspect, and leave the pragmatic challenges forfuture publication. See Virginia Held, ”Care andJustice intheGlobal Context” , Associations, vol.7, 2003, pp.159– 170. Paul Feyerabend, Against Method. Outline ofanAnarchistic Theory of Knowledge, NLB, 1975. point

2 3

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ofways inwhich a refinement ofourknowledge willnotbe achieved. Yet, Feyerabend still hasa point incontending thatmorethanonemethod isavailable, and that ifscientists hadclung to“ critical rationalism” or“positivism”oranyother comprehensive theory, science would probably have made noprogress. Fromthis inspirational approach I shall take a closer lookat theories oftruth. hundreds

Three conceptions

of ‘truth’. Hartnack

to the Danish philosopher Justus Hartnack,4 ‘truth’can be conceived as a , the this is a parrot” correspondence between what is said andreality. If I say that “ claim is true ifandonlyifitcorresponds toa realphenomenon. According tothis view, correspondence is constitutive for the truth. If myclaim is not corresponding to a factual phenomenon, ifas a matter offact there is noparrot around, whatI amsaying is consequently nottrue. Froman immediate andsomewhat superficial point ofviewthis makes sense. If what I amsaying has noconnection with reality, I amnottelling the truth andI might even bejudged insane ifthere is noconnection to reality whatsoever. However, there is noimmediate relation between a sentence andreality, letalone correspondence. Theword‘parrot’does notinanysense correspond toa realparrot, and even if it did, something should be contended in order to be true, and real phenomena are notcontentions, butmere facts. “ Parrot” isjust a word, whereas “this is a parrot”is a contention that mayormaynotbe true. Thecorrespondence theory is somehow naïve. The mind–orthe language –is nota mere reflection of reality. Ourconceptions do not merely reflect reality as a mirror, andconsequently ‘truth’cannot be construed as a reflection or correspondence. T rue’or ‘false’cannot be understood as going to the hall of mirrors in an ‘ park, some mirrors reflecting correctly andsome distorting reality. Mind amusement andlanguage are much more active andinteract with reality ina more complicated way(which is notthe same as claiming that reality is a mere construct ofthe mind). Secondly, Hartnack points out, ’truth’can be conceived of as a coherence of ideas. Thesentence “ Napoleon wastheemperor ofFrance” is true ifandonlyifitis in accordance withother sentences, notbecause itcorresponds to anyfacts. Toclaim thatNapoleon wasnottheemperor is nottrue, because itis incompatible witha hostof sentences claiming the opposite. To this perception it is not possible to assess whether a sentence is true byexamining its connection to reality. Truth can only be established bycomparing it to other sentences andassessing which one is able to provide us with the highest degree of coherence orthe highest amount of coherent sentences. Wemayeven have to deploy the concept of ‘protocol sentences‘, which are sentences that are able toprovide thehighest degree ofcoherence. In Hartnack’s presentation, the coherence theory is somehow connected to consensus. The ones to decide whether a sentence is true (meaning whether the sentence is able to provide a highdegree ofcoherence withother sentences) are the scientists. This aspect is not elaborated in his exposition, butappears to a natural assumption: Someone mustbe intheposition todecide which degree ofcoherence is the highest one, andHartnack does notquestion the scientists’privileged position. According

4

Justus Hartnack, Filosofiske problemer ogfilosofiske argumentationer, 3. udgave, Gyldendal, 1962, 1st edition 1956. English version: Philosophical Problems. A Modern Introduction, Munksgaard, 1962.

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The coherence theory also seems to make some sense. If I amclaiming that is a parrot” , this is true ifeverybody agrees that, say, a parrot is visibly sitting in the tree top. There is a high degree of coherence. Even if mysentences are notin accordance withother persons’claims, whatIsaymaybetrue ifIamable toconstruct a setofcoherent sentences, suchas: “Witha pairofbinoculars, Icansee itbetter than “ there

you” , etc.

However, thecoherence theory does notseemsatisfactory. Howcanweassess the truth oftwosentences ortwosets ofcoherent sentences? Thecorrespondence theory does notpose this problem. Thetruth ofthesentences involving the presence of a parrot is depending on the actual presence. This option is notavailable to the coherence theory, and the field is open for constructing largely coherent sets of sentences withonly slight connection to the factual world. The third theory mentioned by Hartnack is pragmatism. To this theory, truth is instrumental and relates to the attempt of predicting, transforming and exploiting reality. Ina way,thepragmatists also claim ‘truth’tobe a relation withreality, onlythis is notan inherent quality butsomething that willturn out. “ The truth is the name for whatever proves itself to be goodinthewayofbelief, andgood, too, fordefinite and .5The sentence “there is a parrot”is true ifitis workable, e.g. if I assignable reasons” amable tocatch itandeat itorputina cage –orable to protect itfrombeing caught andputina cage, whatever myaims are. Thus, thepragmatists catch theactivity ofhuman beings as a central partof‘truth’, as opposed tothecorrespondence theory thatmerely conceives ’truth’as a reflection. Hartnack criticizes the pragmatic concept oftruth, claiming that the idea that truth is becoming rather than immanent contravenes the everyday use of the word, and secondly thateventhepragmatists aredependent oncorrespondence, onlyina more

subtle way. Before considering whether these theories have anything to offer, I shall dwell on the question whether the concept oftruth is appropriate inthefield oflaw.

T ruth’in law? Habermas ‘ Inhisanalysis ofthecommunicative reason, Habermas makes a distinction between

the objective world, the inter-subjective world and the subjective world.6 When we communicate about objects, it makes sense to speak of ‘truth’. Even though weare able tocommunicate as rationally about inter-subjective norms, ‘truth’is nota relevant criterion inthis context. The same holds true ofthe subjective world. Wemayspeak rationally of our feelings (love as well as toothache), however, ‘truth’ is not the

criterion. ,7 Habermas isfocusing onreason: “ Dasphilosophische Grundthema istVernunft” (the basic philosophical topic is reason), and according to his theory reason is communicative. Wemayargue about whether there is a parrot inthetree, andtheone claiming this tobe true is rational onlyinso faras he is able toprovide reasons forhis contention. Hiscontention maybe criticized andhe mayputforward further reasons. Rationality lies intheveryfact ofbeing able togive reasons andtocriticize. Asforacts, thecriterion is not‘truth’butnormative correctness (“ ). Whereas normative Richtigkeit”

5 6 7

William James, quoted in Alfonso Morales (ed.), Renascent Pragmatism, Ashgate, 2003, ” Foreword” , p. xv. Jürgen Habermas, Theorie des kommunikativen Handelns, Suhrkamp, 1981, pp.25 ff. Ibid., p. 15.

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it makes sense to askwhether it is true that there is a parrot inthe tree, itdoes not make sense to askwhether itis true to shoot it.The question relates to “ , is Richtigkeit” itright orwrong toshoot theparrot. Inthesame manner the rationality oftheactlies in there are so many parrots around, andthey eat the the ability to provide reasons (” ) andthe ability to criticize (” parrots are an endangered species and leeches all up” ), but the criterion is different. As for there are other ways of protecting the crop”

to the subjective world, the relevant criterion is trustworthiness Wahrhaftigkeit” (” ). Itdoes notmake sense toexamine whether itis true whenI claim that Ihave a toothache. Thedentist maylookforelements intheobjective world which renders itprobable that Ihave a toothache, butshecannot findthetoothache. Andshe maygive a dental treatment that is likely toeliminate thetoothache, which fora dentist is a correct ora rightful act, butnota true act. I understand Habermas’contention inthis way:Wemayspeak rationally notonly in relation to the objective world, butalso in relation to the inter-subjective andthe definitely a point against those whoclaim that rationality isconnected subjective one– only to truth. The criteria, however, are different, and it does not make sense to look for truth when dealing with the inter-subjective or the subjective world. As the intersubjective world consists of norms, including legal norms, ‘truth’is misplaced when dealing withlaw.Wecan dothe right thing, butwecannot knowthe right thing. Inthis waywecannot have legal knowledge butrather legal ability orlegal competence. The expressions relating

entail is that wecannot have an epistemology8 objective but to the inter-subjective world.

of law, since lawis notrelated to the

And yet

Even though I accept Habermas’point,

’truth’is pushing itself forward

in the legal

world: Firstly,

itis possible to make a statement relating to law,a statement that maybe true (orfalse). IfIclaim that according to Danish lawitis under nocircumstances legal tokillanother person, onemaycriticize andargue thatthis claim is nottrue, since the Danish Penal Code, section 13 mentions that one maykillanother inorder to prevent a greater damage, such as being killed oneself. Thus, “konstative Äusserungen” (demonstrative expressions) with a perfectly relevant criterion of ‘truth’are also feasible inlaw,anditis possible to pose theoretical questions inlawandtreat lawas part ofthe objective world. Whena legal decision is going to be taken, a true account ofacts andjudgments mustbeavailable inorder tomaketheright decision. Ofcourse, thedecision does notmerely consist ofrules etc., truly being accounted for.These are notsufficient inorder to make a right decision, butthey are necessary. The same does not seem to apply to moral decisions. Moral norms maybe accounted for, buttheydonothave thesame status andare notnecessary inorder to make a convincingly right moral decision. Allpersons have the capacity of making right moral decisions, andthe moral content of their acts is notconnected with their capacity ofproviding moral rules as justification. Asforlegal decisions, theopposite is applicable: Notallpersons have the capacity to make right legal decisions, andit is paramount that justifications in the form of rules (judgments, principles, etc) are brought forward. It should be emphasized that notonly courts make legal decisions. Most legal decisions are made bybureaucrats (the executive branch of power), andnotneces-

8

π ____

_

= knowledge.

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sarily bylawyers. Evenmore so, right decisions presuppose knowledge oflegal facts, a knowledge that can be true orfalse –andapparently a knowledge that cannot be taken forgranted.9 It should also be emphasized that legal scholars are not in a pure theoretical position. Their job is notonlyto provide true accounts of lawbutalso to provide right answers to difficult legal questions, answers that are practical inthe sense that they canbe usednotas factual information (that canbetrue orfalse) butas practical tools forsolving practical, actual legal problems (solutions that maybe right orwrong). Understood in this way, law is not only part of the inter-subjective world but also part ofthe objective world, andina certain sense ‘truth’is relevant inthefield of law, although to a limited degree.10 Secondly, ‘truth’is relevant inthe legal field as legal decisions ofanykindalways relate to assumptions offacts, assumptions that mayormaynotbe true. The relation between justice and truth in court is intricate,11 but the problem is not confined to courts. Also other legal decision-makers, such as the bureaucrats inthe executive branch, relyon‘truth’inthesense that itis paramount fortheir decisions thattheyhave rather exact knowledge of relevant facts intheir field of operation. Incomparison to high-profiled juror court decisions, the establishment oftruth inthe executive branch seems much less regulated and consequently much more open to discretion – discretion not in relation to the legal decision, but in relation to the establishment of truth. Even the legislature makes assumptions of actual facts, assumptions that are relevant forthe decisions ofthe law-making body. Whereas decisions froma court or fromtheadministration maybe unlawful iftheydonotincorporate relevant knowledge offacts, this is muchless true (iftrue at all) as regards the legislature. The legislative bodymayerrabout facts, andyetits decision willbevalid. Itshould be emphasized that it maynotbe possible to acquire full knowledge of the relevant topic. However, this does notrender factual knowledge irrelevant. In conclusion, neither knowledge of the law, nor knowledge of facts, nor any combination of the two, creates a sufficient basis for (legal) decisions, butthey are necessary, at least tosome extent. Thus, ‘truth’is nottotally outside thelegal sphere.

Truth

andhuman rights

Aswehave seen, description of lawis to some extent possible andeven necessary. When dealing with human rights, this entails that human rights lawshould be described in order to be able to make right decisions, whether as a lawyer or as a politician. This is commonplace forlawyers andlegal philosophers who– as a part of their methodology take theobjective existence ofhuman rights lawintoconsideration. However, legal knowledge is apparently not always in high esteem among philosophers orpoliticians, whosometimes seemtobe oftheopinion that human rights lawis 9 See Bettina 10

11

Lemann Kristiansen, Pantefogderne og deres retsanvendelse, Jurist- og Økonomforbundet, 2001, (on bailiff assistants’application of the law). There are manyways ofbeing mistaken, believing that inorder tofindthe law,oneonlyhas tofind thetruth. Onlegal investigation inless formal legal system, see StenSchaumburg-Müller, ”Pursuing Theory inLawonLoose Ground” , Retfærd, No.99, 2003, pp.33 ff. See Susan Haack, ”Truth andJustice, Inquiry andAdvocacy, Science andLaw” , Associations, Vol.

114. 7, 2003, pp. 103–

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not part of the objective world, but mere philosophical riddles or political battle grounds.12

Fromthe above wealso knowthat description is notsufficient, as human rights lawis notonly an objective phenomenon, butalso an inter-subjective, witha twist of the focus from truth andlegal knowledge to the capacity of making right decisions, including right legal decisions.

Tosome extent a true account ofreality is also possible, anditis evennecessary inorder tomake right legal decisions andinorder forpoliticians tomakegoodpolitical decisions. Research is a necessary part of providing this knowledge. However, sociology of law, dealing with various relations between lawand reality, does not seem to have gone much into anysociology of human rights, butseems to a large extent to stick tothe other branches of lawandits relation to reality. Having demonstrated that ‘truth’is relevant inthe field of law, it is natural to ask whether the presented theories oftruth have anything to offer. Correspondence: Asshown above, thecorrespondence perception oftruth makes sense ina common sense way,butis notable toprovide uswitha formula of’truth’. As

for human rights law, this indicates that we can safely start off with the assumption that our expressions relating to human rights must correspond to the relevant legal material, such as instruments, judgments, views, etc. However, this will not present the entire picture, since such an all-embracing picture does notexist. Law, including human rights law, must be created. Human rights related activity influences human rights law(tovarious degrees, ofcourse), andthis interaction cannot be grasped bya

correspondence approach. I should specifically warnagainst twodefunct constructions. Inhuman rights law, itis notalways considered tobe relevant whether thelawis prevailing (ina strict legal sense) or not. Thus, when talking about the third generations of human rights, solidarity rights, such as the right to environment andthe right to development, the importance of prevailing human rights seems to vanish, and so does the question whether those specific human rights have actually been agreed upon. According to the third generation proponents,13 it seems as if human rights merely exist, andas if the only problem is that we have not yet discovered all human rights. This approach presupposes an existence of human rights andpresupposes that wecan have a full knowledge of human rights, butit totally ignores the creative part of law–a major drawback of the correspondence theory. It is, of course, possible that the so-called third generation rights will form part of human rights law in the future, but other developments are also possible. The language of already existing rights creates an illusion, and is, I believe, connected to a natural lawperception, according to which human rights are merely there to be discovered. Fromthe critique ofthe correspondence theory of truth, weknowthat this is an inadequate wayof understanding law, including understanding human rights. Rather than insisting onthe existence ofthird generation rights, itought tobeconsidered whether these rights areable tocontribute tothewellbeing ofhuman beings (see further below inrelation to pragmatism). Asfor that I am quite sceptical, and even more so when the arguments assume the existence of third generation rights rather than bring forward good reasons fortheir relevance.

