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 351511260X, 9783515112604

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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 Edited by Hajime Yoshino / Andrés Santacoloma Santacoloma / Gonzalo Villa Rosas

ARSP Beiheft 148 Franz Steiner Verlag

Archiv für Rechts- und Sozialphilosophie

Truth and Objectivity in Law and Morals Edited by Hajime Yoshino / 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 148

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 Edited by Hajime Yoshino / 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 Druck: Druckhaus Nomos, Sinzheim Gedruckt auf säurefreiem, alterungsbeständigem Papier. Printed in Germany. Franz Steiner Verlag: ISBN 978-3-515-11260-4 (Print) Franz Steiner Verlag: ISBN 978-3-515-11274-1 (E-Book) Nomos Verlag: ISBN 978-3-8487-3165-7

Table

of

ConTenTs

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

7

ParT I – TruTh and law Hajime Yoshino The Concept of Truth in Law as the Validity . . . . . . . . . . . . . . . . . . . . . . . . . .

13

Andrés Santacoloma Santacoloma On Truth of Norm Propositions: Re-finding a True Path . . . . . . . . . . . . . . . . .

33

ParT II – TruTh and legal reasonIng Giusy Conza, Flora Di Donato & Francesca Scamardella Crossing Theories of Argumentation and Human-Contextual Dimensions to Analyze Judicial Decisions and Legal Truth Acquiring . . . . . . . . . . . . . . . . . . .

55

Fernando José Armando Ribeiro Truth, Hermeneutics and Judicial Decision . . . . . . . . . . . . . . . . . . . . . . . . . . .

69

ParT III – objeCTIvITy and legal reasonIng Bruce Anderson and Michael Shute The Procedural and Contextual Aspects of Objectivity in Legal Reasoning . . .

83

Luiz Fernando Castilhos Silveira Objectivity and Legal Decision-Making: An Objective Discovery? . . . . . . . . .

99

ParT Iv – objeCTIvITy In law and Morals Alejandro Sahuí Legal Positivism And Argumentative Conception of Law: Are They Compatible? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111 Gonzalo Villa Rosas The Two Strategies Objectivity, Epistemic Access, and Extreme Positions . . . . . . . . . . . . . . . . . . . 125 About the authors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157

InTroduCTIon Two longtime friends, Andrés Santacoloma Santacoloma and Gonzalo Villa Rosas, met in a village on the coast of the Ligurian Sea in the summer of 2012 . They attended the lectures of some well-known scholars from the Genoese School of Legal Thought . The skeptical point of view of these lecturers aroused in them numerous intellectual concerns . Everlasting questions, which have been explored again and again since the beginning of the modern age, were rethought and reformulated in various ways through their heated discussions . What is the relationship between truth and objectivity? Are these two congruent concepts or rather preconditions of one for the other? Do objectivity and truth play some roles in practical reasoning? And if they do, how are these concepts related to law and morals? From these considerations emerged the proposal to organize a discussion forum that examines the current various approaches to these problems . The proposal of the Special Workshop “Truth and Objectivity in Law and Morals” was submitted to and accepted by the organizational committee of the 26th World Congress of the International Association for Philosophy of Law and Social Philosophy . This project was promptly supported by Hajime Yoshino who was a visiting professor at the University of Kiel where Villa Rosas was a PhD student . The workshop was held at the Campus of the Federal University of Minas Gerais (UFMG) in Belo Horizonte, Brazil on July 22nd 2013 . Fourteen lecturers from around the world participated in it . This volume consists of a selection of the papers presented there . The editors wish to express their gratitude to the authors of this volume and the participants in the workshop . The present compilation has been divided into four chapters . Specifically, the first part of the volume, devoted to the examination of the relation between truth and law, consists of contributions from Hajime Yoshino and Andrés Santacoloma . Hajime Yoshino presents “The Concept of Truth in Law as the Validity of Law .” In this paper, Yoshino discusses the concept of truth in law as the validity of law from Logical Jurisprudence’s point of view . According to Logical Jurisprudence, the concept of truth in law has historically been represented as the validity of law in legal practice . The author presents a formal semantic definition of the concept of truth in logic and proves that the truth in logic can be applied to legal sentences . He also provides a formal semantic foundation of the concept of validity as truth and demonstrates that the truth of law can be regarded and represented as the validity of law from the logical point of view . The author further discusses how validity of law can be linguistically and logically represented . On the basis of these considerations, he discusses how truth as validity of legal sentences is determined in law, whereby he insists that truth of law as valid is determined through a legal meta-inference . The author then clarifies a system of fundamental and positive legal meta-rule sentences, which should be applied to determine the validity of legal sentences in a legal meta-inference . Santacoloma’s paper titled “On Truth of Norm Propositions . Re-finding a True Path” aims at arguing against the skeptic view proposed and defended by Tecla Mazzarese . Santacoloma holds against this author that even if we accept that norm propositions are conjunctions of different statements, or even if we accept them as complex linguistic entities, this does not undermine their capability of being truth-bearers . In order to lay the foundations for his position, Santacoloma offers

