Truth and Objectivity in Law and Morals II: Proceedings of the Second Special Workshop held at the 27th World Congress of the International Association for Philosophy of Law and Social Philosophy in Washington D.C., 2015 9783515114844

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Truth and Objectivity in Law and Morals II Proceedings of the Second Special Workshop held at the 27th World Congress of the International Association for Philosophy of Law and Social Philosophy in Washington D.C., 2015 Edited by André Ferreira Leite de Paula / Andrés Santacoloma Santacoloma / Gonzalo Villa Rosas

ARSP Beiheft 151 Franz Steiner Verlag

Archiv für Rechts- und Sozialphilosophie

Truth and Objectivity in Law and Morals II Edited by André Ferreira Leite de Paula / Andrés Santacoloma Santacoloma / Gonzalo Villa Rosas

archiv für rechts- und sozialphilosophie archives for philosophy of law and social philosophy archives de philosophie du droit et de philosophie sociale archivo de filosofía jurídica y social Herausgegeben von der Internationalen Vereinigung für Rechts- und Sozialphilosophie (IVR) Redaktion: Dr. Annette Brockmöller, LL. M. Beiheft 151

Truth and Objectivity in Law and Morals II Proceedings of the Second Special Workshop held at the 27th World Congress of the International Association for Philosophy of Law and Social Philosophy in Washington D.C., 2015 Edited by André Ferreira Leite de Paula / Andrés Santacoloma Santacoloma / Gonzalo Villa Rosas

Franz Steiner Verlag

Bibliografische Information der Deutschen Nationalbibliothek: Die Deutsche Nationalbibliothek verzeichnet diese Publikation in der Deutschen Nationalbibliografie; detaillierte bibliografische Daten sind im Internet über abrufbar. Dieses Werk einschließlich aller seiner Teile ist urheberrechtlich geschützt. Jede Verwertung außerhalb der engen Grenzen des Urheberrechtsgesetzes ist unzulässig und strafbar. © Franz Steiner Verlag, Stuttgart 2016 Satz: DTP + TEXT Eva Burri, Stuttgart Druck: Druckhaus Nomos, Sinzheim Gedruckt auf säurefreiem, alterungsbeständigem Papier. Printed in Germany. Franz Steiner Verlag: ISBN 978-3-515-11484-4 (Print) Franz Steiner Verlag: ISBN 978-3-515-11485-1 (E-Book) Nomos Verlag: ISBN 978-3-8487-3600-3

Table

of

ConTenTs

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

7

ParT I – objeCTIvITy and TruTh In law Matti Ilmari Niemi What is the Foundation of Objectivity in the Field of Law? . . . . . . . . . . . . . .

15

Triantafyllos Gkouvas Legal Truth Without Legal Facts: A Metaontological Argument . . . . . . . . . . .

25

Andrés Santacoloma Santacoloma Semantical Rules and the Theory of the Limit of the Wording: Seeking for Objectivity in Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

49

Samuele Chilovi The Speaker Dilemma in Legal Implicatures: Comparisons and Further Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

67

ParT II – objeCTIvITy and legal reasonIng André Ferreira Leite de Paula Discovery and Justification in Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

81

Bruce Anderson / Michael Shute The Need for a Better Understanding of Legal Reasoning and Feelings . . . . . . 115 ParT III – objeCTIvITy and Kelsen’s Theory of law Jing Zhao The Justification Problem in Hans Kelsen’s Theory of Legal Validity . . . . . . . 131 Monika Zalewska Objectivity and Hans Kelsen’s Concept of Imputation . . . . . . . . . . . . . . . . . . 147

6

Table of Contents

ParT Iv – objeCTIvITy and TruTh In Morals Michele Saporiti ‘Quid est veritas?’: On Conscientious Objection and Truth . . . . . . . . . . . . . . 165 Gonzalo Villa Rosas Morality from the Outside On G . Harman’s and B . Wong’s Theories of Moral Relativism . . . . . . . . . . . . 173 About the Authors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209

InTroduCTIon Due to the positive response to the First Special Workshop “Truth and Objectivity in Law and Morals,” which took place at the 26th IVR World Congress in Belo Horizonte, Brazil, and the publication of an ARSP-Supplement, a book made up of a compilation of selected papers, Andrés Santacoloma Santacoloma and Gonzalo Villa Rosas have continued working on this project . The goal of this effort was to constitute a standing discussion group, i . e . a common place for those interested in the topics of objectivity and truth within the law and morals, to exchange ideas and perspectives, and to debate on these subject matters . The aim of the first workshop was to open a discussion concerning the convergence of beliefs and the acceptance of some kind of realism as necessary conditions for objectivity in practical reasoning, as well as the possibility of truth in law and morality . The perspectives presented at this Special Workshop put forward different but correlated topics . Some of them were the applicability of Bayesian models in order to make objective legal decisions; the search for truth in and through legal argumentation; the intelligible character of rules inside theories of interpretation, which guarantee the coherence and the integrity of law; the role of semiotic analysis in the construction of the objectivity of law; the procedural and contextual aspects of objectivity in legal reasoning; the role of objectivity in the distinction between the context of justification and the context of discovery; the truth problem of normative propositions and legal statements; and the incompatibility of non-factualism with the traditional account of validity and legality, as well as hermeneutics and the possibility of seeking truth in law . In order to have a new version of the workshop and to seek new perspectives in its direction, Santacoloma and Villa Rosas decided to invite André Ferreira Leite de Paula to work as co-chair . The Second Special Workshop was held at the Campus of the Georgetown University in Washington D . C ., USA on July 27th and 28th 2015 . Fourteen lecturers from around the world participated in it . This current compilation contains a selection of papers presented there, and it has been divided into four parts, which are organized according to a criterion of decreasing generally of treatment of the respective topic . The first part consists of contributions about objectivity and truth in law written by Matti Ilmari Niemi, Triantafyllos Gkouvas, Andrés Santacoloma Santacoloma, and Samuele Chivoli . Arguing that the objectivity of legal knowledge is a way to outline the relationship between the sentences of legal dogmatics and reality, and the nature of legal reasoning, Matti Ilmari Niemi discusses in his paper, “What is the Foundation of Objectivity in the Field of Law?,” a fundamental question: “is it possible to combine the perspective of a particular person in the world with an objective view of the same world?” From the very different conceptions of objectivity, Niemi considers three conceptions introduced by Marmor and a fourth conception presented by Rawls . The first and strongest conception can be called a metaphysical or ontological one: “objectivity means correspondence between a statement and its object in the discernible world .” The second and weaker conception can be called the semantic conception of objectivity: “a statement is objective if it is a statement about an object and it is subjective if it is about the subject making the statement .” The

8

Introduction

third conception can be called the logical conception of objectivity: “a statement is objective if it has a determinate truth-value .” According to this conception, truth refers to the justification of statements in the cognitive and external sense . An objective legal statement provides information about a society, that is, about the legal order of a society as a fact-based institution . Since all three conceptions that Marmor puts forth presuppose a very strong concept of truth, Niemi abandons them altogether . The fourth and weakest conception, which Niemi calls “the constructive conception of objectivity,” focuses on the criteria of objective reasoning, instead of presumed entities, objects or truth conditions . On these grounds, he argues that this conception is the only one consistent with the nature of legal reasoning . Triantafyllos Gkouvas analyzes in his paper, “Legal Truth Without Legal Facts: A Metaontological Argument,” the problem underlying the following question: “do legal utterances expressing true legal propositions necessitate the existence of legal facts as their truthmakers?” This problem, he believes, is not peculiar of law, but a local manifestation of a broader problem arising at the intersection of ontology and the truthmaker theory . Gkouvas’ aim is to provide a negative answer to the legal version of the question in the hope that the strategy can lend some support to those who are wary of inflationary approaches to the ontology of social artifacts, like law . Roughly, the idea is that whereas the preservation of the veridicality of discourse about ontologically superfluous entities remains a venerable task, it also has no implications for what a correct account of the truthmakers of claims featuring these entities should be like . This way of disassociating one’s ontological from one’s truthmaker commitments helps him to explain why quantificational claims in metaphysics are not “ipso facto” translatable into assertions of candidate truthmakers . For his purpose, Triantafyllos employs Ross Cameron’s version of the truthmaker theory of ontological commitment to defend the hypothesis that legal propositions can be made true by non-legal truthmakers, namely by facts that do not qualify as legal facts in any informative sense . In his account, the dispositional facts about what is enforceable in a given political community can assume the task of making assertions about the truth of the legal content . The latter facts do not make any essential reference to legal entities of any kind (objects, properties or relations) . This enterprise allows him to cast in a better light the legal relevance of metaontological concerns raised by philosophers like John Heil and Heather Dyke concerning the methodological pitfalls of doing ontology via studying language . In “Semantical Rules and the Theory of the Limit of the Wording: Seeking for Objectivity in Law,” Andrés Santacoloma Santacoloma faces the problem of objectivity in law and morals on the path of the philosophy of language . The possibility of the objective meaning of legal concepts raises crucial questions for law, such as the dependence of the meaning of a concept from the community and/or individuals and the possibility of an entire community being wrong in applying a concept . Further, on the one hand, there is tension that exists between the historical and social changeability of concepts, and, on the other hand, the possibility of meaning being fixed, and, therefore, objectively recognized . In the first part, the numerous questions that arise in this field are analyzed with regard to Matthias Klatt’s theory concerning the limitations of wording, as discussed in his book, Making the Law Explicit: The Normativity of Legal Argumentation (Theorie der Wortlautgrenze), which is based on Brandom’s theory of meaning . The possibility of separating semantic and

Introduction

9

legal interpretation settles one of the central disputes of the German debate between Matthias Klatt and Ulfrid Neumann: a debate that raises questions of viscosity and the risk of hypostatization of semantic problems in normative legal argumentation . After assessing Klatt’s roots in Brandom and Neumann’s objections against Klatt’s position, Andrés Santacoloma Santacoloma makes a compatibilization between viscosity and realism and argues for a return to a pragmaticist theory of meaning based on Peirce’s pragmatic maxim . Following the well-known notion of a conversational implicature introduced and elaborated by Paul Grice, Samuele Chivoli’s discusses in his paper, “The Speaker Dilemma in Legal Implicatures, Responses and Comparisons,” the notion of a legal implicature, i . e . a conversationally implicated proposition of law, and presents a speaker dilemma regarding legal implicatures . The dilemma concerns how the intentions of the members of a group of jointly acting agents should be aggregated if the group is to collectively communicate a given content and, at the same time, eliminate indeterminacy, since Law-making bodies, which are usually made up by more than one person, are not per se recognizable as having an intention by saying what they say . Putting them to work in different scenarios, which lead to conflicts of intentions, Chivoli introduces the voters (V-) and the supporters (S-) principles, in order to explain the functioning of collective intentions . His enterprise concerning the speaker dilemma is twofold . On the one hand, he outlines the differences and similarities that the speaker dilemma bears to the discursive dilemma famously generalized by List and Pettit, and, on the other hand, he evaluates three ways of responding to the puzzle by dissolving it and arguing that the dilemma resists all of these criticisms . The second part, with contributions from Bruce Anderson and Michael Shute, and André Ferreira Leite de Paula is dedicated to objectivity and its relation to legal reasoning . André Ferreira Leite de Paula’s main concern in “Revisiting Discovery and Justification in Legal Theory” is the clarification of the manifold possible versions that the distinction between discovery and justification can assume and their relations to one another in legal theory . The “standard version” of the distinction means, according to him, a gap between the empirical factors that influence legal decision-making and the final presentation of the judicial decision . This standard version is what he recognizes as the “epistemic dichotomy” between discovery and justification . After reconstructing the debate in the branch of the philosophy of science, De Paula argues that the “epistemic dichotomy” between discovery and justification is both cognitively necessary and normatively desirable . Since this is a dichotomy between effective and presented reasons, he recognizes this dichotomy between discovery and justification as a “normative” one, distinguishing two levels of criticism: a level of particular cases and the level of the legal system as a whole . Considering a distinction between, on the one hand, empirical factors that influence the emergence of legal claims (“discovery”), and, on the other hand, normative standards of decision and truth (“justification”), he stresses the necessity of maintaining a “dualism between genesis and validity,” especially with regard to allegedly “realist” research attitudes that engage in explanations of the emergence and of effects of legal claims by reference to pre-intentional, post-intentional and non-rational factors .

10

Introduction

In their paper entitled “The Need for a Better Understanding of Legal Reasoning and Feelings,” Bruce Anderson and Michael Shute focus on aspects of legal decision-making that have been typically neglected by traditional approaches of legal justification, namely the process of discovery . Legal decision-making is an intelligent and, at the same time, an emotional performance . In order to analyze the complex relationship between the psychological way of reaching decisions in actual judgment performances, the authors consider in their paper the functions and operations that feelings such as empathy, wonder, curiosity, anger, and mercy normally play in real cases . As their analysis reveals, feelings are indicators of values . Feelings play a central role in the dynamic of insights and judgments, in the processes of testing solutions in judgments of fact, and of reaching coherence in legal decision-making . After briefly reconstructing Amalia Amaya’s approach on coherence and emotions, Anderson and Shute provide an alternative account on coherence in legal reasoning . They do so by adding the necessity of reflective insights to be considered in the framework of a self-attentive analysis of decision-makers . The purpose of which is to understand their own mental process of decision-making by reaching self-awareness of the conditions of the possibility of adequate judging that go beyond rationality . Two contributions of this volume deal with objectivity in relation to Kelsen’s theory of law . Jing Zhao and Monika Zalewska wrote these contributions, and they constitute the third part of this volume . In the paper entitled “The Justification Problem in Hans Kelsen’s Theory of Legal Validity,” Jing Zhao addresses the question of whether Kelsen’s basic norm is really able to justify both the validity of a legal order and its practical normative force . The question arises precisely because of Kelsen’s selective attitude toward the reception of Kant’s philosophy . On the one hand, he has adopted Kant’s doctrine of “schematism” at the epistemological level as a condition for objective legal knowledge . This has enabled him to say that the basic norm really exists in the juridical consciousness as a result of simple analysis of actual juridical statements . On the other hand, Kelsen has not embraced Kant’s practical philosophy at the same degree as evidenced by his statement: “The doctrine of the unity of the will and other practical commitments were not adopted .” Kant himself has needed practical commitments in order to justify the normativity of the practical “ought” that is implied in the legal order . On the contrary, Kelsen’s basic norm assumes, at the same time, theoretical and practical justificatory functions . Jing Zhao argues against the possibility of making a claim of practical justification of “what should I do” on a merely epistemological basis and that this procedure leads unavoidably to a loss of the aspired scientific purity . In “Objectivity and Hans Kelsen’s Concept of Imputation,” Monika Zalewska is concerned with the complex correlation between objectivity and imputation . Imputation is a category that lies precisely in the field between cognition and construction, since it has a subject-dependent existence and, at the same time, it provides the condition of the possibility of objective knowledge . Imputation has, naturally, a history of development in legal theory, which can be analyzed in regard to the many phases of Hans Kelsen’s work . Here is where Zalewska’s analysis are focused: she informs us of the evolution of the concept of imputation in the constructivist, classical and skeptical phases of Kelsen’s thought and shows us how its meaning and function has changed by passing through the notions of central imputation (Ver-

Introduction

11

schreibung) and peripheral imputation (Zurechnung), and varying between implication and a form of the transcendental argument and between law and morals . Last but not least we have two contributions from Michele Saporiti and Gonzalo Villa Rosas . These two papers are gathered in the last chapter of our volume, which deals with issues concerning objectivity and truth in morals . In ‘‘Quid est veritas?: On Conscientious Objection and Truth”, Michele Saporiti aims at analyzing the relationship between conscientious objection and truth . The first approach to the problem is a dialectical reconstruction of the truth-based approach to conscientious objection . By means of this reconstruction, Saporiti explains the nature of conscientious objection as opposed to other instruments of resistance and, following Scarpelli, he argues for a metaphysical-axiological model in which the universalistic reference to truth is the key-element within this model of justification, where the maxim “Veritas non auctoritas facit ius,” through which he explains that the conscientious objector becomes a militant of “ius” against “lex,” seems to play a central role . He also considers a positive law-based version of the conscientious objection, which is held as an instrument to the realization of the plurality of our contemporary democracies . The two perspectives have important implications and moral premises in terms of theories of conscience, as he also explains while scrutinizing the two “logics” of conscientious objection from the legal viewpoint . In the end, he provides some hints concerning the goals of the truth-based and the positive law-based approaches to conscientious objection, and their effects on contemporary democratic societies . Even taking into account the differences on perspective and the possible consequences, Saporiti concludes and stresses in his paper that “a disobedient conscience still represents a useful chance for our constitutional legal systems to take moral conflicts seriously .” In his paper, Gonzalo Villa Rosas approaches our volume’s topic with a detailed assessment of the pertinency of Harman’s and B . Wong’s theories in order to raise a general criticism against moral relativism . According to the author, numerous criticisms raised against these theories reveal a structural feature of relativism, which makes it unsuitable to be a moral theory . If relativism can be characterized as the theory, which defends a relational conception of truth and which takes seriously the premise that for a given domain there can be faultless disagreements within that domain, then a consistent relativist account must always involve an observer’s perspective . However, it seems unquestionable that morality is a normative practice, and that the moral theory ought to take seriously and try to make sense of our moral practices . In this vein, we cannot attain a suitable understanding of morality without taking into account the perspective of those who regard it as a normative body that gives them reason for action . The editors would like to express their gratitude to the authors of this volume and the participants in the workshop for their helpful feedback and the wonderful discussions, which are now available as an ARSP-Supplement . André Ferreira Leite de Paula Andrés Santacoloma Santacoloma Gonzalo Villa Rosas

ParT I – objeCTIvITy

and

TruTh

In

law

Matti ilMari NieMi whaT

Is The

foundaTIon

of

objeCTIvITy

In The

fIeld

of

law?

InTroduCTIon Objectivity is a virtue of legal reasoning . We are used to demanding objectivity as a quality of acceptable legal knowledge . This is the case in legal dogmatics, in the work of judges as well as in other situations . Concepts of objectivity and subjectivity are normally used in a normative sense . Acceptable and accurate legal judgements are objective, while judgements accounted as subjective are not .1 Objectivity is a necessary condition of acceptable legal knowledge . On the other hand, objectivity is not a sufficient condition . Other virtues are required, too . Acceptable knowledge is logical, rational, coherent and adequate . In addition, truthfulness is often mentioned . I will, however, repudiate the applicability of the concept of truthfulness in the frames of legal knowledge . Instead, a qualified legal judgement is well justified . Here, the focus is on legal knowledge and reasoning . It is possible to talk about objectivity of law as well . It seems to be a different point of view . As a matter of fact, the cognitive dimension often constitutes the essential or, at least, one dimension of this viewpoint as well .2 Accordingly, both viewpoints can be included in the same discussion . There are many kinds of conceptions of the concept of objectivity . They are different in strength in the philosophical sense .3 For instance, according to a simple and strong conception, a judgement is objective if, and only if, it describes its object . If a judgement does not tell us about an object, it tells us about the writer or the speaker . In this case the judgement is subjective . Legal positivism is also committed to a strong conception of objectivity . I promote an anti-positivistic understanding of law, and therefore, my conception of objectivity differs from the positivistic one . I support a weak conception of objectivity .

1

2

3

In the frames ow my own approach, I use the term “judgement” instead of, for example, “statement” or “proposition” because of the nature of legal reasoning and knowledge adopted . More closely, see Chapter 5 . In the frames of the positivistic approach, the use of the term “statement“ is justified for the same reason . These terms are interchangeable but they have different senses depending on the understanding of the nature of knowledge . In the cases of Kramer (Matthew H . Kramer, Objectivity and the Rule of Law (Cambridge: Cambridge UP, 2007)) and Stavropoulos (Nicos Stavropoulos, Objectivity in Law (Oxford: Clarendon Press, 1996)) the cognitive point of view seems to the essential dimension . In the case of Greenawalt (Kent Greenawalt, Law and Objectivity (New York and Oxford: Oxford UP, 1992)) a cognitive viewpoint creates a dimension of the study . See Andrei Marmor, ‘Three Concepts of Objectivity’, in Law and Interpretation. Essays in Legal Philosophy, ed . Andrei Marmor (Oxford: Clarendon Press, 1995), 177–201 and Matti Ilmari Niemi, ‘Objective Legal Reasoning – Objectivity without Objects’, in Objectivity in Law and Legal Reasoning (Oxford and Portland, Oregon: Hart Publishing, 2013) ed . Jaakko Husa and Mark van Hoecke, 69–84, at 73 .

16

Matti Ilmari Niemi

As far as objectivity of legal knowledge is concerned, the foundation of objectivity refers to the understanding the nature of legal knowledge . The difference on the level of objectivity is caused by and can be traced back to the differences in understanding the nature of law and legal knowledge . Therefore, I will analyze and criticize both the positivistic conception of legal knowledge and objectivity . With the help of this analysis and criticism I will introduce and defend the weak conception of objectivity . ParT one: The PosITIvIsTIC aPProaCh Legal positivism is committed to a fact-based understanding of law . More precisely, law is treated as social facts . Legal rules exist in the form of social facts . Because legal rules are social facts, they differ from moral evaluations . They are different in quality . According to Kelsen, a legal rule comes into existence in a legislative act .4 For him, a legal rule as an ought-prescription is the meaning of a rule-issuing fact .5 On the other hand, legal reality furnished with the help of legal rules is an independent part of reality . It cannot be reduced to other parts of reality . Accordingly, legal knowledge cannot be reduced to psychology, sociology or ethics . In addition, there is a sharp distinction between legal knowledge and nature, that is, between legal dogmatics and natural sciences .6 Kelsen’s positivism is a non-naturalistic version of legal positivism .7 Hart treated law as a fact-based phenomenon as well . For him, law is a part of social reality .8 On the other hand, not all legal rules have a similar ontological status . Rather, there is a necessary social foundation of each legal system . This foundation appears in the form of the rule of recognition of each legal system . A rule of recognition is, on the one hand, a normative and legal rule, and on the other hand, a part of social reality . The rule of recognition has both epistemological and ontological dimensions . First, it is the criteria of valid law . Second, it shows the nature and essence of law . It is possible to indicate and know all the valid rules of a legal system by means of the rule of recognition . At the same time, the rule of recognition appears as the factual foundation of law, that is, a legal system and the separation criterion distinguishing law from morality . The rule of recognition manifests itself in the way in which judges and other officials identify valid law as discernible factual behaviour . It is a matter of factual behaviour of officials, not moral evaluations . In this sense, the rule of recognition is both a rule and a fact (an existing rule) .9 4 5 6 7 8 9

Hans Kelsen, Pure Theory of Law (first publ . 1960), trans . from the second edition Max Knight (Berkeley: University of California Press, 1970), at 193 . Ibid, at 5 . Ibid, at . 1 and 79 . Stanley L. Paulson, ‘The Very Idea of Legal Positivism’, Revista Brasileira de Estudos politicos 2011, 139–65, http://www .pos .direito .ufmg .br/rbep/102139166 .pdf, at . 155 . See H . L . A . Hart, The Concept of Law, second edition, ed . Penelope A . Bullock and Joseph Raz, (Oxford: Clarendon Press, 1994), at . vi and 201 . Ibid, at . 50, 104, 109, 116 and 239 .

What is the Foundation of Objectivity in the Field of Law?

17

There is a naturalistic dimension in Hart’s theory . Legal validity is reduced to a rule of recognition, and the rule of recognition as factual behaviour and beliefs by officials is a part of discernible social reality .10 ParT Two: a PosITIvIsTIC ConCePTIon

of

objeCTIvITy

Hart’s theory of law is the point of departure of his followers . Hart’s theory creates the foundation of the positivistic concept of objectivity as well . Kramer introduces a positivistic and Hartian analysis and conception of objectivity . According to Kramer, the existence of law will depend on the decision and endeavours of legal officials . They contain the beliefs and attitudes and dispositions of conscious agents, and the continued existence of laws is mind-independent in the weak sense . On the one hand, the continued existence of laws is not dependent on the mental activity of everyone but on the mental activity of certain persons, judges and other legal officials . On the other hand, the continued existence of laws is not independent of the mental activity of any one .11 The crucial point seems to be that the law is independent of citizens’ beliefs and attitudes . In the frames of a legal system, the content of law depends on the beliefs and performance of judges and other legal officials, but it appears to be a given matter from the viewpoint of citizens . This is the foundation of the objective social existence of both legal rules and a legal system . The crucial point seems to be that the law appears independent of citizens’ beliefs and attitudes . This is the foundation of the objective social existence of both legal rules and legal system . Mind-independence seems to be the main element of the ontological dimension of objectivity . The two other dimensions are epistemic and semantic dimensions .12 The social existence of legal rules is the ultimate foundation of objectivity, and hence, the ontological dimension is the crucial dimension of objectivity in Kramer’s approach . For that reason, it is possible to talk about correct answers to legal questions . This is the second element of the ontological dimension of objectivity . Correct answers are objective answers . Correctness and objectivity depend on the leeway left to legal officials . The more determined decisions by officials, the more objective they are .13 The third element is uniform applicability of legal rules, that is, they are applied in the same way to everyone in a legal system .14 Transindividual discernibility and impartiality creates the epistemic dimension of objectivity .15 This dimension is not, however, important or interesting here .

10 11 12 13 14 15

See Joseph Raz, Two Views of the Nature of the Theory of Law . A Partial Comparison, in Hart’s Postscript, ed . Jules Coleman (Oxford: Oxford UP, 2001), at . 5 . Kramer, Objectivity and the Rule of Law (n . 2), at . 6–8 . Ibid, at . 2 . Ibid ., at . 14 . Ibid, at . 38 . Ibid, at . 46 and 53 .

18

Matti Ilmari Niemi

Truth-aptitude creates the semantic dimension of objectivity .16 Statements of law have truth-values, that is, they are true or untrue .17 This is natural because Kramer presupposes the existence of legal rules as social facts . A true legal statement describes a valid legal rule, that is, an existent fact . Basically, a true legal statement describes the behaviour and beliefs of judges and other legal officials . If there are many legal statements equipped with truth-value semantical objectivity reigns in a legal system . The connection between conventional legal statements and the behaviour and beliefs of judges and other officials is, however, not direct . The social reality is met with the help of the rule of recognition as a mediating factor . The validity and existence of other kinds of legal rules cannot be equated with the behaviour of beliefs . Other rules supervene the rule of recognition and, at the same time, the specific branch of social reality .18 Accordingly, legal validity and social reality cannot be equated in a straightforward way as legal realists do . The truthfulness of legal sentences depends on and is basically determined by social reality (the external reality), but does not entail a straight correspondence relation with the discernible social reality, that is, with the behaviour and beliefs of officials . The existence of conventional legal rules carries a special type of social reality basically dependent on discernible facts . Therefore, knowledge of legal facts cannot be equated with knowledge of any discernible facts or those acquired with the help of empirical means . Rather, positivistic legal method contains the means to describe and understand the objects of factual recognition, that is, the recognized and official sources of law in a specific legal sense (in the internal sense) . Legal rules are defined as a part of social reality but without any specific ontological definition . The “legal reality” seems to be a specific normative dimension of a certain social practice, that is, the practice of judges and other officers . The existence of rules is explained by the membership of a legal system as an official system in this sense . This approach does not entail correspondence relation between statements and their objects in strong or conventional sense . Nevertheless, some kind of correspondence has to be presumed . ParT Three: The naTure

of The

PosITIvIsTIC ConCePTIon

of

objeCTIvITy

The Hartian positivistic notion of objectivity is not the strongest one .19 According to the strongest and simple conception, objectivity means congruence between a statement and its perceivable object . A statement is objective if, and only if, it describes its object as a part of the discernible world . If a statement does not tell us about a discernible object, it tells us about the writer or the speaker . In this case, the 16 17 18 19

Ibid, at . 68 and 73 . Kramer uses the term “statement” because of his understanding of the nature of legal knowledge . Legal knowledge appears in the propositional sense . Hence, the term “proposition” could be used as well . Jules Coleman, ‘Incorporationism, Conventionality, and the Practical Difference Thesis’, Legal Theory, 4 (1998), 381–425, at . 397 . See Niemi, Objective Legal Reasoning – Objectivity without Objects (n . 3), at . 73 .

What is the Foundation of Objectivity in the Field of Law?

19

statement is subjective . The strongest conception presumes philosophical realism and the correspondence theory of truth in the strong and conventional sense . The Hartian conception of objectivity is a representative of a weaker version of objectivity . According to this, a statement is objective if and only if it is a statement about an object . The crucial matter is the grammatical sense of a statement . In order to be objective, a statement has to give information about a defined object in a world other than that in the speaker’s mind . On the other hand, no specific definition of ontology or truth is needed . However, even the weaker positivistic notion of objectivity proves to be too strong . The reason for this is the following . All positivistic approaches are founded on the fact-based conception of law . The law as a whole, as well as its parts, that is, legal rules, is defined as social facts . Therefore, knowledge of the valid law has to be understood in the sense of a correspondence relation between statements and their objects in the reality, that is, social facts in one sense or another . My claim is that no reality or any kinds of facts need to be presumed as the objects of legal knowledge . Moreover, those kinds of objects should not be presumed because they lead to a misleading understanding of knowledge . ParT four: CrITICIsM

of The

PosITIvIsTIC onTology

It is natural to presume that defined objects of knowledge exist . In this way, knowledge is presumed to be information about something, about reality, that is, about the world . If I talk about something I presume the existence of the thing I am talking about, and if I know something, there must be something which I know about . Hence, it seems to be reasonable to presume defined objects of knowledge .20 This is the foundation of philosophical realism . This seems to be the motivation of legal positivism, as well . According to positivistic understanding, legal rules as social facts come into existence by means of certain official rule-establishing procedures . These factual procedures are the formal criteria of validity recognized by the rule of recognition . Valid rules are identified with the help of certain forms of rule-creation . Rules exist or they do not exist because rule-creating facts exist or do not exist, and the statements describing them are true or untrue, but there are no other options available . The logic of facts and truthfulness is binary, and hence, the logic of validity is binary . According to Hart, legal rules are used as reasons in legal reasoning and interpretation .21 In the frames of Hartian approach, these rules are the contents of the sources of law identified with the help of the rule of recognition . I call them formal reasons, because they are identified with the help of formal criteria, that is, the procedures in which the rules are created . Here, I will exploit the famous and powerful critique of positivism by Dworkin . I will, however, apply it in a different way . According to Dworkin, the positivistic 20 21

Plato, Parmenides (On Ideas) . English edition, e . g . The Perseus Catalog, Parmenides, 132 b–c . http:// www .perseus .tufts .edu/hopper/text?doc=Perseus%3Atext%3A1999 .01 .0174 %3Atext%3DParm . Hart, The Concept of Law (n . 8), at . 84, 90 and 104 .

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conception of law cannot be durable, because it does not recognize principles .22 Principles of justice with or without any connection to legal procedures, that is, formal criteria, are indeed employed in the practices of courts . As a matter of fact, they are used in all legal reasoning . They are substantial reasons . The employment of substantial reasons is necessary because legislation and precedents are imperfect, incomplete and insufficient means of regulation . Often, substantial reasons are embodiments of principles of justice and values, but there are other kinds of substantial reasons as well . Therefore, legal reasoning is the union and co-operation of formal and substantial reasons . Certain legal norms are applied, on the one hand, because they are products of certain rule-creating procedures and, on the other hand, because they lead to just, fair and reasonable decisions or outcomes of interpretation . It is even possible to deviate from formally valid rules with the help of substantial reasons . An exception to an applicable section of a statute is possible, for instance, in the case of unreasonableness . The effect of justice and values as well as the use of substantial reasons renders questionable the status of legal rules as social facts . Here we meet two crucial questions . First, are there two different kinds of law, one as formally valid legal rules and social facts and another in the form of evaluative substantial reasons? If the answer is positive, the law cannot be defined as social facts . In addition, there would be two kinds of law with two different ontological qualities . This is a problematic ontology . Second, how can principles or other substantial reasons affect and modify the content of law if the law is defined as social facts? If a legal rule is an existing social fact, as a part of existing reality, how is it possible to shake up its existence and modify it on the grounds of values? Valuing an existing fact cannot change it . Evaluation is a human mental outlook occurring outside of the facts and outside of the “world” . The facts can be treated as good or bad but they remain as they are . Legal rules cannot be seen as social facts or as parts of existing reality in a durable way if they can be modified, bypassed or ignored in the form of exceptions . Accordingly, the law cannot be defined as social or other kinds of facts if the facts are not sufficient constituents of law . This seems to be the case . If the law is not defined as facts, there is no use for the notion of truthfulness either . There is no relation between facts and judgements as the foundation of truthfulness . Therefore, the truthfulness of the judgements is not determined by the facts . Even if legal rules are treated as social facts, the usefulness of the concept of truth proves to be problematic . The ideas of fact and truth are founded on the presumption that truthfulness of statements is determined by the states of affairs in reality . The truthfulness of statements is verified with the help of observation of reality . If there is no discernible legal reality, we cannot determine the truthfulness of statements with the help of verification . On the contrary, the statements determine the presumed existence of the states of affairs . However, in this case, the presumed legal facts are redundant . Moreover, the whole understanding of legal knowledge proves to be misleading .

22

Ronald Dworkin, Taking Rights Seriously (Cambridge, Massachusetts: Harvard University Press, 1977), at . 46 .

What is the Foundation of Objectivity in the Field of Law?

21

It is easy to acknowledge that the aspiration of conventional legal judgements is not to describe anything “out there”, in reality, or in any other sense . They do not state or assert in the proper sense . Instead, the sense of legal judgements is to justify conclusions with the help of formal and substantial reasons . They are judgements in the true sense . In the case of legal knowledge, the resulting judgements are conclusions arrived at by means of justification . Justification refers to formal and substantial reasons as premises of concluding and reasoning . Instead of verification, the correctness of the conclusions is checked and proved to be right by the adequacy and power of different legal premises . They contain both formal and substantial reasons . These reasons have the same quality and the same way of effect but they have different force and amount of effect in different situations . No legal facts or any kind of legal reality is needed . A legal judgement, more broadly, legal knowledge, is not any kind of description of facts or “legal reality” . The uniform ontological status makes it possible to master the whole field of legal arguments and the relations between the arguments in a uniform way . Accordingly, there is no need or room for the concepts of facts or truth in legal reasoning . As a matter of fact, neither of them is employed or mentioned in conventional legal reasoning . Instead, concepts of justification and validity are used . This is not a coincidence . Justification and validity do not refer to descriptions of facts or truthfulness as a relation between statements and facts but to correct and justified legal reasoning and interpretation as discourse . Qualified and correct legal reasoning is objective legal reasoning . Therefore, objectivity in the field of law is a quality of legal reasoning, that is, a quality of advanced discourse . ParT fIve: The weaK ConCePTIon

of

objeCTIvITy adoPTed

In conclusion, a well-functioning conception of objectivity in the field of law has to be weaker than the positivistic conception . According to this, objectivity is a quality of legal discourse and reasoning . I find the constructive conception of objectivity introduced by Rawls fruitful here .23 Rawls’ conception focuses our attention on the criteria of objective reasoning, on arguments and conclusions and on their justification instead of on facts or other objects of knowledge . Here, the conception of objectivity without objects is adopted . Objectivity is not an either/or matter . Reasoning and judgements can be more or less objective and more or less subjective . There are different degrees of objectivity and subjectivity . Reasoning and judgements can be more or less successful and more or less convincing and credible . Why do we need and why do we demand objectivity? Objectivity is a way to secure producing trustworthy and correct information of law . Only objective judgements can provide reliable information on valid law . We cannot check the correctness of legal information with the help of any kind of verification methods . We can 23

John Rawls, Political Liberalism (New York: Columbia UP, 1993), at . 110 and 115 .

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only control the correctness of reasoning and the validity and power of premises . In this respect, legal information is vulnerable to corruption, malpractice and abuse . On the other hand, this feature of legal knowledge emphasizes the importance of objectivity . Demand for objectivity plays a crucial role in securing the correctness and reliability of legal knowledge . Demand for objectivity is a way to secure ideal epistemic conditions of legal reasoning .24 What are the demands and criteria of objective legal reasoning, especially legal interpretation as the form of legal knowledge? How can we recognize objective and subjective judgements and distinguish them from each other? Some guidelines can be given . A judgement has to be made at the general level and free from particular interests in order to be objective . Objective discourse is common discourse, not individual points of view .25 In other words, we have to be convinced that a judgement is about the subject matter, that is, about the valid law and not personal opinions . An objective judgement is free from personal or group interests . In the frames of valid law, we are committed to the official sources of law, statutes and precedents . Applicable statutes and precedents cannot be ignored or omitted in objective legal reasoning . At first hand, valid law is indicated with the help of official sources . For that reason, we are not, however, committed to the positivistic understanding of law . It is not necessary to explain law as the will of a lawgiver, as Kelsen did, or, basically, the factual behavior of officials, as Hart did .26 The crucial role of statutes and precedents can be explained in another way . Here, statutes and precedents are treated as the primary appearance of justice of the society whose legal order is in focus . The primary function of legislation and precedents is to indicate the justice of the society . The aspiration of legislation, above all, is to confirm the adopted interpretation and detailed application of justice . Formally valid law indicates the justice of the society at a certain moment .27 We have already noticed that legislation and precedents are imperfect, incomplete and insufficient means in realizing justice . Even applicable legislation and precedents have to be interpreted and applied . Here, the principles of justice and other substantial reasons are necessary in order to reach justified interpretations and applications . Objective interpretation committed to realizing justice is the only way to understand and apply legislation and precedents in a satisfactory way . I take it for granted that the best possible interpretations and applications are the objects of objective legal reasoning .28 This approach contains an explanation for the possibility of exceptions, mentioned before, as well . The detailed legislation or precedents cannot always realize 24 25 26 27

28

See Jules Coleman and Brian Leiter, ‘Determinacy, Objectivity, and Authority’, in Law and Interpretation . Essays in Legal Philosophy, ed . Andrei Marmor (Oxford: Clarendon Press, 1997), at . 263 and 272 . See Robert Alexy, A Theory of Legal Argumentation, (Oxford: Oxford UP, 1989), at . 187 . See Kelsen, Pure Theory of Law (n . 4), at . 1 and 75 and Hart, see the footnote 9 . According to this dimension of the adopted interpretation of objectivity, objective values of a society are presumed . Principles of justice are embodiments of values and, therefore, the use of principles presumes the objective nature of values . Otherwise, principles could not function as objective legal reasons . See Niemi, Objective Legal Reasoning – Objectivity without Objects (n . 3), at . 79 . See Ronald Dworkin, Law’s Empire (London: Fontana Press, 1986), at . 338, 379 and 411 .

What is the Foundation of Objectivity in the Field of Law?

23

justice, that is, the target of the legislation or precedents in a perfect way . Therefore, it is possible to make exceptions in cases where a more justified conclusion or judgement can be reached with the help of exception . As a matter of fact, the exceptions realize the goals of the bypassed section of a statute or precedent . In conclusion, objective interpretation of the valid law realizes justice of a society . It is possible to analyze the adopted conception of objectivity in details . Inter-subjectivity, impersonal approach and impartiality are dimensions of objectivity .29 ConCludIng reMarK With the help of criticism I have tried to show the misleading nature of the positivistic understanding of legal knowledge . Basically, it is a question of the nature of law which can be traced back to the fundamental discussion between positivism and anti-positivism . Here, anti-positivistic conception of law is presumed, and accordingly, anti-positivistic understanding of the nature of legal knowledge as well as objectivity is adopted . I promote a weak conception of objectivity . The anti-positivistic approach adopted appears in the relation between law and morality . There is a necessary connection between law and morality . It appears in three ways . First, official legal sources, especially statutes and precedents, which are the primary appearances of the valid law, are treated as a manifestation of justice . Second, legal interpretation and application is a combination of formal and substantial reasons . Third, it is possible to deviate from an applicable rule provided by an official source with the help of substantial reasons . As a rule, valid law is indicated with the help of official sources but exceptions are possible . Knowledge of law does not consist of descriptions but justifications containing formal and substantial reasons . Knowing means reasoning . In other words, knowing is a process . Therefore, objectivity of knowledge is a quality of reasoning . Basically, objectivity is a positive feature of discourse . Demand for objectivity means demand for qualified legal reasoning . In short, qualified legal reasoning is objective reasoning .

29

More closely, see Niemi, Objective Legal Reasoning – Objectivity without Objects (n . 3), at . 81 .

triaNtafyllos Gkouvas legal TruTh wIThouT legal faCTs: a MeTaonTologICal arguMenT InTroduCTIon There is no royal way from semantics to ontology . Although in its generality this byword can be used as a term of censure against those of an anti-metaphysical sentiment this essay aspires to demonstrate that law could be a fitting instance of this truism . Some would say that this claim is too strong to qualify for a premise of a modest argument . There is no denial that language is law’s primary vehicle of materialization . In this respect we shouldn’t so readily dismiss the thought that language seems to point the way to law’s reality . To what extent can the truth conditions of legal statements diverge from what actually makes them true? One can invoke numerous platitudes in favor of conditioning the structure of the truthmakers of legal propositions on their metalinguistic form . If there is anything self-evident about the law it is the fact that jurisprudential claims about what grounds legal facts always take on board predications of legal content . One need only accept the further premise that legal predications have propositional rather than expressivist content and there naturally emerges the metaphysical question of what accounts for the truth of legal propositions . The punchline of my argument will be that behind the metaphysical centrality of predications of legal content lies an unarticulated but pervasive semanticist bias, namely that we can somehow draw conclusions about the structure of reality from the logical regimentation of its linguistic representation . What I intend to convey by using the term metaphysical centrality is the misguided – as I intend to argue – assumption that the correspondence of legal truth to reality necessarily consists in its correspondence to legal facts . At first approximation, the space of argument defended here seems quite narrow as standard appeals to legal facts as the truthmakers of legal propositions already assume that the layer separating the logical regimentation of language from how reality looks like is too thin to merit separate scrutiny . But this is precisely the idea that is challenged without depriving the discussion the essay purports to spark from a platform of shared intuitions . Having assumed, for the sake of the argument, that the fact that for every legal proposition there is something in the world that makes it true is a premise shared by all legal philosophers but those of an expressivist inclination, the next step is to suggest that an unpronounced, primitive division of opinion occurs as early as one ventures to question that our commitment to the possibility of legal truth logically entails our commitment to entities of a distinctly legal kind . The alternative idea that comes out of the rejection of this entailment is that at least part of what could explain the slow pace at which the positivism-antipositivism debate is moving beyond the traditional conceptual jargon of 20th century analytic jurisprudence is the fact that we may have been blind to the possibility that our quest for the ultimate grounds of law could have been taking place under the veil of a narrow understanding of the available options with regard to what could legally exist .

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That being said, the strategy I will pursue in this essay will be considerably less flamboyant than what the title suggests . Its structure consists of five parts . In the first part I will try to show that the association of legal propositions with an account of truthmaking is a fairly common assumption among legal philosophers advocating remarkably different approaches to the question of what makes legal content true . In the second part I shall briefly explain how a theory of legal truthmakers maps onto a definitional theory of legal truth . In the third part I shall try to explain how dominant cognitivist accounts of legal content (positivist and antipositivist alike) are tacitly approving of a “linguistic” understanding of ontological commitment in the sense that they are inclined to infer the existence of legal facts as the truthmakers of legal propositions from the truth conditions of legal propositions . For illustrative purposes the jurisprudential application of this thesis will be termed “legal propositionalism” . In the fourth part I shall briefly sketch a conceptualist or anti-metaphysical, so to speak, variant of legal propositionalism that dispenses with the implications of treating legal facts as extra-propositional entities . In the fifth part of this essay, I shall offer a sketch of an alternative route for explaining how legal propositions can be made true by facts that do not feature distinctly legal entities among their constituents . More precisely, I shall argue that instead of shouldering an ontological commitment to facts about the existence of legal norms or facts about the obtaining of legal obligations or interpretive facts about the application of legal principles we should consider the option of positing non-legal, dispositional facts as the immediate truthmakers of legal propositions . In the concluding remark I shall provide brief assessment of how the acceptance of the ontological dispensability of legal facts can facilitate the explanatory work of positivist and antipositivist methodologies .

ParT one: legal TruThMaKers In this section, I shall argue that the first-order counterpart of a metaontological commitment to the derivation of legal facts from the representational content of legal statements is a fairly thin account of legal truthmakers . In the present context, a legal truthmaker will stand for whichever fact a jurisprudential theory treats as eligible for making a legal proposition true . Making my talk of a legal truthmaker more explicit is the first substantive task that this exposition aspires to deliver . This will require more space than what may have been implied by the ease of my association of legal metaphysics with topics in general metaphysics . As a first remark I should repeat that my allusion to the possibility of demarcating a distinct domain of purely metaphysical questions about law is far from being a common platitude among legal philosophers . To be frank it is a very strong premise to begin with! Consequently, bringing my methodological proposal to fruition will have to wait until I have adduced enough evidence in support of the idea that notions like propositions, truthmakers and grounds are already inscribed in our jurisprudential vocabulary . In what follows I want to suggest that we may plausibly track the conceptual origins of familiar jurisprudential arguments about the relation of legal truth to reality in a general theory of truthmaking . Abstracting from its many theoretical variants truthmaking is an explanatory relation of ontological dependence which is ac-

Legal Truth Without Legal Facts: A Metaontological Argument

27

tually more of a family of non-causal relations between entities . Being unable to adjudicate the fervent debate on how to demarcate the truthmaking relation vis-à-vis other types of relations of ontological dependence – for instance, the relations of constitution, determination and realization–I will take on board Jonathan Schaffer’s modest account of how propositions enter into relations of ontological dependence to their truthmakers .1 Schaffer regards truthmaking as an instance of the broader ontological relation of grounding whilst avoiding the pitfalls of modalized approaches to truthmaking explanations .2 In an informal language, the understanding of truthmaking in terms of grounding is formulated by the following proposition: For entities a,b,c… to make P true is for the truth of P to be grounded in the existence of a, b,c… But what kind of ontological dependence is grounding? A particular trait of this relation is that it is widely taken to hold only between propositions, facts or states of affairs, thus it is particularly suited for legal content provided that we accept the premise that the bearers of legal content are propositions and, say, not mental states expressing approval or acceptance . Moreover, grounding like any relation of ontological dependence is irreflexive, that is, nothing is allowed to be grounded in itself, and asymmetric, that is, if x makes y true, then it is not the case that y makes x true . Another feature of grounding relations is their hyperintensionality such that the mere fact that every world where there is H20 is a world where 2 + 2 = 4 is true does entail that the latter truth is grounded in the existence of H20 . Put differently, hyperintensional relations are such that they hold asymmetrically between their relata both of which necessitate each other . One need not subscribe to the arguments brought forward by proponents of legal realism in order to be entitled to feel suspicious about the cogency of adopting the vocabulary of truthmaking for the purpose of describing the controversy between positivist and antipositivist accounts of legal content . Joseph Raz has been an optimist about the prospects of gaining insight into the concept(s) of law as it is being used within parochial societal contexts, but he has been rather reluctant to extend his faith to the possibility of discovering law’s essential or transworld properties beyond and above our mundane understanding of past or extant legal systems . It would be no exaggeration to say that the popularity of conceptual analysis as a methodological tool for dealing with foundational questions about law at least partly reflects a tacit aversion to engaging in ‘immodest metaphysics’ . Even though it is a matter of debate whether conceptual analysis in law amounts at least to a modest metaphysics or conversely supplants any metaphysical quest, I should be

1

2

On Schaffer’s account, ‘truthmaking is the claim that the truth of propositions is not a fundamental feature of reality, and as such requires grounding [emphasis added] in what is fundamental’ (see Jonathan Schaffer, ‘Truthmaker Commitments’, Philosophical Studies 141 (1) (2008), 7–19, at 10 . In the contemporary literature the modal understanding of truthmakers is usually dubbed ‘truthmaker necessitarianism’ according to which the existence of a truthmaker necessitates the truth of the proposition it makes true; for an overview of the debate see Ross P . Cameron, ‘Truthmakers and Modality’, Synthese 164 (2) (2008), 261–80 .

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willing to recognize that talk of legal metaphysics is far from being an established element of the common jurisprudential parlance . Without downplaying the dearth of direct appeals to the notion truthmaking I would like to offer some evidence in support of my intuition that irrespective of the overtness of one’s engagement in metaphysical arguments in law the postulation of legal facts as the truthmakers of legal propositions is premised on a metaphysically nuanced conception of the relation of legal propositions to the world . For instance, standard defenses of legal positivism – both in its exclusivist and its inclusivist parsing – readily confirm the propositional nature of legal content . On Scott Shapiro’s plan positivism there is no hesitation to admit that there is such a thing as true propositions of law such as ‘that the United States Constitution determines the authority structure of the federal government and is legally binding on all officials’ and instead of challenging the propositional nature of this statement he declares that his ‘aim will be to figure out why this proposition is true: What makes it the case that the United States Constitution is law in the United States?’ .3 In the anti-positivist camp Ronald Dworkin’s seminal distinction between propositions of law and the grounds of law is presumably the most original depiction of the centrality of legal propositions and their grounding . Likewise, Mark Greenberg’s anti-positivist metaphysical task regards ‘the full metaphysical explanation of the content of the law (of why certain legal propositions are true)’ which is to say that the claim that ‘there is a substantial body of determinate legal content [means that] there are many true legal propositions (in the particular legal system)’ .4 What actually elevates an apparently impenetrable wall between positivist and anti-positivist theories of law is not their questioning of the possibility of legal facts as the truthmakers of legal propositions but their starkly opposing conception of what grounds legal facts themselves . Put in different terms, among legal philosophers of a cognitivist conviction there seems to be ample room for convergence on the “fact” that there is such a thing as legal propositions or truth-evaluable legal content and that the best way to capture the relation of legal propositions to their truth status is by appeal to the notion of legal facts . The rest follows as a sequel to a story already known, namely, that the onerous task for the legal philosopher begins at the moment when legal facts call for their grounding . ParT Two: froM

a

Theory

of

TruTh

To a

Theory

of

TruThMaKIng

Fairness in argument obliges me to be more precise with regard to which implications a theory of legal truthmakers has for a theory of legal truth . Whereas the two projects are not directly related they certainly stand in alignment with each other . In what follows I would like to suggest that treating legal facts as the truthmakers of legal propositions need not be more committing than what is entailed by an Equivalence Principle of the form ⌈ ⌈ P ⌉ is true if and only if P ⌉ 3 4

See Scott Shapiro, ‘Law, Plans, and Practical Reason’, Legal Theory 8 (2002), 387–441, at 387 . Mark Greenberg, ‘How Facts Make Law’, Legal Theory, 10 (3) (2004), 157–98, at 159 and 162 respectively .

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The above principle is stronger than a material Tarskian biconditional in the sense that it postulates the identity of its two sides either in terms of their meanings or in terms of the speech acts performed with them . In the spirit of preserving the relation of legal truthmakers to legal propositions I shall adopt a propositionalist version of deflationism about truth5 such that instances of the equivalence schema are about propositions rather than sentences . On this deflationist variant P and the proposition [that P is true] trivially, necessarily and a priori entail each other .6 Hopefully I do not believe that I have to adduce extensive evidence in support of my first substantive premise as it is plausible enough to assume that I can have the majority of legal philosophers of a cognitivist persuasion on my side at least with regard to the espousal of an equivalence principle of the form

is true iff P . It will be a further question whether the Tarskian metalanguage can be Ontologese – that is to say, an ontologically authoritative metalanguage whose terms all carve perfectly at the world’s joints – or simply a logical regimentation of English . In light of these minimal commitments it is important to notice that we should not infer therefrom that truthmaking theories are not a priori compatible with more robust accounts of truth such as the family of views described as correspondence theories . The only substantive exclusion that this minimal account of truth supports regards any version of the identity theory of truth according to which the truth of truth-bearers (e . g . propositions) is identical to a truthmaker (e . g . facts or states of affairs) . An identity theory of legal truth is an available specification of one’s legitimate espousal of an identity theory of truth simpliciter such that the truth of a legal proposition consists in its identity with a legal fact . On this approach true legal propositions and legal facts are one and the same kind of entity!7 Whereas this is a substan5

6

7

It is a further question whether the endorsement of a deflationist account of legal truth is compatible with a truth-conditional account of the meaning of legal utterances . There are sonorous objections to combining a deflationist theory of truth with a truth-conditional account of meaning on the grounds that, instead of remaining silent about the deflationary character of meaning, deflationists are engaged in a circular attempt to explain truth in terms of meaning . For instance, on the propositionalist version of deflationism, the proposition that snow is white is true iff it means that snow is white, which is patently trivial as both sides of the equivalence schema feature propositions . This poses a dilemma in the sense that on pain of circularity deflationism cannot be combined with truth-conditional theories of meaning that invoke the notion of truth to explain meaning . A truth-conditional theory of meaning will be an account of what makes it the case that sentences of a natural language express particular propositions but, given that on the propositionalist version of deflationism the equivalence schema features propositions on both its sides, it is implausible to say that deflationism has also legitimate semantic aspirations . This is not a problem for someone who holds a propositionalist view of meaning precisely because in this case the meaning of a sentence is not exhausted by its truth conditions . For this interpretation of the propositional truth predicate see Scott Soames, ‘Understanding Deflationism’, Philosophical Perspectives, 17 (1) (2003), 369–383 . Soames remarks that on a deflationary account of truth defining the truth predicate is not an indispensable task . As he notes, ‘[i]t is no part of deflationism that the truth predicate must be definable . Consequently, it would be expecting too much to demand that deflationists provide a synonym for the truth predicate, or identified the proposition expressed by the sentence the proposition that S is true with the proposition expressed by some other sentence in which the word true doesn’t occur . Some deflationists may think that truth can be defined, but not all do, and it is not an essential part of the deflationary position .’ (ibid, at 372) . For the view that truthmaking theories are compatible with a deflationist account of truth see David Lewis, ‘Truthmaking and Difference-Making’, Noûs 35 (4) (2001), 602–15, at 603–5

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tive constraint on what individuates a theory as a first-order theory of legal truthmaking it imposes no constraint on what individuates a metaontological theory as an instance of legal propositionalism . As I plan to explain further downstream (Part IV), there is conceptual space for accommodating a variant of legal propositionalism that does not treat legal facts as the extra-propositional entities performing the task of making legal propositions true . ParT Three: legal ProPosITIonalIsM In this part I will use the term ‘legal propositionalism’ in order to refer to what I take to be an accurate reconstruction of a latent metajurisprudential view on what follows the admission of the possibility of truthmakers for legal propositions . This is roughly the view that the truthmakers of legal propositions must be structurally isomorphic to the truth-conditional content of the latter .8 As I hope to be able to demonstrate, venturing to describe such a comprehensive position in legal metaphysics as propositionalist is not driven by the ambition to add more complexity to the extant jurisprudential jargon . At this point I would even dare to claim that part, at least, of what explains the reluctance of non-legal philosophers to enlist current debates about the nature of law as a source of potentially formative contributions to the broader metaphysical discourse is precisely the fact that the debate in legal metaphysics is heavily dependent on an unnecessarily constraining terminology that either has no direct semantic counterparts in other fields of philosophical inquiry or has a radically different meaning than what is standardly associated with the use of similar terms in other domains . In light of this caveat about inventing new terms my line of defense will be that despite the lack of a direct terminological counterpart in other philosophical domains the use of the term ‘legal propositionalism’ aims to highlight the neglected affinity of debates in legal metaphysics with contemporary issues in general metaphysics . A point of caution is in order: by its very essence as a (reconstructed) metajurisprudential view of how to argue about the type of ontological commitment a cognitivist legal philosopher should be willing to shoulder, legal propositionalism is, literally speaking, an applied version of what is known in metametaphysics as the Quinean or quantificational account of ontological commitment . Put in different terms, legal propositionalism will be presented as a second-order thesis about how the reality of law – as an abstract object, property or relation – is related to the truth-conditional content of legal utterances . One way of adding some concreteness

8

and Jamin Assay, ‘Against Truth’, Erkenntnis, 79 (1) (2014), 147–164 . For an overview of the ramifications entailed by combining truthmaking with a correspondence theory of truth see Marian David, ‘Truth-Making and Correspondence’ in Truth and Truth-Making, ed . E . J . Lowe et al. (Stocksfield: Acumen, 2009), 137–57 . D . H . Mellor eloquently describes this distinction noting that ‘a theory of truthmakers is no more a theory of meaning than it is of truth . In particular, therefore, the truthmakers of propositions must not be identified with their metalinguistic truth conditions… The idea that truth conditions link meaning and ontology derives from an ambiguity in the expression “giving a sentence’s truth conditions .” The ambiguity is between saying what would make the sentence true and using a Tarskian metalanguage to say when it is true, which need tell us nothing about what, if anything, makes it true .’ (D . H . Mellor, ‘Truthmakers for What?’ in From Truth to Reality: New Essays in Logic and Metaphysics, ed . Heather Dyke (New York: Routledge, 2009), 272–303, at 279) .

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to this claim is to say that a theory’s success is measured by how much ontological baggage it can unload by way of reducing or paraphrasing sentences quantifying over obscure entities into sentences free of “offending” entities . In this regard a theory’s ontological commitment will be those quantified entities that the theory’s reduced sentences cannot do without if they aspire to merit the label of being true . This approach has been traditionally associated with Quine’s quantificational argument9 that a discourse’s ontological commitments must be read off its sentences’ truth-conditions or, in other words, that we are entitled to accept those entities over which the sentences of our best theory quantify .10 As soon as we track the truth-conditions of a given theory’s sentences and succeed at regimenting sentential content in a proper metalanguage our sole remaining task, according to this view, is to see which objects in the world are eligible for satisfying the variables figuring in the truth-conditional rendition of the sentence(s) . To illustrate the methodological impact of this approach, suppose the locution ‘there is a statue’ is part of the inventory of sentences composing the theory T of what a specific room contains, call it Troom . This sentence can be aptly regimented into first-order classical logic as (∃ x) x = a where ‘a’ stands for the sortal term ‘statue’ . Consequently, on this picture, the metalinguistic translation (∃ x) x = a can only be true relative to a domain that contains a statue such that the truth of our theory about the room’s content is ontologically committed to the existence of a statue . The picture described allows us to build ontology into semantics in the sense that a sentence’s truth-conditional meaning is at least indicative, if not dispositive, of what extra-linguistic entities there are . As one may reasonably expect, there has been an array of objections to different varieties of the same endeavor of linguisticizing ontology, or, as John Heil describes it, the attempt ‘to construe linguistic categories as legislating, rather than roughly reflecting, boundaries and divisions of the world’ .11 Labeling this position as metaontological is a result of its non-committal stance towards what kind of entities should figure as the content of our best theory’s ontological commitments . All that it claims is that irrespective of what these entities – or properties, states of affairs, relations etc .–turn out to be as a result of our best available explanations, they must be somehow represented or reflected in the logical regimentation of the sentences we use in constructing a theory . Leaving behind this lengthy prelude, I shall offer a template12 of how one may identify herself as a legal propositionalist . At first approximation a legal propositionalist 9 10

11 12

See his seminal ‘On What There Is’, originally published in Review of Metaphysics, 2(5) (1948), 21–38, and reprinted in his From a Logical Point of View rev . edn . (Cambridge, MA: Harvard University Press, 1980) . This is a more canonical rendition of the Quinean dictum that “to be is to be the value of a variable” or, in its unpacked version, ‘[w]hat entities there are, from the point of view of a given language, depends on what positions are accessible to variables in that language’ (W . V . O . Quine, ‘A Logistical Approach to the Ontological Problem’, originally published in Journal of Unified Science, 9 (1939), 84–89), reprinted in The Ways of Paradox and Other Essays, rev . edn . (Cambridge, MA: Harvard University Press, 1976), 197–202, at 201) . John Heil, ‘Précis of From an Ontological Point of View’ in Symposium on From an Ontological Point of View by John Heil, ed . Giacomo Romano, SWIF Philosophy of Mind Review, 6(2) (2007), 11-21, at 12 . Heather Dyke proposes a quadripartite division of ontological theories that rely on the same, fallacious, as she argues, metaontological position, namely, the claim that our ontological com-

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perceives her foundational work as a task that involves the derivation of the truthmakers of legal propositions from the logical regimentation of assertions of legal content . That is to say, her foundational quest can be traced back to explaining the truth of simple statements such as ‘In the State of California any person who, by means of deceit, intentionally deprives another person of property worth more than a thousand dollars shall be imprisoned for not more than six months’ in terms of the postulation of a legal fact that depicts the logical structure of this sentence . That being said, there are at least three distinct routes for qualifying as a legal propositionalist . All three routes count as instances of legal propositionalism insofar as they ultimately purport to derive a truthmaker from some account of truth conditions . Their difference lies in the immediacy of their result . The first route is available for those legal philosophers who would be eager to label themselves as non-reductive realists about legal facts . This is to say, they believe that facts featuring legal properties (legality), legal relations (legal obligation) or legal objects (legal norm) are a legitimate addition to a theory’s inventory of what there exists . From a metaontological perspective non-reductive realism about legal truthmakers is a theoretical option that is strongly compatible with a quantificational conception of ontological commitment . The selected truthmaker is a token of what our theory is ontologically committed to and its constituent (legal norm, legal relation or legal property) lies within the relevant domain of quantification . This way of responding to the question of what makes propositions about legal content true purports to protect the integrity of a domain of discourse – in our case, a theory of legal content – which makes reference to these entities . To animate the emerging map I would venture to classify both Mark Greenberg’s moral impact theory of law and Joseph Raz’s exclusive positivist theory as instances of non-reductive legal propositionalism .13 For instance, according to Greenberg’s account legal obligations are

13

mitments should be responsive to the formal structure of our linguistic representations; see Heather Dyke, Metaphysics and the Representational Fallacy (New York: Routledge, 2008) . Dyke invites us to witness the re-enactment of a dispute between four philosophers . Philosopher A is a non-reductive realist about lurches . In support of her argument she says that one merely has to recognize that there are many true sentences that include the term “lurch” . Philosopher B is a reductivist-realist . She retorts that there are no real lurches even though sentences featuring this term are literally true . But she also denies that the truth of these sentences commit her to accepting the reality of lurches because these sentences can be paraphrased into sentences that make no reference to lurches and also reveal our true ontological commitments . Philosopher C is an error theorist . She interjects by saying that she denies both the reality of lurches and the fruitfulness of the paraphrasing strategy because the paraphrasing sentences do not have the same meaning with the paraphrased sentences . Whereas the sentence purports to refer to lurches it is simply false because lurches do not exist . Finally, Philosopher D advances an expressivist argument . She remarks that A, B and C are wrong in their assumption that the use of these sentences is descriptive . Whereas they appear to describe a thing they actually perform another linguistic function (ibid, at 2–4) . In what follows I shall concentrate of the first three cognitivist positions leaving the expressivist option aside . This metajurisprudential taxonomy is not meant to deflate the stark opposition between these two theories at the level of substantive jurisprudence . It can still remain the case that Greenberg and Raz occupy radically different substantive positions on the positivism-antipositivism spectrum much in the same way that a deontological ethical theory that postulates the existence of an irreducibly normative property of rightness can arrive at remarkably different conclusions about what is the right thing to do vis-à-vis a consequentialist theory that is equally affirmative

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those moral obligations created by the actions of legal institutions . In this regard, relations of legal obligation are not reducible to relations of moral obligation precisely because the latter may obtain as a result of any kind of action (that is, even morally wicked actions) on the part of legal officials, whereas the moral facts that constitute the content of the law must come about in “the legally proper way” .14 In a similar vein, on Raz’s account legal norms are not reducible to authoritative speechacts . The fact that a norm is authoritatively pronounced is not modally sufficient for its being a valid legal norm precisely because legally valid norms are abstract objects that also stand in hierarchical relations to superior norms with which they may conflict (e . g ., cases of unconstitutional legislation or formally deficient legal enactments) . In this respect it could also be argued that legal norms are existentially distinct vis-àvis their constituents, namely, authoritative pronouncements .15 Fortunately, the range of options for the legal propositionalist is not exhausted by the path of staunch realism . If the legal propositionalist does not want to dismiss the veridicality of our discourse about legal content but is at the same time suspicious of the possibility of the existence of legal entities she may proceed by proposing a reduction of truths about legal content to truths about another kind of entity . If this endeavor proves successful she can come up with a theory whose sentences are not legal-content-committing . More precisely, she will be able to declare her commitment to the entities serving as the reduction base of her legal-norm talk such that sentences like ‘according to the law of S it is obligatory to Φ’ can be eliminatively reduced into a sentence of the form ‘according to X it is obligatory to Φ’ . As a result, given her propositionalist inclination of deriving truthmakers from truth conditions, she will claim that, properly speaking, the truthmaker for the proposition ‘according to the law of S it is obligatory to Φ’ is the fact that X requires so precisely because the legal authority to issue such norms is reducible to X . This moderate yet legal-truth-preserving strategy is not without supporters . Scott Shapiro’s planning theory of law is an excellent illustration of this view . This can be clearly evidenced by Shapiro’s reductive plan to unpack the modal profile of legal norms by reducing them to a type of (sub)plan authorized by an institutionalized master plan . Shapiro’s strategy of reducing talk about legal norms to talk about plans serves as primary evidence of how we could elicit his own response to the

14

15

of the existence of a nonnatural property of rightness . Nevertheless this metajurisprudential convergence will be an informative addition to our way of decoding the substantive dispute mainly because it facilitates the advancement of a substantive objection to both theories on the basis of their common metajurisprudential premise rather than on their substantive merits . Greenberg does not offer a systematic account of the legally proper way of triggering moral obligations but he adamantly supports the idea that moral obligations that are triggered in legally improper or, as he calls them, paradoxical ways fail to constitute legal obligations . See Mark Greenberg, ‘The Moral Impact Theory of Law’, Yale Law Journal, 123(5) (2014), 1288–1342, at 1321–3 . Raz alludes to the sortal and modal distinctness of valid legal norms vis-à-vis their constitutive material (authoritative directives) when he remarks that ‘[n]ot all exclusionary reasons are norms . We have noted that all authoritative utterances are exclusionary reasons, and yet they are not all norms [emphasis added]…It seems that norms and other exclusionary reasons do not differ in any way which is relevant to practical reasoning . The difference is primarily ontological. We talk of norms as entities [emphasis added] .’ (Joseph Raz, Practical Reason and Norms, with a new postscript (Oxford: Oxford University Press, 1999), at 77–8) .

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question of what makes statements like ‘according to the law of S it is obligatory to Φ’ true .16 The latter truth will be reducible to the truth that ‘according to the master plan of S it is obligatory to Φ’ such that literally speaking the truthmaker for the latter proposition will not be a legal fact but a fact about the existence of a particular plan . Despite the elimination of talk about legal norms and legal facts Shapiro’s position can still be construed as a reductionist variant of legal propositionalism precisely because it remains faithful to the idea that propositional truth is ontologically committing to its constituent properties or objects whichever they turn out to be . If, nonetheless, our imaginary legal propositionalist is utterly pessimistic about the prospect of either safeguarding the existence of legal norms or offering a plausible reduction she may move on to declare all sentences of the form ‘according to the law of S it is obligatory to Φ’ as literally false . This error-theoretic response is still in line with the rationale of legal propositionalism as it is motivated by the acknowledgment that sentences about the content of legal norms or legal obligations imply, albeit infelicitously, the existence of facts about the existence of legal norms or the obtaining of legal obligations . Such claims about legal content must be systematically false precisely because legal norms do not exist . In a further step, the propositionalist error-theorist is free to suggest an alternative truth-conditional content which, nonetheless, will serve as the template from which she will read off the appropriate truthmaker . Consequently, she may “renew her vow”, so to speak, to the truth of sentences that are not ontologically offending . In other words, she may argue that we do not ordinarily use sentences about the content of legal norms or legal obligations in order to assert the propositions they literally express; instead there exist genuine semantic alternatives that can assist us in expressing our true thoughts about law . In some respect there is room for arguing that Ronald Dworkin could be classified as a legal propositionalist who would favor an error-theoretic response to the question of whether statements featuring legal entities are true . More precisely, we may read Dworkin’s claim that legal practices cannot be identified independently of the legal content they produce as evidence of his error-theoretic orientation . In other words, on a charitable understanding of Dworkin’s interpretivist theory of law it is implausible to assign numerical distinctness to the pre-interpretive material that furnishes legal content . The inextricable tie between what Dworkin calls the dimension of fit and the dimension of justification can be formally unpacked into the claim that we cannot disassociate what the aspects of political practices contribute to the content of the law from legal content per se .17 As a result, it will be an imprecise assump16

17

There are many places in Legality where it becomes evident that the connection between legal norms and plans is intimate . By way of providing some guidelines for his readers Shapiro notes that his ‘purpose here is not to draw an analogy between laws and plans but to flesh out an implication . The existence conditions for law are the same as those for plans because the fundamental rules of legal systems are plans .’ (Scott Shapiro, Legality (Cambridge, MA: Harvard University Press, 2011), at 119) . Legal interpretivism maintains that aspects of past political practices qualify as contributing to the content of the law in virtue of their being instances of the set of principles embodied in a particular political community . On this picture, principles of political morality do not stand in a relation of grounding to the contributory aspects of legal practices, but in a relation of instantiation much like laws of nature are thought to have actual events as their instances . By denying that the pre-interpretive, to use Dworkin’s jargon, material is identified independently of its

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tion to believe that our assertions of legal content purport to communicate the constitutive interplay between pre-legal and legal entities precisely because legal content cannot be abstractly coincident with non-legal determinants . A more familiar upshot of this metaontological position is Dworkin’s substantive claim that assertions of legal content are properly understood as assertions about the instantiation of the principle of integrity . In other words, from the viewpoint of a legal interpretivist the type of statements we should be evaluating for their truth are statements about the requirements of political morality rather than statements about what a legal authority requires . A primary indication of Dworkin’s generic understanding of legal propositions is provided by his consistent appeal to the notion of ‘figuring in’ or ‘following from’ an integrity-realizing scheme of principle . In Law’s Empire we read that ‘[according] to law as integrity, propositions of law are true if they figure in or follow from the principles of justice, fairness, and procedural due process that provide the best constructive interpretation of the community’s legal practice’ .18 On this understanding, by uttering ‘X does not constitute a legal norm (or legal obligation)’ an interpretivist can meaningfully engage her opponents by inviting them to reconsider their inflationary understanding of the entities that are implicated in the generation of legal content . Her claim is that ‘X constitutes a legal norm’ is not what we really assert when we say that ‘it is legally obligatory to φ’ . This is not a reductive position insofar as an understanding of legal discourse in terms of authoritative requirements would be treated by Dworkin as systematically delivering false statements . For him, the language of legal authority must be replaced by the language of instantiations of integrity precisely because the former is an erroneous guide to explaining what is actually at stake when legal officials act in particular ways . ParT four: legal ProPosITIonalIsM

wIThouT

legal TruThMaKers

As briefly noted in Part Two, legal philosophers might – even though I doubt they would ever explicitly embark on this quest – disagree about the relation of legal truth to reality, or alternatively, the nature of legal truth . I have somehow expeditiously taken a stance in favor of a deflationary account of legal truth by way of arguing that it suffices to spark some intelligible controversy among legal philosophers who in one way or another believe that the grounds of legal truth are extra-propositional or nonlinguistic in nature . That being said, it would be an unfair move to forestall anyone’s sincere proclivity to experimenting with a neo-Fregean account of legal facts such that the ensuing dispute over their grounds becomes a question of what best explains the concept of a legal norm . For the neo-Fregean legal philosopher19 legal facts would feature concepts rather than properties or objects as their constituent parts . Taking on board a standard version of the Fregean context

18 19

contribution to the content of the law, the legal interpretivist argues that we cannot disagree about the sources of law independently of the principles of political morality which the content of the law instantiates . Ronald Dworkin, Law’s Empire (Cambridge, MA: Belknap Press, 1986), at 225 . Carsten Heidemann provides a pithy reconstruction of Hans Kelsen’s theory of norms premised on a linguistic account of facts about the existence of legal norms as true legal judgments; see his Die Norm als Tatsache: Zur Normentheorie Hans Kelsens (Baden-Baden: Nomos, 1997) .