) andSøren 12 See KaiSørlander, Ommenneskerettigheder, Rosinante, 2000, (” OnHuman Rights” ). Karup, Dansen ommenneskerettighederne, Gyldendal, 2000, (” TheWorship ofHuman Rights” 13 See as anexample Rhona K.M.Smith, Textbook onInternational Human Rights, Oxford University Press, 2003, pp. 46 f.

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Secondly, some theories trytopinpoint onesingle wayofestablishing thetruth of a legal scientific sentence. Thus, AlfRoss holds that the question whether a rule is valid, is a matter of the rule being used bythe courts.14 There are several problems connected with this approach: It establishes truth as correspondence (a legal sentence is true ifitcorresponds toa judgement), itfocuses solely on‘truth’inrelation to law, anditfocuses onthe courts as the place where correspondence can be estab-

lished, thus leaving outadministrative decisions and, relevant forhuman rights, leave out‘truth’foranybranch of lawthat does nothave a court. Dealing with lawis partly a creative business, andbywayof understanding the nature of ‘truth’and ‘correspondence’ it maybe established that on the one hand human rights are not mere arbitrary inventions (as one has to take the established truth as the point ofdeparture), andonthe other handhuman rights are notjust there to be found (as ‘correspondence’and‘truth’are notsufficient to provide uswithlaw). Coherence. Forthelegal profession coherence is a natural ideal: Legal decisions, accounts, andopinions ought to be inaccordance withother legal material. Still, it is onlyanideal, implying that itmaybe a better decision to deviate fromprevious views. Even so, coherence is still an ideal, only not an ideal at anycost. Deviation is the exception, notthe rule. Asregards legal scholars, the account ofprevailing lawought to be coherent, but–for the sake of coherence –it is highly relevant to point out conflicting elements within the established law, conflicts that are bound to be there. Just like incase of correspondence, coherence is relevant andshould notbe disre-

garded when dealing with law. Onthe other hand: coherence is an ideal butnotnecessarily a reality, andthe coherence theory hasgotproblems withthis verydistinction. Whentruth is understood as a coherent set of expressed ideas, it becomes difficult, if not impossible, to distinguish between thecoherent setofideas as anideal andthecoherent setofideas as ‘truth’–a distinction that does notcause any problems forthe correspondence theory. Thedistinction is necessary inorder forustograsp lawas anobjective as well as an inter-subjective phenomenon, or putin another way: lawas facts as well as counterfacts. Let me give an example: Inthe Vienna Declaration and Programme of Action, paragraph 5 states that “ Allhuman rights are universal, indivisible andinterdependent andinterrelated.”This is a normative statement, which implies that it is a fact to be taken into consideration by lawyers when dealing with human rights (law in the objective world) together with a norm, a guideline, not an “ ,a but an “ought” is” counterfact (law in the inter-subjective world). As a normative statement it also assumes certain truths as relates tothe actual state ofaffairs, butthis is notmypoint here. When understanding ‘truth’according to the coherence theory, it is possible to establish a coherent set ofsentences that depict human rights as universal, indivisible, interdependent andinterrelated, inthis wayignoring thetension between theideal and the legal reality. Human rights ought to be universal (this being their very essence), butonecanquestion whether this isthecase. TheUniversal Declaration as wellas the Vienna Declaration are only declarations andhence notbinding, andno major human rights convention has been acceded to byallstates (the Convention of theRights oftheChild being close, onlybythree non-members). This does notrender paragraph 5 untrue orwrong, butit leaves us withthe highly important questions of

14 AlfRoss, Omret og retfærdighed, NytNordisk Justice, Stevens &Sons, 1958.

Forlag, 1953,

§ 9. English

version:

OnLawand

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howto make human rights universal (indivisible, etc.), rather than just to conceive them as universal. The coherence theory is not ina position to provide an answer, since itcannot even grasp the question. In contrast to the two above-mentioned theories, pragmatism includes human

activity intheconcept oftruth. Thus, ittends todissolve thediscrepancy between truth and right, between theoretical science and practical science by claiming that all activities are infact practical. Wedoresearch because ofthe (potential) usefulness, lawprovides us with answers to human problem (albeit notalways good answers), and likewise legal decisions are ways of solving problems. Thus, legal science becomes more like a prototype scientific activity (rather than being the stepchild, as the Scandinavian realists wanted us to believe, while connecting science to ‘truth’

rather than usefulness). This puts pragmatism ina privileged position forasking the question: Dohuman rights dowhatthey are supposed to do? I donotcontend that pragmatism is better or more true than another theory (pragmatism is notincorrespondence withoureveryday use of language, it is not coherent, and it leaves us with unsolved practical problems), but I am convinced that the pragmatic approach –to a large extent dismissed in European philosophy and legal thought –does pose some relevant questions, notleast inthe field of human rights.15 Firstly, if human rights are seen as an answer to a problem, this problem must surely be the protection of individuals against overwhelming state power. Inthis area human rights have beensuccessful tosome extent, butinlarge parts oftheworld the problem is nota strong andomnipotent state power, butweakandfailed states. How do we make similar human rights propositions that can pose an answer to the problems of human rights violations relating tofailed states? Secondly, iflaw, including human rights law, is seen as hypotheses having been tested andeventually disqualified oraltered, howdoes this relate tothe human rights regime thatapparently is onlycapable ofexpanding (innumber ofrules, notnecessarilyinimplementation)? Howdoweadjust the rules to ourexperience? Thirdly, ifdemocracy presents the best solution forhuman welfare, (” democracy ... is the precondition forthe full application of intelligence to the solution of social problems” ),16this willputa double challenge to human rights, firstly because theyare notdemocratically agreed, andsecondly because international human rights limit the democracy ofthe nation states. Inconclusion, are international human rights able todeliver? Dotheycontribute to the improvement ofthe situation forhuman beings, orare they merely incorrespondence withnatural rights andconstitute a highly coherent set of norms?

Concluding remarks Truth is relevant inthefield oflaw,although inanintricate way.Itis often inappropriate to bring in ‘truth’ in the legal field. Laws, legal decisions, etc. are not primarily characterized bytheir capacity of being true, butbytheir capacity of being right or evengood. Still, truth is relevant inatleast twoaspects: Itis meaningful toaskwhether it is true that the Danish Parliament has passed a lawaltering the speed limits on

15 Asmentioned, I intend to provide a more thorough account ofthe pragmatic 16

rights.

challenges

to human

A Reconsideration of Deweyan Democracy” , Michael Brint andWilliam Weaver Putnam, ” (eds.), Pragmatism inLawandSociety, Westview Press, 1991, p.217.

Hillary

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highways, andit is meaningful to askwhether the apparent assumption offacts (no connection between speed limits andtraffic injuries) is true. Iftruth is relevant, itbecomes obvious toanalyze theories oftruth. Allofthethree above-mentioned theories: correspondence, coherence and pragmatism, all have something tooffer, butatthesame timetheyallhavetheir weaknesses. This seems to support an inspirational approach to theories, with the main activity of bringing out strengths and weaknesses of the theories, rather than defending comprehensive views. Finally, the analysis of the concept of truth is introduced in the field of human rights, the idea being thatassistance inclearing theconceptual ground mayintheend further the promotion andimplementation ofhuman rights.

Sten Schaumburg-Müller Ph.D, Department ofJurisprudence, School of Law,Aarhus

University

Paolo Sommaggio

Boethius’definition of persona: a fundamental principle of modern legal thought “ Pervedere ogne bendentro vigode anima santa l’

che I mondo fallace

di lei ben ode fa manifesto a chi ‘ Locorpo ond’ella fucacciata giace

giuso inCieldauro; edessa damartiro e daessilio venne a questa pace.”

Paradiso, X, 1241

1. Introduction The term ‘person’ is only apparently certain in its meaning. We are sure that it corresponds moreorless totheidea thatwehave ofa subject, corporeal orfigurative, endowed withcharacteristics worthy ofprotection. However, as soonas wegobeyond the level of conventional meaning, we enter a tangle of synonyms and meanings which overwhelm ourintuitive idea ofwhatthetermdenotes. Onething seems certain, however: the concept of person is today considered flawed and unable to fulfill its function inthefield oflegal protection. Infact, proposals have beenmadefromvarious quarters to discard it. The impossibility of providing with a certain andcommon accepted definition of person, therefore, itis a useful starting-point tounderstand theimpasse inwhich legal doctrine nowfinds itself inelucidating theconcept. Ononehand, ‘person’is conceived as a material or spiritual reality, delimited and immutable, unable to adjust to the problems of contemporary society. On the other, the term denotes solely a set of guidelines ornorms laid downbylegislators butdevoid ofanyunitary principle able to holdits various aspects together. Byconsidering the concept ofperson, although wedonotrealize it,some sort of pre-judgement orprejudice induces us to take sides withone orother oftwoconceptions orarchetypes. Thefirst ofthemassociates the concept ofperson withthe human being inflesh andblood, andidentifies its primitive meaning in corporeality (material or spiritual). According to its advocates, this representation is intuitive, self-evident andtherefore well-founded. I shall call this view ‘essentialist’ in that it conceives of an essence denoted bythe term ‘person’. It is based on the concept that it is the essence, the nature, ofthe person which precedes anddetermines theconcept ofitrecognized by positive lawandjudicial pronouncements. This pre-judgement is flanked byanother one. This starts from the assumption that the concept of person is simply a conventional notion based on artificiality and consensus; it is a noun with no objective referent. In order to simplify things, the advocates of this conception argue as follows: given that the notion of person is abstract and artificial, prior to it there is no reality except, perhaps, the possibility of establishing a convention. Although apparently a neutral description, this tooproposes an ideological option. In other words, such scepticism forsees that there is no reality embodied by the word person. For the person to be manifest as convention, in fact, its birth must be guaranteed solely bythe accord, given that itcannot andmust 1

Dante’s great workComoedia.

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Paolo Sommaggio

notbe preceded byanyother concept. Otherwise the signifying stipulation would be no more than an act of recognition, nota real act of creation. This is what I call the

stipulative thesis.

Both these representations, the essentialist andthe stipulative, can be merged into a single concept ofwhich each is a variation onthe theme’. This concept is the ‘classic’oneformulated byBoethius2 and‘which today is regarded as the basis forany a person is “ an convincing discourse ontheperson. Boethius’formula iswellknown – –andit comprises both the essentialist individual substance with a rational nature” andthestipulative archetypes.

2. The essentialist thesis Boethius’markedly ‘essentialist’interpretation oftheperson wasexpressed inits most complete formbyAquinas, butits formulation wasearlier mediated byRichard ofSt Victor. It was the latter whofirst elaborated on Boethius’definition, giving it a definitly ontological slant. Itis better, hewrote, to speak ofthe person as an existentia rather than as a substantia, if bythis term is meant a perse andtherefore, insome way,a non-relativity. ForRichard too, therefore, the definition of person is rationalis naturae individua, butwithin it Boethian substance becomes existentia. Onthe basis of this formulation, Aquinas stated his position as follows: omne ” 3.Andmoreover: “quia enimincomoedis individuum rationalis naturae dicitur persona” et tragoedis repraesentabatur aliqui homines famosi, impositur esthocnomen, persona, ad significandum aliquos dignitatem habetes” . Assuming, therefore, the term persona in the meaning of role –or better of dignity –the word could also be predicated of God: ... dignitas divinae naturae excedit omnium dignitatem: et secun“ Deonomen personae...” dumhocmaxime competit . ForAquinas, infact, theconcept ofperson applies toGodandisable toconvey Hisessence, although this isonlygiven as a relation. Person therefore denotes relation inrecto, andessence onlyinobliquo. Ifessence andexistence, nature andperson are identical inGod,theycanonlybe so byvirtue ofoneandonlyone relation, viz.: theTrinitarian relation. Withitsontological exaltation oftheman-person, Aquinas’thought became oneof the milestones along the roadthat ledWestern culture fromtheclassical ‘cosmocentric’world viewto a modern ‘anthropocentric’order. The advent ofthe latter, infact, marked the end of the signifying capacity of the word ‘person’and its definitive

2

526 d.C.) see PIZZANI, About life andworks of Anicio Manlio Torquato Severino Boezio (ca. 475– 551, 1988, e CROCCO, Boezio, in Dizionario Patristico e diAntichità Cristiane, vol. I, coll. 547– Introduzione a Boezio, Napoli 1975, edinoltre AA.VV., Congresso internazionale distudi boeziani 8 ottobre 1980), Atti a cura di Luigi Obertello, Roma 1981. See also NEDONCELLE, Les (Pavia 5– 238 , XXIX (1955), pp.201– variations deBoèce surlapersonne, “ Revue des Sciences religieuses” andsee OBERTELLO, Severino Boezio, Genova 1974, vol. II,see also inBOEZIO, La consolazione 123; LLUCH-BAIXAULI, Boezio. delle filosofia. Gliopuscoli teologici, Milano, Rusconi 1979, pp. 89– Laragione teologica, Jaca Book, Milano 1997; SCHÜRR, Die Trinitätslehre des Boethius imLichte der «schytischen Kontroversen» (ForschChrLitDG, XVIII/1), Paderborn 1935 and CHADWICK, Boezio,

3

Laconsolazione

della musica, della logica, della teologia,

e della filosofia, IIMulino, Bologna

1986, and BARRETT, Boethius: some aspects of his times and his work, MacMillian, N.Y. 1940, rist., Russel & Russel, N.Y., 1965. Theological works of Boethius are printed BOETHIUS, The Theological Tractates, ed. by STEWARD and RAND, London, Cambridge, 1946, and BOEZIO, Opera Omnia, inPatrologiae Latinae, ed. perJ.P. Migne, Paris 1860. TOMMASO, S. Th., I, q. 29, a.1. See also: PITTERI, Lapersona umana, sua struttura ontologica Aquino, Ferretti, Pescara 1969; andSEIDL, Theconcept ofperson in nella filosofia diS.Tommaso d’ The Tomist” , 51 (1987), pp. 437–438. Thomas Aquinas, “

Boethius’definition

ofpersona: a fundamental principle ofmodern legal thought

165

historicization –its final demise. Thedefinition ofperson therefore became a simple analytic description ofthe particular set ofrelations obtained bygenus et differentiam. These relations embodied the res (the existentia) in a rigid system able to confer univocal andimmutable meaning uponitthrough man’s rational capacity. Reason was a mirror held uptoanorderly andentirely already-given cosmos. Knowing, therefore, wasa re-knowing –a perfect adequatio ofthe order of reason to that of reality. Asa consequence, knowledge “ defined anddelimited simpler elements from more complex ones, abstracting themfromthe presupposed universal order” . Large part of the Western cultural tradition therefore incorporates the Thomist variant ofthedefinition ofperson. Andontheeveofthemodern age itwasenriched by the contribution of the school of natural law (except for Thomas Hobbes, whose thought I cannot analyse here), which refined its essentialist basis. Theessentialist conception has remained bourd to its traditional ontological substructure. During thetwentieth century, ithas enjoyed a certain revival inthe nolonger theological butpolitical range. Resuming Aquinas’conception ofperson, itis driven by a sort of‘creative faith’which goes beyond theThomist doctrine tograsp –at least in its intentions –the most authentic part of its original inspiration. This philosophical point ofviewgoes bythe name of ‘personalism’.