8

Introduction

five arguments . First, the complexity of the linguistic entity norm proposition could be understood and solved with a detailed account of the nature of the sentences and statements involved . Second, the lack of truth capability, pointed out by Mazzarese, is a result of the lack of a sharp distinction between the concept of truth and the criteria of truth . Third, in Mazzarese’s skeptical account, a clear distinction between the event of interpretation and the content of the interpretation is missing, from which follows the viability of norm propositions as truth-bearers . Fourth, a clear definition of the abstract noun validity and its uses is a necessary condition for determining the propositional reference of norm propositions . Fifth, the fuzziness of language is not a problem but a necessary condition for law to fulfill its purpose, which does not undermine the possibility of norm propositions to be truth-bearers . The second chapter of this volume, devoted to exploring the relation between truth and legal reasoning, consists of contributions from Giusy Conza, Flora Di Donato and Francesca Scamardella, and Fernando José Armando Ribeiro . Conza, Di Donato and Scamardella present the paper titled “Searching the Legal Truth between some Classical Theories of Argumentation and New Contextual Approaches,” through which they aim to show how judicial searching for truth is not a simple objective-argumentative process, but rather it is a process influenced not only by the legal actors’ activity, but also by socio-cultural factors which work as the framework in which judicial decisions arise . Their thesis is verified through the analysis of some decisions of the Italian Supreme Court . Fernando José Armando Ribeiro, having as its main premise that legal texts only set abstract commandments to be interpreted, argues in his paper titled “Truth, Hermeneutics and Judicial Decision” that law is only to be found in the work of interpreters . This conclusion leads Ribeiro not only to affirm that without hermeneutics there is no law, but also to adopt Gadamer hermeneutics to investigate the scope of legal interpretation . He explains – as far as it is possible to be done in a short paper – the very fundamental ideas of Gadamer’s hermeneutics, where the ideas of traditions, understanding and merging horizons have a central role to play . In order to show how these elements of Gadamer’s hermeneutics could be applied in law, and why hermeneutics has to be a part of the legal interpretation, he introduces a discussion about originalism in the interpretation of constitutional provisions and its consequences . The third part of this volume, dealing with the relation between objectivity and legal reasoning, contains contributions from Bruce Anderson and Michael Shute, and Luiz Fernando Castilhos Silveira . Anderson and Shute present the paper “The Procedural and Contextual Aspects of Objectivity in Legal Reasoning,” in which they start with a reconstruction of some notions of objectivity offered by four well known legal philosophers in order to show that their failure lies in not recognizing the way subjectivity works for the construction of objectivity . In making this argument, and offering a way out, they take into account the ideas about objectivity put forward by Bernard Lonergan . They hold that objectivity could be understood as a result of a subjective process of intelligently asking and answering the relevant questions, achieving insights, gathering and evaluating sufficient evidence to be able to make well informed, reasonable and responsible factual as well as value judgments about the appropriate materials after being selected and analyzed . In other words, objectivity will be reached through an intelligent and critical inquiry, in which truth