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principle it could turn out that only within the context of a legal utterance does the concept of a legal norm acquire meaning . As a result any further question with regard to the existence status of legal norms is sanctioned as a futile attempt to detach the lexical item legal norm from its propositional environment thus violating the context principle . Consequently, the crucial question is whether legal propositionalism as a metaontological theory of jurisprudential commitment necessitates a robust account of legal facts as being eligible for two tasks, namely, for operating as the grounds of facts about the truth of legal propositions and for being grounded in more fundamental non-legal facts . Whereas I do believe that the truthmaker variant of legal propositionalism provides the most accurate depiction of familiar jurisprudential arguments about the grounds of legal truth, there is no principled reason for ascribing to this hypothesis universal scope . More precisely, there can be a line of argument to the effect that legal facts may exist not in virtue of their being part of the fabric of reality but because they can be successfully accommodated by our privileged conceptual scheme . On this broadly Fregean picture, of course, there will be no room for grounding talk as there will be no distinction between truth-bearers and truth-makers . A Fregean legal fact is nothing more than a true legal thought (a legal proposition) and as such it falls short of standing in grounding relations to other Fregean facts . That being said, the neo-Fregean legal philosopher could still be classified as a legal propositionalist precisely because, like her robustly metaphysical counterpart, she purports to decipher the question of what exists by answering the question of what the truth conditions of legal sentences are . But beyond this minimal point of convergence the neo-Fregean pursues a radical departure from non-trivial appeals to existence . In the likeness of its traditional application in the ontology of arithmetic a neo-Fregean account of the metaphysics of law could represent the grounding analogue of the relation between legal facts and their determinant non-legal facts by means of an abstraction principle . The latter principle will express a bridging, so to speak, conceptual fact about when certain obligations, rights, powers and so on necessarily obtain . The structure of this conceptual fact can ordinarily feature a universally quantified biconditional denoting a function from facts cast in sociological vocabulary to facts cast in jurisprudential vocabulary . This is a purely mental process that purports to attain a new idea of an abstract object by contemplating over other objects and attempting to abstract therefrom the features that distinguish them . To illustrate this option we could perhaps reconstruct Shapiro’s process of reducing legal norms to plans in a non-ontologically loaded way such that by observing institutional and non-institutional practices of planning agency we push aside or abstract from the respects in which they differ, thereby acquiring an abstract conception of “legal norm-hood” . This can work if we consider the case that the singular term legal norm has the logical form of a functional expression such that we can talk about a legal norm to the effect that X . This can be read as a function from an abstract object to a type of action . If, as expected, a legal norm designates an abstract object there may exist an equation (abstraction principle) such that we get a functional regimentation of the form (∀x)(∀M)(∑(x) = ∑(M⊃x)↔E(x,M)) where x is a variable denoting act-types, M is a plan-denoting variable, ∑ is a functional operator and E is an equivalence relation over items of the given type . To illustrate

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this description, let’s assume for a moment that Shapiro would be eager to impersonate the neo-Fregean legal philosopher I have in mind .20 Then he could proceed to defend the following conceptual claim (call it CC): a legal norm x = a rational requirement that {if one accepts M, one x’s} iff x-ing is authorized by a shared master plan M The idea then will be that CC’s being an explanation of the concept of a legal norm, the existence of a legal norm requires nothing more than that a course of action required by the norms of instrumental rationality is authorized by the shared master plan of a planning organization . The two sentences flanking the biconditional are somehow identical in terms of the content they express . Consequently, for the neo-Fregean legal philosopher grounding just is a form of reconceptualization . Being poor with words capable of summarily reviewing the background of this strand of thought I will rely on a pithy description of the process of reconceptualization offered by Bob Hale and Crispin Wright; according to their viewpoint this process is premised on the idea that “it is permissible to fix the truth-conditions of one kind of statement as coinciding with those of another – “kind’ here referring to something like logical form – in such a way that the overt existential implications of the former exceed those of the latter, although the epistemological status of the latter, as conceived in advance, is inherited by the former” .21 In the present example, the statement that is fraught with existential implications is the left hand side sentence that a particular legal norm exists . Thus the neo-Fregean legal philosopher will arrive at the conclusion that a particular legal norm X exists in S just by reconceptualizing the sentence “X is authorized by the shared master plan of S” . A good instance of reconceptualization will be one where truth conditions are preserved right to left across the abstraction schema . The metaontological implication of this strategy is indeed strikingly similar with the quantificational understanding of legal propositionalism, yet it falls short of counting as a focal instance of the latter mainly because not only does it countenance the dependence of reference on truth but takes the further step of trivializing the prospect of ever exiting into the extra-linguistic space . Since we are dealing with linguistic entities any resort to the vocabulary of grounding will retain its intelligibility on the explicit condition that we take it to be nothing more than a form of conceptual translation . From this perspective the ontological commitment to the reality of legal norms is conceptually necessitated by the sameness of truth conditions across the biconditional . The argumentative challenge for the neo-Fregean le20

21

David Plunkett offers an extensive account of how Shapiro’s Planning Theory can accommodate Greenberg’s rational determination requirement by way of assigning to conceptual truths the role of making intelligible the determination of legal facts by social facts . Plunkett’s analysis is geared towards engaging Greenberg’s own terminology but nothing in his line of reasoning prevents us from taking the intelligibility-enabling role of conceptual facts to be understood in terms of a more familiar abstraction principle provided that Plunkett’s reading of Shapiro can do without the literal use of the concept of grounding . See David Plunkett, ‘A Positivist Route for Explaining How Facts Make Law’, Legal Theory, 18 (2) (2012),139–207 . Bob Hale and Crispin Wright, ‘The Metaontology of Abstraction’ in Metametaphysics: New Essays on the Foundations of Ontology, ed . D . Chalmers et al. (Oxford: Clarendon Press, 2009), 178–212, at 181; for an earlier formulation of this position see their The Reason’s Proper Study: Essays towards a Neo-Fregean Philosophy of Mathematics (Oxford: Oxford University Press, 2001) .

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gal philosopher lies in substantiating her claim that the content expressed by the sentence that X is authorized by the shared master plan of S is informatively reconceptualizable and this is not a trivial task . ParT fIve: The Case

of

non-legal TruThMaKers

In the previous sections I did not hesitate to imbue my narrative with a leitmotiv about the ontological dispensability of legal facts . The turning point that licensed this bold claim was a distinction I ever since tried to defend between legal propositions and their truthmakers . The idea has been that it is perfectly legitimate to insist in the veridicality of our discourse about legal content without being subdued by the weight of an ontological commitment to legal facts . The primary objection I intend to put forward with regard to what I have opted to describe as the propositionalist methodology in legal metaphysics is that this approach takes for granted that there can be an easy transition from – talk about – legal propositions of whichever logical structure to – talk about – legal facts as their truthmakers and, consequently, to – talk about – the non-legal descriptive and/or normative facts that ground legal facts . My worry is that behind the seemingly trivial assumption that legal propositions are made true by legal facts – and that, henceforth, the main question is that of the grounds of legal facts themselves – lurks a metaontological controversy which, if properly articulated, can significantly reassign the “battle positions” in the perennial dispute between legal positivism and legal antipositivism . In this final move I will pose a challenge for legal propositionalism by critiquing its metaphysically refined version on the grounds that its favored metaontology is false . More precisely, I will subscribe to the view defended by philosophers of various first-order allegiances that a proposition featuring an entity X can be made true without us needing to admit Xs into our ontology; once we accept that our truthmakers need not be isomorphic to what is represented in the apt regimentation of our language,22 a new range of options makes itself available with regard to which 22

Ross Cameron describes this view as an instructive motto . He writes, ‘[i]t’s fine for you to admit that such things exist – just don’t think that they really exist; it’s fine for you to accept that claims about them are true (so there’s no need to paraphrase them away and make yourself hostage to linguistic fortune) – just don’t take those truths to be ontologically committing to the things they’re talking about .’(Ross Cameron, ‘Truthmakers and Ontological Commitment: or how to deal with complex objects and mathematical ontology without getting into trouble’, Philosophical Studies, 140 (1) (2008), 1–18, at 14) . On another occasion he supplements his view against the charge of being strategic about the ontological utility of quantification noting that ‘it is no part of the doctrine thus stated [the truthmaker view of ontological commitment] that the English ‘there is…’ is the most natural quantifier . As an ontological realist I am committed to saying that there is a possible language such that the true existence claims in that language correspond to the quantificational structure of the world – this is a language whose existence claims carve reality at its joints: one where you can truly and completely list your ontology by saying what there is . But I do not think English is such a language . The ontology of the world is what can be said to exist using the most natural quantifier; but if this is not the English ‘there is …’ then it might be the case that there are some things that are not amongst our ontology .’ (Ross Cameron, ‘How To Have a Radically Minimal Ontology’, Philosophical Studies, 151(2) (2010), 249–64, at 256; see also Ross Cameron, ‘Quantification, Naturalness and Ontology’ in New Waves in Metaphysics, ed . Allan Hazlett (New York: Palgrave-Macmillan, 2010), at 8–26) .

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things can qualify as the ultimate grounds of the non-isomorphic facts that make our claims about the Xs true . The metaontological underpinning of this approach commonly known as the truthmaker view of ontological commitment is that a theory is ontologically committed to the entities fundamentally or really needed in the world for the propositions expressed by the sentences of that theory to be made true . The initial formulation of this thesis has been traditionally identified with David Armstrong’s truthmaker theory23 according to which the ontological commitments of a theory are determined by the truthmakers of the propositions expressed by its sentences and not by their truth conditions . Combined with the view that existential predications need not be ontologically committing to the entities they quantify over we are led to what Ross Cameron presents as a more fine-grained account of the truthmaker view which I currently plan to adopt . In his words, ‘The claim that some propositions of the form can be made true by something other than X leads us to the distinction between derivative and fundamental reality: what there is and what there really is . If X is needed as the truthmaker for then X really exists – it is part of fundamental reality . But if is made true not by X but by Y then, while X exists, X does not really exist: it is Y that really exists; it is Y that is part of fundamental ontology, and which is the ontological commitment of .24

If the constituents of the facts that make a proposition true – i . e . the truthmaking facts – need not be isomorphic to the constituents of the proposition itself, two important consequences follow: first, what our theory commits us to ontologically 23

24

David Armstrong, Truth and Truthmakers (Cambridge: Cambridge University Press, 2004) . In the course of my argument I will rely on Ross Cameron’s qualified version of the truthmaker theory . For instance, contrary to Armstrong’s espousal of the Quinean criterion that if a theory T includes the sentence ‘a exists’, a is an ontological commitment of T, I will subscribe to Cameron’s dissenting opinion that, as he remarks, ‘one of the benefits of truthmaker theory is to allow that might be made true by something other than x, and hence that ‘a exists’ might be true according to some theory without a being an ontological commitment of that theory .’ (see Cameron, ‘Truthmakers and Ontological Commitment’ (n . 22), 4) . My main motivation for this endorsement is that, as I shall explain further downstream, I will model the truthmakers of constitutive claims of the form ‘an authoritative directive to φ constitutes a legal norm’ on Cameron’s application of the truthmaker theory in the case of existential claims about purportedly “created” abstract objects like musical works . Cameron, ‘Truthmakers and Ontological Commitment’ (n . 22), 17 . Cameron appeals to Kit Fine’s distinction between what there is and what there really is (see his ‘The Question of Realism’ Philosophers’ Imprint, 1 (2) (2001), 1–30) in order to steer the discussion about the implications of the truthmaker view of ontological commitment closer to explaining the ontological dispensability of complex objects . In Cameron’s words, it is plausible to assume that ‘a really (or, equivalently, fundamentally) exists iff we are ontologically committed to a, and that a exists, but doesn’t really exist (or, equivalently, that a exists derivatively), iff a exists is true but is made true by something other than a . The claim, then, is that complex objects exist but don’t really exist: what really exists are simply the simples . Complex objects don’t really exist – the nihilist was right about how the world is . But the nihilist, traditionally, thought this meant that sentences concerning complex objects couldn’t be literally true: at best they were assertable if they satisfied some subsidiary norm . She was wrong: all it takes for those sentences to be true – literally true – is for there to be the simples .’ (Cameron, ‘Truthmakers and Ontological Commitment’ (n . 22), 6) . On this account of ontological commitment ontological commitments just are fundamentality commitments . This is precisely the view I have taken on board in this exposition . A competing view is espoused by Jonathan Schaffer (see Schaffer, ‘Truthmaker Commitments’ (n . 1) .

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may not be pictured in what we represent as being true, and, second, the more fundamental facts – in our case, social and/or normative facts – that will operate as the grounds of the truthmaking facts may be radically different in terms of their constituents vis-à-vis the grounds that would be postulated had we embraced an isomorphism between propositional content and truthmakers . The jurisprudential implications of this alternative conception of ontological commitment can be quite remarkable . Replacing the X variable with a logically regimented variable standing for legality – be it a predicate, singular term or definite description – can eloquently reveal the plan behind this project . My relevant claim will be that one can coherently assert that legal propositions are literally true but that legal facts qua their purported truthmakers are not part of our ontological commitments and, hence, do not exist . Put even more bluntly, the upshot will be that even though we can make literally true assertions about what THE LAW requires, the bits and parts of reality to which we should revert in order to vindicate the truth of our assertions are not “made of ” LAW nor are they legal in any metaphysically robust sense (property, relation or abstract object) . In what follows I shall try to outline the basic implications of a jurisprudential application of Ross Cameron’s truthmaker theory of ontological commitment . More precisely I plan to argue that the veridicality of legal discourse can be preserved whilst dispensing with an existential commitment to legal facts . In their place we can consider the option of postulating the existence of dispositional facts about enforceability which serve as the truthmakers of legal propositions . The basic thought behind my intention to replace talk of legal facts with talk of facts about enforceable states of affairs resides in a philosophical tradition which advocates the ontological dispensability of nomic facts in favor of facts about dispositional essences . A popular question among philosophers of science is whether statements of laws of nature can only be made true by nomological facts or whether, perhaps, our nomological talk (or N-talk) is not ontologically committing to Ns . Fortunately, there is a promising strategy that purports to preserve the veridicality of N-discourse without shouldering any commitment to entities that are not conducive to a frugal ontological understanding of our universe . According to this view, statements about laws of nature are made true by the fact that some properties have dispositional essences, that is, properties that have the same dispositional character in all possible worlds .25 Keeping this parallel debate in sight we may also ask whether 25

Alexander Bird provides a very informative account of the basic tenets of dispositional essentialism . In his own words ‘laws [of nature] are not thrust upon properties, irrespective, as it were, of what those properties are . Rather the laws spring from within the properties themselves . The essential nature of a property is given by its relations with other properties . It wouldn’t be that property unless it engaged in those relations . Consequently those relations cannot fail to hold (except by the absence of the properties altogether, if that is possible) . The laws of nature are thus metaphysically necessary’ (Alexander Bird, Nature’s Metaphysics: Laws and Properties (Oxford: Clarendon Press, 2007), at 2) . Dispositional essentialism takes its cue from a proposal by Sydney Shoemaker’s ‘Causality and Properties’ in Time and Cause, ed . P . van Inwagen (Dordrecht: Reidel, 1980), 109–35 . It was developed as a view of laws by Chris Swoyer in his ‘The Nature of Natural Law’, Australasian Journal of Philosophy, 60 (1982), 203–23), and has more recently been extended and promoted by Brian Ellis in his Scientific Essentialism (Cambridge: Cambridge University Press, 2001) and The Philosophy of Nature (Chesham: Acumen 2002) . A similar metaphysics is expounded by Harré and Madden in their Causal Powers: A Theory of

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familiar ascriptions to legal claims of the status of quasi-nomic statements license a similar move . In other words, we may plausibly wonder whether the “nomic” flavor of appeals to legal norms or legal facts as explanatorily potent entities is indicative of the possibility of postulating the existence of a dispositional layer that assumes the task of making these appeals literally true . To see how this might work I owe some further highlights about how legal discourse is commonly associated with the vocabulary used by scientific theories . A common, yet not expressly voiced, idea is that there is an informative analogy between legal and ‘nomic’ facts with respect to their explanatory function . The attribute ‘nomic’ is commonly associated with a particular kind of modality (necessity) that as Alexander Bird describes is ‘not of the ‘hard’ kind associated with full-on metaphysical necessity, but a ‘soft’ kind associated with nomic modality (including explanatory force and the ability to support counterfactuals) and consistent with metaphysical contingency’ .26 In this regard there is a conceptual affinity in appeals to the countable instance of the noun ‘law’ in legal (or para-legal) and scientific contexts alike . More precisely, the idea is that insofar as legal facts are universal in the sense that they are multiply exemplifiable by atomic or singular legal facts about what one is legally obligated to do in a particular circumstance, it follows that event tokens of law-conforming behavior can be normatively explained by reference to an obtaining general legal fact .27 On this construal a legal fact can enjoy the status of a

26

27

Natural Necessity (Oxford: Blackwell, 1975) and latterly by George Molnar in his Powers: A Study in Metaphysics (Oxford: Oxford University Press, 2003) . The attribute ‘nomic’ is commonly associated with a particular kind of modality (necessity) that as Alexander Bird describes is ‘not of the ‘hard’ kind associated with full-on metaphysical necessity, but a ‘soft’ kind associated with nomic modality (including explanatory force and the ability to support counterfactuals) and consistent with metaphysical contingency’ (see Alexander Bird, ‘The ultimate argument against Armstrong’s contingent necessitation view of laws’ Analysis, 65 (2) (2005), 147–55, at 148 . The nomic or modal conception of lawhood is not a platitude among philosophers of science . Bird himself holds a critical stance against the view that it is nomic facts which by their nature confer modal force on the relation between the properties that figure as their (of the nomic facts) constituents . On Bird’s dissenting approach nomically related properties stand in the relation they do in virtue of an essential dispositional fact such that under proper conditions one property is essentially disposed to be co-instantiated with the other property . This ‘nomological’ model of normative explanation can be further adjusted to one’s jurisprudential allegiances such that both for a positivist and an antipositivist legal facts can be likened to the nomic generalizations of the inexact sciences thus being capable of supporting a basic set of counterfactual conditionals . The counterfactual stability of legal facts is commonly cashed out in terms of a ‘general efficacy’ condition on legal systems . The latter term can be understood in dispositional terms such that the norms constituting the content of the law of a legal system at a particular time are such that they are normally obeyed . As Shapiro notes, ‘[g]eneral efficacy does not require that community members actually accept the law’s legitimacy; they may comply out of fear of punishment, habit, or peer pressure . But if most fail to conform to the dictates of the regime claiming authority, then such a community cannot be said to have a legal system’ (see Shapiro, Legality (n . 16), at 202) . On a broadly natural law approach, the counterfactual that legal facts are supposed to be minimally successful at supporting is more likely to be generic by virtue of its content . Again there are two ways to frame this counterfactual condition of stability . Assuming the correctness of the weak natural law thesis – that is, necessarily anything that does not exhibit a particular kind of normative feature, for example, serving as a rational standard for conduct – is either not law or is defective qua law – it is possible to determine the content of the

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quasi-nomic generalization so long as it can exhibit a sufficient degree of invariance under counterfactual perturbations .28 This scope of invariance may include platitudes to the effect that a legal norm would have still been complied with even if law-subjects do not actually attach any moral value to it . The latter counterfactual can be supported by a legal fact for as long as it remains conceptually consistent with what is conceptually entailed by one’s jurisprudential theory . Many philosophers of science recognize this conceptual similarity between nomic laws and normative laws (moral or legal) . The spectrum of associations ranges from merely metaphorical correlations to more literal applications of concepts used in normative philosophy . On the latter side of the spectrum there figures E . J . Lowe’s prescriptivist account of laws of nature29 according to which statements of natural laws share modal features with normative laws like legal norms or moral principles such that it is possible to claim that statements of laws of nature are made true by some sort of natural normative facts . Lowe’s account is heavily premised on a fusion of the properties of normality and normativity by virtue of which he proceeds to suggest a generic semantics for statements of laws of nature .30 Fred Dretske also embellishes his own version of nomic necessitation31 with a fair amount of parallelism between natural laws and legal norms . In particular, he locates an analogy between universals as the relata in the relation of nomic necessitation and legal offices .32 These remarks do not have a demonstrative function as it would be more than naïve to assume that the plausibility of an account of dispositional truthmakers for nomic statements provides direct evidence in favor of the view that legal statements are also made true by dispositional facts . The utility I would to associate with these remarks is merely illustrative mainly because they serve to animate the intuitions behind my argument .

28

29 30 31 32

relevant counterfactual by appeal to what distinguishes an a-legal entity from something that is law but defective as such . Hence the counterfactual stability line can be drawn along the intersection of these two instances such that a legal norm remains efficacious and thus explanatorily potent if it is constitutionally capable of serving as a rational standard for conduct even if it fails to non-defectively realize its capacity . For the purpose of formulating a natural law condition of counterfactual stability I am relying heavily on Mark Murphy’s account of constitutional capability . For the latter notion, see his ‘The Explanatory Role of the Weak Natural Law Thesis’ in Philosophical Foundations of the Nature of Law, ed . Wil Waluchow et al.(Oxford: Oxford University Press, 2013), 3–21 . Philosophers like Hans Kelsen have gone a step further by arguing that the efficacy of laws is part of their validity conditions . A general legal norm is regarded as valid only if the human behavior that is regulated by it actually conforms with it, at least to some degree . A norm that is not obeyed by anybody anywhere, in other words a norm that is not effective at least to some degree, is not regarded as a valid legal norm . A minimum of effectiveness is a condition of validity’ (Hans Kelsen, Pure Theory of Law, trans . M . Knight (Berkeley: University of California Press, 1960/1967), at 11) . E . J . Lowe, ‘Miracles and Laws of Nature’, Religious Studies, 23 (1987), 263–78 . For a charitable critique of Lowe’s strategy see Stephen Mumford, ‘Normative and Natural Laws’, Philosophy, 75 (2) (2000), 265–282 . This is more like a cluster of view orbiting around ‘nomic necessitation’ as the central concept . Jointly enriched by David Armstrong, Fred Dretske, and Michael Tooley this view of takes nomic statements to be made true by facts about the relation between universals . Fred I . Dretske, ‘Laws of Nature’, Philosophy of Science, 44 (2) (1977), 248–68, at 265 .

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Analyses of dispositions are usually cast in terms of counterfactual conditionals .33 A typical regimentation of dispositional claims is formulated by a sentence of the form ‘an object O is disposed to M when C iff it would M if it were the case that ‘C . For the moment I will leave aside an array of counterexamples to the tenability of this simple formula and focus instead on some basic notions accompanying the concept of a disposition . In the above provisional definition M will stand for a disposition’s manifestations, namely, the class of events that serve as instances of the property which is dispositionally borne by an object or another property . These events will normally occur in the presence of a certain kind of stimulus which serves to trigger the causal process by which a given object will manifest a specific property . For example, a fragile vase would break (manifestation) if struck (stimulus) or an irascible man would behave aggressively (manifestation) if slightly provoked (stimulus) . This simple analysis proceeds on the assumption that, for any disposition, we can identify its stimulus conditions and manifestations . Moreover, it is commonly believed that at least non-fundamental dispositions, that is to say, dispositions that do not by themselves ground natural laws or make nomic statements true, are themselves grounded in other categorical or dispositional facts . In the scientific-philosophical jargon the terms that are used to describe these grounds are ‘causal basis’ . In simple terms, the causal basis that grounds the fact that an object O has the disposition D is usually something about O’s intrinsic microstructural properties that is or would be causally responsible for the manifestation of that disposition . In other words, besides the necessary triggering by a stimulus causal bases can serve as the operative sufficient conditions for the manifestation of a disposition .34 With this rudimentary vocabulary at hand I feel like being in a better position to explain why I have chosen to resort to the arsenal of dispositions to account for the truth of legal claims . My choice is motivated by the belief that dispositions are an ontologically modest solution to the problem of accounting for the defeasible practical necessity associated with legal content . On the one hand, legal content is vested with normative vocabulary suggesting that legal practice purports to govern its instances rather than systematize the history of past instances of compliance . More precisely, it seems that law’s instances are not causal sequences of events but sequences of actions that are at least represented as being sensitive to normative standards . At the same time law could not perform its governing role if general legal requirements merely supervened on the totality of its instances . I believe that many would welcome the possibility that law adds something to our society such that the world would be observably different – and as I shall add further downstream, normatively worse – in its absence . A dispositional account of the governing aspiration conveyed by claims of legal content can provide an explanation of the fact that law is not just a social regularity without unloading on our shoulders the weight of an 33

34

The idea is not that every dispositional statement is a priori equivalent to the obtaining of a particular counterfactual fact . Rather the case is that every disposition can be typically associated with the truth of a certain counterfactual . As Elizabeth Prior remarks, ‘[w]hat is commonly accepted by all those who discuss dispositions is that there exists a conceptual connection between a statement attributing a disposition to an item and a particular conditional’ (Elizabeth Prior, Dispositions (Aberdeen: Aberdeen University Press, 1985) at 5) . E . Prior, R . Pargetter and F . Jackson, ‘Three Theses about Dispositions’, American Philosophical Quarterly, 19 (1982), 251–57, at 251 .

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ontological commitment to a peculiarly legal class of universal facts . At the same time the same account can elucidate the sense in which legal “laws” are essentially defeasible while saving us from the worry of refining our models of hedged legal rules . For those whose concerns are still not assuaged I will have to devolve upon them the burden of proving that law is nothing more than an inventory of our history of coincident conduct . The modesty of this alternative proposal resides in the fact that it is equally compatible with positivist and an antipositivist elaborations of the concept of enforceability . For instance, a legal positivist could privilege a probabilistic conception of enforceability according to which to say that X is enforceable is to say that if A doesn’t X, A will be forced to X . On this view enforceability is a probabilistic disposition borne by different sorts of act-types that serves to systematize patterns of official behavior (enforcement agencies, courts, administration) on the causal basis of probabilistic facts about the operation of a particular legal system . This line of argument resonates with John Austin’s imperatival or sanction theory of law according to which statements or legal obligation just are predictions about the likelihood of carrying out the sovereign’s threats .35 The alternative conception of enforceability rests on the hypothesis that the disposition of being enforceable is a property borne by normative states of affairs rather than actions . By normative states of affairs I intend to refer to all four Hohfeldian incidents .36 In this regard we can talk about enforceable obligations or duties as the correlative of claim rights, enforceable privileges, enforceable powers37 and enforceable immunities . On an antipositivist understanding instances of conformity with enforceable obligations, instances of exercise of enforceable rights or powers as well as instances of their enforcement are associated with a characteristic normative “footprint” which attests to the normative flavor of the efficacy associated with the concept of enforceability .38 On pain of 35

36

37

38

Cf . his seminal The Province of Jurisprudence Determined (1832), ed . W . Rumble (Cambridge: Cambridge University Press, 1995) . For a Neo-Austinian account of the role of sanctions and the use of force in law see Frederick Schauer, ‘Was Austin Rights After All? On the Role of Sanctions in a Theory of Law’, Ratio Juris, 23 (1) (2010), 1–21 . For a non-reductive, yet descriptive account of the intrinsicality of legal coercion see Ekow N . Yankah, ‘The Force of Law: The Role of Coercion in Legal Norms’, University of Richmond Law Review, 42 (5) (2008), 1195–255 . Wesley Newcomb Hohfeld, Fundamental Legal Conceptions, ed . W . Cook (New Haven: Yale University Press, 1919) . A further issue regards the conceptual links of right with external sources of normativity like the will or interests . A series of definitional theories (interest theories, will theories and hybrid theories) of right take up this challenge in tolerably neutral terms in the sense that they do not provide a full normative account of the grounds of rights . For a critical appraisal of this approach see Hamish Stewart, ‘The Definition of a Right’, Jurisprudence, 3 (2) (2012), 319–39 . This is not to say that a legal power-holder is liable to being forced to exercise a power if he fails to exercise it when needed but in the sense that an abusive exercise of power can be sanctioned with nullity or offset by other corrective remedies . A further implication of this approach is that it makes the legal status of duties or powers that are not judicially enforceable dubious . Constituent power or some aspects of legislative or constitutive power – including the power to legislate new powers – seem to fall under this evasive category of non-enforceable notions in the sense that no sanction is available as a coercive response to their potential abuse . Efficacy thus construed is not reducible to the upholding of a particular duty, right or power . In other words, it is not about the realization of the value or the justifying principle peculiar to a particular duty, right or normative power . If that were the case efficacy would collapse into

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redundancy manifestations of enforceability should be such that they confer an additional, extrinsic normative property to instances of actual conformity, exercise or enforcement which is not reducible to the property of realizing the value or instantiating the principle that grounds this or that particular duty, right or power . In this regard there can be more than one candidate properties that could qualify for this work including the property of upholding the rule of law39, the property of validating trust in the possibility of equal freedom40 or the property of making the moral situation better .41 ConCludIng reMarK This alternative proposal ventures nothing like delivering a final blow to the well-cherished divide between legal positivism and legal antipositivism . On the new picture I attempted to draw both sides remain welcome at a price that, presumably, is not difficult or unwise to afford . The price I am offering includes the rejection of the “linguistic” or “quantificational” approach to ontological commitment and the espousal of the “truthmaker” approach . My belief is that the gain from paying this price is visible both for positivists and antipositivists For the positivist, my guess is that a possible gain would be an easier route for solving what Scott Shapiro describes as the “chicken-egg” problem or, in theoretically proper prose, the “possibility puzzle” . This is a problem related with the very possibility of legal authority or the authority to create legal norms which in Shapiro’s own words boils down to the fact ‘that any body with power to create legal norms must derive its power from some norm, while any norm that could confer such a power must itself be created by someone with the power to do so’ .42 As it

39

40

41

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a semantic platitude: a duty is such that it manifests its normative efficacy when it is fulfilled or enforced, or a right or a power is such that it manifests its efficacy when it is exercised or enforced . Notably Lon Fuller made a valuable leap towards systematizing the corpus of the properties that constitute the core of formal legality or the rule of law . Fuller’s non-instrumentalist position is that conformity to the principles of the rule of law just is conformity to the principles of the internal morality of law . In other words, formal legality is not merely in the service of law’s efficacy but informs its nature and inner purpose which is built on what Fuller calls an ‘implicit view of man’, in the sense that ‘man is, or can become, a responsible agent, capable of understanding and following rules, and answerable for his defaults’ (Lon Fuller, The Morality of Law, rev . edn . (New Haven: Yale University Press, 1969), at 162) . This is the variant I have defended in my doctoral dissertation based on a broadly Kantian conception of law as a morally necessary supplement to interpersonal morality . For this hybrid approach cf . Triantafyllos Gkouvas, ‘Law’s Humility: The Possibility of Metajurisprudence’ (Antwerp: University of Antwerp Press, 2015) . This is a possible reconstruction of Mark Greenberg’s elaboration of the legally proper way for changing the moral landscape (or profile) . Greenberg claims that the actions of legal institutions are supposed to make the moral situation better by ensuring that the legal obligations they create provide decisive reasons for action (see Greenberg, ‘The Moral Impact Theory of Law’ (n . 14), at 1294) . In this regard to say that an obligation is enforceable just is to say that it is disposed to contribute to the improvement of the moral situation either by means of conformity or by means of actual enforcement . See Shapiro, Legality (n . 16), at 42 .

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stands, the puzzle seems to admit of two possible solutions: either we postulate the existence of a type of authority that is not conferred by a legal norm, or we come up with a category of power-conferring norms that are not instances of the exercise of legal authority . This puzzle poses a particular challenge for the legal positivist as no matter which path to its solution one chooses to take she will ultimately have to take on board the normative concept of power or authority exemplified either through the concept of a power-conferring norm or by the notion of the capacity of individuals or roles to change the normative position of others . The interesting feature that both explanatory paths share is their reductive orientation . On the first option legal power-conferring norms are reducible to instances of an extra-legal authority – moral, rational or institutional – whereas on the second option legal power conferring norms are ultimately reducible to social norms that can be established by reference to social practice or a pattern of collective rationality . The basic intuition that underlies this approach is that at some fundamental level some paraphrasing becomes inevitable . That it is to say, L-talk (talk about legal concepts) must be replaced by R-talk (talk about the reduction base concepts) such that either instead of talking about legal authority we should be talking about moral or rational authority or instead of talking about the fundamental legal power-conferring norms we should be talking about, say, the rule of recognition or the master plan of a social system . In this vein the concept of reductionism is the idea that certain things are nothing but certain other sorts of things . Reductionism, then, leads to a peculiar form of the identity relation such that As can be reduced to Bs, if As are nothing but Bs . The truthmaker approach to ontological commitment offers a simpler solution that obviates the need to settle the conceptual matter of whether L-talk is linguistically replaceable by R-talk . Whereas the latter reductive response to the possibility puzzle is not immune to a series of criticisms like the objection of talking past each other, the argument from multiple realizability and intensional arguments about the semantics of referentially opaque terms, there should be no question that it is at least conceivable that L-statements (if they are true) are made true by R-facts (and not by L-facts) . The latter approach shoulders no conceptual commitments vis-à-vis the relation between, for instance, the concept of legal authority and the rule of recognition, or the concept of a legal norm and the concept of a social plan . By bypassing the postulation of L-facts while preserving the truth-aptness of L-talk the legal positivist is in a better position to guard herself against dubious translations of normative concepts in terms of descriptive ones without giving up her core intuition that the normative flavor of L-talk is not transmitted to its grounds . As for the legal antipositivist the prospect of rejecting legal propositionalism in favor of the truthmaker approach is visibly promising . If the legal positivist’s challenge is to make a plausible case about the way in which descriptively identified legal practices explain the obtaining of legal obligations and rights, the challenge for the legal antipositivist is more fundamental as it regards the identification of legal practices as such . Whereas an antipositivist’s espousal of normative facts as co-determinants of legal content is in a better position to explain how legal obligations and rights are generated by virtue of facts about the sayings, doings or thoughts of legal officials, it remains a question whether the antipositivist can provide a non-circular identity account of legal practices . The difficulty stems from the fact that many

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practices that qualify as legal by means of sociological classification or empirical inquiry are so morally objectionable that it is hard to explain how an antipositivist account can treat them as part of her theory’s input . This remark is as trivial as the perennial disjunction between legal positivism and antipositivism and as such it falls short of showing why declining to derive one’s ontological commitments from the truth-conditional content of legal propositions brings the legal antipositivist closer to a non-circular account of legal practices . To see how shifting one’s metaontological viewpoint may allow a breakthrough in thought I suggest that we take a fresh look at the prominent role assigned to the notion of normative defect in the antipositivist explanatory route from what the law ought to be to what the law is . A brief digression to two alternative ways of utilizing the notion of defect as an argumentative device can show how this works . On the one hand, for the traditional natural law theorist the property of being defective is commonly ascribed to legal norms qua generic entities .43 As such it can purportedly account for instances where a bad law is still law but defective qua law . On the other hand, it is more common for interpretivist or moral impact theories of law to associate the property of defectiveness with legal practices or legal systems respectively . A legal interpretivist, for instance, will argue that legal practices are at least in part identifiable by reference to their normative point, the latter being about the best justification of state coercion or, more generally, some form of principled consistency with past political practice; hence, an authority-claiming practice that fails to justify the use of its coercive means counts as defective under the relevant description . Similarly, a moral impact theorist will argue that a legal system is defective to the extent that it fails to ‘operate by arranging matters in such a way as to reliably ensure that its legal obligations are all-things-considered morally binding’44 . What is interesting, regardless of which entity an antipositivist chooses to predicate defectiveness, is that on either approach – the norm-based or the legal system-based – defectiveness is treated as an essential property of an abstract object, be it a legal norm or a comprehensive legal system . As such it remains vulnerable to an array of plausible anti-essentialist arguments a legal positivist can advance, the strongest one, perhaps, being the idea that this approach unwarrantedly discards as explanatorily irrelevant numerous regimes, historical and actual, that could be easily characterized as morally wicked or unjust . By legitimizing talk of abstract objects without legitimizing the further step of being ontologically committed to such objects, the truthmaker approach can render the attribution of the property of defectiveness purposeless as there will be no real abstract object in the world to which the said property can be attached . Differently put, upon reflection it could turn out that 43

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Jurisprudential references to the notion of normative defect are not always literal . For instance, the first chapter of his book Natural Law and Natural Rights John Finnis argues that law should be understood the point of view of someone possessed of practical reasonableness noting that this normative viewpoint determines the focal meaning or central case of law . Focal instances of law just are non-defective instances of law; see his Natural Law and Natural Rights, 2nd edn . (Oxford: Oxford University Press, 2011), at 3–22 . For an overview of direct appeals to the notion of normative defect see Murphy, ‘The Explanatory Role of the Weak Natural Law Thesis’ (n . 27) . Mark Greenberg, ‘The Standard Picture and Its Discontents’ in Oxford Studies in Philosophy of Law, Volume. I, eds . L . Green and B . Leiter (New York: Oxford University Press, 2011), 39–106, at 84) .

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it is metaphysically superfluous to try to draw distinctions between defective and non-defective legal norms or systems precisely because allowing into one’s set of ontological commitments the existence of legal norms or legal systems is no addition to being in any robust sense . So how could the rejection of legal propositionalism in favor of the truthmaker approach pay off for the antipositivist? One plausible idea would be the one foreshadowed above about the explanatory role of defect in different varieties of antipositivist theories of law . Granted that the truthmaker view would make the attribution of defectiveness to legal norms or legal systems ontologically superfluous, it could be the case that what is eligible for attributions of defectiveness is the performance of a role of some sort rather than an abstract creation . The analogy I am alluding to is provided by familiar instances of aesthetic or more generally normative judgments about works of art . A proponent of the truthmaker view of ontological commitment has no reason to hesitate to render judgment about the crudeness of a statue or the vivacity of a musical composition without, nonetheless, having to acknowledge the existence of statues or musical works in any ontologically robust sense . Her mode of engaging in evaluative talk about statues and musical works involves a full embracement of the truth-aptness of her corresponding claims qualified by the admission of truthmaking facts about the performance of the sculptor or the musician . By employing this analogy, the legal antipositivist who decides to leave behind legal propositionalism in favor of the truthmaker view will assume a better position in combating the positivist criticism that her account is counter-intuitively under-inclusive vis-à-vis the type of practices that qualify as legal . By withdrawing her ontological commitment to legal norms or legal systems she is better off guarding herself against the positivist platitudes that in the end of the day the Nazi regime was a legal system or that Nazi directives were legally valid norms . Her line of defense can be that the truth of claims of the form ‘Nazi directives are laws’ or ‘the Nazi regime is a legal system’ depends on facts that do not feature legal norms or legal systems as their constituents precisely because these entities simply do not exist . Conversely, such statements will be true only to the extent that the performance of participants in the relevant practice exceeds a qualitative threshold of some sort . On this occasion, the espousal of the truthmaker view actually results in legitimizing the decoupling of the role of legal practices from the social norms that purport to define it by allowing the former to become a purely normative concept that is not reducible to the conventional arrangements used to realize it . Consequently, a legal practice will be identified and evaluated as such by reference to the normative standards of performance associated with the role of its officials rather than to the constitutive norms that purport to define this role . The normative intuitions of the antipositivist can acquire more vigor precisely because constitutive norms cannot figure in the facts that make our corresponding claims true for the simple reason that any ontological commitment to abstract creations is the result of linguistic fallacy . This becomes a plausible option insofar as the legal antipositivist can convincingly argue that as opposed to norms normative standards or principles are not the output of a mind’s creative initiative but are mind-independent abstract objects .

aNdrés saNtacoloMa saNtacoloMa seManTICal rules and The Theory of The lIMIT The wordIng: seeKIng for objeCTIvITy In law*

of

“You certainly opine that there is such thing as Truth. Otherwise, reasoning and thought would be without a purpose. What do you mean by there being such a thing as Truth? You mean that something is SO – is correct or just – whether you, or I, or anybody thinks it is so or not.” C . S . Peirce1

InTroduCTIon There is a renewed interest in the field of legal argumentation in Germany about the necessity and scope of utilizing semantical rules inside the law . This debate takes place in the German legal methodology, particularly within the Theory of the Limit of the Wording (Theorie der Wortlautgrenze) . The aim of this paper is to present the recent debate between Matthias Klatt and Ulfrid Neumann, while suggesting some new perspectives . The first step will be to present the Theory of the Limit of the Wording developed by Klatt, who defends the necessity of using semantical rules in the construction and interpretation of the meaning of (legal) concepts . He puts forward a semantic normativity and semantic constrains, following Brandom’s inferentialism; this guides him to argue for the establishment and the fixation of meanings, and the idea of an entire community being mistaken in applying a concept, because of the existence of objective meanings . I will point out some problems with the use of Brandom’s theory and the mixture Klatt tries to do with Alexy’s idea of the semantic-analytical discourse . I will then explore some objections raised by Neumann to the use of semantical rules in law in general, and to the arguments stressed by Klatt in particular . According to Neumann, the use of semantical rules in law does not occur per se to solve disputes, but is a relative matter . Not only because they are difficult to determine but because they are neither necessary nor sufficient, since other criteria are to be taken into account for adjudication . He refutes the ideas of the fixation as well as the establishment of meaning, and defends an idea of a viscosity of the rules of language . This is a property which maintains a relatively stable and time-dependent objectivity of the language and its rules . Finally, addressing the criticism raised by Neumann, I shall argue that a different theory of meaning, a pragmatic one is to be adopted, and that the viscosity *

1

I would like to express my gratitude to Ulfrid Neumann and Lorenz Schulz for their comments on previous versions of this article, as well as for their guidance, in writing the master thesis which served as groundwork for this paper . I would also like to thank Brian Bix and José Juan Moreso for their questions and comments which lead me to different perspectives regarding these issues . Charles Sanders Peirce, Collected Papers, eds . Charles Hartshorne, Paul Weiss, and (volumes 7 and 8) Arthur Burks (Cambridge, MA: Harvard University Press, 1931–58), C . P .: 2 .135 .

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Andrés Santacoloma Santacoloma

thesis is compatible with a form of realism, which does not stress the existence of meanings, but their reality . ParT one: InferenTIalIsM

and The

(new) Theory of The LimiT of The Wording

The relevance and scope of the semantical rules and its uses in law are highly disputed topics in the German legal theory . There are several starting points to be considered, e . g . the possibility of utilizing a semantical method of interpretation, the discussion about the existence of meanings of concepts in law, the problem about the definition of a concept of law, vagueness, ambiguity or the indeterminacy of meanings among others . Two questions are of central importance in this discussion: (1) What is the meaning of a concept and what do have concepts as their content? (2) How can we identify semantical rules and after been identified, how are these to be used with concepts? The choice of a theory of meaning is of critical importance . The answers to these two questions vary considerably depending on the theory chosen; semantic realism (Frege2), semantic theories taking the form of a theory of truth (Davidson3), use theory of meaning (the second Wittgenstein4), internalist semantics (Chomsky5), semantic externalism (Kripke6), pragmatism (Peirce7), etc . After the appearance of Robert Brandom’s book Making it Explicit8 the inferentialism has been gaining force . 2

3 4 5 6 7 8

Frege has adopted different theories of meaning in his works . See: Gottlob Frege, ‘Über die wissenschaftliche Berechtigung einer Begriffsschrift’ (1882) in: Zeitschrift für Philosophie und philosophische Kritik, vol . I, S . 48 (56), translated to English by Terrell Ward Bynum, 1972, ‘On the Scientific Justification of a Conceptual Notation’ in: Conceptual Notation and Related Articles, (Oxford: Oxford University Press, 1972) (reprinted 2002); Gottlob Frege, ‘Der Gedanke . Eine logische Untersuchung’, in: Beitrag zur Philosophie des deutschen Idealismus 2, 1918–1919, 58–77, in Gunther Patzig (ed .), Logische Untersuchungen, (Göttingen: Kleine Vandenhoeck-Reihe, 1993) English version available at: http://philo .ruc .edu .cn/logic/reading/Frege_The%20Thought .pdf, Gottlob Frege, ‘Funktion und Begriff ’, 9 .1 .1891, Jena; Gottlob Frege, ‘Über Begriff und Gegenstand’, in: Vierteljahrsschrift für wissenschaftliche Philosophie 1892, 192–205; Gottlob Frege, ‘Über Sinn und Bedeutung’, in: Zeitschrift für Philosophie und philosophische Kritik 1892, 25–50 . The last three papers are in: Gottlob Frege, Funktion, Begriff, Bedeutung. Fünf logische Studien, Gunther Patzig (ed .), (Göttingen: Vandenhoeck & Ruprecht, 1962) (2008) . Donald Davidson, ‘Truth and Meaning,’ in: Inquiries into Truth and Interpretation, 17 (36), 1984 . Ludwig Wittgenstein, Philosophische Untersuchungen, translated by G . E . M . Anscombe (Bilingual edition) Philosophical Investigations, (Oxford: Blackwell, 1953) (2001) . Noam Chomsky, New Horizons in the Study of Language and Mind, (Cambridge: Cambridge University Press, 2000) . Saul Kripke, Naming and Necessity, (Oxford: Blackwell Publishing, 1981); Hilary Putnam, ‘Models and reality,’ Journal of Symbolic Logic, 45(3): (1980), 464–482; Hilary Putnam, Words and Life, (Harvard: Harvard University Press, 1995) . C . S . Peirce, (n .1) . Robert Brandom, Making it Explicit. Reasoning, Representing, and Discursive Commitment, (Cambridge: Harvard University Press, 1994); Robert Brandom, Articulating Reasons. An Introduction to Inferentialism, (Harvard: Harvard University Press, 2000) .

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What this theory affirms in opposition to the common representationalism is that the meaning of a concept is not to be understood as a relation of representation between the use and the meaning of it (which is the reason of its proximity to expressivism) . To stress this claim, Brandom utilizes three main arguments: (i) normative pragmatics, (ii) inferential semantics, and (iii) the commitments and entitlements for a deontic scorekeeping . (i)

(ii)

Normative pragmatics . Language and communication are rational enterprises which, like any other rational enterprise, follow rules . Brandom follows Kant’s argument, that concepts might have the form of rules themselves .9 The use and understanding of concepts implies a way of acting, i . e . of understanding rules . Brandom puts it this way “The understanding, the conceptual faculty, is the faculty of grasping rules…What is distinctive about judgings and doings…is the way they are governed by rules.“10 Because of this, the pragmatic and semantic have to work together . But since the contents and properties of semantics and their relationship depend on the way the subjects who understand these concepts utilize them, the pragmatic have a greatest role to play in the relation, put differently: semantics are to be explained in terms of pragmatics . Inferential Semantics . Following Sellars, Brandom argues for the determinacy of the content of our sentences through a process of inferring, which is a development or a result of a game of giving and asking for reasons11 . The content of our speech act will be by means of this game explained . In order to do so, the assertive speech act, the affirmation of content, is of capital importance12 . The speech acts of making, disavowing, and challenging assertions serve as reasons for action, also demanding reasons13 . Assertions are of particular importance, since they authorize further assertions and undertake the responsibility to do something i . e . new assertions to justify the original claim . A statement is understandable because it is part of a network of statements, which are mutually supportive and justified by simultaneously giving reasons for one another . Logical inferences are in Brandom’s perspective not to be understood in a formal way . Again, Brandom follows Sellars14 and claims that the approach to logical inferences must be material i . e . Brandom argues against the traditional conception of inference . Arguments which are recognized as invalid because of being enthymematic are in Brandom’s approach sound . Consequently, statements like “it is raining, I should open my umbrella” or “It is raining, the streets will be wet” are equally valid . Brandom explains that the content to which the person uttering the statement is constraint to will be clear, by means of material inferences, after making explicit what is implicit in the use15, he writes: “The reasoning we actually engage in always permits the construc-

Brandom, Making it Explicit, (n .8) at 7 ss . Ibid ., 7 s . Ibid ., 189 ss . Ibid ., 189 . Ibid ., 189 . Wilfrid Sellars, ‘Inference and Meaning’, Mind, New Series, Vol . 62, No . 247, (1953), 313– 338 . 15 Brandom, Articulating Reasons, (n . 8) at 87 ss . 9 10 11 12 13 14

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tion of inferential hierarchies with oscillating conclusions…“16. This idea is supported by two further arguments . First that the negation and the modus ponens show the inferential character of our statements17: their outcomes show the possibility of correction and justification of concepts18 . Second that every concept has a correct use in our discourse and must consider, in order to achieve this correctness, the circumstances as well as to the consequences of its use19 . (iii) Commitments and entitlements for a deontic scorekeeping: This game of giving and asking for reasons needs some criteria to establish the correct use of assertive speech acts . These criteria, which need to take into account the circumstances as well as the consequences of the use, are to be found in our discursive praxis . Brandom utilizes two deontic statuses in order to asses this correctness, namely, commitment and entitlement . Commitment and entitlement are in a necessary relationship to establish the correctness of our discursive practices . When someone is entitled to utter a statement he/she is at the very same time committed to certain contents of our discourse . Being entitled to utter a statement excludes an entitlement to utter a statement which is against the commitments of content of the first one . All agents of the discursive practice keep track of these commitments and entitlements in order to make sense of our discourse from a normative pragmatic through an inferential semantic . This is the reason why two statements like “it is raining” and “it is not raining” are incompatible at the same time . Keeping track of the commitments and entitlements diminishes the probability of mistakes . This is the score keeping which is central in the game of giving and asking for reasons20 . Matthias Klatt, following closely Robert Brandom’s inferentialism, has tried to reintroduce the semantical interpretation in law . According to him, this theory of meaning provides the tools to construct a semantic normativity for the law, which consequently allows the objectivity of legal meanings as well as of the legal argumentation . Klatt claims that these three elements of Brandom’s approach delivers the following consequences for the law: (i’) semantic limits exist in law because meanings exist, (ii’) semantic argumentation is from legal argumentation separable, (iii’) that a rehabilitation of semantic interpretation is possible in the law, and (iv’) that as a consequence of this rehabilitation it could be affirmed that legal argumentation can be objective21 . These results are at the same time answers Klatt is giving to crit-

Ibid ., 88 . Ibid ., 74 ss . Brandom, Making it Explicit, (n . 8) at 117; Matthias Klatt, ‘Semantic Normativity and the Objectivity of Legal Argumentation’, Archiv für Rechts- und Sozialphilosophie, (2004), 51–65, 55 . 19 Brandom, Making it Explicit, (n . 8) at 116 s; Brandom, Articulating Reasons, (n . 8) at 63 ss; Klatt, (n .18), at 56 . 20 Brandom, Making it Explicit, (n .8) at 142 . 21 Klatt, (n . 18) at 58 ss; Matthias Klatt, Theorie der Wortlautgrenze. Semantische Normativität in der juristischen Argumentation, (Baden-Baden: Nomos, 2003), 280 ss . There is an English version: Matthias Klatt, Making the Law Explicit: The Normativity of Legal Argumentation, (Oxford: Bloomsbury Publishing, 2008) . All my references are from the German version . 16 17 18

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icism from both the Normative Theory of Semantics and the Structural Theory of Law (Schule der strukturierenden Rechtslehre22) in German legal theory . (i)

(ii)

22 23

24 25 26 27 28

Semantic limits exist in law because meanings exist . The traditional German methodological debate understands the Theory of the Limit of the Wording as a twofold form of the application of the law: the interpretation and the further development of it23 . Klatt argues that a new theory of the limit of the Wording is possible . He considers this new theory as a search for limits in terms of semantic rules in order to apply the law . Since the meanings are results of the commitments of persons and are dependent of the context and societies, no valid general concepts could be given and it will be impossible to accurately give “the exact course of semantic borderlines in every single case”24 . Because of this the linguistic analytical discourse and its main aim i . e . the clarification of the rules governing the use of words – since they allow the demarcation between interpretation and further developments – are of central importance for the law25 . Two processes relating meanings are distinguishable in this discourse: on the one hand there is the establishment and on the other hand the fixation of them26 . The former is the activity of making the concept explicit from what is implicit in the linguistic practices, the later is a way of improving the “[s]emantical structures and thereby the meanings of concepts”27 . The distinction between establishment and fixing takes Klatt from Alexy’s semantic argument from the canons of interpretation for empirical argumentation of the external justification, presented in the Theory of Legal Argumentation28 . Klatt stresses that the legal concepts could be established and fixed through the discourse, ergo they exist; offering semantic limits and the possibility of the objectivity of those meanings (consequently, an entire speech community could be mistaken while utilizing a concept) . Semantic argumentation is from legal argumentation separable . There is an externality of the legal language . The idea behind this thesis is basically that there is only a certain quantity of arguments as well as particular qualities of those arguments that can deal with the interpretation of the law on semantic-analytical grounds . Every argument and reason for such an argument which is not semantically constituted will be excluded . The reason lies in the fact that the interpretations of legal rules could have a semantic-analytical character, See: Friedrich Müller, Strukturierende Rechtslehre. Zweite, vollständig neu bearbeitete und auf neuestem Stand ergänzte Auflage, (Berlin: Duncker & Humblot, 1994) . Hans-Joachim Koch and Helmut Rüßmann, Juristische Begründungslehre. Eine Einführung in die Grundprobleme der Rechtswissenschaft ., (München: Verlag C . H . Beck, 1982); Karl Larenz and Claus-Wilhelm Canaris, Methodenlehre der Rechtswissenschaft, (Berlin: Springer-Verlag Berlin Heidelberg, 3rd ed ., 1995) . Klatt, (n .18) at 64 . Klatt, (n .21) at 280 s; Klatt, (n .18) at 64 . Klatt, (n .21) at 280 . Klatt, (n .18) at 60 . Robert Alexy, Theorie der juristischen Argumentation, (Frankfurt: Suhrkamp, 1978) . Nachwort (1991), Antwort auf einige Kritiker, 7 . Auflage, 2012, 283 ss, (289 s) . There is an English version: Robert Alexy, A Theory of Legal Argumentation: The Theory of Rational Discourse as Theory of Legal Justification, (Oxford: Oxford University Press, 2009) . All my references are from the German version .

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which after Brandom’s theory, is to be understood thanks to assertive speech acts . Klatt is convinced that the expressive (material) role/nature of the logical inferences in Brandom’s theory has the same purpose as the idea of language-analytical discourse of Alexy: “[t]he entitlement of single speakers to certain commitments, about the deontic status of certain speech acts and about the inferential relations of propositional and subsentential content“29 this is the reason why, legal and semantic normativity are separable . (iii) A rehabilitation of semantic interpretation is possible in the law . After clarifying the functions of the semantic-analytical discourse, the rules for utilizing the language, and applying the postulates of the new Theory of the Limit of the Wording, a semantical interpretation of the law and its rules will be possible . The interpreters will be looking for a correct application of the law taking into account the circumstances as well as the consequences of the application of the concept in the interpretation, in terms of the semantic-analytical discourse, following the claim to correctness30 . The participants will be following a game of giving and asking for reasons, respecting the deontic score keeping of entitlements and commitments . (iv) Legal argumentation can be objective . Are legal decisions objective? This question is one of central importance in Alexy’s theory of legal argumentation . Alexy argues that after certain conditions from our general practical discourse are met – in which these conditions are to be found – objectivity is possible .31 The possibility of a common use of the language is to be constructed . Klatt supports these theses claiming that in the three dimensionality of linguistic meaning (normativity, object relatedness and reference32) a confirmation of the common language use is to be found . Moreover he argues that the semantic normativity á la Brandom works as a tool for the linguistic analysis Alexy’s33 . Since the inferential relations exist and are present even before and independently of the semantic-analytical discourse, Klatt concludes, that the meaning of rules is also objective . According to him, these relations are only to be made explicit like they are to be made explicit in Brandom’s idea of the material (substantial) inferences34 . What is the scope of these four consequences? Are these arguments sound? These four consequences and the use of Inferentialism in the law must be reviewed . (i)

29 30 31 32 33 34 35

Existence of meanings and semantic limits (and fixation of meaning) . For Klatt meanings exist ergo there are semantic boundaries35 . But what are these boundaries and what does it mean for a meaning to exist? Brandom characterizes the discursive-correctly use of statements/meanings and their content as result of the circumstances and the consequences of utilizing them in a regulated language game . The game of giving and asking for reasons contributes to the determination of both the circumstances and the consequences of the applicaKlatt, (n .18) at 65 . Ibid ., 65 . Alexy, (n .28) at 234 ss . Klatt, (n .21) at 217 . Ibid ., 284 . Klatt, (n .18) at 60 . Ibid ., 64 . He writes: “Semantic Limits exist because meaning exist.”

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55

tion of significance . This in turn allows the correct application . But this neither means that errors are impossible nor that meaning is definitely determined36 . How can Klatt’s idea of the fixation of meaning be understood under Brandom’s approach, if for the later, following the context principle of Frege37, the correctness of the use is dependent on the game i . e . of the circumstances and the consequences of applying the meaning? Brandom project is a discursive game in which inside any assertive speech act can always be errors, that is the reason why in his game could be no fixed meanings in the sense defended by Klatt . This is reassured by the privileged position of pragmatics over semantics in Brandom’s inferentialism . Asking for the existence of a meaning only makes sense if it is, following the context principle, to be found in the game and, consequently, if the meaning is transformable inside the game . Semantic argumentation is from legal argumentation separable . Klatt stresses that the expressive (material) role of logic in Brandom’s theory shares grounds with the Alexy’s idea of semantic-analytic discourse . In order to accept this claim, two further ideas shall be discussed . On the one hand the perspectives on logic and on the other hand the theories of meaning . There is an important difference about the role of logic and logical relations, between the two theories, which posses some difficulties to accepting the claim . It could be summarized by saying that Brandom and Alexy stand with respect to the logic and the logical relationships in different perspectives . The logic is for Brandom instrumental but also material: it serves to make explicit what is implicit in our discourse . For Alexy on the other hand it is understood as a tool to verify the validity of an argument given in the semantic-analytic discourse, as a formal one . Klatt offers no sufficient reasons to put them together . But even if it could be possible, there must be a clear theory of meaning on both sides i . e . it must be clarified which theory of meaning Alexy defends . In the Theory of Legal Argumentation he utilizes the Use Theory of Meaning38 taking distance from the first Wittgenstein, which actually offers part of the arguments for a form of inferentialism in his Tractatus39, ideas that Brandom has further developed . But Alexy also defines the semantic-analytical discourse on a pragmatic level while developing his theory of legal argumentation, privileging the external perspective of justification, which could be seen as close related to Brandom’s semantics40 . In 2011, he spoke at the IVR conference about the existence of human rights . He argued back then that human rights

Brandom, Making it Explicit, (n .8) at 31 s, 240, 295 . See: Gottlob Frege, Die Grundlagen der Arithmetik, (Hildesheim: Georg Olms Verlag, 1961); Verena Mayer, Gottlob Frege, (München: Verlag C . H . Beck, 1996), 74 ss . 38 Alexy, (n .28) at 71 ss . 39 Take for instance the content of 4 .0312: “Die Möglichkeit des Satzes beruht auf dem Prinzip der Vertretung von Gegenständen durch Zeichen. Mein Grundgedanke ist, dass die ‘logischen Konstanten’ nicht vertreten. Dass sich die Logik der Tatsachen nicht vertreten lässt.”. Ludwig Wittgenstein, Tractatus logico-philosophicus: Logisch-philosophische Abhandlung, (Frankfurt: Suhrkamp, 1963) . 40 Alexy, (n .28) at 283 ss . 36 37

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exist because it is possible to think them41 . This position, which seems to recognize a special nature of thoughts, is a claim which leads in Frege’s direction and his idea of a third realm “[t]houghts are neither things of the outer world nor ideas. A third realm must be recognized42” which takes us back from the Philosophischen Untersuchungen43 to the Tractatus44, been again closer to Brandom . Are all these claims compatible or are they mutually exclusive? Due to the different positions Alexy has adopted over time, an unambiguous specification is problematic . This unclarity allows neither to affirm nor to deny Klatt’s claim . (iii) A rehabilitation of semantic interpretation is possible in the law . Klatt stresses that the new Theory of the Limit of the Wording is capable of providing the limits we need in order to carry on with semantic interpretations of e . g . legal provisions through the fixation of meanings . This raises several questions: Operate the game of giving and asking for reasons as far as the meaning is fixed? What happens if for instance, due to the open texture of the law, further disagreements arise? Is the law as a result no longer defeasible? What happens with thick concepts like “lie”, “brutality”, “correctness”, “courage”, which are part of the law and cannot be fixed in their meanings? Even if we accept that a semantic interpretation could be enough to grasp the meaning and purpose of a legal provision, Klatt will face some problems in changing the fixed meaning, which would be of central importance to understand the every time changing nature of law . Unlike Klatt, Brandom’s idea of the superiority of the pragmatics, allows that every new circumstance could be taken as a ground for a new discursive game, so an adjustment of meaning is always possible . (iv) Legal argumentation can be objective . Besides the highly complex issues of open texture and defeasibility in the law just mentioned above, there is another problem . The theory of Brandom does not seem to be suitable for the technical language of law . Legal language is not a general, natural language . Apparently in his argument neglects Klatt the fact that in the law some concepts have special meanings assigned, that various fictions are used and that fictions are a result of representationalism . The meaning of “TÛ-TÛ” or “credit”45, which Ross described as semantically empty in content46, seems to me, cannot be fixed in the course of an inferential process . There are more questions to be asked in relation to this problem: How could someone fix the meaning of those terms utilizing substantive/material logical inferences? How could new arguments take place in the discussion while having the meanings of such terms already fixed? How can this fixation be done taking into account the descriptive and evaluative components of legal norms 41 42 43 44 45 46

Robert Alexy, ‘The Existence of Human Rights’, IVR Special Lecture, Frankfurt 2011: http://www .steiner-verlag .de/uploads/tx_crondavtitel/datei-datei/9783515103282_p .pdf “Die Gedanken sind weder Dinge der Außenwelt noch Vorstellungen. Ein drittes Reich muß anerkannt werden.” Frege, ‘Der Gedanke’, (n .2) at 43 . Wittgenstein, (n .4) . Wittgenstein, (n . 39) . Alf Ross, ‘Tû-Tû’, Harvard Law Review vol . 70, Issue 5, 1952 . Ibid ., 21 . See also: Alf Ross, On Law and Justice, (Berkeley: University of California Press, 1958) Reprinted: Clark, (New Jersey; The Lawbook Exchange Ltda ., 2004) .

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and of thick normative concepts? What happens with thick concepts when their descriptive component consists of a fiction such as with “prudence”, “inspection”, or “good sense”? Whether this would be possible and how, remains unclear in Klatt’s theory . ParT Two: relaTIvIsM of The seManTICal rules In law: neuMann a CrITICIsM of aPPlyIng InferenTIalIsM In law

and

The problems I have pointed out are closely related to several objections raised by Ulfrid Neumann to the use of semantic rules in the law, which he articulated way before Klatt’s argument in his Rechtsontologie und juristischen Argumentation and had further developed in his Juristischen Argumentationslehre47. Neumann’s argument is twofold . On the one hand is (i) the use of semantic rules only relative, and on the other hand he defends (ii) a non-realist-ontological approach to semantics . (i) the relativity of the use of seMaNtic rules According to Neumann, several authors overestimate the meaning of semantics in the legal argumentation theory48 . This overestimation in consequence lead to a reductionism of all methods of interpretation in law to a form of semantic interpretation49; which is the main reason to deny the necessity and the broad scope of semantic interpretation . He clarifies his claim with the concept of “contra bonos mores50” . If there is a legal case in which the concept of “contra bonos mores” is applicable, the controversy or any disagreement about the different possibilities of applying the concept are not consequences of the meaning or the possible meaning of such a concept but rather, it is a problem of both social and ethical reasons; is about the rules under consideration . Even if the rules of language play a role, it is a parallel role to other sources in the process of adjudication . Therefore, a limitation of semantic interpretations in law is not only advisable but necessary . The use of semantical rules in law does not occur per se to solve disputes, but is a relative matter . Not only because they are difficult to determine but because they are neither necessary nor sufficient51 . Neumann claims that the thesis of fixing the meaning of a concept leads to two equally unacceptable results: either to an empty commitment or to the establishing of a norm of action for the judges constraining their judicial activity and powers52 . The legal decisions are always a result of an analysis which has to be made by the judge within his competence and authority . Judges formulate provisions (Entschei-

47 48 49 50 51 52

Ulfrid Neumann, Juristische Argumentationslehre, (Darmstadt: Wissenschaftliche Buchgesellschaft, 1986), 47 . All the translations of Neumann’s arguments into English are mine . Ibid ., 47 . Ibid ., 48 . “Sittenwidrigkeit“, Ibid ., 48 ss . Ibid ., 49 s . Ibid ., 48 .

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dungsnorm)53 . Neumann emphasizes that these decisions might require not only knowledge about the rules of our language but also about social rules (moral, social, and the legal rules themselves) . The two categories are distinguishable54 . Neumann underlines these claims in his ‘Sprache und juristische Argumentation’, where he refutes an inferentialism for the law in the form of a Theory of the Limit of the Wording. Following Wittgenstein’s Investigations thesis, Neumann stresses that the meaning of a concept is a result of its use . Herewith he declines, at least partially, the idea of inferentialism as a theory of meaning for the law55 . He distinguishes between natural languages and the technical language of the law, concluding that both are social constructs sharing an analogous modus operandi56, in order to state against Klatt that neither the social character of language nor its rules are an argument for the possibility of a general mistake of the entire speech community57 . According to Neumann a decision of a judge is to be understood as a provision only when it is accepted that all the rules utilized to reach the decision i . e . the rules of law and other social rules as well as the rules of the language, have a social existence . He explains his only apparently legal realist position – a position he does not represent and explicitly denied – using two arguments . He claims, first, that the decisions of the judge are a result of social rules, and second, that consequently errors can occur in these decisions58 . Questioning Klatt’s argument of the existence of semantic burdens in the Theory of the Limit of the Wording through inferentialism, Neumann emphasizes the distinction descriptive/normative in the language of law, which Klatt seems to forget and writes that “[t]he semantic burdens hold as long as the consensus of the community of interpretation is sufficient”59. (ii) a NoN-realist-oNtoloGical approach to seMaNtics Neumann relativizes the importance of a theory of conceptual realism in law . Again, for him legal provisions and decision are results of social processes in which both semantic and non-semantic rules supply the decisive criteria . He begins to construct his non-realist-ontological approach to semantics by accepting that realism may be necessary, but not sufficient . In his Rechtsontologie und juristische Argumentation60 he writes: “A conceptual realist position offers a necessary but not a sufficient condition…that a concept will be in a realist form interpreted only states that an entity is assigned as its mark

53 54 55 56 57 58 59 60

Ibid ., 48 . Ibid ., 49 s . Ulfrid Neumann, ‘Sprache und juristische Argumentation’, in: Bäcker C ., Klatt M . und Zucca-Soest S ., Sprache – Recht – Gesellschaft, (München: Mohr Siebeck, 2012), 129 s, 135 ss . Ibid ., 135 . Ibid ., 130 . Ibid ., 135 . “…die Wortlautgrenze trage nur so weit, wie der Konsens der Interpretationsgemeinschaft reicht.“ Ibid ., 139 . Ulfrid Neumann, Rechtsontologie und juristische Argumentation, Zu den ontologischen Implikationen juristischen Argumentierens, (Heidelberg/Hamburg: R . v . Decker’s Verlag, G . Schenck, 1979) .