3. The stipulative thesis

to the considerable simplification, the stipulative version ofthe concept of person can be stated as follows: the person does not spring from the union of a substance andcertain qualities; rather, itconsists solely inthe sumofthose qualities. Fragmentation, therefore, is theonlyquality recognizable bylegal doctrine, which prefers to study the situations inwhich the subject –be it material or immaterial –is protected, rather than identifying a unitary figure. There is nodoubt that the contemporary age has been influenced bythe workof Hans Kelsen. Letusconsider nowwhatparts ofhisthought exemplify hisapproach to theperson. InKelsen’s conception the physicality of the person –as the conceptual mould from which the concept of legal person is extracted –loses its primacy to the artificiality of a legislative provision4. This can be considered the moment when the stipulative thesis assumes its most complete form. What, however, remains therein of Boethius’ definition? At first sight, every element of that interpretation has been eliminated. Butthis is notso. One notes, in fact, that although the concept of substance has disappeared formally from Kelsen’s definition, the latter has a hollow centre into which every kind of legal accident or qualification can be fitted. The person is therefore characterized simply by its attributes: the qualities organized stipulatively as specific differences recognized bythe legislator, which, incontemporary societies, assumes the task of effecting meaning stipulations that make the concept utilizable inthe legal field. Indeed, for Kelsen, given the axiom that there is no subsistent physical or spiritual reality that can be called person, itmustevidently be identified through thecontext ofagreed –andinparticular legal –signification. The termperson therefore serves to organize andunify a set of significant features established bya normative order. Hence legal discourse takes the formofsome sort ofhyper-reality (orduplicated, orvirtual, reality) –a special lexicon, inshort, to which the rigorously-excluded biological person can only gain access by According

4

KELSEN, Lineamenti

didottrina pura deldiritto,

Einaudi, Torino 1967,

p. 91.

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paying homage totheAuthority, which transforms its existence into anobject (formed byits attributes) meaningful tothe law. Because of the central importance of the law, therefore, the categories of legal subject orperson aresimply artifices ofthought, which forsake convenience dominate an the normative material, reducing itto unity. Infact, forKelsen the person is only “

expression for the unity of a bundle of legal obligations and rights, that is, a set of

. norms”

Absent fromKelsen’s theory, therefore, is anyreference to physical corporeality, so that forthe lawthe person is the set of its qualities that are notdetermined a posteriori bya possible observer butaxiomatized a priori through normative language. . a partial legal order” Theyconsequently constitute “

4. Boethius’definition

I have said that the essentialist andstipulative theses both originated in Boethius’ definition. I shall now briefly analyse. Thedefinition is set outinthe Opuscula Sacra, which withallprobability date back to 512. Amidthe conflicts that followed the Council of Calcedon, andtherefore ina period dense withintricate political andreligious events, Boethius wrote these Opuscula. As he did so, he addressed the problem of giving rigorous definition to the

ofperson. The first of the Opuscula was De Trinitate, the second Utrum Pater et Filius et Spiritus Sanctus substantialiter praedicentur, the third Dehebdomadibus (Quomodo substantiae in eo quodsint bonae...); the fourth De fide catholica, andthe fifth the Liber depersona et duabus naturis contra Eutychen et Nestorium, thereafter known more simply as Contra Eutychen et Nestorium. The most interesting ofthe Opuscula formypurposes here is the last ofthem, because it contains the definition of person that made Boethius famous in his own

concept

lifetime5.

TheCouncil ofCalcedon hadlaiddownthecelebrated formula thatinChrist there aretwonatures andoneperson. Intheintroduction tohisTreatise, Boethius points out thatthe premises established bythe Council leadonlytofourpossible conclusions: 1. that inChrist there are twonatures andtwopersons, as Nestorius maintained; 2. that there is onenature andoneperson, as Eutychus claimed; 3. thatthere aretwonatures andone person, as the Catholic faith affirmed; 4. that there is one nature andtwo persons –though this conclusion, Boethius wrote, wasso nonsensical that noheresy affirmed it. Boethius’mainconcern wasto structure his workwithclear andunambiguous language. According

to Boethius, it is entirely legitimate to enquire as to the unitary definition

of the term person, inthat the philosophy andtheology of ancient Christianity had failed to give it a precise definition. Inorder to understand what was meant bythe word, he analysed the concept of nature which, infact, has a broader meaning than person andto some extent is its genus proximus. 5

6. “Quocirca si persona in solis BOEZIO, Contra Eutychen et Nestorium, PL 64 1343, Caput III, 1– substantiis estatque inhis rationalibus, substantiaque omnis natura est, nec inuniversalibus sedin individualibus sed in individuis constat, reperta personae est igitur definitio: persona est naturae rationa[bi]lis individua substantia” . See also MARSHALL, Boethius’Definition of Persona and , Camb. (Mass.), vol. XXV(1950), Speculum” Medieval Understanding of The Roman Theatre, in “

pp.471– 482.

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The logical relation that keeps the twoterms together is of restrictive type. By decreasing extension oneproceeds fromnature toperson, following therigid scansion established by the rules of Porphyrian logic. Boethius proposes four definitions of nature, butonly uses the last of them, where Nature is the “ specific difference that gives form to each thing” . This is the definition of nature that arose during the Christological controversy on the nature of Christ and which both Boethius and

Nestorius putforward. Boethius thendiscusses thenatures inwhich theperson mayreside. There are, in fact, some natures that are substances andothers that are accidents. The person, moreover, cannot exist apart fromnature andcannot consist inaccidents, given thatit is impossible totalkofa person as onecanofwhiteness orblackness orsize. Once it

has been excluded that the person resides among the accidents, it must be placed among the substances. However, substances must be distinguished between corporealandincorporeal, living andnon-living. Onecannot talkoftheperson inthecase of non-living bodies because onecannot saythat a stone is a person. Living substances can be further distinguished between rational and irrational. The latter, Boethius avers, cannot be called persons. The last question is the most delicate one. Boethius claims that universal substances are those predicated of individuals quagenera orspecies, andthey can be equally predicated of each ofthe individuals that make upthe species orthe genus. Particular substances are instead those that can be predicated only of particular things and not of many things together. Thus the person cannot be affirmed by universals, only byparticulars or individuals. From these considerations Boethius concludes that “ if Person belongs to substances alone, andamong these torational ones, andifevery substance hasa nature, existing notinuniversals butinindividuals, wehave found the definition of Person, viz.: the individual substance ofa rational creature” . Resuming the last of the definitions of nature proposed (the specific difference that gives form to any thing), Boethius argues that “ both Catholics and Nestorius maintain thatthere are inChrist twonatures ofthe kindlaiddowninourlast definition, forthesame specific differences cannot apply toGodandman” . Itshould therefore be taken as axiomatic that nature andperson are different, inthat nature is the specific property ofanysubstance, while person is instead the individual substance ofrational nature. Having affirmed the humanity of Christ, Boethius also asserts his divine nature. The contradiction inherent in the Nestorian heresy, he says, has a logical basis, namely the notion that person may be predicated of every nature. If one assumes that there are in Christ twopersons, one cannot affirm that Christ is truly God. If the union does not come about in a single person, Christ would be nothing more than an instrument ofthe divine Person, andallthe instruments of Godwould therefore be gods. Which is absurd according to Christian dogma. Christ would therefore benothing morethana man– a saint, butcertainly notGod.Moreover, ifone adheres to Nestorian heresy, Christ would notbe one alone andtherefore would be nothing. Thus Christ disappears. But Nestorius affirmed the existence of Christ and therefore hadnecessarily to postulate twoChrists, something which Boethius claims could only be argued bya diseased mind. Yetthis is whatNestorius maintained, and Boethius neglects itbystating thatthesame definition cannot be given totwoChrists. Hence the name of Christ cannot be defined andis equivocal. The consequences would bethefollowing: the human race has notbeensaved, thebirth ofChrist has not ledtosalvation, thewords oftheprophets have deceived those whobelieved inthem, the entire authority ofthe OldTestament with its promise ofthe coming Messiah is a

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fraud, andGoddidnotcome to mankind. Given that, according to Boethius, none of this is possible, it is obvious that Nestorius’thesis are to be rejected. But the Nestorian heresy maylead to a further interesting contradiction: the heretical affirmation of a quaternity of divine persons, as ifa newperson is added to

the Trinity.

Having concluded his argument against Nestorius, Boethius moves to the analysis ofEutychus’doctrines. According to Boethius, Eutychus committed thesame error as Nestorius: considering that every nature involves one person. Hemaintains that there is onlydivine nature inChrist, andthereby eliminating human nature. Boethius’ entire argument is meant to defend the humanity ofJesus Christ. Among the various reasons adduced, he insists onthe problem ofthe union between human anddivine

nature. Heconsiders three modes ofthis union which prove inadequate because they denythat the twonatures can remain unchanged. Thefirst thesis, that divinity canbe transformed into humanity, is rejected as sacrilegious. Thesecond thesis, thathumanityis transformed into divinity, is rejected because Christ hada human soulandbody,

and by means of an explanation reminiscent of Aristotelian metaphysics, Boethius affirms that itiswholly impossible forbodies tobetransformed into incorporeals, given that only things that possess the common substrate of the same matter can be transformed into each other. It is therefore impossible for the human soul to be transformed into divinity. Noris the third thesis satisfactory. This maintains that both natures are merged together in such a way as each loses its form. Eutychus’ conception is as follows: just as whenhoney andwater are mixed each ofthemloses itsnature, sothetwonatures ofChrist aremingled andmodified. Boethius argues that this cannot be, andthat according to Catholic doctrine although the twonatures are united they remain unchanged. Boethius notonlyestablishes

a firmanddefinitive connection between ‘individual’ and ‘substance’ but consolidates the relationship on a conception that postulates language as representation ofbeing. 5. Boethius andmodern rationalism Finally after this brief discussion of Boethius’views onthe concept of person, I shall point out where his definition is at odds with the principles of classical thought. It is his abandonment of those principles, in fact, that allows us to classify Boethius as precociously ‘modern’inthat he promoted the rationalist sensibility that culminated in

the modern age. Thefirst difference between the classical doctrine andBoethius’definition ofthe termperson is the emphasis that he placed onlanguage, which he considered to be “ essentially manifestive

. Whereas Aristotle ofbeing”

focused onthings (res) insofar as

they are said andare the object ofdiscourse, Boethius concentrated onlanguage as res significat, orthe phenomenon that expresses, designates andmanifests things. Somewhat reductively, wemaysay that whereas Aristotle proceeded fromthings to language, Boethius didthe reverse: heproceeded fromlanguage tothings, almost as

ifhe intended to impose the order oflanguage, oflinguistic representation, onreality. That language is able to represent things is an assumption associated with the modern age. Hence wemaylegitimately assert that the origins of ‘modern’thought stretch backto Boethius’doctrines. Another ‘modern’theme in Boethius is his disapprobation of the polysemy of language. Itwasthis, hemaintained, thatgave rise toheresies. Hetherefore proposed the intellectual endeavour of translating vague words into unambiguous terms or

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symbols, the purpose being to transform the language of theological disputes from natural totechnical. Plurivocity wasthus associated withthe idea ofevilanddeviance –as a feature to be eliminated ina conception where there wasone andonly one meaning for every term. Salvation would therefore be achieved through the ‘right’ arrangement of symbols andwords within a system of meanings that assumed the structure of mathematical reasoning. Thirdly, Boethius posited an exclusive and systematic method which in some respects anticipated the distinctive feature of scholasticism. Infact, it is possible to discern in his thought the origins of a sensibility that largely anticipated modern rationalism. By translating the principles characteristic of classical sensibility, he sought to establish a definition of person, andof its entire range of meanings, as an indisputable symbol ina language that sought to structure itself as the language of mathematics. Inhis DeHebdomadibus, which canbe considered his methodological Ut manifesto, Boethius makes direct andevident reference to mathematical method: “ igitur in mathematica fieri solet, caeterisque etiam disciplinis, proposui terminos regulasque quibus cuncta quae sequuntur efficiam” . Hethus decides toestablish a set offixed principles (terminos) inthe formofaxioms andrules onwhich he would draw inallhis subsequent work. Once again apparent inthese words appears his intent to usethemethod proper oftheformal sciences, namely mathematics. Later inthesame treatise he writes: Amoveamus igitur primi boni presentiam paulisper ex animo...” . Thus, anticipating by many centuries the central theme of legal secularism à la Grotius, Boethius didnotconceal hisdetermination toestablish the independence of calculative reason from faith. We mayalso say that Boethius’method was an essentially rhetorical method founded on the tradition of the judicial topic. The way in which he structured his argument wasinmanyrespects similar to a trial dispute. Boethius’discourse resembles a prosecutor’s address delivered during a trial against twodefendants (Nestorius and Euthycus) whose guilt he seeks to prove on the basis of the logical and indisputable premises laiddownbythe Council ofCalcedon. Hethus sets outtodemonstrate the logical contradictions inthe heretical doctrines onthe basis ofthose postulates – andtherefore showing thattheycontain a relative rather thanabsolute contradiction. However, Boethius does notmerely present hisproof byarguing itsvalidity forthat particular case, according to those premises, andinthose particular circumstances. Rather, he maintains that his reasoning enjoys universal validity. He does this because hebelieves that histrain ofargument consists ofsound andimmutable relations which once proved will impose themselves on the reason by dint of their cogency. He forgets, however, that they depend ona set of premises andargumentative devices that mayalter the consequences. Therefore, to sumup,Boethius notonly gave rigour to the idea of person in a definition which heclaimed tobe unambiguous andimmutable. Healso set outsome ofthe principles of modern rationalism: first, the certainty that language permits the description of reality, andthe fact that itconsists of simple elements belonging to an order already-established andstructured into a space bygeometric axioms; second, the idea that the definition is able tograsp thetrue nature ofa thing because itdefines andrestricts its meaning. Yet this is to embrace a prejudice fraught with consequence, for it conceives reality as governed byan order already entirely given andunderstandable to man through theuseofindividual reason. Human reason istherefore a mirror able toreflect thatorder, toanalyse it,andtodeconstruct itfromthecomplex tothesimple bymeans of logical inferences. For Boethius, therefore, the ordered system of the world is reproducible through the order of reason, of which language is the mechanism that