Introduction

9

is also an aspect of objectivity, since the judgments being made are to be considered true judgments . Silveira offers an approach to objectivity in his paper “Objectivity and Legal Decision-Making: an Objective Discovery?” that aims at differentiating it from other concepts to which it is commonly confused e . g . truth, certainty, or determinacy, relating it to the problem of epistemic luck . After an analysis of some conceptions of objectivity in the 19th and 20th centuries, Silveira argues against the distinction between context of discovery and context of justification . Like Anderson and Shute, Silveira follows Bernard Lonergan’s arguments regarding objectivity in order to claim that objectivity in the process of legal decision-making is a consequence of a plurality of judgments, i . e . objectivity is a result of subjectivity, a goal reached and maintained through individuals . The last chapter of this volume deals with objectivity in the legal and moral purview . It contains contributions from Alejandro Sahuí and Gonzalo Villa Rosas . Sahuí argues in his paper titled “Legal Positivism and Argumentative Conception of Law: Are They Compatible?” that it is possible to be a methodological positivist and, at the same time, to be an objectivist and cognitivist in practical philosophy . Based on Rawls’ position, Sahuí also defends that Kantian constructivism allows one to circumvent some problems related to the definition of objectivity in realistic terms . Indeed, constructivism allows one to assess the truth or correctness of a rule without requiring its correspondence with external facts . According to Sahuí, in the same vein of Rawls’ position regarding the legal and political domains, Carlos Santiago Nino has defended that the objectivity of rules and the justification of decisions do not imply appealing to any external body to conventions or practices which lie outside of morals . Finally, Villa Rosas presents the paper “The Two Strategies . Objectivity, Epistemic Access, and Extreme Positions,” in which he aims to assess whether extreme internalist and externalist positions used for the ontological definition of practical reason overcome the epistemic access objection raised originally by John L . Mackie . Against extreme externalist positions, Villa Rosas claims that even assuming the ontological condition that moral facts and properties either exist independently of natural kinds or supervene somehow upon them, it is possible to maintain that our inability to have epistemic access to them makes their existence irrelevant to us . Given that extreme externalist positions owe us an account of how it is that we can have epistemic access to the moral facts and properties posited by themselves, we can conclude that these positions are not a suitable account of the objectivity of our practical matters . Hajime Yoshino Andrés Santacoloma Santacoloma Gonzalo Villa Rosas

ParT I –

TruTh and

law

Hajime YosHino The ConCePT

of

TruTh

In

law

as The

valIdITy*

InTroduCTIon The concept of truth plays a decisive role in thinking, in communicating, and in debating, which are basic activities of human intelligence . This is also the case in law . Law is applied to solve real social problems . Legal rules have to be applied to events that happen in fact at a certain time and place . The state of affairs of the event has to be grasped correctly . Sentences that describe the facts must be true . It is easily understandable that the concept of truth plays a role in legal inference where the state of affairs of the event is to be decided . In the author’s opinion, the concept of truth must not only play a role in deciding the correctness of sentences based on real facts of events, but also in deciding which laws need to be applied to the events . In order to apply a law to a real social problem, the law must be valid . Only valid law is applicable; invalid law is not applicable . For a legal sentence to be valid means that it is true in the legal world . The validity in law is to be conceived as the truth in law . In this paper the author will discuss the concept of truth in law, focusing on the validity of law from the point of view of Logical Jurisprudence . First, the author would like to explain what Logical Jurisprudence is (Part One) . Then he will introduce the formal semantic definition of truth in logic, to analyze and formalize law (Part Two) . Next, he will argue that validity in law should be conceived as truth in law applying the definition of truth in logic to legal sentences (Part Three) . Subsequently, the author will discuss how laws linguistically represent the concept of truth as validity and how this linguistic representation of truth could be logically represented (Part Four) . Finally, he will discuss how the truth as the validity of law is decided in law (Part Five) . He will conclude this paper by outlining results of discussion and future tasks (Concluding Remarks) . ParT one: whaT

Is

logICal jurIsPrudenCe?

In order to discuss the concept of truth in law, it is necessary to have a certain precise view point . First, the author would like to briefly present his view point of this paper, i . e ., Logical Jurisprudence .