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(denotation), but not that this entity must exhibit some structure close to the relation-association of the concept”61 . In ‘Sprache und juristische Argumentation’ Neumann argues the thesis of a not conceptual-realistic dogmatics again, with support on the use theory of meaning . He claims that a conceptual realism in law can not be held . But also, that accepting the use as the decisive criterion of meaning does not imply an indeterminism or takes any form of radical relativism of meaning as plausible . For him, through the rules of language, which are also social constructs, the rules of the law could be determined and exist as such62 . As a result, the legal rules might be falsified according to the objective world63 . Since the language come into existence only in the reality through the speech community and its rules, he concludes that their falsifiability is enough to show the inviability of a conceptual realism in law64 . These ideas are also discussed in his ‘Das Problem der Rechtsgeltung’65. When we discuss the existence of linguistic rules, Neumann claims, we accept some sort of viscosity of such rules . This is Neumann’s so-called viscosity thesis66 . It states basically that both a relative stability as well as a time-limited objectivity of language and speech rules are possible . Both arguments are intrinsically related to the claims of the non-fixation of meaning and the social existence of the language rules . He argues that through the speech community and its speech acts, which could not be understood separately, the meanings or uses of a word are to be constructed . The practice of the speech community is constitutive of the meaning of a word.67 ParT Three: PragMaTIC MaxIM

and

realIsM

Nevertheless, there are two problems with Neumann’s criticisms . On the one hand is the thesis according to which the use theory of meaning is applicable in the law . On the other hand is the rejection of realism . Now I turn to these two issues to try to explain why we should abandon the use theory of meaning and adopt a pragmaticism – i . e . a form of pragmatism which follows closely that proposed by C . S . Peirce –, and why a form of realism is not only not against but perfectly compatible with the viscosity thesis . Wittgenstein’s Use Theory of Meaning which is explained inter alia in the § 43, § 138, of his Philosophischen Untersuchungen68, is conceived as a counter-position to 61

62 63 64 65 66 67 68

Ibid ., 51 . Neumann writes: “Eine begriffsrealistische Position ist lediglich notwendig, nicht aber hinreichende Bedingung der angeführten Argumentation Dass ein Begriff realistisch interpretiert wird, besagt nur, dass ihm irgendeine Entität als Bezeichnetes zugeordnet wird, nicht aber, dass diese Entität die vom Assoziationsbereich des Begriffs nahegelegten Strukturen aufweisen müsse.” Neumann, (n .55) at 135 . Ibid ., 132 s . Ibid ., 133 . Ulfrid Neumann, ‘Das Problem der Rechtsgeltung’, in: Ulfrid Neumann, Recht als Struktur und Argumentation, Beiträge zur Theorie des Rechts und zur Wissenschaftstheorie der Rechtswissenschaft, (Baden-Baden: Nomos, 2008), 224 ss . Neumann, (n .55) at 134 . Ibid ., 134 .: “Die Praxis der Sprachgemeinschaft ist für die Bedeutung eines Wortes konstitutiv.” § 43: “Man kann für eine große Klasse von Fällen der Benützung des Wortes ‘Bedeutung’ – wenn auch nicht für alle Fälle seiner Benützung – dieses Wort so erklären: Die Bedeutung eines Wortes ist

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mentalism-platonism . Wittgenstein discusses the differences between the use as meaning and the understanding of it . He thinks, that understanding a word is something different from using it (§ 139) . Using a word in a certain way is the only way to determine its meaning, whatever it happens to be (§ 138, § 145,) . He wants to take distance from the traditional view of the meaning being related to the object itself – a position he argued for in his Tractatus – and defend the meaning as use: as all the rules governing its use . Understanding comes after the use we have, not vice versa, being the former a source of a correct form of the later (§ 146) . He also discussed these arguments already in his Blue Book69. But that the meaning of a concept is the result of its use is a contested argument . Since the meanings can be established through the use i . e . following (some) rules, the problem of rules following is a central thesis of the use theory of meaning . For the present purpose, the grounds for rejecting this theory are to be found in this later issue and also in the very weak form of stability defended by Wittgenstein . The first argument is based on the question: how a meaning is to be understood in a language game, if we are dealing with a rule following consideration? The manifold interpretations of the § 20170 of Wittgenstein’s Philosophische Unersuchungen lead to a high discussed issue in Wittgenstein’s philosophy . It is unclear whether it would be possible to consider a rule as a criterion for the establishment of reasons for actions . Kripke for instance, recognizes this as impossible i . e . we do not follow rules, since there are no specific criteria to determine if we are indeed doing this or not;71 there are no facts constituting my having attached one rather than another meaning to the a sign, e . g . the plus sing72 . There are others like Baker and Hacker73 who reject this claim, and argue for the opposite, making it unclear if rules do really show how we should behave, in this particular case, how we should use a concept . There is one more issue about the interpretation of § 201, even with greater relevance for the present argumentation: the claim that following a rule (understanding) does not imply per se its interpretation74, since “[I]nterpretations by themselves do not determine

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sein Gebrauch in der Sprache. Und die Bedeutung eines Namens erklärt man manchmal dadurch, daß man auf seinen Träger zeigt.”, Wittgenstein, (n .4) . Ludwig Wittgenstein, Das Blaue Buch, Preliminar Studies for the Philosophical Investigations (The Blue and Brown Books), (Oxford: Blackwell, 1958), 15 ss “Unser Paradox war dies: eine Regel könnte keine Handlungsweise bestimmen, da jede Handlungsweise mit der Regel in Übereinstimmung zu bringen sei. Die Antwort war: Ist jede mit der Regel in Übereinstimmung zu bringen, dann auch zum Widerspruch. Daher gäbe es hier weder Übereinstimmung noch Widerspruch. Dass da ein Missverständnis ist, zeigt sich schon darin, dass wir in diesem Gedankengang Deutung hinter Deutung setzen; als beruhige uns eine jede wenigstens für einen Augenblick, bis wir an eine Deutung denken, die wieder hinter dieser liegt. Dadurch zeigen wir nämlich, dass es eine Auffassung einer Regel gibt, die nicht eine Deutung ist; sondern sich, von Fall zu Fall der Anwendung, in dem äußert, was wir ‘der Regel folgen’, und was wir ‘ihr entgegenhandeln’ nennen. Darum besteht eine Neigung, zu sagen: jedes Handeln nach der Regel sei ein Deuten. ‘Deuten’ aber sollte man nur nennen: einen Ausdruck der Regel durch einen anderen ersetzen” Wittgenstein, (n .4) § 201 Saul Kripke, Wittgenstein on Rules and Private Language: An elementary Exposition, (Oxford: Basil Blackwell, 1982) . Ibid ., Ch . 1 . Baker, G . P . & Hacker P . M . S ., Wittgenstein: Rules, Grammar and Necessity, Essays and Exegesis, second, extensively revised edition by P. M. S. Hacker (2009), (Oxford: Wiley-Blackwell, 1985) . Ibid ., 129 s .

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meaning”75 . About this point are strong argumentations like those of McDowell76 and Budd77 against Kripke and Wright78 not only plausible, but also compatible: meaning and reference of a concept are the result of applications in a rule-governed way . But this claim turns problematic with Wittgenstein’s discussion of this in relation to semantic rules (the former discussion took rules of behavior) . He is against having a general rule, a semantic rule of some kind, where the correct use of a concept should be established . He writes The rules of grammar may be called “arbitrary”, if that is no mean that the aim of the grammar is nothing but that of the language . If someone says “If our language had not this grammar, it could not express there facts” – it should be asked what “could” means here .79

This shows that for Wittgenstein the “grammar of language” – semantic rules consequently – is arbitrary i . e . it does not mimic the structure of the world (which was the case in the Tractatus) . Even if there are semantic rules, they are not foundational to semantic normativity . After this very brief reconstruction of a very vast philosophical discussion, two problems arise for Neumann’s account . If he follows the idea of antirealism in Wittgenstein, which is central in Kripke’s and Wright’s interpretations, there is no way to explain the rule following activity (understanding) in using a meaning . If he rejects it and follows the interpretation offered by Baker, Hacker or more closely that of McDowell, there is no way to reject realism . Here comes the second argument . Wittgenstein considers that the stability of meaning would not be necessary or may not be possible . He observes in § 324 of the Philosophical Investigations that we follow the rules of a language game and have for some specific actions no justifications . So in every language game, depending on the rules and the use, it would be possible to always change the meaning . This argument contradicts the construction of an objective social reality, leading either to a strong relativism or perhaps to a form of skepticism . Institutional facts and the question of an objective reality, which exist partly by virtue of human agreement, would be meaningless80 . Furthermore it could be stated, that a use theory of meaning may result in a form of conceptual relativism (conceptual relativity); a cultural conceptual relativism81, which does not 75 76 77 78 79 80

81

Wittgenstein, (n .4) § 198 . John McDowell, Mind, Value, and Reality, (Harvard: Harvard University Press, 2001), specially essay eleven: ‘Wittgenstein on Following a Rule’, 221 ss . Malcolm Budd, ‘Wittgenstein on Meaning, Interpretation and Rules’, Synthese, Vol . 58, No . 3, Essays on Wittgenstein’s Later Philosophy (Mar ., 1984), 303–323, 303 ss . Crispin Wright, Wittgenstein on the Foundations of Mathematics (London: Duckworth, 1980); Crispin Wright, Realism, Meaning, and Truth (Oxford: Blackwell, 1986) . Wittgenstein, (n .4) § 497 . John Searle, The Construction of Social Reality, (London: Penguin, 2 . ed, 1996), 14; See also: John Searle, Making the Social World. The Structure of Human Civilization (Oxford: Oxford University Press, 2010) specially Chapter five: ‘The General Theory of Institutions and Institutional Facts: Language and Social Reality’ Putnam, (n .6); About the forms of conceptual relativism and other forms of relativism in general see: Susan Haack, ‘Reflections on Relativism: From Momentous Tautology to Seductive Contradiction,’ in James E . Tomberlin, ed ., Philosophical Perspectives, 10: Metaphysics (Oxford: Blackwell, 1996), 298–314, and in the Supplement to Noûs, 1996: 298–314; reprinted in Susan Haack, Manifesto of a Passionate Moderate: Unfashionable Essays (Chicago, IL: University of Chicago Press, 1998), 149–66 .

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see true as what is the case in a relationship between what is said and being what is said (reality or cutouts of reality)82 but as a product of culture; a result of social acceptance . This brief reconstruction clearly shows, I hope, that the claims of relative stability and of a minimum of content would be excluded . To make the idea of an objective social reality sound, which is crucial for the legal language, a different theory of meaning is required . Since the starting point Brandom’s, the base for Klatt’s theory criticized by Neumann, is a form of pragmatism – even if he seems to me more late-Wittgenstein-ish83 than pragmatist – it seems appropriate to return to a pragmatism, or better to a pragmaticism, a theory of meaning which could be utilized for a way out . The reasons are, at least, the following: it permits the uses of a material as well as a formal logic, which are both necessary in the legal practice; it enables a form of cognitivism, which is compatible with the reality of thick concepts, for instance that of “contra bona fides”; it enables some boundaries of meaning, but neither making it depending on the use nor on an irreducible normativity; and it makes the viscosity thesis and a form of realism perfectly compatible . In ‘How to Make our Ideas Clear’ Peirce articulated his pragmatic maxim (PM) Consider what effects, that might conceivably have practical bearings, we conceive the object of our conception to have . Then, our conception of these effects is the whole of our conception of the object .84

The PM serves as the conceivable foundation of his theory of meaning . By applying the pragmatic maxim he shows that a clear definition of the concept could be given, looking at its effects . The effect or the practical bearing of the concept “is the whole of our conception of the object” . According to Pierce it makes no sense to talk about things that are unknowable for us85 . To reinforce this thesis, he utilizes several examples . For instance he takes the concept heavy: “[a] body is heavy means simply that, in the absence of opposing force, it will fall…”86 which should be understood in relation to the concept of force . The concept of force is also to be understood due to its effects: “[w]hat we mean by the force itself is completely involved in its effects.”87 This PM also works as an explanation or as a method to provide an explanation of terms such as

82

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85 86 87

I am following Ramsey’s account of truth: “[a] belief is true if it is a “belief that p” and p, but false if it is a “belief that p” and – p…”, “Truth, we say, is when a man believes that A is B and A is B, whether or not such an occurrence can be accurately described as a correspondence between two facts…”. Frank P . Ramsey, On Truth: Original Manuscript Materials (1927–29) from the Ramsey Collection at the University of Pittsburgh, Nicholas Rescher and Ulrich Majer (eds .), (Pittsburgh, PA: University of Pittsburgh Press, 1991) 11 . See also: Frank P . Ramsey, ‘Facts and Propositions’ (1927), in: Frank P . Ramsey, The Foundations of Mathematics and Other Logical Essays, ed . Braithwaite, R . B . (London: Routledge and Kegan Paul, 1931), 138–55 . The expression I borrow from Susan Haack . C . S . Peirce, ‘How to Make our Ideas Clear’, in: Peirce, (n .1), CP .: 5 .402 . Peirce had emphasized that by adding conceivable to the PM the pragmatism of James is rejected . As Lorenz Schulz clearly suggested to me “Peirce is concerned about the would-be’s, that is, about realities in Thirdness, and not about exist-things of Secondness” . About the categories and their relations: CP .: 1 .24–26, 1 .300–353 . One of his objections to cartesianism . Ibid ., CP .: 5 .403 . Ibid ., CP .: 5 .403 .

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“reality” . Applied to the term “reality”, a question needing an answer comes into the discussion: What effects do things in reality generally have? Peirce writes: [r]eality, like every other quality, consists in the peculiar sensible effects which things partaking of it produce . The only effect which real things have is to cause belief, for all the sensations which they excite emerge into consciousness in the form of beliefs88

Our ability of conceiving the object must therefore be able to distinguish what effects, that might conceivably have practical bearings; the recognition of these effects is necessary for the meaning . Since the thesis of Peirce does not support the idea of all our beliefs having a correspondence with reality, there is a criterion to identify true beliefs, which are only those meeting the correspondence bond for the meaning of reality as a result of using the PM . On the contrary, false beliefs are those established by fictions . Peirce writes: “The question therefore is, how is true belief (or belief in the real) distinguished from false belief (or belief in fiction).”89 Here adds Peirce his theory of truth and claims that the result depends on the fixation of belief . The PM itself has no content leading to a theory of truth . Rather, it deals with meanings . When applied to concepts, the PM will work as a search for the general habits to show the effects of the application of the concepts . Some consequences or the practical effects of the application should be known (established) to determine the meaning . The meaning is nothing but the sum of all these practical effects . To make his whole theory sound, Peirce defends a realism which he derives from the ideas of Duns Scotus . The scholastic realism90 that Peirce defends against nominalism – which accepts our categorizations as arbitrary i . e . some things have an existence independently of our categories – is a theory which, as Haack91 explains, deals neither with truth or the truth-bearers nor with scientific theories, but with predicates . He argues for the use of the concept of reality instead of the existence, since the former, which includes not only generals but particulars as well, is broader as the later, including only generals . Reality is defined by Peirce as follows: “Thus we may define the real as that whose characters are independent of what anybody may think them to be.”92 That means that something is real, regardless of what could be thought about it by every single person . A fundamental problem seems to arise: this idea could lead to the belief that reality is independent of human thought . Consequently, it could be argued that some properties of reality are unknowable . This seems to create a paradox: On the one hand it could be said that reality is unknowable and on the other hand it is possible to formulate a true definition of reality . The result is unacIbid ., CP .: 5 .406 . Ibid ., CP .: 5 .406 . The term realism is a highly contested one in philosophy . Realism refers to theories, which defend that something is independent of us . With this simple statement, is clear why we have so many different forms, which cannot be subordinated to the same concept . About the differences and the types: Susan Haack, ‘Realism’, Synthese 73, 275 (299), 1987 . Haack makes a very clear and precise distinction about the possibilities . She recognizes two major groups of realisms . On the one hand realism about science, and on the other hand realism about truth . As she puts it: “[w]hat distinguishes them from one another is what, exactly, is held to be independent of what about us…”. 91 Hack, (n .90) at 283 . 92 Peirce, (n .1) CP .: 5 .405 . The distinction between existence and reality, which is crucial for scholastic realism, is often forgotten by naturalistic constrictions throwing existence and reality into the same category, which is a mistake . CP .: 1 .322–353 . 88 89 90

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ceptable . But Pierce’s claim goes beyond . He explains that the independency is to be understood only regarding individuals . He writes: But it may be said that this view is directly opposed to the abstract definition which we have given of reality, inasmuch as it makes the characters of the real depend on what is ultimately thought about them . But the answer to this is that, on the one hand, reality is independent, not necessarily of thought in general, but only of what you or I or any finite number of men may think about it; and that, on the other hand, though the object of the final opinion depends on what that opinion is, yet what that opinion is does not depend on what you or I or any man thinks93

In any case if the above abstract definition of reality has an obscure meaning, it is still possible to explain it using the PM94 . This idea, which acts as a strong argument for a realism represented in ‘How to Make our Ideas Clear’ is not the first argument from Peirce for realism . Ten years earlier, he presented some arguments for realism in his essay ‘Some Consequences of Four Incapacities’ . He argues against nominalism, claiming that a realist might accept the reality as a true representation . Peirce writes: “[i]s simply one who knows no more recondite reality than that which is represented in a true representation. Since, therefore, the word “man” is true of something, that which “man” means is real.”95 Since cognition is not absolute determined or determinable, the existence of real generals is for Peirce indisputable96 . What Peirce’s realism allows is the construction and justification of a core meaning not dependent upon individuals . Since the meaning is dependent on the effects as well as how they are recognizable, this realism is not an ontological one, which is what Neumann rejects . The relationship between meanings and the speech community can be explained as a reciprocal one . Peirce writes: Man makes the word, and the word means nothing which the man has not made it mean, and that only to some man…In fact, therefore, men and words reciprocally educate each other; each increase of a man’s information involves and is involved by, a corresponding increase of a word’s information .97

This realism does not pose any trouble to the viscosity thesis . In Neumann’s account there are both a core meaning and a rejection of atomism in meaning . From this two arguments follow no rivalry . Pierce’s scholastic realism is not only not problematic but absolutely compatible with the viscosity thesis . A pragmaticist theory of meaning has the following consequences for this discussion: (i)

(ii)

That a core meaning (viscosity) is conceivably for speech community, but not as a form of fixation á la Klatt, but as a result of the recognizable consequences or effects, that might conceivably have practical bearings. Since the entire speech community could change it, this does not imply a fixation of meaning . That a possible common misapplication of the meaning by an entire speech community is excluded . Since the core meaning resulting and its change is within the capacities of the society, the concepts and the meanings could be

Ibid ., CP .: 5 .408 . Ibid ., CP .: 5 .402–08 . Ibid ., CP .: 5 .312 . “[s]ince no cognition of ours is absolutely determinate, generals must have a real existence” Ibid ., CP .: 5 .312 . 97 Ibid ., CP .: 5 .313 . 93 94 95 96

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understood only inside the speech community . Both nominalism and atomism are herewith rejected . (iii) That relativism is rejected in the form of legal realism . Both of Neumann’s theses find support in a scholastic realism . The legal decisions cannot be taken as singular, because the competence and the appropriateness of the legal decisions are to be understood as a social fact . What determine the decisions as a result must be compatible with the consequences of the meaning i . e . with the effects that might conceivably have practical bearings . Thus, Neumann’s thesis is sound: since the decisions are dependent on this core meaning, a common misapplication of a concept/meaning is excluded . If this theory of meaning is sound and the realism proposed by Peirce is of use for the law, then the following questions should be explored: how are the legal concepts and their effects to be understood inside the practical discourse in general as well as those in the language of the law in particular, especially those recognized as thick? Is it possible to utilize the PM in normative contexts, without any further criterion to determine meaning? How are the normativity and the force of these concepts to be explained: as a legal normativity, as a part of the practical discourse, or as being a mixture of both in different cases taking into account their effects? Regarding the nature of thick concepts there are also questions to be answered concerning the nature of legal reasoning, for instance: what reasons do we have to assume that legal interpretation (or legal reasoning generally) is the same across all legal systems?98 These issues are of utmost importance and in need of a debate, but are still part of the research I have in progress . ConCludIng reMarKs A new Theory of the Limit of the Wording must be rejected . Its reductionist agenda of making several kinds of problems inside the law for adjudication a case for semantic normativity is, as far as it is presented and argued, unsustainable . The arguments presented against this theory by Neumann are sound . There is only a relative use of semantic rules in order to determine the course of a legal decision which involves such thick normative concepts, which results from utilizing several kinds of social sources (different kinds of rules) . In cases into which thick concepts like that of “contra bona fides” are part of the legal disagreement, it is indisputable that there is more at stake than a language game of giving and asking for reasons to construct a semantic rule to solve the hard case . Neumann writes: “The reductionism of the discussion to a terminological difference obscures the insight, that ultimately are the values of who is enforcing the law, which decide on the approval or denial of the “contra bona fides” in the mistresses Testament case”99 The valI am very thankful to Brian Bix for this question and for making me aware, for my research, of the necessity of discussing the relation between the way thick concepts are to be understood and the nature of legal reasoning utilizing those concepts . 99 “Die Reduzierung der Diskussion auf eine terminologische Differenz verdeckt die Einsicht, dass es letztlich Wertungen des Rechtsanwenders sind, die über die Bejahung oder Verneinung der Sittenwidrigkeit des Mätressen-Testaments entscheiden.” Neumann, (n .47) at 48 . He argues the point again in: Neumann, (n .55) at 137 . 98

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ues of those enforcing the law must be accepted in the society: the consequences must be plausible . If they are not, then the two theses defended by Neumann against legal realism could not be understood i . e . that the decisions of the judge are a result of social rules and that errors can occur in these decisions . After the arguments of the use theory of meaning previously discussed, a form of strong relativism or skepticism will follow, which is accepted by the legal realist, denying the two arguments Neumann’s . To overcome this reductionist enterprise and the consequences brought by the use theory of meaning, I suggest he should accept the PM . This would allow explaining such values with the idea of their effects . The concept “contra bona fides” is regarding its effects, conceivable to have practical relevance and because of those effects, considered to have a certain core- relative-stable meaning . The legal norms which have thick moral concepts in their content and a social (institutional) reality could also be understood due to their effects . This is by all means compatible with Neumann’s claims and the rejection of inferentialism in law . The viscosity thesis is through the realism developed by Peirce not only plausible, but completely sound . Realist arguments offer support to this thesis which is of high importance for the German legal methodology in general and for the adjudication processes regarding hard cases involving thick normative concepts in particular . In a few words: a pragmaticist account offers better grounds for the claim of the multiplicity of sources in the adjudication process and also a strong support of the viscosity thesis through its realism, which are the key for rejecting inferentialism and at the same time keeping some objectivity in the law .

saMuele chilovi The sPeaKer dIleMMa In legal IMPlICaTures: CoMParIsons and furTher Issues1 InTroduCTIon In recent work,2 I have argued that a few plausible assumptions about the nature of law-making, conversational implicatures, and collective intentionality jointly lead to the possible occurrence of a law-making act such that it would be indeterminate which content is made legally valid by it .3 Given this, I presented two intuitively plausible principles for the aggregation of individual intentions, in order to eliminate the indeterminacy . But under a certain configuration of speakers’ intentions, the two principles turn out to yield mutually inconsistent results, and so we are left with a puzzle . Since the puzzle depends on the conflict between these aggregation principles, and since each of them enjoys some degree of prima facie plausibility, the puzzle boils down to having to make a hard choice between them . Following past uses of the term in analogous circumstances, I call this situation a ‘dilemma’ .4 Abstracting from the specifically legal features of the argument, the puzzle in general concerns how the intentions of the members of a group of jointly acting agents should be aggregated if the group is to collectively communicate a given content . Then, given standard assumptions on the nature of implicatures, the dilemma is about what counts as the implicated proposition . And given suitable assumptions regarding the nature of law, the problem is how to determine what the law requires . What are the morals that we should draw from it? In this paper, I take up this question, and argue that the dilemma resists possible criticisms aimed at dissolving it . Then, the upshot that we should draw is that since the scenario that triggers the dilemma is one where the two principles yield mutually inconsistent results, and since the dilemma is in good standing, the correct way out of it is to defend one of the two principles over the other . In the first part of the paper, I start by introducing the notion of legal implicature, together with the main assumptions that lead to our problem, then I briefly outline the speaker dilemma, and finally I clarify it by sketching the differences and similarities that it bears to the discursive dilemma .56 After these introductory re1 2 3 4 5 6

Samuele Chilovi, ‘The Speaker Dilemma in Legal Implicatures’, in Anchoring Institutions. Democracy and Institutions in a Half-automated World, ed . Pompeu Casanovas et al . (Springer, forthcoming) . Samuele Chilovi, ‘The Speaker Dilemma in Legal Implicatures’, in Anchoring Institutions. Democracy and Institutions in a Half-automated World, ed . Pompeu Casanovas et al . (Springer, forthcoming) . As is well-known, the notion of a conversational implicature was introduced and elaborated by Paul Grice . See Paul Grice, Studies in the Way of Words (Cambridge, London: Harvard University Press, 1989) . Chistian List and Philip Pettit, ‘Aggregating sets of judgments: an impossibility result’, Economics and Philosophy, 18 (2002), 89 . A fuller treatment of these issues is provided in Chilovi, ‘The Speaker Dilemma in Legal Implicatures’ (n . 1) . The discursive dilemma has been the focus of much recent study, especially by List and Pettit . See, e . g ., List and Pettit, ‘Aggregating sets of judgments: an impossibility result’ (n . 3) .

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marks, I turn to the main goal of the paper . In Part Seven, Eight and Nine, I defend the dilemma from attempts to dissolve it that are based on the rejection of the premise concerning the nature of law-making, collective intentionality, and conversational implicatures respectively . ParT one: law

and

law-MaKIng

First, let me outline the main features of the framework I shall work with . Although the framework is, I think, implicit in much contemporary theorizing about the nature of law, setting it out in clear terms is also of independent interest, given how rarely it is made explicit in the literature . I take law creation in modern societies to centrally involve the performance of law-making acts by some authority – a collection of law-making agents – and I take laws to be propositional contents that possess the property of legal validity .7 Since nothing can be a law unless it is a law of some jurisdiction (at some time), we need to relativize the notion of a law to a jurisdiction-time pair in order to capture this dependence . Clearly, the connection that ties laws to jurisdictions is grounded in the connection that validity bears to jurisdictions (and times) . We might then think of the predicates ‘is valid’ and ‘is law’ as expressing either a binary relation between contents and jurisdictions, or a ternary relation between contents, jurisdictions, and times . Finally, I shall use the phrase ‘the law’ (or equivalently ‘legal system’) to refer to the set of all laws . Thus, we can say that the law of a jurisdiction j at a time t is the set {c1, …, cn} of all and only those contents that are valid in j at t .8 Second, I regard law-making as being a specific illocutionary type . In particular, I follow Stalnaker’s account of assertion, and regard the speech act that law-making is in dynamic terms – specifically, in terms of the essential effect that it has on the legal system . In this case, the essential effect of a law-making act consists in updating the legal system by adding, modifying, or subtracting some content to it .9 This can be captured by the following schema: (LM) for any authority A, jurisdiction j, and provision s (a sentence token contained in a legal source): if A in j enacts s, then some of the contents of A’s utterance of s becomes valid in j . Roughly put, what this schema tells us is that a law-making (enactment) act is essentially an act that alters the legal system that a jurisdiction has by making it the case that some new content is valid there .10 7 8 9 10

I shall use ‘valid content’ and ‘proposition of law’ interchangeably . The latter expression was introduced by Dworkin in Ronald Dworkin, Law’s empire (Harvard University Press, 1986) . For more on this framework, see José Juan Moreso and Samuele Chilovi, ‘Il diritto come linguaggio (nella filosofia analitica contemporanea)’, in Che cosa è il diritto. Ontologie e concezioni del giuridico, ed . Giorgio Bongiovanni et al. (Giappichelli, forthcoming) . Robert Stalnaker, ‘Assertion’, in Syntax and Semantics, 9 (1978), 315 . For more details on these definitions and for the underlying legal metaphysics, see José Juan Moreso and Samuele Chilovi, ‘Interpretative Arguments and the Application of the Law’, in Handbook of Legal Reasoning and Argumentation, ed . Giorgio Bongiovanni et al. (Springer, forthcoming) .

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Part two: LegaL ImPLIcatures Now the following question becomes crucial. Which, among a range of contents that might be expressed by an authority while performing a law-making act, is added to the system? As we know from the philosophy of language, for any utterance, there can be four levels of content that are associated with it: the literal meaning of the sentence uttered, the semantic content of the sentence relative to the context of utterance, what is said by the speaker in uttering the sentence, and what the speaker implicates by saying what she says.11 Given that the speaker dilemma derives from the application of distinct principles for the aggregation of speakers’ intentions, two assumptions in this respect are central to the emergence of the puzzle. The first is that there be a level of content that is determined at least in part by the speaker’s intentions. This follows from a standard Gricean account of conversational implicatures, according to which implicatures form part of speaker meaning, which in turn is entirely a function of the speaker’s communicative intentions.12 In addition to this, many philosophers of language also regard explicit content (what is said) as being (at least) partly determined by the speaker’s intentions;13 if they are right, instances of the speaker dilemma may also arise in connection with this level of meaning. However, since in order to argue that some instance of the dilemma may occur I need not make any such assumption, I restrict my case to implicatures alone. Secondly, in order for the puzzle to concern what the law says, we need to assume that implicatures may at least sometimes be legally valid. With respect to this, I have no conclusive argument to offer. However, to get a sense of why the assumption is in fact quite plausible, one should bear in mind the pervasiveness of implicitly conveyed content in ordinary communication; this should lead us to suspect that implicitly conveyed content may be widely present in the context of law creation as well. To appreciate why this may be so, consider a nice example given by Andrei Marmor.14 The case he envisions is that of a directive requiring restaurants to have clean and well-maintained bathrooms indoors; although it is neither part of what the text of the directive means nor of what it says that the bathrooms should also be accessible to the clients, this content is clearly part of what the lawmakers pragmatically implied. Given how ordinary such cases are, if one wished to claim that implicatures can never be law, it seems that she might have a hard time explaining how the law could manage to prescribe what we intuitively think it does.

11 12 13

14

Of the extended literature on the semantics-pragmatics interface, see, e. g., Scott Soames, ‘Drawing the Line Between Meaning and Implicature – and Relating Both to Assertion’, Nous 42 (2008), 3: 440, and Kent Bach, ‘Conversational Impliciture’, Mind and Language 9 (1994), 2: 124. This interpretation of Grice is canonical at least since the work of Neale. See Stephen Neale, ‘Paul Grice and the Philosophy of Language’, Linguistics & Philosophy, 15 (1992), 5: 509. See, e. g., Bach, ‘Conversational Impliciture’ (n. 10), Soames ‘Drawing the Line Between Meaning and Implicature – and Relating Both to Assertion’ (n. 10), and Stephen Neale, ‘On Location’, in Situating Semantics: Essays on the Philosophy of John Perry, ed. Michael O’Rourke et al. (Cambridge, Mass: MIT Press). See Andrei Marmor, ‘Can the Law Imply More Than It Says? On Some Pragmatic Aspects of Strategic Speech’, in Philosophical Foundations of Language in the Law, ed. Andrei Marmor et al. (Oxford: OUP).

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Part three: coLLectIve IntentIons

and

PrIncIPLes

of

aggregatIon

Law-making bodies are usually made up by more than one person. So if we are to ascribe an intention to the body itself, we should ask how it is that its intentions come into existence, and how they are to be individuated. The first question finds a natural answer within those views that explain collective intentions as being a function of the intentions of single agents. These views gain their plausibility from the fact that they explain a relatively obscure notion – that of an intention that is had by a body, organization, or group – in terms of a familiar one – an individual’s mental state. In slightly more precise terms, we can state the dependency of group intentions on its members’ mental states by means of the following schema: (CI) A group of people g collectively means that p by uttering a sentence s only if some of the members of g collectively mean that p by uttering s. Under an appropriate interpretation of the implication, this schema states that some sort of dependency relation holds between group intentions and individual ones. However, the schema is still too unspecific, since it leaves indeterminate two elements that in many cases are crucial to determining what collective intentions a given group has (roughly, in all cases where not every member of the group means the same thing). In order to settle those issues, we need a specification of ‘some’ and ‘g’ in (CI). That is, we need some principle that tells us (i) how many members of a given group need to have overlapping intentions in order for the group to possess the intention over which they overlap, and (ii) whose are the intentions that need to be taken into account when retrieving a group’s intentions. Here are two intuitively plausible principles that decide (i) and (ii): V-principle: a law-making body b makes an implicature p valid in a jurisdiction j by enacting a provision s only if the majority of the voters in b mean that p in enacting s. (‘V’ for voters) S-principle: a law-making body b makes an implicature p valid in a jurisdiction j by enacting a provision s only if the majority of the supporters of s in b mean that p in enacting s. (‘S’ for supporters). The two principles are similar, in that both answer the first question by appealing to a majoritarian criterion. But they also differ, for whereas the former applies the majority-based counting rule to the group formed by all the agents who took part to the enactment process, the latter applies it to the sub-group constituted just by those who voted in favour of the provision. On many occasions – i. e. whenever the majority of the supporters are also the majority of the voters – the two principles will yield the same result. Yet, there may be scenarios where the combination of the intentions of the speakers involved are such that the V-principle and of the S-principle come apart. This is where the speaker dilemma arises. Part four: the sPeaker dILemma Consider a legislature made up by five legislators, Ann, Bob, Carol, Dave and Emma, all involved in the enactment of statute X, which contains provisions s and r. Ann and Bob vote in favour of X intending the utterance of s to implicate that p;

71

The Speaker Dilemma in Legal Implicatures: Comparisons and Further Issues

Carol votes for X intending the utterance of s to implicate not-p; Dave and Emma vote against X since they both want the proposition that not-p to be semantically encoded in X (thus intending to implicate not-p), and since they also oppose the enactment of r . Does the legislature implicate that not-p? The case presents a combination of intentions that generates a conflict between the S-principle and the V-principle . For if by uttering X the proposition that not-p was implicated, it would be incorrect to say that the supporters’ intentions alone determine statutory meaning; but if by uttering X, the proposition that p was implicated, then it would not be true that each voter’s intention has an equal say in determining legal content .15 Matrix 1 lawmakers

vote

Meaning intention

ann

X

P

bob

X

P

Carol

X

not p

dave

not X

not p

emma

not X

not p

v-principle

s-principle

not p

p

ParT fIve: The dIsCursIve dIleMMa In this part, I outline some of the main differences and similarities that the speaker dilemma bears to the discursive dilemma . The latter is a generalization of the doctrinal paradox,16 and its main features have been presented and extensively studied by List and Pettit .17 For present purposes, we can safely work out the comparison by working with the speaker dilemma together with a simple instance of the doctrinal paradox .18 Imagine a law saying that someone is to be held liable just in case his/her conduct is causally responsible for the plaintiff ’s harm, and s/he has a duty of care towards the plaintiff . Now consider a court composed by three judges, Ann, Bob, and Carol, all involved in making a decision as to whether Joe should be held liable . Assume, further, that every judge has to cast one vote on each of the conditions on which the defendant’s liability judgment depends . Finally, take their judgments (votes) to be correctly represented by the following matrix .

15 16 17 18

The presentation of the speaker dilemma, as well as the formulation of (LM), (CI), the S-principle and the V-principle closely follow the ones I originally gave in Chilovi, ‘The Speaker Dilemma in Legal Implicatures’ (n . 1) . On the doctinal paradox, see Lewis Kornhauser and Lawrence Sager, ‘The one and the many: adjudication in collegial courts’, Californa Law Review, 81 (1993), 1 . See e . g . Christian List and Philip Pettit, ‘Aggregating sets of judgments: two impossibility results compared’, in Synthese 140 (2004), 207 . The example of doctinal paradox that I use is taken from Philip Pettit, ‘Groups with minds of their own’, in Social Epistemology: Essential Readings, ed . Alvin Ira Goldman et al. (Oxford: Oxford UP) .

72

Samuele Chilovi Matrix 2 judges

Cause of harm (p)

duty of Care (q)

ann

Yes

Yes

bob

Yes

No

Carol

No

Yes

Under these conditions, a dilemma arises due to the fact that there are two distinct methods that may be used to derive a collective judgment on the defendant’s liability on the basis of the individual judgments . (Bear in mind that the defendant can be held liable if and only if both conditions are taken to be satisfied) . Following one criterion for the aggregation of single votes, for each judge, we should look at his/ her judgment on each of the premises, and derive a corresponding judgment on her part as regards the final decision . Then, we check if the majority is favourable to the liability verdict or not, and, if it is, the defendant should be held liable . On the basis of this principle, in the case at issue here the defendant would not be held responsible . Following the other criterion, by contrast, for each condition (p, q) we should ascertain if the majority of the judges has voted in favour of it, and then derive an affirmative verdict on the final issue just in case there is a majority of judges in favour of each of the premises . On the basis of this principle, in the case at hand the defendant would have to be held responsible . So the two criteria yield two incompatible results . So we have a dilemma . The present case bears some similarity to the speaker dilemma . First, both puzzles concern the aggregation of individual attitudes (votes, judgments) to reach a decision on behalf of a multi-membered group . Secondly, both dilemmas derive from there being two distinct, and prima facie plausible, ways of getting a collective result out of a set of single judgments . Thirdly, both cases present us with a scenario where the two methods of aggregation yield mutually inconsistent outcomes . On the other hand, the speaker and discursive dilemma also differ in some important respects . For in the case of the discursive dilemma, a logical rule partly determines how the final decision depends on the prior settlement of the single matters upon whose resolution the verdict is conditional . According to one aggregation principle, once each judge has decided on each preliminary issue, the decision that we get for each judge on the final matter is logically implied by his/her previous vote . Thus, since Ann has expressed an affirmative judgment on both p and q, and since r (‘the defendant is liable’) if and only if p and q, it logically follows that Ann’s judgment on r must be affirmative as well . And since Bob did not express a positive judgment on both p and q, his judgment on r must be negative (likewise for Carol) . According to the second principle of aggregation, once we settle on a majoritarian basis the group’s collective judgment on each of the premises, it logically follows that the group’s decision on the conclusion must be affirmative (given that the majority was reached in favour of both conjuncts of the compound formula in the biconditional) . In the case of the speaker dilemma, by contrast, no such logical rule is at work . We merely aggregate the individual meaning intentions of the lawmakers on the basis of different criteria for selecting the sub-group to which the counting principle is applied . Nothing dictates that the content implicated by each lawmaker

The Speaker Dilemma in Legal Implicatures: Comparisons and Further Issues

73

or that the content implied by the group on the basis of the chosen principle should logically follow from the previous decisions taken at other stages of the enactment process, or from the configuration of the individual intentions . In brief, the discursive dilemma emerges as a function of the divergent principles together with logic, while the speaker dilemma is a function of the conflicting principles together with pragmatic facts (facts about the agents’ intentions) . So the two cases are relevantly dissimilar .

ParT sIx: aTTeMPTs

To

dIssolve

The

Puzzle

Our problem is that a set of seemingly plausible premises jointly lead to the conclusion that according to the law of j, p and not p . So we must reject some premise . For a start, there are at least four different possible responses, each corresponding to the denial of one premise: (LM), (CI), (S-principle), and (V-principle) . It should be noticed, though, that the dilemma arises only if one accepts both (LM) and (CI), for only then will there be a hard choice to be made between the two principles . Hence, if one is willing to reject (LM) or (CI), there will simply not be a dilemma to begin with . For this reason, the positions that make this move are tantamount to dissolutions of the dilemma . By contrast, those who accept (LM) and (CI), will have taken the dilemma at face value, and should accordingly make a choice between the two principles . In doing so, they will count as offering a solution to the dilemma . On a cost-benefit analysis of philosophical theories, we evaluate different positions on the basis of their ability to minimize theoretical costs and maximize theoretical benefits . Although what counts as a cost or benefit may at times be hard to say, or even be part of what the dispute is about, we do have some sense of these relative measures . For instance, a view that accepted all the premises at the cost of having to accept a true contradiction would clearly have a worse pay-off than any of the options above . Underlying the idea that the cost-benefit analysis of philosophical theories is a legitimate tool for theory choice is the thought that abductive methods can be applied to solve philosophical problems . For a theory that fared better than all others on a cost-benefit analysis level would be more likely to have offered an inference to the best explanation of the phenomenon in question . I believe that abductive methods are legitimate methods in philosophy; and I think that a cost-benefit analysis generally offers good guidance in theory choice . In the remainder of the paper, I will argue that we should reject three alternative ways of dissolving the dilemma, because each of these ways is more costly than giving up the V-principle or the S-principle, and therefore that it withstands even closer inspection . ParT seven: In defenCe

of

(lM)

(LM) establishes a connection between utterance content and legal content, for it states that the effect of any successful law-making utterance is to add some of its contents to the legal system . (LM) has great explanatory power, for it is able to trace the source of much of what we clearly regard as law – a body of information to

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Samuele Chilovi

which we are already committed in virtue of our pre-theoretical beliefs – to descriptive facts about what the law-makers did, to semantic and pragmatic facts . Absent a principle equal (or at least similar) to it, it would be a mystery just what one may appeal to in order to find the grounds of what we are pre-theoretically committed to regard as law . The grounds to which (LM) points are, by contrast, not only ones that can be clearly identified, but ones in whose existence we already have independent reasons to believe: legal texts, the semantic facts about their meaning, and the pragmatic facts that are in general responsible for generating implicatures . In brief, (LM) posits a connection between law and language that we simply cannot dispense with, if we are to hold on to common sense . However, it may be useful to highlight how (LM) should not be overestimated . What (LM) does not claim is to provide the whole story about why the law says what it does . That would not be realistic . For plausibly, if (LM) is true, it is true because some facts of some other sort make it so, since it cannot be reasonably regarded as stating a brute fact . Indeed, this also explains why (LM) is compatible with different brands of positivism and antipositivism alike . For all that (LM) says it may just be that its truth holds in virtue of the existence of a secondary rule of recognition that assigns to the utterances of the authority the ability of having the impact on the legal system that (LM) claims they have .19 Or it might be that what grounds the legal impact of the authoritative utterance is the fact that the exercise of authority, or the content of its utterances (or both), comply with some basic moral principles .20 Either way, (LM) has to be grounded in other, more basic, entities if it is to be able to state a viable principle at all . So by charity of interpretation, this is the way in which one should read it . ParT eIghT: In defenCe

of

(CI)

(CI) looks also very attractive . Intentions are mental states, and mental states are things that are typically had by living organisms, not by groups or organizations . At the same time, for many different purposes that pertain to various areas of inquiry or ordinary life, we need and want to ascribe intentions to collective entities . We wish to say that this parliament acted in such-and-such a way, or that this organization is responsible for the damage that was caused, for instance . And since there is a tension between these two commitments, while both of them enjoy intuitive credibility, the optimal result is achieved if we manage to find a way of reconciling them . (CI) is precisely a way of solving this apparent tension by allowing us to fulfil both of our desiderata . The way it does so is by offering a reduction – or some other sort of dependence relation – of collective intentions to the intentions that are held by single agents . In more primitive terms, we speak of a given person as having an intention to mean that p, while derivatively we are allowed to ascribe to the collective

19 20

The notion of rule of recognition was famously introduced by Hart . See Herbert Hart, The Concept of Law (Oxford: Oxford UP, 1994) . For an overview of the debate between positivism and antipositivism in the philosophy of law, see Hart, ‘The Concept of Law’ (n . 18), Joseph Raz, The Authority of Law: Essays on Law and Morality (Oxford: Oxford UP, 1979), Dworkin, Law’s Empire (n . 6), and Mark Greenberg, ‘How facts make law’, Legal Theory 10 (2004), 157 .

The Speaker Dilemma in Legal Implicatures: Comparisons and Further Issues

75

body an equal intention to that effect on the condition that a certain amount of its members have that intention . So (CI) is an optimal solution to a pressing problem . ParT nIne: MarMor

on The

PragMaTICs

of

legal language

In recent work, Marmor has offered a range of considerations that militate against the possibility that Gricean or Gricean-like maxims could be operative in strategic contexts .21 On the premise that legal speech takes place in a strategic context, he has claimed that these considerations cast serious doubts on the possibility that conversational implicatures can ever be law . If he were right, this would provide an undercutting response to the speaker dilemma . In what follows, I argue that even if he had given us good reasons to doubt that any maxim applies to legal speech, the conclusion that implicatures cannot be law would still fail to follow . Marmor’s analysis focuses on conversational contexts where the parties engaged in the communicative exchange exhibit strategic behaviour, and questions whether Grice’s account of conversational implicatures applies to them . As his insightful analysis highlights, strategic speech is characterized by two defining features: first, in strategic contexts the parties to the communicative interaction try to implicate more than they are willing to make explicit; second, there is a significant level of uncertainty or indeterminacy with respect to which norms govern the conversation, which (if any) maxims apply to it, and to what extent the parties can be presumed to abide by them (in case any of them apply) . The first and second series of features are mutually supporting: the ability of getting across oblique implications is enhanced by the uncertainty of the applicable maxims and norms; and the difficulty in establishing clear and precise maxims is partly due to the parties’ opaque behaviour, which in turn reflects their interest in exploiting the indeterminate setting . Legal speech comes in (at least) two varieties: on the one hand, there is a conversation that takes place amongst the lawmakers during the enactment process; on the other, there is an ongoing exchange that involves the lawmakers and the courts . Both conversations are strategic in character, and instantiate both of the general features that are typical of strategic contexts in general . The first element of strategic speech permeates the first variety of legal contexts in virtue of the fact that oftentimes the lawmakers involved in the enactment process need to settle on a compromise in order to achieve their goals . This, in turn, leads them to agree on texts that constitute what Marmor calls ‘tacitly acknowledged incomplete decisions’ . And since, typically, many of the parties to the agreement fail to fully satisfy their demands, they will tend to try to communicate at the pragmatic level whatever further content they didn’t manage to state explicitly in the agreed on text . According to Marmor, these facts have two salient consequences . First, the lawmakers are likely to intend to implicate incompatible propositions; this, in turn, threatens to generate indeterminacy, in as much as it is unclear just who exactly is to count as the authoritative speaker, or what kind of contribution a speaker is allowed to make . This point is fair, 21

Marmor, ‘Can The Law Imply More Than It Says? On Some Pragmatic Aspects of Strategic Speech’ (n . 13), and Andrei Marmor, ‘The Pragmatics of Legal Language’, Ratio Juris 21 (2008), 423 .

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Samuele Chilovi

I think . Indeed, one could regard the speaker dilemma as raising precisely this issue, while reading the specific contribution that it makes as consisting in the fact that it presents a distribution of intentions that is also capable of putting at odds two promising attempts to tackle it . The second consequence casts doubts on the applicability of any conversational maxim to legal speech, and is the one that is meant to lead to the conclusion that no implicature can be law . We can recast it as follows . First, Marmor claims that it is doubtful that the Gricean maxims apply to strategic contexts because their function is to facilitate conversations that are aimed at the cooperative exchange of information, whereas in the present context no such aim is generally in place . Secondly, he holds that the structure of strategic behaviour is such that it hinders the emergence of any analogous rule that may guide the conversation therein, as any similar item would be in tension with the context’s first essential feature . This line of thought is fair, I think, as far as it goes . The problem lies with deriving from it any conclusion as regards which propositions are, and which are not, implicated in context . Deriving any such conclusion is problematic in view of the role that the maxims play . One could think of this role as being either evidential, or constitutive . But only if the constitutive conception was vindicated, would the conclusion follow, since if their role were merely evidential, then even if it could be shown that no maxims apply to contexts of this sort, this would be irrelevant to the question of which contents are, and which are not, implicated there . Two factors militate against the constitutive view . First, the canonical understanding of the role of the maxims has it that their function is that of being heuristic devices that the speakers exploit in order to facilitate uptake on the addressee’s part, and that the addressee relies on in order to perform reliable abductive inferences as to what the speaker meant to convey . Implicatures are part of speaker meaning, and hence constitutively determined by the speaker’s intentions alone . All that the maxims do is to help the hearer figure out what the speaker meant . Second, by Marmor’s own lights, it would be better if the maxims were interpreted in the evidential sense, since the constitutive reading would be in tension with the essential features of strategic speech . For if it was the production of implicatures that depended on there being some applicable maxims, how could the speaker manage, or even (rationally) try, to implicate anything in the absence of them? In other words, if the maxims had a constitutive role, it would not be possible for the two essential features of strategic speech to be jointly instantiated . That is, strategic speech would not be possible . But I think that Marmor’s characterization of strategic speech is more plausible than the rejection of the standard evidential account of the maxims’ role, and so I think that we should reject the constitutive view of the maxims’ role . Then, the contention that no maxims can be operative in strategic contexts, even if correct, will not prevent implicatures from being generated there . In the course of the preceding discussion, I reviewed some of the ways in which one may try to dissolve the speaker dilemma, and argued that none of them succeeds . The upshot is that the dilemma is in good standing, and one should defend either the V-principle or the S-principle by showing it to be superior to the other .

The Speaker Dilemma in Legal Implicatures: Comparisons and Further Issues

77

ConCludIng reMarK After a brief exposition of the speaker dilemma in legal implicatures, I have set out to fulfil two main goals . First, I outlined the discursive dilemma and explained how the two cases differ from one another; second, I tried to show that the speaker dilemma stands on firm footing . This latter goal was pursued mainly by offering considerations that tell in favour of the assumptions on which the dilemma rests . The upshot is not meant to invite any scepticism about the possibility of either collective speech or legal implicatures . It just means that the appropriate way of dealing with the puzzle consists in recognizing it, and facing it head-on by giving good arguments in favour of the correct aggregation principle . acknowledgments: This research was supported by the project The Makings of Truth: Nature, Extent, and Applications of Truthmaking, project code FFI201235026, Gobierno de España .

ParT II – objeCTIvITy

and

legal reasonIng

aNdré ferreira leite de paula* dIsCovery

and jusTIfICaTIon In

law

InTroduCTIon The applicability of the distinction between discovery and justification in Law is not obvious . It is most clear in natural sciences due to the less controversial objective character of natural laws and to the easy applicability of the correspondence theory of truth . If a physicist, e . g . Sir I . Newton, discovers the natural law of gravitation due to the observation of an apple falling from a tree, no one would say that one could substitute the whole complex of calculations and scientific explanations he has provided afterwards by referring to this anecdote . The event that has caused the discovery itself is not relevant to the justification of the scientific claim supposedly originated by it . As it is very often the case, things become much more complicated in Law . Due to the socially dependent and value-based character of legal objects (norms, precedents, evidences, interpretations, theories), one could have, at first glance, the impression that there is nothing to be ‘discovered’ behind legal claims, and that therefore, the very applicability of the distinction between discovery and justification should be rejected . Indeed, this perspective is commonly held within many accounts of Legal Theory1 . Sometimes, legal scholars do recognize a distinction between discovery and justification, but they say that it cannot be ‘separated’ .2 Sometimes, they hold very sharp distinctions in order to maintain the fundamental distinction of descriptive and normative investigations3 . However, it is not always clear what legal scholars actually mean when they agree or disagree about the applicability of the distinction in law . They often presuppose different meanings of both ‘discovery’ and ‘justification’ when holding a ‘mild’ * 1

2

3

I thank the German Academic Exchange Service (DAAD) and the National Council for Scientific and the Technological Development – Brazil (CNPq) for the financial support that made this research possible . From hermeneutical perspective, Gaetano Carlizzi rejects the distinction between discovery (Herstellung) and justification (Darstellung) of the judicial decision due to the creative tasks of judges and lawyers when dealing with cases and interpretations . According to him, the distinction of contexts makes only sense in natural sciences due to the objective character of causal relations . In law, according to him, neither the facts of the case nor legal norms have a plain existence that could be ‘discovered’ . See Gaetano Carlizzi, ‘Historische und Theoretische Hauptfragen der “gegenwärtigen juristischen Hermeneutik”’, in Juristische Hermeneutik zwischen Vergangenheit und Zukunft, ed . Meder et al . (Baden-Baden: Nomos, 2013), 105–120 (at 109–110) . For example Marko Novak, who holds a ‘mild’ distinction between discovery and justification due to the inextricability of empirical psychological aspects of decision-making and parallel rational assessment of decision hypothesis . See Marko Novak, ‘The Argument from Psychological Typology for a Mild Separation Between the Context of Discovery and the Context of Justification’, in Legal Argumentation Theory: Cross-Disciplinary Perspectives, ed . Christian Dahlman et al. (Dordrecht: Springer, 2013), at 145 . See for example Hans-Joachim Koch, Helmut Rüßmann, Juristische Begründungslehre. Eine Einführung in die Grundprobleme der Rechtswissenschaft (Munich: Beck, 1982), at 1–2 .

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or ‘sharp’ distinction . The first purpose of this article is to clarify the many meanings of discovery and justification that have been commonly assumed in Legal Theory and some important versions of the distinction between them (Part One) . One of the most important versions of the distinction is the dualism between genesis and validity . Genesis and validity are, at least in principle and in this lean formulation, different questions . Almost no one would say that the validity of a legal claim made by a lawyer depends directly on his biographical details, his personality, or on casual empirical events in his life, such as how well he slept at night . This is nearly uncontroversial both in Philosophy of Science4 and in Legal Theory5 . This lean distinction between discovery and justification has, according to Schickore and Steinle, a “persistent if unstated force”6 . But things become complicated when we regard the relationship between claims of genesis and claims of validity . Naturally, every claim of validity must have a far and near history, which contains factors that gave rise to it . Validity must be ‘discovered’ in some way . Accordingly, every legal claim or theory can be traced back to some biological, psychological, historical, sociological or cultural aspect of its formation – mostly a combination of many of these factors . In the twentieth century, our knowledge has experienced a huge growth with regard to all these aspects of society, culture and history in which law is embedded . As I will discuss, this development has led to more ‘realistic’ attitudes towards law . It has inaugurated a trend of expansion of mostly empirical claims that tend to displace the normative perspective of law . These claims either declare its nonexistence or, at least, introduce a kind of inherent dependence on an external element, which is often seen as a ‘more realistic’ perspective . For example, when law is thought of as a product of emotions, instincts, tradition, power, ideology or sociological functions, these elements appear to be explanations of the ‘real’ origins of legal claims, whereas legal reasons given by judges or argued by legal scholars supporting their claims appear as symptoms, artifacts, naiveties or fictions . Especially after the wide diffusion of social constructivism in Humanities7, Legal Theory has gained an empirical note8 that makes law appear as ‘communication’, ‘side-effect’, ‘metaphor’, ‘irony’, ‘mask’ or something else opposed to enlightened rationality . All of this has led to a very close relationship between genesis and validity . Sometimes even to the very negation of the distinc4 5

6 7 8

See Paul Hoyningen-Huene, ‘Context of Discovery versus Context of Justification and Thomas Kuhn’, in Revisiting Discovery and Justification. Historical and philosophical perspectives on the context distinction, ed . Jutta Schickore et al. (Dordrecht: Springer, 2006), 119–131 . See Eveline Feteris, Fundamentals of Legal Argumentation. A Survey of Theories on the Justification of Judicial Decisions (Springer: Dordrecht 1999), at 10 . For the German context, see Ulrich Schroth, ‘Hermeneutik, Norminterpretation und richterliche Normanwendung’, in Einführung in die Rechtsphilosophie und Rechtstheorie der Gegenwart, ed . Kaufmann et al. (C . F . Müller: Heidelberg, 2011, 8th edn .), at 296 . Jutta Schickore, Friedrich Steinle, ‘Introduction: Revisiting the context distinction’, in Revisiting Discovery and Justification. Historical and philosophical perspectives on the context distinction, ed . Jutta Schickore et al. (n . 4), at X . I will specify in which sense I use the expression social constructivism in Part Four . Ino Augsberg has criticized the normatively unreflected reception of empirical-sociological models of explanation in Law and talked in this respect about an empirical turn in Legal Science . See Ino Augsberg, ‘Von einem neuerdings erhobenen empirischen Ton in der Rechtswissenschaft’, in Der Staat 51, 2012, 117–125 .

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Discovery and Justification in Law

tion between them: law appears to have been finally ‘explained’ by descriptive or skeptical undertakings . I will address some actual challenges of the dualism between genesis and validity in Parts Four and Five and argue that this distinction is, although it has originated in Philosophy of Science with the main focus on natural sciences, also fundamental in Law . ParT one: dIsCovery and jusTIfICaTIon and versIons

In

legal Theory: TerMInology

Every investigation about discovery and justification should be firstly aware of terminological issues . This is the case not only in Legal Theory, but also in Philosophy of Science, where the distinction originated . When Schickore, Steinle, and others revisited the distinction in a congress in 2006, one of the discussions which perpetrated most of the topics was the different meanings the context distinction can assume and the variety of implicit implications it can have9 . Hoyningen-Huene, for example, has identified at least five different versions that the distinction has assumed in Philosophy of Science since it has gained force in the Circle of Vienna10 . Before we go further, since the distinction of contexts, which has been created in order to avoid misunderstandings, has become itself a source of misunderstandings, it is necessary to clarify some frequent meanings it can assume in contemporary Legal Theory . In the following, I will give an overview of diverse approaches of the distinction in order to sketch, in the end, a summary of the main versions that it can assume . The distinction between discovery and justification has gained force in Legal Theory with R . Wasserstrom’s book, The Judicial Decision (1961) . Wasserstrom was concerned with a comprehension of law beyond Utilitarianism and American Legal Realism . He has observed the rise of empirical analysis of legal decision-making in the first half of the twentieth century both in the United States of America and in Europe (American Legal Realism, School of Free Law, Utilitarianism) . He has identified a problem with the indiscriminate oscillation between empirical and normative analysis, since “arguments which support the one may well be inappropriate to the other”11 . For example, many approaches were concerned with the judicial ‘de9 10

11

See Jutta Schickore et al. (eds .), Revisiting Discovery and Justification. Historical and philosophical perspectives on the context distinction (n . 4) . According to Hoyningen-Huene, version one is: “Discovery and justification are temporally distinct processes: At the beginning, something is discovered . Subsequently, it is justified .” Version two: “The distinction concerns the process of discovery versus the methods (in a wide sense) of justification (or testing)”; Version three: “The analysis of discovery is empirical, whereas the analysis of justification or testing is logical”; Version four: “Within this version, the difference of history, psychology and sociology of science from philosophy of science is methodological: the former are empirical, the latter is logical . Empirical disciplines deal with the process of discovery, philosophy of science deals with the logical analysis of justification (testing) and is normative .”; Version five: “in this version, the DJ distinction notes a difference between questions asked from the point of view of the meta-level” as for example “what has happened historically during this discovery?” and “can a statement be justified? Is it testable?” . See Paul Hoyningen-Huene, ‘Context of Discovery versus Context of Justification and Thomas Kuhn’ (n . 4) . Richard Wasserstrom, The Judicial Decision (Oxford, Oxford University Press, 1961), at 3 .

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cision process’ both in descriptive and in normative senses, but it was “quite possible [to] have not been talking about the same procedure . If the talk about judicial hunches, emotions, and personalities relates to questions of discovery, it need not be inconsistent with a wholly different analysis concerning procedures of justification”12 . In Wasserstrom’s time, the many empirical analyses of the factual way in which legal decisions are reached have led already to enormously ambiguous theses as they often suggest normative implications, but they do not discuss them directly13 . Intending to put order in the debate, Wasserstrom suggested a “rigid dichotomy” between the “process of discovery” and the “process of justification”14, as he called them, which mean asking different kinds of questions15. Sharp distinctions between discovery and justification have been held mostly by representatives of normative legal theories as a means of characterizing the normative scope of their theories and of maintaining the dualism between ‘is’ and ‘ought’ . For example, McCormick and Alexy have developed argumentation theories with explicit mention of the dichotomy of discovery and justification in which they focused their scope on the later . The context of justification has been traditionally comprehended as the proper province of normative legal reasoning16, whereas factors that influence the factual emergence of legal beliefs remain tendencially outside of its scope . According to Atienza, judicative or administrative organs do not have, in principle, to explain their decisions, but only to justify them17 . Similarly, one can read in Alexy’s theory that the internal justification (interne Rechtfertigung) does not aim to reproduce the actual thoughts of the decision-maker, but to present it in a way it can be rationally justified18 . In Germany, the distinction of contexts has been maintained with the terms Herstellung (production, fabrication) and Darstellung (presentation) of the decision . The discussion of problems related to this dichotomy was introduced in Germany before it gained force among English-speaking legal theorists . Early in the twentieth century, Isay, a thinker of the School of Free Law, analyzed the discovery process of legal decision and identified a gap between the actual way of how decisions are reached and their posterior justification19 . The distinction between Herstellung and Darstellung of the decision, often also referred to as Rechtsfindung and Rechtfertigung, has also been held in Germany in order to distinguish between illegitimate motives and legal reasons that gave rise to a 12 13

14 15 16 17 18 19

ibid ., at 31 . As it is commonly the case in utilitarian approaches when normative claims are raised . The utilitarian pattern of thought is mainly functionalistic: it analyzes empirical reality in order to suggest means that are adequate to some ends while not spending as much engagement in an interpretive discussion about which ends are actually desirable . Wasserstrom, The Judicial Decision (n . 11), at 27 . ibid ., at 27 and 31 . Neil MacCormick, Legal Reasoning and Legal Theory (Oxford: Stanford University Press, 1997), at 4 . See also Kola Abimbola, ‘Abductive Reasoning in Law: Taxonomy and Inference to the Best Explanation’, in Cardozo Law Review 22, 1683–1689 . Manuel Atienza, Las Razones del derecho. Teorías de la argumentatión jurídica (México D . F: Universidad Nacional Autónoma de México, 2005), at 4 . Robert Alexy, Theorie der Juristischen Argumentation. Die Theorie des rationalen Diskurses als Theorie der juristischen Begründung, (Frankfurt am Main: Suhrkamp, 1983), at 282 . Hermann Isay, Rechtsnorm und Entscheidung, (Berlin: Scientia Verlag, 1929), at 78 and 177 .

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judicial decision and to distinguish the areas of legal methodology and argumentation theories . According to Neumann, while legal methodology is focused on the production of a right decision, argumentation theory is centered on the rational reconstruction and critical analysis of courts’ decisions20 . The distinction between Herstellung and Darstellung can also mean a difference between ‘factual determinants’ and ‘good reasons’ . According to Koch and Rüßmann, the contexts of production and presentation of the decision should answer different questions of origin and justification; the answer to a question of origin does not mean, in principle, nothing to a question of justification and vice-versa21 . A mild distinction between discovery and justification has been held within legal pragmatism . Some approaches focus the attention of Legal Theory to the legal procedure . That is, where one realizes more clearly that the factual way in which decisions are reached does not correspond to the traditional syllogistic patterns of justification . According to K . Abimbola, “anyone who pays serious attention to real-life legal processes will acknowledge that facts, arguments, and evidence – all the ingredients of rational inference in legal settings – have to be imagined and generated . Hence, legal theorists who expunge discovery from their theories can, at best, render nothing more than a parallaxed view of legal reasoning”22 . A central concern of pragmatism in legal procedure is the logic of abduction23, which is recognized as a ‘logic of discovery’ . Abduction is a pattern of argument introduced by Peirce and attempts to explain how it is possible “to select from an indefinite number of explanations of a puzzling natural phenomenon a relatively small number of hypothesis for confirmation or disconfirmation”24 . This is necessary for legal reasoning since non-deductive reasoning about circumstances of the case under conditions of limited empirical information is the most frequent situation in Evidence Law . Although abduction is creative and non-deductive, in a formal logical sense, and hence not completely determined in advance by legal norms, it has, according to Brewer, a rational ‘force’25 and contains already elements of justification . Beside pragmatism, approaches on Legal Psychology are also engaged in analyzing justification in discovery and discovery in justification . In the book, “Discovery” in Legal Decision-Making, B . Anderson observes that most contemporary accounts of legal reasoning actually mis-represent or even ignore the ‘actual’ decision-making process26 . Following the path of American Realists and based on Lonergan’s psy20

21 22 23 24 25 26

Ulfrid Neumann, ‘Wahrheit statt Autorität . Möglichkeit und Grenzen einer Legitimation durch Begründung im Recht’, in Ulfrid Neumann, Recht als Struktur und Argumentation, (Baden-Baden: Nomos, 2005), at 87–88 . Ulfrid Neumann, ‘Theorie der Juristischen Argumentation’, in Rechtsphilosophie im 21. Jahrhundert, ed . Brugger et al. (Frankfurt am Main: Suhrkamp, 2008), at 236 . Ulfrid Neumann, ‘Juristische Methodenlehre und Theorie der Juristischen Argumentation’, in: Rechtstheorie 32 (2001), at 255 . Koch, Rüßmann, Juristische Begründungslehre. Eine Einführung in Grundprobleme der Rechtswissenschaft (n . 3), at 1–2 . Abimbola, ‘Abductive Reasoning in Law: Taxonomy and Inference to the Best Explanation’ (n . 16), at 1684 . ibid . Scott Brewer, ‘Exemplary reasoning: Semantics, Pragmatics, and the Rational Force of Legal Argument by Analogy’, in: Harvard Law Review, vol . 109, no . 5 (March 1996), at 945–946 . ibid ., at 947 . Bruce Anderson, “Discovery” in Legal Decision-Making (Dordrecht: Springer, 1996), at 2 .

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chology, Anderson describes the psychological process of making a decision in basically five elements: puzzling, hunching, checking and testing, presenting27 . ‘Irrational’ factors of formation of beliefs are, according to him, not an obstacle for legal decision-making . They are, rather, a condition of the possibility of judgments of value28 . Because of the inextricability of the processes of generating hypothesis and justifying them, as well as the possibility of judges being aware of their own psychological process of decision-making, Anderson rejects a sharp separation between discovery and justification . His analysis includes an interesting study of the case R . v . Morgentaler, Smoling and Scott, where Justice Bertha Wilson, the first Justice in the Canadian Supreme Court, had to make a decision about abortion . Anderson discusses Justice Wilson’s personal argumentative strategy of presenting and discussing her own context of discovery by putting questions and answers as they were the case in her own thought process29 . In Legal Sociology, Luhmann held a mild distinction between Herstellung and Darstellung of the judicial decision . According to him, complexity and contingency of legal decision-making are not just temporary imperfections that could someday be substituted by a more accurate analysis that would enable the legal order to be submitted to an automatic decision-making process . Instead, the ‘cognitive openness’ of the legal system to stimuli from other systems of society in the environment of law is always present and forces law to respond to contingency according to its own parameters of communication . One of the proper legal parameters of communication is the legal syllogism . The syllogistic presentation of the decision is, according to Luhmann, a relevant working style in legal decision-making, but not an accurate portrayal of the factual activity of deciding . Logical and legal standards of presentation of the decision are, according to him, not decisive for the real psychological process of reaching a decision30 . The turn of the attention of legal scholars from justification to discovery can also be exemplified by Hoffmann-Riem’s Governance Approach . He stresses the complexity of the legal decision-making process and argues for a greater attention to the context of the decision31 . According to him, traditional Legal Theory and dogmatics have been too focused on the presentation of the result of the decision . Due to the openness of legal norms and, consequently, to the spectrum of possibilities of a decision open to the judge in the course of a trial, Hoffmann-Riem suggests the introduction of a ‘governance’ way of thinking, which strongly and flexibly considers the interests of subjects and institutions involved . In order to manage appropriately the interests of enterprises and institutions and the economy of resources disputed, a change in deontological legal thinking is, according to him, necessary . Legal Theory and dogmatics should reflect upon its own activity to produce the results of a more convincing decision . This reflection presupposes openness to the influ27 28 29 30 31

ibid ., at 10 . Bruce Anderson, ‘Weighting and Balancing in the Light of Deliberation and Expression’, in Legal Argumentation Theory: Cross-Disciplinary Perspectives (n . 2), at 121–122 . Anderson, “Discovery” in Legal Decision-Making (n . 26), Chapter 2 . Niklas Luhmann, Recht und Automation in der öffentlichen Verwaltung . Eine Verwaltungswissenschaftliche Untersuchung (Berlin: Duncker & Humblot, 1966), at 51–52 . Wolfgang Hoffmann-Riem, ‘Governance als Perspektivenerweiterung in der Rechtswissenschaft’, in: Austrian Law Journal, vol . 1/2014, 3–19, at 7 .

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ence of situative factors, prejudices and preconceptions in a context of limited rationality32 . Lawyers should recognize, he says, the limitations of specific legal knowledge and consider more strongly common sense and the common knowledge produced outside of legal dogmatics . After this brief overview of the variety of senses and functions of the distinction between discovery and justification, we can sum up some relevant meanings the terms discovery and justification can assume . In doing this, I am not concerned with a mere reproductive summary of what has been already said, but more with an ideal-typical classification for analytical purposes . The term discovery commonly comprehends the following factors of legal decision-making: (1) empirical factors that influence the emergence of legal decisions on a causal basis, such as emotions, intuitions, instincts, etc . I will call them empirical factors of discovery in strict sense; (2) factors that influence the emergence of legal decisions such as institutions, culture, religion, society, etc . These are mostly sociological factors . I will call them empirical factors of discovery in a broad sense; (3) reasons considered by the arguer in order to reach a decision . These reasons of the phase of discovery, as I will call them, can be: a . genuine legal reasons; or b . non-legal reasons (typically called ‘motives’), such as personal motivations, religious beliefs, moral and political considerations33; (4) the creative process of raising hypothesis, making inductions and abductions in the course of a legal procedure . This generation of interpretations of norms and facts consists of acts of discovery; As opposed to discovery, the most basic elements meanings of justification are: a) the argumentation that supports the final result of the decision, i . e ., the ratio decidendi . This is the justification in strict sense; b) the conclusion of the decision (e . g ., the condemnation or acquittal, the order to pay compensation, etc .); this is the decision in strict sense . c) the presented decision as a whole . It includes ratio decidendi (above, ‘a’), obiter dicta and the conclusion (above, ‘b’) . In other words, it corresponds to the complete presentation of the decision for the public sphere, as is commonly carried on by courts . It assumes in many legal orders the logical form of a syllogism and is the basis for criticism of judicial decision-making by legal scholars and public opinion . It corresponds to the German Darstellung; d) The truth-value34 of the justification (‘a’); 32 33

34

ibid ., at 13 . The distinction between, on the one hand, genuine legal reasons and, on the other hand, moral and political reasons does not imply a positivist ‘separation theses’ according to which genuine legal reasons would be detached from moral and political reasons . Even comprehensions of law which combine it inherently with morals and politics must recognize that at least some moral and political reasons are not proper legal reasons . This is enough for the purposes of this discussion . The talk about the truth-value of justifications and decisions does not commit per se to any specific theory of truth in law . Many models based on different conceptions of truth, for example

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e) The truth-value of the decision . This element of the decision should be analytically separated from the above mentioned on many reasons . Logically, it is possible to achieve a true conclusion based on false premises . Legally, the same decision may be justified on some reasons but not on others . The conceptual differentiations developed above are necessary in order to avoid possible ambiguities that arise when legal scholars talk about ‘factors’, ‘acts’, ‘context’, ‘process’ and ‘reasons’ of discovery or justification . Many of the distinctions suggested here follow the sophisticated typology proposed by Silveira35 . The many possible combinations of meanings of either discovery or justification as described above can originate different versions of the distinction, each of which could be interesting for various purposes of investigation . Of course, the ‘mildness’ or ‘sharpness’ of the distinction will always depend on what version is actually adopted . Starting from the possible meanings mentioned above, we are able to combine them in order to characterize the many topics that can be discussed within the framework of discovery and justification . The most relevant distinctions are as follows: I . Epistemic dichotomy . When we combine the version ‘1’ of discovery and the version ‘c’ of justification, i . e ., empirical factors that influence legal decision-making with the final presentation of the judicial decision, then we achieve the standard version of the distinction between discovery and justification in Legal Theory36 . On one hand, it means there is a gap between empirical factors that in some sense condition legal decision-making and on the other hand, the a posteriori selection of relevant normative and factual circumstances that should be addressed explicitly in the judicial decision for the purpose of its justification . Since discovery ‘2’ also comprehends empirical factors of generation of the decision in a broad sense, I will call the combination of discovery ‘1’ and ‘2’ with justification ‘c’ the epistemic dichotomy between discovery and justification and will discuss it in Part Two . II . Normative dichotomy . If we combine the version ‘3’ of discovery with the version ‘c’ of justification, we achieve a possible divergence between the real reasons of decisions (both legal and non-legal) and the justification actually presented by the judicative branch . I will call this the normative dichotomy between discovery and justification because it is a dichotomy between effective and presented reasons . I will discuss this topic in Part Three . III . Dualism of genesis and validity . Combining discovery ‘1’ and ‘2’ with justification ‘e’, i . e ., empirical factors both in strict and in broad sense that influence the emergence of legal claims, on the one hand, with the normative standards of decision and truth, on the other hand, we can achieve the dualism between genesis and

35

36

as ‘correspondence’, as ‘correctness’, as ‘regulative idea’, as ‘best argument’, as ‘ideal consensus’ etc . may consider relevant the distinctions presented here . Many terminological problems in this respect have been precisely solved by Luiz Silveira in: Luiz Silveira, ‘Discovery and Justification of Judicial Decisions: Towards More Precise Distinctions in Legal Decision-Making’, in Law an Method, 2014–09, available in http://www .lawandmethod .nl/tijdschrift/lawandmethod/2014/09/RENM-D-14-00003, requested on February 2nd 2016 . Which corresponds to the standard formulation also in Philosophy of Science . See Hoyningen-Huene, ‘Context of Discovery versus Context of Justification and Thomas Kuhn’ (n . 4), at 120 .