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the reassuring predictability that springs fromformal coherence. Through minute distinctions ofgenus andspecies, itextends into a dense network ofhierarchical relations coordinated bya first principle capable of conferring sense upon it. In particular, therefore, Boethius’definition of person gives the res definienda the place proper to itwithin a system made upofpre-established logical relations –which is a guarantees

contention greatly at odds with classical sensibility. Itis also evident that the elements that made upBoethius’definitions of person, rationality andindividuality were also those thatconstituted thedoctrines ofthenatural lawschool. Hence, toconclude, alltheelements thatIhaveanalysed enable consideration ofBoethius as anauthor whose workcomprised numerous features distinctive of modern legal rationalism. Paolo Sommaggio, Researcher of Padua, Italy

University

at the Faculty of Law, Department of Philosophy and History of Law,

Xingzhong Yu

Human Faculties andHuman Societies –AThree Dimensional Cultural Epistemology1

I.Thequestion Modern societies inWestern Europe andNorth America are commonly referred toas societies with rule of lawanddemocracy, the striking features of which are demonstrated inanunswerving reliance uponlawandlegal institutions insocial, political and economic life. Legalism characterizes theconceptual categories, institutional arrangements, authority systems andpopular consciousness in such a society. Rights and laware regarded as central values, courts as the primary institution, the constitution as theultimate authority andlitigation as exemplary means fordispute resolution. Icall this type ofsocieties the legal societies, ofwhich America is a paragon. Ifweturnoureyes tothedirection ofEastAsia, wefindcontradistinctively different societies whose identity, although having been called into question by continuous modernization” efforts at “ andWesternization, is farfrom being lost andis exhibited through political andeconomic behaviors ofthe people whoinhabit inthem. Insucha society, rather than cold, rational legal rules, live andentangled relationships are the focus of communication, transaction andinteractions. Its conceptual categories concentrate on understanding the intricacies of relationships of various sorts and the standards forapproaching these relationships. Its institutional arrangements embody

networks formed around human relationships based on kinships and affinity. Its ultimate authority is conceived not in terms of text or institutions, but of personal achievement realized through moral cultivation. The popular consciousness gives priority toyielding, conciliation andmediation overlitigation. Icallthis type ofsocieties moral societies, ofwhich China is anexample. There is a third type ofsociety which differs fromthetwoabove inthatitmakes no distinction between matters divine orsecular anddeals withthembymeans ofa panordering religious system which predetermines the tendency of its political andeconomic activities. Its conceptual categories point to a future supernatural kingdom beyond this life andthepresent; its institutional arrangements exemplify themaximum possibilities for reverence and piety to the supernatural being and for acting in accordance withthe desires ofthe supernatural; its ultimate authority finds its roots in

the heavenly supernatural being butits embodiment inthe earthly ambassadors from the heavenly kingdom, namely, the holy texts and their interpreters; its popular consciousness endows the meaning oflife withpreparations fortheadvent ofa future savior and accordingly utilizes wishes for the future as parameters forjudging the present. I call this type of societies religious societies. The Christian world in the middle ages, Tibet before Chinese annexation andmost of the modern dayMuslim countries canbe regarded as religious societies. Whyare there three types of societies? What is the internal logic, which has determined their separate development andwhat account forthe great distinctions between them? These are tantalizing questions, which should be, buthave notbeen, explained in humanistic andsocial studies. Some, perhaps, don’t see anyneed in 1

The author

to thank Professors andrevisions.

would like

valuable comments

William Alford

and Zenon Bankowski for providing

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Yu

ananswer to suchquestions andthey mayeventhink itis a futile effort. The potential existing inan attempt to understand andexplain these questions, however, goes beyond the purpose of explanation itself: it will not only explain the past, but also inspire endeavors at the future reconstruction, especially so when our world is experiencing conflicts andfights that are beyond ourrational comprehension.2 Such anexplanation, therefore, mustbeable toaccount foratleast three things. First itmust be able toexplain whythere are three types ofsocieties. Second, itmusthave a view of religion, morality and law. Third, it must be able to explain some basic traits of different societies as embodied ininstitutions suchas political andeconomic systems, andthe persons whodisplay cultural features ofthesocieties. Itwillbedisappointing totrytofindreadily available answers tothese questions in ourexisting theories ofsociety andhistory mainly because wehave notyetdeveloped a three-dimensional theory of societies. Ourexisting theories of societies are either holistic as inthe case of Confucianism or dualistic as inthe case of Western social theories. Marxist social theory, for instance, in its crudest sense, has provided a typology of societies andthe explanations going with it. ForMarxists, human society hasevolved through andwillleadtocertain stages fromprimitive toslave tofeudal to capitalism to socialism andfinally to communism. The driving force behind each of these stages is explained interms of economic factors, namely division of labor and the contradictions between productive forces and productive relations, each stage being associated withcertain type ofeconomic base.3 Marxist economic determinism has lost muchof its vigor, butexplaining human societies andsocial phenomena in terms of economic factors is still at the center of contemporary studies of societies. Muchofthetheories concerning modernization, globalization andsocial development in recent years has been focusing on economic factors.4 The dependency theory, which flourished in the 1960s and 1970s, Immanuel Wallerstein’s theory of world system, Gary Geraffi’s proposal of global commodity chain, and the World Bank’s East Asian Miracle, forinstance, are allprimarily predicated uponeconomic determinism.5 However, economic determinism, Marxist orotherwise, canhardly provide convincing account forthedistinctions between thedifferent societies, as willbe explained later in this paper. Rather economic determinism takes as its objective the minimalization of such distinctions, or to put it more forcefully, it ignores such distinctions. finding

2

3 4

5

Unlike Samuel Huntington who, writing with a cold-war mentality in the post-cold warera, fears clashes of civilizations inthe future butwith nointerest to understand non-Western cultures, I am free of fear, but full of optimism about cultural integration. For Huntington’s view, see Samuel The Clashes of Civilizations”in Foreign Affairs, Vol. 72, No.3, 1993, p.22. Huntington, “ See Karl Marx, German Ideology, London, 1965; 1844 Manuscript and Theses on Feuerbach in MarxandEngles: Selected Works Moscow, 1958. See, for instance, Mustafa O. Attir, et al (eds), Directions of Change: Modernization Theory, Research andRealities, Boulder, Colo.: Westview Press, 1981; Francis M.Abraham, Perspectives on Modernization: Toward a General Theory of Third World Development, Washington D.C.: University Press of America, c1980; Anthony Carty (ed.), Lawand Development, Dartmouth, Aldershot etc. 1992. See Nerfin, M. (ed.) Another Development: Approaches and Strategies, Uppsala, 1977; Chilcote, R. (ed.) Dependency and Marxism: Toward a Resolution of the Debate, Boulder, Colo., 1981; Immanuel Wallerstein, TheCapitalist World-Economy, Cambridge, 1979; TheModern World-System, I, NewYork, 1974; The Modern World-System, II, NewYork, 1980; Gary Gereffi and Miguel Kozeniewicz (eds.), Commodity Chains andGlobal Capitalism, Westport, Conn.: Greenwood Press, 1994; The East Asian Miracle: Economic Growth and Public Policy, New York, N.Y.: Oxford University Press, c1993, AWorld Bank Policy Research Report.

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andHuman Societies

Such distinctions are also obscure inmodern dayliberal theories that as secular theorization of human pursuit and human society have adopted an indifferent and sometimes evenhostile attitude towards religion. Contemporary liberals whocould be counted as profound thinkers, such as John Rawls, known to the world for his meticulous exposition of justice, F.Y. Hayek, defender for liberal economic system, Isaiah Berlin, famous forhistreatment ofliberty, Robert Nozick, highly praised forhis treatment ofthe problem ofthe state, andRonald Dworkin whotakes rights seriously have unexceptionally in their careful and rational analysis of problems arising from human association devoted relatively little attention to the sphere of the soul and religion. None ofthese authors has ever been interested inthe distinctions between religion andmorality, andhence, between moral culture andreligious cultures, partly dueto the irrationality-proof wayof liberal discourse andpartly dueto the lack of an epistemology that goes beyond the dualism of rationality and irrationality. In their writings morality is clothed withrational attire. Irrationality has notbeentheir concern. Religious inheritance has been a vital resource for critical scholars. The first generation of Frankfurt scholars, most of them of Jewish origin, hadstrong spiritual affiliation to religion. Habermas the encyclopedic figure of the second generation, made it clear that he haddrawn inspiration fromthe religious traditions ofthe West. However, a dualist epistemology positing religion in direct contrast with secularism seems to characterize his thinking on religion. For himthe sacred andthe secular represent two stages of history: metaphysical and post-metaphysical. In a postmetaphysical society “ ...only a morality, set communicatively aflow and developed 6 Hespoke of the into a discourse ethics, can replace the authority of the sacred.” modernization of faith and argued “ whoever put forth a truth claim today must, nevertheless, translate experiences that have their home in religious discourse into 7 He holds that view that the religious the language of a scientific expert culture.” consciousness must attune itself to the scientific authorities and has to accept the premises of a constitutional state. Thus, for him, religion should be explained in rational terms. Despite his acknowledging the Judeo-Christian legacy in his theory, Habermas’s explanation of religion is still based on the understanding of human rationality. Habermas’s theory offers a profound critique toWestern religious andlegal societies, butthat critique has notbeen extended tothe moral societies inAsia. Confucianism, whose starting point was predicated uponcultivation of human sentiments and feelings, and through them human relations, has provided a basis for approaching the moral society. In its historical transformation, Confucianism has taken on a religious dimension through its interaction with Buddhism, Daoism and classic Western philosophies. In the hands of contemporary Confucian scholars, Confucianism has become a theoretical system embracing both dimensions of irrationality, that is, the heart andthe soul, and morality and religion, andcapable of explaining the moral society andproviding referential values forunderstanding ofthe religious society, but it is not capable of explaining the legal society. For many tenets of Confucianism, such as giving priority to personal refinement, yielding in conflict, contempt forprofit seeking andsubstance taking precedence over procedure, are in contradistinction to those of the legal society.8

6 7

8

Habermas, Jürgen, Religion and Rationality: Essays Eduardo Mendieta, MITPress, 2002, p. 24.

Id. at P. 76.

on Reason, God, andModernity,

edited

by

Forclassical Confucianism see Confucius, TheAnalects (Lun Yu),Tr.D.C.Lau,NewYork, Penguin Books, 1979; Mencius, Mencius, Tr. D.C. Lau, Penguin Books, NewYork, 1970; XunZi, Hsun Tzu, Basic Writings, Tr.Burton Watson, NewYork: Columbia University Press, 1963. ForNeo-Confucian-

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Yu

If we cannot find a theoretical model that is adequate to approach all three societies, thenwehave anobligation toconstruct oneforthe purpose ofexplanation. The following provides a brief account of myattempt in trying to fulfill such an obligation. Limited by space, what follows below is a very crude skeleton outlining my major andgeneral points ofa deliberated answer. II. Human faculties andsocieties

Thequestion whythere are three

types

ofsocieties canbe answered byconnecting

them to law, morality and religion. For instance, a moral society can be seen as resulting from the predominance of morality in that society anda legal society, as resulting from predominance of lawin that society. Butthat is not really an answer because ithasledtoanother evenmore perplexing question: whatis morality orlawor religion andwhere dotheycome from? Thenitseems that weare nowfacing anageoldimpossibility, butifwefailto turnthis impossibility into possibility, itmeans wehave

surrendered anyattempt to provide ananswer forthe question posed earlier. Therefore, it becomes necessary to turn this impossibility into possibility by providing a theory ofthe origin of law, morality andreligion at the very outset. Those who are well versed in empirical and analytical disciplinary studies would most certainly be skeptical about the feasibility of such an effort and they will probably think itpointless to find a common ground forlaw, morality andreligion because the three are so drastically different. Butit is exactly onthis point that I feel I can offer some contemplated ideas. Iaminclined tosaythatsocieties andlaw,morality andreligion arethemanifestations ofhuman faculties.9 Byhuman faculties I meanthe innate human capacities by which human beings discover, absorb andimprove spiritual value resources. Human faculties include three dimensions, or we maysay there are three human faculties, termed as the mind, the heart andthesoul. Mindproduces rationality; heart produces sentiments andsoul, faith, both belonging to the sphere of irrationality. Therefore, human faculties can also be said to include rational andirrational dimensions with mind as rational andthe other twoas irrational. The manifestations of these three faculties constitute law, morality and religion, andthe three societies. Heart is the home ofsentiments, emotions andfeelings, mindis thetemple ofreason; andsoulis the fountain of faith. From heart to emotions, there comes morality; from mind to rationality there comes law; and from soul to faith there comes religion. Andfrom

ism, see ZhuXi, “ (Complete Works of ZhuXi), partial English translation inWingZhuZi Quan Shu” tsit Chan (tr.) Reflections on Things at Hand: TheNeo-Confucian Anthology, NewYork; Columbia University Press, 1967; also inWm.Theodore de Bary (ed.), Sources of Chinese Tradition, Vol. 1, NewYork: Columbia University Press, 1960; see also, Tu Weiming, Neo-Confucian Thought in 1509), Berkeley, California: University ofCalifornia Press, Action, Wang Yang-ming’s Youth (1472– 1976. Forcontemporary Confucianism see TuWeiming etal(eds.) TheConfucian World Observed:

a Contemporary discussion of Confucian Humanism in East Asia, Honolulu, Hawaii: East-West Center, University of Hawaii Press, c1992; TuWeiming, Confucianism inanHistorical Perspective, Singapore: Institute of East Asian Philosophy, 1989, Occasional paper andMonograph series, No.