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validity . This is a very broad issue and concerns Legal Philosophy in many ways . I will address it only in regard to new challenges from social constructivism (Part Four) and some non-rational factors of emergence of legal claims (Part Five) . IV . Logics of discovery and justification . The background for this topic has been the idea originated from Philosophy of Science that only justification of scientific theses is susceptible to rational guidance, whereas discovery has no logic and is susceptible of occurrence by chance (e . g ., Newton’s apple) . While some scholars say that there is no logic of discovery at all, others claim that there is an autonomous logic of discovery grounded on induction and/or abduction . Provided that there is logic in discovery, another issue is whether it must be exactly the same logic of justification . All these epistemological issues have correspondents in Legal Theory37 . Schematically, this topic can be broadly represented by combining discovery ‘3’ (reasons of discovery) and ‘4’ (acts of discovery) with justification ‘a’ (justification in strict sense) and ‘d’ (the truth-value of the justification) . Apart from some connections with other topics discussed in this article, I will not be specially focused on this issue in the following . V . Dichotomy between Epistemology and Ontology . Combining ‘3 .a’ with ‘e’, i . e ., genuine legal reasons with the truth-value of a decision, we approach the intricate relationship between the truth-value of a legal decision and its proper justification38 . In Philosophy, this corresponds to the dichotomy between Epistemology and Ontology . In this respect, basic questions that arise are whether the truth-value of a legal claim depends on the justification actually given to it; whether it depends at least on a possible ideal justification; or whether truth in law can subsist and/or be achieved without justifications at all, i . e ., whether it is the case that justification is only a possible or necessary means to reach the end of truth, but does not make a theses true . Although I will not be focused on this topic in this article39, I will discuss in Part Five some non-rational factors of emergence of legal claims and argue that, in this respect, rational justification is a necessary means to achieve certainty of truth in law . ParT Two: The ePIsTeMIC dIChoToMy beTween dIsCovery

and jusTIfICaTIon

In Part One, we have seen that the standard version of the distinction between discovery and justification in Law consists in the difference between empirical factors that influence legal decision-making and the way in which decisions are justified . The detection of this gap has led to sharp criticisms of the rationality of legal decision-making . Early in the twentieth century, representatives of the School of Free Law have put forth the provocative question of how could we suppose legal decision-making as being rational if justifications are written down as an a-posteriori-ra-

37 38 39

For a brief overview, see Martin P . Golding, ‘A Note on Discovery and Justification in Science and Law’, in: Nomos, vol . 28 (1986), 124–140 . The combination of justification ‘a’ with justification ‘e’ would be nearly equivalent . For a discussion about some of these topics in legal argumentation theory, see Ulfrid Neumann, Juristische Argumentationslehre (Darmstadt: Wissenschaftliche Buchgesellschaft, 1986), at 6–10 . In theoretical Philosophy, see William P . Alston, Beyond “Justification”. Dimensions epistemic evaluation (Ithaca and London: Cornell University Press, 2005) .

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tionalization of decisions taken otherwise40 . Under these circumstances, the justification of the decision seems to be only ostensive and insincere41 . Gräfin von Schlieffen has put forth this skepticism in a quite provocative way . She has analyzed the gap between Herstellung and Darstellung from the perspective of Legal Rhetoric and claimed that the syllogistic way of presenting decisions is a “highly functional naivety”42 . According to her, the syllogistic presentation is a way of law legitimating itself by creation of an illusion of certainty in a realm of uncertainty43 . From the rhetorical point of view, the public presentation of reasons appears as a fiction of genesis that does not aim at the truth, but is the mere production of plausibility for the audience44 . The very distinction between production and presentation has, according to her, a rhetorical character . The rhetorical approach has been supported also by sociological and historical analysis of legal decision-making . Based on the works of Max Weber and Niklas Luhmann, legal theorists have accentuated the symbolic value of a rational presentation of decisions . When functionalistically considered, a rational presentation enhances the degree of the social acceptance of decisions45 . Sociological research has stated that much of the information required by the decision-maker in the course of a procedure has been actually irrelevant for the decision-making itself and only used either in its presentation or in order to give the public and parties the impression of a well informed decision-making process46 . As we can see, Legal Theory has commonly identified a gap between discovery and justification and regarded it in many ways as a problem to be solved . A very common attitude nowadays is to regard justification as being too idealized, as a myth of rationality47, as lacking correspondence with the ‘actual’ decision-making process, and, in a more critical interpretation, as not being transparent enough in regard to real factors that led to its emergence, which could even lead to an accusation of generalized cynicism within the judicative branch towards the parties of a trial and the public sphere . In the following, I will address two aspects of this problem that makes a generalized suspicion, in many senses, unfounded . First, I will discuss the notion of legal justification as a ‘rational reconstruction’ in terms of Philosophy of Science . After 40 41 42 43 44 45 46

47

See Isay, Rechtsnorm und Entscheidung (n . 19) . See MacCormick, Legal Reasoning and Legal Theory (n . 16), at 14–19 . Katharina Gräfin von Schlieffen, ‘Don’t mention the norm’, in International Journal for the Semiotics of Law, 1991, 45–60, at 60 . Katharina Sobota, Sachlichkeit. Rhetorische Kunst der Juristen, (Frankfurt am Main: Lang, 1990), at 152 . Gräfin von Schlieffen, ‘Don’t mention the norm’ (n . 42), at 59 . Katharina Gräfin von Schlieffen, ‘Subsumtion als Darstellung der Herstellung juristischer Urteile’, in Subsumtion. Schlüsselbegriff der juristischen Methodenlehre, ed . Gottfried Gabriel et al., (Tübingen: Mohr Siebeck, 2012), at 383 and 388 . See Barbara Stollberg-Rilinger, ‘Einleitung’, in Herstellung und Darstellung von Entscheidungen . Verfahren, Verwalten und Verhandeln in der Vormoderne, ed . Barbara Stollberg-Rilinger, André Krischer, in: Zeitschrift für historische Forschung, Beiheft 44, Berlin 2010, at 11 . Veblen talks about a “conspicious comsumption of information” and a “scenario of performance” for legitimating legal decisions . See André Krischer, ‘Das Problem des Entscheidens’, in Herstellung und Darstellung von Entscheidungen. Verfahren, Verwalten und Verhandeln in der Vormoderne (n . 45), at 55 . See Krischer, ‘Das Problem des Entscheidens’ (n . 46), at 57 .

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this, I will argue that the empirical factors of legal decision-making cannot be considered its only real cause, because proper legal reasons contribute not only logically to the justification of decisions, but also causally . As I will argue, empirical and descriptive approaches on legal decision-making are not ‘more realistic’ than normative legal scholarship focused on justification . In order to do this, it will be necessary to first present some discussions from Philosophy of Science . The distinction between the context of discovery and the context of justification has gained prominence with Hans Reichenbach’s book, Experience and Prediction (1938)48 . He has engaged in the project of specifying the camp of Epistemology by distinguishing it more accurately from Psychology and Sociology of Science as they began to become too close . Epistemology has, according to him, three tasks to fulfill . The first task is a descriptive one, namely “the task of giving a description of knowledge as it really is”49 . The reason for this task is that “the basis available for the philosopher does not differ from the basis of the sociologist or psychologist”50 . First, Epistemology has to work descriptively when it approaches knowledge, as it is argued in the books, in order to make possible the progress and criticism of science . Epistemology is, in its first task, a kind of sociology of knowledge . It reconstructs theses and theories of the past and interprets them in a way in which they could or should be plausibly comprehended . It makes a selection of past claims within a subject according to their possibility of being justified . It organizes them into a comprehensible scheme, without going into them critically . The core of the descriptive function of Epistemology is the rational reconstruction of previous claims and theories . A rational reconstruction is, according to Reichenbach, the way how thoughts ought to occur if they are supposed to be justified . With the rational reconstruction of arguments, Epistemology provides “a better way of thinking than actual thinking;”51 it “considers a logical substitute rather than real processes:”52 unsystematized thoughts are selected according to an epistemological interest; abbreviations and imprecise formulations are completed or corrected; the personal writing style of authors must be interpreted, etc . A rational reconstruction is, thus, not “a copy of actual thinking, but the construction of an equivalent”53 . Thus, within the descriptive task of Epistemology, there are two possible kinds of description of previous knowledge . One can describe either how claims actually came about or how they should be comprehended in order to be assessed according to valid methods . Precisely this difference of possible descriptions – the one possibly complete and factual and the other a selective and corrective rational reconstruction – is meant to be the pair of concepts context of discovery and context of justification . The context of discovery corresponds to a description of thoughts that ex48 49 50 51 52 53

Hans Reichenbach, Experience and prediction. An analysis of the Foundations and the Structure of Knowledge (Chicago: University of Chicago Press, 1957) . ibid ., at 3 . ibid ., at 3 . ibid, at 6 . ibid ., at 5 . Other tasks of Epistemology consist, according to Reichenbach, in discussing the validity of the described knowledge (critical task), and in providing practical directions to further investigations (advisory task) . Ibid ., at 3–16 .

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plain how a scientist has actually reached his conclusions . The context of justification is contained within the description of his thoughts in the form of a rational reconstruction . Precisely, the existence of common confusions between both of these descriptive undertakings gave rise to Reichenbach’s introduction of the distinction of contexts . “Many false objections and misunderstandings of modern epistemology have their source in not separating these two tasks; it will, therefore, never be a permissible objection to an epistemological construction that actual thinking does not conform to it”54 . The distinction of contexts corresponds to a distinction of relations . The rational reconstruction is concerned with internal relations, i . e ., with the “content of knowledge, which must be realized if we want to understand knowledge”55 . On the one hand, this consists in the system of connections between other claims of knowledge . On the other hand, external relations “combine knowledge with utterances of another kind which do not concern the content of knowledge”56 . While Epistemology is concerned only with internal relations, Sociology, for example, always “blends them with external relations in which this science is also interested”57 . In order to clarify this point, Reichenbach has given the example of the construction of a telescope . A sociological analysis may be interested in facts such as the typical profile of astronomers and engineers; of how the social class and social systems are integrated and have influences on the way they see the world; and, in consequence, on the way they conceive aims of scientific research – all of which influence the way in which they build a telescope . Completing Reichenbach’s example with common notions from our contemporary Humanities, we could add that social scientists would be interested in telling the ‘bottom-up’ history of Astronomy by starting from geologic circumstances that have conditioned the development of materials, like leans; going through the psyche of scientists, their language, metaphors, resemblances with the Greek mythology; and other interpretive concepts that were decisive for the emergence of Astronomy as we know it nowadays . These would be, in Reichenbach’s terminology, all external relations between factors that in some way condition the content of knowledge and the content itself . Although the description of external relations is also a true description, it should be rigidly distinguished from the description of internal relations: “The tendency to remain in correspondence with actual thinking must be separated from the tendency to obtain valid thinking”58 . Going a couple of decades further in the history of Philosophy of Science, we can say that much of what Thomas Kuhn has said about the structure of scientific revolutions, including the concept of paradigm, can be comprehended under external relations59 . The relationship between the content of knowledge and other facts that have contributed to its emergence is ‘external’ because true sentences from the one side are not relevant for the justification of a theses from the other side respectively. In other words, the one cannot be translated into the other with the same argumentative value. For example, the fact that astronomers 54 55 56 57 58 59

Ibid ., at 6 . Ibid, at . 4 . Ibid . Ibid . ibid ., at 7 . I will discuss Kuhn’s conception of scientific development below (Part Four) .

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may have tendentiously an introverted personality is not relevant for the assessment of a theses in the field of Astronomy . The objective, natural reality to be described within Astronomy does not depend on the cultural context, on the researcher’s personality, or on social or political concerns of the scientific community . Conversely, the fact that the shiny ‘star’ that we see in the sky at sunrise is actually the same that we see at sunset60, although it appears in different positions and may have different names in different cultures, is a claim about the human-independent objectivity of nature that may be irrelevant for anthropological investigations interested in the different meanings that some community may have ascribed to as the or those ‘star(s)’ . The truth-value of an anthropological analysis will not depend on the truth-value of the astronomical claim . Thus, the justification of a scientific claim is concerned with a selection of relevant aspects of internal relations of the content of the claim in the respective field of knowledge . This input from Philosophy of Science is productive for the understanding of the problematic of the epistemic dichotomy in legal decision-making . As I mentioned above, the epistemic dichotomy means the gap between, on the one hand, empirical factors in strict and broad sense (i . e ., emotions, insights, instincts, but also society, culture, religion, etc .) that cause the emergence of legal claims and, on the other hand, the justification as elaborated and presented in its more rationalized and properly legal form . As it is well known, the judicial decision contains mandatory elements determined by codes of procedure such as a summary of the claims of the contending parties and relevant events that happened in the course of the procedure . It normally contains a discussion of the arguments and counterarguments presented by the parties, and it presents a solution for the most relevant controversies of competence, evidence and interpretation of norms . It is obvious that the mandatory, normally syllogistic pattern in which judicial decisions are commonly justified does not correspond to the empirical way of how both the decision and its justification are reached . Whereas the justification presents logically ordered thoughts in a highly sophisticated legal vocabulary, the process of reaching this decision, which contains all events and incidents in the course of a legal trial, and all causal factors of the decision that can be described theoretically on a factual basis, which do not ‘correspond’ to its presentation form . Since the judge’s task in justifying a decision consists in a selection of factors from internal relations of legal thinking that are able to support his conclusion, legal justification can be seen partially as a rational reconstruction of previous thoughts and events61 . If we find additional legal reasons in the presentation of the decision that have not played a real causal role in its emergence, as the School of Free Law and many other ‘realists’ have pointed out, it seems clear that they have the function of improving the justification, i . e ., by making it a “better way of thinking than actual thinking”62 – which is exactly the sense of a justification as a rational reconstruction . 60 61

62

Namely Venus, which is actually a planet . In order to avoid terminological misunderstandings, we should mention that this kind of rational reconstruction made by judges about their own process of discovery should not be confounded with legal scholarship’s rational reconstruction of judicial decisions in order to assess them . Reichenbach, Experience and prediction. An analysis of the Foundations and the Structure of Knowledge (n . 48), at 6 .

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This is why even decisions that are perfectly justified according to the state of the art in legal methodology and procedural requirements, may indeed contain a-posteriori rationalizations. In this respect, Epistemology provides a basis for Atienza’s claim that judicative or administrative organs do not have, in principle, to explain their decisions, but only to justify them63 . If we regard legal decision-making under this angle, it becomes clear that the epistemic dichotomy between discovery and justification is the product of exactly this selection of relevant aspects of consideration for a plausible justification . Facts regarding the factual emergence of the decision itself that are not comprehended in the mandatory scope of procedural rules and that are not directly relevant for the justification of the legal claims raised stay, therefore, outside of the scope of legal justification . This is so also because of the impossibility of a judge taking an external perspective over his own decision process . Therefore, when Legal Theory identifies a gap between discovery and justification and criticizes justification for not corresponding with the ‘actual’ process of decision-making, the problem identified cannot be of epistemic nature, for the legal decision is not even supposed to describe such factors64. Rather, the epistemic dichotomy between discovery and justification comprehends a factually and normatively necessary idealization . The acknowledgement that an epistemic dichotomy is necessary should not lead to the assumption that every reason presented in the legal justification is an a posteriori rationalization . If this were the case, it would indeed provide reasons for a generalized suspicion of dishonesty in legal decision-making . Rather, we should recognize that theories that consider empirical factors of the formation of the will to be the only ‘real’ explanations or the ‘actual’ factors behind legal decisions contain a mistaken reductionism . This mistake has even been reinforced by the adopted terminology in Analytical Philosophy and Analytical Legal Theory . They both talk about ‘facts’ of emergence of beliefs only on the side of discovery, as if justification were absent from objectivity or facts and as if moral or legal justifiability were something less real or less objective than facts . As an example of this misleading terminology, one could mention Koch’s and Rüßmann’s analytical justification theory . The authors talk about ‘factual determinants’ on the side of the Herstellung (production of the decision) and about ‘good reasons’ on the side of the Darstellung (justification, presentation) . This kind of terminology is misleading because it suggests implicitly that good reasons are not ‘determinants’ .65 63 64

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Atienza, Las Razones del derecho. Teorías de la argumentatión jurídica (n . 17), at 4 . According to Wróblewski, “a justification of a decision ex hypothesi has to show that the decision is correct according to valid law, the facts of the case, and accepted evaluations, independently of whether or not the court has made the decision using ‘intuition’, following the feelings of ‘legal consciousness’ in response to the ‘facts of the case’ or by a pragmatic evaluation of the question which decision will be probably be upheld by a higher court . Externally we have to do only with the decision and its justification . Either the justification, or the decision itself, or both, can be subjected to criticism from this point of view .” See Jerzy Wróblewski, The judicial application of law (Dordrecht: Springer, 1992), at 15 . One of the first thinkers to use misleading terminologies in distinguishing the legal perspective from others was certainly Max Weber, who considered the sociological perspective on human action to be the actually real, factual perspective (faktisch, tatsächlich), while law was regretted to ideal validity (ideeles Geltensollen) . This suggests – in my view wrongly – that Sociology provides a kind of privileged description of how people actually act and how society actually is, while legal knowledge keeps belonging to a realm of idealities and fictions without or at least with less

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We can, on the one hand, always indicate empirical factors that in some way affect the decision and its justification in a causal way . On the other hand, it is also possible to indicate normative causes (and not only reasons) of decisions . Indeed, having a justification at hand and regarding the past events that gave rise to its emergence, we can see that judges would have taken another decision if there were no plausible grounds for justifying an originally conceived decision, say, for illegitimate motives . Justifications are not simply added to a decision taken after an allegedly ‘irrational’ process . The proper legal justifiability of a decision hypothesis has an anticipative repercussion in the discovery phase . Claims are also raised because (logical and causal) they are justifiable66 . Stegmüller considers this a special case of causality, namely a ‘causality from motives’67 . Michael S . Moore calls this kind of causality “mental cause explanations”, i . e ., a “belief, desire, or other mental state that causally explains a human action but does not rationalize it”68 . This form of causation too – as it is also the case of empirical causation – takes place on the object-level of the decision and cannot be dismissed if one is engaged in a complete explanation of the emergence of the decision. Therefore, we cannot say that empirical or genealogical models from Sociology or Psychology are ‘more realistic’ than normative theories in explaining the genesis of legal claims, because empirical factors of legal decision-making are not their only ‘actual’ causes69 . The so-called American ‘Realists’, for example attempted to demythologize legal decision-making by stating that

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objectivity . See Max Weber’s distinction between sociological and legal points of view in: Max Weber, Wirtschaft und Gesellschaft (Tübingen: Mohr Siebeck, 1922), at 368–373 . This is valid both for claims about human-independent objects of nature and about socially dependent objects such as law . One of the causes (not only reasons) why people in ancient times thought that the Earth is round is the fact that it is indeed round (!) . If one observes that ships disappear downward when moving away from the harbor and, based on that, makes the inductive conclusion that the Earth must be round, such a conclusion is partially caused by the ships disappearing downward, which is, in its turn, caused by the real shape of the Earth . From the German “Erklärung aus Motiven” – see Wolfgang Stegmüller, Probleme und Resultate der Wissenschaftstheorie und Analytischen Philosophie (Berlin: Springer, 1983, vol . 1, 2nd edition) at 392 . Stegmüller argues plausibly for the application of the Hempel-Oppenheim-scheme of causality in natural sciences and in Humanities due to a structural equivalence (at 393–396) . In Philosophy of Science, see also Sturm’s and Gigerenzer’s Article on the so-called ‘strong program’ in Sociology: Thomas Sturm, Gerd Gigerenzer, ‘How Can We Use the Distinction Between Discovery and Justification? On the Weaknesses of the Strong Programme in the Sociology of Science’, in Schickore, Steinle (eds .), Revisiting Discovery and Justification. Historical and Philosophical Perspectives on the Context Distinction (n . 4), 133–158, at 141 . In opposition to “hermeneutical interpretations”, which are, for Moore, beliefs and desires that rationalize but do not explain human action . See Michael S . Moore, Law and Psychiatry. Rethinking the Relationship, (Cambridge: Cambridge University Press, 1984), at 15 . When Legal Theory and especially Sociology exclude normative factors from their scope, they lose analytical potential instead of gaining it . Since Max Weber and culminating with Luhmann’s systems theory, Sociology has increasingly excluded normativity and valuations from its patterns of explanation by declaring them to be either non-scientific or completely relative or naïve . This kind of sociological approach is mistakenly reductionist: it does recognize values as present in society and as being important for participant individuals and groups, but no longer as strong explanatory elements, no longer as conditions of validity of the own patterns of analysis of the respective sociological approach . Contemporary Sociology commonly describes how individuals and groups consider moral claims to be true, but it does not accept any truth of these claims for itself .

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legal decisions are ‘actually’ taken by feeling and hunching rather than by judging . To the extent as proper legal reasons of decisions are disregarded as causes, this kind of empirical approach should be considered, rather, mistakenly reductionist and, therefore, anti-realist70. This point can be also be put in the terminology of the socalled New Realism in theoretical philosophy: the genesis of beliefs is no ‘privileged type’ of explanation71 . If a legal decision is not transparent enough in regard to its real normative motivations, for example, because the court has actually decided following political reasons that it does not want to reveal to the public or parties, we have indeed a problem . This does not concern, however, the epistemic, but the normative dichotomy between discovery and justification, which is the subject of the next part of this article . ParT Three: The norMaTIve dIChoToMy

of

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and jusTIfICaTIon

As I said in Part One, the normative dichotomy is the possible gap between declared and undeclared reasons of judicial decisions . In this regard, there is an intricate relationship between legal and non-legal reasons and the way how criticism of decisions is possible . The answer for the question of whether an accused is guilty of committing a crime does not depend on, for example, the fact that the judge who has condemned him wanted to actually deviate from the dominant jurisprudential orientation of higher courts in order to gain the attention of the academic legal scholarship72 . For the purpose of defeating such a decision, it is certainly not enough and maybe not even necessary to prove that the judge has decided based on illegitimate reasons . It is, rather, indispensable to argue that the decision itself is unjustified, i . e . that the accused is not guilty and why . For it may be that he should indeed be considered guilty due to proper legal reasons and that the condemnation should be, therefore, maintained even if the original motivation behind the first condemnation was not correct . Although it is true that the detection of illegitimate reasons behind legal decisions tendencially disqualifies them, motives work more as vague signs of wrongness than as arguments against the truth-value of decisions or justifications73 . The truth-value of a legal decision can only be assessed from the point of view of the proper legal justification that is supposed to support it. The detection of an illegitimate motivation behind the actual presented reasons may be relevant for procedural issues, but it is never a sufficient objection against the substantial correctness of a particular judicial decision . To put it in other way, the identification of a normative 70 71

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For a detailed discussion about realism and anti-realism in Legal Theory, see Otto Pfersmann, ‘Contre le néo-réalisme juridique . Pour un débat sur l’interprétation’, in: Analisi e diritto 2001, at 231–284 . Human-dependent facts (e . g ., that we cannot buy a BMW for two Euros) are not ‘less objective’ than natural facts (e . g ., the eruption of a Vulcan) . For the perspectives of the so called ‘New Realism’ on this issue, see Markus Gabriel, ‘Existenz, realistisch gedacht’, in: Der Neue Realismus, ed . Markus Gabriel (Berlin: Suhrkamp, 2014), at 190, from whom I owe the above mentioned examples . Example and discussion in Neumann, Wahrheit statt Autorität (n . 20), at 86 . In a similar position, Neumann holds a sharp distinction between motives and arguments in: Theorie der juristischen Argumentation (n . 20), at 236 .

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dichotomy in a particular case is not an argument for the justification of an alternative decision . At the level of the legal system as a whole, we should remark that the gap between actual reasons of judicial decisions and their presentation for parties and public is continuously growing in western legal orders . This is a worrying development . Historical research about argumentation practices of former courts suggests that the transparency of courts’ justifications in regard to their real motivations has constantly decreased in the last centuries74 . For about three hundred years, the German Imperial Chamber Court (Reichskammergericht, 1495–1806) has practiced jurisdiction without publishing justifications at all75 . Publications began in the late sixteenth century as a matter of betrayal of secrets of the courts by its assistants76 . Reasons of decision were originally written down exclusively for internal organizational purposes . Since court assistants have begun to print notations and to give them to other organs of the state and parties for their orientation, it has become gradually an accepted practice . It has become clear that the publication of reasons contributes for the unification of jurisprudence and for legal certainty77 . In an overview, we can say that the practice of notation of reasons in Germany has departed from handmade notices for its own use by the assistants for internal concerns . It has passed through a phase of accessibility only by parties of the trial, and it has culminated in our contemporary practice of collections of decisions by professional publishers designated not only for lawyers, but also for the whole public sphere . This new context of increasing publicity and consequent change of the target group of courts’ justifications – from internal use up to the broadest public sphere – have influenced normative concerns about the very content and structure of published reasons . If we compare the style of courts’ justifications in the last four hundred years in Europe with the contemporary practice, we can see that justifications have become more technical, more focused on proper legal controversies, more detailed in regard to the legal terminology and more parsimonious in dealing with controversial religious and political issues that play a role in the decision process . Specially after the irradiation of constitutional law into all other legal fields since the second half of the twentieth century, the actually presented reasons in legal decision-making have become even more universalist and abstract . Although the decision practice of most constitutional courts in western countries is political to a very large extent, the real political motivations of their decisions have been translated into abstract constitutional principles such as ‘human dignity’, ‘equality’, ‘tolerance’ etc . in order to give the impression that the decision has been actually taken exclusively on legal reasons . The criticism of this development of legal decision-making at the level of the system comprises the question of the relationship between law and politics and 74 75 76 77

As suggested by Albrecht Cordes, ‘Foreword’, in: Juristische Argumentation – Argumente der Juristen, ed . Albrecht Cordes (Cologne: Böhlau, 2006), at 8 . Steffen Wunderlich, ‘Über die Begründung von Urteilen am Reichskammergericht im frühen 16 . Jahrhundert’, in: Schriftenreihe der Gesellschaft für Reichskammergerichtsforschung, vol . 38 (Wetzlar, 2010), at 6 . The first judge to publish parts of his internal materials was Mysinger von Frundeck, who was accused of betrayal of secrecy . See ibid ., at 11 . Ibid . at 9 .

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goes, therefore, beyond the scope of this article . For my purpose here, it is enough to show that the normative dichotomy between discovery and justification delineates the proper camp of ideology criticism of judicial decision-making by tracing it back to some undeclared, but intentionally followed motivations both at the level of particular decisions and at the level of the system and by identifying the instrumental use of the legal form and legal discourse to achieve normative aims of other kinds . ParT four: The The

dualIsM of genesIs and valIdITy ConsTruCTIvIsT aTTITude

In

regard

To

As mentioned in the Introduction, one of the most important versions of the distinction between discovery and justification in Law is the dualism between genesis and validity . I will argue that this is a genuine dualism that should be held even with regard to contemporary challenges from social constructivist approaches and from attempts of explanation of the emergence of beliefs by appeal to non-rational elements such as emotions, intuitions or instincts (i . e ., ‘genealogical approaches’, as I will call them in Part Five) . Social constructivism is considered, here, in a possibly broad sense and denotes theories that see the world as not given by nature or by god, but rather construed by human engagements of attribution of meaning, conceptualizations, social concerns and moral or political aims . The core of social constructivism is the assumption that human categories, culture and social conditions do not only determine how we perceive reality, but also the reality itself . A direct consequence of the constructivist attitude is that it entitles us to investigate cultural causes of beliefs . It tempts us to explain the emergence of beliefs on a cultural-factual basis, sociologically, rather than discussing them in regard to their truth-value . The explanation and contextualization of beliefs in a social framework has been a considerable part of scientific research programs within History, Sociology, Hermeneutics, Social Psychology and Political Theory in the last century . It has become fashionable to say that nature, subjects, childhood, madness, beauty, healthy, and, last but not least, law are actually not ‘objective’, but ‘socially construed’78 . The point for this Article is that social constructivist attitudes on Law challenge the distinction between discovery and justification as it states or presupposes that, since law is a social construction, what is valid in law is what has been constructed and, therefore, there is no way out of looking at the emergence of constructions in order to know what law is . In this way, claims of genesis and validity achieve their possibly most close relationship, namely a relationship of identity . Before discussing the consequences of a social constructivist attitude in Law, I will make some interdisciplinary remarks on its consequences in other fields of Humanities .

78

For a criticism in this sense in Philosophy of Science, see Thomas Sturm, Gerd Gigerenzer, ‘How Can We Use the Distinction Between Discovery and Justification? On the Weaknesses of the Strong Programme in the Sociology of Science’ (n . 67) .

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In Moral Philosophy, a basically social constructivist attitude on moral beliefs has led to a strong relativization of many kinds of natural differences or hierarchy between human beings, especially concerning intelligence, virtues and capability of moral judgment . Differences between human beings have been normally explained by culture-dependent factors such as a parent’s influence, social class, level of education, and historical colonialism . Differences on the way of life have been commonly said to be acquired by social influence or, in respect to remarkable talents, by intensive ‘training’ rather than being a natural capability79 . The social constructivist attitude on Morals leads to a change of the focus from the assessment of moral qualities and behavior towards social factors that condition them . In a hypostasized form, it has the negative consequence of moral discharge of whole groups of society, for example, unprivileged minorities whose behavior could be allegedly completely ‘explained’ by the social conditions under which they live . If someone commits an immoral act, social constructivists will be ready and willing to ‘explain’ the commitment of the act by means of social and cultural factors of its emergence . Especially with regard to economic unprivileged people or politically protected minorities in western countries, social constructivism seems to undermine the possibility of requiring from individuals of these groups morally adequate behavior, for every immoral action could be ‘explained’ by some factor that goes beyond the horizon of awareness of the judging subject (‘it is his action, but not his fault’) . However, the insufficiencies of a basically social constructivist attitude towards moral subjects can be seen in the fact that it cannot explain how both morally correct and incorrect behavior are possible under the same conditions of cultural influence . Even in Brazilian slums under circumstances of poverty and exclusion from social and economic benefits, there are still extremely different kinds of behavior among the affected subjects . They can engage in the destruction of families and of young people by smuggling drugs, but also in lawful economic activities . Some socially unprivileged people may have a permanent will to destroy conquests of civilization, but others will try to flourish as good human beings . Some commit cruel homicides for insignificant motives, while others are capable of the most noble fraternity . The attempt of social constructivism of establishing a strict symmetry of alleged social causes for both correct and incorrect moral behavior is, thus, misleading . It misconceives the dimension of validity of moral judgment . It turns subjects into mere objects of cultural and societal influence80 . Similar misleading social constructivist symmetries can be observed since the second half of the twentieth century in Philosophy of Science . In his book, The Structure of Scientific Revolutions, Kuhn has emphasized psychological and sociologi79

80

Criticizing the contemporary aversion of explaining differences between human beings with recourse to natural factors, Peter Sloterdijk has ironically characterized intellectuals as ‘athletes of the spirit’ whose differences could be allegedly explained by mere acquisition of skills instead of having a natural basis . See Peter Sloterdijk, Die Verachtung der Massen. Versuch über Kulturkämpfe in der modernen Gesellschaft (Frankfurt am Main: Suhrkamp, 2000), at 76 . Of course, the probability of engaging in the immoral actions mentioned is statistically higher among socially unprivileged people . But also this kind of socio-technological claim is part of the constructivist attitude criticized here . Moral responsibility cannot be constricted to situations with absence of negative interferences on judgment (also because these situations actually do not exist) . See Wolfgang Kersting, Kritik der Gleichheit. Über die Grenzen der Gerechtigkeit und der Moral (Weilerswist: Velbrük Wissenschaft, 2005), 71 et passim .

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cal factors of the emergence of scientific theories . According to him, the development of science in history is characterized more by qualitative changes in research than by accumulation of knowledge . The ‘development-by-accumulation’ model is, according to him, an “unhistorical stereotype drawn from science texts”81 . Kuhn has provided a sociology of research and a social psychology of researchers that reveal the realm of categories, vocabulary and basic assumptions where every empirical enterprise is embedded (its ‘paradigm’) as much as social factors of the psyche of scientists (tacit knowledge,82 will to convince,83 Gestalt-switch84) that condition scientific results . As it is the case in Morals, the problem of a basically social constructivist attitude in Science lays also in the symmetry of sociological and psychological explanations that result in influences on true and false theses . All social and psychological factors of formation of scientific theories are present in both correct and incorrect scientific theories . Here, the risk of a misleading symmetry was seen by Kuhn himself . In order not to fall in the kind of absurd social constructivism that assumes even the whole nature as socially construed, Kuhn recognized that there must be, indeed, an input from nature into science and a certain accumulation of knowledge throughout history, even if there are also qualitative paradigm shifts . Although with some reservations, he also held a mild distinction between discovery and justification85 . If social constructivism in science is adopted without these realistic reservations; if one regards scientific theory production as a social construct without correspondence to human-independent reality; and if one regards scientific discussions as mere attempts of persuasion on personal or political reasons – as Kuhn has mistakenly suggested86, the analysis of the truth-value of scientific claims remains neglected and, with it, validity in scientific inquiry . In Arts, the adoption of a basically social constructivist attitude has led to a preference for functionalistic views that suppress properly aesthetical notions of beauty and excellence by empirical analysis . Political concerns of liberalization of individual’s expressions and of making art accessible for all have been supported by a social constructivist epistemology, which advocates a horizontal equality of value between high culture and popular expressions . Knowledge of masterpieces, appreciation of classical musical excellence, and of western canons of literary greatness, such as Shakespeare or Goethe, have been tendencially replaced by allegedly more

81 82 83 84 85

86

Thomas Kuhn, The Structure of Scientific Revolutions (Chicago: University of Chicago Press, 1996, 3rd edn .), at 2 . ibid, at 43 . ibid, at 94 . ibid, at 112 . ibid, at 9 . For a discussion about Kuhn’s unclear position in respect to inputs from nature and the distinction of contexts, see Hoyningen-Huene, ‘Context of Discovery versus Context of Justification and Thomas Kuhn’ (n . 4) and Sturm, Gigerenzer, ‘How Can We Use the Distinction Between Discovery and Justification? On the Weaknesses of the Strong Programme in the Sociology of Science’ (n . 4) . Kuhn has comprehended the paradigm change in science as “a situation in which there can be no proof ” and that is permeated by techniques of persuasion . See Kuhn, The Structure of Scientific Revolutions (n . 81), at 152 .

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‘open’ individual expressions based on relativistic conceptions of art87 . Normative ‘scholarship’ has been replaced by empirical, scientificist ‘research’ about works of art88 . The adoption of this social constructivist attitude in Arts has led in the last decades to a decrease of intellectual and aesthetic standards because it confounds proper artistic standards with social concerns89 . By not recognizing that artistic creativity and objective excellence are an inherently elitist phenomenon of a hierarchy of talents and virtues with its own normative standards, social constructivism seduces us to regard works of art, instead in accordance with their own artistic merits, in accordance to social merits within a politics of non-discrimination focused on the social causes of the emergence of works of art . In doubt, everything has been considered art (we could say ironically ‘in dubio pro arte’) . Also in this regard, the symmetry between social factors that condition the emergence of works of art and the content and quality of the works themselves is misleading . It misconceives the dimension of validity in Arts . Summarizing, the adoption of a basically social constructivist attitude in Humanities can lead (1) to a misconceived symmetry of social genesis and validity in the respective field; (2) and to a replacement of the standards of validity90 of the respective field by an agenda of social concerns . The overview presented above is focused on the disadvantages of social constructivist approaches . There are, naturally, many other possible constructivist conceptions that can indeed avoid the dysfunctionalities mentioned . Of course, morals, science and arts are human-dependent activities and, as activities, they do not exist outside of humanity . But the validity of claims within these fields is independent of social causes that give rise to the same claims, as I will discuss below . Despite this, the social constructivist agenda has been currently and widely followed in contemporary research in Humanities and has been applied in an indiscriminate way without consistent reflections about implicit presuppositions and consequences . These widely present dysfunctional results should advert us to be careful in permitting claims of genesis and of validity becoming too close to each other in Law . The risk of claims of cultural genesis and of validity becoming too close in Law really exists at the present moment . As I have mentioned, in the twentieth century, 87 88 89 90

Harold Bloom, The Western Canon. The Books and School of the Ages (New York: Harcourt Brace, 1994), at 15–41 . Roger Scruton, ‘Scientism in the Arts and Humanities’, in: The New Atlantis, 40, Fall 2013, at 33–46 . Bloom, The Western Canon. The Books and School of the Ages (n . 87), at 9, 16–17 . The internal standards of validity of some field of knowledge consists in proper linguistic frameworks, own rules, own hermeneutical structure of questions and own normative standards of judgment . About linguistic frameworks, see Rudolf Carnap, ‘Empiricism, Semantics, and Ontology’, in: Revue Internationale de Philosophie 4 (1950), 20–40 . For internal rules, see Markus Willaschek, ‘Was ist „schlechte Metaphysik“?’, in: Vom Ersten und Letzten. Positionen der Metaphysik in der Gegenwartsphilosophie, ed . Uwe Justus Wenzel (Frankfurt am Main: Fischer, 1998), 131–151 . For a discussion on Gadamer’s hermeneutical structure of the question, see Ricardo Henrique Carvalho Salgado, A Fundamentação da Ciência Hermenêutica em Kant (Belo Horizonte: Decálogo, 2008), at 59–61 . About standards of moral judgment as distinct and non-reducible to non-moral standards, see Dieter Sturma, ‘Naturalismus und moralischer Realismus’, in: Der Neue Realismus, (n . 71), 396–417 .

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Legal Theory has produced a remarkably great amount of empirical and technological knowledge about legal decision-making . It has focused very strongly on the multiple non-legal influences that in some way contribute to the final shape of legal decisions . Law and Economics, Legal Sociology, Criminology, Rhetorics, Hermeneutics and many other fields of legal research have brought about vast analysis of effects of culture and society in law and of law’s influence in them . Nowadays, it is no secret that law is conditioned by a whole network of relationships with all other fields of knowledge and society . Many theoretical approaches claim that every legal decision-maker is unavoidably embedded in a network of elements that influence their beliefs such as social class, habits and social systems (Legal Sociology); prejudices and traditions (Legal Hermeneutics); metaphors (Legal Rhetoric), etc . These approaches have stressed both pre-intentional and post-intentional (i . e ., necessary and probable effects) aspects of beliefs, i . e ., what occurs before and after a legal judgment . One of the main focuses of Legal Theory in the last decades has been legal interpretation . The combination of new linguistic, rhetorical and hermeneutical analysis with normative standards of legal methodology has led to a basically constructivist attitude on interpretation . Consider the following ubiquitous theses in contemporary legal scholarship: every comment of a text constitutes a new text (paradox of the comment)91; every application of a rule creates a new rule (rule-skepticism); the facts of the case are not preexistent in relation to the judicial process – they are, rather, a product of interpretation within legal decision-making92; every legal decision creates its own criteria of decision (concretization)93; every decision is based on pre-conceptions and is an event within a hermeneutical circle (philosophical Hermeneutics); and “a text only comes to be in a reading, that is, in an act of understanding and interpretation”94 . Although these theses are parts of different paradigms and start from different research interests, they have in common the purpose of revealing linguistic, social, and cultural factors in which legal assumptions are embedded . The wide acceptance of these theses has led to a basically constructivist attitude on legal interpretation . We could even say that what Legal Theory has done in the last decades under the title of a ‘turn to interpretation’95 and ‘linguistic-pragmatic turn’ has been actually a turn from interpretation of legal texts towards a holistic unsystematized liberal hermeneutics96 .

See, e . g ., Michel Foucault, L’ordre du discours (Paris: Gallimard, 1971), at 27 . Based on the assumption that neither the facts of the case nor the legal norms are preexistent to the legal decision, Carlizzi rejects a distinction between discovery and justification in Law . See Carlizzi, ‘Historische und Theoretische Hauptfragen der “heutigen juristischen Hermeneutik”’ (n . 1), at 109, 110 . 93 See for example Friedrich Müller’s and Ralf Christensen’s Structuring Legal Theory in: Friedrich Müller, Ralf Christensen, Juristische Methodik (Berlin: Duncker & Humblot, 2004, vol . 1, 9th ed .), numbers 215, 256 and 275 . 94 David Couzens Hoy, ‘Interpreting the Law: Hermeneutical and Poststructuralist Perspectives’, in: Southern California Law Review, vol . 58, 1985, 135–176, at 143 . 95 David Kennedy, ‘The Turn to Interpretation’, in: California Law Review, vol . 58, 251–275 . 96 ‘Liberal’ in both political and in interpretive senses . See Kennedy, ibid . For a plausible criticism on the turn to interpretation in philosophical Hermeneutics in general, see Jacques Bouveresse, Herméneutique et linguistique (Combas: L’Éclat, 1991), at 21 . 91 92

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Old interpretation canons, such as ejusdem generis97, that are focused on a text-close analysis have now been increasingly considered dispensable for the understanding of legal statutes because legal practitioners do not approach the texts in an exegetical way to extract from them the best they can provide . Also, the incursion of liberal constitutional values into the legal order has been partially responsible for the constructivist attitude of lawyers towards legal texts . The assumption that every infra-constitutional statute should be interpreted according to constitutional abstract values has become an obstacle to the previous attitude of real interest in what the statute itself was really saying . We can observe nowadays both in common law and in civil law traditions a “desire of freedom from the text”98, which is becoming stronger and stronger in relation to both written constitutions and infra-constitutional law . Problems arise when constructivist notions of genesis and of effects of law in language, culture, and society are put in connection with the validity of legal claims . For example, when one attempts to use categories and analysis from philosophical Hermeneutics (Gadamer) such as ‘pre-conceptions’ or ‘tradition’, in order to challenge the illegitimate prejudices of judges and parties or in order to support one particular legitimate interpretation of tradition despite others . Most of the hermeneutical analysis provided by Gadamer in Wahrheit und Methode can be considered from the legal point of view as ‘structural’99, because it describes what necessarily occurs in every process of understanding, regardless of the awareness, intentions, methods or results of interpreters . According to Gadamer, truth itself is an experience, an event within the hermeneutical circle; it is something that ‘happens’100 . Since Gadamer has given an account on events that occur in every process of understanding rather than normative directives of interpretation, it would be misleading to use these patterns as a basis for criticism of particular interpretations . Even if Hermeneutics insists on an appeal to tradition as a condition to achieve truth in interpretation, its structures of analysis do not make direct criticism in law possible due to the ‘emptiness’ of the notion of tradition as a structural concept:101 tolerance and intolerance, war and peace, constitutional and unconstitutional laws belong equally to the tradition of western civilizations in the hermeneutical structural sense . For the purpose of a normative argumentation in a controversial legal issue, 97 The canon ejusdem generis states that “where general words follow an enumeration of two or more things, they apply only to persons or things of the same general kind or class specifically mentioned” . See Antonin Scalia, Bryan A . Garner, Reading Law. The Interpretation of Legal Texts (St . Paul: Thomson/West, 2012), at 199–213 . 98 ibid ., at 9 . 99 See Robert Alexy, Recht, Vernunft, Diskurs. Studien zur Rechtsphilosophie, (Frankfurt am Main: Suhrkamp, 1995), at 75 . For a criticism in this respect, see also André Ferreira Leite de Paula, ‘Herausforderungen rechtlicher Begründungstätigkeit unter den Bedingungen skeptischer Epistemologie’, in Vorbedigungen des Rechts . Tagungen des Jungen Forums der Rechtsphilosophie (JFR) in der Internationalen Vereinigung für Rechts- und Sozialphilosophie (IVR) im September 2014 in Passau und im April 2015 in Hamburg, ed . Markus Abraham et al . (ARSP 150, Stuttgart: Franz Steiner, 2016), 155–169 . 100 See Hans-Georg Gadamer, Wahrheit und Methode. Grundzüge einer philosophischen Hermeneutik (Tübingen: Mohr Siebeck, 1990, vol . 1), at 1–5 . 101 Although tradition can be also comprehended as a normative concept . In this case, it is an interpretative and partially normative enterprise to argue whether a certain element, say, violence, really belongs to a certain tradition or not . See Hoy, ‘Interpreting the Law: Hermeneutical and Poststructuralist Perspectives’ (n . 94), at 155 and 157 .

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it follows that the hermeneutical notions of pre-conception and tradition are too descriptive and holistic to be used as arguments that intend to support one possible interpretation rather than another . As it is the case of social constructivist explanations of the emergence of beliefs, Hermeneutics, too, provides a structural analysis of cultural factors of truth-reaching within legal decision-making which belongs to the discovery side of the distinction between discovery and justification . The approximation of structural and normative notions, typically due to the reception of philosophical Hermeneutics in Legal Theory, has led to several implicit ambivalences, circularities, and paradoxes in interpretation . On the one hand, legal theories that adopt a hermeneutical paradigm stress the openness and endlessness of meaning production in society and legal scholarship and, in consequence, a constructivist paradigm of interpretation of legal texts . On the other hand, since legal interpretation has to be limited because of requirements of legal certainty, the same theories attempt to limit interpretation in some way, which results in unavoidable ambivalences with the constructivist views adopted in the first step102 . Take the example of Müller’s and Christensen’s Structuring Theory of Law . According to them, every legal norm must be ‘concretized’ in the process of legal decision-making and every concretization implies a creation of new meanings and, especially, of a new norm, which they call the norm of decision (Entscheidungsnorm)103 . Nevertheless, since legal decisions should not be arbitrary, decisions should be ascribed to previously existing legal texts according to their very wording104 . So, the Structuring Legal Theory creates an ambivalence by adopting a constructivist paradigm of open creative interpretation and, at the same time, a limitation by the very wording of legal texts: the wording remains both the origin and the product of the same act of legal interpretation105 . This ambivalence was already present in a broad sense in Viehweg’s Topical Legal Theory . Early in the second half of the twentieth century, he characterized legal decision-making as an ‘inventive’ process of finding and assessing premises . On the other hand, he stated that, although legal decision-makers must be inventive in deciding cases, this does not lead to the abnegation of binding legal standards in a systematized or even syllogistic way . According to him, legal interpretation aims to 102 For a criticism about circularity and indeterminacy within skeptical epistemologies, see André Ferreira Leite de Paula, ‘Legal Justification under Conditions of Uncertainty: Epistemology over-demanded’, in: Security as a Purpose of Law. Conference Papers of the 3rd International Conference of PhD Students and Young Researchers (Vilnius: Vilnius University, 2015), 153–160, available in http://lawphd .net/wp-content/uploads/2014/09/International-Conference-of-PhD-Students-and-young-researchers-2015 .pdf 103 See Müller’s and Christensen’s Structuring Legal Theory in: Müller, Christensen, Juristische Methodik (n . 93), numbers 215 and 256 . See also Friedrich Müller, Syntagma. Verfasstes Recht, verfasste Gesellschaft, verfasste Sprache im Horizont von Zeit (Berlin: Duncker & Humblot, 2012), at 37 . 104 Decisions should be able to be ascribed (“zurechenbar bleiben”) to previous legal texts . See Müller’s and Christensen’s Structuring Legal Theory in: Müller, Christensen, Juristische Methodik (n . 93), number 626 . 105 See, e . g ., Matthias Klatt’s criticism about the Structuring Legal Theory: “Yet the actual role of the limits of the wording is to be that of an argument in the dispute on which element is to have priority over the others . In this dispute, it is not feasible to rely on the result of the conflict between several elements of concretisation as a yardstick for whether the limits of interpretation were exceeded or not .” – Matthias Klatt, Making the Law Explicit. The Normativity of Legal Argumentation, (Oxford: Hart Publishing, 2008), at 76–77 .

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provide new interpretations without violating the old ones106 . By holding this double standard between invention and binding, the ambivalence between constructive and non-constructive interpretation remains unsolved . Similarly, in Ladeur’s Postmodern Legal Theory, there is no such a thing as a real or objective meaning a legal statute could have in itself . According to his linguistic-philosophical approach, meaning can only emerge in a collective practice of attribution of sense, which, according to him, occurs always a-posteriori as a result of societal practice rather than by recognition of an intention that was already present in the text . However, at the same time, it is remarkable that Ladeur recognizes that texts themselves limit and guide further attributions of semantics and interpretations by the participants of the legal order107 . For a recent and final example of this ambivalence, one could mention the great study about constructivism in Legal Theory by Lee, where one can find both the theses that the text of statutes does not provide contents to the interpreter and, notwithstanding, that there is a limited possibility of ‘activation’ of the meaning of legal texts108 . The ambivalences in the constructivist paradigm of interpretation arise because of a confusion between valid interpretation and the typical or necessary post-intentional effects of possible interpretations . To say that the decision of a particular case unavoidably results in the creation of a new rule may be plausible from the perspective of an observer who is not concerned with validity . But also, here, as we have seen in relation to other fields of Humanities, a strict symmetry between constructivist descriptions of decision-making on the one hand and valid legal interpretation, on the other hand, is misleading . It causes an anxiety of anticipation of effects, i . e . an anxiety of doing intentionally what will eventually, probably or necessarily occur post-intentionally . The constructivist attitude provides a mistaken epistemological basis for judicial activism (i . e ., the active creation of new norms at the moment of decision by the judicative branch): it creates the illusion that norms could not be (cognitively) recognized and practically followed because of the many contingent pre-intentional aspects and post-intentional effects of legal decision-making . This anxiety can be interpreted as an attempt of Legal Theory to be possibly ‘realistic’ – the reality being, in this case, the empirical reality of sociological or historical observation that legal decisions may result in the creation of new rules and interpretations . Indeed, constructivist approaches on legal interpretation describe themselves commonly as ‘more realistic’ than normative accounts . Nevertheless, lawyers concerned with the solution of normative legal issues such as, say, the constitutionality of a statute prohibiting abortion, cannot get directions for their discussions by knowing that every interpretation they ever suggest – may it be for or against the permission of abortion – will necessarily result in a new rule109 . 106 Theodor Viehweg, Topik und Jurisprudenz. Ein Beitrag zur rechtswissenschaftlichen Grundlagenforschung (Munich: C . H . Beck, 1954, 5th edition), at 40 . 107 See Karl-Heinz Ladeur, ‘Der Wandel der Rechtssemantik in der postmodernen Gesellschaft . Von der Subsumtion zur Abwägung und zu einer Semantik der Netzwerke’, in: Rechtstheorie 45, 2014, 467–486 . 108 Kye Il Lee, Die Struktur der juristischen Entscheidung aus konstruktivistischer Sicht (Tübingen: Mohr Siebeck, 2010), at 501–502 . 109 An essential property of argumentation is its function of exclusion of conceivable alternative theses and decisions . For a discussion on this point in opposition to constructivist and holistic

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Their concern is with validity, not with mere (forward looking) prediction or (backward looking) explanation . They are interested on what they should think about the issue, not on what, how or why they will think110 . They cannot take an observer’s perspective towards themselves and foresee their own decision . In seeking for valid legal reasoning, lawyers must distinguish between justified and unjustified beliefs within the realm of contradictory existing beliefs that are equally compatible with descriptive explanations of genesis and effects111 . In terms of Philosophy of Science, we can say that “the same causes – social needs and interests, or other ‘natural’ or ‘non-normative’ factors – are supposed to explain both what we commonly single out as true and false beliefs . However, a strict symmetry makes no sense from the agent’s point of view” .112 Constructivist descriptions of statute interpretation do not provide arguments for the justification of a particular interpretation and belong therefore to the discovery side of the distinction between discovery and justification . The above mentioned problems are typical within allegedly ‘realistic’ conceptions of law . However, they are not realistic at all, because they typically fail to grasp legal validity . There are basically three ways how one can fail to grasp validity . This can be analyzed according to the patterns of reactions to questions of validity such as ‘is this argument legally valid?’, ‘what is the right decision for the case?’, or ‘what is the right interpretation of a statute?’ . These questions can be misconceived if one reacts to them (1) by predicting what will happen, what citizens, lawyers or scholars will say, what courts will probably decide . This is the well-known category mistake of legal epistemologies, see André Ferreira Leite de Paula, ‘Herausforderungen rechtlicher Begründungstätigkeit unter den Bedingungen skeptischer Epistemologie’, in: Vorbedingungen des Rechts. Tagungen des Jungen Forums Rechtsphilosophie (JFR) in der Internationalen Vereinigung für Rechts- und Sozialphilosophie (IVR) im September 2014 in Passau und im April 2015 in Hamburg, ARSP Beiheft, eds . M . Abraham, T . Zimmermann, S . Zucca-Soest (Stuttgart: Franz Steiner, 2016, forthcoming) . 110 For a detailed discussion about confusions between internal and external perspectives on law, see Pedro Múrias, ‘Weber e Hart sobre as perspectivas externa e interna . Uma releitura’, in Estudos Sérvulo Correia, 2010, 105–121, available in http://muriasjuridico .no .sapo .pt/PmWeberHartExternaInterna .pdf, requested on February 2nd 2016 . 111 In this respect, it is interesting to remember a passage of Hegel’s Philosophy of Right . Hegel, who is not suspect of underestimating the importance of history, reminds us that historical investigations, i . e . the description of the development of law over time, should not be confounded with the justification of assumptions about present law or, worse, argued against its very possibility: “But even if particular determinations of right are both right and reasonable, still it is one thing to prove that they have that character – which cannot be truly done except by means of the concept – and quite another to describe their appearance in history or the circumstances, contingencies, needs, and events which brought about their enactment . That kind of exposition and (pragmatic) knowledge, based on proximate or remote historical causes, is frequently called ‘explanation’ [Erklären] or preferably ‘comprehension’ [Begreifen], by those who think that to expound history in this way is the only thing, or rather the essential thing, the only important thing, to be done in order to comprehend law or an institution of right; whereas what is really essential, the concept of the thing, they have not discussed at all .” Georg Wilhelm Friedrich Hegel, Outlines of the Philosophy of Right, trans . T . M . Knox, (Oxford: Oxford University Press, 2008), § 3, at 21 . Going further, Hegel says that historical explanation of the emergence of right and its justification are at home in ‘different spheres’ and can in this manner coexist with each other to the extent that we do not take one for the other – Ibid ., § 3, at 22 . 112 Sturm, Gigerenzer, ‘How can we use the distinction between discovery and justification? On the Weakness of the strong programme in the sociology of science’ (n . 67), at 142 .

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so-called legal ‘realistic’ approaches; (2) by delegating the answer to some individual, official, group, institution, authority or system of society (e . g . by stating that ‘law is what individuals or officials or society say to be law’)113, which is a common reductionism carried on within positivist and sociological accounts; (3) by rejecting the questions as being non-sense and thereby changing the issue from the answer to the questions to the elucidation of pre-intentional and post-intentional factors of beliefs . Another disadvantage of constructivism in legal interpretation is that it misconceives systematically the very basic fact that each case discussed before courts is a past case . The solution of past cases requires a retrospective discovery of past acts, past circumstances and past validity114. In relation to interpretation, it requires an investigation of normative standards that were already present in legal texts and in the legal system as a whole at the moment of the commitment of the acts disputed before court . This is a fundamental requirement of justice and legal certainty . Thus, in order to make justice in one particular case, the judge is required to think backwards and to discover the legal standards that were already valid before the act in question was committed . This is more clear in Criminal Law, and also present in different degrees in all other legal fields . A basic requirement of justice is that the judge intends in his sentencing that the legal subject should have acted in a certain way and this presupposes that he also could have acted accordingly, and therefore, he could and should have known the rule whose observance he is now obliged to . If the judicial decision consists, for example, in a sanction of an unlawful act, it must recognize the unlawfulness that was already present at the time of the commitment of the act . The unlawfulness should be declared rather than created by the judicial decision, even if this declaration starts to have effects only a posteriori . The adoption of a basically constructivist attitude towards legal decision and interpretation that denies this fundamental retrospective sight of legal decision towards past validity results in a systematic imposition of retroactive duties . Summarizing this Part, we can say that, although the challenge of social constructivism in its many versions presents indeed a very close approximation of genesis and validity in legal decision-making, it does not lead to a complete equation of both sides . The validity of legal claims still should be held independently of descriptions of their factual genesis and effects . The view that the decision of a particular case may result in the creation of a new rule or interpretation does not make sense from the internal point of view of legal validity, where the issue is precisely which interpretation or rule should prevail . Constructivist descriptions of legal deci113 This point should be added since, as Ota Weinberger points out, “there is no way to conclude the correctness of practical views from the opinion of participants” – Ota Weinberger, ‘Basic Puzzles of Discourse Philosophy’, in: Ratio Juris n . 9, issue 2, 1996 . Or, in a more detailed way, Donnelly points out that “to answer the question ‘which community/sub-community counts for the purposes of my explanation of law?’ takes the theorist outside the linguistic community, into a consideration of: ‘Which community’s perspective is the right one?’; ‘Which has the better interpretation of the concept of law?; ‘Who counts as an expert?’; or imperialistically; ‘Which community does have access to law itself?’ To answer these questions requires an existing concept of law independent of the communities’ respective concepts; if I decide that the view of group Y is to count, I must have an idea of law in mind in order to determine that it is indeed law that this group’s view is a view of and not ‘law’ that other groups’ views are views of” . See Bebhinn Donnelly, A Natural Law Approach to Normativity (Burlington: Ashgate, 2007), at 150–151 . 114 Which may be also present validity, but not necessarily .

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sion-making are, therefore, no argument for the justification of a particular legal claim, and remain, therefore, on the side of discovery, outside of the context of justification . If Legal Theory approaches decision-making in a basically constructivist attitude, it loses the reference to past facts and past validity . Looking always forward instead of backward leads to a renounce of material justice for the particular case . It is a subversion of particular cases as a means to a social-technological guidance of future behavior of citizens115 . Only a cognitivist view on valid law is compatible with justice for particular cases . Finally, taking the discussed elements together, we are able to clarify the parallel between the distinction between discovery and justification in natural sciences and in Law . The process of discovering and justifying theses in natural sciences can be summarized in following way: 1 . Something happens in nature and provokes human curiosity and scientific inquiry (event); 2 . The scientific community will discuss this event, raise hypotheses, gradually make theses more precise, and think about the compatibility with actual knowledge (context of discovery); 3 . After the context of discovery (which already contains justificatory elements), natural science will be able to confirm or disprove the hypothesis raised and justify its claims (context of justification); 4 . Looking backward at the previous steps, we see that the justified scientific claims have not been only caused by the scientific discussions provoked by the natural event, but also by the objectivity of nature itself116: it has been a discovery of natural laws and states what has not been construed by scientific inquiry . Each of the four steps analyzed above has its proper correspondent in Law: 1 . A legally relevant fact or action happens (event or case); the case is submitted to the Judiciary; 2 . It comes to a legal procedure in whose framework arguments are disputed, proofs are made, hypotheses are raised and statutes and principles are interpreted (context of discovery); 3 . The judicial decision justifies what has happened (facts of the case), which legal norms were valid at the time of the events discussed, and how they are to be interpreted (context of justification); 4 . Looking backward to the previous steps, we see that the justified decision has not only been caused by events within legal procedure or by empirical and social factors of emergence of legal beliefs, but also by the very justifiability of legal claims (causality from reasons) . Which is, it has been a discovery of circumstances of the case and of valid law that already were the case before the legal 115 The very idea of functionalistic looking-forward in legal decision-making is, however, self-defeating when combined with the negation of the possibility of discovering past validity . If one assumes that there are no legal rules whose past validity could be discovered (rather than construed for the solution of the present case), it would be contradictory to assume that a present decision could create a rule that would in fact be able to guide future behavior of citizens . In order to conform their behavior to the new rule, citizens should, of course, be able to know and follow it . If citizens can do it, nothing prevents judges to do the same . 116 See n . 60 above .

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procedure was initiated . For example, if someone committed an unlawful act, the act has been objectively committed (even if there was no legal procedure afterward or if the actors involved in the procedure are not able to prove them), and it was already unlawful at the time of its commitment, even if the declaration of its unlawfulness had practical effects only after the decision (effects ex nunc) because of procedural constraints and reasons of legal certainty . ParT fIve: The dualIsM beTween genesIs and valIdITy non-raTIonal faCTors of legal ClaIMs

In

regard

To

Similar problems of justification arise when non-rational factors of formation of beliefs such as emotions, intuition, insights or instincts are mobilized in order to support or criticize normative claims of validity . Beside social constructivism, Legal Theory has experienced in the last decades an emphasis on empirical, genealogical and functional factors of formation of normativity . They have been the focus of the attention among various sociological, psychological and postmodern approaches . This is another face of the above-mentioned ‘empirical note’ that Legal Theory has gotten in the last decades . It has become very common to say that law would have been finally explained, enlightened, or, in a more critical register, uncovered, unmasked or deconstructed by empirical, genealogical, archeological, critical, rhetorical or functional explanations of its operations and contents . Discoveries about legal decision-making seem to defeat justification within law as every justification could be investigated and traced back to its ‘real’ motivations, causes or functions . For the purposes of this essay, I will call this kind of theoretical approach ‘genealogical program’ in a broad sense . Its main characteristic is the attempt of explanation of origins of claims of validity with reference to empirical facts (this constitutes its ‘bottom-up’ character) . As it is the case of the social constructivism discussed in Part Four, genealogical programs, too, seduce us to take a sociological perspective on claims of validity and explain their appearance behind their back instead of assessing them in regard to their content . The term ‘genealogical’ seems appropriate since this kind of research project has gained force after Nietzsche’s genealogy of morals, where he provided a psychological account on the emergence of moral claims deriving them from human instincts . After Nietzsche conceived the basic idea of genealogy, almost every field of Humanities experienced the rise of different kinds of genealogies117 . In the following, I will address the attempt to make an argumentative transition from empirical factors of the formation of beliefs (discovery) into the normative context of justification . Consider someone’s opinion that foreign minorities in a state should not have electoral rights . In this case, one would be inclined to raise against this assumption the objection that one can explain its emergence by indicating non-rational factors of formation of this belief such as hate (‘hate speech’) or resentments against minorities . However, this kind of objection could be precipitated . To treat a speaker as a patient whose beliefs can only be explained as a symptom rather than 117 See Nietzsche’s On the Genealogy of Morality. A Critical Guide, ed . Simon May (Cambridge: Cambridge University Press, 2011) .

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disproved is a way of begging the question . The assumption that beliefs are (partially) caused by non-rational factors such as emotions and instincts does not imply that beliefs originated on this basis are a priori right or wrong . Firstly, this is so because most non-rational factors of formation of beliefs are too general to serve as explanations or justifications . They comprehend mostly contradictory notions (the category of ‘emotions’ comprehends both love and hate; the category of ‘instincts’ comprehends both self-preserving and self-destructing instincts; etc .) . So, it is never sufficient to appoint to some of these vague categories of origin if we are supposed to explain, justify or criticize a claim . Secondly, contrary claims, e . g ., that minorities should or should not have the right to elect representative, may possibly both originate from the same kind of non-rational factor, each one in a contrary version of the same factor (e . g ., both contrary assumptions may have origin in an emotion: one in hate and the other in love) . Thirdly, the arguer who mobilizes non-rational factors as arguments should be able to indicate reasons for the prevalence of the selected non-rational factor rather than for other colliding non-rational factors (e . g ., he should be able to show why in this case or question love should prevail over hate) . Which is to say that contradictory non-rational factors such as love and hate must be balanced among each other in order to be mobilized for the solution of a normative controversy . Fourthly, each category of non-rational factors (e . g ., ‘emotion’, ‘instinct’) and each element under this category (emotions: love and hate; instincts: self-preserving and self-destructing) must itself be interpreted: for it is not obvious that the opinion that foreign minorities should not have electoral rights is really a case of hate, and it is not obvious what hate itself means (it has a semantic content to be explored) . Thus, the burden of argumentation of making of a non-rational factor of belief a plausible reason for or against a normative claim allegedly originated by it is much greater than it seems at first glance . In the example mentioned, the arguer should be able to show that the belief in question is really originated by hate; in order to show this, he should be able to provide a plausible interpretation of hate; he should show that his own objection is not itself produced by an implicit hate against himself or by a similar negative emotion (otherwise we would have a stalemate of hate against hate); and that, if his own belief is admittedly produced by some emotion, his emotion is justified and should prevail against the so interpreted hate (this step is necessary because we know that there are conceivable circumstances where hate can be completely justified) . The point here is to say that this would be a quite long interpretive chain of reasons (identification and conceptualization of a non-rational factor of belief; interpretation; balancing with other non-rational factors of the same kind, etc .) . At the end of this chain, even if the arguer convinces us that he is right, we will see that the normative theses held will actually not just follow from the non-rational factor argued, but from the many reasons, interpretations and logical conclusions alluded in its support and, especially, from balancing colliding non-rational factors118 . 118 Giving reasons commits us necessarily to generalizations . As Nelson puts it, “For as long as we do not commit to philosophy, and that means, for as long as we remain concerned with particulars that life presents to us, and do not pose any general questions, our feeling for the truth guides us reliably and assuredly . The conflict begins when we generalize the question, that is, as soon as we ask for the reasons that we, in judging the particular case, seem to be quite sure of and indeed act on .” See Leonard Nelson, A Theory of Philosophical Fallacies (Dordrecht: Springer, 2016), at 31 .

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This is what implicitly occurs when theories declare some non-rational or pre-intentional aspect of thinking as the ‘real origin’, the ‘actual factor’ or the ‘functional equivalent’ of a normative claim . Schematically, they want to ‘go out’ from reason into the realm of things that are taken to be ‘more real’ than normative reasons and, then, to ‘come back’ with a privileged element from ‘outside’ and to make of it a claim of justification119 . We should recognize, rather, that there is no way out of reason in matter of justification . The acknowledgement of the indispensability of rational balancing processes as a necessary condition for the consideration of non-rational factors of formation of beliefs characterizes what can be called a “post-postmodern return of rationality in Law”120 . Selections of non-rational factors have to be justified reasonably in order to say that they (and not their contrary) should be recognized as essential for a comprehension of law or for the interpretation of some statute or for the solution of a certain case . We can, indeed, consider (rationally) non-rational factors of the will as relevant, as legal orders have always done121, but always in accordance with other legal reasons . As it is the case also in Morals and Politics, the essence of legal argumentative soundness is not the suppression, elimination or diminution of emotions, but their subjection to reasons122 . Even if we know that beliefs are partially caused by emotions, instincts and other non-rational factors, these must be interpreted, balanced and ordered logically in order to be thought, communicated and translated into arguments in the context of justification . Direct mobilizations are not possible123 . It is in this sense that many theoreticians that investigate Law and Psychology talk about a ‘translation’ or a ‘rational test’ that insights and feelings should pass in order to be accepted and susceptible to control and criticism124 . Feelings do not ‘reveal’ what is right . The so-called ‘logic of discovery’ (making hypothesis, abductions, reaching creative solutions, being self-aware about pre-conceptions and emotions during the decision process) presupposes a logic of justification within the phase of discovery . The certainty of whether and why a hunch, emotion or intuition presents truth can be only achieved by means of proper justification . It is important to observe, however, that the assumption that justification is a necessary means to reach certainty of truth commits neither to the assumption that justification makes a theses true, i . e ., that truth is a product of the proper justification, nor to 119 This argument was inspired by Hegel’s discussions about perception and deception in the Phenomenology of the Spirit: Georg Wilhelm Friedrich Hegel, Phänomenologie des Geistes (Frankfurt am Main: Suhrkamp, 1970), at 93–106 . 120 Novak, ‘The Argument from Psychological Typology for a Mild Separation Between the Context of Discovery and the Context of Justification’ (n . 2), at 152 . 121 For example when legal systems state that some circumstances of the commitment of crimes such as alcoholism or high emotional affection have mitigating effects on penalties . 122 For a discussion about this point, see John Finnis, Aquinas. Moral, Political, and Legal Theory (Oxford, Oxford University Press, 1998), at 72–78 . 123 Furthermore, it would be an all-encompassing dogmatic assumption to say that every interpretation and balancing would be themselves, too, merely caused by the same non-rational factors in question . 124 For example Bruce Anderson: “It turns out that the process of discovery is a deliberate and conscious process that is not essentially arbitrary, haphazard, and irrational” . See Anderson, “Discovery” in Legal Decision-Making (n . 26), at 128–129 . See also Marko Novak, ‘The Argument from Psychological Typology for a Mild Separation Between the Context of Discovery and the Context of Justification’ (n . 2), at 154 .

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the assumption that we can only achieve truth by means of justification . It may well be that an emotion leads us to a right assumption and that we achieve truth by chance . However, having the proper justification is a necessary means to know (and, therefore, to be able to show) that a true theses is true . We should remark that the mentioned objections against a direct mobilization of non-rational factors do not minimize the importance of genealogical research programs . It is, rather, a criticism on the common refusal of genealogical programs of discussing questions of internal validity of legal claims directly . Genealogical programs that are not aware of these insufficiencies typically commit the mistake of taking for granted normative notions basing on empirical ‘evidences’ of many kinds, which results in the commitment of a kind of genetic fallacy125 . This was not the case, however, of Nietzsche’s philosophy . He has gone far beyond explanations of origins of moral assumptions . In order to provide a psychological diagnosis of moral illnesses, such as the belief in life-opposed principles, he has provided a full interpretive account (what I have called above ‘chains of reasons’) on values of nobility and of decay . As he has put it, “I have hardly detected a few meagre preliminary efforts to explore the history of origins of these feelings and valuations (which is something quite different from a critique and again different from a history of ethical systems)”; and “a morality could even have grown out of an error, and the realization of this fact would not as much as touch the problem of its value”126 . Thus, we can agree with Kail that “a genealogy contributes to the possibility of the project of revaluation, rather than constituting it”127 . The impossibility of ‘going out’ from the perspective of validity of legal claims and ‘coming back’ into it with allegedly privileged reasons from its factual formation also applies to claims of contingency of the content of law in time . For example, the social constructivist attitude described above relies commonly on the changeability of law in history in order to justify or to defeat particular claims about the present content of law . The idea that we should abandon the metaphysical idea that law has an unchangeable objective nature, could be a reason for someone to 125 The genetic fallacy is a kind of ignoratio elenchi; it means the failure to assess a (normally normative) theses on its own merits because of its source or the way of its historical appearance . Here, it is interesting to remember H . Kantorowicz’ prominent criticism on the American Realism: “Genetic explanation and normative justification must be kept apart – this is one of the most important lessons of modern epistemology . It may be sense or nonsense to explain with Jerome Frank that the ‘childish’ desire to attribute inviolable certainty to the law is caused by a ‘father complex’ – in any case the truth or untruth of that alleged attribution is quite independent of its psycho-analytic or any other genetic explanation . Of course, the genetic method may be used as a tool in the service of the normative method and vice versa .” See Hermann Kantorowicz, ‘Some rationalism about realism’, in: Yale Law Journal 43, 1934, 1240–1253, at 1249 . Nowadays, the genetic fallacy is commonly committed when one says that today’s law is mythological or religious or in some way irrational because many of its categories have a mythological or religious origin (e . g ., in Ancient Greece or in the Middle Ages) . For a discussion about this point, see Ernst Cassirer, ‘Axel Hägerström . Eine Studie zur schwedischen Philosophie der Gegenwart’, in: Ernst Cassirer. Gesammelte Werke. Hamburger Ausgabe, ed . Birgit Recki (Hamburg: Meiner, 2005, vol . 21), at 86 . 126 Friedrich Nietzsche, The Gay Science, translated by Adrian del Caro (Cambridge: Cambridge University Press, 2001), at 202–203 (aphorism 345) . 127 P . J . E . Kail, ‘“Genealogy” and the Genealogy’, in: Nietzsche’s On the Genealogy of Morality. A Critical Guide (n . 117), at 221 .

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think that, say, there is no reason anymore to persist prohibiting marriage of homosexuals . However, this would imply the same argumentative problem of ‘going out’ from reason and ‘coming back’ with privileged views from factuality . Consider firstly the case of abortion . The fact that abortion was prohibited in a given legal system in the 19th century is obviously no objection against the theses that it is permitted today . The fact that abortion was not permitted in the legal order in the 19th century does not change over time: it is timeless (but not the prohibition of abortion, which is temporal) . It follows that the fact that law has changed over time on the object-level of its duration is not an argument against the fact that law in present is like it is (meta-level of validity) . The plausible presumption that present legal norms will probably change at some moment in the future cannot be an objection against the fact that abortion is really permitted in the present . For the same reason why the change of the regulation of abortion over time does not justify a particular regulation of this issue in the present, the very fact that law changes over time does not justify a particular regulation of the issue of homosexuality today . Thus, the fact that law is so and so today does not depend on an explanation of since when it is so . This is generally valid for every claim about present things: the validity, justification and proof of the claim that it is raining in London does not depend on the validity, justification and proof of a claim that aims to explain how the rain has come about . The rain itself, obviously, has been naturally caused by some factors (object-level) . In general, we can say that logical timelessness is an essential property of validity and, per extension, also an essential property of the validity of legal claims . This means that truth about how law in the present really is (i . e ., best interpretation, best theory, right decision) cannot be located in a certain chronological frame . It does not mean, however, that law itself is a-historical or that it does not change in time . It means, again, that the fact that law is like it is does not depend on how it has come about or on its eventual change in the future . These considerations delineate a distinction between the object of reference of claims of validity (i . e ., law as an object of knowledge) and the validity of claims itself (truth or falsity of claims about law): while law as an object of knowledge is changeable over time, the validity of claims about law is timeless . ConCludIng

reMarK

Schematically, I will sum up following points on the relationship between discovery and justification in Law: a) To the extent legal decisions are caused by social (educational, economic, etc .), pre-intentional (prejudices, etc .), and non-rational (emotions, instincts, etc .) factors of formation of beliefs, discovery and justification remain connected factually at the object-level, although they are different questions of inquiry at the meta-level; b) As much as legal decisions are caused (and not only justified) by legal reasons, there is also no separation between discovery and justification at the object-level . They remain, however, different questions that can be identified as such at the meta-level;

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c) Legal justification is a ‘rational reconstruction’ of the legal decision process . It must, therefore, make a selection and improvement of factors from the actual decision process with regard to mandatory requisites of procedure and methodological rules of justification . Legal justification is, thus, not supposed to make a reconstruction of its own factual origin, but rather to rationalize the decision according to judgments of relevance from the point of view of legal validity . The ‘epistemic dichotomy’ (see above, Part Two) between discovery and justification is, thus, cognitively necessary and normatively desirable; d) Legal decisions might be taken for personal, religious, moral or political reasons that are not made explicit in the justification presented by the judicative branch . This characterizes the ‘normative dichotomy’ (see above, Part Three) between discovery and justification . Criticism can be made at two different levels: either in regard to decisions of particular cases or with regard to the legal system as a whole; e) Discovery and justification should be sharply separated when they consist in a dualism between genesis and validity of legal claims (see above, Parts Four and Five) . We should hold, therefore, a sharp distinction between discovery and justification to the extent as (1) genesis and validity of legal assumptions are different questions and argumentatively independent from each other; (2) legal questions have their own objective standards that cannot be replaced by other discipline’s empirical analysis and normative goals; (3) and the direct mobilization of causes of legal claims (empirical, cultural, structural) cannot be regarded as an argument for or against the justification of the content of these claims . This dualism should be specially held with regard to allegedly ‘realist’ research attitudes that engage in explanations of the emergence and effects of legal claims by reference to pre-intentional, post-intentional and non-rational factors .

Bruce aNdersoN / Michael shute The need for and feelIngs

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InTroduCTIon In the prevailing view of legal reasoning as legal justification, legal positivists take it for granted that the feelings of decision makers are part of a subjective, uncontrollable, irrational arbitrary discovery process whose elements must be tamed, suppressed, constrained, controlled, and/or excluded by rational and objective justificatory procedures . In fact, they believe that feelings are something that is best excluded from the decision process . For instance, Neil MacCormick favours dealing with passionate feelings by appealing to Adam Smith’s account of “the sympathies of the impartial spectator .”1 The idea is that we see our relations with other people through the eyes of an ideal, fully informed, impartial spectator . By adjusting our actual or sympathetic resentment and affections to those of the impartial spectator, we adjust and objectify our particular passionate responses to cases and get beyond immediate reactions to situations . By contrast, in her explanation of coherence based legal justification Amalia Amaya argues that emotions play an important role in legal justification . Although she admits the precise nature of its role needs to be worked out, she distinguishes between two types of cognition: hot cognition comprising of motivation, emotion, and desires and cold cognition which is intellectual and information driven . These two modes of cognition – emotional assessment and explanatory coherence – are linked insofar as legal justification depends on coherence between emotional assessment and explanatory coherence . Other scholars such as Claudio Michelon point to the importance of feelings in legal reasoning . He distinguishes between two types of intellectual virtues . Virtue reliabilism covers the cognitive faculties of particular individuals such as perception, intuition, and memory . Virtue responsibilism covers personality and character traits such as open mindedness, perseverance, and intellectual autonomy . For Michelon, “these subjective dispositions to perceive and act are accompanied by feelings and are intrinsically connected to the way in which we relate to (recognize) each other .”2 He believes that practical wisdom is “a perception of something as something”3 and involves the perception of both means and ends . Sense perception, particularly through our inner senses is how we learn about particulars when we are engaged in practical reasoning . Our inner senses enable us to form gestalts, retain those gestalts, evaluate and assess harm and danger, and retain those assessments for future use . He claims that these inner senses are different from reasoning .4 1 2 3 4

N . MacCormick, Rhetoric and the Rule of Law (Oxford: Oxford University Press, 2005), 84–86 . C . Michelon, ‘Practical Wisdom in Legal Decision Making’, in Law, Virtue and Justice, ed . A . Amaya, H . H . Lai (Oxford: Hart Publishing, 2013), 33 . Ibid ., 38 . Ibid ., 39 .

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At the end of the spectrum Michael Slote asserts that emotions play ‘the’ crucial role in legal reasoning . Empathy is the ground of justice . He argues that judges need empathy to decide fairly . Empathy is being able to think about where other people are coming from in emotionally sensitive ways .5 For him reason and rationality are not the proper ground of justice . However, such work raises more questions than it answers . For instance, what exactly are feelings? Are feelings really a danger to legal decision makers? Do feelings necessarily lead to biased decisions? Is it possible to exclude feelings from legal decision making? Do legal justification procedures simply hide feelings? What exactly is hot cognition? What is an emotional assessment? Is there more to cognition than perception, intuition, and memory? Are feelings really part of reasoning? Where does cognition end and feelings begin? What exactly is legal reasoning? What precisely are feelings? How are reasoning and feelings related? The overarching problem is where and how do we begin to answer these types of questions . Focusing solely, or primarily, on accounts of legal justification neglects the actual decision process which is presumably when feelings are experienced . A perspective that promotes an emotion such as empathy as the key criterion for legal justification strikes me as too simple . For example, what are we to make of the increased tension we often feel when we are on the brink of an important decision, or the nagging feelings of doubts that might spur us to work out a more accurate assessment of the facts? And a view of legal decision making that limits reasoning to sense perception, intuition, and memory means that legal scholars have missed the dynamic nature of decision making moving from questions to insights to judgments to decision . So where should we begin? Why not start with a better understanding or account of the actual decision making process . ParT one: The need

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But how do we get a better understanding of legal reasoning? The short answer is that each of us must examine how we reach decisions . To do this, you must investigate your own decision making process . We spontaneously make judgments and reach decisions . But correctly understanding how we perform those operations does not happen spontaneously . It requires a great deal of attention and effort . It requires, for instance, noticing that you ask different types of questions which lead to different types of insights and that different types of insights lead to different types of judgments . It requires understanding accurately and precisely those differences . And it requires judging whether or not your understanding of the pattern of operations moving from experiencing to understanding to judging to decision is correct . Finally, it calls for a decision to act in light of what you know about your decision making process . This type of analysis is difficult because it is unfamiliar, and because everyone must do it for themselves . It is not done by simply reading a text and presuming you know how you reason . It is not accomplished by conceptual or logical analysis, but rather by analyzing performance . You have to pay close attention to your process of 5

M . Slote, ‘Empathy, Law and Justice’, in Law, Virtue and Justice (n . 2), at 279 .

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asking questions, achieving insights, and making judgments . However, it will be helpful to offer a brief and crude guide regarding what you will find if you engage in this type of self-analysis .6 The decision process is driven by both wonder or curiosity and concern . Wonder or curiosity drives us to seek judgments of fact, but it is our felt concern that moves us to actually make decisions . But let us begin with wonder and curiosity that spontaneously spurs us to inquire . We wonder and are curious about what we imagine, remember, see, hear, taste, smell, and touch . In the legal context wonder and curiosity provoke questions such as, what happened? What is the situation? What does that text mean? We also raise questions about events that begin with How? Where? Why? Who? When? We also ask practical questions such as, what alternatives do I have? What can I do here and now? In legal contexts, lawyers come up with options for their clients and judges come up with practical solutions to problems . Such questions are part of a pattern of intellectual operations seeking an understanding of events and possibilities . We are trying to make sense of events, circumstances, and situations . The term What-questions captures our orientation . Interpretations, explanations, and narratives are answers to factually oriented what-questions about events . What happened? Why did it happen? How did it happen? When did it happen? Who did it? Options and proposed courses of action are answers to practical what-questions about what to do in particular concrete situations . What are my options? What courses of action are possible? Does this alternative make sense? But before making a judgment of fact that a particular interpretation or explanation is correct or entirely mistaken or half-right or probably true or mostly true, it must be tested . Alternatives and courses of action also have to be imagined, organized and formulated, and then tested before reaching a judgment of value that in these particular circumstances this particular option is the best, the most suitable, the most appropriate, the worst, better than its alternative, or the only one that might work . The questions asked in this context are called Is-questions . Is this explanation correct? Is it true? Is it mistaken? And when we are considering doing something practical we ask, is this a good option? Is it suitable? Is it better than the alternative? Is this course of action truly the best? It is worth noticing that this problem solving procedure is essentially creative . Interpretations, explanations, and narratives rest on related sets of insights that grasp relations or connections between events that previously were not understood as being related, connected, or linked . The mental operation which grasps the possible link between concrete events is called a direct insight . We admire people who perform this activity well and say they are intelligent . 6

For more on this method of self-attentive analysis see: B . Anderson, ‘A Note on the Process of Introspection’, in Perspectives in Jurisprudence: Scandinavian Studies in Law, Volume 48, ed . P . Wahlgren (Stockholm: Stockholm University Law Faculty, 2005), 13–24; B . Anderson, Discovery in Legal Decision Making (Dordrecht: Kluwer Academic Publishers, 1996), 143–158; P . McShane, Wealth of Self, Wealth of Nations (New York: Exposition Press, 1975) . For examples of this type of analysis see Anderson, Discovery in Legal Decision Making (n . 6), at 80–92; B . Anderson, ‘The Procedural and Contextual Aspects of Objectivity’ in Truth and Objectivity in Law and Morals, ed . H . Yoshino, A . Santacoloma Santacoloma, G . Villa Rosas, ARSP-Beiheft 148, (Stuttgart: Franz Steiner Verlag, 2015), 81–95 .

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Coming up with courses of action is also a creative activity . In order to discover your options you have to grasp the links between reasonably realizable possibilities and how you understand a particular concrete situation . This mental activity is called practical insight, what Aristotle called phronesis . We commonly refer to people who excel at this type of activity as “thinking outside the box” . Remarkably, even the process of testing whether or not interpretations and narratives are correct or mistaken is creative . The activities comprise asking relevant questions and the creative act of having a reflective insight that grasps both the link between a proposed judgment of fact and the conditions that must be fulfilled in order to make that judgment, and whether or not those conditions are fulfilled . Reflective insight is creative in that both the conditions for the judgment and the links between these elements are discovered . It is worth stressing that the criteria for judgments of fact do not come ready made . This activity is open-ended in the sense that the criterion for concrete judgements of fact is whether all the relevant questions have been asked and answered satisfactorily . To state it simply, testing explanations and narratives is essentially a discovery process . Reaching a judgment of value that a particular practical option is good or better than another in a particular concrete situation is also essentially creative . Deliberating about what to do involves asking all the relevant questions about alternatives, the steps needed to make an option an actuality, the possible and probable consequences of various options, their suitability, pros, cons, importance, and so on . A judgment of value that, for instance, a particular option is the best one rests on an activity known as a practical reflective insight, an act that grasps in a single moment the relations or links among the concrete situation and the answers to the questions in the preceding deliberation . The criteria for judgments of value do not come readymade in the form of norms, rules, or principles . Listing the names of the operations performed in legal reasoning will perhaps help capture the complexity of legal reasoning and help focus your attention in your efforts to achieve a better understanding of legal reasoning . Legal reasoning comprises the following pattern of activities: seeing, hearing, touching, tasting, smelling, remembering and imagining, What-questions, direct insights, narratives, Is-questions, reflective insights, judgments of fact, What-to-do-questions, practical insights, options & plans, Is-it-to-be-done-questions, practical reflective insights, judgments of value, and decisions .7 We cannot over-emphasize the point that what we have written above is merely a summary of key activities that are part of a clearer view on the legal decision making process . To get to grips with what we are referring to you must get to grips with how you solve particular concrete practical problems . The Canadian philosopher Bernard Lonergan (1904–1984) captures this requirement when he asserts that, if one is to understand knowing and doing, one must engage in this practice of self-understanding because without doing that one can no more know knowing and practical reasoning than a blind man can know colours .8

7 8

For more on this dynamic pattern of mental activities see Anderson, Discovery in Legal Decision Making (n . 6), at 93–142 . B . Lonergan, Method in Theology (London: Darton, Longman &Todd, 1971), 15 .

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ParT Two: legal reasonIng as ConsTellaTIons of QuesTIons, InsIghTs, judgMenTs versus legal reasonIng as legal jusTIfICaTIon Because we are purporting to offer, and invite the reader to, a greater self-appreciation of legal reasoning perhaps it is worth drawing attention to some of the ways we judge it to be more accurate than other accounts . We begin with the argument that the decision process is intelligent and rational . The claim of many legal positivists that the actual decision making process or so-called discovery process is essentially subjective, irrational, and arbitrary is not supported by the evidence . The formulation of a narrative or ‘the facts’ of a case does not happen by chance . Rather, it depends on paying careful attention to evidence, intelligently grasping how events and stories are linked, and assessing whether or not the narrative is supported by sufficient evidence . The discovery of alternative courses of action requires intelligence, and judging which practical option, plan, or solution is the best depends on a deliberative process that is marked by intelligence and reasonableness . This process is open, creative, intelligent and reasonable . Asking and answering questions are at the centre of testing the accuracy and truthfulness of narratives and testing the suitability of proposed courses of action . Even the key mental operations performed to test narratives and plans – reflective insight and practical reflective insight – are rational . Our next claim is that a distinct and independent process of legal justification is unnecessary . Legal reasoning involves more than perception, intuition, and memory . We have invited readers to discover their decision making procedure comprised of a pattern of thirteen mental operations moving from perception and memory to questions to insights to judgments . To presume that the pattern of mental operations we have discussed above can best be classified as being part of a distinct process of discovery that must be subject to a separate and distinct rational and logical justification process misses the point that testing is an essential part of the actual decision making process and that testing is essentially a discovery process . Even logical argument presupposes a common form of discovery and verification, which we might characterize as an if/then relationship .9 Let us consider the often-used example from classical syllogism: All human beings are mortal Socrates is a human being Therefore, Socrates is mortal . First, when we turn to the first term of the argument, “That all human beings are mortal,” that we are mortal is not something human beings know innately at birth . Rather, it is something that we must discover, either because we are taught it or we realize it for ourselves . With respect to the middle term, there is required an inspection of “Socrates” to determine that he is, in fact, a human being and not some fictional character . Only when we verify that Socrates is a human being, can we come to the conclusion that Socrates must be mortal, given our understanding of the first term of the argument . In other words, if Socrates is a human being, then 9

See B . Lonergan, ‘The Form of Inference’ in Collected Works of Bernard Lonergan, Volume 4, ed . F . Crowe, R . Doran (Toronto: University of Toronto Press, 1988), 3–16 .

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given our premise in the first term, he must be mortal. Logical analysis and judgment also involves discovery and verification. Further, assessing narratives of events and evaluating proposed courses of action are integral to the actual decision process. Stipulating additional tests or criteria that an outcome in a case must satisfy does not add anything to judgments of fact or judgments of value that are the outcome of careful assessment and evaluation. There is no need for a separate and independent theory of justification to check on the decision making process. Narratives and courses of action have already being subject to a stringent testing/justification process. In fact, making a clear distinction between discovery and justification obscures and distorts the way we assess interpretations of situations and evaluate courses of action. Superimposing external legal justificatory criteria would actually suppress intelligence and reasonableness insofar as the external criteria are fixed and limited in their scope. Because the decision making process is intelligent and reasonable it does not need to be controlled and constrained by a distinct process of justification. Rather, the unfolding of this essen-

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tially creative, intelligent, and rational patterning of questions, insights, and judgments needs to be supported and cultivated, not tamed, suppressed, constrained, or curtailed . We are not claiming that a particular legal decision would not, and should not, be subject to scrutiny and evaluation by other people . But in order to do that, the person evaluating the decision would have to reproduce the key questions, insights, and judgments that the decision maker experienced . Criticism of a decision, then, would be based on judgments that the decision maker, for instance, did not pay attention to relevant evidence, did not ask relevant questions, made spurious links between evidence, made judgments of fact that were not supported by the evidence, proposed inappropriate solutions to problems, neglected to ask relevant questions when deliberating about what to do, made judgments of value that do not adequately account for the particular concrete situation, and/or failed to do what they judged to be intelligent and reasonable in the situation . Our point is that in order to test the adequacy of a decision you have to reproduce the decision making process along the broad lines which it was actually accomplished by the decision maker . That is the best we can do . A legal decision is comprised of constellations of questions, insights, and judgments . It is not the outcome of some mysterious process that needs to be subject to further testing . Adding external criteria that the outcome of a case must satisfy is based on misunderstanding the decision process and simply amounts to expressing the outcome of the case in the fashion acceptable to the legal profession .10 The actual constraints on decision making are the particular circumstances that comprise the concrete situation . For instance a legal decision operates within the context of the legal system, which sets the horizon in which decisions are made . When a judge makes a decision with respect to their domestic life, the specific circumstances and range of freedom the judge has may differ . In the courtroom, the judge’s decision is the judge’s alone . But at home, the judge may consult his partner and his children . Still the common features that constitute the broad lines in which decisions are made pertain to both the courtroom and the home situation . Personal characteristics of the decision maker such as their experience, intelligence, reasonableness also play a role . The horizon of the decision maker – what they know, and what they know about but don’t know – is part of the context . For instance, the extent to which decision makers pay attention to relevant events and circumstances, intelligently grasp how they are related, make a reasonable assessment that there is sufficient evidence to support a particular narrative, and come up with options that intelligently fit a particular scenario are factors that limit decision making . Decisions are inadequate when decision makers ignore and belittle relevant evidence, misunderstand events, make rash and unreasonable judgments of fact, formulate a narrative that leaves out significant events, propose courses of action that would be impossible to achieve, ignore relevant aspects of the situations during deliberations, and/or choose unsuitable courses of action . 10

For more on this criticism of this sort of legal justification see Anderson, Discovery in Legal Decision Making (n . 6), at 150–158; B . Anderson, ‘Weighing and Balancing in the Light of Deliberation and Expression’, in Legal Argumentation Theory: Cross-Disciplinary Perspectives, ed . C . Dahlman, E . Feteris (Dordrecht: Springer, 2013), 113–123 .

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Amalia Amaya recently offered an explanation of how and why legal decisions are justified . She takes it for granted that the role of legal reasoning is to justify legal decisions and that the best way to accomplish this is by constraining legal decision making . Her overarching claim is that decision makers are constrained by the requirement to make their judgments coherent . Various types of coherence constrain decision making by providing general criteria for the acceptance of propositions . In fact, she believes that legal reasoning is driven by coherence and the aim of her book, The Tapestry of Reason, is to build a coherence-based theory of legal justification . Amaya argues that coherence acts as a positive constraint on legal decision making in that it is the criterion for judgments regarding the similarity among visual and semantic elements, the aims, and the structural elements of legal decisions . Coherence acts as a negative constraint on decision making by distinguishing between incompatible, contradictory, and conflicting elements . In sum, coherence-based reasoning excludes elements, stipulates the appropriate degree of coherence required, and defines when coherence exists and when it does not . Coherence-based reasoning, then, constrains legal decision making by serving as the process and the criterion for legal justification . Amaya’s explanation of coherence based justification focuses on two key legal issues: (1) the justification of conclusions and beliefs about disputed questions of fact and (2) the justification of conclusions and beliefs about disputed questions of law . The justification of disputed questions of fact requires the maximization of factual coherence which involves the integrated assessment of various kinds of coherence . They are: explanatory coherence – the fit between hypotheses of guilt or innocence and evidence; analogical coherence – the fit between mapping hypotheses; deductive coherence – the fit between legal rules, general principles, and particular judgments; perceptual coherence – the fit between visual representations and non-verbal representations; conceptual coherence – the fit between concepts; and deliberative coherence – the fit between deliberative factors and legal doctrine, and the goals of adjudication and the legal system . The justification of disputed questions of law also involves the assessment of different kinds of coherence . There must be explanatory coherence – the fit between legal rules, principles, judgments, and evidence; deductive coherence – the fit between legal rules, principles, and particular judgments; analogical coherence – the fit between similar legal decisions; deliberative coherence – the fit between legal principles, rules, judgments, and the goals & values of the legal system such as the doctrine of precedent; and interpretive coherence – the fit between interpretive hypotheses and legal principles, rules, and judgments . To state it simply, coherence – the requirement that things fit together – is the key criterion for legal justification according to Amaya . But how, exactly, do you determine which set of disputed facts or interpretations of law should be accepted as justified? Her answer is that you begin by making a list of relevant factual or interpretive hypotheses and relevant evidence . Next you divide up the factual or interpretive hypotheses and evidence so that you construct alternative theories of what the facts are or what the law is . Elements are divided up so that each competing set maximizes coherence . In other words, elements that make sense or “fit” are grouped together as a set . Then you revise each competing set of facts or interpretations of the law to make it as coherent as you can . Now you

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are in a position to evaluate the coherence of each competing set against the criteria of factual or normative coherence identified above . The aim is to maximize coherence . The most coherent alternative, that is the theory that best satisfies all the various criteria of factual coherence or normative coherence, is the one that is justified . Amaya calls this process “inference to the best legal explanation” and characterizes is as an eliminative method whereby the best explanation emerges by a process of elimination . Further, she claims this account “accurately describes the process whereby we construe coherence in the course of decision making (as much in law as everywhere else) .”11 She notes that this process of maximizing or optimizing coherence, this method of inference to the best legal explanation, can be biased . Relevant evidence can be ignored . Alternatives can be poorly formulated . And the performance of the coherence calculation or assessment can be defective . Amaya addresses these possible deficiencies by stipulating that a belief about the facts or the law under dispute is justified if, and only if, it could be the outcome of a piece of coherence-based reasoning performed by “a similar circumscribed epsitemically responsible decision maker .”12 This raises questions about the identity of a similar circumscribed epistemically responsible decision maker . For instance, what are the qualities of such an individual? However, before answering that question she claims another important question must be answered . That question concerns what counts as maximum or optimal or best coherence? In other words, how high or severe a standard of coherence is required to justify a legal decision? What standard is adequate? Where do you draw the line? Amaya’s answer is that it depends on the context . Hence what counts as “epistemically responsible behaviour” depends on the context and a crucial part of being epistemically responsible is to determine the appropriate degree or standard of coherence called for in a particular dispute . Other important factors she notes that should be considered include what is at stake in the dispute, the cost of being wrong, whether the dispute is at the trial or appeal level, time constraints, relevance, the level of scrutiny, and the goal of adjudication .13 Contextual factors, then, act as a further constraint on decision making . They set the degree of coherence required for legal justification . The standard of proof is an example . It is more severe in criminal cases than in civil cases . Hence more coherence would be required in a criminal case than a civil case . Further, which elements should be included in the competing contrast sets of facts or interpretations of law depend on the context . It follows that the maximum or optimal degree of coherence required varies with context and it is up to the epistemically responsible decision maker to figure out the context and the degree of coherence it calls for . To summarize, the structure of “coherence based legal inference consists in generating a short list of plausible candidates from which one infers to the best, that is the theory about either the case or the law that best satisfies the criteria of factual or normative coherence .” Hence, “a belief about the facts or the law is justified if, and only

11 12 13

A . Amaya, The Tapestry of Reason (Oxford: Hart Publishing, 2015), 510 . Ibid ., 552 . Ibid ., 527 .

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if, it is optimally coherent, that is to say if it is a belief that an epistemically responsible legal decision maker might hold by virtue of its coherence in like circumstances .”14 Our alternative explanation of the patterning of questions, insights, and judgments in decision making offers a more comprehensive and accurate context for trying to determine what, exactly, coherence is . For instance, the explanation of reflective insight leading to judgments of fact enables us to move from loose descriptions of coherence in terms of “making sense” and “fitting together” to an explanatory perspective aimed at getting to grips with what actually goes on when we grasp links among proposed judgments, the necessary conditions for that factual judgment, and whether or not the conditions are fulfilled . This view is more precise than talk of maximizing and optimizing various type of factual coherence . The discussion of reflective insight provides a fuller context in which to consider coherence and also makes it evident that we need to push our analysis into the zone of how we actually reach decisions .15 Understanding the role and operation of practical reflective insight and judgment of value helps makes sense of something that Amaya calls normative coherence . The need for better understanding is also evident here . The questions and answers provoked by Amaya’s work are: How exactly do we fit evidence, events, and narratives together? Prior to any assessment of coherence we engage in a discovery process . We ask what-questions and achieve direct insights and practical insights that we formulate as narratives and possible options which need to be tested . Do we actually reason by maximizing coherence? We reason by asking questions, having insights, and making judgments . Logical operations are not the only operations involved in reasoning . Are factual coherence and normative coherence really the key criteria in legal justification? Analysis of the actual decision process reveals that judging is a complex and nimble activity . For example, factual coherence does not get to the heart of how the truthfulness of an account of a particular concrete situation depends on reflective insight grasping the sufficiency of the evidence and the process of question and answer . Further, the role of belief in fact finding and the crucial role of judgments of value in decision making need to be considered .16 More broadly, without understanding the unfolding pattern of mental activities that ultimately conclude with a decision these complex issues related to legal justification cannot be adequately addressed . So far our focus has been on the intellectual dimension of legal decision making that begins in wonder or curiosity and ends in a judgment . And our aim has been to point to the need for a better understanding or account of legal decision making . Questions, insights and judgments were identified as the key pattern of intellectual operations . Feelings were not part of that discussion . But as we move to consider feelings in the next section it is worth pointing out that feelings were not part of our account of reflective insights and judgments of fact . Judgments of fact are correct if, 14 15

16

Ibid ., 531 . An example of this type of analysis can be found in Anderson, Discovery in Legal Decision Making (n . 6), at 81–92 where the author traces the broad lines of an arbitrator solving a dispute . Also, in B . Anderson and M . Shute, ‘The Procedural and Contextual Aspects of Objectivity’ (n . 6) the authors trace how one of the authors solved a problem centered on an Employer-Trade Union Collective Agreement . See B . Lonergan, Insight: A Study of Human Understanding (Toronto: University of Toronto Press, 1992), 728–735 .

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and only if, they are supported by sufficient evidence, not simply because it feels correct . Strictly speaking, practical reflective insights and judgments of value do not rest on feelings . Judging what is truly good, bad, suitable, good enough, or the lesser of two evils is an intellectual activity dependent on asking and answering all the relevant questions and being satisfied with the answers . Such judgments are not right simply because they feel good . But, of course, the situation is a little more complicated than that . We noted above that the decision making process is driven by both wonder or curiosity and concern . So far we have focused our attention on the intelligent and rational elements that lead to judgments of fact and judgments of value . We turn now to the role of concern in legal decision making . And our concerns are most commonly apprehended in what we feel . ParT Three: The need for reasonIng

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In

legal

Legal theorists such as MacCormick and Amaya are quick to identify the negative aspect of feelings . Feelings can interfere with legal decision making by suppressing and distorting the proper unfolding of the pattern of intellectual operations comprising the decision process . For instance, an angry judge might make a rash judgment . Of course, in the legal context some process of legal justification is meant to nullify such possibilities . For MacCormick the impartial spectator is called upon to aid deductive justification and tests of consequences, consistency, and coherence . However, MacCormick pays no serious attention to the positive role that feelings may play in moving the decision making process along and in identifying the real concerns that help us identify and select the best outcomes . By contrast, Amaya points to the need to understand the role of emotions in legal reasoning that acknowledges the fact that emotions, though necessary, may also bias and distort judgment .17 Although she acknowledges a role for feelings in deliberation, as we shall discuss below, her acknowledgment is based on criteria of coherence that is at odds with how feelings actually function in decision-making . Not only does she assert that reasoning about disputed questions of fact and disputed questions of law are intellectually and information driven, but she also claims that emotions, motivations, and desires are a crucial part of legal reasoning . For her, emotional assessments and emotional judgments are part of the coherence calculation . Emotional coherence and explanatory coherence, for instance, produce judgments about a juror’s judgment about what to believe . Drawing on the work in psychology by Paul Thagard,18 Amaya notes that simple factual statements, hypotheses regarding guilt and innocence, and explanations have a cognitive status of being accepted or rejected plus they have an emotional status called valence which is positive or negative depending on one’s emotional attitude toward the element . Valence calculations are part of a coherence calculation which, in turn, constrains legal decision making . In this way, emotional assessments and judgments are part of legal justification . 17 18

Amaya, The Tapestry of Reason (n . 11), at 401 . Ibid ., 230–238, 349, 399–401, 352–354, 536–537 .

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Although Amaya admits that her portrait of the role of feelings in law is preliminary and tentative it is worth briefly indicating the importance of having a better appreciation of the role of feelings in the decision process . In previous sections of this paper we portrayed the judging process as an intelligent and rational activity . Feelings, however, are neither intellectual nor rational acts per se . Their occurrence, of course, may reflect the mediation of past judgements and deliberations in the biography of the person judging and deliberating . Thus, for example, we may feel a nagging suspicion that someone might be lying and that felt alert is relevant data in a judgment . However, there is no such thing as a special type of “emotional judgment .” We can make judgments about feelings and we can make judgments influenced by, or distorted by, feelings, but feelings are not judgments . An emotional judgment would simply be a judgment grounded on feelings, not on the sufficiency of the evidence for a prospective judgment grasped by reflective insight . Further, “emotional coherence” should not be a criterion for a judgment of fact . But you can make a judgment of fact that various feelings such as hatred, dread, revulsion are coherent in the sense that a person associates these different feelings with the same object or value . And you can also say that rational judgment and feelings are coherent when you notice that good value judgments are associated with an easy conscience . In such examples judgment and feelings are not conflated . But the key question is how do we achieve a better understanding of the operation and function of feelings in legal reasoning? The short answer we propose is that you must engage in a self-attentive analysis as described above in the section on legal reasoning and include feelings as relevant data in your investigation . You must begin by identifying your feelings and asking questions about them . You have to pay attention to your feelings when you are deliberating, for instance . What follows are some of our preliminary findings . They are meant to simply point to areas that call for further study . The key point we are trying to communicate is that feelings are crucial to good legal decision making and that such investigations must begin with understanding the actual operation and function of feelings . For instance, neither of us has ever done a valence calculation, yet we have successfully incorporated an analysis of our feelings in making good decisions . We know that feelings of fatigue, hunger, pain, and thirst can negatively influence decision making . This type of feelings relates us to a cause or an end . We feel hungry and then we look for food to eat . We feel tired and so we go to bed . Sleeping judges get disciplined and courts always break for lunch . And we take it for granted that to know the facts we must keep our feelings and concerns about the outcome of a case in check . But there is another type of feelings . Feelings also relate us to objects . By objects we mean not simply the sensibly present ‘object’ but also the meanings and values apprehended by a feeling . We have feelings about other people . We feel for them . We feel with them . They mean something to us . And we have feelings about situations, feelings about the past and the future, feelings about bad things to be fixed, and feelings about good things to do . We have feelings about what is intended, understood, represented, or perceived .19

19

Lonergan, Method in Theology (n . 8), at 30–40 .

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For instance, a judge may be moved by mercy or disgusted by a criminal act . Here, what a judge values, as revealed in feelings, is relevant to deliberation . These feelings need to be identified and their relevance and role in the decision process objectified . In fact, a good judge presumably would feel strongly that adherence to the legal traditions that demand that he seek justice and show mercy when appropriate are worthwhile values . Indeed such feelings may sustain the judge through a difficult deliberation . To be a responsible judge is not just going with your gut feelings and it is not simply a rational calculation . Reasoning and feeling are both part of the decision process . How we understand and control them is relevant to making good decisions . There is another important positive role for feelings in legal decision making . Our feelings and the concerns they indicate move us . For instance, in an analysis of belief we traced how a lawyer’s anger drove him to find out and prove that his client did not burn down his own building .20 The lawyer was committed to solving the case because he was so angry about the possibility of an unjust outcome . In an experience of legal decision making a pervasive feeling of discomfort motivated one of us to continue inquiries until he was satisfied with his decision .21 Evidently, feelings move us toward making judgments and decisions, and confirming our good choices . We respond to agreeable or disagreeable objects and to satisfying or dissatisfying objects . Our feelings here are relatively simple; we feel pleased or satisfied about something . For instance, it feels good to buy a new bicycle, to eat a chocolate bar, or to settle into reading a good thriller . But feelings also respond to values . We respond to what is in fact true and we respond to what is truly good or truly worthwhile . We apprehend value in feelings . These apprehensions are not yet objectified or articulated . That is a subsequent effort of understanding, properly identifying and evaluating them . Feelings occur when we see something beautiful, when we finally understand something we have worked on for a long time, when we know someone is telling the truth, and when we witness noble deeds, virtuous acts, and great achievements . In such situations we do not merely feel satisfied or pleased . Feelings, then, are important indicators of our values . They are, from the point of view of deliberation, data to be understood . They help us identify what is really important to us . We apprehend our values in feelings . Hence being able to identify what the feeling is and the values apprehended in the feeling are important . What matters to us is not always clear . Hence it is important to discern what values ought to inform a particular decision . Feelings respond to values in accord with some scale of preference . We spontaneously consider some values more important than others . For instance, on the bottom of a scale of values would be vital values – the value of health, strength, running fast, and eating well . Next would be social values – the value of the good of order, the education system, the political system, the legal system, and the economy . Next cultural values associated with the discovery, expression, validation, criticism, development, and improvements of such meanings and values . Above them 20 21

B . Anderson, The Nature of Belief, unpublished manuscript . See Anderson and Shute, ‘The Procedural and Contextual Aspects of Objectivity’ (n . 6) .

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on the hierarchy would be personal values – the originator of values in oneself and one’s milieu . And on the top, for many people, are religious or ultimate values .22 Values are not something that are fixed and stable . Often we find that our values conflict or that they conflict with the values of other people . It is often difficult to distinguish between subjective values – our wants and desires – and objective values, what is good independent of our own desires and needs, that is what is good independent of a particular person . Our scale of values is subject to distortion . Higher values can be ignored, belittled, denied, and rejected in favour of self-interest, the interests of particular groups, and ideologies . Hence it is crucial to consider feelings . “To take cognizance of one’s feelings makes it possible for one to know oneself, to uncover the attention, obtuseness, silliness, irresponsibility that gave rise to the feeling one does not want, and to correct the aberrant attitude .”23 ConCludIng reMarK Legal theorists stress that legal decision making is a reasoning process . For them legal reasoning means some sort of distinct logical or coherence-based justification process that a legal decision must satisfy . Just as we pointed to a better way of understanding the actual performance of legal reasoning by engaging in a self-attentive analysis, we argued that the same self-attentive analysis must also pay attention to feelings and values in the decision process . For legal theorists to neglect the actual performance of legal decision making, including the role of feelings in it, is to ignore relevant data . For judges to neglect their feelings is to run the risk of unjust decisions . Further discussions would draw our attention to the importance of educating and cultivating appropriate feelings in law students, law teachers, lawyers, and judges in addition to teaching narrow technical skills and legal argumentation .

22 23

For more on scales of values see Lonergan, Method in Theology (n . 8), at 39–41 and Lonergan, Insight: A Study of Human Understanding (n . 16), at 624–625 . B . Lonergan, Method in Theology (n . 8), at 33 .

ParT III – objeCTIvITy

and

Kelsen’s Theory

of

law

JiNG Zhao* The jusTIfICaTIon ProbleM valIdITy

In

hans Kelsen’s Theory

of

legal

InTroduCTIon1 Kelsen is known as both a Positivist and a Neo-Kantian . This mixed position also influences his theory of legal validity . Regarding the assertion of “Separate Thesis” of law and morals, he stands on the side of positivists, who reject a philosophical theory of legal validity . At the same time, he opposes all of the natural and empirical-sociological theories by emphasizing the dualistic methodological principle and connects himself with the critical tradition of (Neo-)Kantianism . For Kelsen, the validity of legal norms is an “ought” question, which must be traced back to the superior norm, namely the basic norm . This concept of basic norm is the crucial point to understanding Kelsen’s entire theory of law . When we talk about “validity” of law, a distinction must be drawn between the validity in an epistemological and in a practical sense . The second validity means * 1

Heartfelt thanks to Prof . Dr . Dres . h . c . Ulfrid Neumann for his guidance and support, valuable suggestions and comments regarding my work on Kelsen . First, I want to clarify the subject of this paper . There are already enough discussions about the periodization and transformation of Hans Kelsen’s legal theory, especially his concept of basic norm . See Carsten Heidemann, Die Norm als Tatsache (Baden-Baden: Nomos, 1997); Stanley L . Paulson, ‘Four Phases in Hans Kelsen’s Legal Theory? Reflections on a Periodization’, in: Oxford Journal of Legal Studies (Oxford: Oxford University Press, 1998), 153–66; Paulson, ‘Die unterschiedlichen Formulierungen der „Grundnorm“’, in: Rechtsnorm und Rechtswirklichkeit. Festschrift für Werner Krawietz zum 60. Geburtstag, ed . Aulis Aarnio et al . (Berlin: Duncker & Humblot, 1993), 53–74; Robert Walter, ‘Die Grundnorm im System der Reinen Rechtslehre’, in: Rechtsnorm und Rechtswirklichkeit. Festschrift für Werner Krawietz zum 60. Geburtstag, at 85–100; Ota Weinberger, Normentheorie als Grundlage der Jurisprudenz und Ethik (Berlin: Duncker & Humblot, 1981); Joseph Raz, ‘Critical Study: Kelsen’s General Theory of Norms’, in: Phlosophia 6 (Rome: Gregoiran & Biblical Press, 1976), 495–504; Eugenio Bulygin, ‘An Antinomy in Kelsen’s Pure Theory of Law’, in: Ratio Juris (Hoboken, New Jersey: John Wiley & Sons Ltd ., 1990), 29–45; Deryck Beyleveld, ‘From the “Middle-Way” to Normative Irrationalism: Hans Kelsen’s General Theory of Norm?’, in: Modern Law Review (Oxford: Blackwell Publishing Ltd ., 1993) 104–19; Horst Dreier, Rechtslehre, Staatssoziologie und Demokratietheorie bei Hans Kelsen (Baden-Baden: Nomos, first publ . 1986) . The fact that Kelsen has abandoned his central position after the Salzburg presentation – ‘Die Grundlagen der Naturrechtslehre’, in: Österreichische Zeitschrift für öffentliches Recht 13, 1963, pp . 117–62; neu printing in: Die Wiener Rechtstheoretische Schule, vol . 1, ed . Hans Klecatsky et al . (Vienna: Europa Verlag, 1968), pp . 869–912 – in 1962 is indisputable . However, there is still no common agreement about the starting point of his transformation: in which year did Kelsen start to change his original methodological principle which is based on the epistemology of (Neo-)Kantianism . One example is the discussion between Heidemann and Paulson . How to interpret Kelsen’s position changes, is not the subject of this paper . This paper is limited to the research of Kelsen’s legal validity in his classical phase (according to the conclusion of Paulson, “Four Phases in Hans Kelsen’s Legal Theory?” n .1, at 161), i . e . before 1960/62, so that the basic norm is still the result of juristic thinking and functions as a transcendental concept of legal cognition .

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the binding force of law to its addressee . Kelsen’s model of basic norm is a mixture, which attempts to justify both kinds of validity within one concept . In the following text, I want to show why this model is not able to provide the final basis of legal validity . If Kelsen would also like to justify the practical validity, it is not sufficient to merely inherit the theoretical part of Kant’s philosophy . ParT one: Two senses

of

legal valIdITy

and ITs jusTIfICaTIon

1. Why is the laW valid? The validity of positive law is presupposed by the legal positivism, i . e . the positive law is factually valid . The question raised by the legal theory is only a “why-question”: why is the law valid? What is the reason of its validity? Kelsen’s legal theory also relates to this question . His method of justification of the legal validity is to interpret the positive law as legal norms, the power-relationship as legal-relationship . The validity, to which the concept of “ought” refers, is the modus of norm-existence,2 thus legal norms always coincide with the validity . The question then changes into a “how-question”: how can the positive law be understood as a norm, i . e . how can the subjective meaning of certain facts be interpreted as the objective meaning, as objective valid legal norms?3 How is positive law, qua object of cognitive science of law, possible? In this process, the legal norms function as the “scheme of interpretation” (Deutungsschema), which confers the positive law of space-time initially a juristic meaning through the category of “imputation” (Zurechnung) . After that, the law is constituted to valid norms . The further question is: how is such interpretation at all possible? In this point, Kelsen goes back to Kant’s first critique and offers an epistemological answer with his well-known doctrine of the basic norm, which functions as the transcendental-logical condition of the possibility of normative interpretation of the legal materials .4 On this basis, the normative dimension of the law, especially its possibility can be explained .5 With regard to the transcendental argument through the basic norm, Kelsen writes: “That the basic norm really exists in the juristic consciousness is the result of simple analysis of actual juristic statements,”6 i . e . that the basic norm is merely a presupposition of the juristic thinking; it is a hypothetical condition of all legal

2

3 4 5 6

See Hans Kelsen, Reine Rechtslehre (2nd edn ., Vienna: Franz Deuticke, 1960), 9; Kelsen, ‘Value Judgments in the Science of Law’ (first publ . 1942), in: What is Justice? Justice, Law and Politics in the Mirror of Science. Collected Essays by Hans Kelsen (Berkeley, Los Angeles: University of California Press, 1957), 214 . Kelsen, Reine Rechtslehre (n . 2), at 3–4 . Due to the methodological principle which Kelsen inherits from Neo-Kantianism, he opposes Realism, i . e . rejects all kinds of “Is-justification” and regards the “Ought-justification” as the only possible way of justifying the legal validity . Ibid . at 205 . Ralf Dreier and Stanley L . Paulson, ‘Einführung in die Rechtsphilosophie Radbruchs’, in: Gustav Radbruch, Rechtsphilosophie (1932), Studienausgabe (Heidelberg: C . F . Müller, 2003), 245 . Hans Kelsen, General Theory of Law and State (first publ . 1945), trans . Anders Wedberg, 20th Century Legal Philosophy Series: Volume I (Cambridge: Harvard University Press, 1945; repr . New York: Russell & Russell, 1961), 116 .

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cognition7 which can be, but must not be presupposed . Thus, the system of norms that we call “legal order” is a possible but not a necessary schema of interpretation .8 Insofar, the basic norm justifies the validity of law only conditionally .9 There are critiques on Kelsen’s justification of the legal validity in this theoretical sense, i . e . the positive law is valid because it can be interpreted to legal norms whose possibility consists in the transcendental-logical concept of the basic norm . Horst Dreier points out, that there are essential differences between Kant’s transcendental philosophy and Kelsen’s construction through the basic norm, because Kelsen’s basic norm has no fixed size, whose presupposition is not necessary . The legal rules as objects of the causal is-world are still perceptible, only not as norms, but as power supported factuality .10 Stanley L . Paulson is of the same opinion, that the basic norm is only a possible justification of the legal validity, but not necessary .11 The hypothetical character of the basic norm is also criticized for its arbitrariness and lack of provability .12 These critiques are convincing . There is a condition for the necessity of the basic norm: its presupposition as a transcendental category is only then necessary, if one, especially the legal scholar wants to understand the positive law as an objective valid normative order . This “quasi-kantian category”13 functions as the transcendental-logical condition and the logical necessary hypothesis of every legal system .14 Furthermore, the scientific character of the positive legal order is also legitimized . 2. Why should the laW Be oBeyed? In the last part, Kelsen has, through the concept of the basic norm, justified the validity of law in the sense of its modus of existence . Obviously, the law itself is valid and the obligation to obey it are distinct notions . In this part, I concentrate on the practical sense of the legal validity, i . e . the binding force . In “The Pure Theory of Law and Analytical Jurisprudence” from the year 1941, Kelsen refers the validity of norms to human behavior: “Norms are valid for those whose conduct they regulate” .15 In two other papers from the 1950s, Kelsen understands the validity of law also in the sense of its binding force: “the idea that it ought 7 8 9 10 11 12

13 14 15

See Hans Kelsen, ‘Was ist die Reine Rechtslehre?’ (first publ . 1953), in: Rechtsphilosophie oder Rechtstheorie (Darmstadt: Wissenschaftliche Buchgesellschaft, 1988), 238 . Kelsen, ‘Value Judgments in the Science of Law’ (n . 2), at 226 . Hans Kelsen, ‘Why Should the Law Be Obeyed?’, in: What Is Justice? (n . 2), at 263 . Dreier, Rechtslehre, Staatssoziologie und Demokratietheorie bei Hans Kelsen (n . 1), at 87–90 . Stanley L . Paulson, ‘Der Normativismus Hans Kelsens’, in: JZ/2006, 531 . Walter, ‘Die Grundnorm im System der Reinen Rechtslehre’ (n . 1), at 95–6 . See also Dreier, Rechtslehre, Staatssoziologie und Demokratietheorie bei Hans Kelsen (n . 1), at 50; Helmut Holzhey, ‘Kelsens Rechts- und Staatslehre in ihrem Verhältnis zum Neukantianismus’, in: Untersuchungen zur Reinen Rechtslehre. Ergebnisse eines Wiener Rechtstheoretischen Seminars 1985/86, ed . Stanley L . Paulson et al . (Vienna: Manz Verlag, 1986), 181 . Dreier and Paulson, ‘Einführung in die Rechtsphilosophie Radbruchs’ (n . 5), at 245 . See Hans Kelsen, Das Problem der Souveränität und die Theorie des Völkerrechtes (Tübingen: Mohr Siebeck, 1920), 33 . Hans Kelsen, ‘The pure theory of law and analytical jurisprudence’ (first publ . 1941), in: What’s Justice? (n . 2), at 267 .

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to be obeyed by the people whose behavior it regulates”;16 “That a norm possesses validity means that individuals ought to behave as the norm stipulates .”17 In his fundamental work, Pure Theory of Law (2nd edition from 1960), Kelsen has continued this understanding of legal validity: to say that a norm is valid, means “that it is binding, that an individual ought to behave in the manner determined by the norm .”18 In his posthumous book, Allgemeine Theorie der Normen (1979), this statement is also maintained: “That a norm is valid, means that it ought to be followed and applied” .19 Therefore, Kelsen speaks the legal validity not only in the theoretical sense: as modus of existence of norms, but also in a practical appellative sense: as binding force for those whose behavior they regulate; the legal validity expresses not only the law is valid, but also the law should be obeyed .20 Undoubtedly, for Kelsen, the grounding of legal obligation is a main task of his theory of legal validity: why ought an individual to comply with the rules and behave in a certain way?21 Kelsen does not only want to answer the epistemological question of “what is law and how can the knowledge of law be acquired”, but also the question of practical philosophy: what should I do and why should I do it? Through which way did Kelsen fulfill the mission of justifying the practical legal validity? According to him, the binding force should not be caused as a moral obligation .22 Thus, the justification of the legal validity through natural law is rejected by Kelsen . The positive law is only valid because it can be considered as a legal norm, even if it varies with the moral order .23 Moreover, the reason of the legal validity cannot be facts: “The mere fact that somebody commands something is no reason to regard the command as a ‘valid’ norm, the norm binding the individual at whom it is directed .”24 The search for the reason of a norm’s validity is, according to Kelsen, different than the search for the cause of an effect . “It must end with a norm which, at the last and highest, is presupposed” .25 This highest presupposed norm is the basic norm . 16 17 18

19 20 21 22

23 24 25

Kelsen, ‘Why Should the Law Be Obeyed?’ (n . 9), at 257 . Kelsen, ‘Value Judgments in the Science of Law’ (n . 2), at 214 . Hans Kelsen . Reine Rechtslehre (n . 2), Engl edn: Pure Theory of Law, trans . Max Knight (Berkeley, CA: University of California Press, 1967) . 4 . Furthermore, Kelsen writes: “by ‘norm’, we mean that something ought to happen, especially a human being ought to behave in a special way”, at 4 . Hans Kelsen, Allgemeine Theorie der Normen, im Auftrag des Hans-Kelsen-Instituts aus dem Nachlass, ed . Kurt Ringhofer et al . (Vienna: Manz, 1979), 3 . Kelsen, General Theory of Law and State (n . 6), at 30 . See also Kelsen, Reine Rechtslehre (n . 2), at 15, 196; Heidemann, Die Norm als Tatsache (n . 1), at 192 . Kelsen, Reine Rechtslehre (n . 2), at 196 . See Stephan Meyer, Juristische Geltung als Verbindlichkeit (Tübingen: Mohr Siebeck, 2011), 87–8 . On Kelsen’s Critiques against the moral-philosophical justifications of binding force of law, see Kelsen, Reine Rechtslehre (n . 2), at 223–6; Kelsen, ‘Why Should the Law Be Obeyed?’ (n . 9), at 257–65; Kelsen, ‘What is Justice?’ In: What Is Justice? (n . 9), at 20–1; Kelsen, Was ist Gerechtigkeit? (first pub . 1953, Stuttgart: Reclam, 2000), 21–7; Eugenio Bulygin also indicated that Kelsen’s validity can be seen as a normative concept . See Bulygin, ‘An Antinomy in Kelsen’s Pure Theory of Law’ (n . 1), at 29–45 . Kelsen, Reine Rechtslehre (n . 2), at 69–71 . Kelsen, Pure Theory of Law (n . 18), at 194 . Ibid .

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Some authors deny that Kelsen has intended to use the basic norm to solve the question of binding force of law . Ulfrid Neumann is of the opinion, that Kelsen does not at any point resort to pre-positive assumptions in order to justify the binding force of law in the sense of practical philosophy .26 So, the basic norm obligates neither the citizen nor the judge, in a moral or specific legal sense, to a certain behavior .27 Marc Schütze also understands that the ought or validity of law is something to constitute, a pure artefact, and in no case, a fact of ought, as viewed by Kant .28 Moreover, Robert Walter warns whether the norm-addressee causes himself to obey the legal norm or sees that he ought to do so, does not fall within the sphere of law and the legal scholars . It is therefore his opinion, that Norbert Hoerster has overshot the target with his criticism of the basic norm doctrine .29 Now I want to examine whether the basic norm is ever claimed as the reason for legal obligation through Kelsen’s own works . Kelsen had already connected the basic norm and the practical validity of law in his early years . In the Allgemeine Staatslehre of 1925 he writes: “The basic or original norm, which justifies the system of legal order, has its typical content that one authority establishes a legal source, whose statements are legally binding: Behave yourselves as commanded by the legal authority […], so says the basic norm – simplified for clarity’s sake .”30

In another paper, “Why Should the Law be Obeyed?” from 1953, Kelsen criticizes the natural-law doctrine and the Christian theology which are for him unable to answer the question: why ought the people to obey the law . This question can only be answered from the perspective of a science of positive law as follows: the basic norm confers the binding force of a normative order upon its addressee .31 Moreover, in the second edition of Pure Theory of Law (1960), Kelsen regards the reason of validity as an answer to the following question: why ought the norms of the legal order to be followed and applied?32 This reason consists only in the basic norm, which is formulated by Kelsen as “one ought to behave as the constitution prescribes” .33 Through this, Kelsen maintains that the basic norm performs as the ultimate ground of binding force of law which legitimizes the legal obligation . Joseph Raz is of the opinion, that Kelsen consistently uses the natural law concept of normativity, i . e ., the concept of justified normativity, although he rejects natural law theories through his doctrine of the basic norm in establishing the normativity of 26 27 28 29 30 31 32 33

Ulfrid Neumann, ‘Das Problem der Rechtsgeltung’ (first publ . 2007), in: Recht als Struktur und Argumentation. Beiträge zur Theorie des Rechts und zur Wissenschaftstheorie der Rechtswissenschaft (Baden-Baden: Nomos, 2008), 231 . Ibid . 232–3 . Marc Schütze, Subjektive Rechte und personale Identität. Die Anwendung subjektiver Rechte bei Immanuel Kant, Carl Schmitt, Hans Kelsen und Hermann Heller (Berlin: Duncker & Humblot, 2004), 234 . See Robert Walter, ‘Erwiderung zu: Norbert Hoerster, Hans Kelsens Grundnormlehre richtig betrachtet’, in: JZ/2009, 250; Norbert Hoerster, ‘Hans Kelsens Grundnormlehre richtig betrachtet’, in: JZ/2008, 1023–7 . Hans Kelsen, Allgemeine Staatslehre (Berlin: Julius Springer, 1925), 99 . Kelsen, ‘Why Should the Law Be Obeyed?’ (n . 9), at 257–63 . Kelsen, Reine Rechtslehre (n . 2), at 219, see also 196, 204 . Ibid . at 204 . A distinction must be drawn between the structure/form of the basic norm with its content, which is explained by Kelsen as: “determined by the facts through which an order is created and applied”; See Kelsen, General Theory of Law and State (n . 6), at 120 .

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law .34 Paulson also points out, Kelsen constitutes the ultimate basis of law through three different ways, one of which is the normative justification, i . e . the basic norm is viewed as the ultimate ground of legal obligation .35 In summary, the basic norm functions as the justification of the legal validity which is spoken of in both theoretical and practical senses . With regard to the former, the basic norm fulfills an epistemological function which constitutes the normativity of the law in the sense of deontic form of thinking opposite the being form of thinking .36 With regard to the latter, the basic norm provides the ultimate reason for why the legal subject can be bound by the legal norm . As long as the basic norm is a presupposition of the juristic thinking, the question of practical validity is answered without any appeal to either morality or facts . ParT Two: ProbleMs

of

Kelsen’s PraCTICal legal valIdITy

1. the Basic NorM as JustificatioN of practical leGal validity The problem now is: Is it possible to justify the binding force of law through a merely epistemologically presupposed concept? How can the basic norm, which itself is “presupposed as valid”37, act as the foundation of legal obligation? Kelsen’s justification of the practical legal validity through the basic norm has already drawn critiques from some authors . According to Dreier’s interpretation, the basic norm which is the source of the validity of positive law, confers no original normativity upon the law, in the sense of justifying a universal binding obligation .38 The validity of law, i . e . its claim of normative binding force, can in the end only be a consequence of a presupposed highest norm . So, this theory presents itself, as if it deals with normative ought-facts .39 Paulson reconstructs Kelsen’s theory of normativity through the disguise between content-related and modal normativity; Kelsen’s transcendental argument through the basic norm can only justify the latter .40 On the one hand, Kelsen claims that the validity of the basic norm itself is presupposed41, and on the other hand, the constitution is binding, i . e . one should behave as the constitution prescribes .42 However, it is difficult to regard these two statements as an inherent consistence . In Kelsen’s justification – he inserted the justification of legal validity only in the basic norm, which performs as the ultimate 34 35

36 37 38 39 40 41 42

See Joseph Raz, ‘Kelsen’s Theory of the Basic Norm’, in: The American Journal of Jurisprudence (Oxford: Oxford University Press, 1974), 110–1; Kelsen, ‘Why Should the Law Be Obeyed?’ (n . 9), at 257 . See Stanley L . Paulson, ‘Die unterschiedlichen Formulierungen der „Grundnorm“’ (n . 1), at 71– 4 . The other two ways are: dynamical (as the ultimate ground of legal competence) and statical (as the ultimate ground of legal validity) justification . See also Uta U . Bindreiter, ‘Presupposing the Basic Norm’, in: Ratio Juris, Vol . 14, No . 2, June 2001, 144 . Neumann, ‘Das Problem der Rechtsgeltung’ (n . 26), at 232–3 . Kelsen, General Theory of Law and State (n . 6), at 111, 116 . Dreier, Rechtslehre, Staatssoziologie und Demokratietheorie bei Hans Kelsen (n . 1), at 49 . Ibid . at 86 . See Stanley L . Paulson, ‘Der Normativismus Hans Kelsens’, in: JZ/2006, 529–32 . Kelsen, General Theory of Law and State (n . 6), at 111, 116 . Kelsen, Reine Rechtslehre (n . 2), at 205 .

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ground of binding force of law – there is, in my opinion, an ambivalence . The statement of the basic norm – “one ought to obey commands of the creator of the constitution”43 or “one ought to behave as the constitution prescribes”44 – is only a presupposition, but in no way a prescription . Therefore, the Pure Theory of Law is characterized as a merely cognitive discipline, not only in its epistemological statement that the basic norm is the transcendental-logical condition of the interpretation, but also in its “normative” statement that the basic norm only theoretically authorizes the binding force of the constitution45, that it ought to be obeyed . Therefore, Kelsen’s statement is in itself contradictory, because a theoretical judgment cannot confer the practical quality, i . e . the binding force upon the law, so that it should be obeyed . Kelsen defends his position of legal positivisms, which searches for the reason of an inherent validity of the positive law46 and restricts its justification as cognitive . The rejection of all justifications of the practical legal validity which are traced back to the meta-legal authorities (like God or nature) and moral principles (like justice) may lead to the following consequence: the practical questioning and justification could be eliminated in theoretical questioning and justification, because only an epistemological concept, which is characterized as scientific, is able to legitimize the claim of obedience of law . In short, the basic norm is only a form of thinking (Denkform) which cannot go beyond the realm of epistemology; it cannot touch the practical realm . It is not possible to justify the legal obligation as a practical category through a merely epistemologically presupposed concept . The appellative function of law cannot be justified, or only appears to be justified through a construction like the basic norm . 2. leGal NorM aNd huMaN Behavior In part one, I analyzed the two senses of the legal norm: 1) it confers a juristic meaning upon the time-space positive law, and 2) it is binding and ought to be obeyed . The legal norm in the first sense refers to the subjective meaning of the act of will, which can be interpreted as objective meaning, i . e . objective valid legal norms . The act of will is is47, whereas both the subjective and objective meaning is ought48, so that through the legal norm as objective ought, the (subjective) ought of the command is legitimized .49 In this sense, the act of will has never come into consideration in the theory of the legal norm . Walter describes this character of the legal norm as being “removed from the act of will, on which it is based, and gains its own meaning” .50 43 44 45 46 47 48 49 50

Ibid . at 208 . Ibid . at 219 . The basic norm “does not perform an ethical-political but only an epistemological function” . See Kelsen, Reine Rechtslehre (n . 2), at 225 . See Kelsen, ‘Why Should the Law Be Obeyed?’ (n. 9), at 263. Kelsen, Reine Rechtslehre (n . 2), at 5 . Ibid . at 4–9 . See also Kelsen, Allgemeine Theorie der Normen (n . 19), at 35: The “ought” is only spoken of in a formal sense, i . e . the structure of the legal statement . Ibid . at 205 . Robert Walter, ‘Eine neue Theorie des Rechtspositivismus? Zu Norbert Hoersters Buch „Was is Recht?“’, in: Recht, Moral und Faktizität. Festschrift für Walter Ott, ed . Sandra Hotz et al . (Zürich: Dike Verlag, 2008), 116 .

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The legal norm in the first sense can be formulated as “that the law is valid”; in the second sense, the content of the legal norm, which refers to the act, comes into consideration: “for what the law is valid” . In the latter case, Kelsen speaks about the legal validity in the sense of binding force . The ought is “directed” towards an is, the norm towards an actual behavior .51 “What the norms of an order regulates, is always human behavior”52, the norm-addressee is the human being . So, the Pure Theory of Law is the science of law of “normative order of human behavior” .53 However, what does “human behavior” mean according to Kelsen? Kelsen differentiates the behavior which is stipulated by a norm as a behavior that ought to be (das gesollte Verhalten) from the actual behavior that corresponds to it .54 But the legal scientist equals the latter to the behavior that ought to be . Therefore, the behavior that ought to be is ambiguous: 1) the behavior which is the content of the norm (that is, the behavior that ought to be), and 2) the actual behavior (that is, the behavior that is) .55 Thus, the Pure Theory of Law only involves the gesollte, virtual factual behavior, which belongs not to the modus of being, but to the modus of ought .56 In Kelsen’s own words: “everything to which the law refers assumes legal character” .57 The science of law as a cognitive discipline searches its object “legally”, i . e . to understand it from the standpoint of law .58 The human behavior to which the legal norm refers, can only be understood as the content of the legal norm, as determined by a legal norm .59 The human behavior is therefore also viewed as the object of legal cognition, i . e . the science of law produces its object . This normalization of the human behavior through the legal norm60 can also not be understood in a practical sense . Thus, although Kelsen refers the binding quality to the legal norm,61 the validity of the legal norm cannot reach its intended addressee . The object of the binding force of law can only be the human behavior – not as a virtual 51 52 53 54 55 56 57

58 59 60 61

Kelsen, Reine Rechtslehre (n . 2), at 6 . Ibid . at 12, 14 . Ibid . at . 4 . Ibid . at . 6 . Ibid . This idea, especially the “virtual behavior”, is based on Prof . Ulfrid Neumann’s comments . Kelsen, Reine Rechtslehre (n . 2), at 282 . This conception of Kelsen is fundamentally influenced by the Marburg School of Neo-Kantianism . In the foreword of the second edition of Hauptprobleme der Staatsrechtslehre (1923), Kelsen avowed the influence of Cohen’s epistemology on him with the following words: “I came to the crucial epistemological aspect, that this is the only possible source for the right attitude of the concepts of state and law, based on Cohen’s interpretation of Kant, especially his ‘Ethik des reinen Willens’ .” This work (Hauptprobleme der Staatsrechtslehre from 1910) was recognized as an attempt to apply the transcendental method to the science of law . Hans Kelsen, Hauptprobleme der Staatsrechtslehre (Tübingen: Mohr Siebeck, 1910), second printing (with new foreword), 1923, at XVII . See also Hans Kelsen, ‘Reine Rechtslehre, „Labandismus“ und Neukantianismus . Ein Brief an Renato Treves’, in: Hans Kelsen / Renato Treves, Formalismo giuridico e realtá sociale, ed . Stanley L . Paulson (Neapel 1992), 56; Emil Lask, Rechtsphilosophie (first publ . 1905), in: Gesammelte Schriften, Band I, ed . Eugen Herrigel (Tübingen: Mohr Siebeck, 1923), 308 . Manfred Pascher, Einführung in den Neukantianismus, (München, 1997), 162 . Ibid . at 6–7 . Ibid . at 72–3 . Kelsen, Allgemeine Staatslehre (n . 30), at 66 . The law “ought to be obeyed by the people whose behavior it regulates” . See Kelsen, ‘Why Should the Law Be Obeyed?’ (n . 9), at 257 . See also Kelsen, Reine Rechtslehre (n . 2), at 196: A

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being, but as a factual one – which cannot be touched by the Pure Theory of Law as a theoretical science of law; the binding force belongs only to the practical category, whose purpose is not to know its object, but to regulate it . With regard to this point, Raz argues: “The concepts of the normativity of the law and of the obligation to obey it are analytically tied together . Kelsen, therefore, regards the law as valid, i . e ., normative, only if one ought to obey it .”62

Obviously, this defense of Kelsen, in short, by interpreting the relationship between the concept of validity of law and the obligation to obey it as being connected, i . e . the claim of obedience is a logical part of the concept of the legal norm, is problematic . A theoretical judgment cannot imply a practical one . In short, both Kelsen’s practical-normative statement of the legal validity and its justification through the basic norm cannot be regarded as successful . That is due to his standpoint of the Pure Theory of Law as a pure cognitive discipline . The legal norm cannot touch the human beings and their behavior; and, the basic norm as a theoretically presupposed concept cannot fulfill the mission of justifying the legal obligation which can only be spoken of in a practical sense . 3. leGal validity aNd leGal effectiveNess There is another weakness in Kelsen’s theory of legal validity, that an is, i . e . effectiveness, is according to him the condition of an ought, i . e . validity (Bedingung der Rechtsgeltung) .63 The basic norm cannot be a meaning of an act of will (gewollte Norm), but only be the meaning of an act of thinking (gedachte Norm), i . e . a presupposed norm .64 Kelsen asks further: Is there at all a boundary for this act of thinking? This question is related with another one: what does the basic norm refer to? Kelsen regards the presupposition of the basic norm not as “a conduct of free imagination”65, because it confers legal authority only upon facts by which an order is created and applied, which is on the whole effective (i . e . is by and large applied and obeyed66) .67 Thus, “the basic norm is an assumption made in juristic thinking but by no means arbitrary” .68 Through this stipulation of the effectiveness in the basic norm,69 the general principle of effectiveness, which, as a normative principle, plays an important part in the realm of law:70 it functions as the condition of the legal validity . Therefore, the ineffective legal order and single norm cannot be regarded as valid .71 It is only then suitable for a certain purpose (zweckmäßig), when those legal orders, which are by and large effective, are regarded as valid .

62 63 64 65 66 67 68 69 70 71

norm is valid, means “that it is binding, that an individual ought to behave in the manner determined by the norm” . Raz, ‘Kelsen’s Theory of the Basic Norm’ (n . 34), at 105 . Kelsen, Reine Rechtslehre (n . 2), at 212, 218–21 . Ibid . at 206–7 . Kelsen, ‘Why Should the Law Be Obeyed?’ (n . 9), at 214 . Kelsen, General Theory of Law and State (n . 6), at 120 . Kelsen, Reine Rechtslehre (n . 2), at 214 . Kelsen, ‘Value Judgments in the Science of Law’ (n . 2), at 224 . Kelsen, Reine Rechtslehre (n . 2), at 212 . Kelsen, ‘Why Should the Law Be Obeyed?’ (n . 9), at 262–3 . Kelsen, Reine Rechtslehre (n . 2), at 218 .

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Because of this “minimum of effectiveness”72, Karl Engisch criticizes Kelsen: first, through the connection of validity and effectiveness in the basic norm, the disguise between is and ought is given up, because validity and effectiveness fallen together .73 Second, the basic norm, by which the validity of all legal norms are determined, is itself now determined by the effectiveness,74 so that only if the legal order is effective, then the whole system of norms is valid . Walter criticizes Engisch and defends Kelsen by arguing that the following two aspects must be distinguished: one argues under the condition of the basic norm, or one argues about how the presupposition is to be constructed in a suitable way (that is, in the way, which is suitable for a certain purpose) . Although the effectiveness is the condition of the validity, which from the reason of suitableness is incorporated in the basic norm, is no reason for the validity of the norm, which is always derived from the presupposed basic norm, i . e . an ought . Thus, the is-ought-separation is maintained .75 Through Walter’s distinction, Kelsen’s theory of validity could be defended; but there are still weaknesses in this theory . According to Dreier, the basic norm does not solve the problem of the basically irrevocably problem of the harmonization of factuality and normativity, but only fixes this problem in its whole sharpness and weightiness through showing the limitation, in which the juristic cognition is able to reach: the merely hypothetic-relative validity of the legal norms complies with the idea of the positive law .76 Furthermore, if one looks beyond the questioning for the reason of legal validity, then the positivity outweighs the normativity, in that the effectiveness speaks the last word . The “existence” of the legal norm (in the form of validity/ought) is traced back to the existence of the real legal order (in the form of is) and ultimately to the power .77 Without the existence of an effectiveness, the validity of norm could not truly “exist” . This is exactly the point, in which the primacy of positivity over normativity exists . Therefore, the positive-factual principle of effectiveness can be seen as a risk to the purity and autonomy of the legal normativity . Moreover, Raz points out, that Kelsen’s concept of legal validity as a normative concept, i . e . validity qua bindingness, (also) endangers the “purity” of the Pure Theory of Law . He argues that it is impossible for Kelsen to regard the legal validity as binding force and at same time to assert it as free of moral import, because the binding force as normative statements which serve to express a practical attitude, are already used to express a belief in the existence of a valid norm, and a norm constitutes a value .78 There are also 72 73 74 75 76

77 78

Karl Engisch, ‘Rezension zu Hans Kelsen: Reinen Rechtslehre (2 . Aufl ., Wien 1960)’, in: ZStW, vol . 75, 1963, 594–5 . Ibid . at 596–7 . Ibid . at 601 . See Rudolf Thienel, ‘Geltung und Wirksamkeit’, in: Untersuchungen zur Reinen Rechtslehre. Ergebnisse eines Wiener Rechtstheoretischen Seminars 1985/86 (n . 12), at 30 . Dreier, Rechtslehre, Staatssoziologie und Demokratietheorie bei Hans Kelsen (n . 1), at 55–6 . See also Hans Kelsen, ‘Die philosophischen Grundlagen der Naturrechtslehre und des Rechtspositivismus’, in: Die Wiener Rechtstheoretische Schule. Schriften von Hans Kelsen, Adolf Merkl, Alfred Verdross, 2 Volumes, ed . Hans R . Klecatsky et al . (Vienna: Franz Steiner Verlag, 1968), 286 . Kelsen is of the opinion, that the real legal order cannot exist without power . See Kelsen, Reine Rechtslehre (n . 2), at 70 . See Bindreiter, ‘Presupposing the Basic Norm’ (n . 35), at 157–60; Joseph Raz, ‘The Purity of the Pure Theory’, in: Essays on Kelsen, ed . Richard Tur et al . (Oxford: Clarendon 1986), 81, 86–8 .