9

15. Marx certainly rejects connecting societies

to human faculties, for he wrote in his preface to A totheCritique ofPolitical Economy, “that legal relations as wellas forms ofState areto begrasped neither fromthemselves norfromtheso-called general development ofthehuman mind (Geist), butrather are rooted inthematerial conditions oflife.” see MarxandEngles: Selected Works Contribution

(Moscow, 1958) Vol. 1, p. 362.

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morality, lawandreligion, there come three societies: the moral, the legal andthe religious. Frameworks in most societies can be understood within this classification with some being archetypical and others combining different elements of the three. I willprovide a detailed explanation momentarily. I should make it clear that the three-dimensional viewof human faculties, which canbe regarded as anepistemological schema, cannot be imagined without drawing onthe views about human faculties byprevious explorers ofthe West andthe East. However, as constructed above andexplained later inthis article, itis meant tobe an analytical schema transcending cultural boundaries andis notdrawn froma particular cultural tradition. Traditional views of human faculties posit a dualist outlook. In China the controversy between “ sentiments” reason” ranthrough andacross divergent schools of and“ thought.10 As a secular culture, the Chinese treated the irrational dimensions of human faculties interms of “ vis-à-vis the rational dimension designated sentiments” .11Likewise, , butitdidnotinterest itself inanother dimension called “faith” as “reason” inWestern culture, “reason”was often thought of as the opposite of “faith” . Only in Hume’s time, “ reason”was once regarded as a contender for the foundation of morality against “ sentiments” .12Butinthegreat history oftheWestthatwasonlya tiny fromAristotle and and“reason” faith” episode inthetime honored dichotomy between “ Plato to St. Augustine and St. Thomas Aquinas, and to the replacement of the religious society by the legal society. But,thethree dimensional viewofhuman faculties is nota simple combination of thetraditional views inChina andintheWest. Atriadic viewofhuman faculty canbe found inPlato, andinananalogical sense inHegel andeveninHabermas. Plato, whowasthe first to associate human faculties withpolitical systems, held that human soul contains three elements –Logos, Thymos andEros –which determined notonly different personalities, butalso different political orders.13 The Hegeliansystem ofthought leaps intriadic steps. Among manyofhistriadic models suchas idea/nature/spirit, subjective spirit/objective spirit/absolute spirit, philosophy/art/religion, andfamily/state/civil society, Hegel made distinctions of mind/soul/consciousness andright (law)/morality/ethical life.14 Buthedidnotconnect mindorrationality or religion to political systems. Habermas spoke ofthree categories of possible knowltheinterests edge, which areconnected tohuman interests. According toHabermas, “ constitutive of knowledge are linked tothe functions ofanegothat adapts itself to its external conditions through learning processes, is initiated into the communication system ofa social life-world bymeans ofself-formative processes, andconstructs an identity in the conflict between instinctual aims andsocial constrains. Inturn these achievements become part of the productive forces accumulated by a society, the cultural tradition through which a society interprets itself, andthe legitimation that a

sentiments” is particularly acute inthe Neo-Confucianist writings. reason” 10 The dichotomy of “ and“ , although by “reason”he sentiments” Zhu Xi, for instance, staunchly placed “ reason”before “ essentially referred to moral teachings ofthe ancients. 11 Although “faith”was nota termfamiliar tothe Chinese literati andthe populace, “faithfulness”(Xin) wasone ofthe “five constant virtues” , which hadnoreligious connotation. 12 See David Hume, AnEnquiry Concerning the Principles ofMorals, OpenCourt Classics, LaSalle,

136. Illinois, 1966, pp. 125– 13 See Plato, The Republic, Tr. by F.M. Cornford, NewYork: Oxford University Press, 1958. 14 See Hegel, ThePhilosophy ofHegel, Ed.byCarlJ. Friedreich, NewYork: Random House (Modern Library) 1954; Phenomenology of Mind, Tr. by J.B. Baillie, London: Allen and Unwin, 1961; Philosophy of Right, Tr. byT.M. Knox, Oxford: Clarendon Press, 1953.

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orcriticizes.”Inshort, Habermas believes thatknowledge-constitutive interests take forms inthe medium of work, language, andpower.15 Nowlet meexplain mythree-dimensional schema. Even ifthere is nodoubt that societies are connected to human faculties, since human faculties are present inall human beings and therefore societies should be similar, howcan we explain the differences between them? We need a developmental view of human faculties. Although the three human faculties maypresent inall humans, there is a degree of their manifestations. Thedifferent manifestations ofhuman faculties leadtodevelopment of different human faculties, which then lead to the development of different societies. This developmental process is theprocess ofcultivation ofhuman faculties. Asmorality, lawandreligion are manifestations of innate human faculties, which are conditioned byexternal factors, there is a difference of manifestation interms of degree. That degree is the inevitable graduation oftotal manifestation. Inbrief terms, morality, lawandreligion take three forms of consequences: (1) as instinctive manifestations ofhuman faculties, (2)as developed systems ofknowledge, and(3)as the predominant force insocieties. Forinstance, religion canbe seen at thefirst level as instinctive manifestation of human faculty ofsoul, at the second level, as a system of knowledge and, at the third level, as the predominant force ina society. Anything or activity that involves worship, individual or collective, of supernatural can be called religion inthe first sense. Buddhism inChina andJapan are undoubtedly religion in the second sense, namely religion as systems of knowledge, butinTibet italso was the predominant force insociety, that is religion inthe third sense. Christianity inthe Middle Ages was a predominant force in society in the West, but it has been superseded bylawin modern times anddescended to a complementary position to lawinthe West. Islam maybe seen as a living religious society where social life, political endeavor andeconomic efforts are still constrained byan overarching religious framework. In order to explain this more clearly, I propose the following schema: society accepts

15 See Jurgen

Habermas, Knowledge 317. Heinemann, 1972, pp. 313, 301–

and Human

Interest,

Tr. by Jeremy, J. Shapiro,

London:

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of mindandthe legal society

The faculty of mind manifests itself first of all in reasonableness, which entails causality, proportion and normativity. Reasonableness operates on reasoning and logic, butnotonfeelings andemotions. Rational behavior isthebehavior which relies on logical reasoning or practical calculation andwhich avoids emotional andsentimental interference. Itis also a planned, regulated andpredictable behavior. Anaction or activity becomes understandable and performable by somebody other than the original actor only when it is formally made explicit, bywayof rules or rituals. Therefore, inorder forcertain patterns ofbehavior to be rationally observed, it is necessary tobeformal. Thus, formalism is another dimension ofthefaculty ofmind. Still another manifestation ofthe faculty of mindis utilitarianism whose essence lies inmaximization ofbenefit andminimalization ofcost andwhich is often evoked to

tell the good or profitable from the bad or non-profitable. The faculty of mind forbids unprofitable transactions.

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Yetanother manifestation ofthefaculty ofmindis experience. Experience substitutes for reasoning andlogic when there is no starting point for both reasoning and logic. Whatever is endorsed byexperience is adoptable orvice versa. Last but not the least, the faculty of mind also manifests in the rule-following orientation of human beings. A rule usually carries weight of fairness, predictability

and justice. Reasonableness, formalism, utilitarianism, experience andthe rule-following orientation constitute whatwecall rationality. The developmental process of rationality can be seen as an evolutional process comprising several stages. I see rationality developing inthree stages. Thefirst stage is the natural andinstinctive exhibition of thefaculty ofmindintheincreasingly complicated social world. Atthis stage reasoning

indaily activities,

regulation

oflife andpurposeful utilization offavorable

conditions

to

make profit onlyoccur sporadically andcontingently. Planning ahead andforecasting winning orloss onthe individual’s part donotconcern everybody andevery occasion.

Reward andpunishment, prohibition andpermission insociety aregranted orimposed notina foreseeable waybutrather arbitrarily. This is the inchoate stage ofthefaculty of mind. At the second stage, conscious regulation of social life with rules and procedures replaces naturally exhibited andintuitive behavior, resulting inabundant conceptual tools for discussing and approaching behavioral norms and pursuit of interests. Rationality at this stage canbe called rule rationalism. Reward andpunishmentcome to bejudged notmerely bysubstantive standards sanctioned bysubstantive laws andsocial values permitting orforbidding certain behaviors, butalso, more importantly, byprocedures bywhich cases of crimes or rewards are presented and

handled. Law becomes systems of knowledge explainable and applicable by reason. Thefurther development of rationality embodied byrule rationalism leads to the third stage ofthe development ofthefaculty ofmind. Atthis stage rule rationalism is turned into rule centrism which places law, formalized by rules, in the predominant position ina society, comprehensively regulating social life andindividual behavior. This is thestage ofthe legal society. Inmore familiar language, this is thestage ofthe “ rule of law” . A legal society is characterized by its primary reliance upon law and legal institutions insocial control andsocial mobility. Under suchanorder, individual claims, political movements, economic transactions alltake place within a framework of law gradually evolved orconsciously enacted. Inthe legal society, political activities are proceduralized andregulated byprefixed rules. Personal charisma has been excluded fromthe realm oflegitimacy, which nowbears the onlyformofprocedural legitimacy. Procedural legitimacy is predicated upon rationality and reflected in the forms of election, separation of powers and popular participation. Ideally, those whogetelected forhighoffices should bethebest, butinpractice sometimes theappointment ofofficials rests neither onthevirtue noron the talent of the elected, buton popular support. Those whoare supported bythe majority become elected, despite sometimes exhibiting serious moral integrity or apparent mediocrity. Consistent with proceduralization andnormalization of politics, economic activities ina legal society are also proceduralized andrelyonregulation withrules. Market economy, inessence means rule economy, quite distinctive fromrelational economy inthe moral society. Economic activities inthe legal society make profit-seeking its priority, rules are made public, and standards for transactions are rationalized to maximizing profit andreduce cost. Intheory, economic activities should be independent from political control. In practice politics and economy often interfere with, and sometimes complement each other. Power andmoney, although separate, are inter-

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totheextent that politics canbe interest group politics andeconomy can be politically programmed to satisfy the goals of political parties.

changeable

IV.Thefaculty of heart andthe moral society

Thefaculty ofheart is manifest inhuman emotions, sentiments andfeelings which all exist inhuman relations. The standards bywhich to define the manifestations ofthe faculty of heart, that is, emotions, sentiments andfeelings, in human relationships constitute morality. Mencius believed that the faculty of heart has four dimensions, which include reason andbenevolence.16 The reason dimension relies onrationality, which is seen as manifestation ofthe faculty of mindinmyepistemological schema, butthe benevolence dimension canproperly be included inthefaculty of heart. Like the faculty of mind, the faculty of heart also develops inthree stages. Atthe first stage, itis reflected inthe instinctive forms ofreciprocity between human relationships, which are bond bysentiments, emotions, andfeelings. Butthis reciprocity is only naturally exhibited, is yetto be institutionalized andconceptualized. Individuals rely on their intuition to treat each other and to mark the closeness or distance between them andto measure mutual feelings. Relationships are notquite clear at

this stage interms both of quality and quantity and hence no standards forjudging the relationships are clearly advanced. Theonlyclear distinction between relationships is found inthe separation ofhuman relationships andthe relationships between human beings andanimals andsupernatural beings. This is the inchoate stage of morality where human beings onlyhavevague understanding oftheneedforcertain standards todealwiththeir relationships, butnotquite conscious ofwhatthese standards should

be.

Atthe second stage, morality develops into a system of knowledge, which first distinguishes human relationships andthen associates human emotions, sentiments andfeelings to these relationships andfinally provides standards for dealing with these relationships in terms of right andwrong, andappropriate and inappropriate. This is so because relationships are different. There are relationships between parents and children, between friends, between husband and wife, and between master anddisciple. Human sentiments, emotions andfeelings toward these relationships are different andtherefore there should be different standards to judge them. Forinstance, the relationship between friends is judged byfriendship andreciprocity, that between husband andwife, bylove andmutual respect, that between master and disciple, byrighteousness andgratitude, requiring different sentiments andstandards. Conceptualization andsystematization ofthese relationships andstandards produces morality which, as a system of knowledge, has a potentially shaping implication on individuals, butdoes notfunction as an explicit controlling force because violation of which does notconstitute immediate andultimate violation of norms sanctioned by coercion. The role of morality inthe legal societies is anexample ofthis sort. Atthethird stage, morality becomes absolute controlling force. Itis a stage ofthe “ rule of morality”where morality assumes pan-ordering power guiding as well as constraining social institutions andindividual behavior. This is the stage ofthe moral society. The faculty of heart, reflected inthe cultivation of emotions, sentiments and feelings anddistillation of moral standards, becomes primary focus ofsocial life and intellectual pursuit. 16 See Mencius, supra note 6, Book IV, Part A.