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critiques on Kelsen’s theory of the basic norm whether it is able to genuinely function . Engisch points out, that this theory is actually a tautology: a legal order is valid, if its validity is determined by a (for its part valid) basic norm .79 At its core, the basic norm is a “superfluous mental ingredient” .80 Carl Schmitt offers the similar critique and describes it vividly: Kelsen’s normativity changes suddenly to a „tautology of raw fact“ .81 There is another critique from a newly published paper by Matthias Jestaedt which also hits the right point . He argues that as long as the basic norm merely presupposes that “one ought to behave as the constitution prescribes”82, it embodies “nothing less than the radical self-reference of the positive law” .83 Therefore, Kelsen’s refuse of all other possibilities except the basic norm as justification of legal validity results in a “law’s self-setting”84, i .e . “the self-construction of […] validity is immanent within the law” .85 ParT Three: PossIble soluTIon

Through

KanT’s PraCTICal PhIlosoPhy

1. hoW is a huMaN actioN as a leGal actioN possiBle? Kant’s program aims to establish an objective world, not only in nature, but also in the human world . Through the doctrine of law, Kant tries to transform the legal theory into a scientific and true knowledge of law . He poses the following question to himself: How is the legal action a priori possible? Under which condition can a human action be understood as a legal action? For Kant, the law can be defined as a whole of the conditions under which the will (Willkür86) of any one person can be harmonized in reality with the will (Willkür) of every other person, according to a universal law of freedom .87

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See also Stanley L . Paulson, ‘Introduction’, in: Normativity and Norms. Critical Perspectives on Kelsenian Themes, ed . Stanley L . Paulson et al . (Oxford: Clarendon, 1998), xxxv–xliii . Raz tries to solve this dilemma and reconstructs Kelsen’s theory of the basic norm through his theory of the “legal man” . See Bindreiter, ‘Presupposing the Basic Norm’ (n . 35), at 158–60 . Karl Engisch, Auf der Suche nach der Gerechtigkeit – Hauptthemen der Rechtsphilosophie (München: Deutscher Taschenbuch Verlag, 1971), 62 . Engisch, ‘Rezension zu Hans Kelsen: Reinen Rechtslehre’ (n . 72), at 602 . Carl Schmitt, Verfassungslehre, (Berlin, 1928), 5th unchanged edn ., 1973, 9 . Kelsen, Reine Rechtslehre (n . 2), at 205 . Matthias Jestaedt, ‘Geltung des Systems und Geltung im System’, in: JZ/2013, 1024, right-hand column . Ibid . at 1016 . Ibid . Kant clearly distinguishes between “Wille” and “Willkür”, although both are translated as “will” in English . Willkür is the human capacity of choice; only the Willkür which is determined by the pure reason, i . e . the Wille, can be called as the free Willkür; but the Willkür can also be affected by sensuous inclinations . In Kant’s legal doctrine, he does not jet ask for the determining ground of the Willkür, thus, the human actions can be caused by different motives . See Immanuel Kant, Metaphysik der Sitten, Erster Teil: Metaphysische Anfangsgründe der Rechtslehre, in: Ausgabe der Preußischen Akademie der Wissenschaft (Berlin, 1900 ff ., abbreviated as: AA), AA VI, 213 . According to Kant, law is “der Inbegriff der Bedingungen, unter denen die Willkür des einen mit der Willkür des andern nach einem allgemeinen Gesetze der Freiheit zusammen vereinigt

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Jing Zhao “Every action is recht which in itself, or in the maxim on which it proceeds, is such that the freedom of the will (Willkür) of each can co-exist with each person’s freedom, according to a universal Law .”88

The universal law is the law of freedom . In Kant’s legal theory, there is only a longing for external freedom, so that the universal law (Rechtsgesetz) can be formulated as follows: “Act externally in such a manner that the free exercise of the will (Willkür) may be able to co-exist with the freedom of all others, according to a universal law .”89

Every human behavior which externally obeys the law can be concerned as an agreement of actions with this law (Rechtsgesetz), i . e . in conformity with duty (pflichtmäßig) . This universal principle functions as a condition of the possibility for the knowledge of the object of law, i . e . legal actions a priori . The possibility of legal actions consists in the synthesis of law (Rechtsgesetz) and human actions . Through the postulate of this principle, the epistemological objectivity of law is ensured . Furthermore, Kant’s legal doctrine is derived from a priori principles alone, so it is characterized as a pure theory .90 2. Why should i oBey the laW? Kant’s legal doctrine refers only the possibility of the legal action . Under the condition of the universal principle of law, human action becomes a legal action, namely duty;91 but this principle only concerns the objective structure of actions, i . e . whether and how an action conforms to the law of duty . Thus, through it, only the legality of human actions is justified .92 Duty, as far as the action is concerned, may be one and the same, and yet we may be bound to it in various ways .93 The juristic

88

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90 91

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werden kann” . Kant, Metaphysik der Sitten, Erster Teil: Metaphysische Anfangsgründe der Rechtslehre (n . 86), at 230 . See also Immanuel Kant, Kritik der Reinen Vernunft, B 373: “Eine Verfassung von der größten menschlichen Freiheit nach Gesetzen, welche machen dass jedes Freiheit mit der andern ihrer zusammen bestehen kann (nicht von der größten Glückseligkeit, denn diese wird schon von selbst folgen), ist doch wenigstens eine notwendige Idee” . Kant states the universal principle of law as follows: “Eine jede Handlung ist recht, die oder nach deren Maxime die Freiheit der Willkür eines jeden mit jedermanns Freiheit nach einem allgemeinen Gesetze zusammen bestehen kann” . Kant, Metaphysik der Sitten, Erster Teil: Metaphysische Anfangsgründe der Rechtslehre, (n . 86), at 231 . Kant states the universal law (Rechtsgesetz) as follows: “Handle äußerlich so, dass der freie Gebrauch deiner Willkür mit der Freiheit von jedermann nach einem allgemeinen Gesetze zusammen bestehen könne” . Kant, Metaphysik der Sitten, Erster Teil: Metaphysische Anfangsgründe der Rechtslehre (n . 86), at 231 . For Kant, all the empirical principles are not appropriate to be the foundation of laws (“Empirische Prinzipien taugen überall nicht dazu, um … Gesetze darauf zu gründen”) . Immanuel Kant, Grundlegung zur Metaphysik der Sitten, AA IV, 441–2 . See Immanuel Kant, Grundlegung zur Metaphysik der Sitten, AA IV, 388 . See Kant, Metaphysik der Sitten, Erster Teil: Metaphysische Anfangsgründe der Rechtslehre (n . 86), AA VI, 219 . Furthermore, according to Kant, “duty is that action to which someone is bound” (“Pflicht ist diejenige Handlung, zu welcher jemand verbunden ist .”) Kant, Metaphysik der Sitten, Erster Teil: Metaphysische Anfangsgründe der Rechtslehre (n . 86), at 222 . See Immanuel Kant, Kritik der praktischen Vernunft, AA V, 151, 159 . Kant, Metaphysik der Sitten, Erster Teil: Metaphysische Anfangsgründe der Rechtslehre (n . 86), at 222 .

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legislation does not include any motive-principle . The question of motive-choice is a question of the reason for obligation (Verpflichtung94) . Now we have already entered and must enter the moral-practical territory, because only in the practical reason does reside the justification of the practical validity as obligation .95 Through the question – why should I obey the law/why should I do my duty – Kant connects the doctrine of law and moral philosophy . The practical reason, as the reason for the binding quality of law which claims our obedience, is characterized by a concern with the determining ground of the will (Bestimmungsgrund des Willens96) . “Ought” cannot be derived from any “is”, so that the ultimate and true determining principle must be independent from all empirics and experiences which convey the practical rules only a conditional universality .97 For Kant, the doctrine of natural law is only a moral anthropology and an empirical science of the moral nature of man, whose statement has no difference to an authority-power theory . Both the doctrine of natural law and positive legal theory offer only an empirical foundation for law . The basis of obligation must, according to Kant, not be sought in the nature of man, or in the circumstances in the world in which he is placed, but a priori simply in the conceptions of pure reason .98 The only motive which is allowed to be the reason for our obligation is the idea of duty itself . For Kant, the “categorical imperative” generally expresses what constitutes obligation: “Act according to a maxim which can be adopted at the same time as a universal law” .99 So, I obey the law only for the sake of the moral law, so that my action is not only morally correct as a deed, but also, is in conformity with my maxim, morally worthy as an attitude .100 The command of moral law is categorical; it regards an action as being necessary in itself, without reference to any other end, i . e . as objectively necessary . Only those laws which bear an absolute necessity, could be the basis of obligation . Therefore, Kant takes two steps to complete his program of justifying the law:101 As a first step, the possibility of law which only concerns the external human behav94 According to Kant, obligation (Verpflichtung) is: “der Grund dafür, rechtlich zu handeln” . Immanuel Kant, Idee zu einer allgemeinen Geschichte in weltbürgerlicher Absicht, AA VIII, 5–6 . 95 Gerhart Husserl also distinguishes between the legal validity and the “logic validity” . He is of the opinion, that the law is a “spiritual being”: “The legal norm is applied not as the sentence of cognition, but as the sentence of will .” See Gerhart Husserl, Rechtskraft und Rechtsgeltung (Berlin: Springer, 1925), 6–9 . 96 Kant, Kritik der praktischen Vernunft (n . 92), at 8, 71–2, 151 . 97 Ibid . at 34 . 98 “Der Grund der Verbindlichkeit” darf “nicht in der Natur des Menschen oder den Umständen der Welt, darin er gesetzt ist, gesucht warden” . See Kant, Grundlegung zur Metaphysik der Sitten (n . 90), at 389 . 99 “Der Kategorische Imperativ, der überhaupt nur ausgesagt, was Verbindlichkeit ist: Handle nach einer Maxime, welche zugleich als ein allgemeines Gesetz gelten kann .” See Kant, Metaphysik der Sitten, Erster Teil: Metaphysische Anfangsgründe der Rechtslehre (n . 86), at 225; There is another similar formulation: “Act only according to that maxim whereby you can at the same time will that it should become a universal law without contradiction” (“Handle nur nach derjenigen Maxime, durch die du zugleich wollen kannst, dass sie ein allgemeines Gesetz werde”) . See Kant, Grundlegung der Metaphysik der Sitten (n . 90), at 421 . 100 I only obey the law “(subjektiv) um des moralischen Gesetzes willen […], und also sie [meine Handlung] nicht allein sittliche Richtigkeit als Tat, sondern auch sittlichen Wert als Gesinnung, ihrer Maxime nach, habe .” See Kant, Kritik der praktischen Vernunft (n . 92), at 159 . 101 Ibid .

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ior is justified through a transcendental principle of law (First Part: The Metaphysical Principles of Jurisprudence as the Science of Law) . Through this, Kant ensures the scientific character of the legal doctrine and makes it a true knowledge of law . We know whether and how an action is a legal action through this principle of law, which makes our action a duty . As a second step, the moral law, which concerns itself with the determining ground of the will, makes the duty (itself) a reason, so that legal obligation – why should we obey the law – is successfully justified (Second Part: The Metaphysical Principles of Ethics as the Science of Virtue) . His systematic work of practical philosophy: Metaphysic of Morals (1797) consists of two parts: 1) The principle of law as the transcendental condition of legal actions and their knowledge; 2) The categorical imperative as the reason of obligation . Both principles integrate themselves in the principle of freedom . ConCludIng reMarK There are two categorically different questions: 1) Why is the law valid? 2) Why is the law binding/why should I obey the law? Kelsen has successfully answered the first question through the concept of the basic norm which functions as the transcendental-logical condition of the possibility of legal norms . However, if we ask the reason for our obedience to the legal norms, we are seeking a concept which can provide regulative meaning to us . The basic norm has only a constitutive meaning, so that the justification of the binding force which refers to the human behavior is actually irrelevant to it . The concept of obligation is not an epistemological concept, but can only be viewed under a practical perspective . Thus, Kelsen’s attempt to provide a legitimacy for the binding quality of law with an epistemologically presupposed concept must be broken down . He tries to structure the question of the practical philosophy by following Kant’s model of the first critique,102 but renounces the practical part of Kant’s categorical imperative . In Kant’s theory, the subjective will is legitimized through moral will, whereas Kelsen only legitimizes the subjective meaning of the will to its objective meaning . The basic norm is no determining ground for the will itself, but merely whose theoretical meaning . In justifying the law, Kant connects his initial transcendental method which he applies in the epistemology with the practical category of the will, for the reason of obligation must finally be a matter of will: I obey the law because I recognize it ought to be obeyed .103 The justification of the binding force of law consists in a unity of wills . Thus, the legal rules are such a concept, which necessarily in-

102 See Schütze, Subjektive Rechte und personale Identität. Die Anwendung subjektiver Rechte bei Immanuel Kant, Carl Schmitt, Hans Kelsen und Hermann Heller (n . 28), at 233–5 . The extension of the transcendental method to cognition of the law is a contribution of Neo-Kantianism . Kelsen has adopted this idea in his legal theory . (See n . 57 above); However, Kelsen has gone further than the other Neo-Kantians, because he also tries to provide a basis of legal obligation with an epistemological concept, i . e . the basic norm, and closes the door for any possibility of moral justification . 103 The criterion of my recognition is then again whether there is a unity between the subjective wills of the legislator with the moral will .

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cludes the idea of an end in themselves .104 The highest unity consists not in the legal system as a whole, which means the unity of knowledge of law, but in the unity of establishing one end: the idea of freedom .105 The idea of freedom, in Kant’s philosophy, turns out not only to be the basis of practical reason, but also the “Schlussstein” for the whole building of speculative reason . Since Kelsen denies any kind of idea which is – for him – unscientific and makes the theory of law impure,106 then, he must keep his legal theory modest to stay within the epistemological sphere and accept that this kind of theory is incapable of providing any reason for the practical validity of law . It is not possible for an epistemologically presupposed basic norm to reach the final point of unity between legal rules and human actions, which can only consist in a unity of wills .

104 See Otto Gerlach, ‘Kant’s Einfluss auf die Sozialwissenschaft in ihrer neuersten Entwicklung’, in: Zeitschrift für die gesamte Staatswissenschaft, ed . A . Schäffle (Tübingen, 1899), 656 . 105 Even in Hart’s theory of legal validity which claims that the rule of recognition is the criteria for the validity of all the other rules, free will is already implied . There must first be free will, only then can it be possible for the members in a society to “accept” or “reject” some kinds of behavior models with a critical reflective attitude . The idea of freedom is a necessary condition for an internal point of view . 106 Actually, I doubt whether Kelsen’s critique on Kant is proper, because the absolute end, namely the human dignity, is a pure concept . This final end is independent of any empirical condition and thus a pure, reasonable end in itself: the autonomy of will .

MoNika ZaleWska objeCTIvITy

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InTroduCTIon Objectivity in law can be understood in different ways . The first which comes to mind is bound with the application of law and the activity of judges, who should be objective when ruling . However, this paper will examine another kind of objectivity regarding Hans Kelsen’s thought and his inquiry of legal science . The starting point in Kelsen’s studies is his program of constructing a pure legal theory . Such purity demands that several conditions concerning the theory should be fulfilled . First of all, such a theory should be antinaturalistic (antipsychological)1 . Secondly, law should be separated from morality, as if they were not seperate, such a theory would not be scientific but simply a mere ideology . In Kelsen’s doctrine, a general dichotomy can be observed, with one branch describing a science of law, and the other ideology . As ideology is dependent on individual preferences, morality and factual context, ideology is subjective . On the contrary, science is of a universal character, fits to every legal order, regardless whether it is moral or not, and is independent from sociology or politics . Hence, in contrast to ideology, science is objective . In order to perfect his design of a legal science, Kelsen introduces methodological tools such as the separability thesis and the normativity thesis2 . These two theses are both oriented in a positivistic direction, but while the separability thesis, itself characteristic of legal positivism, claims that a separation exists between law and morality, his normativity thesis claims that an “abyss” exists between the worlds of Is and Ought . Legal norms can be scientifically examined and explained only in the Ought sphere . Such a claim has several consequences, one of which being that Kelsen needs to introduce a basic norm to explain why law is valid . In contrast to the legal positivist, he cannot recall facts for his explanation, since they are in the Is sphere . Furthermore, after introducing the separability thesis, Kelsen is unable to use natural law to account for the validity of law; the only way to do this is to introduce the hypothetical assumption made by every lawyer, i . e . that law is valid . This hypothetical assumption is a basic norm . The other element which Kelsen needs to introduce in place of causality is imputation, which is also characteristic of the Ought dimension . In this paper, I intend to analyze imputation as a necessary component of the objectivity program (Objektivierung Programme) described in Hans Kelsen’s Pure Theory of Law . The main theme will address the evolution of imputation . Firstly, the meaning of objectivity and the general role played by imputation in the program will be explained . Next, the three phases of Hans Kelsen’s studies will be presented . Finally, imputation and the potential problems concerned with its 1 2

See: Stanley . L . Paulson ‘Zwei radikale Objektivirungsprogramme in der Rechtslehre Hans Kelsens‘, in:, Hans Kelsen Staatslehrer und Rechtstheoretiker des 20. Jahrhunderts, ed . Stanley . L . Paulson, Michael Stolleis Mohr Siebeck, Tübingen 2005, 193 . Stanley L . Paulson, ‘The Neo-Kantian Dimension of Kelsen’s Pure Theory of Law’, Oxford Legal Studies 12 (1992), 313–319 .

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construction and objectivity in each phase will be discussed . It will be demonstrated that imputation is a crucial component of the objectivity program in several regards . ParT one: The MeanIng

of

objeCTIvITy

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Kelsen’s sTudIes

As the term “objectivity” is vague, it is necessary to examine whether Kelsen could use the term in any significant sense when discussing the purity of legal science . Let us examine the initial passages from Kelsen’s Pure Theory of Law . “As a theory it is exclusive purpose to know and to describe its object . The theory attempts to answer the question what and how the law is, not how it ought to be . It is a science of law (jurisprudence) not legal politics . It is called ‘pure’ theory of law, because it only describes the law and attempts to eliminate from the object of this description everything that is not strictly law: its aim is to free the science of law from alien elements . This is the methodological basic of the theory… The Pure Theory of Law undertakes to delimit the cognition of law against these [psychology, sociology, ethics and political theory] disciplines, not because it ignores or denies the connection but because it wishes to avoid its uncritical mixture of methodologically different disciplines (methodological syncretism) which obscures the essence of the science of law and obliterates the limits imposed upon it by the nature of it subject matter”3

From this passage, it can be inferred that behind Kelsen’s program, some kind of objectivity occurs . The program presented by Kelsen can be compared with socalled scientific objectivity, “considered as the ideal of scientific inquiry”4 . Scientific objectivity concerns the claims, methods and results of science which should be free, among other things, from particular values, perspectives and biases5 . It is one of the central problems faced by Philosophy of Science and as such, it will not be a matter of discussion in this paper . One key aspect, however, is that Kelsen’s idea of legal science is bound through its purity with the concept of scientific objectivity . Kelsen states: “What is important is (…) to confine this science of law, its subject and to clarify critically its methods”6 . For Kelsen, the antithesis of objectivity is ideology, defined as the “nonobjective presentation of the subject influenced by the subjective value judgments and glorifying or disfiguring the subject of cognition”7 Such objectivity is described by Kelsen in a general sense . A more concrete analysis is provided by Stanley Paulson, who describes the problem of objectivity in detail, distinguishing two objectivity programs . The first is focused on the philosophical dimension . Its characteristic features are threefold: firstly, Kelsen’s opposition to naturalism, secondly, a specific ontology of norms, in which norms are understood in terms of meaning, and finally the question of normativity, which lies in

3 4 5 6 7

Hans Kelsen, Pure Theory of Law (first publ . 1960), trans . Max Knight, University of California Press, 1978, 1 . Julian Reiss, Jan Sprenger, ‘Scientific Objectivity’, The Stanford Encyclopedia of Philosophy (Fall 2014 Edition), Edward N . Zalta (ed .), URL = http://plato .stanford .edu/archives/fall2014/entries/scientific-objectivity/ . Ibid . Kelsen, Pure Theory of law (n . 3) at 105 . Ibid .

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the methodological form of his project8 . Paulson notes that Kelsen worked on constructing the meaning of objectivity since his habilitation and in this sense, it can be interpreted as “irreducible”, especially when concerning the reduction of law to facts . Kelsen outlines his objectivity program in his habilitation in order to oppose naturalism, and he does so in three steps, presenting three dualities: explicative and normative points of view, the Is – Ought dichotomy, and finally the contrast between value and reality9 . The first dichotomy contrasts scientific inquiries based on causality, which are interpreted from an explicative point of view, with the imputation principle, which is interpreted from a normative point of view . Kelsen goes on to conclude the existence of a second dichotomy comprising two separate worlds, Is and Ought, which are independent of each other . Later, in Allgemeine Staatslehre, which belongs to his early Neokantian phase, Kelsen introduces a third dichotomy, one contrasting reality and value, which leads Kelsen to the conclusion that there is no link between a human and a legal person10 . As a result of his struggle against naturalism, Kelsen builds a specific ontology based on the neokantian concept . He bases much of his argument on the category of philosophical validity which forms the “value world”, in which the main functions are played by meanings (Sinngehalte) and only some of them are of normative character . Among them exists a group of legal meanings bound with reconstructed legal norms, which represent a “basic form of legal science”11 . Such legal norms are “irreducible normative” and according to Paulson, the normativity of his theory lies in this statement . Next Paulson explains that Kelsen’s normativity is founded not on causal changes, but rather normative ones12 . The relationship between normative changes and imputation is of the same character as that found between causal changes and causality . Causality and imputation are rules according to which changes occur . To sum up, the first objectivity program begins with a war against naturalism, with the final result of this reasoning being imputation . The second objectivity program, according to Paulson, is based on negation of the duality between objective and subjective law . Kelsen equates the nature of objective law with the ideal linguistic form of the norm directed to the organ, and by doing so, is lead to the idea that such a norm has the character of an empowerment norm, in which the condition for sanction is the violation of law . It also concerns the introduction of two norms: the primary norm, directed to the organ, and the secondary norm, which states legal duty13 . In this context, imputation plays a substantial role as a link between the fact of violation of law and empowerment for the application of sanction . I will elaborate further on this in Part Three . Stanley Paulson concludes his article by correctly demonstrating that the basic norm has an important function in both objectivity programs, primarily as an element of the Pure Theory of Law, which gives normative meaning to the legal system,

8 9 10 11 12 13

Paulson, ‘Zwei radikale Obiektivirungsprogramme in der Rechtslehre Hans Kelsens‘, (n .1), at 204–205 . Ibid . 205 . Ibid, 206–208 . Ibid . 208–209 . Ibid . 210 . Ibid . 212–215 .

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and is reflected by imputation14 . I believe that to gain a complete insight into his work, it is necessary to analyze also the conception of imputation and its development across the three phases of Kelsen’s theory of law . ParT Two: PerIodIsaTIon Hans Kelsen’s scientific activity lasted about sixty years, and his views changed several times over such a long period . The division of Kelsen’s work into phases is a matter of controversy, with two contrasting views being expressed by Stanley L . Paulson and Carsten Heidemann15 . In short, Paulson divides the period into three phases which he labels Critical Constructivism (1906–1920), Classical (1920–1960), which can be subdivided into Strong Neokantian and Weak Neokantian phases, and Skeptical (from 1960) phases, while Heidemann holds that there are four phases: Constructivist (1911–1922), Transcendental (1922–1940), Realist (1940–1960) and Analytico-linguistic (from 1960) . Nevertheless, I believe that a clear overview of the theory as a whole might vary from the analysis of concrete institutions . For instance, the periodisation scheme defined by Paulson best suits the Pure Theory of Law as a whole . The differences between the Strong and Weak Neokantian phases are not substantial enough to justify their division into two independent phases, especially when considering that considerable paradigm changes occur during the transition from the first phase into the Neokantian phase, and then in the transition to the linguistic (or analytical) paradigm in the subsequent Skeptical phase . Hence, generally speaking, there can be considered to be three phases in Kelsen’s studies . Analyzing the outcome of imputation might vary slightly due to the introduction of the division between legal norms and legal propositions in the second edition of the Pure Theory of Law from 1960 . Such a division adds a further problem to the issue of imputation, more specifically, whether it is characteristic of a legal norm or legal proposition16 . However, I believe that this change does not alter the idea of imputation in any significant way . Therefore I will follow Paulson’s division for now and discuss this problem at the end of Part Three .

14 15

16

Ibid . 219 . See: Stanley L . Paulson, ‘Four Phases in Hans Kelsen’s Legal Theory? Reflections on Periodisation’, Oxford Journal of Legal Studies, Oxford University Press, 18 (1998); Carsten Heidemann, ‘Norms Facts and Judgments . A Reply to S . L . Paulson’, Oxford Journal of Legal Studies, Oxford University Press, Oxford 19 (1999); Stanley L . Paulson, ‘Toward a Periodisation of the Pure Theory of Law’, Hans Kelsen’s Legal Theory a Diachotonic Point of View, ed . Letizia Gianformaggio, G . Giappichelli Editore 1990, Carsten Heidemann, ‘Noch einmal: Stanley L . Paulson und Kelsens urteilstheoretischer Normbegriff ’, Archiv für Rechts-und Sozialphilosophie, Franz Steiner Verlag, 93 (2007), Stanley L . Paulson, ‘Arriving at a Defensible Periodisation of Hans Kelsen’s Legal Theory’, Oxford Journal of Legal Studies, Oxford University Press, Oxford 19 (1999), Monika . Zalewska, Problem zarachowania w teorii Hansa Kelsena (the Problem of Imputation in Hans Kelsen’s Theory), Wydawnictwo Uniwersytetu Łódzkiego, 2014, 27–36 . Zalewska, Problem zarachowania w normatywizmie Hansa Kelsena, (n . 15) at 36 .

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ParT Three: IMPuTaTIon: Toward sCIenTIfIC objeCTIvITy ConsTruCTIvIsT Phase

In The

CrITICal

The first phase is bound with Kelsen’s habilitation titled Hauptprobleme der Staatsrechtslehre (HP), in which Kelsen criticizes most of the prominent positivistic legal thinkers of that time . Although from today’s perspective, Kelsen’s work is perceived as part of the smooth continuity of traditional legal positivism, at the beginning of the XX Century, the young Kelsen’s critique of legal positivism sounded if not revolutionary, then at least highly innovative . Paulson gives the title Critical Constructivism to this phase, pointing out that Kelsen was inspired by Carl F . von Gerber, Paul Laband and Georg Jellinek and their program of legal constructivism . Its methods are oriented into organizing raw legal material so that it may be perceived as a legal system17 . On the other hand, Kelsen criticizes traditional legal positivism and gives his work some neokantian themes . In this regard, it appears that Paulson’s choice of name for the first phase, Critical Constructivism, is appropriate . Kelsen’s habilitation itself can be interpreted as the quest toward a Pure Theory of Law . Kelsen outlines his project for creating a legal science and the idea that legal theory should be objective, and thus develops his brilliant idea of the Is – Ought dichotomy, but such characteristic elements as those of the basic norm or peripheral imputation are missing . The theory presented in HP is hardly coherent, one good example of this lack of coherence being imputation . As mentioned earlier, Kelsen constructs his principles of objectivity in HP based on his opposition to naturalism . Kelsen presents imputation as a consequence of the dichotomy between explicative and normative points of view, as well as his Is – Ought dichotomy . While the connection between facts is causal in the world of facts, the Is – Ought dichotomy presents this from being so in the world of norms . To resolve this, Kelsen “borrows” the concept of imputation from Immanuel Kant and Christian Wolf and modifies it in a manner to fit his legal theory . In Kelsen’s book, several passages about imputation can be found which raise doubts concerning the coherence of the concept as a whole18 . While the definition given by Kelsen does not directly refer to imputation, it refers to the links between particular elements of norms which are created by the grammatical meaning of Ought, which may be inferred as referring to peripheral imputation as described in later phases19 . Kelsen goes on to explain that one element concerns the subject of Ought and the other, the object . Hence, although this definition, the only one given, seems to describe peripheral imputation (which links two facts and is bound with coercion), its explanation clearly refers to central imputation (which links a fact to the person) . This definition is supported by the definition of imputation given on the next page, which is based on the logical

17

18 19

Stanley L . Paulson, ‘Hans Kelsen’s Earliest Legal Theory: Critical Constructivism’, Modern Law Review, John Wiley & Sons, New Jersey 59 (1996), 799–800, Gabriel N . Dias, Rechtspositivismus und Rechtstheorie, Mohr Steinbeck, 2005, 69, Zalewska, Problem zarachowania w normatywizmie Hansa Kelsena, (n .15) at 85 . I elaborated this problem in: Zalewska, Problem zarachowania w normatywizmie Hansa Kelsena (n .15) at 92–94 . Hans Kelsen, Podstawowe zagadnienia nauki prawa państwowego (w rozwinięciu nauki o normie prawnej) (HP), transl . Tadeusz Przeorski 1935–1936, v .1, 118 .

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link between fact and subject on the “plane” of the legal norm20 . This plane should be understood in terms of the rule which legal norms create for imputation . These definitions resemble both the traditional meaning of imputation and Kelsen’s central imputation (or Verschreibung) from his later books . This is due to the binding of a fact to a person instead of another fact, which would be characteristic of peripheral imputation21 . Kelsen goes on to further complicate the situation in his preface to the second edition of HP, which is considered to be of neokantian character . Again, he mentions imputation in a peripheral manner, as the link between elements of legal judgements grammatically created by Ought22 . Since Kelsen has written this definition in his early transcendental phase, it would be accurate to assume that it concerns peripheral imputation . However, Kelsen clearly refers to the passages from his 1911 habilitation described above . Perhaps this confusion demonstrates that Kelsen still was not aware of the differences between central and peripheral imputation . To clarify this, I propose interpreting the definitions in terms of Wittgenstein’s language games . As the language game indicates the presence of central imputation in critical constructivism, it should be interpreted as such . Despite this, as the preface to the second edition of HP can be considered as belonging to the transcendental phase, the imputation should be considered as peripheral23 . Returning to the explicative versus normative and Is versus Ought dichotomies, it can be noticed that in the former, imputation plays a central role in describing normative connections between the facts constituting norms . In contrast, the Is and Ought dichotomy links imputation with the Ought world . Imputation and Ought act as mirror images of each other . They are of a different nature and function, but are necessarily connected . Furthermore, the function which Kelsen ascribed to peripheral imputation and the basic norm in later phases, i . e . the objectivity of legal science is realized by central imputation in HP . In explaining the role of imputation in HP, Kelsen distinguishes the factual and legal meaning of will . The latter belongs to the sphere of Ought and so is not bound with facts, but is rather a legal assumption . Namely, if a norm exists in a legal system, it means that will is imputable . For Kelsen, will is indivisible from a person, from a legal point of view24 . Haidemann formalizes the construction of such a norm as follows: “under the circumstances X, the state has the will to do Y”25 . In such a structure, the most important component is at the endpoint of imputation, which is ascribed to the state . Hence, for Kelsen, if something is imputed to the state, it is a subject of the will of the state . Furthermore, according to Heidemann, the state, acting as an endpoint of imputation, is a point 20 21 22 23 24 25

Ibid, 119 . See: Joahim Renzikowski, ‘Der Begriff der „Zurechnung” in der Reinen Rechtslehre Hans Kelsens‘, Neukantianismus und Rechtphilosophie, ed . Robert Alexy, Lukas H . Meyer, Stanley L . Paulson, Gerhard Sprenger, Nomos Verlagsgesellschaft, 2002, 254 . Hans Kelsen, Hauptprobleme der Staatsrechtslehre, Scientia Aalen, 1960, IX . Zalewska, Problem zarachowania w normatywizmie Hansa Kelsena, (n .15), at 93–94 . Kelsen, Podstawowe zagadnienia nauki prawa państwowego (w rozwinięciu nauki o normie prawnej), (n .19) at vol . 2, 113, Paulson, ‘Toward a Periodisation of the Pure Theory of Law’ (n .15), at 27–28 . Carsten Heidemann, Die Norm als Tatsache. Zur Normentheorie Hans Kelsen, Nomos Verlagsgesellschaft, 1997, 32, Hendrik J . van Eikema Hommes, ‚The Development of Hans Kelsen’s Concept of Legal Norm‘, Rechtstheorie, Duncker Humblot, 5 (1984), 161–162 .

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where all imputation lines are channeled . Hence, the state secures the unity of legal order26 . The point of imputation has one important function, which leads us to the problem of objectivity . According to Paulson, the point of imputation allows a law to be distinguished from such raw material as a statute . In order to recognize whether such a point of imputation belongs to a legal system, the subsequent point of imputation should be examined27 . At the end of such a structure rests the endpoint of imputation: the state . Kelsen does not identify the state as any particular organ, but rather as a thought entity, which allows the future concept of basic norm to be recognized . Furthermore, the function of the cognition of law is a domain of central imputation, despite it being ascribed to peripheral imputation in the next phase . Kelsen notes that imputation in HP creates objective criteria for both legal cognition and legal validity . However, the former function will be acquired by peripheral imputation and the latter by Stufenbau (hierarchical structure of law) and the basic norm . For now, central imputation seems to include a solution to many problematic and key issues of the Pure Theory of Law, such as validity and cognition of norms, and in this sense, it also represents the most powerful concept for the problem of scientific objectivity . However, its weakness is a consequence of such an approach, and too many blind spots exist to accept the legitimacy of such a powerful function . Firstly, it is not explained how the points of imputation are cognized, or how they allow law to be recognized . Furthermore, it is not explained why the endpoint of imputation, the state, guarantees validity: The answer “because it is a state” is not plausible . Finally, it seems that the concept of the cognition of norms replaces to some extent the problems concerned with validity and the lawmaking process . Although norms are cognized by the points of imputation, is the cognition of norms identical to the recognition of a norm as being valid? This question leads to one of the most serious problems of HP . Namely that Kelsen tries to omit the problem of the lawmaking process and, as a consequence, treats it as irrelevant from the point of view of legal science28 . To sum up, Kelsen’s objectivity program is primarily based on the Is – Ought duality first developed in his HP . The consequence of such a methodological assumption is the introduction of the idea of imputation, which later will be called “central” . Despite its similarities with central imputation, imputation according to HP includes the functions of peripheral imputation, which are not yet present . The program of objectivity in HP is mainly embodied in the principle that imputation allows norms to be cognized . Later, Kelsen will resign from such a broad meaning of imputation and divide it into two types . The structure of imputation described by HP will be incorporated into the concept of central imputation, and its cognitive function will exist within the domain of peripheral imputation . Along with the concept of the basic norm and the hierarchical structure of law, this will signifi26 27 28

Heidemann, Die Norm als Tatsache. Zur Normentheorie Hans Kelsen (n .25) at .35 . Stanley L . Paulson, . ‘Die Zurechnung als apriorische Kategorie in der Rechtslehre Hans Kelsens‘, Zurechnung als Operationaliesierung von Verantwortung, Matthias Kaufmann, Joahim Renzikowski, Peter Lang, 2004, 645–646 . Kelsen, Podstawowe zagadnienia nauki prawa państwowego (w rozwinięciu nauki o normie prawnej), (n .19) at vol . 2, 115–116 .

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cantly improve the coherence of Kelsen’s Pure Theory of Law, which will now be described . ParT four: objeCTIvITy PrograM

and

IMPuTaTIon

In

ClassICal Phase

Kelsen’s classical is the best known of his phases . If someone cites Kelsen, they are probably referring to Kelsen’s Pure Theory of Law, either the first or second edition . However, Kelsen was aware that his HP as outlined in HP was not sufficiently coherent and to achieve such recognition as he has today, he knew he had to modify his preliminary project . Fortunately, in the 20s, he was one of the founders of the so called Wiener Rechtstheoretische Schule to which, among others, belonged Adolf Merkl and Alfred Verdross . This allowed Kelsen to discuss his ideas and introduce some new elements to his theory, such as the basic norm, the hierarchical structure of law and peripheral imputation . Kelsen also introduced the Neokantian paradigm to his studies of the cognition of law, which provided a philosophical background to his theory . The final change significantly influenced imputation . In this phase, while the main role is played by peripheral imputation, central imputation shares its function with the hierarchical structure of law (Stufenbau) . Since the problem of objectivity is bound with the peripheral imputation that will now serve as the focus of my discussion . In the Classical phase, imputation has two functions . It is an ought-operator (Soll-Operator) and a relative a priori category in transcendental argument29 . Imputation as Ought-operator is strictly bound with objectivity programs by its connection with the ideal form of the legal norm . Imputation links two facts (Tatsache) . Kelsen notes that while judgments regarding the Is world have a structure: “if A then B”, the structure becomes “If A then ought B30” in the normative order of human behavior . The first problem concerns the nature of the facts bound by imputation . While it is rather clear that fact A is a human behavior which violates the legal norm, a greater mystery concerns fact B . Fact B is bound with sanction and the organ which is empowered to impose it . Hence, there are two possible interpretations: fact B represents sanction or fact B represents either duty or empowerment of the organ to impose the sanction31 . The latter solution seems to be the correct one, as the construction of the ideal form of the legal norm is defined as a hypothetical judgment directed to a legal authority which ought to impose the sanction in the event of a violation of the legal norm . Hence, sanction is not the central element of the ideal form of a legal norm, but rather the authority which ought to impose the sanction . While this “ought” was bound with duty in the earlier phase, it became empowerment in the second edition of the Pure Theory of Law (RR2)32 However, these are not the only puzzles associated with facts linked by imputation . As mentioned before, Ought indicates the presence of imputation, defined as a 29 30 31 32

See: Stanley L . Paulson, ‘On the Kelsen-Kant Problematic’, in: Normative Systems in Legal and Moral Theory, ed . Ernesto G . Valdèz, Werner Krawietz, Georg H . Von Wright, Ruth Zimmerling, Duncker Humblot, 1997 . Kelsen, Reine Rechtslehre (first publ . 1934), Mohr Siebeck 2008, 35 . See: Stanley L . Paulson, ‘Empowerment Theory of Legal Norms’, Ratio Iuris, 1 (1988), 58–72 . Ibid .

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link between conditioned fact and conditioned result33 . The question is whether such a construction does not destroy one of the most important guarantees of objectivity: the duality of Is and Ought . The answer is bound with the nature of imputation and the basic norm . As Paulson notes, normativity is granted by basic norms, which are reflected by imputation34 . The facts are static, their character remains the same, but what changes is the context, or rather, the mental operations surrounding them . The link between facts determines whether they are present in the Is or Ought world . In the weak Neokantian phase and Skeptical phase, Kelsen introduces a “modally indifferent substrate”, which acts as the content for what Is or Ought should be . Is and Ought can be regarded as the form which determines whether the final character of the content will be explicative or normative35 . The character of imputation is different to that of causality, as while causality is bound with necessity, imputation is concerned only with possibility, since, as Kelsen states, B might not occur36 . This comparison also raises a valid question regarding the nature of imputation . Is the character of imputation more normative or predictive? The nature of imputation is derived from the nature of Ought, and Ought itself can also be regarded as either normative or predictive . For example, in the sentence “Adam ought to be on time” Adam probably will be on time, but there is a possibility that he will be late . Hence it can be formalized as “If A then B ought to occur” where B might not occur . Clearly this formula is reminiscent of Kelsen’s description of imputation: “The rule of law does not say, as the law of nature does, when A is, B “is”, but when A is, B “ought” to be, even though B perhaps may not be .”37 However, Kelsen also points out a significant feature of imputation which determines it as normative . Namely, Kelsen states that the imputation is brought about by a legal authority38 . On the contrary, predictive imputation can be bound with any factor, be it the will of authority (Adam was put into prison) or the behavior of a third party (the bus driver has been on break for too long) or a causal link (snowstorm) . To conclude, what makes peripheral imputation normative is legal authority, or as Kelsen further explains, a legal norm created by an act of will . How can this be understood? The act of will coming from a lawmaker does not entirely explain the link with imputation . Fortunately, Kelsen’s concept of the ideal legal norm, which plays a significant role in his objectivity program, can be of help in this case . As mentioned before, imputation is an analogical category to the category of causality39 . Kelsen defines it as “connection between the conditioning fact and conditioned human behavior”40 . The conditioning fact is bound with the so-called secondary norm, which is associated with various regulations concerning human behavior: e . g . “you shall not steal” . 33 34 35 36 37 38 39 40

Kelsen, Pure Theory of Law, (n .30), at 34 . Paulson, ‘Zwei radikale Objektivirungsprogramme in der Rechtslehre Hans Kelsens‘, (n . 1) at 193 . Bruno Celano, ‘Norm Conflict, Kelsen’s View and a Rejoinder‘, in: Normativity and Norms. Critical perspectives on Kelsenian’s Themes, ed . Stanley . L . Paulson, Bonnie Litschewski Paulson, Clarendon Press, 1998, 357–358 . Hans Kelsen, Pure Theory of Law, (n .3), at 77 . Ibid . Ibid . Ibid ., 83 . Ibid ., 100 .

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Although secondary norms are not typical for law, they can be found in morality (you shall love your neighbors as yourself) or any other normative system (you should say “good morning”) . What distinguishes law from other normative systems is the primary norm, which contains imputation . Returning to Kelsen’s definition of imputation, the conditioning fact is the broken rule expressed in the primary norm . Conditioned human behavior is the behavior of the legal organ, which ought to act in a certain way or is empowered to impose a sanction . The connection between the conditioning fact and conditioned human behavior (imputation) is of normative character . The grammatical expression of imputation in the sentence is “ought” . While causality is typical for empirical science, Kelsen’s imputation is typical only for law . It is a form of differentia specifica of legal norms, as no other normative system can be bound with such empowerment . Hence, the second meaning of the act of will is the act of will which grants empowerment to an organ . Later, these doubts were reconciled in another way in the Weak Neokantian phase . In the following passages, Kelsen defines legal Ought and explains that its meaning encloses command, authorization and positive permission of a consequence . As Kelsen states: “This ‘ought’ merely expresses the specific meaning in which the two sets of facts are connected by a legal norm, which means in a legal norm . The science of law cannot express this norm-created connection – particularly the connection between delict and sanction – otherwise than by the copula ‘ought’”41 . Hence, from this point of view, Kelsen’s ought has much broader meaning than predictive ought, which merely points out that something probably occurs . Although normative ought also can indicate such possibility, it is a byproduct of its more important functions, which are normativity and cognition of the norms described below . When Kelsen was constructing his theory in the Neokantian paradigm, the problem of the cognition of norms was central for his studies . Kelsen claimed that the form in which the norm is expressed is irrelevant, and so there had to be another mode of cognition for norms inspired by neokantian thought . Kelsen’s idea was that norms are cognized in a similar manner as objects are cognized by Kantians . There is some alogical material, which is sorted into order by categories, especially those of causality and substance . Similarly, in Kelsen’s case of legal science, alogical material is also present in legal texts, which is cognized as norms by such candidates for relative a priori categories as ought, basic norm or imputation . In this context, Paulson reconstructs the transcendental argument in Kelsen’s theory . In the imputation version, the argument is constructed as follows: “1 . One has cognition of legal norm 2 . Cognition of legal norm is possible only if the category of normative imputation is presupposed 3 . Therefore the category of normative imputation is presupposed”42

Imputation in this context acts as a relative a priori category, hence imputation can be defined as being able to distinguish law from other normative systems . As such,

41 42

Ibid ., 77–78 . Paulson, ‘The Neo-Kantian Dimension of Kelsen’s Pure Theory of Law’, (n .2) at 326 .

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imputation plays the role of differentia specifica to other normative systems43 and hence, in the transcendental dimension, imputation fulfills the objectivity program . However, it is important to mention that this case deals with inter-subjectivity rather than objectivity, since Kelsen’s argument is valid only if we play the game called law44 . In the transcendental context, another problem exists . Mainly, as Paulson points out, Kelsen’s transcendental argument would be valid only if his theory were an exclusive theory of law . However, there are alternatives, so a second premise is not a necessary condition of cognition of law45 . It is hard to say whether Kelsen was aware of this difficulty, but the fact is that neokantian themes started to fade after the 40s . In the Weak Neokantian phase, especially in the second edition of the Pure Theory of Law, the division between legal norm and legal proposition is very clear and bound with cognition of norms . The legal norm is of a normative character, while the legal proposition is descriptive . When such divisions occur, the question of where imputation should lie arises: in the legal norm or the legal proposition? Kelsen explains that the legal propositions include a scientific description of legal norms . They have the character of hypothetical judgments “stating that according to a national or international legal order under the conditions determined by this order, certain consequences determined by the order ought to take place” . The perfect example of a legal science is a textbook of criminal law . In such legal propositions, Ought has a descriptive character46 . On the other hand, legal norms are created by authority, applied by legal organs and obeyed by an addressee . They contain command, permission or authorization, but do not provide any knowledge . In this case, the meaning of the law-creating fact is important, and its linguistic form is irrelevant . In contrast, a good example of a legal norm is the penal code . In such a case, Ought has a prescriptive character47 . In the Weak Neokantian phase, Kelsen still holds that the method of cognition creates the object of cognition; therefore, a legal proposition creates epistemologically the legal order from particular norms . Returning to the question of imputation, there are three options for where it may be found: imputation exists in legal norms, imputation exists in legal propositions or there are two types of imputation: descriptive and prescriptive48 . The possibility that imputation only exists in legal norms can be ruled out, since imputation is bound with legal science, and so has to be connected with legal propositions . Therefore, the question is whether imputation exists in legal norms, or it is only present in the domain of legal science . However, Kelsen asserts in his HP that the legal norm is a rule of imputation, indicating that imputation itself is only present in legal propositions49 . This interpretation is not only supported by Kelsen’s claim 43 44 45 46 47 48 49

Robert Alexy, ‘Hans Kelsens Begriff des relativen Apriori’, in: Neukantianismus und Rechtsphilosophie, ed . Robert Alexy, Lukas H . Meyer, Stanley L . Paulson, Gerhard Sprenger, Nomos Verlagsgesellschaft, Baden-Baden 2002, 187–202 . Stanley L . Paulson, ‘Die Zurechnung als apriorische Kategorie in der Rechtslehre Hans Kelsens‘, in: Zurechnung als Operationaliesierung von Verantwortung, ed . Matthias . Kaufmann, Joahim Renzikowski Peter Lang, New York 2004, 112 . Paulson, ‘The Neo-Kantian Dimension of Kelsen’s Pure Theory of Law‘, (n .2) at 331–332 . Kelsen, Pure Theory of Law, (n . 3) at 71–73 . Ibid . See: Zalewska, Problem zarachowania w normatywizmie Hansa Kelsena, (n . 15), at 166–167 . Ibid ., 167 .

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that imputation lies within the domain of legal science, but also his assertion that the method of cognition constitutes the object of cognition . Legal norms are simply alogical material, which is cognized in the form of legal propositions, and imputation, which is bound with mental operations, indicates the normativity of the proposition . Transcendental themes, being of epistemological character, can be regarded as Kelsen’s inquiry about objective cognition of norms . They justify the presence of imputation in Kelsen’s doctrine and determine its function as being essential for the valid cognition of norms . Kelsen’s doubts about neokantian themes grew over time, which forced him to reformulate his program of legal science and to find a new paradigm, which is Language . The articulation of this turn into new paradigm is described in his last book, the General Theory of Norms (ATN) . ParT fIve: IMPuTaTIon

and

objeCTIvITy

In

sKePTICal Phase

The problem with objectivity appears in the Skeptical phase, when the Neokantian paradigm no longer exists . Thus, two questions arise . The first concerns the function of imputation when it is deprived of its role as category: Can it still somehow be an aid to the recognition of norms? The second questions how law can be cognized if not through categories . Let us start with the first question, for if its answer is positive, a solution for the problem outlined in the second question will be automatically provided . The definition of imputation does not seem change significantly, insofar that it still concerns the connection between the condition and the sanction . However, the context has changed dramatically . Firstly, while Kelsen previously bound imputation with the activity of the organ, it is now associated with sanction50 . As a result, the meaning of imputation has broadened to encompass not only legal norms, but also moral ones . Secondly, imputation and causality are defined as functional and autonomous connections of two facts . They are causal or normative necessities of the same logical character51 . However, as it was this connection (imputation or causality) that previously distinguished norms from propositions, how can this statement now be understood? Furthermore, in the General Theory of Norms, Kelsen points out that true or false refers to whole sentences but not to causality or imputation . Causality arises when the propositions which it connects turn out to be true or false . The appearance of imputation depends on whether the norm is found to be valid or not . Although all of these explain some aspects of imputation, Kelsen’s explanation of the “logical character of imputation and causality” is far from clear . A rather risky, but not impossible, solution seems to assume that by this expression, Kelsen referred to implication52 . Implication itself would be of the same nature; however, the meaning would be influenced by the context: whether the propositions were true-false or valid-invalid . Imputation would hence differ from causality in two points: firstly, in that the connections are of finite nature and not ruled by necessity, and secondly in context . The other consequence of such an ap50 51 52

Hans Kelsen, General Theory of Norms; (first publ . 1979), translated by Michael Hartney, Oxford Clarendon Press 1991, 24 . Ibid . 211 . See: Zalewska, ‘Problem zarachowania w normatywizmie Hansa Kelsena’, (n .15), at 198 .

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proach is that imputation is something which arises as a consequence of the norm, rather than occupying a legal proposition-creating role as a transcendental category . The second question can be now reformulated thus: when imputation is defined in such a way, can it still be used in the cognition of norms? The answer will demand some broader analysis of the problem of cognition in the General Theory of Norms, and for it to be fully understood in this context, Kelsen’s perception of the norm in that period must be analyzed . Kelsen defines the norm as the meaning of an act of will directed at someone’s behavior . To understand what it means in the Skeptical phase, it is necessary to refer to the expressive concept of norms presented by Bulygin and Alchourron53 . The authors assert that two model concepts of norms exist, hyletic and expressive, which can refer to ontological status and the possibility of applying logic to norms54 . In the hyletic conception of norms, they are perceived as “proposition-like entities” . In this sense, norms exist as meanings of so-called normative sentences, which themselves are understood as linguistic expressions of the norms . Although their existence is independent of language, they are dependent on operations made using descriptive propositions . On the other hand, the expressive conception of norms is based on the assumption that the sentence expressing the norm depends on the context . Semantically identical sentences can be asserted, questioned, commanded and so on . Therefore, the ultimate form of the expression is dependent on pragmatic considerations55 . In Kelsen’s earlier studies, his conception of the norm is more akin to the hyletic concept . Around the 1940s, the transition period began, during which it can be observed that Kelsen gradually abandoned the idea of the hyletic in favor of the expressive norm . In the Skeptical phase, there are no doubts that Kelsen’s concept of the legal norm is expressive . This change is fundamental also for the notion of the cognition of norms . Despite lacking neokantian tools of cognition, there is a new method by which legal norms in Kelsen’s late studies can be recognized, and this is though Pragmatics . Therefore, if the norm is the meaning of the act of will, the moment of this act is crucial for cognition and probably will be recognized on a pragmatic level . To confirm this, let us analyze this definition of norms . As Michael Hartney points out, Kelsen differentiates between acts of thought and acts of will . The meaning of an act of thought is the assertion that something took place or not . On the other hand, the act of will is oriented on the behavior of another and its meaning is a norm56 . The function of language is to articulate these acts . Will is understood by Kelsen as something real, existing in the sphere of Ought57 . In consequence, it seems that no obstacles exist to determining the cognition of norms on the pragmatic field . The norm (which still belongs to the sphere of 53 54 55 56 57

Carlos E . Alchourrón, Eugenio Bulygin, ‘Expressive Conception of Norms’, in: Normativity and Norms: Critical Perspective on Kelsenian Themes, ed: Stanley L . Paulson, Bonnie Litschewski-Paulson, Oxford University Press, 1999 . Ibid ., 384–385 . Ibid ., 385 . Michael Hartney, ‘Introduction: The Final Form of the Pure Theory of Law’, in: General Theory of Norms, Hans Kelsen, Clarendon Press, 1991, XXXVIII . Clemens Jabloner ‘Kein Imperativ ohne Imperator . Anmerkungen zu einer These Kelsens‘, Schriftenreihe des Hans Kelsen-Instituts, Wien 12 (1988), 79 .

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Ought) can be identified by means of the act of will . Kelsen still distinguishes legal norms and legal propositions . Legal norms bound with prescriptive Ought concern imperatives, while the latter are bound to sentences which describe imperatives by descriptive Ought . As in previous books, where this distinction referred to cognition, in his Skeptical phase, Kelsen focuses on the linguistic aspects of this distinction . The legal norm would be bound with the act of will, and the legal proposition with the act of thought58 . However, the formulation of both is the same and it seems that in this phase, it is possible to distinguish one from the other by pragmatic means . The conclusion is that the act of will which belongs to the sphere of Ought is the component which allows norms to be recognized . Is there a place for imputation in such construction? As mentioned before, imputation is a manifestation of the consequence of such an act of will: in other words, it appears only if such act of will take place . In this manner, it can be regarded as a ‘symptom’ of the existence of the norm . It would also mean that imputation is recognized in the pragmatic field, and it indicates that a specific act of will took place . Hence, the role of imputation is limited, especially compared to previous phases, but, as a mental operation, it still can serve as an indicator of the norm at the pragmatic dimension . However, one more question remains which begs an answer: Why does the act of will itself not play this role? A possible answer can be that the act of will is a one-time event which results in the creation of a norm, and hence only can fulfill this function when the norm is created . Therefore, at later stages, another component of Kelsen’s theory requires this function, and imputation appears to be a sound candidate . The last, but not least, problem regarding imputation is that in his Skeptical phase, Kelsen discusses imputation not only in the context of legal, but also moral norms . Is there any way to distinguish these two, or does imputation merely distinguish norms from propositions? To answer this question it is necessary to examine whether Kelsen’s concept of the primary and secondary norm is still relevant . As previously stated, Kelsen classifies legal norms as primary norms, including imputation and empowerment, and secondary norms, with some sort of order: e . g . “you shall not steal” . Morality is characterized by secondary norms . Also, from the definition of imputation, “primary norms” are possible, provided that there is ultimately only sanction: for example, one that stems from society . Hence, in morality, a primary norm would not include the activity of the organ . It is unclear what form this sanction would take, or whether it is necessary . With such an approach, it would mean that empowerment is the differentiating factor, and not necessarily imputation, unless a new category of “legal” and “moral” imputation were introduced, which would probably be against Kelsen’s intentions . Therefore, imputation itself has no ability to differentiate legal from moral norms . All depends on the elements it connects . Consequently, based on such an interpretation, not only is imputation needed, but also the elements which it binds must be recognized for the norm itself to be recognized by its ‘symptoms’ . Imputation only indicates that a normative aspect is present in the norm . Ultimately, imputation loses the function which it played in the objectivity

58

Kelsen, General Theory of Norms, (n .50), at 120–126 .

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161

program . Imputation as no longer distinct for law, as well as less important in cognition of legal norms is rather secondary element in objectivity puzzles . ConCludIng reMarKs One of Kelsen’s main goals was to determine the valid conditions of legal science . Such a task could be fulfilled only by assuming scientific objectivity, which can be divided in the two objectivity programs described by Paulson . Imputation, as a significant component of the concept of the legal norm, plays an important function in both of them . The aim of this article was to analyze how the doctrine of imputation evolved regarding the objectivity program . In critical constructivism, the functions of peripheral imputation, Stufenbau and the basic norm were ascribed to central imputation . Such move resulted in a lack of coherence . However, Kelsen’s idea, his program toward scientific objectivity outlined in his habilitation, was brilliant and continued into his Classical phase . In this phase, Kelsen introduced peripheral imputation . It turned out that his vision was the most coherent one, although some ambiguities were also present . Peripheral imputation a priori supported the objectivity program, especially the ideal form of legal norm and transcendental argument, in both its functions: as ought-operator and relative category . However, in the Skeptical phase, the role of imputation became less prominent in the theory as a whole, and the objectivity program and what remained of it . It is clear that Kelsen changed his conception of norms into the expressive approach introduced by Alchourron and Bulygin, which allowed him to claim that norms can be cognized on the pragmatic level . In this way, imputation still allows norms to be cognized as pragmatic category, even though it is unable to distinguish legal from moral norms itself; this is possible only in the context of the elements which it binds . Such a decline of significance, along with the basic norm, which became regarded as mere fiction, indicates that these two elements which were key to the objectivity program, might indicate Kelsen’s failure to build objectivity program in skeptical phase on the old terms .

ParT Iv – objeCTIvITy

and

TruTh

In

Morals

Michele saporiti ‘QuId

esT verITas?’:

on ConsCIenTIous objeCTIon

and

TruTh

InTroduCTIon From a descriptive perspective, conscientious objection represents a form of individual resistance, shared or sharable by others, nonviolent, and ‘unpolitical’1, towards a specific law, considered to be unjust . The injustice of a law descends from its incompatibility with the fundamental ethical convictions of the person who objects . In recent decades, this kind of resistance has undergone a profound transformation . It has acquired a specific legal dimension . The scenario has changed completely in cases in which the ethical requests of objectors have been recognized as deserving of legal protection by political power holders (as in the case of military service or abortion) . There has been a transition from conscientious objection as a moral claim to conscientious objection as a legal right . After World War II, conscientious objection is no longer an illegal form of resistance, but, in many cases, a legal instrument to respect individual beliefs . Nevertheless, alongside the legal recognition of conscientious objection, its moral dimension is still crucial: to some extent, it maintains itself prior to and complementary with the legal discourse . Within this peculiar perspective, the relationship between conscientious objection and the moral concept of Truth is an authentic challenge . In fact, conscientious objectors as truth bearers and consequently conscientious objection as a testimony of the Truth correspond to a certain view on morals, law and personal disobedience . This paper focuses on these thorny issues . Firstly, this paper will try to analyse dialectically the Truth-based approach to conscientious objection as testimony or prophecy . Secondly, it will point out its main implications, and the moral premises in terms of theories of conscience . Thirdly, it will scrutinize two possible ‘logics’ of conscientious objection from the legal viewpoint: dualistic logic and monistic logic . Eventually, the paper will point out the goals and practical effects of the Truth-based approach and the positive lawbased approach to conscientious objection within our contemporary political communities . ParT one: ConsCIenTIous objeCTIon as a legal InsTruMenT for eThICal ConsIsTenCy versus ConsCIenTIous objeCTIon as a TesTIMony or ProPheCy The philosophical premises of conscientious objection as a positive right are in Arendt’s words: ‘what I cannot live with may not bother another man’s conscience’2 . This quotation implies, on the one hand, that some people are able to live peace1 2

Hannah Arendt, ‘Civil Disobedience’, Crises of the Republic (New York: Harcourt Brace Jovanovich, 1972), 60 . Ibid ., 64 .

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fully with certain legal provisions, if not to agree with them; on the other hand, conscientious objectors are merely supposed to ask for themselves an exemption on moral grounds . Accordingly, they don’t act in order to change a law they consider unjust . In other words, from the legal viewpoint the right to conscientious objection neither responds to a claim for ‘justice’ as personal engagement for legal changes nor does it represent a democratic mechanism to obtain them . Conversely, it is a legal instrument provided for the ethical consistency of individuals . Differently, civil disobedience, an extra-legal form of resistance on political grounds, is a collective attempt to change regulations or procedures provided by specific regulations, because they do not respect certain standards of justice . From this perspective, conscientious objection and civil disobedience are two very different phenomena . However, a different and opposite interpretation of conscientious objection seems possible . Reformulating Arendt’s words, ‘It is not possible that what I cannot live with may not bother another man’s conscience’ . From this viewpoint, conscientious objection is not an instrument provided for people’s moral consistency . Rather, it is conceived as a testimony, and the objector is a witness to a supreme and transcendent concept: the Truth . In this way, objectors become human tools of the natural and ethical order they belong to3 . In particular, supporters of this version of conscientious objection do not make reference to subjective, particular or contingent ideas of personal truth . Conversely, their concept of Truth is atemporal, objective, and metaphysical . It should be noted that the universalistic reference to Truth is the key-element within a specific prescriptive model of justification, which has been clearly used in the perspective mentioned above: a metaphysical-axiological model . As the Italian analytical philosopher Uberto Scarpelli argued, a metaphysical-axiological model of justification is made by propositions that are contextually descriptive and prescriptive4 . These propositions transcend the bare recording and conceptual organization of visible phenomena and they are supposed to objectively express the instrinsic positive or negative value of events or empirical facts . In addition, at the very core of this justification model of normative discourses there is Truth, as the pre-legal existing concept that the correct use of rational faculties can grasp . Not surprisingly, within this theoretical frame, the objector acts as witness and prophet of such a Truth: as testimony, conscientious objection is a ‘vigorous, complete and living manifestation of the supreme principle’5; as prophecy, conscientious objection prefigures the fairer society of the future, ‘based on new values and new moral principles’6 . Accordingly, an interpretation of conscientious objection in terms of jus3 4 5 6

See Francesco D’Agostino, ‘Dinamiche postmoderne dell’obiezione di coscienza’, in Realtà e prospettive dell’obiezione di coscienza: i conflitti degli ordinamenti, ed . Benito Perrone (Milano: Giuffrè, 1992), 245–251 . See Uberto Scarpelli, ‘ Gli orizzonti della giustificazione’, in Etica e diritto, ed . Letizia Gianformaggio and Eugenio Lecaldano (Rome-Bari: Laterza, 1986), 27–28 . Bruno Montanari, Obiezione di coscienza. Un’analisi dei suoi fondamenti etici e politici, (Milan: Giuffrè, 1976), 32 . Carlo Cardia, ‘Tra il diritto e la morale . Obiezione di coscienza e legge’, Stato Chiese e pluralismo confessionale, May (2009), p . 5 . In Cattelain’s words, “Beaucoup considèrent en effet l’objection de conscience comme une attitude exclusivement prophétique, celle des ‘purs’, des ‘fous de Dieu’, témoins peut-être nécessaires de l’absolu du commandement divin, ou de la sagesse laïque, mais décidément coupés de tout réalism . […] Leur rôle se réduirait à un appel, au rappel

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tice is possible within this perspective . Indeed, as Viola argued, conscientious objection as testimony ‘is meant to persuade the legislator to exercise powers in accordance with justice’7 . Thus, Veritas non auctoritas facit ius seems to be the most suitable synthesis of the objectors’ attitude towards the legal system . In particular, the objector becomes a militant witness of ius against lex8. However, one may ask what are the main outcomes of this perspective, and whether conscience clauses fit in this scenario . ParT Two: ConseQuenCes objeCTIon

of The

TruTh-based aPProaCh

To

ConsCIenTIous

Two important consequences of this approach deserve close scrutiny . The first consequence is that conscientious objection is not an instrument provided by law for the ethical coherence of individuals as in the first version . Rather, it is an authentic appeal to Truth within the legal system: in this sense it is a testimony . Consequently, the true objector is a militant engaged in a steady effort aimed at making lawmakers exercise power secundum ius . She or he is also ready to pay the penalty for her or his disobedience . Therefore, authentic objection is based on the objective truth, whereas contemporary conscientious objection based on individual choices, personal beliefs, or subjective truths ought to be considered as a bare expression of contingent political options . The second main consequence is that the legal provision of a conscience clause in specific regulations represents the patent manifestation of Modernity’s evil conscience . We can better understand the meaning of the latter observation by referring to a traditional legal distinction in conscientious objection studies . As a matter of fact, legal scholars usually identify two kinds of conscientious objection . The first one is secundum legem, that is, conscientious objection expressly provided in regulations for specific hypothesis (e . g . for abortion, military conscription or animal experimentation in some legal systems) . The second one is contra legem, that is conscientious objection beyond any legal provision . With regard to this dichotomic approach, the expression ‘right to conscientious objection’ is suitable only in the former case . Therefore, we have a proper conscientious objection in a limited number of cases expressly laid down by law through a conscience clause .9 Conversely, according to the Truth-based approach, the legitimate and authentic conscientious objection is only the latter10 from the moral viewpoint, whereas the legal viewpoint is marginal and not decisive . According to this interpretation, the legal provision of

7 8 9 10

de l’impossible absolu .” (Jean-Pierre Cattelain, L’objection de conscience, (Paris: Presses Universitaires de France, 1973), 41–42 . Francesco Viola, ‘L’obiezione di coscienza come diritto’, Diritto & Questioni Pubbliche, 9 (2009), 171 . See F . D’Agostino, ‘Dinamiche postmoderne dell’obiezione di coscienza’ (n . 3), 246 . For a theoretical discussion on conscientious objection as a general right see Michele Saporiti, ‘For a General Legal Theory of Conscientious Objection’, Ratio Juris, 28 (2015), 416–430 . See Gaetano Lo Castro, ‘Legge e coscienza’, in L’obiezione di coscienza tra tutela della libertà e disgregazione dello Stato democratico, ed . Raffaele Botta, (Giuffrè: Milan, 1991), 63; Dionigi Tettamanzi, ‘Aspetti etici della fecondazione extra-corporea’, in Fecondazione artificiale embryotransfer. Problemi biologici, clinici giuridici, etici, ed . Gianfrancesco Zuanazzi (Cortina International: Verona, 1986),

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conscientious objection has just been trying to anaesthetise the objectors’ conscience . In other words, it does not produce any remarkable result or progress in terms of justice: conscience clauses maintain injustice and, at the same time, conscience clauses are the very evidence of an unjust law . Consequently, on the one hand those unjust regulations that betray the Truth will not be changed or put into question because of conscience clauses; on the other hand, in this way the objector’s radical testimony is reduced to an exemption from a legal obligation . Instead, the militancy of objectors should have a practical outcome as testimony: he or she is supposed to try to utterly change unjust laws alongside the whole legal system, if needed . To sum up, permanence of conscientious objection is clear proof that ‘Modernity took the wrong road’ . Consequently, individuals have the right and the duty to object when injustice occurs, no matter how the human lawmaker decides . Furthermore, conscience clauses do not limit this moral task but they try to minimize it . Therefore, conscientious objection will hold if and only if lawmakers accept objectors’ moral claims and legislate accordingly . The end of all possible conscientious objections represents the ultimate evidence of a just legal system . In order to prevent misunderstandings and complete this analysis, the concepts of conscience that have been presupposed so far ought to be explicitly explained . ParT Three: heTeronoMous

vs

auTonoMous ConsCIenCe

The positive law-based approach to conscientious objection and the Truth-based version presuppose two peculiar conceptions of conscience . The former assumes the autonomy of conscience, the latter the heteronomy . Let us start with the latter . Within the heteronomous perspective, conscience’s precepts are objective (not subjective), absolute (not relative), and binding (not orienting) due to the pretended transcendent and universal dimension of Truth . Furthermore, the ‘voice of the conscience’ is consistent with immanent norms (set in the very nature of things) and transcendent norms (as expression of a supernatural being’s will) it must acknowledge and accomplish . Consequently, this sort of conscience is usually anti-individualistic and imperialistic . ‘Anti-individualistic’ means that an heteronomous conscience recognises a limited normative moral autonomy to Man, if not any . In other words, moral truths are not subjective issues because they are beyond human understanding . Instead, ‘imperialistic’ means the attitude that does not take into account any possible disagreement about objective truth: due to their universal appeal, heteronomous conscience is contra nolentes, beyond spontaneous acceptance . That is the reason why heteronomy is typical in the conscience of religious believers . Some religious assumptions are supposed to be valid for all men, believers or not . Instead, within the autonomous perspective, the precepts and the fundamental moral convictions hold good, in Kantian terms, if and only if an individual has freely chosen and accepted them . In fact, they are not self-evident, but they should

118; Francesco D’Agostino, Giustizia. Elementi per una teoria, (San Paolo: Cinisello, 2006) 50–51; Francesco D’Agostino, ‘L’obiezione di coscienza come diritto’, Iustizia, LXII (2009), 180 .

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result from the exercise of one’s own autonomy11 . First of all, for the autonomous conscience there is no Truth to impose as a self-evident given . Secondly, personal truths are the only possible truths . Consequently, pretended universal and metaphysical truths are fully legitimate, but they do not deserve a special or preeminent respect as such because they are equally relative . Thirdly, ethics is a space for an intersubjective debate, where all beliefs and convictions are liable to be criticized or questioned . Finally, to behave secundum coscientiam means to act in accordance with ‘what each person considers most binding and deserving of respect’12 . This excerpt from a decision of the Italian Constitutional Court expresses a specific approach to values: what is fundamental for me might be secondary for another person . Conversely, in the heteronomous approach to behave according to conscience means to fulfill objective moral obligations . At this point, two issues deserve clarification . Firstly, the autonomous perspective does not mean that all beliefs should be equally protected by law . Instead, it suggests that all beliefs deserve equally attention whereas universalistic beliefs do not deserve special attention as such . In fact, this position assumes that ethical debates provide a rational context in which inter-subjective discussions are possible . Therefore, some arguments might sound more or less reasonable, and consequently more or less acceptable in a political community . Accordingly, law protects Conscience as such, but it will also evaluate the extent to which specific subjective truths are compatible with public ethics within a legal system . The appeal to Truth in universal and absolute terms can never ‘close the circle’ . Secondly, the distinction between heteronomous and autonomous conscience is an analytical dichotomy . This dichotomy might be quite unsophisticated or a simplicistic theoretical framework for conscientious objection or maybe in general . Choice, for example, is a dimension within the heteronomous horizon . The free will-question is at the very core of many religious traditions, and in any heteronomous perspective freedom of choice is completely denied . Nevertheless, the correct focus is not on choices . Indeed, the difference between the autonomous and the heteronomous perspective concerns the existence of a priori right or wrong alternatives, as well as to which extent individuals can legitimately choose about their lives . In a nutshell, a heteronomous conscience relies on a priori criteria to solve ethical conundrums, such as the abovementioned concept of objective Truth for conscientious objection . On the contrary, an autonomous conscience does not rely on these certainties: no self-evident value or Truth is ready-to-use . Consequently, ethical conflicts need a case-bycase approach, which often implicates a thorny balance of circumstances on the basis of personal and relative evaluations . After these remarks, let us go back to the legal perspective and ask whether it is possible to suggest any theoretical model for the awkward relation between law and conscientious objection .

11 12

See also Pierluigi Chiassoni, ‘Obiezione di coscienza: negativa e positiva’, in Obiezione di coscienza. Prospettive a confronto, ed . Patrizia Borsellino et al ., Notizie di POLITEIA, 101 (2011), 36–54 . Decision n . 334/1996 of the Italian Constitutional Court (6 .1 of Cosiderato) .

170 ParT four: dualIsTIC

Michele Saporiti and

MonIsTIC logIC

of

ConsCIenTIous objeCTIon

From the legal viewpoint, it is possible to point out two different logics of conscientious objection . The first one is dualistic and the second one is monistic . The former represents the natural law approach to conscientious objection and, to some extent, it reminds of the natural law tradition of the right to resistance . In other words, it is an objectivist and militant way of considering this issue . In fact, it presupposes the existence of universal natural law principles, hierarchically superior to positive law, the sources of which are meta-legal . Accordingly, when a positive legal provision and a natural law principle contradict each other, the objector ought to act as the witness of ius against any human unjust lex. In this way, objectors claim for justice and also denounce the predominance of natural law over positive law . Furthermore, the dualistic interpretation of conscientious objection, as abovementioned, disregards any legal provision of conscience clauses either because human law is not unavoidable in order to allow conscience to object and because law anaesthetizes the proper moral dimension of objection . In a nutshell, the dualistic version of conscientious objection produces political outcomes within a legal system . As a matter of fact, militancy against unjust law is a form of political demand on moral grounds: conscientious objectors are determined to change laws . Consequently, individual resistance of objectors becomes inevitably the collective resistance of a group due to their common political goal . Therefore, conscientious objection becomes to some degree akin to civil disobedience . The latter approach is monistic, instead . It takes into account conscientious objection according to Legal Positivism in the modern Constitutional Rule of Law, that considers ‘law’ always as positive law . Although, it does not deny the double dimension of conscientious objection as moral claim and potential positive right, it focuses only on the latter . It assumes an interpretation of conscientious objection functional to the fundamental right to freedom of conscience as its theoretical basis . In fact, an individual can disobey the law for ethical reasons only as long as the legal system recognizes conscience as a legally significant ‘interest’ deserving protection . Hence, the monistic approach does not endorse the objectivists’ idea of conscience as the ability to grasp universal Truth superior to legal rules . Rather, it assumes the ethical pluralism within contemporary society as a fact and conscientious objection as a positive right peacefully enforcing the pluralistic structure of society . Indeed, it exceptionally protects the coherence of a ‘dissenting conscience’ . Accordingly, it also implements social cohesion . In order to complete the analysis, we should dwell upon a final topic: the goals of the Truth-based approach and the positive law-based approach to conscientious objection, and their practical effects on contemporary democratic society . ConCludIng reMarKs For the purposes of this essay, conscientious objection has been analysed in dialectic terms . Indeed, both the Truth-based version and the positive law-based version have been taken into account and briefly compared from moral and legal viewpoint . Nevertheless, their goals as well as their social impacts require a proper explanation .