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A moral society is a society which tends to justify its behavior by invocation of moral principles passed downfromantiquity, inwhich personal aspiration, collective activity, cultural creation andvarious types of social life must be inconformity with, andjudged by,moral categories designed to nurture human beings forthe sake ofa harmonious social order. Several distinctions can be drawn between a religious society anda moral society. Areligious society is divine, buta moral society, secular. Areligious society appeals tohuman faculty ofbelief while a moral society, torelations based onsentiments. The essence of lawina religious society is the God, butina moral society, morality is theessence oflaw. In a moral society, politics becomes ethical politics which sees personal moral refinements as more important than rational procedures, andvalues as more importantthanutility. Theultimate political authority isvested inanexemplary supreme ruler or rulers, but not in external procedures or rules. The problem of legitimacy is understood notinterms of procedure orlaw, butinterms of personality evaluated by moral integrity. Ifa ruler fails to meet the need of high morality, he could be replaced bya more qualified ruler, buthowis this replacement totake place, is notofimportant concern. The appointment of officials does not necessarily follow a prescribed public procedure or election, but an official must be examined to meet the test of moral integrity. Forthese reasons, ethical politics is usually called the politics ofthe “rule of . men” Ina moral society, economy is uniquely ethical or relational as it is sometimes referred to. This type of economy is characterized by the following: 1) economic activities are notregarded as belonging tothe sphere ofthe meaning oflife which is connected with the noble development of human faculties, but are regarded as belonging to the sphere of necessity of life which is connected to the mundane satisfaction ofhuman needs, andtherefore are despised. (2) Economic activities are not purely profit-seeking; they must have welfare intention. (3) Economic organizations andunits are notbased onindividuals, butonfamily, clan andvillage ortowns. (4) Standards for economic transactions are not explicitly or specifically articulated; they exist in mutual trust andtacit agreement; publicly announced rules are often insignificant inactual economic dealings. (5) Economic connections are built around personal relationships, rather thanonbusiness relevance. (6)There is a strict demarcation between politics and economy. Bureaucrats are not allowed to engage in commercial activities andmerchants are notsupposed to influence politics. V.The faculty of soul andthe religious society

Wecannot directly approach the existence ofthefaculty ofsoul, butwecanapproxi-

mate it by way of looking at its manifestation. The first manifestation of soul is reverence caused byfearandincredibility. Thesense ofreverence exists universally, although varying in degree; reverence foralmighty God, for instance, reverence for unpredictable deities andghosts orforthewise andwell-experienced elders, extraordinary things orferocious natural forces. To revere is to obey unconditionally. Reverence also means fear. We fear for natural disaster, fear for the unknown and sometimes fear fornoobvious reasons inthe broad daylight. The faculty of soul also manifests itself in mysticism, which runs within human beings andthrough history. Anincredible thing orhappening maybe nomorethanan external reality beyond human comprehension, buthuman beings are often capable of mystifying what is already difficult to understand, thereby making it even more incredible. Acolorful rainbow, a fountain of spring oreven a strangely looking stone

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can be the object for mystification. Mysticism as the intuitive manifestation of the of soul can be employed as the foundation fordomination andsubmission. Cases are abundant inhistory where thescepter ofpower waswrapped inmystic veil. More importantly, through mystification ofthings andobjects, human beings become mystical as well. The development of science has notreduced the mysticism in us, only given it different forms andappearances andsometimes withthe assistance of science itappears evenmore mystical. (Think about professional psychics.) Thefaculty ofsoulalso manifests itself inthehuman needofworship. Theneedof worship is strengthened byreverence andmysticism to the extent that the soul will always be starving and wandering if the need of worship is not met. Wisdom, sacredness, might, power, money or beauty, whatever it is, human beings must faculty

worship something. Worship itself has no axiological meaning but the object of worship makes a difference. For instance, the result of worshipping wisdom and sacredness differs greatly from that of worshipping money and power because the former strengthens the human faculties while the latter cultivates human greediness. Asthe manifestations ofthefaculty ofthesoul, reverence, mysticism andworship can not be understood interms of rationality, namely through logic and reasoning, because they belong to the sphere of irrationality. They can be approached only through irrational cognitive means such as inspiration, exemplification, analogy and enlightenment. Reverence, mysticism andworship, whenunited, produces faith which is the starting point of any religion. Faith produces religiosity. Religiosity leads to religion. Hence, any religion has these three characteristics: reverence, mysticism andworship. Nomatter howprimitive oradvanced a faith, andtherefore religion, is, it is always characterized bythese three features.17 Thefaculty ofthesoulandfaith aredevelopmental andassume divergent forms of existence, which lead to diverse forms andstages of religion, thus making religious phenomena extremely complex anddifficult to describe inanyfixed narrative framework. Adopting same strategy inapproaching the faculties ofthe mindandthe heart, andmorality andlaw,Iamalso viewing thedevelopment ofthefaculty ofthesouland religion inthree stages. These are (1) the stage of intuitive manifestation orinchoate stage where reverence, mysticism andworship took place sporadically without conscious organization and structure, (2) the stage of conscious construction where conceptualization andinstitutionalization of reverence, mysticism andworship have turned religion into systems of knowledge and(3) the stage of society at which the “ rule ofreligion” becomes reality. Atthefirst stage religion as immediate andintuitive embodiment ofthefaculty of thesouldoes notsystematically conceptualize reverence, mysticism andworship. All activities involving worship ofsupernatural force ornatural objects such as wind, rain, lightening andthunder, mountains, rivers, trees and plants, ancestors, ghosts and various types ofsuperstition canbe counted as religion atthis level, which is characterized by contingency and informality.18 Atthis stage no fixed religious procedure,

concerning basic elements of religion, see Emile Durkheim, TheElementary Forms of the Religious Life, NewYork: The Free Press, 1915, Book 1; MaxWeber, The Sociology of Religion, IV, IX;William James, The Varieties of Religious ExperiBoston: Beacon Press, 1922, Papers I– ence, NewYork: Penguin Books, 1982; Paul Ricoeur, The Symbolism of Evil, Boston: Beacon Press, 1967, Part II; Mircea Eliade, TheSacred andTheProfane, NewYork: Harvest/HBJ Book, 1957; Brian Morris, Anthropological Studies of Religion, Cambridge: Cambridge University Press, 1987. 18 This broad view of religion is generally accepted by non-theological scholars. See Brian Morris, supra note 16.

17 Fortheories

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or institution appear, nordoes an abstract universal supernatural like God is nodistinctive boundary between sacred andsecular affairs; allaffairs are bothsacred andsecular. Thepurpose ofreligion at this stage is toavoid disaster andseek blessing, andto find a refuge forthe uncultivated wondering soul, butthis doctrine

exist. There

thread runs through allreligions, including well-developed religions. The presumption of redemption and the promise of the paradise rest on the soul’s desire to find a refuge. Carried to an extreme, this resulted in even more desirable construction of imagination, that is, utopia. While inchoate religions aimat providing refuge forthe soul, advanced religions set outto build utopias forit. Inessence, religion is notvery farfromsuperstition. Forbothreflect thesoul’s manifestations ofreverence, mysticism andworship, both are concerned withfinding a home forthe soulandboth appeal to thedesire toavoid disaster andseekblessing. Atthesecond stage, religion transforms fromindividual experience into group and collective experience, fromintuitive manifestation to conscious conceptualization and institutionalization. It becomes a system of knowledge capable of providing ethical values and behavioral norms. Worship is fixed and processes and rites are introduced, concepts clarified anddoctrines developed. Atthis stage, religion permeates social life, butis yetto become the ruling force. Believing ina religion ornotis still a choice, nota bornfact, unlike ina religious society where one is born into a religion which imposes itself on any of the members of a society. Take Buddhism as an example, inimperial China itwasa system of knowledge, a religion ofchoice, butin Tibet itwasa ruling force imposing itself onevery Tibetan. Atthethird stage, religion develops into religious society, ortheocracy orthe“rule . A religious society is a society where political, economic, cultural and of religion” social life, therelationship between dominance andsubordination, order andfreedom, the pursuit ofjustice, equality andhappiness, are allmainly justified inreligious terms saidto have been created andrevealed bya divine source. Ina religious society, religion becomes the utopia ofthe soul. Human efforts are directed toreligious affairs andthemeaning oflife andthenecessity oflife exist onlyin the pursuit for religious faith. Ina religious society an individual cannot choose his religion, rather the religion chooses him. Politics ina religious society hides itself behind the veil of divinity. Here, instead of rules andprocedures, rituals which are of no substantive significance are publicly performed while nominations of authoritative persons and staffing of authoritative offices are left entirely into the hands of a fewchosen dignitaries whohave either inherited their ultimate authority from their masters or relatives or have been hand picked-up by the divinely endowed supreme ruler or have excelled among many competitors in the study and interpretation of holy texts. Political enthusiasm and religious faith are so intertwined andfused together that every political activity also means religious activity and every religious activity is also politically charged. A religious leader is also a political leader. Dominance andobedience find their most complete presentation: unequivocal dominance andparalyzing obedience with willBut for religion, in its strong and fully ingness. As William James so aptly put it, “ developed manifestations, the service of the highest never is felt as a yoke. Dull submission is left farbehind, anda moodofwelcome, which mayfillanyplace onthe 19No scale between cheerful serenity andenthusiastic gladness, hastaken its place.” alternative political ideology butthe religiously endorsed version canpossibly survive ina religious society. Ina religious society, both lawandsecular morality have been divinized and assume religious forms to the extent that both lawand morality in a

19 See William James, supra note 16, at 41.

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religious society tend to be part of the religion. Rationality has been locked in the backstage ofhuman life andsecular relations stand nochance infront ofthe religious

grid.

Yu Xingzhong, B.A. (Lanzhou), L.L.M (Harvard), SJD (Harvard), Assistant Professor, Department of Government and Public Administration, The Chinese University of Hong Kong; Professor of Law, Northwest University of Political Science andLaw, Xian, China

Wojciech Załuski

The Concept of Kantian Rationality andGame Theory Thegame-theoretical approach to lawis a precise method ofinvestigating thewayin which legal rules shape human behavior. Its attractiveness lies notonly inits formal elegance butalso inthefact that itcanbe helpful forlegislators intheir efforts topass efficient laws1. Legal philosophers, in turn, are likely to be particularly interested in foundational questions related to it. The present paper provides an analysis of this kindofa question –namely one about the place ofthe concept of Kantian rationality (KR) inthe game-theoretical considerations2.

I.Theconcept of Kantian rationality One of the basic philosophical assumptions of game theory is the concept of instrumental rationality, whose essence is the idea that people make decisions as though seeking tomaximize their utility functions. Atfirst glance this concept mayseemtobe difficult to reconcile with the concept of KR, according to which a truly rational behavior consists in obeying the categorical imperative (the CI). Nevertheless, one ofthe theses that wewilltrytojustify inthe present paper is that both concepts

canbe approached to each other. When discussing the role of reason in human action, Kant emphasizes a strict connection between rationality and morality. Heasserts that the function of reason consists inproducing a goodwillinmenrather than insecuring their preservation3. A

will is good only if it observes the CI, which demands that people should act only on such maxims4 which they can will to be generalized5. A manwhose actions are determined byanautonomous will, i.e. a willobedient totheCI,is nolonger subject to 6 –preferences and empirical” whims and caprices having its source in personal –“ thereby canbecalled a rational human being. However, itis nottobeinferred fromthe above considerations7 thatKRcannot beplaced within themeans-end framework, i.e.

1

See, e.g., D G. Baird, R H. Gertner, R C. Picker (2000), Game Theory and the Law, Harvard

2

We limit

3

University Press, Cambridge, Massachusetts, London (First published 1994). ourselves to the analysis of the relations between KR and two-person non-coalitional

games. “ Nowina being which has reason anda will, iftheproper object ofnature were its conservation, its welfare, in a word its happiness, then nature would have hit upon a very bad arrangement in selecting thereason ofa creature tocarry outthis purpose” –I.Kant(1946), Fundamental Principles

oftheMetaphysics ofEthics, transi. byThomas

4 5 6

7

Kingsmill Abbott, Longmans,

Gree andCo., London,

NewYork, Toronto, p.12.(First published 1785). Maxims are personal rules ofaction. Actonly on that maxim whereby thou canst The categorical imperative in its exact version says: “ simultaneously willthatitshould become a universal law” I. Kant, Fundamental Principles ofthe – Metaphysics of Ethics, p.46. This adjective has inKants’ethical dissertations a specific pejorative tint because itembraces a sort ofmotivation that does notstemfromthe precepts of reason. Ourdescription of KRassuredly does notgive justice to the richness of Kant’s viewof rationality; however, ifwedecided to go into the complicated problems of Kant’s ethics –noumenal freedom, autonomy, other formulations of the CI, for example –there would be little place left for the realization of our main purpose, which is the analysis of the relations between the categorical imperative as the core of KRandnoncooperative game theory.

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thatKant’s moral theory is purely deontological. Itiscrucial forouranalyses thattheCI should be interpreted ina consequentialist manner, i.e. as meaning thatoneought to actonsuch rules which onewould like tobe acted onbyothers, 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 forall of them8.Theexpresthe outcome willbe best forallofthem” sion: “ , however, canbe construed inat least twodifferent ways –namely as implying that (a) the best outcome is gained every time the CIis applied, orthat (b)the best outcome is gained only inthe long run. Theinterpretation (b)implies thatiftheinteraction were nottoberepeated, theagents would not be obliged to comply with the CI. This conclusion, though disturbing, is an

inevitable consequence ofourconsequentialist interpretation ofthe CI. Paradoxically enough, itseems to be more compatible withKant’s wayofjustifying the CI9thanthe conclusion which is implied by the interpretation (a) –namely that agents should comply withthe CIirrespective ofwhether their interaction willbe repeated. Theconsequentialist interpretation oftheCIis decisive forthesections II10, III, IV, V;inthesection VI,whenanalyzing therelations between KRandthenotion ofa Nash equilibrium, weconsider also other interpretations ofthe CI.

II.The Prisoner’s Dilemma andthe concept of Kantian rationality Whatconstitutes animportant aspect oftheproblem ofthe relations between Kantian rationality andgame theory is the question whether the CIshould ever be applied in the game-theoretical analyses. More specifically, it is to be examined if it might be advisable

to resort to this concept inthe case ofthe Prisoner’s Dilemma11, inwhich

8 Ourinterpretation is by no means uncontroversial; nevertheless, wethink it is well supported by Kant’s writings. To give an example of Kant’s justifying the CI in a consequentialist manner: he to be break yourpromises whenever it is convenient foryou” claims that noone canwillthe rule “ generalized because the consequence of such a generalization would be that the institution of promise would cease to exist as no promises would be credible any longer –e verybody would ” ridicule them as vain pretences”(I. Kant, Fundamental Principles of the Metaphysics of Ethics, p.48). Kantasserts that a willwould fall ina formal contradiction if itwere to wishsuch a rule to be generalized, which weinterpret as thestatement ofthefactthatthelong-run consequences ofacting inconformity withsucha rule thwart theaims oftheagent whoinfringes onthe CI. Theabove interpretation is similar tothatofSchopenhauer, whoformulates evena stronger opinion –namely that itis self-interest (using a modern terminology, wewould say: enlightened self-interest) Jene Kantische Grundregel (i.e. the CI-W.Z) nicht, that lies at the foundations of Kantian ethics: “ wieer (i.e. Kant –W. Z) unablässig behauptet, ein kategorischer, sondern in der Tatein hypo-

thetischer Imperativ ist, indem demselben still schweigend die Bedingung zumGrunde liegt, dass das fürmeinHandeln aufzustellende Gesetz, indem iches zumallgemeinen erhebe, auch Gesetz fürmeinLeiden wird, und, ichunter dieser Bedingung, als dereventualiter Passive Teil, Ungerech–A.Schopenhauer (2000), Preisschrift über tigkeit undLieblosigkeit allerdings nicht wollen kann” die Grundlage derMoral (First published 1840), in: Hauptwerke Band II, ZumErkenntnisse, Ethik 447. It is to be emphasized that if Kant’s moral Logik undReligion, Parkland Verlag, Köln, p.446– theory were purely deontological, i.e. ifitinstructed toact inconformity withtheCIwithout regard to the consequences, then it would probably make no sense to speak about the relations between game theory, which is focused onthe consequences ofplayers’actions, andKR. 9 IfXwanted tomakeonlyonepromise inhislife, thenhecould notbepersuaded toactinaccordance with the CI (i.e. keep his promise) by an argument based upon the analysis of the long-run consequences ofbreaking promises. 10 Inthis section (i.e. section II), however, also a different interpretation of the CIwill be taken into

account.

11 Letus recall the well known story behind the PD.Twopeople accused of committing a crime are offered the same deal bya judge. Thedeal is as follows. The mayconfess ordenythe accusation.

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both players fail to reach the optimal result, notwithstanding that they act inaccordance withthe basic criterion of instrumental rationality –namely that which bans the choice ofstrictly dominated strategies12. Figure 1 represents the PD’ s payoffs resultingfromthe combinations ofthe respective strategies.

Player I/Player II

Cooperate

Defect

Cooperate

3,3

0,5

Defect

5,0

1,1

(Figurel)

Ifthe players act in conformity with the above criterion, then they will defect, thus generating a Nash equilibrium13. The Nash equilibrium outcome, however, is not Pareto-efficient14: both players would be better offifeach ofthemdecided to cooperate. This fact gives rise toa suspicion thatinstrumental rationality leading toa socially unacceptable result might be an inadequate criterion for choosing strategies inthe PD.Thequestion emerges whether KRcould be a suitable alternative toit.Toanswer this question, one needs to understand clearly what it might meanthat KRoffers a solution tothe PD.Such a statement can be understood inat least twoways. (a) Agame-theoretical variant of the CI might be as follows: choose the same strategy as the one that you would at the same time will to be chosen by your opponent. Thecombination {cooperation, cooperation}yields bothplayers higher payoffs than the combination {defection, defection}, therefore Kantian players willcooperate, thereby avoiding the Pareto-inefficient equilibrium outcome ofthe PD. Onemight interpret theabove result as follows. Thematrix ofthepayoffs inthePD describes players’personal preferences. AKantian player, however, willbeable toact inaccordance withhisethical preferences15. Aspecifically Kantian ethical preference willbe obedience tothe CI,whose practical consequence is that players should take into account –as possible solutions to the game –only those outcomes which are determined byidentical strategies. Now,oneofthesolutions – {defection, defection} – The prisoner whoconfesses andthereby gives evidence against the second one is released on condition that the latter does notconfess –the prisoner whodoes notconfess is then sentenced for thecrime. Ifbothprisoners donotconfess, thentheywillbe sentenced onlyfora misdeamenour. If both prisoners confess, then they willsentenced forthe crime butthe punishment is milder than it would be inthe case inwhich only one ofthemconfessed. Onehas to addthat the players cannot notconfess” means inthecontext ofthis story “ Cooperate” communicate. “ , whereas “defect” means “ confess” . It is worth adding that the popularity of the PDis dueto the fact that it models multiple social phenomena.

12 Astrategy Xis strictly dominated bythestrategy Y iftheresult oftheapplication ofXis always worse thanthe result ofthe application ofY. 13 Letus recall a definition of a Nashequilibrium: “ a pair ofstrategies willforma Nash equilibrium if each strategy is onethat cannot be improved upongiven theother strategy” –DG. Baird, R H. Gertner, R C. Picker (2000), Game Theory and the Law, p.310.

14 Anoutcome is Pareto-efficient ifthere is noother outcome inwhich at least one player is better off andothers are notworse off. 15 Theterm: “ ethical preferences” comes fromHarsanyi; see J C. Harsanyi, Cardinal Welfare, Individualistic Ethics, andInterpersonal Comparisons ofUtility. In:J C. Harsanyi (1976), Essays onEthics, Social Behavior, andScientific Explanation, D.Reidel Publishing Company, Dordrecht, Boston p.6– 24.

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mustberejected because itis Pareto-dominated bytheother – {cooperation, cooperation}.

(b)Itmaybeargued thattheCIdemands thatbothplayers choose thestrategy of defection. This would be the case were each player to come upwitha very detailed version of a maxim bywhich he would be required to defect16. Amaxim ofthis kind17 might embrace such specific conditions that the player whointended to act thereon could be sure that he is one of very few people who can fulfill them; in consequence, hecould besurethatthere isa lowprobability thatalso hisopponent selects a strategy maxim should egoistic” of defection. Forthat reason he can be said to willthat this “ become a universal law. The obvious problem with such a trick is that also his opponent, being sufficiently inventive, might be able to find a very specific maxim forbidding cooperation. Inconsequence, the outcome would be the Pareto-inefficient equilibrium, i.e. one identical with the typical outcome of the PD. One should also remark that this interpretation implies that allmaxims which are detailed enough can bejustified bymeans oftheCI,which makes theCIuseless as a criterion forchoosing strategies. Forallthese reasons the interpretation (b) need notdetain usfurther. Theinterpretation (a)entails thatthesocially disadvantageous outcome ofthe PD can be avoided if the players reject instrumental rationality to base their strategy choices ontheCIinstead. Although atfirst glance this interpretation mayseemtobe convincing, wecannot butsuspect that there is something fundamentally wrong with inthe Prisoner’s the following statement, which is this interpretation’s consequence: “ Dilemma the concept of Kantian rationality, based uponthe idea of the categorical . The analyses imperative, recommends the choice of the strategy of cooperation” made inthe next part of the paper are aimed to showthat the above statement is erroneous because it discounts a certain important distinction. Hence, as will be argued, onemustalso reject the interpretation (a). III. Kantian rationality

as an element of players’sets of preferences

Itis crucial forthe considerations tofollow that a clear distinction be made between the process of constructing a game-theoretical model andthe process of its analysis. This distinction is related to the theory of revealed preference, which demands that one should deduce players’preferences andthereby their utility functions18 fromchoices they make19; inconsequence, it maybe maintained that people make choices as though maximizing their utility functions (therefore it is a fallacy to assert that Player Achooses X rather than Y because X has forhima higher utility than Y; the causal relation is the reverse one). Hence –assuming the theory of 16 See, e.g., A. Macintyre (1966), A Short

History

of Ethics, The Macmilan

Publishing Company,

p.240– 260 or O. Höffe (1992), Immanuel Kant, C.H Beck’sche Verlagsbuchhandlung, München, p.170– 190. However, itis tobe emphasized thatthe interpretation which assumes thattheCIallows one tojustify every maxim that is sufficiently detailed seems to be contradictory to the intentions of Kantandtothe whole system ofhis ethics. 17 Here is anexample ofsucha maxim: “Always defect whenyouarea manofmorethanforty, withan IQ higher than 150, wholives in a town having not more than 10000 inhabitants and whose grandfather died inIndia frommalaria” . 18 Autility function is a convenient mathematical wayofexpressing preferences.

19

the theory of revealed preference treats choice behavior rather than preferences as the See, e.g., A. Sen (1971), Choice Functions and Revealed Preference. In: Review of 317 andK.Binmore (1995) Playing Fair. Game Theory andthe Social Economic Studies, 38: 307– 109. Contract, The MITPress, Cambridge, Massachusetts, London, p.104–

Therefore primitive.

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the statement: “people maximize allthetime” revealed preference – is close to being tautological20. To return to the problems of the PD–as has been argued above, the “never choose strictly dominated strategies” criterion ofrationality implies that players should always defect inthe PD.The problem that seems to arise is howthis implication can be reconciled with the fact that, as has been suggested by our interpretation (a), Kantian players are likely to choose the strategies of cooperation in the PD. This problem, however, is an ostensible one, because Kantian players are in fact not involved in the situation for which the proper model would be the PD21. To be moreexact, according tothetheory ofrevealed preference thechoice22 ofcooperative strategies made by Kantian players reveals their preferences23, which determine24 which game is being played (this game must be of course different from the PD, because the latter’s solution is {defection, defection}). Therefore ifone assumes the theory ofrevealed preference, thenonewillhave toadmit thata player’s disposition to act inconformity withthe CIshould be taken into account at the stage of modeling a problem rather than at the stage of its analysis. Thenatural question iswhatgamecanberevealed byKantian players (wewillcall sucha game a Kantian one). Agame is Kantian ifits outcome –reached as a result of the typical game-theoretical analysis –satisfies certain conditions. These conditions (marked by numbers with an index KG–a Kantian game) are inferred from our consequentialist interpretation ofthe CI. 1. Actonsuch rules which youcanwilltobe generalized.

1KG.The outcome is a consequence of the choice of identical strategies byboth players. Thechosen strategies must be cooperative (the CIisa moral concept and

the choice ofthe strategies ofthe defection whatis a moral action).

would

be contrary to ourintuitions as to

2. Rules must be feasible (this is a consequence of the principle: o ught’implies “ ‘ ‘can’). 2KG. The outcome is a Nash equilibrium (because every feasible outcome of a game belongs to its set of Nashequilibria). 3.The rule when applied yields the outcome which is best for both players. 3KG. The Nash equilibrium outcome chosen in a Kantian game Pareto-dominates all other Nashequilibria of this game. The conditions 1KG–3KGare satisfied25, e.g., in a pure coordination game (Figure

2)26.

20 Forthat reason the theory of revealed

preference is probably unfalsifiable. Besides, it has some consequences, for example, it implies that people cannot act contrary to their own preferences. More about the difficulties of this theory (e.g. about its supposed circularity) can be found in,e.g., A.Sen (1977), Rational fools: ACritique oftheBehavioral Foundations ofEconomy. In: Philosophy and Public Affairs, 6: 317– 344 and A. Sen (1970), The Impossibility of a Paretian 157. For all that, we accept this theory, as it is Liberal. In: Journal of Political Economy, 78: 152– simple, clear andflexible; besides as yetthere is noattractive alternative to it. 21 Provided that theyare rational inthe sense that they maximize their utility functions. 22 To be more precise –an expected choice inthe light of prior information that we have about the choices that these players make. unintuitive

23 I.e. anethical preference which is obedience totheCI. 24 Jointly withthe rules ofa game. 25 Oneshould addthatthese conditions are satisfied onlyinsymmetric games. Animportant question is whether a game can be called Kantian ifthe payoffs assigned to the combination of strategies {defection, cooperation} are notequal forbothplayers (this is thecase inthe Stag Huntanalyzed in the next section). Ourdefinition willembrace also suchgames, although itmight be argued thatthe games in which the defector gains more than the cooperative player should not be treated as

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Player I/Player II

(Figure

Cooperate

Defect

Cooperate

3,3

0,0

Defect

0,0

1,1

2)

This game hastwoNashequilibria inpure strategies27: {cooperation-cooperation} and

{defection-defection}, buttheformer Pareto-dominates thelatter, therefore theplayers will choose the cooperative equilibrium. From the choice the players are likely to make, one can deduce the sort of preferences Kantian players have, i.e. their disposition to act in accordance with the CI. There are multiple games that satisfy the above conditions, which might be treated as being related to the fact that the CI is a scheme that generates many different rules28. Themainresult oftheabove analysis isthat–inorder thata conceptual confusion should be avoided –Kantian rationality understood as a player’s disposition to act in conformity withtheCImustbetaken into account atthestage ofconstructing a gametheoretical model rather thanatthestage ofitsanalysis. Ashasbeenargued, itcanbe Kantian preferences” from carried outinthefollowing way:weinfer thatplayers have “ their choice behavior29 in a supposedly Kantian game (i.e. a game whose outcome satisfies theabove enumerated conditions)30. This analysis, though, appears toimply that if one wants to express the CI interms of game theory, one can hardly avoid limiting situations to which the CI can be applied to trivial andunproblematic ones (which, inturn, appears to imply that the consequentialist interpretation of the CI is more problematic thanwehave initially supposed). However, certain grounds exist forsupposing that the above conclusions donot exhaust the problem of the relations between the KR and game theory. These Kantian (the argument fortheopposite thesis would bethat intheStag Hunt{defection cooperation} isnota Nashequilibrium and,inaddition, is Pareto-dominated bytheNashequilibrium {cooperation,

cooperation}).

26 K.Binmore calls this game a Rawlsian one, because the players are using a maximin criterion (the payoffs inthis figure have been calculated inthe following way: e.g. a payoff for Player I forthe outcome {defection, cooperation} amounts to 0 according totheformula: 0 = min(0,5)). Given wellknown similarities between Rawls’theory ofjustice andKantian moral theory, the fact that a game generated in this wayturns outto be Kantian should not be surprising; see K. Binmore (1995) Playing Fair. Game Theory andthe Social Contract, p.150. 27 This game has also a Nashequilibrium inmixed strategies: (1/4C, 3/4D) forbothplayers, which of course willnotbe chosen as itis Pareto-dominated byboth pure strategy equilibria. Besides given the complicated problems withthe interpretation oftheconcept ofa mixed strategy equilibrium, we MJ. Osborne, A.Rubinstein (1996), ACourse inGame Theory, The discount itinouranalysis; see – 42. (First published 1994). MIT Press, Cambridge, Massachusetts, London, England, p.37–

28 This is, however, onlya hypothesis infavor ofwhich wehave noconclusive arguments. 29 Toavoid circularity, weshould say: fromprior information about the expected choice behavior. 30 However, one needs to addthat onecould tackle the problem ofthe relations between the PDand KR in a different way. One could assume that when Player I finds himself in a situation that resembles the PD, he transforms the payoffs of the apparent PDinaccordance with his Kantian preferences. Theproblem is that he maynotknowwhatpreferences hisopponent has. Ifhe knows that also hisopponent is a Kantian player, thenthe situation boils downtothesimple oneanalyzed inthesection II;ifhedoes notknow, thenonewould have toconstruct a morecomplex model, which would allow fortheincomplete information, i.e. thefactthatstructure ofthegameandthepayoffs are notthecommon knowledge ofplayers.

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relations canbe interpreted also indifferent ways. Firstly, itseems that the KRmight be used as a subsidiary –external –criterion for choosing among multiple Nash equilibria; secondly, one should analyze the concept of the CI in the context of repeated games; finally, it is arguable that the concept ofa Nash equilibrium canbe interpreted inKantian categories; the nextthree parts ofthe paper are devoted tothe examination ofthese problems.