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In the former perspective conscientious objection is a militant claim for justice, regardless of any legal exemption . In other words, the legal provision of conscience clauses does not represent a desirable result within this modus operandi. As a matter of fact, even when a conscience clause is provided, conscientious objection remains the patent manifestation of the diehard conflict between human unjust law and universal truth . Therefore, change of unjust regulations is their very legal goal, and the fight against such regulations seems to be an effective strategy to damage unfair democratic systems . Accordingly, the social outcomes of such an approach are highly conflictual because of this exclusive or universalistic logic . If we assume that democratic regulations can be changed for moral claims, then objectors acquire a potential political role the provision of a conscience clause cannot prevent . As a matter of fact they are questioning a decision of the political community they belong to . Instead, in the former perspective, it may be argued that conscientious objection represents a means by which law upholds the pluralistic structure of contemporary democracies . Indeed, the protection of freedom of conscience in foro externo is the very legal goal of this second approach because conscientious objection allows different people to act coherently in exceptional cases . Thus, the social outcome does not create many conflicts . As a matter of fact, although dissenting consciences still do not agree with certain majority decisions, objectors respect democratic regulations and do not aim to change them . What they ask for is personal exemption on moral grounds if conscience clauses are not already provided . Due to such an inclusive logic, moral pluralism as a fact is the necessary premise of this second approach . Furthermore, its peaceful balance also represents the social goal of this approach . In other words, the plurality of truths represents an opportunity to exploit rather than an obstacle to overcome in the positive law-based perspective . After these final remarks, one might ask in general terms which is the place of moral truth within a Constitutional Rule of Law . Although this represents a huge topic beyond the charge of this discussion, the abovementioned approaches to conscientious objection might provide possible answers to such a challenging question . More specifically, each one of them implies a peculiar perspective on Mankind and Truth, or chiefly on Man as moral agent and democratic citizen . In this scenario, a disobedient conscience still represents an opportunity for our constitutional legal systems to take moral conflicts seriously .

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InTroduCTIon Moral cognitivism may be formulated as the conjunction of two kinds of commitments . On the one hand, from the semantic point view, moral cognitivism posits that moral statements represent the world as being a certain way, that is, by means of a language that must be interpreted truth-conditional,1 as well as through sentences that are used as premises and conclusions in logical inferences .2 On the other hand, from the epistemic perspective, moral cognitivism holds that moral concepts can be contents of belief, what makes the moral “a province of cognition .”3 One attempt to gain epistemic access4 to the truth conditions of our moral statements while maintaining these cognitivist commitments5 consists of claiming *

1 2 3 4

5

I would like to express my deepest gratitude to Professor Hajime Yoshino for his generous support that enabled me to take part in this Special Workshop . I owe also many thanks to André Ferreira Leite, Marie-Luisa Frick, Josep Joan Moreso, Jorge Emilío Núñez, Jan-Reinard Sieckmann, and Torben Spaak for useful comments and critical remarks on an earlier draft . The main arguments expressed in this essay were also presented at the 6th Spanish-Finish Seminar in Legal Theory, which was held at the University of Eastern Finland, Joensuu on July 1st 2016 . I am grateful to the audience for comments and criticisms, especially Matti Niemi, Jesús Vega and Juán Antonio Pérez Lledó . A substantial draft of this essay was written during my stay at the Graduate Center at the Christian-Albrechts-Universität zu Kiel (Germany) during the winter term 2015/2016 . I want to thank this institution as well as Prof . Dr . Dr . hc mult . Robert Alexy for his guidance and support . Sigrún Svavarsdóttir, Thinking in Moral Terms (New York & London: Garland Publishing, Inc ., 2001), 9 Peter Thomas Geach, ‘Assertion’, The Philosophical Review, vol . 74, 4, October, 1965, 449–465, at 463–465 . Sigrún Svavarsdóttir, Thinking in Moral Terms (n . 1), 9 . As stated by Pavlakos “the success of any cognitivist programme can be measured against its capacity to elucidate our normative reasons in a non-psychologist manner .” (George Pavlakos, ‘Correctness and Cognitivism . Remarks on Robert Alexy’s Argument from the Claim to Correctness’, Ratio Juris, 25, 15–30, at 16) In this vein, what is required by the epistemic commitment of “full-blooded cognitivism” is an internal accessibilist position, according to which what our mental states are about, when those explain our behavior (Derek Parfit, ‘Normative Reasons’, in Russ Shafer-Landau (ed .), Oxford Studies in Metaethics, vol . 1 (Oxford: Oxford Claredon, 2006), 325–380, 365) should be available from the individual person’s first-person cognitive perspective . As claimed by BonJour, while walking on a Cartesian path, the rationale for it is that something to which the believer “has no access cannot give him a reason for thinking that one of his beliefs is true .” (Laurence Bonjour, ‘Internalism and Externalism’, in Epistemology. Classic Problems and Contemporary Responses, 2nd ed . (Plymouth: Rowman & Littlefield Publishes Inc ., 2010), 203–219, at 204) Concordantly, the mental states required by our moral statements cannot be other than reflective . (See Roderick M . Chisholm, Theory of Knowledge, 3rd Ed . (Upper Saddle River: Prentice Hall, 1989), 59–60) . Indeed, an expressivist position, according to which “sentences containing moral terms are not truth-evaluable . Rather, they express, or lend a voice to, the speaker’s affective or conative states

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that moral statements are true or false only relative to a moral code defined by the community .6 In this line, from the ontological point of view,7 this way to overcome the accessibility objection8 implies the assertion that the existence of certain facts – such as implicit agreements and conventions – does not depend on the existence of an individual’s states of mind, but instead on the role of the community, to which she belongs .9

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of mind much like exclamatory expressions do . Semantically, moral terms are mood-indicators, rather than predicates,” (Sigrún Svavarsdóttir, Thinking in Moral Terms (n . 1), 9) should not face any requirement for epistemic access . Our reflective states of mind consist of an asymmetry between the individual and the semantic object . This asymmetry – or better said, this relational affair (see Phillip Robbins, ‘To Structure or not to Structure?’, Sythese, 139, 2004, 55–80, at 55) – vanishes when one posits that the truth conditions of moral statements – that is, the moral standard – are defined by the individual speaker . In this vein, even though relativism may be defined as “the view that moral statements are true or false only relative to some standard or other,” (James Dreier, ‘Moral Relativism and Moral Nihilism’, in David Copp (ed .) The Oxford Handbook of Ethical Theory (New York: Oxford University Press, 2007), 240–264, at 240) the epistemic commitment assumed by cognitivist positions prevents us from counting individual relativist accounts among the cognitivist ones . In this sense, as stated by Harman, “[i]f externalism is dead, everything is permitted .” (Gilbert Harman, The Nature of Morality. An Introduction to Ethics (Oxford: Oxford University Press, 1977), 93 . On Harman’s synthesis of arguments against subjectivism see Gilbert Harman, The Nature of Morality. An Introduction to Ethics (Oxford: Oxford University Press, 1977), 92) . In consequence, we can speak of a non-cognitivist view of moral relativism . According to Sayre MacCord, “[o]ne common (though perhaps misleading) way to express this view is to say that moral claims are either ‘true-for-me’ or ‘false-for me’, or ‘true-for us’ or ‘false-for-us’, etc ., despite the fact that they are not straightforwardly true or false . The heart of this view is that the terms of appraisal appropriate to moral claims fall short of regular straightforward truth in that one and the same moral claim can count as both correct and incorrect (or whatever) depending on who is appraising it or who is making it .” (Geoffrey Sayre-McCord, ‘Being a Realist About Relativism (in Ethics)’, Philosophical Studies, 61, 1991, 155–176, at 173 . See James Dreier, ‘Internalism and Speaker Relativism’, Ethics, 101, 1, October, 1990, 6–26, esp . 21; Jonathan Lear, ‘Ethics, Mathematics and Relativism’, Mind, vol . XCII, 1983, 38–60; Bernard Williams, ‘The Truth in Relativism’, in Moral Luck. Philosophical Papers 1973–1980 (Cambridge: Cambridge University Press, 1981), 132–143) . In an ontological sense (see Michael S . Moore, ‘Legal Reality: A Naturalist Approach to Legal Ontology’, Law and Philosophy, 21, 2002, 619–705, at 620) objectivity refers to what exists – i . e ., to what the things are independently of what we think of them . (George Pavlakos, Our Knowledge of the Law: Objectivity and Practice in Legal Theory (Oxford: Hart Publishing, 2013), 2007, 15) A fundamental ontological distinction is that between objects, which exist independently of our states of mind, and those objects, whose existence depends on them . (John R . Searle, The Construction of Social Reality (New York: Free Press, 1997), 9) Moreover, two different perspectives, which determine what exists, can be added to this distinction . These perspectives are: the separate individuals’ perspective and the perspective of the community, to which they belong . (Matthew Kramer, Objectivity and the Rule of Law (Cambridge: Cambridge University Press, 2007), 7–9; Andrei Marmor, Positive Law and Objective Values (Oxford: Oxford University Press, 2001), 200) . On epistemic access and extreme externalist positions, see Gonzalo Villa Rosas, ‘The Two Strategies . Objectivity, Epistemic Access, and Extreme Positions’, in Hajime Yoshino, Andrés Santacoloma Santacoloma and Gonzalo Villa Rosas (eds .) Truth and Objectivity in Law and Morals . Proceedings of the Special Workshop held at the 26th World Congress of the International Association for Philosophy of Law and Social Philosophy in Belo Horizonte, 2013 (Stuttgart: Franz Steiner, 2016), ARSP-Beiheft, 148, 125–156 . This weak form of independence of mind contrasts with that form of independence, according to which the existence of a certain phenomenon neither depends on the individual’s perspec-

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As is known, extreme externalist positions in the practical purview maintain a strong conception of the independence principle which leads one to posit that truth of moral statements is a fundamental monadic property of propositions,10 or in other words, that truth involves some sort of correspondence relation between moral statements, and moral facts and properties .11 In this way, these positions defend truth-value absolutism, or what is the same, that moral statements have their truth-value independently of who utters or assesses them12 – i . e . invariantism .13 In contrast, premised on a weak version of the independence principle – that is, based on the role of the community in order to explain the existence of certain facts independently from an individual’s states of mind – social and cultural relativists positions claim that the truth of moral statements is a relational property,14 in virtue of which moral statements have truth values only in relation to a standard .15 In this vein, from the semantic point of view, these positions are committed to the standard-sensitivity of moral statements .16 This relational conception of truth is the core tenet of moral relativism .17 All forms of relativism involve acknowledging that statements, which were assumed as true in virtue of their correspondence to a state of affairs, cannot be assumed as absolutely true anymore . As Boghossian argued, after the unexpected discovery of the existence of a plurality of frames of reference posited by a relativist theory when

10 11 12

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tive, nor on the states of mind shared by the members of her community – i . e ., strong objectivity . (Matthew Kramer, Objectivity and the Rule of Law (n . 7), 4) . On the difference between truth as monadic and relational property of propositions see Paul Boghossian, ‘What is Relativism?’, in Patrick Greenough and Michael Lynch (eds .), Truth and Relativism (Oxford: Clarendon Press . Oxford University Press, 2006), 13–37 . See i . a . Michael Moore, ‘Moral Reality Revisited’, Michigan Law Review, 90, 1992, 2424–2533, at 2437 . Ragnar Francén, Metaethical Relativism. Against the Single Analysis Assumption (Göteborg: Geson, 2007), 22 . In the same vein, Brogaard has claimed “[l]et (metaethical) moral absolutism be the view that all moral statements have truth values simpliciter (or relative to a world), and let (metaethical) moral relativism (broadly construed) be the view that at least some moral statements have truth values that are relative to the standards of a speaker or assessor .” (Berit Brogaard, ‘Moral Relativism and Moral Expressivism’, The Southern Journal of Philosophy, vol . 50, Issue 4, December, 2012, 538–556, at 538) . See Peter Unger, Philosophical Relativity (first publ . 1984), (Oxford: Oxford University Press, 2002), 21–44, esp . 37–40 . As Boghossian has stated, this tenet enables one “to construe relativism about a given domain either as the claim that the propositions of that domain are unexpectedly relational in character or as the claim that, while its propositions aren’t, its truth-conditions are .” (Paul Boghossian, ‘What is Relativism?’ (n .10), 13–37, at 19) . As pointed out by Francén, the terminology used to refer to our moralities is bafflingly varied (Ragnar Francén, Metaethical Relativism . Against the Single Analysis Assumption (n . 12), 15) . Some terms used to name the phenomenon are the following: “systems of belief ” (Bernard Williams, ‘The Truth in Relativism’, in Moral Luck . Philosophical Papers 1973–1980 (n . 6), 132–143, at 132–133), “moral systems” (James Dreier, ‘The Supervenience Argument against Moral Realism’, Southern Journal of Philosophy, 30, no . 3, 13–38), “moral frameworks”(Gilbert Harman and Judith Jarvis Thomson, Moral Relativism and Moral Objectivity (Oxford: Blackwell Publishers Inc ., 1996), “moral perspectives” (Max Kölbel, Truth Without Objectivity (London: Routledge, 2002), and “moral codes” (Paul Boghossian, ‘What is Relativism?’ (n .10), 13–37) . See i . a . Max Kölbel, ‘The Evidence for Relativism’, Synthese, 166, 2, 2009, 375–395, at 387 . Ragnar Francén, Metaethical Relativism . Against the Single Analysis Assumption (n . 12), 9 .

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accepted, these statements must be assumed as true only in relation to a certain frame of reference among others .18 In the same way that, before the theory of relativity was put forward, it was impossible for users to reveal the elliptical form of ordinary sentences related to mass and simultaneity,19 for those subjects who display a practical attitude of rule-acceptance belonging to the same moral practice, the requirement to make explicit the moral code, that they assume is the only existing one, would break a conversational maxim due to its pointlessness .20 That is why, the relevance of the core tenet of moral relativism lies in the acceptance of a plurality of moral codes . Based on these tenets – i . e . alethic relativism and standards pluralism – moral relativism must be defined primarily as an ontological view,21 which claims that there can be faultless moral disagreements,22 or in other words that there can be conflicting moral statements about a particular case that are both fully correct .23 Concordantly with its ontological tenets and the claim that there can be faultless moral disagreements, moral relativism also involves an epistemic attitude as a necessary condition . As shown by Williams, from the epistemic point of view, relativism entails incommensurability .24 In other words, relativism is committed to 18 19 20

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Paul Boghossian, ‘What is Relativism?’ (n .10), 13–37, at 13–16 . Ibid . 15 . In this vein, according to Grice, “[t]he category of Quantity relates to the Quantity of the information to be provided, and under it fall the following maxims: 1 . Make your contribution as informative as required (for the current purpose of the exchange) 2 . Don’t make your contribution more informative than is required .” (Paul Grice, ‘Logic and Conversation’, in Studies in the Way of Words (Cambridge: Harvard University Press, 1989), 22–40, at 26) . Christian B . Miller, ‘Moral Relativism and Moral Psychology’, in Steven D . Hales (ed .), A Companion to Relativism (West Sussex: Wiley-Blackwell, 2011), 346–367, at 347 . In the same way see Carol Rovane, ‘Relativism Requires Alternatives, Not Disagreement or Relative Truth’, in Steven D . Hales (ed .), A Companion to Relativism (West Sussex: Wiley-Blackwell, 2011), 31–52, at 32–33 . According to Harman, “[m]oral relativism is not a claim about the grammar of moral judgments . It is a claim about reality . It is a version of moral realism . It is the [claim] that there are many moralities or moral frames of reference and whether something is morally right or wrong, good or bad, just or unjust, virtuous or not is always a relative matter . Something can be right or good or just only in relation to one moral framework and wrong or bad or unjust in relation to another . Nothing is simply right or good or unjust or virtuous .” (Gilbert Harman, ‘Moral Relativism is Moral Realism’, Philosophical Studies, 172, 2015, 855–863, at 858) . Paul Boghossian, ‘What is Relativism?’ (n .10), 13–37, at 36 . Gilbert Harman, ‘What is Moral Relativism?’, in Explaining Value and Other Essays in Moral Philosophy (Oxford: Oxford University Press, 2000), 20–38, at 24 . See Bernard Williams, ‘Reflection and Relativism’, in Ethics and The Limits of Philosophy (first publ . 1985), (Abingdon: Routledge, 2006), 156–173, at 157–159 . It is worth noting that, although all extreme externalist positions in the practical purview involve truth-value absolutism, not all accounts which imply truth-value absolutism are extreme externalist positions . In other words, invariantism of moral statements is not always committed to the assumption that what is right cannot be determined by us as humans, even if we are under ideal epistemic conditions . (See Jules L . Coleman and Brian Leiter, ‘Determinacy, Objectivity, and Authority’, in Law and Interpretation. Essays in Legal Philosophy, ed . Andrei Marmor (Oxford: Clarendon Press, 1997), 203–278, at 252; Gonzalo Villa Rosas, ‘The Two Strategies . Objectivity, Epistemic Access, and Extreme Positions’ (n . 8), 128) For instance, appealing to the role of the community, it may be possible to explain the existence of a single morality that holds true without exception as rationale of absolute truth of moral statements . (David B . Wong, Natural Moralities (New York: Oxford University Press, 2006), XII) This single true morality may not be “dominated by one value, or small set of values,

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the absence of any common ground or criterion rested upon which it would be possible either to compare or to reduce,25 either moral codes or moral statements to others one belonging to a different moral practice .26 Hence, from an epistemic perspective the commitment of global relativism27 to the denial of inter-commu-

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which overrides or serves as a common denominator for all others .” (George Crowder, ‘Pluralism, Relativism and Liberalism in Isaiah Berlin’, Refereed paper presented to the Australasian Political Studies Association Conference, University of Tasmania, Hobart 29 September – 1 October 2003 . http://www .utas .edu .au/government/APSA/GCrowder .doc .pdf) This single true morality may be shaped, for instance, by a set of objective ends (see i . a . Isaiah Berlin, ‘Alleged Relativism in Eighteenth-Century European Thought’, in The Crooked Timber of Humanity: Chapters in the History of Ideas, ed . Henry Hardy (Princeton: Princeton University Press, 2013), 73–94, at 83), values (see i . a . John Kekes, The Morality of Pluralism (Princeton: Princeton University Press, 1993), esp . 38–47), or central human functional capabilities (see i . a . Martha Nussbaum, Women and Human Development: The Capabilities Approach (Cambridge: Cambridge University Press, 2000), esp . 70–86) which may be incommensurable with one another . In this way, while, premised on the ontological tenets and a certain epistemic attitude, relativists claim that values are standards-dependent, and that these standards are incommensurable, value pluralists claim that although values are incommensurable, they shape the only possible morality . (See i . a . George Crowder, ‘Pluralism’ in The Routledge Companion to Social and Political Philosophy, eds . Gerald Gaus and Fred D’Agostino (New York: Routledge, 2013), 353–363, at 355; John Kekes, The Morality of Pluralism (Princeton: Princeton University Press, 1993), esp . 48–52; Isaiah Berlin, ‘Alleged Relativism in Eighteenth-Century European Thought’, in Henry Hardy (ed .), The Crooked Timber of Humanity: Chapters in the History of Ideas (Princeton: Princeton University Press, 2013), 73–94, at 84–94) Furthermore, a procedural approach may claim that the practical reason is shaped by certain principles and rules, which lead to a rational convergence as constitutive norms of a discursive practice . (See Robert Alexy, Theorie der juristischen Argumentation. Die Theorie des rationalen Diskurses als Theorie der juristischen Begründung (Frankfurt am Main: Suhrkamp Verlag, 1983); Robert Alexy, ‘Die Idee einer prozeduralen Theorien der juristischen Argumentation’, in Recht, Vernunft, Diskurs. Studien zur Rechtsphilosophie, ed . Robert Alexy (Frankfurt am Main: Suhrkamp, 1995), 94–108; Carsten Bäcker, Begründen und Entscheiden: Kritik und Rekonstruktion der Alexyschen Diskurstheorie des Rechts, 2nd ed . (Baden-Baden: Nomos Verlagsgesellschaft, 2012), 170–174) In contrast to extreme externalist positions in the practical purview, the disagreement pervasiveness when any epistemic error cannot be proven – i . e . intractable disagreements – may not entail a challenge for this procedural approach, due to the fact that it may accept moral faultless disagreements among those who justify possible answers based on following the set of general principles and rules, all of which hold true without exception – rectius, der Raum des diskursiv Möglichen . (See Robert Alexy, ‘Die Idee einer prozeduralen Theorien der juristischen Argumentation’, in Recht, Vernunft, Diskurs. Studien zur Rechtsphilosophie, ed . Robert Alexy (Frankfurt am Main: Suhrkamp, 1995), 94–108, esp . 98–104) In this way, whilst this approach does not rule out moral faultless disagreements, it does not share neither the ontological tenets nor the epistemic attitude of relativism . I am grateful to Professors Jesús Vega and Juán Antonio Pérez Lledó for these objections and for their help in thinking about these issues . See Ruth Chang, ‘Incommensurability (and Incomparability)’, in Hugh LaFollette (ed .), The International Encyclopedia of Ethics (West Sussex: Wiley-Blackwell, 2013), 2591–2604, at 2594, 2596–2602 . In this way, according to Harman, “[m]oral absolutism holds that there is a single true morality . Moral relativism claims instead: (3) There is no single true morality . There are many different moral frameworks, none of which is more correct than the others .” (Gilbert Harman and Judith Jarvis Thomson, Moral Relativism and Moral Objectivity (n . 15), 1996, 5) . As claimed by Francén, an important distinction is “that between local and global forms of relativism . A global form of truth relativism claims that truths of all kinds are relative while a local form claims that relativism only pertains to truths of a certain kind, such as moral, aesthetic or scientific beliefs . Whether a form of relativism counts as local or global in this sense depends on the comparison class: an aesthetic relativism may be a global aesthetic truth-relativism (it

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nal28 and universal validity of moral codes and statements implies that none of those can justifiably be used in order to solve faultless disagreements .29 In this way, in contrast to strong moral objectivist positions, social and cultural relativism can account for the existence of the large diversity among moral opinions .30 However, as argued by Capps, Lynch and Massey, even if it is true that strong moral objectivist positions have problems explaining how intractable disagreements31 could be resolved, relativist theories have problems explaining how

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concerns the truth of all aesthetic beliefs) at the same time as it is a local truth-relativism (it concerns only aesthetic truths) .” (Ragnar Francén, Metaethical Relativism . Against the Single Analysis Assumption (n . 12), 12) . In the light of a large political philosophical tradition, I prefer the term “communities” over others terms with a more general sense like “groups” (see i . a . David B . Wong, ‘Relativist Explanations of Interpersonal and Group Disagreement’, in Steven D . Hales (ed .), A Companion to Relativism (West Sussex: Wiley-Blackwell, 2011), 411–430) . In the same vein, I prefer the terms “inter-communal” and “intra-communal” disagreements . As claimed by Williams, “[t]here have to be two or more systems of belief (Ss) which are to some extent self-contained . […] The problems of relativism concern communication between S1 and S2, or between them and some third party, and, in particular, issues of preference between them . It is worth noticing that quite a lot is taken for granted in the construction of the problem-situation already, in the application of the idea of there being a plurality of different Ss .” (Bernard Williams, ‘The Truth in Relativism’, in Moral Luck . Philosophical Papers 1973–1980 (n . 15), 132–143, at 132–133) Rovane has rightly pointed out that “Bernard Williams is one important contributor to the twentieth century debates who did link relativism with disagreement . When he formulated relativism in terms of the possibility of a ‘merely notional confrontation’ between two systems of belief, he specified that such systems must conflict with one another .” (Carol Rovane, ‘Relativism Requires Alternatives, Not Disagreement or Relative Truth’ (n . 21), 31–52, at 34) . Arguments that hold diversity between people’s moral opinions as an empirical fact (i . e . descriptive moral relativism) have been commonly used in order to support meta-ethical moral relativism . (See Ragnar Francén, Metaethical Relativism . Against the Single Analysis Assumption (n . 12), 73–96) As stated by Gowans, “[t]hough this is not sufficient to establish meta-ethical moral relativism, the most common rationales for meta-ethical moral relativism would be undermined if descriptive moral relativism (or some descriptive thesis about significant moral disagreement or diversity) were incorrect . Moreover, if descriptive moral relativism were generally rejected, it is likely that meta-ethical moral relativism would have few proponents . […] Defenders of descriptive moral relativism usually take it to be well-established by cultural anthropology and other empirically-based disciplines, and many believe it is obvious to anyone with an elementary understanding of the history and cultures of the world .” (Chris Gowans, ‘Moral Relativism’, in Edward N . Zalta (ed .), The Stanford Encyclopedia of Philosophy (Fall 2015 Edition), URL = http://plato .stanford .edu/archives/fall2015/entries/moral-relativism/) . Strong moral objectivist positions may explain moral disagreements in terms of epistemic access . As stated by Capps, Lynch and Massey, these positions “may be forced to explain such disagreements in terms of moral facts that some parties simply cannot appreciate regardless of all possible improvements in evidence . Some moral facts, the realist must contend, are simply inaccessible to some unfortunate souls . If the disagreement is just right (i . e ., each of the two parties of the disagreement straightforwardly contradict each other), then one of the parties is right and the other is wrong – one’s judgment is true and the other’s judgment is false .” (David Capps, Michael P . Lynch and Daniel Massey, ‘A coherent moral relativism’, Synthese, 166, 2009, 413–430, at 413–114) In this vein, the disagreement pervasiveness when any epistemic error cannot be proven – i . e . intractable disagreements – entails a challenge for these positions . On Wong’s position about absolutist and relativist opposing views on this topic see note 208 .

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disagreements are even possible .32 Indeed, as a consequence of their epistemic commitment to incommensurability these theories must confront a dilemma . Either there is a common ground upon which it would be possible either to compare or to reduce moral statements to others belonging to a different moral practice, or there is no such common ground . Under the first disjunct, moral statements share the necessary content for moral disagreements .33 Under the second disjunct, they might as well be about completely different things .34 Indeed, from the semantic perspective, moral relativism may be understood as the view according to which the semantic value or content of a moral statement is a function35 containing a standard introduced by a moral term .36 This factor of the moral statement’s content, the explanation goes, is not different from other evaluative and normative expressions in the sense that it is incomplete .37 That is, although the character of a moral term remains the same in all contexts, its content depends upon a standard .38 In this manner, in a similar way as the content expressed 32 33

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David Capps, Michael P . Lynch and Daniel Massey, ‘A coherent moral relativism’ (n . 31), 413– 430, at 114 . As stated by Lynch, “the truth relativist wishes to accommodate the thought that, with regard to the target disputes, there are genuine disagreements over a common subject matter and consequently shared content between the parties of the disagreement . Arguably, a disagreement is genuine only when there is such shared content, because only then can one party judge as true what another party judges as false . In short, truth relativism comes into the picture only after content – that is, which proposition is at issue – has already been settled . This is the point of calling it relativism about truth .” (Michael P . Lynch, ‘Truth Relativism and Truth Pluralism’, in Steven D . Hales (ed .), A Companion to Relativism (West Sussex: Wiley-Blackwell, 2011), 87–101, at 84) . A similar dilemma but referring to conceptual relativism has been put forward by Hales . See Steven D . Hales, ‘Introduction’, in Steven D . Hales (ed .), A Companion to Relativism (West Sussex: Wiley-Blackwell, 2011), 1–8, at 2 . See i . a . David Lewis, ‘Index, Context, and Content’, in Stig Kanger and Sven Öhman (eds .), Philosophy and Grammar (Dordrecht: D . Reider Publishing Company, 1981), 79–100, at 79, 82–85, 90, 91, 96; David Kaplan, ‘Demonstratives . An Essay on the Semantics, Logic, Metaphysics, and Epistemology of Demonstratives and Other Indexicals’, in Joseph Almog, John Perry, and Howard Wettstein, Themes from Kaplan (Oxford: Oxford University Press, 1989), 481–563, at 501–505 . In this way, according to Kölbel “[t]wo utterances of ‘Yesterday was Sunday .’ will express different propositions if they are made on different days, and as a consequence they can vary in truth value . Similarly, two utterances of ‘Matisse is better than Picasso .’, on this more standard view, will express different propositions if they are made in suitably different contexts, and this difference in proposition expressed can account for the observed difference in truth-value . One way of implementing this proposal would be to say that the utterer’s standard of taste, or preferences, are the contextual factor in question . Thus, on this proposal, the sentence ‘Matisse is better than Picasso .’ would exhibit the same sort of context-sensitivity as the sentence ‘According to standards of taste like my own, Matisse is better than Picasso .’ Both sentences will express different propositions in the mouths of suitably different speakers .” (Max Kölbel, ‘Introduction: Motivations for Relativism’, in Manuel García-Carpintero and Max Kölbel (eds .), Relative Truth (Oxford: Oxford University Press, 2008), 1–41, at 4–5) . James Dreier, ‘Moral Relativism and Moral Nihilism’ (n . 6), 240–264, at 252 . See James R . Beebe, ‘Moral Relativism in Context’, Noûs, 44, 4, 2010, 691–724, at 693–694; James Dreier, ‘Relativism (and Expressivism) and the Problem of Disagreement’, Philosophical Perspectives, 23, 1, 2009, 79–110, at 86; James Dreier, ‘Moral Relativism and Moral Nihilism’ (n . 6), 240–264, at 251 .

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by sentences containing indexical terms such as “I,” “here,” “yesterday,” or “now” is sensitive,39 the content expressed by a moral statement is sensitive to its context of utterance .40 It is to argue, however, according to Wong, that any strict analogy between moral terms and indexicals falls short “in light of what the competent users know about the use of the terms .”41 Indeed, if it could be shown that, in contrast to explicit indexicals, moral terms have a hidden indexical meaning,42 then “any competent moral language user would have implicit knowledge of their indexicality, such that only a bit of reflection on the use of one’s terms will bring one in short order to the realization that the truth of a speaker’s moral judgment that an action is wrong depends on the action’s being prohibited by the standards the speaker is currently holding .”43 Notwithstanding, “[t]here is little evidence that all competent moral language users have this sort of implicit knowledge . A philosophical analysis based on extended argumentation does not plausibly count as resulting in implicit knowledge .”44 But even more importantly, if moral terms behave like indexicals, then the theory can account for speaking past each other but it cannot account for genuinely morally disagreeing .45 Certainly, due to the fact that, according to the indexicalist account, the moral terms contained in each statement have different extensions 39 40

41 42 43 44 45

James Dreier, ‘Moral Relativism and Moral Nihilism’ (n . 6), 240–264, at 251 . As stated by Dreier, “[t]o a first approximation, a relativist can say that the relevant standards are those of the speaker (or writer, or thinker; but hereafter I will restrict attention to spoken sentences) . Presumably, when you say that abortion is morally wrong, you are adverting to your moral system of rules . As a first approximation of an explication of relativism, this specification is not too bad, but it does seem a little too simplistic . When I report Peter Singer as believing that eating meat is morally wrong, I am not saying that he believes eating meat violates a rule of my moral system . A more plausible version of relativism will say that a number of factors go into determining which system or standard is relevant; the speaker’s own moral outlook is one, but other factors, especially considerations of conversational salience, may override .” (James Dreier, ‘Moral Relativism and Moral Nihilism’ (n . 6), 240–264, at 252) . David B . Wong, ‘Relativist Explanations of Interpersonal and Group Disagreement’, in Steven D . Hales (ed .), A Companion to Relativism (West Sussex: Wiley-Blackwell, 2011), 411–430, at 415 . Jesse Prinz, The Emotional Construction of Morals (Oxford: Oxford University Press, 2007), 199 . David B . Wong, ‘Relativist Explanations of Interpersonal and Group Disagreement’ (n . 41), 411–430, at 415 . Ibid . 415 . As is known, Dreier has replied that an indexicalist position can overcome this criticism, if it is taken into account that when two speakers think they are disagreeing, they are assuming that there is a substantial area of overlap between their moral systems . (James Dreier, ‘The Supervenience Argument Against Moral Realism’ (n . 15), 12–38, at 31) Dreier believes that the situation alluded to can be compared to the following one, “[i]magine that we are looking through a pile of papers for a train schedule . ‘It just isn’t here,’ I say . ‘It’s here, it’s here,’ you reply, ‘we just aren’t looking carefully .’ Now, if the content of ‘here’ were the location of the speaker, then, since we obviously have different locations, the theory of indexicals would have to tell us that we are not really disagreeing . But it is clear that there is a disagreement . So indexicals must function in a more subtle and complicated way than the simplest indexical account would allow . In many instances ‘here’ may refer to an area of common interest to the parties engaged in a discussion or cooperative activity, say, the volume between them or the intersection of the volumes they are facing . Precisely which volume it is must be determined in a complicated way by the conversational context, and it might change from sentence to sentence or even from phrase to phrase .” (James Dreier, ‘Internalism and Speaker Relativism’ (n . 6), 6–26, at 23) .

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when speakers with relevantly different moralities use them,46 moral statements do not share the necessary content for allowing genuine moral disagreements .47 Nevertheless, in order to warrant the necessary content that allows faultless disagreements, Kölbel has put forward a non-indexicalist contextualist position applicable to moral statements . This position lies near possible world semantics where “the same proposition (content) can be evaluated differently in different possible worlds .”48 According to Kölbel’s position, the content expressed by a sensitive term does not vary with the context of utterance, but rather the truth-value of the content itself is relative .49 In this way, in contrast to indexicalist positions, Kölbel’s account posits that the content expressed by an evaluative or normative term is independent from the standard, due to the fact that the standard is to be added to the context of utterance in order to compute the truth value of the statement .50 Thus, the same proposition can be evaluated differently from different perspectives, although by speakers who are communicating in the same possible world .51 Along these lines, this position makes it possible that these speakers “believe contradictory propositions without committing any mistake, i . e . without believing something not true in their own perspective .”52 Even though MacFarlane has elsewhere considered non-indexicalism a tenable position,53 he has maintained, “relativism about truth is best understood as a commitment to the assessment sensitivity of some sentences or propositions,”54 due to the fact that “taking propositional truth to be relevant to parameters besides possible worlds (and perhaps times) is neither necessary nor sufficient for relativism about truth .”55 As a result, MacFarlane has suggested that the standard has not to be initialized by a feature of the context of use, but by a feature of the context in which the speech act (or other use of the sentence) has to be assessed .56 Notwithstanding, all these efforts – indexicalism, Kölbel’s non-indexicalist contextualism, and MacFarlane’s relativism – are still unable to make sense to faultless 46 47 48 49 50 51 52 53 54 55 56

Ragnar Francén, Metaethical Relativism . Against the Single Analysis Assumption (n . 12), 22 . On this criticism see i . a . Crispin Wright, Saving the Differences: Essays on Themes from Truth and Objectivity (Cambridge: Harvard University Press, 2003) 450–451 . Max Kölbel, ‘Faultless Disagreement’, Proceedings of the Aristotelian Society New Series, vol . 104, 2004, 53–73, at 72 . Ibid . 72 . Max Kölbel, ‘Introduction: Motivations for Relativism’ (n . 36), 1–41, at 25–31, esp . 25–26 . Max Kölbel, ‘Faultless Disagreement’ (n . 48), 53–73, at 72 . Ibid . 72 . See John MacFarlane, ‘Nonindexical Contextualism’, Synthese, 166, 2009, 231–250 . John MacFarlane, Assessment Sensitivity. Relative Truth and its Applications (Oxford: Oxford Clarendon Press, 2014), 97 . Ibid . 24 . John MacFarlane, ‘Making Sense of Relative Truth’, Proceedings of the Aristotelian Society, vol . 105, 1, June, 2005, 305–323, at 309 . Against the position defended by MacFarlane, Brogaard based on Stalnaker’s contributions (see Robert C . Stalnaker, ‘Assertion’, in Context and Content. Essays on Intentionality in Speech and Thought (Oxford: Oxford University Press, 1999), 78–95), has pointed out that it involves rethinking the practice of assertion, due to the fact that if the purpose of assertion is to contribute a true proposition to a common ground of true propositions, then the very purpose of the assertion cannot be considered, if propositions have truth-values only relative to a context of assessment . (See Berit Brogaard, ‘Moral Contextualism and Moral Relativism’, The Philosophical Quarterly, vol . 58, no . 232, July, 2008, 385–409, at 399) .

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disagreements . Indeed, to the extent that, from each of the opponents’ perspectives,57 alethic relativism involves disquotational truth predicates,58 a relativist must either abandon the idea of faultless disagreement, or give up the straightforward opposition between truth and falsity .59 As a matter of fact, given that one who claims p is committed to the claim that p is true,60 one who claims p is committed to the claim that not-p is false .61 Due to the fact that one who claims that p is true believes – or knows62 – that p is true, then one who claims that p is true must judge that one who claims that not-p is true is making a mistake – i . e . he has a false belief63 . But even though it is to claim that, from each of the opponents’ perspectives, it is untenable to hold that they are faultlessly disagreeing, nothing prevents us from claiming that, from the external point of view – that is, from the observer’s or non-opponent’s perspective – it is possible to regard a case where although A believes p and B believes not-p, regarding each framework “neither A nor B has made a mistake (is at fault) .”64 In this vein, if relativism can be characterized as the theory which defends a relational conception of truth and which takes seriously the prem57 58

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On the argument of (perspectival) immersion which is alluded at this point see Paul Boghossian, ‘Three Kinds of Relativism’, in Steven D . Hales (ed .), A Companion to Relativism (West Sussex: Wiley-Blackwell, 2011), 53–69, at 61–62 . See Herman Cappelen and John Hawthorne, Relativism and Monadic Truth (Oxford: Oxford University Press, 2010), 131; Paul Boghossian, ‘Three Kinds of Relativism’ (n . 57), 53–69, at 60; Torfinn Thomesen Huvenes, ‘Disagreement without Error’, in Daniel Cohnitz and Teresa Marques (eds .), Erkenntnis, Special Issue, vol . 79, 2014, 143–154, at 149 . In this vein, according to Rovane “[a]ll the same, there is a serious worry of a different sort about its coherence [of relativism] . It holds that relativism-inducing disagreements are irresoluble in principle, for the reason that there is no more to the truth in the disputed matter than meeting various subjective standards that the disputing parties can fully meet while still disagreeing . It follows that both parties in such disagreements would be right, and that would seem to be a violation of the law of non-contradiction . […] If relativism arises with disagreement, and if it wouldn’t arise with ordinary disagreements in which both parties cannot be right, then it could only arise with disagreements in which both parties can be right . This does saddle the relativist with a commitment to allowing exceptions to the law of noncontradiction, and we should doubt whether any account of relative truth can spare the relativist from this commitment while at the same time preserving the original intuition that links relativism with non-ordinary disagreement .” (Carol Rovane, ‘Relativism Requires Alternatives, Not Disagreement or Relative Truth’ (n . 21), 31–52, at 32, 33, 43) . As stated by Richards, “when one is willing to ascribe truth or falsity to a particular claim p, one treats p and the claim that p is true as equivalent .” (Mark Richard, When Truth Gives Out (New York: Oxford University Press, 2008), 132) . Paul Boghossian, ‘Three Kinds of Relativism’ (n . 57), 53–69, at 61–62 . On rule of knowledge as constitutive rule of assertion, see Manuel García-Carpintero, ‘Assertion and the Semantics of Force-Markers’, in Claudia Bianchi (ed .), The Semantics/Pragmatics Distinction, (Stanford: CSLI Lecture Notes, The University of Chicago Press – Stanford, 2004), 133–166; Keith DeRose, ‘Assertion, Knowledge and Context’, The Philosophical Review, 111, 2002, 167–203; Timothy Williamson, Knowledge and its Limits (Oxford: Oxford University Press, 2002), 249–269; Timothy Williamson, ‘Knowing and Asserting’, The Philosophical Review, 105, 4, 1996, 489–523; Michael Slote, ‘Assertion and Belief ’, in Jonathan Dancy (ed .), Papers on Language and Logic: Proceedings of the Conference on the Philosophy of Language and Logic held at the University of Keele in April, 1979, (Keele: Keele University Library, 1980), 177–190 . John Gibbons, The Norm of Belief (Oxford: Oxford University Press, 2013), 2 . Max Kölbel, ‘Faultless Disagreement’ (n . 48), 53–73, at 53–54 .

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ise that for a given domain there can be faultless disagreements within that domain,65 relativism always involves an observer’s perspective . As is known, this point leads us to the basic question of the relations between practice and reflection . As argued by Williams, in the same way that moral reflection “comes into question when someone stands back from the practices of the society and its use of these concepts and asks whether this is the right way to go on, whether these are good ways in which to assess actions, whether the kinds of character that are admired are rightly admired,”66 distance between the observer and the various practices enables relativism to be posited .67 Harman and Wong have offered two robust theories in the light of a cognitivist and relativist tradition, which aim at accounting for our moral experience .68 As we shall see, while Harman has defended a Humean approach which excludes reason alone from giving rise to an intentional action,69 and hence that “a reason for an agent to do an action is ultimately based on some motivating attitude, a desire or intention, that the agent has, and to which the action in some way conduces,”70 Wong’s position is based on a methodological naturalistic approach through which he aims to provide an account of morality that, on the one hand, is marked not by a commitment to a purely physicalistic ontology which bears the reduction of moral properties to natural properties,71 and on the other hand, explains moral evaluation through evaluative terms that are not irreducibly moral though still evaluative and normative in character .72 Rested on the caveats referred to above, the following pages explore Harman’s and Wong’s theories with the particular aim of addressing the question relating to their pertinency, that is a concern which can be easily expressed in the following terms: can Harman’s and Wong’s accounts be considered suitable moral theories? ParT one: Moral bargaInIng relaTIvIsM As stated by Wong,73 Harman has put forward the earliest contemporary version of a relativist theory . Premised on a tradition74 which excludes reason alone from giv65 66 67 68 69 70 71 72 73 74

Paul Boghossian, ‘What is Relativism?’ (n .10), 13–37, at 36 . Bernard Williams, ‘Knowledge, Science, Convergence’, in Ethics and The Limits of Philosophy (first publ . 1985), (Abingdon: Routledge, 2006), 132–155, at 146 . See Bernard Williams, ‘Reflection and Relativism’ (n . 24), 156–173, at 162, 164–166, 172–173 . David B . Wong, Moral Relativity (London: University of California Press, 1984), 1 . See Robert L . Arrington, Rationalism, Realism, and Relativism. Perspectives in Contemporary Moral Epistemology (Ithaca: Cornell University Press, 1989), 231 . Gilbert Harman, ‘Moral Relativism Defended’, The Philosophical Review, 84, 1, 1975, 3–22, at 9 . David B . Wong, ‘Relativist Explanations of Interpersonal and Group Disagreement’ (n . 28), 413 . David B . Wong, Natural Moralities (n . 24), 35 . Ibid . 36 . David B . Wong, ‘Relativist Explanations of Interpersonal and Group Disagreement’ (n . 28), 411–430, at 411–412 . According to Hume’s well-known quote: “[e]very rational creature, it is said, is obliged to regulate his actions by reason; and if any other motive or principle challenge the direction of his conduct, he ought to oppose it, till it be entirely subdued, or at least brought to a conformity with that superior principle . On this method of thinking the greatest part of moral philosophy, ancient and modern, seems to be founded; nor is there an ampler field, as well for metaphysical

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ing rise to an intentional action,75 and hence that “a reason for an agent to do an action is ultimately based on some motivating attitude, a desire or intention, that the agent has, and to which the action in some way conduces,”76 Harman has defended a species of internalism .77 As stated by Copp, Harman’s position implies that a person ought morally to do something only if he has “certain motivational attitudes, which give him a reason to do it,”78 due to the fact that “moralities are constituted by motivating attitudes .”79 Concordantly, Harman’s defense of moral relativism has been confined to a certain kind of judgments . According to his position, although other kinds of judgments can be used to assess an agent, only inner judgments shape the morality80 and are “used to describe a relation between an agent and a type of act that he might

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arguments, as popular declamations, than this supposed pre-eminence of reason above passion . The eternity, invariableness, and divine origin of the former have been displayed to the best advantage: the blindness, unconstancy, and deceitfulness of the latter have been as strongly insisted on . In order to shew the fallacy of all this philosophy, I shall endeavour to prove first, that reason alone can never be a motive to any action of the will; and secondly, that it can never oppose passion in the direction of the will .” (David Hume, A Treatise of Human Nature. Being an Attempt to Introduce the Experimental Method of Reasoning into Moral Subjects (first publ . 1739), (Adelaide (Australia): eBook@Adelaide . The University of Adelaide Library, 2015), II, 3, iii . Online: https://ebooks .adelaide .edu .au/h/hume/david/h92t/index .html (last consulted on 20th December, 2015) . In this vein, according to Harman, “[…] in supposing that reasons for action must have their source in goals, desires, or intentions, I am assuming something like an Aristotelian or Humean account of these matters, as opposed, for example, to a Kantian approach which sees a possible source of motivation in reason itself . I must defer a full-scale discussion of the issue to another occasion . Here I simply assume that the Kantian approach is wrong . […] In other words, I assume that the possession of rationality is not sufficient to provide a source for relevant reasons, that certain desires, goals, or intentions are also necessary .” (Gilbert Harman, ‘Moral Relativism Defended’ (n . 69), 3–22, at 9) . David B . Wong, ‘Relativist Explanations of Interpersonal and Group Disagreement’ (n . 28), 413 . On the distinction between internalism and externalism see William Frankena, ‘Obligation and Motivation in Recent Moral Philosophy’, in Essays in Moral Philosophy (Seattle: University of Washington Press, 1958), 40–81 . David Copp, ‘Harman on Internalism, Relativism, and Logical Form’, Ethics, 92, 2, 1982, 227– 242, at 227 . David B . Wong, ‘Relativist Explanations of Interpersonal and Group Disagreement’ (n . 28), 413 . In this sense, according to Shomali, “Harman has restricted his relativism to moral judgments in contrast to evaluative judgments” (Mohammad A . Shomali, Ethical Relativism. An Analysis of the Foundations of Morality (London: Islamic College For Advanced Studies Press (ICAS), 2001), 130) . In the same way, Copp has affirmed that according to Harman’s theory “[j]udgments in assessment of an agent, but not in relation to some type of action, are not inner judgments . For example, statements to the effect that someone is evil, a betrayer, a traitor, and so on, are not inner judgments and so are excluded from Harman’s relativism . Also, judgments in assessment of a situation or an action which are not also in assessment of an agent to the effect that it was right or wrong of him to bring about or perform that thing are not inner judgments . Thus, statements to the effect that someone’s action was wrong, or ought not to have been performed, are excluded from Harman’s relativism . Inner judgments form a proper subset of moral judgments . Assessments of a person from a moral point of view, but not in relation to an act of his, are not inner judgments . Also, assessments of situations or of actions from a moral point of view, which are not also assessments of a person, are not inner judgments . Let us call the former ‘personal assessments’ and the latter ‘situation assessments’ or ‘action assessments .’ So described, the distinction between inner judgments and these other types of moral judgment seems to be

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perform or has performed .”81 More exactly, only inner judgments can be used to asses, if “someone morally should or ought to have done something,”82 or if “someone was morally right or wrong to have done something .”83 According to Harman’s position, inner judgments have two important characteristics . On the one hand, they “imply that the agent has reasons to do something .”84 On the other hand, when they are raised by a speaker in some sense he endorses the agent’s reasons and “supposes that the audience also endorses them .”85 In other words, that whoever raises an inner judgment assumes, controversially, that the agent, who is judged had certain motivational attitudes – that is, certain values, goals, desires, or intentions – which are shared not only by him and the agent, but also by those who the speaker addresses .86Accordingly, inner judgments presuppose an implicit agreement about motivational attitudes . Harman argues that, in consequence, inner judgments are “true or false only in relation to and with reference to one or another such agreement or understanding .”87 In this way, for Harman inter-communal moral disagreements are the result of the projection of the truth conditions implicit in the elliptical form of the daily use of our moral language, in which we usually omit the reference to the moral framework to which the inner judgment we raised belongs . Indeed, according to Harman, “[i]n perhaps the simplest form of quasi-absolutism, a moral relativist projects his or her moral framework onto the world and then uses moral terminology as if the projected morality were the single true morality, while at the same time admitting that this way of talking is only ‘as if ’ .”88 Due to the fact that moral judgments are inner judgments,89 morality is conventional, that is, it “arises when people reach an implicit agreement or come a tacit understanding about their relation with one another .”90 In this vein, according to Harman, it is not surprising that the moral “ought” be the same “ought” used in other kinds of sets of social rules – such as rules of law, club rules, conventions of

81 82 83 84 85 86 87 88

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reasonably clear and unremarkable .” (David Copp, ‘Harman on Internalism, Relativism, and Logical Form’ (n . 78), 228) . Gilbert Harman, ‘Moral Relativism Defended’ (n . 69), 6 . Gilbert Harman, ‘Moral Relativism Defended’, in Explaining Value and Other Essays in Moral Philosophy (Oxford: Oxford University Press, 2000), 3–19, at 4 . Ibid . 4 . Ibid . 8 . Ibid . 8 . Stephen Darwall, ‘Expressivist Relativism? Moral Relativism and Moral Objectivity by Gilbert Harman; Judith Jarvis Thomson’, Philosophy and Phenomenological Research, 58, 1, 1998, 183–188, at 183 . See also Gilbert Harman, ‘Moral Relativism Defended’ (n . 82), 3–19, at 8 . Gilbert Harman, ‘Moral Relativism Defended’ (n . 82), 3–19, at 8 . Gilbert Harman and Judith Jarvis Thomson, Moral Relativism and Moral Objectivity (n . 15), 1996, 34 . Against Harman’s quasi-absolutist position, see Stephen Darwall, ‘Expressivist Relativism? Moral Relativism and Moral Objectivity by Gilbert Harman; Judith Jarvis Thomson’ (n . 86), 183–188, at 186–188; Simon Blackburn, ‘Moral Relativism and Moral Objectivity by Gilbert Harman; Judith Jarvis Thomson’, Philosophy and Phenomenological Research, 58, 1, 1998, 195–198, at 198 . Louis P . Pojman, ‘Gilbert Harman’s Internalist Moral Relativism’, The Modern Schoolman, LXVIII, 1990, 19–39, at 20 . Gilbert Harman, ‘Moral Relativism Defended’ (n . 82), 3–19, at 3 .

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etiquette, and rules of game – whose conventional nature is not in doubt .91 Harman’s conventionalism obeys the cognitivist requirement of an external source of morality,92 which transcends an individual’s decisions and principles93 by means of an implicit agreement . According to Harman, such an agreement, which is the only source of morality,94 is normally arrived at “by mutual adjustment of different people’s behaviour, without conscious awareness .”95 Correspondingly, in this conception of morality, which Harman calls “morality as politics, a morality is basically a group affair, depending on moral demands jointly accepted by several people after a certain amount of tacit bargaining and adjustment .”96 Thus, for Harman97 most people’s values reflect conventions that are maintained by this continual tacit negotiation process that accompanies the entire social development .98 Consequently, Harman claims that only resting upon the process of bargaining and mutual adjustment defended by his conception of morality as convention, it is possible to explain puzzling aspects of our contemporary moral view, that cannot be explained on the basis of a utilitarian perspective, “such as the relative strength 91

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In this way, according to Harman “[t]he fact that ‘ought’ has the same sense in all of these cases is additional support for the social convention theory of morality . Given that theory, it seems appropriate to say that those who accept rules of law, club rules, or conventions of etiquette accept them in the way they accept moral conventions .” (Gilbert Harman, The Nature of Morality . An Introduction to Ethics (n . 6), 123) . On the externality requirement, see Robert L . Arrington, Rationalism, Realism, and Relativism . Perspectives in Contemporary Moral Epistemology (n . 68), 204 . Mohammad A . Shomali, Ethical Relativism . An Analysis of the Foundations of Morality (n . 80), 153; Robert L . Arrington, Rationalism, Realism, and Relativism . Perspectives in Contemporary Moral Epistemology (n . 68), 204 . In this vein, according to Harman, “[i]f externalism is dead, everything is permitted .” (Gilbert Harman, The Nature of Morality . An Introduction to Ethics (n .6), 93 . On Harman’s synthesis of arguments against subjectivism, see Gilbert Harman, The Nature of Morality . An Introduction to Ethics (n .6), 92) . According to Harman, “[b]efore any conventions were established, there would be no such thing as right and wrong; it would not make sense to judge what people morally ought not to do . But once a group of people developed conventional patterns of action in order to avoid conflicts with each other, their actions could be judged with reference to those conventions . People who remained outside the relevant group and still in a state of nature, could, however, not be so judged .” (Ibid . 110) . Gilbert Harman, ‘Justice and Moral Bargaining’, in Explaining Value and Other Essays in Moral Philosophy (Oxford: Oxford University Press, 2000), 58–76, at 68 . See also Gilbert Harman, ‘Moral Relativism Defended’ (n . 82), 3–19, at 12 . Gilbert Harman, ‘Relativistic Ethics: Morality as Politics’, Midwest Studies in Philosophy, 3, 109– 121, at 117 . Comp . David Gauthier, Morals by Agreement (Oxford: Oxford University Press, 1986) . Gilbert Harman, ‘Précis of Moral Relativism and Moral Objectivity: Précis of Part One . Moral Relativism and Moral Objectivity by Gilbert Harman; Judith Jarvis Thomson . Review by: Gilbert Harman’, Philosophy and Phenomenological Research, 58, 1, 1998, 161–169, at 164 . Klaus Peter Rippe, Ethischer Relativismus. Seine Grenzen, seine Geltung (Paderborn: Ferdinand Shöningh, 1993), 250 . In this vein, according to Harman, “there is no given moment at which one agrees, since one continues to agree in this sense as long as one continues to have the relevant intentions .” (Gilbert Harman, ‘Moral Relativism Defended’ (n . 69), 19) Arrington has rejected the implicit bargaining theory posited by Harman in the sense that this theory is incompatible with relativism . (See Robert L . Arrington, Rationalism, Realism, and Relativism . Perspectives in Contemporary Moral Epistemology (n . 68), 212) .

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of the duty not to injure others as compared with the duty to help others”99 . In fact, Harman states, “the difference in strictness we attach to these duties is a consequence of the fact that morality represents a compromise between people of different powers and resources . Everyone benefits from a strict duty not to harm others, but only the poor would benefit from an equally strict duty to help others avoid harm .”100 In this way, as held by Shomali, “the moral difference we recognize between harming and not helping can be explained on the assumption that our morality depends on an actual convention among people of different powers and resources . If we were supposed to bargain in a position of equality, we would not come to agree on our present moral principles .”101 In the same way, Harman alludes that conventionality of morals can explain the treatment of animals in most contemporary moral views .102 Accordingly, although Harman claims that self-interest is not the only consideration for the acceptance of moral principles implicitly defined,103 he maintains that self-interest is the main reason for it .104 For, according to Harman, “it is necessary to suppose that, in order to further our interest, we form certain conditional intentions, hoping that others will do the same .”105 Thus, the tacit understanding is an agreement in intentions,106 which is reached “if each of a number of people intends to adhere to some schedule, plan, or set of principles, intending to do this on the understanding that the others similarly intend .”107 Along these lines, as stated by Copp,108 Harman has reached several conspicuous aims . First, he has established a “previously unnoticed distinction between inner and non-inner moral judgments .”109 Second, in so doing, he has not only sub-

99 Gilbert Harman and Judith Jarvis Thomson, Moral Relativism and Moral Objectivity (n . 15), 63 . 100 Ibid . 23–24 . 101 Mohammad A . Shomali, Ethical Relativism . An Analysis of the Foundations of Morality (n . 80), 150 . On the shortcomings of this argument see Robert Coburn, ‘Relativism and the Basis of Morality’, The Philosophical Review, 85, 1, 1976, 87–93 . 102 Gilbert Harman and Judith Jarvis Thomson, Moral Relativism and Moral Objectivity (n . 15), 25–27 . 103 Gilbert Harman, ‘Justice and Moral Bargaining’ (n . 95), 58–76, at 73 . 104 In this way, according to Harman “self-interest is a particularly strong and stable motivation when compared with other motives .” (Gilbert Harman, ‘Moral Relativism Defended’ (n . 82), 3–19, at 8) . 105 Gilbert Harman, ‘Moral Relativism Defended’ (n . 82), 3–19, at 12 . 106 Ibid . 14 . Harman uses the word “intention” in a somewhat extended sense to cover certain dispositions or habits . (See Gilbert Harman, ‘Moral Relativism Defended’ (n . 69), 3–19, at 12) . 107 Gilbert Harman, ‘Moral Relativism Defended’ (n . 82), 3–19, at 3 . 108 See David Copp, ‘Harman on Internalism, Relativism, and Logical Form’ (n . 78), 227–242, at 227 . 109 In Harman’s early writings, these goals have been accompanied by a theory of the logical from of inner judgments . At this moment, Harman posited this theory in order to characterize moral relativism . Indeed, Harman claimed, “[m]y moral relativism is a soberly logical thesis – a thesis about logical form, if you like . Just as the judgment that something is large makes sense only in relation to one or another comparison class, so too, I will argue, the judgment that it is wrong of someone to do something makes sense only in relation to an agreement or understanding .” (Gilbert Harman, ‘Moral Relativism Defended’ (n . 82), 3–19, at 3) Nevertheless, Harman has recently admitted, “it was a mistake for me to have identified moral relativism as a claim about

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stantiated a kind of internalism, but also put forward a version of moral relativism .110 Nevertheless, due to the fact that according to Harman “some moral claims may be true, but they must be relative to the agents to whom they apply and consequently give reasons,”111 Harman’s approach cannot explain a main aspect of our moral experience .112 Indeed, for Harman, it is not a moral but merely an evaluative linguistic use113 that of those claims raised to assess someone who ought not to act according to the type of act defined by an implicit agreement however shared by the speaker,114 since such claims lack the required motivation to the agent .115 In this vein, Harman raises the question according to which, due to the fact that, first, in the criminals’ morality there is no prohibition against harming outsiders, and second, in some other morality there is such a prohibition, “how can it be a sufficient reason for the criminal not to harm his or her victims that this is prohibited by somebody else’s morality? How can its being bad, immoral, or wrong in this other morality not to care about and respect others give the criminal, who does not accept

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logical form, even the logical form of statements by certain moral relativists .” (Gilbert Harman, ‘Moral Relativism is Moral Realism’ (n . 21), 855–863, at 858) . As stated by Shomali, Harman denies universal moral truths except in two cases . First, when universal moral truths are trivial in the sense of being tautologous, and second, when “universal moral truths are about moral frameworks and not within moral frameworks .” (Mohammad A . Shomali, Ethical Relativism . An Analysis of the Foundations of Morality (n . 80), 147) In this sense, concerning this latter case, Harman has raised the following reply “[c]an a moral relativist agree with Stroud that a judgment whose truth value is the same in all moral frameworks has that truth value absolutely and not merely in relation to one or another such framework? Maybe, although that is in some ways like agreeing that ‘The universe is at least as large as’ is true absolutely because true in relation to everything .” (Gilbert Harman, ‘Responses to Critics’, Philosophy and Phenomenological Research, 58, 1, 1998, 207–213, at 209) . Mark Schroeder, ‘Weighting for a Plausible Humean Theory of Reasons’, Noûs, 41, 1, 2007, 110–132, at 113 . David B . Wong, Moral Relativity (n . 68), 25 . Indeed, Harman has realized that his theory “may well conflict with one aspect of our moral beliefs .” (Robert L . Arrington, Rationalism, Realism, and Relativism . Perspectives in Contemporary Moral Epistemology (n . 68), 208) He claimed that it appears that “something is wrong with our ordinary view that we can make moral ‘ought’ judgments about anyone, no matter what their principles are .” (Gilbert Harman, The Nature of Morality . An Introduction to Ethics (n .6), 90) . On this interpretation of Harman’s approach, see Robert L . Arrington, Rationalism, Realism, and Relativism . Perspectives in Contemporary Moral Epistemology (n . 68), 208 . Frick claims that “[f]ür Harman ist es ein sprachlicher Missbrauch, über jemanden zu urteilen, er hätte so nicht handeln sollen, wenn er nicht über die entsprechende moralische Grundeinstellung verfügt .” (Marie-Luisa Frick, Moralischer Relativismus. Antworten und Aporien relativistischen Denkens in Hinblick auf die weltanschauliche Heterogenität einer globalisierten Welt (Wien: Lit Verlag GmbH & Co .KG, 2010), 93) . According to Harman, “[a]s a moral relativist, in judging other people, should you judge them in the light of your own values or in the light of their values? It depends on what you say about them . If you are simply evaluating them, your own values are relevant . If you imply something about their objective moral reasons, then their values may be relevant too .” (Gilbert Harman, ‘Précis of Moral Relativism and Moral Objectivity: Précis of Part One . Moral Relativism and Moral Objectivity by Gilbert Harman; Judith Jarvis Thomson . Review by: Gilbert Harman’ (n . 97), 167) . On the motivation requirement of moral judgments, see Robert L . Arrington, Rationalism, Realism, and Relativism . Perspectives in Contemporary Moral Epistemology (n . 68), 204 .

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that morality, a sufficient reason to do anything? .”116 In a similar way, Harman has stated that in acting as Hitler did, “he shows that he could not have been susceptible to the moral considerations,”117 due to the fact, as stated by Wong, that “we cannot conceive of Hitler as a party to any implicit agreement to which we could be parties .”118 Notwithstanding, as claimed by Blackburn, “I have always been puzzled why anyone should hold that moral judgment is inapplicable to anyone who is bad enough .”119 Furthermore, even though Harman has not explicitly appealed to an indexicalist account for moral terms, it is true that his theory is best understood within that framework .120 The rationale for this reading of his theory lies in the fact that, as stated by Beebe, Harman has claimed that moral statements “only make sense in relation to implicit agreements of intention among speakers and hearers,”121 which means that moral statements are semantically incomplete and depend “upon facts about their occasions of use to fix their designation .”122 In consequence, as we have seen above, Harman’s theory cannot account for inter-communal moral disagreements, due to the fact that it cannot warrant that moral statements do share the necessary content for allowing such disagreements .123 Concordantly, for Harman this kind of disagreements cannot be genuine ones . They are merely apparent, since they arise as a result of the projection of each opponent’s moral framework onto the world, when they use “moral terminology as if the projected morality were the single true morality .”124 But not only that, as explained by Wong,125 the model of morality as implicit agreement defended by Harman loses its explanatory power referring to intra-communal moral disagreements . Indeed, according to Harman’s position, an intra-communal moral disagreement always entails a claim to coherence on the basis of the

116 Gilbert Harman, ‘Is There a Single True Morality?’, in Explaining Value and Other Essays in Moral Philosophy (Oxford: Oxford University Press, 2000), 77–99, at 89 . 117 Gilbert Harman, ‘Moral Relativism Defended’ (n . 69), 3–22, at 7 . 118 David B . Wong, Moral Relativity (n . 68), 24 . Indeed, according to Harman, “[w]hat makes inner judgements about Hitler odd or ‘too weak’ for some of us is not that the acts judged seem too terrible for the words used, but rather that the agent judged seems beyond the pale – in other words, beyond the motivational reach of relevant moral considerations .” (Gilbert Harman, ‘Moral Relativism Defended’ (n . 82), 3–19, at 7) . 119 Simon Blackburn, ‘Moral Relativism and Moral Objectivity by Gilbert Harman; Judith Jarvis Thomson’ (n . 88), 195–198, at 198 . 120 James R . Beebe, ‘Moral Relativism in Context’ (n . 38), 691–724, at 695; Crispin Wright, Saving the Differences: Essays on Themes from Truth and Objectivity (n . 47), 450–451 . 121 James R . Beebe, ‘Moral Relativism in Context’ (n . 38), 691–724, at 696 . 122 Ibid . 696 . 123 On this criticism, see i . a . Crispin Wright, Saving the Differences: Essays on Themes from Truth and Objectivity (n . 47), 450–451 . 124 Gilbert Harman and Judith Jarvis Thomson, Moral Relativism and Moral Objectivity (n . 15), 1996, 34 . Against Harman’s quasi-absolutist position, see Stephen Darwall, ‘Expressivist Relativism? Moral Relativism and Moral Objectivity by Gilbert Harman; Judith Jarvis Thomson’ (n . 86), 183–188, at 186–188; Simon Blackburn, ‘Moral Relativism and Moral Objectivity by Gilbert Harman; Judith Jarvis Thomson’ (n . 88), 195–198, at 198 . 125 David B . Wong, ‘Relativist Explanations of Interpersonal and Group Disagreement’ (n . 28), 414 .

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implicit agreement .126 In this vein, Harman’s view “implies that a person who is a member of a group tied together by the conditional intentions of an implicit agreement will not be able morally to dissent from that group’s morality except on the basis of offering alternative interpretations of the group’s agreement or by disputing what follows from that agreement or by pointing to internal conflict in the agreement .”127 Notwithstanding, “[t]here are disagreements, it might be argued, that seem to scape all these categories .”128 Appealing to the example provided by Harman, consider a society “whose agreement has no aspects that speak against slavery . In this case, even if the facts of the situation were fully appreciated, no incoherence would appear in the basic understanding of the society .”129 In this case, there would not be any moral reason stemming from the community itself to which one could appeal in order to modify the implicit agreement . This is the basis why Harman must accept in relation to this example that “[t]here might nevertheless come a time when there were reasons of a different sort to modify the basic understanding, either because of an external threat from other societies opposed to slavery or because of an internal threat of rebellion by the slaves .”130 Moreover, Harman’s theory can be described as unstable . Indeed, as stated by Shomali, although Harman maintains that morality is relative to implicit agreements, the existence of such agreements is not an unequivocal argument for relativism, due to the fact that “agreements themselves can be relativist or universal in character, depending on whether they are binding on all rational human beings or only on a special group . Therefore, to suppose that morality is relational to, say, agreements does not necessarily mean that morality is relative and not absolute .”131 Additionally, Harman’s explanation gives an unjustified priority to the observer who must define whether the inner judgment raised by the speaker is true or false in relation to an implicit agreement, since such an observer must define the criteria according to which the motivating attitudes can be evaluated as a commonality .132 126 In this manner, according to Harman: “[…] consider a society in which there is a well-established and long-standing tradition of hereditary slavery . Let us suppose that everyone accepts this institution, including the slaves . Everyone treats it as in the nature of things that there should be such slavery . Furthermore, let us suppose that there are also aspects of the basic moral agreement which speak against slavery . That is, these aspects together with certain facts about the situation imply that people should not own slaves and that slaves have no obligation to acquiesce in their condition . In such a case, the moral understanding would be defective, although its defectiveness would somehow be hidden from participants, perhaps by means of a myth that slaves are physically and mentally subhuman in a way that makes appropriate the sort of treatment elsewhere reserved for beasts of burden . If this myth were to be exposed, the members of the society would then be faced with an obvious incoherence in their basic moral agreement and might come eventually to modify their agreement so as to eliminate its acceptance of slavery .” (Gilbert Harman, ‘Moral Relativism Defended’ (n . 82), 3–19, at 15) . 127 David B . Wong, ‘Relativist Explanations of Interpersonal and Group Disagreement’ (n . 28), 414 . 128 Ibid . 414 . 129 Gilbert Harman, ‘Moral Relativism Defended’ (n . 82), 3–19, at 15 . 130 Gilbert Harman, ‘Moral Relativism Defended’ (n . 82), 3–19, at 15 . 131 Mohammad A . Shomali, Ethical Relativism . An Analysis of the Foundations of Morality (n . 80), 164 . 132 In this sense, Wong has pointed out that Harman’s vague formulation of the implicit agreements gives occasion to different ways of interpreting of them . According to Wong, “Harman’s conception of an implicit agreement allows for a number of ways that people bound together by

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As is known, the creation of the regularity criteria involves the risk of smuggling elitist normative notions into the definition of what should be called a commonality .133 Moreover, an unjustified priority to the observer may result in specifying a “subclass of community members whose assessments are imbued with communal authority and so have the status of official or expert assessments .”134 But even more importantly, in order to maintain that implicit agreements are the only source of morality, Harman has stripped the term “agreement” of all its normative meaning . As a matter of fact, accepting the normative meaning of agreements would lead Harman’s justification to a contradiction not only because of its circularity, but also because it would lead one to accept absolutism . On the one hand, although for Harman implicit agreements are the only source of morality, if their normative meaning were accepted, then Harman must respond to questions related to the normative necessary conditions for the agreement . That is, for instance, questions not only related to the motivation for doing what was agreed, but also to the procedures of conclusion, and definition of the agents of the agreement .135 On the other hand, if implicit agreements’ normative meaning were accepted, then due to the fact that if, according to Harman, implicit agreements are the only source of morality and those agreements are the result of a process of bargaining and mutual adjustment, then such a process must always exist as long as morality exist . In this way, the normative necessary conditions for the process of bargaining and mutual adjustment would be in this sense absolute . Harman has claimed that the apparent force of these objections derives “entirely from taking an agreement to be a kind of ritual”136 rather than an agreement in intentions .137 However, claiming that the term “agreement” refers to what one agrees “in the sense to do something”138 implies giving to that term a descriptive meaning referring to the common motivating attitudes concerning to an action .139 In this sense, as stated by Blackburn, according to Harman’s approach, to accept a

133 134 135

136 137 138 139

such an agreement can morally disagree with each other . Terms of these agreements are typically vague, as intentions in general often are, so differences in interpretation of the terms can arise .” (David B . Wong, ‘Relativist Explanations of Interpersonal and Group Disagreement’ (n . 28), 413) . As is well known, this is a main argument used by Brandom against regularism . See Robert Brandom, Making It Explicit. Reasoning, Representing and Discourse Commitment (Cambridge: Harvard University Press, 1998), 41 . Robert Brandom, Making It Explicit . Reasoning, Representing and Discourse Commitment (n . 133), 41 . Gilbert Harman, ‘Moral Relativism Defended’ (n . 82), 3–19, at 13–19 . In this vein, according to Shomali, “I think that every implicit agreement or knowledge or judgment has to be recognizable and even explicable when one starts to reflect on them and consider them consciously . Otherwise there will remain no difference between truth and illusion .” (Mohammad A . Shomali, Ethical Relativism . An Analysis of the Foundations of Morality (n . 80), 152) . Gilbert Harman, ‘Moral Relativism Defended’ (n . 82), 3–19, at 13 . Ibid . 14 . Ibid . 13 . Indeed, according to Harman, “[…] there is an agreement in the relevant sense which each of a number of people has an intention on the assumption that others have the same intention . In this sense of ‘agreement’, there is no single moment at which one agrees, since one continues to agree in this sense as long as one continues to have the relevant intentions . Someone refuses to agree to the extent that he or she does not share these intentions . Those who do not agree are

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moral framework is merely “to have a set of attitudes or dispositions or policies that the framework articulates .”140 Nevertheless, Harman’s conception of morality as convention is based on the cognitivist requirement of an external source of morality,141 which entails the distinction between social, and individual decisions and principles by means of an implicit agreement,142 if such an agreement describes just the coincidence of an individual’s motivating attitudes with those of others, the metaphor of the implicit agreement loses all its explanatory power of the normativity of morality – even if it were understood to be relative . ParT Two: Moral relaTIvIsM

wITh

ConsTraInTs

Although Wong, like Harman, has maintained that relativism provides the best explanation of our moral experience,143 he has stated that Harman’s analysis “does not explain the full measure of objectivity we attribute to morality .”144 Indeed, according to Wong “there are certain aspects of moral experience suggesting that morality possesses an objectivity independent of any implicit agreements made within groups . For one thing, many of us recognize some basic moral duties that would survive a situation in which there were no implicit agreements .”145 As stated by Wong, the recognition of these duties occurs not only in relation to members of our own group, but also in relation to others . In this vein, on the one hand, Wong has claimed that although “in the next Great Depression, the fabric of society unravels into a Hobbesian war of all against all, [m]any of us think we would still have the elementary duty not to kill each other for amusement, even if we know that others had no intention of reciprocating .”146 On the other hand, in contrast to Harman, Wong has held, “many of us do not limit [moral] ought judgments to people we assume to share our moral commitments,”147 due to the fact that, according to Wong’s view, “there is nothing in the logic or meaning of such judgments per se that implies that the people we judge share those conceptions .”148 In this way, it could be an aspect of our moral experience to “criticize people for the agreements they make . Suppose we see another society with rules working to the extreme disadvantage of a majority of the population because

140 141 142 143 144 145 146 147 148

outside the agreement; in extreme cases they are outlaws or enemies .” (Gilbert Harman, ‘Moral Relativism Defended’ (n . 82), 3–19, at 16) . Simon Blackburn, ‘Moral Relativism and Moral Objectivity by Gilbert Harman; Judith Jarvis Thomson’ (n . 88), 195–198, at 197 . On externality requirement, see Robert L . Arrington, Rationalism, Realism, and Relativism . Perspectives in Contemporary Moral Epistemology (n . 68), 204 . Mohammad A . Shomali, Ethical Relativism . An Analysis of the Foundations of Morality (n . 80), 153; Robert L . Arrington, Rationalism, Realism, and Relativism . Perspectives in Contemporary Moral Epistemology (n . 68), 204 . David B . Wong, Moral Relativity (n . 68), 1 . See Robert L . Arrington, Rationalism, Realism, and Relativism . Perspectives in Contemporary Moral Epistemology (n . 68), 231 . David B . Wong, Moral Relativity (n . 68), 24 . Ibid . 24 . Ibid . 24 . David B . Wong, Natural Moralities (n . 24), 74 . Ibid . 74 .

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a powerful elite was able to impose that agreement on them . We can say that the elite ought not to have taken advantage of the weaker position of others . Harman can reply that an agreement is subject to criticism on the ground of coherence, a requirement that includes the avoidance of arbitrary distinctions . Perhaps the elite have rules of fair dealing among themselves, and it is possible to criticize as arbitrary the limited application of these rules . There is no guarantee, however, that we will always find rules of fair dealing, even among an elite, and it is not necessary for the intelligibility or correctness of our criticism of an agreement that we find within it such rules .”149 In order to explain the objective aspect of our moral experience,150 Wong has based his position, in contrast to Harman, on the universal constraints on what an adequate morality must be like .151 These constraints are the result of certain determinate features of human nature along with the interpersonal and intrapersonal functions that an adequate morality must fulfill .152 According to the functional conception of morality defended by Wong, an adequate morality must promote and sustain social cooperation as well as individual flourishing .153 Wong’s theory is premised on a methodological naturalistic approach through which he aims to provide an account of morality that, on the one hand, is marked not by a commitment to a purely physicalistic ontology which bears the reduction of moral properties to natural properties,154 and on the other hand, explains moral evaluation through evaluative terms that are not irreducibly moral though still evaluative and normative in character .155 According to his words, Wong’s strategy “is to seek an explanation of morality in terms of standards and reasons as these relate to human needs, desires, and purposes,”156 by means of “a commitment to integrate the understanding of morality with the most relevant empirical theories about human beings and society, such as evolutionary theory and developmental psychology .”157 In this way, his theory does not rely “on a priori moral truths taken as self-evident and foundational or as derived purely from logical or conceptual analysis”158 but, by contrast, his theory “seeks to show how moral norms and reasons play an intelligible role in human life; how they serve goals that a scientific understanding of human beings can justifiably attribute to them .”159 Based on his methodological naturalistic approach, Wong holds that human beings seek, given their nature and potentialities, the satisfaction of their physical needs, the goods of intimacy, sociability, and social status and approval, perhaps the 149 David B . Wong, Moral Relativity (n . 68), 25 . 150 Wong has identified as “the main difficulty in explaining moral experience: reconciling the features of experience suggesting that morality is objective with other features suggesting that it is subjective .” (Ibid . 1) . 151 Mohammad A . Shomali, Ethical Relativism . An Analysis of the Foundations of Morality (n . 80), 188 . 152 David B . Wong, Natural Moralities (n . 24), 44 . 153 Ibid . 39–40, 69 . 154 Ibid . 35 . 155 Ibid . 36 . 156 Ibid . 36 . 157 Ibid . XIV . 158 Ibid . 36 . 159 Ibid . 47 .

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opportunity to discharge aggressive energy and knowledge160 in such a way that although morality is not determined by these deep human propensities, if it is to serve an effective guide to action, it must be limited by these propensities .161 Due to the fact that, “[i]n identifying positive goods that human beings are to seek, [morality] cannot identify something human beings have no propensity to seek .”162 Premised on the notion of human nature and its propensities, Wong has put forward, in contrast to Harman, an externalist position of moral motivation .163 According to this position, human nature and its propensities have a necessary general connection with moral reasons in two directions . On the one hand, human nature and its propensities shape what human beings are capable of being motivated by . In this way, “what we have moral reason to do is, in an important sense, dependent on what human beings are generally capable of being motivated to do . We cannot be morally required to be what has no relation to what human beings are or what they could be .”164 On the other hand, moral reasons channel propensities rooted in human nature, due to the fact that “[m]oral reasons would not serve their function as practical reasons unless some preexisting human propensities were not susceptible to shaping by them .”165 As a result of his methodological naturalistic approach, Wong maintains also that “[h]uman nature is significantly plastic but at the same time determinate enough so as to make for better and worse ways of regulating cooperative activity . It contains very strong tendencies to prefer the satisfaction of self-interests when in conflict with interests of others, at least when self-interests are of roughly equal importance to those of the others .”166 In this way, according to Wong, although self-interest is not the only human motivation, it is “a very strong one that constraints the form that can be taken by successful cooperative activity .”167 Thus, even though the forms of reciprocity vary widely,168 the constraints that are imposed by human nature explains why “some form of reciprocity is a norm for all cultures we know, where reciprocity is conceived as a fitting and proportional return of good for good .”169 According to Wong’s position, this argument for the importance of reciprocity is consistent, however, with affirming the existence of genuinely altruistic interest in human nature, that is to say the existence “of direct interests in the welfare of others that are not instrumentally derived from interests in the self .”170 That

160 161 162 163

164 165 166 167 168 169 170

Ibid . 44 . Ibid . 44 . Ibid . 44 . As is known, on the problem of moral motivation, Wong has defended an internalist position in his work from 1984 . (See, David B . Wong, ‘On Moral Realism without Foundations’, Southern Journal of Philosophy, supp . vol . 24, 1986, 95–114; David B . Wong, Moral Relativity (n . 68), 63–67) . David B . Wong, Natural Moralities (n . 24), 196 . Ibid . 196 . Ibid . 47 . Ibid . 47 . Ibid . 47, note 41 . Ibid . 47 . Ibid . 47 .

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is why, in accordance with Wong’s theory, “the interpersonal function of morality necessitates a balancing of self- and other-concern in its various forms .”171 Wong points out that his theory is functionalist in the way David Hume’s account is .172 According to Wong, this amounts to saying that morality arises from “conventions people make with each other in the course of their life together”173 in order to promote the mutual satisfaction of interests .174 Concordantly, Wong maintains that his methodological naturalistic approach explains how “[a]longside their instincts for self-preservation, human beings developed capacities for sympathy and other capacities to feel and act in ways conducive to social cooperation because these capacities were also fitness enhancing . At the same time, if the human capacity for self-guidance through culture developed about the same time as these innate characteristics, human beings developed practices of social cooperation . Such practices need not have grown out of any sophisticated or self-conscious reflection .”175 Human beings, Wong’s explanation goes, “invent moral properties in the course of structuring their cooperative life . Such properties do not exist independently in the way that folk theory and philosophical realists conceive of the physical structure of the world to exist independently – as existing whether or not human beings think to represent that structure in concepts and words .”176 Wong warns, however, that his naturalistic account not only explains the interpersonal function of morality in terms of helping make possible beneficial social cooperation,177 but also elucidates the intrapersonal function that morality performs . Indeed, on the one hand, morality regulates “cooperation, conflicts of interest, and the division of labor,”178 and it specifies “the conditions under which some people have authority over others with respect to cooperative activities .”179 On the other hand, morality also takes “the form of character ideals and conceptions of good life specifying what is worthwhile for the individual to become and to pursue .”180 According to Wong, this last function of morality “helps human beings to structure their lives together in a larger sense, that is, not just for the sake of coordinating with each other but also for the sake of coordination within themselves . Because the natural drives of human beings are diffuse and general, and because they are diverse and are liable to come into conflict with each other, there is a need for shaping of these drives, and much of it comes from people telling each other just how these drives should be shaped and how internal conflicts should be regulated and resolved .”181 Due to the fact that, according to Wong, “it seems impossible to reflect on what kind of morality might adequately fulfill the interpersonal function

171 172 173 174 175 176 177 178 179 180 181

Ibid . 47 . Ibid . 105 . Ibid . 105 . Ibid . 105 . Ibid . 41 . David B . Wong, ‘Relativist Explanations of Interpersonal and Group Disagreement’ (n . 28), 411–430, at 413 . David B . Wong, Natural Moralities (n . 24), 43 . Ibid . 37 . Ibid . 37 . Ibid . 40 . Ibid . 43 .

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without consideration of intrapersonal ideals,”182 this function and the intrapersonal one are necessarily related .183 Notwithstanding, Wong contends that the universal constraints – or what is the same, the universally valid criteria for the recognition of an adequate morality,184 as explained, determinate features of human nature along with the interpersonal and intrapersonal functions of morality – do not determine “a morality with content sufficiently robust and determinate .”185 The universally valid criteria merely yield “a skeleton of a morality, insufficiently rich in content to be action guiding .”186 As a result, “some criteria for adequate moralities will be local to a given society . They neither follow from nor are ruled out by the universally valid criteria . They are the source of moral relativity .”187 In this vein, according to Wong’s account, the plurality of adequate moralities is a result of the different ways of satisfying interpersonal and intrapersonal morality functions .188 Thus, each adequate morality, as held by Wong, “places additional conditions on what social cooperation and a worthwhile life must be like, in accordance with the distinctive priorities among values it has set .”189 Thus, although different types of moralities share important values, they “are typically distinguished by their differing priorities and emphases on these shared values .”190 Along these lines, Wong’s local191 account for moral relativism192 is based on moral value pluralism, that is, “the doctrine that there exists a plurality of basic moral values, where such values are not derivable from or reducible to other moral

182 183 184 185 186 187 188 189 190 191 192

Ibid . 43 . Ibid . 43 . See David B . Wong, Natural Moralities (n . 24), XIII, XIV, 65 . David B . Wong, Natural Moralities (n . 24), XIII . Ibid .81 . Ibid . XIII . Ibid . 72 . Ibid . 72 . Ibid . XIV . On the distinction between global and local forms of relativism, see note 27 . Although Wong has stated that he is “among the handful of philosophers who are willing to be associated with relativism,” he has made clear that his position “constitutes an alternative to universalism and to relativism as these views are usually defined .” He has held that his “alternative agrees with one implication of relativism as it is usually defined: that there is no single true morality . However, it recognizes significant limits on what can count as a true morality . There is a plurality of true moralities, but that plurality does not include all moralities . This theory occupies the territory between universalism – the view that there is a single true morality – and the easy target typically defined as relativism: the view that any morality is as good as any other .” (David B . Wong, Natural Moralities (n . 24), XII) Consistently, Wong has maintained that “[d]ifferences between moralities do not typically consist in radical difference: one set of values confronting another totally different set . It is often thought, in contrast to the view defended here, that relativism depends on the assertion of radical difference between moralities . The relativist reasoning, supposedly, is that judging other moralities on the basis of one’s own is inappropriate . There is no point in comparing moralities that are radically different . Such an account raises awkward questions . If the differences between moralities are so stark and complete, it is unclear why we should call the other code a moral code .” (Ibid . 10) .

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values .”193 Due to the fact that, as held by Wong based on Berlin,194 “we can envision no utopia in which the maximal realizations of these different sorts of value are made compatible with each other,”195 if a morality “prescribes a set of values to be realized or observed in human life, it must specify priorities to govern cases of conflict between these values .”196 In this way, premised on the most plausible construal of charity197 that allows one to be aware of the fact that “the body of our own beliefs, desires, and values is internally diverse and contains elements existing in various relations of tension with one another,”198 we can recognize that severe conflicts between important values can be resolved in different but reasonable ways .199 Thus, “coming to understand others is coming to understand that one shares in common important beliefs, desires, and values, but that they can resolve the tensions among these elements in ways different from the ways we have resolved them .”200 In a manner that “any prior convictions we might have had about the superiority of our own judgments get shaken .”201 Wong has termed this phenomenon “moral ambivalence”, that is, a complex reaction202 of “coming to understand and appreciate the other side’s viewpoint to the extent that our sense to the unique rightness of our own judgments gets destabilized .”203 According to Wong, this kind of moral disagreement is the most discomforting, due to the fact that this “is not simply one in which both sides run out of reasons that are persuasive to the other but is also a disagreement in which coming to the other side brings along an appreciation of its reasons .”204 Thus, Wong’s defense for a moral relativism allows one to grasp that “[u]nderstanding others is therefore compatible with understanding them to be different from us in significant ways . Understanding other moral codes and the ways of life in which they are embedded is not to see them as alien and incomprehensible but in some respects familiar and in other respects constituting a challenge to our own codes and ways of life . Since we ourselves are complex and ambivalent moral beings, we are able to see that at least some other codes and ways of life may just as reasonably be adopted by decent and informed human beings as our own .”205 According to Wong, the described phenomenon of moral ambivalence, in conjunction with a naturalistic conception of morality, “supports the conclusion that 193 Ibid . 6 . 194 Isaiah Berlin, ‘Two Concepts of Liberty’, in Liberty: Incorporating Four Essays on Liberty, ed . Henry Hardy (Oxford: Oxford University Press, 2002), 212–217 . 195 David B . Wong, Natural Moralities (n . 24), 7 . 196 Ibid . 7 . 197 Ibid . 6 . 198 Ibid . 6 . 199 Ibid . XIV . 200 Ibid . 6 . 201 Ibid . 5 . 202 Ibid . 5 . 203 Ibid . 5 . In this vein, it is possible to affirm that “moral ambivalence” refers not only to a form of faultless disagreement, but also to a subjective assessment of judgment destabilization caused by understanding the reasonableness of the justification for the position of the one with whom we are in conflict . 204 David B . Wong, Natural Moralities (n . 24), 5 . 205 Ibid . 20 .

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there is no single true morality .”206 This basis allows Wong to provide an argument for tolerance207 as well as an explanation of moral disagreements that places them on the practical level .208 First, Wong has maintained that the mere fact that there is more than one true morality – or what is the same, a plurality of adequate moralities – is not sufficient to lay the foundations for a moral requirement to be tolerant .209 As a consequence thereof, Wong has put forward the introduction of an additional normative premise which follows from Kant’s formula of humanity as an end in itself .210 According to this premise, “one should not interfere with the ends of others unless one can justify the interference to be acceptable to them were they fully rational and informed of all relevant circumstances .”211 As stated by Wong, to do otherwise is to fail to treat others “with the respect due rational beings .”212 Wong has called this consequence of Kant’s formula the “justification principle .”213 In consonance with this principle, if there is a plurality of adequate moralities “two persons A and B can have conflicting moralities that are equally true and that therefore may be equally justified . Suppose B is required or permitted by his morality to bring about a state of affairs X . A can bring about some other state of affairs Y that precludes the coming about of X . It would be a violation of the justification principle for A to bring about Y, because 206 Ibid . XIV . 207 See David B . Wong, Moral Relativity (n . 68), 179–190 . 208 David B . Wong, Natural Moralities (n . 24), XIII .Wong has stated that for the absolutist “[t]he most obvious way to explain diversity in moral belief among different groups or societies is to claim that the difference is caused by an error in perception or reasoning made by at least one group, or by the group being ignorant of some crucial fact .” (David B . Wong, Moral Relativity (n . 68), 117) By contrast, a “[r]elativist may admit that there are errors or ignorance to be found in many of these disagreements, but would claim that the error or ignorance are not the fundamental cause of at least some of them . Instead, they would claim that some of the disagreements would occur simply because the two sides have opposing interests and desires that lead them to adopt opposing moral positions .” (David B . Wong, Moral Relativity (n . 68), 146) In this way, according to Wong, “[t]he advantage of construing moralities as social constructions is that it explains why moral disagreement seems very different from disagreements over the physical structure of the world . There are moral disagreements that do not seem to turn on disagreements over non-moral factual matters, such as the moral permissibility of abortion or conflicts over the relative priority of conflicting and basic values such as individual rights, autonomy, social utility, community, and the duties of special relationships with particular others . These disagreements do not seem to arise from lack of attention or faulty reasoning to the evidence at hand . The construal of moralities as social constructions is the favored explanation of why at least some important moral disagreements are irresolvable in this way .” (David B . Wong, ‘Relativist Explanations of Interpersonal and Group Disagreement’ (n . 28), 411–430, at 413–414) . 209 See Catriona McKinnon, Toleration: A Critical Introduction (New York: Routledge, 2006), 40 . According to Wong, “[b]ut the relativist arguments for tolerance that non-philosophers give are typically vague and incomplete . They are subject to multiple and conflicting interpretations . As Williams and Harrison interpret them, they proceed from the premise of moral relativism directly to tolerance . They have no premise that expresses a particular ethical viewpoint, and thus are, in Harrison’s terms, attempts to derive a participant’s conclusions from an observer’s premises .” (David B . Wong, Moral Relativity (n . 68), 180) . 210 Ibid . 180 . 211 Ibid . 181 . 212 Ibid . 181 . 213 Ibid . 181 .

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she could not justify to B the preventing of X . We thus have an argument for A tolerating B’s action according to his moral beliefs .”214 Furthermore, Wong has accepted that the force of the justification principle depends upon the content of a particular moral system .215 In consequence, in the case at stake, if A’s moral system does not contain such a principle, then A will not be moved by it at all .216 But, Wong’s explanation continues, suppose that A’s moral system contains such a principle, “[t]hen she must consider whether there is some other principle in it that requires that she prevent B from bringing about X . Assuming that A’s moral system is deontological, the existence of such a principle results in a conflict of prima facie duties . A would have to weigh the justification principle against the other principle .”217 Second, as stated by Wong, “[m]oral statements are a kind of second-order normative language indicating what actions are required by the norms of an adequate moral system .”218 Given that the universal and local criteria of an adequate moral system are the truth conditions of moral statements and that local criteria differ, so will the truth conditions .219 In this vein, “[w]hether or not it is true that a person ought to do a certain thing depends on whether the act is permitted or disallowed by the rules of the speaker’s adequate moral system .”220 Thus, according to Wong, in a situation where “[a] speaker B may say of A that he ought to do X under condition C . A speaker D may say of A that he ought not to do X under the same condition . If ‘adequate moral system’ has different extensions in the idiolects of B and D, both statements may be true, and there is no conflict between the statements generated by their truth conditions .”221 Indeed, according to Wong, “[t]wo speakers may mean something different on the level of truth conditions by ‘adequate moral system,’ and therefore each may be saying something true even when one is prescribing that an action X be done and the other is prescribing that it not be done . Their judgments conflict on the practical level because one cannot conform to both judgments at the same time .”222 Wong holds, consequently that “moral statements conflicting on the prescriptive and pragmatic level can be consistent on the level of truth .”223 According to Wong, “[t]his stems from the fact that moral systems are all action-guiding systems and there is no a priori reason to think that an agent would fall within the scope of just one adequate moral system or just one set of them that constitutes one extension of the term . Allowing for such pragmatic conflict where there is no conflict on the level of truth conditions is a way of explaining how there can be the kind of moral disagreement that allows no resolution, by reference to facts of any kind .”224 214 215 216 217 218 219 220 221 222 223 224

Ibid . 181 . Ibid . 182 . Ibid . 182 . Ibid . 182 . David B . Wong, Natural Moralities (n . 24), XIII . Ibid . XIII . Robert L . Arrington, Rationalism, Realism, and Relativism . Perspectives in Contemporary Moral Epistemology (n . 68), 227 . David B . Wong, Moral Relativity (n . 68), 45 . David B . Wong, Natural Moralities (n . 24), XIII . Ibid . XIII . David B . Wong, Moral Relativity (n . 68), 45 .

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Notwithstanding, due to the fact that the possibility of disagreement supposes a commonality of meaning on what one disagrees,225 against Wong’s position, it might be asked, how people with different moralities can be talking about the same thing . The answer to this question leads Wong to accept that non-cognitivists’ analyses of moral concepts must be partly correct, that is, “[i]n order for moral concepts to have somewhat different sets for their truthful application, there must be preservation of meaning along some other dimension than truth conditions . The other dimension is illocutionary and pragmatic .”226 Nevertheless, Wong is aware that his theory must provide an account for the ordinary moral discourse, in which “people typically construe their disagreement with one another not just as pragmatic conflict but also as disagreement over when moral terms are truly applied .”227 First, Wong maintains that such an error is caused by the ancient and frequently unarticulated assumption about morality that it is about some “irreducibly prescriptive part of the fabric of the world, or that we have certain natural ends in life that determine what is [the] right action for us .”228 Such an assumption creates the “widespread if not unanimous expectation that all or virtually all moral problems have a uniquely true solution .”229 Second, according to Wong, “[t]he similarities and overlapping, together with pragmatic similarities of use, obscure the differences and make it easy to conflate purely pragmatic disagreement with disagreement over the correct application of moral terms .”230 Along these lines, a necessary condition for Wong’s account for moral relativism is the existence of moral communities,231 or what is the same, that there are groups whose members “substantially agree on the content of moral reasons and norms .”232 Elsewhere, Wong has somehow linked this concept with the concept of culture . Indeed, he has stated, “[s]ometimes ‘cultures’ are thought to be rather simple affairs in which people share the same values and practices and ways of making meaning of their worlds . I want to suggest that a culture can to some extent consist of commonly recognized values, but that these values provide a counterpoint to one another . The identity of a culture is in part defined by which values are the most salient and which ones serve as counterpoints to others .”233 By reason of this necessary condition for Wong’s account, it could be raised against it that it cannot provide any plausible explanation of the disagreement pervasiveness within groups that largely agree on morality . Notwithstanding, Wong has argued, “[a] shared culture just is this dynamic configuration of values, but the configuration typically leaves a significant degree of openness and ambiguity in how conflicts between values are to be resolved . This is one important reason why moral 225 See note 33 . 226 David B . Wong, Natural Moralities (n . 24), 72 . At this point, it is to wonder, whether Wong brings nearer to his position Kölbel’s theory of non-indexical contextualism . On Kölbel’s theory, see Introduction . 227 David B . Wong, Natural Moralities (n . 24), 77 . 228 Ibid . 77 . 229 Ibid . 77 . 230 Ibid . 78 . 231 David B . Wong, ‘Relativist Explanations of Interpersonal and Group Disagreement’ (n . 28), 411–430, at 414 . 232 Ibid . 414 . 233 David B . Wong, Natural Moralities (n . 24), 22–23 .

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ambivalence exists not only across different moral traditions but also within a single moral tradition . Values correspond to compelling human needs and derive much of their force from the satisfaction of those needs . But because human beings are many-sided and not necessarily harmonious wholes with respect to their needs, there will always be uncertainty and fluctuation as to how the needs and corresponding values are to be balanced against each other .”234 Concordantly, Wong points out that given the disagreement pervasiveness within all kinds of moral traditions that have any degree of complexity, “a particular sort of ethical value becomes especially important for the stability and integrity of these traditions and societies .”235 Wong has termed this value “accommodation,” that is the commitment “to supporting non-coercive and constructive relations with others although they have ethical beliefs that conflict with one’s own .”236 In this manner, Wong has accomplished several noteworthy goals . On the one hand, he has laid the foundations for an account for moral relativism, which allows the distinction between customary and adequate moral systems . Based on this distinction and on the requirements followed from determinate features of human nature along with the interpersonal and intrapersonal functions that an adequate morality must fulfill, Wong has put forward a robust theoretical framework not only for the assessment of the customary moral systems, but also for the comprehension of the restrictions of this kind of assessment . On the other hand, in so doing, Wong has not only developed an argument for tolerance based on the Kantian legacy, but also put forward the commitment to the value of accommodation and an explanation of moral disagreements that places them on the practical level . Nevertheless, a consistent reading of Wong’s account for moral relativism reveals the epistemic restrictions that the perspective, upon which this account has been built, involves . In this line, Wong’s account can be considered an attempt to explain our moral experience from an observer’s premises . First, the Humean conventionalism defended by the Wong’s account for moral relativism undermines the commitment to one’s own morality .237 In fact, if the plurality of adequate moralities is a result of the different ways of satisfying interpersonal and intrapersonal morality functions,238 there is no justification to prefer one’s own moral standards over those of others . Wong’s theory has made us sink into the abysmal depth of a sea of possibilities without any hope of finding an acceptable justification to choose one of them . Against this criticism, Wong has replied that it is not just conventions, which determine our commitment to our own morality .239 Premised on Taylor’s contributions,240 Wong has argued that, what en234 235 236 237

Ibid . 23 . Ibid . 64 . Ibid . 64 . That could be seen as a general effect of being conscious about alternative moralities . As stated by Williams, “[i]f we become conscious of ethical variation and of the kinds of explanation it may receive, it is incredible that this consciousness should just leave everything where it was and not affect our ethical thought itself .” (Bernard Williams, ‘Reflection and Relativism’ (n . 24), 156–173, at 159) . 238 David B . Wong, Natural Moralities (n . 24), 72 . 239 Ibid . 107 . 240 Charles Taylor, ‘Foucault on Freedom and Truth’, in Philosophy and the Human Sciences Philosophical Papers, vol . 2 (Cambridge: Cambridge University Press, 1985), 181–182 .

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sures our commitment to our own morality and prevents the recognition of the contingency of our moral identities from leading us to undermine them, lies in the weight of our history that builds our identity .241 But, although historical arguments can explain how our own morality has been shaped, they cannot justify why we ought to follow its norms . In fact, as history has shown, highly efficient customary normative systems can be considered immoral . Furthermore, Wong’s theory attempts to defend two opposite commitments: on the one hand, a commitment to a plurality of adequate moralities, according to which none of them has epistemic superiority over the other,242 and on the other hand, a commitment to the justifiability of our assessment of others who do not belong to our own moral practice – i . e . appraiser’s perspective243 . For, as we have seen above, against Harman, Wong has argued that there is nothing in the logic or meaning of moral judgments per se that prevents us from using them in order to assess those people who do not share our moral commitments .244 Due to the fact that this latter commitment is based in its turn on the commitment to one’s own morality,245 if the commitment to one’s own morality has been undermined, then so has the rationale for the assessment of others’ moralities, and in consequence, this aspect of our moral experience remains unjustified . As argued by Arrington, if it is the case “that other moral systems can be just as valid as our own, what right have we to [evaluate them]? Both moral and epistemological questions can be raised with respect to our doing so . Are we not imposing our moral system on others, thereby raising question of fairness and tolerance – questions that arise within our own moral system? And are we not assuming the superiority of our moral system when in fact our system may have no epistemological advantage over the other system? How, in light of the non-objective dimensions Wong attributes to morality, can we defend the use of our system to criticize those who adopt a different system?”246 Second, as we have seen above, a necessary condition for Wong’s account for moral relativism is the existence of moral communities .247 As is known, Wong has somehow linked this concept with the concept of culture and he has suggested that “[t]he identity of a culture is in part defined by which values are the most salient and which ones serve as counterpoints to others .”248 In so doing, Wong has used the term “value” as a descriptive criterion in order to identify the possible objects to 241 David B . Wong, Natural Moralities (n . 24), 108 . 242 Ibid . 72 . 243 On the distinction between agent’s and appraiser’s perspectives see David Lyons, ‘Ethical Relativism and the Problem of Incoherence’, Ethics, vol . 86, no . 2, January, 1976, 107–121 . 244 David B . Wong, Natural Moralities (n . 24), 74 . 245 In this way, according to Wong, his “analyses explain the fact that we criticize as false the morality of another group of language users, even when that morality is a coherent system of moral beliefs very different from ours . When we criticize that morality, we take the group’s recommendations for action, state them in our moral language, and evaluate them as false according to our standards for the adequacy of moral systems .” (David B . Wong, Moral Relativity (n . 68), 73) . 246 Robert L . Arrington, Rationalism, Realism, and Relativism . Perspectives in Contemporary Moral Epistemology (n . 68), 237 . 247 David B . Wong, ‘Relativist Explanations of Interpersonal and Group Disagreement’ (n . 28), 411–430, at 414 . 248 David B . Wong, Natural Moralities (n . 24), 23 .

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which the term “moral communities” applies . Notwithstanding, as stated by Williams, if a community “is regarded as a cultural unit, identified in part through its values, then many of the functionalist propositions will cease to be empirical propositions and become bare tautologies: it is tediously a necessary conditions of the survival of a group-with-certain-values that the group should retain those values .”249 In consequence, Wong’s account cannot give us any explanation about how, from the participant’s point of view, the descriptive criterion in order to identify a moral community bears a moral obligation for the individual in order to be a member . Third, even more importantly, Wong’s account for moral relativism can be considered untenable . On the one hand, if the features of human nature and the interpersonal as well as intrapersonal functions that an adequate morality must fulfill are interpreted as norms which prescribe how all human beings and communities should behave,250 then Wong would put forward at the end of the day a form of moral absolutism which would accept the existence of a plurality of moral subsystems . Even though it is true that, against this criticism, Wong has replied that the universally valid criteria are “insufficiently rich in content to be action guiding,”251 it cannot be denied that a normative reading of these criteria would give them the status of absolute moral principles .252 Notwithstanding, if the normative interpretation of the universal constraints were accepted, such an interpretation would still fall short in light of the requirements of moral justifiability . Indeed, we acknowledge morality as having authority over us, but we do not do that and have no reason to253 because of its efficacy at promoting and sustaining social cooperation and individual flourishing . In fact, as history has shown, highly efficient normative systems that promote these ends can however be immoral .254 Nevertheless, on the other hand, a descriptive interpretation of the universal constraints – that is, only as conditions for the definition of the extension of the term “adequate morality” – would make them nugatory from the participant’s point of view, since such an interpretation would be incoherent with their use as a skeleton of our own morality, and as criteria for the assessment of our own customary moral system . Fourth, as if we were spectators of a M . C . Escher’s lithograph, we have witnessed a distortion caused by the perspective, upon which Wong’s account has been built . Indeed, against global forms of relativism, which posit absolute incomparability between moral systems,255 Wong has developed his theory on the basis of a purely formal notion of what morality is .256 According to him, this notion allows one “to think of a system of norms as a morality, even when it is completely different from one’s own morality .”257 Given this kind of definition, it is possible to de249 Bernard Williams, ‘Interlude: Relativism’, in Morality: An Introduction to Ethics (New York: Harper & Row, Publishers Inc ., 1972), 20–26, at 21 . 250 Robert L . Arrington, Rationalism, Realism, and Relativism . Perspectives in Contemporary Moral Epistemology (n . 68), 240 . 251 David B . Wong, Natural Moralities (n . 24), 81 . 252 See Robert L . Arrington, Rationalism, Realism, and Relativism . Perspectives in Contemporary Moral Epistemology (n . 68), 239–241 . 253 Ibid . 243 . 254 Ibid . 243 . 255 David B . Wong, Natural Moralities (n . 24), 10–13 . 256 Ibid . 10–11 . 257 Ibid . 10 .

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termine certain systems of norms subscribed by groups whose members substantially agree on them258 as the class of possible objects to which the term applies259 – such as “Greek morality,” “Emberá People’s morality,” “Inuit’s morality” and so on . Notwithstanding, as stated by Arrington, “[s]uch a way of talking is foremost to be found among philosophers and social scientists, particularly anthropologists, and it must be wondered whether ‘morality’ as used this way is not a term of art invented by the specialists in these disciplines .”260 This specialist’s sense of “morality,” that corresponds to what Hare has called the inverted-commas use of the term,261 aims to be value-neutral .262 ConCludIng reMarKs Claiming the propositional content of the components of a moral code while maintaining that the truth of moral statements is a relational property begs the question, since a consistent application of the relativist core tenet would imply that the components of a moral code cannot be true but only in relation to another moral code .263 That is why, it is to claim that Harman’s and Wong’s theories of moral relativism endorse a restricted form of cognitivism . In fact, although they can give us an account of moral statements – or inner judgments in Harman’s terms – as truthvalue bearers, in order to avoid begging the question, these theories must be compatible with a non-cognitivist conception of the truth conditions of those statements – i . e . implicit agreements and conventions .264 As we have seen, Harman’s defense of moral relativism has been confined to a certain kind of judgments . According to his position, although other kinds of judgments can be used to assess an agent, only inner judgments shape morality .265 According to Harman’s position, inner judgments have two important characteristics . On the one hand, they “imply that the agent has reasons to do something .”266 On the other hand, when they are raised by a speaker in some sense he endorses the

258 David B . Wong, ‘Relativist Explanations of Interpersonal and Group Disagreement’ (n . 28), 411–430, at 414 . 259 David B . Wong, Natural Moralities (n . 24), 11 . 260 Robert L . Arrington, Rationalism, Realism, and Relativism . Perspectives in Contemporary Moral Epistemology (n . 68), 242 . 261 Ibid . 242 . According to Hare, “[i]t is characteristic of this use of ‘good’ that in expanding it we often want to put the word ‘good’ inside inverted commas; hence the name . We are, in this use, not making a value-judgment ourselves, but alluding to the value-judgments of other people . This type of use is extremely important for the logic of moral judgments, in which it has caused some confusion .” (See Richard Marvyn Hare, The Language of Morals (Oxford (UK): Oxford University Press, 1952), 124) . 262 Robert L . Arrington, Rationalism, Realism, and Relativism . Perspectives in Contemporary Moral Epistemology (n . 68), 242 . 263 Paul Boghossian, ‘What is Relativism?’ (n .10), 13–37, at 23–24 . 264 I would like to thank Professor Jan-Reinard Sieckmann for his help in thinking about this issue . 265 Mohammad A . Shomali, Ethical Relativism . An Analysis of the Foundations of Morality (n . 80), 130 . 266 Gilbert Harman, ‘Moral Relativism Defended’ (n . 82), 3–19, at 8 .

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agent’s reasons and “supposes that the audience also endorses them .”267 Accordingly, inner judgments presuppose an implicit agreement about motivational attitudes . In consequence, inner judgments are “true or false only in relation to and with reference to one or another such agreement or understanding .”268 Therefore, according to Harman, morality is conventional, that is, it “arises when people reach an implicit agreement or come to a tacit understanding about their relation with one another .”269 Such an agreement, which is the only source of morality,270 is normally arrived at “by mutual adjustment of different people’s behaviour, without conscious awareness .”271 Correspondingly, in this conception of morality, which Harman calls “morality as politics, a morality is basically a group affair, depending on moral demands jointly accepted by several people after a certain amount of tacit bargaining and adjustment .”272 Despite these several conspicuous aims, Harman’s approach cannot account for the main aspects of our moral experience . As we have seen, our moral experience seems to possess an objectivity that goes beyond the implicit agreements made within groups . On the one hand, as a matter of fact, some duties are imposed upon us, even if we know that others have no intention of reciprocating .273 On the other hand, we do not limit our moral judgments to people we assume to share our moral commitments .274 Moreover, since Harman’s theory is best understood within an indexicalist framework, it cannot account for inter-communal moral disagreements, due to the fact that it cannot warrant that moral statements do share the necessary content for allowing such disagreements . Furthermore, the model of morality as implicit agreement defended by Harman loses its explanatory power referring to intra-communal moral disagreements,275 due to the fact that according to Harman’s position, an intra-communal moral disagreement always entails a claim to coherence on the basis of the implicit agreement and there are intra-communal moral disagreements that cannot be solved by appealing to the coherence of the implicit agreements . This shortcoming has led Harman to accept the existence of reasons beyond these agreements .276 Additionally, Harman’s explanation gives an unjustified priority to the observer who must define whether the inner judgment raised by the speaker is true or false in relation to an implicit agreement, since such an observer must define the criteria according to which the motivating attitudes can be evaluated as a commonality . But even more importantly, in order to maintain that implicit agreements are the only source of morality, Harman has stripped the term “agreement” of all its normative meaning .

267 268 269 270 271 272 273 274 275 276

Ibid . 8 . Ibid . 8 . Gilbert Harman, ‘Moral Relativism Defended’ (n . 82), 3–19, at 3 . Gilbert Harman, The Nature of Morality . An Introduction to Ethics (n .6), 110 . Gilbert Harman, ‘Justice and Moral Bargaining’ (n . 95), 58–76, at 68 . See also Gilbert Harman, ‘Moral Relativism Defended’ (n . 82), 3–19, at 12 . Gilbert Harman, ‘Relativistic Ethics: Morality as Politics’ (n . 96), 109–121, at 117 . Comp . David Gauthier, Morals by Agreement (Oxford: Oxford University Press, 1986) . David B . Wong, Moral Relativity (n . 68), 24 . David B . Wong, Natural Moralities (n . 24), 74 . David B . Wong, ‘Relativist Explanations of Interpersonal and Group Disagreement’ (n . 28), 414 . Gilbert Harman, ‘Moral Relativism Defended’ (n . 82), 3–19, at 15 .

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On another note, based on a methodological naturalistic approach, Wong’s position explains the objective aspect of our moral experience277 by positing universal constraints on what an adequate morality must be like .278 These constraints are the result of certain determinate features of human nature along with the interpersonal and intrapersonal functions that an adequate morality must fulfill .279 According to the functional conception of morality defended by Wong, an adequate morality must promote and sustain social cooperation as well as individual flourishing .280 Wong contends that these universal constraints do not determine “a morality with content sufficiently robust and determinate .”281 The universally valid criteria merely yield “a skeleton of a morality, insufficiently rich in content to be action guiding .”282 As a result, “some criteria for adequate moralities will be local to a given society . They neither follow from nor are ruled out by the universally valid criteria . They are the source of moral relativity .”283 In this vein, according to Wong’s account, the plurality of adequate moralities is a result of the different ways of satisfying interpersonal and intrapersonal morality functions .284 Thus, each adequate morality, as held by Wong, “places additional conditions on what social cooperation and a worthwhile life must be like, in accordance with the distinctive priorities among values it has set .”285 In this manner, based on the requirements following from determinate features of human nature along with the interpersonal and intrapersonal functions that an adequate morality must fulfill, Wong has put forward a robust theoretical framework not only for the assessment of the customary moral systems, but also for the comprehension of the restrictions of this kind of assessment . However, a consistent reading of Wong’s account of moral relativism reveals the epistemic restrictions that its perspective involves . As alluded to above, Wong’s account of moral relativism undermines the commitment to one’s own morality . In fact, if the plurality of adequate moralities is a result of the different ways of satisfying interpersonal and intrapersonal morality functions,286 there is no justification to prefer one’s own moral standards over those of others, which are also adequate in order to perform these functions . In consequence, there is no justification for using our moral judgments in order to assess those people who do not share them . But even more importantly, Wong’s account of moral relativism can be considered untenable . On the one hand, if the features of human nature and the interpersonal as well as intrapersonal functions that an adequate morality must fulfill are interpreted as norms which prescribe how all hu277 David B . Wong, Moral Relativity (n . 68), 1 . 278 Mohammad A . Shomali, Ethical Relativism . An Analysis of the Foundations of Morality (n . 80), 188 . 279 David B . Wong, Natural Moralities (n . 24), 44 . 280 Ibid . 39–40, 69 . 281 Ibid . XIII . 282 Ibid . 81 . 283 Ibid . XIII . 284 Ibid . 72 . 285 Ibid . 72 . 286 David B . Wong, Natural Moralities (n . 24), 72 .

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man beings and communities should behave,287 then Wong would put forward at the end of the day a form of moral absolutism which would accept the existence of a plurality of moral subsystems . On the other hand, a descriptive interpretation of the universal constraints would make them nugatory from the participant’s point of view, since such an interpretation would be incoherent with their use as a skeleton of our own morality, and as criteria for the assessment of our own customary moral system . But not only that, Wong has developed his theory on the basis of a purely descriptive notion of terms as “morality” or “value”, which constitutes a distortion of our daily normative use of them . As mentioned above, if relativism can be characterized as the theory which defends a relational conception of truth and which takes seriously the premise that for a given domain there can be faultless disagreements within that domain,288 a consistent relativist account must always involve an observer’s perspective . However, it seems unquestionable that morality is a normative practice, and that the moral theory ought to take seriously and try to make sense of our moral practices . In this vein, we cannot attain a suitable understanding289 of morality without taking into account the perspective of those who regard it as a normative body that gives them reason for action .290 Therefore, although Harman and Wong have maintained that relativism provides the best explanation of our moral experience, in a patent manner, the purely descriptive notion of the moral terms that serve as a basis for their theory does not match with our daily normative use of those terms that shapes our moral experience . As stated by Boghossian, while statements such as “female genital cutting is permitted” are indisputably normative, other statements such as “according to the Emberá-Chami People’s morality, female genital cutting is permitted” are mere descriptions of the content of a moral code – or what is the same, a logical remark about the relation between two sets of propositions .291 The loss of the normative content of statements like the first one, when their elliptical form is unraveled, reveals that, from the point of view of a participant in a normative practice like morality, the use of a normative term (i . e . the use of a moral statement in order to justify or to assess one’s own or a third party’s action) implies the adoption as correct of the moral framework, which serves as a basis for the moral statement or, in other words, it involves accepting as true simpliciter (not relational) those principles and rules that lay the foundations of the moral statement . Thus, if our moral experience is shaped by the normative use of moral statements and if it must be the foundation of the moral theory, then the attitude that we assume referring to our own morality speaks against an explanation from outside of it . 287 Robert L . Arrington, Rationalism, Realism, and Relativism . Perspectives in Contemporary Moral Epistemology (n . 68), 240 . 288 Paul Boghossian, ‘What is Relativism?’ (n .10), 13–37, at 36 . 289 As expressed by Dworkin, an interpretation that “proposes the most value for the practice – which shows it in the better light, all things considered .” (See Ronald Dworkin, Law’s Empire (Cambridge: Harvard University Press, 1986), 52–53) . 290 That is, as stated by Arrington “when we use ‘morality’ and ‘moral’ in an ordinary context – in referring, for example, to what is demanded of us by morality, or to violations of morality, or to our moral obligations .” (Robert L . Arrington, Rationalism, Realism, and Relativism . Perspectives in Contemporary Moral Epistemology (n . 68), 242) . 291 Paul Boghossian, ‘What is Relativism?’ (n .10), 13–37, at 24 .

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The

auThors

André Ferreira Leite de Paula Achieved in 2013 the degree of Master of Laws (summa cum laude) at the Goethe University Frankfurt am Main and won the Clifford Chance Prize for the year’s best master thesis . He is Ph . D . candidate at the same university under the supervision of Prof . Dr . Dres . h . c . Ulfrid Neumann and scholarship holder of the German Academic Exchange Service (DAAD) in partnership with the National Council for Scientific and Technological Development (CNPq, Brazil) . andre .de .paula[at]hotmail .com Andrés Santacoloma Santacoloma Ph . D . candidate under the supervision of Prof . Dr . Dres . h . c . Ulfrid Neumann, Philosophy of Law Department, Goethe University in Frankfurt am Main . He obtained a Master of Laws (summa cum laude) at the same University, and also completed the master programs Global Rule of Law and Constitutional Democracy (Genoa, Italy), and Legal Argumentation (Alicante, Spain) . He is scholarship holder of the German Academic Exchange Service (DAAD) . Bruce Anderson Professor of Law at Saint Mary’s University Nova Scotia . He teaches courses in business law and legal theory . His publications are concerned with the decision making process, art and law, and economic theory . He is working on a book focused on methodology and law . Gonzalo Villa Rosas Ph . D . student in Philosophy of Law at the Christian-Albrechts-Universität zu Kiel in Germany under the supervision of Prof . Robert Alexy . He has written about statistical analysis of judicial practice, history and comparative law, constitutional law, and objectivity in law and morals . His main research interests lie in legal theory, argumentation theory, and applied logic . He obtained his Master of Laws (LL . M .) summa cum laude from the Christian-Albrechts-Universität zu Kiel in history and comparative law, and a Bachelor of Laws (LL . B .) with distinction from the Universidad Externado de Colombia (Colombia) . Jing Zhao Studied Law at Goethe-University of Frankfurt am Main, Germany, LL .M (2012); and at CUPL (China University of Political Science and Law), China, Master of Laws Degree (2014) . From 2012 PhD Candidate at Goethe-University of Frankfurt am Main . Matti Ilmari Niemi Professor of the Law School of the University of Eastern Finland in Finland . He has been working as a visiting professor in the Law School of the University of Reading (UK) and as a visiting scholar at the Universiy of Oxford (UK) . He acts as a visiting lecturer (a docent) at the universities of Helsinki, Turku and Lapland (Finland) . He

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About the Authors

has published several book and articles both in Finland and abroad . He participates in international conferences and research cooperation in an active way . Michael Shute Professor in the Religious Studies Department at Memorial University of Newfoundland . He is founder and editor of the open source Journal of Macrodynamic Analysis devoted to exploration of interdisciplinary methodologies . He is the author of Lonergan’s Discovery of the Science of Economics. Michele Saporiti Ph . D . and research fellow in Legal Philosophy at the University of Milano-Bicocca, postdoctoral researcher in Political Philosophy in the Groupe Sociétés Religions Laïcités (CNRS-EPHE) in Paris, and adjunct professor of Legal Philosophy at the University of Bergamo . In 2015 he was accepted as Junior Academic Visitor at the Law Faculty of the University of Oxford and in 2011–2012 he was doctorant invité at the CNRS in Paris . His studies follow two main guidelines: law and ethics; philosophy of international law and politics . Monika Zalewska Postdoctoral research fellow at the Department of Theory and Philosophy of Law, Faculty of Law and Administration, University of Lodz, Poland . In 2012 she received PhD degree defending a thesis about the problem of imputation in Hans Kelsen’s legal theory . It was prevailed by a fellowship in Hans Kelsen’s Institute in Vienna in 2009 . Additionally in 2012 Zalewska achieved master of philosophy degree at Faculty of Philosophy and History (University of Lodz) . From 2015 Zalewska cooperates with Hans Kelsen’s institute in Vienna as International Correspondent . Samuele Chilovi PhD student at the University of Barcelona, faculty of philosophy, PhD programme in Analytic Philosophy, and in the University of Antwerp, faculty of law, part of the Globalization and Legal Theory PhD programme . Before that, he graduated from the University of Bologna (Italy), summa cum laude . His research was supported by the project The Makings of Truth: Nature, Extent, and Applications of Truthmaking, project code FFI201235026, Gobierno de España . Triantafyllos Gkouvas Postdoctoral Research Fellow, Faculty of Law, Monash University . He obtained his PhD in Law, at the University of Antwerp in January 2015 . M . A ., summa cum laude, Jurisprudence and Moral Philosophy, (2008) Department of History and Theory of Law, Faculty of Law National & Kapodistrian University of Athens, Greece . B . A ., Law; (2006), Faculty of Law, National & Kapodistrian University of Athens, Greece . He also has a Certificate in Journalism (2005), Athens, Greece .

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

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

Franz Steiner Verlag

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Kurt Seelmann (Hg.) Wirtschaftsethik und Recht Vorträge der Tagung der Schweizer Sektion der Internationalen Vereinigung für Rechts- und Sozialphilosophie im Oktober 2000 in Fribourg/Schweiz 2001. 123 S., kt. ISBN 978-3-515-07899-3 Michel Troper / Annalisa Verza (Hg.) Legal Philosophy: General Aspects Concepts, Rights and Doctrines. Proceedings of the 19th World Congress of the International Association for Philosophy of Law and Social Philosophy in New York, 24th–30th June 1999 2002. 208 S., kt. ISBN 978-3-515-08026-2 Gralf-Peter Calliess / Matthias Mahlmann (Hg.) Der Staat der Zukunft Vorträge der 9. Tagung des Jungen Forum Rechtsphilosophie in der Internationalen Vereinigung für Rechts- und Sozialphilosophie vom 27.–29. April 2001 an der Freien Universität Berlin 2002. 226 S., kt. ISBN 978-3-515-08048-4 Winfried Brugger / Görg Haverkate (Hg.) Grenzen als Thema der Rechtsund Sozialphilosophie Referate der Tagung der Deutschen Sektion der Internationalen Vereinigung für Rechts- und Sozialphilosophie vom 22.–23. September 2000 in Heidelberg 2002. 218 S., kt. ISBN 978-3-515-08042-2 Paricia Smith / Paolo Comanducci (Hg.) Legal Philosophy: General Aspects Theoretical Examinations and Practical Application. Proceedings of the 19th World Congress of the International Association for Philosophy of Law and Social Philosophy in New York, 24th–30th June 1999 2002. 176 S., kt. ISBN 978-3-515-08100-9

86. Hirokazu Kawaguchi / Kurt Seelmann (Hg.) Rechtliche und ethische Fragen der Transplantationstechnologie in einem interkulturellen Vergleich 2003. 180 S., kt. ISBN 978-3-515-08132-0 87. Rolf Gröschner / Gerhard Haney (Hg.) Die Bedeutung P. J. A. Feuerbachs (1755–1833) für die Gegenwart Tagung der Deutschen Sektion der Internationalen Vereinigung für Rechts- und Sozialphilosophie vom 15.–16. März 2002 in Jena 2003. 240 S., kt. ISBN 978-3-515-08193-1 88. Arend Soeteman (Hg.) Pluralism and Law I Justice. Proceedings of the 20th World Congress of the International Association for Philosophy of Law and Social Philosophy in Amsterdam, 2001 2003. 203 S., kt. ISBN 978-3-515-08327-0 89. Arend Soeteman (Hg.) Pluralism and Law II State, Nation, Community, Civil Society. Proceedings of the 20th World Congress of the International Association for Philosophy of Law and Social Philosophy in Amsterdam, 2001 2003. 193 S., kt. ISBN 978-3-515-08362-1 90. Arend Soeteman (Hg.) Pluralism and Law III Global Problems. Proceedings of the 20th World Congress of the International Association for Philosophy of Law and Social Philosophy in Amsterdam, 2001 2004. 217 S., kt. ISBN 978-3-515-08446-8 91. Arend Soeteman (Hg.) Pluralism and Law IV Legal Reasoning. Proceedings of the 20th World Congress of the International

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Association for Philosophy of Law and Social Philosophy in Amsterdam, 2001 2004. 195 S., kt. ISBN 978-3-515-08503-8 Christian Hiebaum / Peter Koller (Hg.) Politische Ziele und juristische Argumentation Symposium der Internationalen Vereinigung für Rechts- und Sozialphilosophie vom 11.–12. Oktober 2002 in Graz 2003. 142 S., kt. ISBN 978-3-515-08284-6 Jan C. Joerden / Roland Wittmann (Hg.) Recht und Politik Jahrestagung der Deutschen Sektion der Internationalen Vereinigung für Rechtsund Sozialphilosophie vom 26.–29. September 2002 in Frankfurt an der Oder 2004. 184 S., kt. ISBN 978-3-515-08458-1 Philippe Mastronardi (Hg.) Das Recht im Spannungsfeld utilitaristischer und deontologischer Ehtik Vorträge der Tagung der Schweizer Sektion der Internationalen Vereinigung für Rechts- und Sozialphilosophie vom 15.–16. November 2002 in Luzern 2004. 170 S., kt. ISBN 978-3-515-08366-9 Aleksander Peczenik (Hg.) Justice Proceedings of the 21st World Congress of the International Association for Philosophy of Law and Social Philosophy in Lund (Sweden), 12th–18th August 2003 Volume 1 2004. 218 S., kt. ISBN 978-3-515-08483-3 Yasutomo Morigiwa / Fumihiko Ishiyama / Tetsu Sakurai (Hg.) Universal Minority Rights? A Transnatioal Approach. Proceedings of the 5th Kobe Lectures. Tokyo and Kyoto, December 1998 2004. 126 S., kt. ISBN 978-3-515-08504-5 Svein Eng (Hg.) Law and Practice Proceedings of the 21st World Congress of the International Association for Philosophy of Law and Social Philosophy in Lund (Sweden), 12th–18th August 2003 Volume 2

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2005. 213 S., kt. ISBN 978-3-515-08524-3 Kenneth Einar Himma (Hg.) Law, Morality, and Legal Positivism Proceedings of the 21st World Congress of the International Association for Philosophy of Law and Social Philosophy in Lund (Sweden), 12th–18th August 2003 Volume 3 2004. 183 S., kt. ISBN 978-3-515-08513-7 Günther Kreuzbauer / Silvia Augeneder (Hg.) Der Juristische Streit Recht zwischen Rhetorik, Argumentation und Dogmatik 2004. 166 S., kt. ISBN 978-3-515-08480-2 Ulfrid Neumann / Winfried Hassemer / Ulrich Schroth (Hg.) Verantwortetes Recht Die Rechtsphilosophie Arthur Kaufmanns. Tagung vom 10.–11. Mai 2003 in München 2005. 188 S., kt. ISBN 978-3-515-08580-9 Kurt Seelmann (Hg.) Menschenwürde als Rechtsbegriff Tagung der Schweizer Sektion der Internationalen Vereinigung für Rechtsund Sozialphilosophie vom 25.–28. Juni 2003 in Basel 2004. 175 S., kt. ISBN 978-3-515-08591-5 Zenon Bankowski (Hg.) Epistemology and Ontology Proceedings of the 21st World Congress of the International Association for Philosophy of Law and Social Philosophy in Lund (Sweden), 12th–18th August 2003 Volume 4 2005. 195 S., kt. ISBN 978-3-515-08707-0 Carsten Bäcker / Stefan Baufeld (Hg.) Objektivität und Flexibilität im Recht Tagungen des Jungen Forums Rechtsphilosophie in der Internationalen Vereinigung für Rechts- und Sozialphilosophie im September 2004 in Kiel und im April 2005 in Hagen 2005. 213 S., kt. ISBN 978-3-515-08743-8 Robert Alexy (Hg.) Juristische Grundlagenforschung

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Tagung der Deutschen Sektion der Internationalen Vereinigung für Rechts- und Sozialphilosophie vom 23.–25. September 2004 in Kiel 2005. 251 S., kt. ISBN 978-3-515-08640-0 Philippe Mastronardi / Denis Taubert (Hg.) Staats- und Verfassungstheorie im Spannungsfeld der Disziplinen Tagung der Schweizerischen Vereinigung für Rechts- und Sozialphilosophie vom 12.–13. November 2004 an der Universität St. Gallen 2006. 255 S., kt. ISBN 978-3-515-08851-0 José Juan Moreso (Hg.) Legal Theory / Teoría del derecho Legal Positivism and Conceptual Analysis / Positivismo juridico y análisis conceptual. Proceedings of the 22nd World Congress of the International Association for Philosophy of Law and Social Philosophy in Granada, 2005 Volume 1 2007. 263 S., kt. ISBN 978-3-515-08910-4 José Rubio Carrecedo (Hg.) Political Philosophy / Filosofía política New Proposals for New Questions / Nuevas propuestas para nuevas cuestiones. Proceedings of the 22nd World Congress of the International Association for Philosophy of Law and Social Philosophy in Granada, 2005 Volume 2 2007. 239 S., kt. ISBN 978-3-515-08911-1 Andrés Ollero (Hg.) Human Rights and Ethics / Derechos humanos y Ética Proceedings of the 22nd World Congress of the International Association for Philosophy of Law and Social Philosophy in Granada, 2005 Volume 3 2007. 323 S., kt. ISBN 978-3-515-08912-8 Nicolás López Calera (Hg.) Globalization, Law and Economy / Globalización, Derecho y Economía Proceedings of the 22nd World Congress of the International Association for Philosophy of Law and Social Philosophy in Granada, 2005

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Volume 4 2007. 321 S., kt ISBN 978-3-515-08913-5 Josep Aguiló-Regla (Hg.) Logic, Argumentation and Interpretation / Lógica, Argumentación e Interpretación Proceedings of the 22nd World Congress of the International Association for Philosophy of Law and Social Philosophy in Granada, 2005 Volume 5 2007. 206 S., kt. ISBN 978-3-515-08914-2 Marcel Senn / Dániel Puskás (Hg.) Gehirnforschung und rechtliche Verantwortung Fachtagung der Scheizerischen Vereinigung für Rechts- und Sozialphilosophie vom 19.–20. Mai 2006 an der Universität Bern 2006. 171 S., kt. ISBN 978-3-515-08963-0 Annette Brockmöller (Hg.) Hundert Jahre Archiv für Rechtsund Sozialphilosophie (1907–2007) Auswahl 14 bedeutender Aufsätze von Kelsen, Radbruch, Luhmann u. a. 2007. 330 S., kt. ISBN 978-3-515-09100-8 Horst Dreier / Eric Hilgendorf (Hg.) Kulturelle Identität als Grund und Grenze des Rechts Akten der Tagung der Internationalen Vereinigung für Rechts- und Sozialphilosophie vom 28.–30. September 2006 in Würzburg 2008. 374 S., geb. ISBN 978-3-515-09101-5 Jochen Bung / Brian Valerius / Sascha Ziemann (Hg.) Normativität und Rechtskritik Tagungen des Jungen Forums Rechtsphilosophie in der Internationalen Vereinigung für Rechts- und Sozialphilosophie im September 2006 in Würzburg und im März 2007 in Frankfurt am Main 2007. 269 S., kt. ISBN 978-3-515-09130-5 Marcel Senn / Dániel Puskás (Hg.) Rechtswissenschaft als Kulturwissenschaft? Kongress der Schweizerischen Vereinigung für Rechts- und Sozialphilosophie vom 15.–16. Juni 2007 an der Universität Zürich 2007. 220 S., kt. ISBN 978-3-515-09149-7

116. Annette Brockmöller / Eric Hilgendorf (Hg.) Rechtsphilosophie im 20. Jahrhundert 100 Jahre Archiv für Rechtsund Sozialphilosophie 2009. 207 S., kt. ISBN 978-3-515-09285-2 117. Marcel Senn / Barbara Fritschi (Hg.) Rechtswissenschaft und Hermeneutik Kongress der Schweizerischen Vereinigung für Rechts- und Sozialphilosophie vom 16.–17. Mai 2008 an der Universität Zürich 2009. 258 S., kt. ISBN 978-3-515-09155-8 118. Bart C. Labuschagne / Ari M. Solon (Hg.) Religion and State From separation to cooperation? Proceedings of the Special Workshop “Legal-philosophical reflections for a de-secularized world” held at the 23rd World Congress of the International Association for Philosophy of Law and Social Philosophy in Kraków, 2007 2009. 209 S., kt. ISBN 978-3-515-09368-2 119. Martin Borowski (Hg.) On the Nature of Legal Principles Proceedings of the Special Workshop “The Principles Theory” held at the 23rd World Congress of the International Association for Philosophy of Law and Social Philosophy in Kraków, 2007 2010. 182 S., kt. ISBN 978-3-515-09608-9 120. Friedrich Toepel (Hg.) Free Will in Criminal Law and Procedure Proceedings of the 23rd and 24th World Congress of the International Association for Philosophy of Law and Social Philosophy in Kraków, 2007, and in Beijing, 2009 2010. 122 S., kt. ISBN 978-3-515-09320-0 121. Marcel Senn / Bénédict Winiger / Barbara Fritschi / Philippe Avramov (Hg.) Recht und Globalisierung / Droit et Mondialisation Kongress der Schweizerischen Vereinigung für Rechts- und Sozialphilosophie, 15.–16. Mai 2009, Universität Genf / Congrès de l’Association Suisse de Philosophie du Droit et de Philosophie Sociale, 15–16 mai 2009, Université de Genève

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2010. 196 S., kt. ISBN 978-3-515-09673-7 Imer B. Flores / Uygur Gülriz (Hg.) Alternative Methods in the Education of Philosophy of Law and the Importance of Legal Philosophy in the Legal Education Proceedings of the 23rd World Congress of the International Associaction for Philosophy of Law and Social Philosophy “Law and Legal Cultures in the 21st Century: Diversity and Unity” in Kraków, 2007 2010. 114 S., kt. ISBN 978-3-515-09695-9 Sascha Ziemann Archiv für Rechts- und Sozialphilosophie: Bibliographie und Dokumentation (1907–2009) 2010. 434 S., kt. ISBN 978-3-515-09719-2 Jan-Reinard Sieckmann (Hg.) Legal Reasoning: The Methods of Balancing Proceedings of the Special Workshop “Legal Reasoning: The Methods of Balancing” held at the 24th World Congress of the International Association for Philosophy of Law and Social Philosophy (IVR), Beijing, 2009 2010. 205 S., kt. ISBN 978-3-515-09723-9 Edward Schramm / Wibke Frey / Lorenz Kähler / Sabine Müller-Mall / Friederike Wapler (Hg.) Konflikte im Recht – Recht der Konflikte Tagungen des Jungen Forums Rechtsphilosophie in der Internationalen Vereinigung für Rechts- und Sozialphilosophie in Tübingen und Göttingen 2010. 308 S., kt. ISBN 978-3-515-09729-1 Kristian Kühl (Hg.) Zur Kompetenz der Rechtsphilosophie in Rechtsfragen Tagung der Deutschen Sektion der Internationalen Vereinigung für Rechts- und Sozialphilosophie vom 24.–26. September 2008 in Tübingen 2011. 140 S., kt. ISBN 978-3-515-09816-8 Stephan Kirste / Anne van Aaken / Michael Anderheiden / Pasquale Policastro (Hg.) Interdisciplinary Research in Juris-

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prudence and Constitutionalism 2012. 267 S. mit 2 Abb. und 2 Tab., kt. ISBN 978-3-515-09941-7 Stephan Ast / Julia Hänni / Klaus Mathis / Benno Zabel (Hg.) Gleichheit und Universalität Tagungen des Jungen Forums Rechtsphilosophie (JFR) in der Internationalen Vereinigung für Rechts- und Sozialphilosophie (IVR) im September 2010 in Halle (Saale) und im Februar 2011 in Luzern 2012. 315 S., kt. ISBN 978-3-515-10067-0 Bénédict Winiger / Matthias Mahlmann / Philippe Avramov / Peter Gailhofer (Hg.) Recht und Verantwortung / Droit et responsabilité Kongress der Schweizerischen Vereinigung für Rechts- und Sozialphilosophie, 11.–12. Juni 2010, Universität Zürich / Congrès de l’Association Suisse de Philosophie du Droit et de Philosophie Sociale, 11–12 juin 2010, Université de Zurich 2012. 206 S. mit 6 Abb., kt. ISBN 978-3-515-10066-3 Thomas Bustamante / Oche Onazi (Hg.) Global Harmony and the Rule of Law Proceedings of the 24th World Congress of the International Association for Philosophy of Law and Social Philosophy, Beijing, 2009. Vol. 1 2012. 133 S., kt. ISBN 978-3-515-10081-6 Thomas Bustamante / Oche Onazi (Hg.) Human Rights, Language and Law Proceedings of the 24th World Congress of the International Association for Philosophy of Law and Social Philosophy, Beijing, 2009. Vol. 2 2012. 192 S., kt. ISBN 978-3-515-10082-3 Yasutomo Morigiwa / Hirohide Takikawa (Hg.) Judicial Minimalism – For and Against Proceedings of the 9th Kobe Lectures. Tokyo, Nagoya, and Kyoto, June 2008 2012. 99 S., kt. ISBN 978-3-515-10136-3 Thomas Bustamante / Carlos Bernal Pulido (Hg.) On the Philosophy of Precedent Proceedings of the 24th World Congress of the International Association for Philoso-

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phy of Law and Social Philosophy, Beijing, 2009 Volume 3 2012. 144 S., kt. ISBN 978-3-515-10150-9 Matthias Kaufmann / Joachim Renzikowski (Hg.) Zurechnung und Verantwortung Tagung der Deutschen Sektion der Internationalen Vereinigung für Rechts- und Sozialphilosophie vom 22.–24. September 2010 in Halle (Saale) 2012. 184 S., kt. ISBN 978-3-515-10180-6 Carsten Bäcker / Sascha Ziemann (Hg.) Junge Rechtsphilosophie 2012. 214 S., kt. ISBN 978-3-515-10268-1 Ulfrid Neumann / Klaus Günther / Lorenz Schulz (Hg.) Law, Science, Technology Plenary lectures presented at the 25th World Congress of the International Association for Philosophy of Law and Social Philosophy, Frankfurt am Main, 2011 2012. 173 S., kt. ISBN 978-3-515-10328-2 Winfried Brugger / Stephan Kirste (Hg.) Human Dignity as a Foundation of Law Proceedings of the Special Workshop held at the 24th World Congress of the International Association for Philosophy of Law and Social Philosophy in Beijing, 2009 2013. 267 S., kt. ISBN 978-3-515-10440-1 Philippe Avramov / Mike Bacher / Paolo Becchi / Bénédict Winiger (Hg.) Ethik und Recht in der Bioethik / Ethique et Droit en matière de Bioéthique Kongress der Schweizerischen Vereinigung für Rechts- und Sozialphilosophie, 11.–12. Mai 2012, Universität Luzern / Congrès de l’Association Suisse de Philosophie du Droit et de Philosophie Sociale, 11–12 mai 2012, Université de Lucerne 2013. 226 S., kt. ISBN 978-3-515-10436-4 Tetsu Sakurai / Makoto Usami (Hg.) Human Rights and Global Justice The 10th Kobe Lectures, July 2011 2014. 167 S., kt. ISBN 978-3-515-10489-0

140. Bernhard Jakl / Beatrice Brunhöber / Ariane Grieser / Juliane Ottmann / Tim Wihl (Hg.) Recht und Frieden – Wozu Recht? Tagungen des Jungen Forums Rechtsphilosophie (JFR) in der Internationalen Vereinigung für Rechts- und Sozialphilosophie (IVR) im September 2012 in Münster und im April 2013 in Berlin 2014. 206 S. mit 3 Abb., kt. ISBN 978-3-515-10806-5 141. Axel Tschentscher / Caroline Lehner / Matthias Mahlmann / Anne Kühler (Hg.) Soziale Gerechtigkeit heute Kongress der Schweizerischen Vereinigung für Rechts- und Sozialphilosophie, 7. Juni 2013, Universität Bern 2015. 139 S., kt. ISBN 978-3-515-10907-9 142. Daniela Demko / Kurt Seelmann / Paolo Becchi (Hg.) Würde und Autonomie Fachtagung der Schweizerischen Vereinigung für Rechts- und Sozialphilosophie, 24.–25. April 2013, Landgut Castelen, Augst 2015. 216 S., kt. ISBN 978-3-515-10949-9 143. Jean-Christophe Merle / Alexandre T. G. Trivisonno (Hg.) Kant’s Theory of Law Proceedings of the Special Workshop “Kant’s Concept of Law” held at the 26th World Congress of the International Association for Philosophy of Law and Social Philosophy in Belo Horizonte, 2013 2015. 138 S., kt. ISBN 978-3-515-11037-2 144. Júlio Aguiar de Oliveira / Stanley L. Paulson / Alexandre T. G. Trivisonno (Hg.) Alexy’s Theory of Law Proceedings of the Special Workshop “Alexy’s Theory of Law” held at the 26th World Congress of the International Association for Philosophy of Law and Social Philosophy in Belo Horizonte, 2013 2015. 187 S., kt. ISBN 978-3-515-11043-3 145. Annette Brockmöller / Stephan Kirste / Ulfrid Neumann (Hg.) Wert und Wahrheit in der Rechtswissenschaft 2015. 113 S., kt. ISBN 978-3-515-11053-2

146. Marcelo Campos Galuppo / MÔnica Sette Lopes / Karine Salgado / Thomas Bustamante / Lucas Gontijo (Hg.) Human Rights, Rule of Law and the Contemporary Social Challenges in Complex Societies Proceedings of the 26th World Congress of the International Association for Philosophy of Law and Social Philosophy in Belo Horizonte, 2013 2015. 155 S. mit 2 Abb., kt. ISBN 978-3-515-11130-0 147. Paul Tiedemann (Hg.) Right to Identity Proceedings of the Special Workshop “Right to Identity” held at the 27th World Congress of the International Association for Philosophy of Law and Social Philosophy in Washington DC, 2015 2016. 185 S., kt. ISBN 978-3-515-11244-4 148. Hajime Yoshino / Andrés Santacoloma Santacoloma / Gonzalo Villa Rosas (Hg.) Truth and Objectivity in Law and Morals Proceedings of the Special Workshop Held at the 26th World Congress of the International Association for Philosophy of Law and Social Philosophy in Belo Horizonte, 2013 2016. 158 S., kt. ISBN 978-3-515-11260-4 149. Alain Papaux / Simone Zurbuchen (Hg.) Philosophy, Law and Environmental Crisis / Philosophie, droit et crise environnementale Workshop of the Swiss Society for Philosophy of Law and Social Philosophy, September 12–13, 2014, Swiss Institute of Comparative Law, Lausanne / Congrès de l’Association Suisse de Philosophie du Droit et de Philosophie Sociale, 12–13 septembre 2014 2016. 153 S. mit 2 Tab., kt. ISBN 978-3-515-11387-8 150. Markus Abraham / Till Zimmermann / Sabrina Zucca-Soest (Hg.) Vorbedingungen des Rechts Tagungen des Jungen Forums Rechtsphilosophie (JFR) in der Internationalen Vereinigung für Rechts- und Sozialphilosophie (IVR) im September 2014 in Passau und im April 2015 in Hamburg 2016. 231 S., kt. ISBN 978-3-515-11389-2

Objectivity and truth are highly contested issues in contemporary Legal and Moral Philosophy. There are a full range of approaches, from the very skeptic and pessimistic positions, to the most contemplative and optimistic conceptions, which defend their possibility not only within the theoretical but also within the practical thought. Any possible approach should be diverse enough in order to integrate, among others, the concepts of facts, existence, justifiability, language, emotions, disagreement, and a degree of relatedness between law and morals.

This book addresses these topics from various points of view. It is comprised of a selection of the papers presented at the Second Special Workshop “Truth and Objectivity in Law and Morals” held at the 27th World Congress of the IVR in Washington D.C., USA, 2015. The compilation is divided into four parts that focus on objectivity and truth in law, legal reasoning, and Kelsen’s Theory of Law as well as objectivity and truth in morals.

www.steiner-verlag.de Franz Steiner Verlag

ISBN 978-3-515-11484-4

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