IV.Kantian rationality as a criterion for choosing equilibria Let us nowturn to the classic example of a coordination game –namely, the Stag has twoNash equilibria inpure strategies. Its matrix is as follows31:

Hunt, which

Player I/Player II

Cooperate

Defect

Cooperate

3,3

0,2

Defect

2,0

2,2

(Figure 3)

The problem withthe Stag Huntis that game theory offers noconclusive

criteria that might help to predict which equilibrium the players are most likely to choose in it. Two mostpopular criteria forchoosing among multiple Nashequilibria bring about different outcomes: on the one hand Schelling’s theory of focal points32 instructs to choose {cooperation-cooperation} because ofits salient payoffs33; onthe other handthe riskdominance analysis34 points to {defection-defection}. This being the case, one needs toaskifthere is anyother wayofpredicting players’actions intheStag Hunt. One might argue that in default of the conclusive criteria for choosing among multiple Nashequlibria this is the CIthat could playa crucial role. Tobe more exact, whenstriving tocoordinate his move withthat ofhisopponent35, every player is likely

tocome totheconclusion thatthe mostnatural waytoachieve this endis tochoose a strategy that his partner would most probably like himto choose. Ofcourse, every player would wishhis partner to cooperate, the result being that the players are likely to select the cooperative strategies andthereby reach the optimal equilibrium36.

, “defect” hunta stag” means “ means “ 31 Inthis game“ cooperate” hunta hare” . Moreover, itisassumed that hunting a stag willbe successful ifallplayers take part init,that every player can hunta hare successfully even ifhe acts individually, andthat a share ina stag is valued more thana hare. 32 Afocal point isthecombination ofstrategies which islikely tobechosen byplayers because ofsome distinguished characteristic ofits payoffs orduetothefact thata given combination is recommended bythe culture, the society etc. inwhich the players live –see R B. Myerson (2002), Game Theory.

110. Analysis of Conflict, p. 108– 33 This equilibrium is Pareto-efficient. 34 The analysis based onthis idea would be as follows: a player is uncertain about the result ofthe game, so he assigns the probability 0.5 to each strategy being chosen by his opponent; in consequence, the expected return from the cooperative strategy: 0.5·3=1.5 is lower than the expected return fromthe strategy ofdefection: 0.5· 2 + 0.5· 2 =2. (One should addthat inthe game represented byFigure 2 bothcriteria point tothesame equilibrium –namely {cooperation, cooperation}, which is why both games are being separately analyzed). 35 Weshould rather say“partner” , because ina coordination game players’interests are notopposed. 36 Witha payoff of3 utils foreach player –see Figure 3. Ofcourse thewhole argument makes sense

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Itmaybe asked whether this interpretation is notincontradiction withourearlier conclusion, according to which KRcanbe introduced onlyat the stage ofmodeling a problem. Toavoid a contradiction oneneeds toaddthatresorting totheCIatthestage oftheanalysis is allowed onlyina special case, i.e. oncondition thattheother criteria of choice among multiple Nash equilibria do notprovide a definite answer to the question which equilibrium should be chosen37. Aswehave seen, this is the case in the Stag-Hunt (but of course notinthe one-shot PD), inwhich notwithstanding their having convergent interests, players mayfailtoreach thebest result because theriskdominance refinement ofthe Nashequilibrium concept andthefocal point theory give contradictory instructions as to the choice ofthe equilibrium. Onemight ofcourse point outthattheCIitself is anexample ofa focal point (or,to be more exact, is one of factors generating focal points38), so the CIshould notbe treated as a separate criterion. We could agree with this objection because it is compatible withtheessence ofourconclusion –namely thatthe CIunderstood as a widespread social custom mayhelp to choose (or to predict the choice of) one of multiple Nashequlibria.

V. Kantian rationality andindefinitely repeated games39 It is a well-known fact that inthe indefinitely repeated PDmutual cooperation40 is a possible Nash equilibrium outcome41. One is tempted to treat the above fact as an in argument for the CI42. However, given the Folk Theorem according to which “ indefinitely repeated games anyofthepotential pay-off pairs inthese repeated games can be obtained as a Nash equilibrium with a suitable choice of strategies by the players” 43,itturns outthat Nashequilibria that are manifested incooperative behavon the assumption that both players are likely to base their actions on the CI. This assumption, atleast initssimplified version called however, is nota strong one:theCIisa verypopular concept – the Golden Rule (dountoothers as youwould have themdountoyou)–so itseems probable that eachplayer might assume that hispartner knows this concept andwillthink itadvisable toapply itin this stalemate situation inwhich no player knows forsure which strategy to choose. Therefore it seems quite natural totackle the problem duetothe existence ofmultiple equilibria bytrying to put oneself intheposition oftheother player. 37 Wearenotcertain, however, whether this reservation really removes thecontradiction. Ifitdoes not, wewillhave to admit that this an alternative interpretation ofthe relations between KRandgame theory.

38 Inthe case ofthe Stag Huntsucha point would bethe outcome {cooperation, cooperation}. 39 Wearenotconcerned withthefinitely repeated PD,thereason being thatithasthesame solution as theone–shot PD–namely the Pareto-inefficient equilibrium generated bythecombination ofthe 40

41

42 43

defection strategies. Mutual cooperation arises, for example, as a manifestation of the fact that both players have adopted the tit-for-tat strategy (which consists inthat a player starts with a cooperative move and afterwards mimics the moves made by his opponent). One should emphasize that tit-for-tat strategies (as wellas other combinations ofstrategies thatare manifested incooperative behaviour) forma Nashequilibrium only ifthe probability that the game willbe repeated is sufficiently high. 339. 311 and 337– See, e.g., R B. Myerson (2002), Game Theory. Analysis of Conflict, p. 308– That is, itcould be saidtoconfirm theassumption that behavior based onthe CIis to betreated as oneofthe reasonable solutions ofthegame. Whether this solution “yields thebest outcome inthe is another question. long run” S P. Hargreaves Heap, Y. Varoufakis (1995), Game Theory. A Critical Introduction, Routledge, 172. A formal definition can be found, for example, in: R B. Myerson London, NewYork, p.171– (2002), Game Theory. Analysis of Conflict, p. 334.

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iourare nottheonlyNashequilibria thatexist insuchgames44. Moreover, onecannot bymeans of the game-theoretical tools whether the Nash equilibria that are manifested incooperative behaviour are likely to be chosen, since this kindof Nash equilibria are byno means distinguished ones (e.g., cooperative Nash equilibria do notnecessarily Pareto-dominate other Nashequilibria, so theycannot becalled, e.g., best outcomes” the“ ). Similarly tothesituation described inthesection IV,theCImight be taken into account at most in the attempts to construct a theory of equilibrium predict

selection, which would enable one to predict the players’decisions. Within such a ifitweretobeformulated –theCI,understood as a disposition tochoose the theory – cooperative strategies, might be treated as a description of the way in which players frequently act45 when faced with the problem of choosing a Nash equilibrium inthe repeated PD,andthus might help predict the players’choices.

VI.Kantian rationality andthe concept of a Nashequilibrium Ourintention is to present some interpretations of the conceptual relations between the CIandthe notion ofa Nashequilibrium46. (a) Some authors claim that the CI understood as a postulate of generalisabilty “ canprovide an alternative foundation forNash (i.e. forthe notion ofa Nashequilibri47.Tobe more specific, ifa player generalizes48 a rule that instructs himto um–W.Z)” choose anaction that is thebest response tohisopponent’s action (let uscallthis rule BRR), theexpected result willbe a Nashequilibrium. (b) There is noconceptual relation between the CIandBRRbuta trivial one– namely that BRR is generalisable. The consequences of their application are most often incompatible, which is understandable given the fact that BRR by definition concerns all equilibria –also those in which a player defects –whereas the CI is

connected withcooperative equlilibria.

(c)Aninteresting interpretation ofthe relations between theCIandtheconcept of a Nashequilibrium has beenproposed byanillustrious game-theorist KenBinmore49. Heclaims thattheonlyacceptable interpretation oftheCIconsists inits reducing toa postulate of consistency supplemented by some “ extra input” 50. Having analyzed some variants ofthis postulate, e.g., onesaying: “ choose a method ofchoice51 whose 44 For example, the strategy “always defect”will always be the best response to itself, so these one-shot” Prisoner’s dilemma, butalso inits strategies generate a Nashequilibrium notonlyinthe“ repeated version.

45 Whether this is true ornotwould be a matter ofempirical research. 46 The relations between the CIandthe concept ofNashequilibrium, however, needa more comprehensive analysis than presented below, especially –one has to examine the connection ofthe CI withthe refinements ofthe Nashequilibrium (such as e.g. equilibrium dominance, intuitive criterion, subgame-perfection) andthe Bayesian Nashequilibrium as wellas take into account thedifferences between Nashequilibrium inpure strategies andNashequilibrium inmixed strategies. 47 S P. Hargreaves Heap, Y. Varoufakis (1995), Game Theory. A Critical Introduction, Routledge, London, NewYork, p.103.

48 Which in practice means that he will imagine what happens if his opponent acts on this rule. 49 He adds though: I am fearful of being thought that a metaphysical defense of the notion of a Nash –K.Binmore (1995) Playing Fair. Game Theory equilibrium hasmore “ thananentertainment value” and the Social Contract p.159. 50 Ibidem, p. 154. a comprehensive system ofmaking choices that 51 Bya method of choice K.Binmore understands “ tells everyone

howtosolve alldecision problems”–ibidem, p.154.

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52,hefinally selects its adoption would result inyourchoosing thatmethod ofchoice” game-theoretical formulation that seems to be closest to Kant’s categorical imperaeverybody should choose a consistent method of choice53 whose adoption by tive: “ everybody else would be consistent with everybody’s choosing that method of 54.K. Binmore calls this formulation Nash’s categorical imperative because it choice” societies should be organized so that they select contains a requirement that the “ Nash equilibria; (...) anycall foraction insuch a world [inwhich there is a common knowledge of the rationality of others –W. Z] must satisfy some form of the Nash’s 55; he adds though: “ butwedo categorical imperative if it is notto be self-defeating” not, alas, live in such a world’56.The brilliancy of this analysis notwithstanding, we cannot accept itas aninterpretation ofthe relations between theCIandtheconcept of a Nashequilibrium, forthesimple reason that itis based uponaninterpretation ofthe CIwhich is profoundly different fromthe one suggested byKant’s works. VII. Summary

The results ofthe above analyses can be summarized infourpoints. (1) The fact that a player has Kantian preferences, i.e., a disposition to act in conformity withthe CI(understood inourpaper ina consequentialist manner), should betaken intoaccount atthestage ofconstructing a game-theoretical model ofa given problem. These preferences are revealed ingames whose outcome hasthefollowing features: it is a Nash equilibrium formed by the combination of the cooperative strategies which Pareto-dominates other Nashequilibria ofthis game. This analysis, though, limits the application of the CI to fairly unproblematic cases. (2)TheCImight betaken intoaccount atthestage oftheanalysis ofa gameonly iftheexisting game-theoretical criteria donotgive definite instructions which equilibriumistobechosen. Inthis case KR–understood as a widespread social custom toact inaccordance withthe CI–canbe treated as a focal point. (3) In the indefinitely repeated PD57 mutual cooperation is a Nash equilibrium outcome. However, oneshould nottreat this fact as anargument fortheconsequentialist justification ofthe CI, because the FolkTheorem implies that combinations of strategies that are manifested inmutual cooperation are notthe only Nashequilibria existing inthe indefinitely repeated PD.Therefore, the indefinitely repeated PDmight justify” “ a widevariety ofdifferent rules forchoosing strategies. Besides, thecooperative Nashequilibria are notnecessarily Pareto-efficient. (4) The relations between the CIandthe concept of a Nash equilibrium can be interpreted inthree ways: (a) The CI is an alternative philosophical foundation forthe concept of a Nash equilibrium.

(b) The CIandwhatwasdefined as the BRRare twodifferent

often leadto different results. 52

53 54 55 56

57

rules which

K. Binmore (1995) Playing Fair. Game Theory and the Social Contract, p. 153.

most

Method ofchoice istreated inthis formulation as a method ofchoosing a strategy ina game withthe assumption ofthe common knowledge ofrationality. Ibidem, p.158. Ibidem, p.158. Ibidem, p.158. Wespeak about the PD,yettheconclusions apply also tosome other games which areindefinitely repeated.

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(c) The CI–reduced tothe postulate ofconsistency “withextra input’58–canbe approached totheconcept ofa Nashequilibrium (K.Binmore’s metaphysical defense ofthe concept ofa Nashequilibrium). DrWojciech Zbigniew Załuski, Chair Krakow, Poland

58 K.Binmore (1995) Playing

of the Theory and Philosophy of Law, Jagiellonian

Fair. Game Theory

andthe Social Contract, p. 154.

University,

Contents Introduction Anne van Aaken: Deliberative Institutional Economics. Synthesizing the Best of Two Worlds: A Combination of New Institutional Economics and Deliberative Theories Deniz Coskun: Law as symbolic form. Ernst Cassirer and the anthropocentric view of law Laurent De Sutter: How to Get Rid of Legal Theory? Leopoldo García Ruiz: On the Concept of Law and Its Place in the Legal-Philosophical Research Nikolaos Intzessiloglou: Socio-semiotic and sociocybernetic approaches to legal regulation in an interdisciplinary framework Lorenz Kaehler: The indeterminacy of legal indeterminacy Matthias Mahlmann: Kant’s Conception of Practical Reason and the Prospects of Mentalism Matthias Mahlmann and John Mikhail: Cognitive Science, Ethics and Law

Gregor Noll: The Exclusionar y Construction of Human Rights in International Law and Political Theory Claes Peterson: The Concept of Legal Dogmatics: From Fiction to Fact Federico Puppo: Law, authority and freedom in Sophocles’ Antigone Marie Sandström: The Concept of Legal Dogmatics Revisited Burkhard Schäfer: Ontological commitment and the concept of “legal System” in comparative law and legal theory Sten Schaumburg-Müller: Truth, Law, and Human Rights Paolo Sommaggio: Boethius’ definition of persona: a fundamental principle of modern legal thought Xingzhong Yu: Human Faculties and Human Societies – A Three Dimensional Cultural Epistemology Wojciech Załuski: The Concept of Kantian Rationality and Game Theory

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