*

This paper is based on the author’s presentation as an invited speaker to the special workshop “Truth and Objectivity in Law and Morals” of IVR 2013 . For the sake of simplicity, the author has moved the lecture’s chapter on “The truth and the existence of law” to another, separated future document .

14

Hajime Yoshino

1.1 PurPoses of LogicaL jurisPrudence Logical Jurisprudence is a logical theory of law created by the author . It has been developed through the study of legal philosophy and the development of legal reasoning systems (LES-2, -3, -4, -5, -6, -7, and LES-8) .1 Logical Jurisprudence analyzes the language in law logically and clarifies the structure of thoughts in law . Through this approach, the purpose of Logical Jurisprudence is to contribute to the establishment of a genuine science of law . Logical Jurisprudence is a philosophy of law as a vanguard of the science of law, in the sense that ancient Greek philosophy, when it was discussed what all things consist of, was a vanguard of the science of things, i . e ., physics .2 1

2

The literature which shows the author’s development of legal reasoning systems are given below in chronological order: Hajime Yoshino, ‘The Application of Computer to the Reasoning in the Process of the Application of Law’, Law and Computer (Japanese), No . 3, 1985, pp . 77–94; Hajime Yoshino, ‘Logical Structure of Law and the Possibility of Computer Aided Legal Reasoning’, in: East and West Legal Philosophies in Japan, ARSP (Archiv fuer Rechts- und Sozialphilosophie) Beihefte Nr. 30, (ed .) Mitsukuni Yazaki, (Stuttgart / Wiesbaden, Steiner Verlag), 1986, pp . 185– 202 . Hajime Yoshino, ‘Legal Expert System LES-2’, in: Logic Programming ’86, ed . Eiiti Wada (Berlin/Heidelberg: Springer Verlag, 1987), 34–45; Hajime Yoshino and Munenori Kitahara, ‘LES-Project’, in: Expert Systems in Law. Neue Methoden im Recht, ed . Herbert Fiedler, Fritjof Haft and Roland Traunmüller (Tübingen: Attempto Verlag, 1988), 47–65; Hajime Yoshino, Makoto Haraguchi, Seiichero Sakurai and Sigeru Kagayama, ‘Towards a Legal Analogical Reasoning System: Knowledge Representation and Reasoning Methods’, in: 4th ICAIL’93. Proceedings The Fourth International Conference on Artificial Intelligence and Law, ed . Anja Oskamp and Kevin Ashley (New York (N . Y .): ACM, 1993), 110–116; Seichiro Sakurai and Hajime Yoshino, ‘Identification of Implicit Legal Requirements with Legal Abstract Knowledge’, in: 4th ICAIL’93. Proceedings The Fourth International Conference on Artificial Intelligence and Law, ed . Anja Oskamp and Kevin Ashley (New York (N . Y .): ACM, 1993), 298–305; Hajime Yoshino, ‘The Systematization of Legal Meta-inference’, in: 5th ICAIL’95. Proceedings The Fourth International Conference on Artificial Intelligence and Law, ed . Lindsay Thorne McCarty (New York (N . Y .): ACM, 1995), 266–275; Hajime Yoshino, ‘On the Logical Foundation of Compound Predicate Formulae for Legal Knowledge Representation’, Artificial Intelligence and Law, Vol . 5, No . 1–2, 1997, 77–96; Hajime Yoshino, ‘Legal Expert Project’, Journal of Advanced Computational Intelligence, Vol . 1, No . 2, 1997, 83–85; Hajime Yoshino, ‘Logical Structure of Contract Law System – For Constructing a Knowledge Base of the United Nations Convention on Contracts for the International Sale of Goods’, Journal of Advanced Computational Intelligence, Vol . 2, No1, 1998, 2–11; Xu Mingqiang, Hirota Kaoru and Hajime Yoshino, ‘A fuzzy theoretical approach to case-based representation and inference in: CISG’, Artificial Intelligence and Law, Vol . 7, Issue 2–3, 1999, 259–272; Hajime Yoshino and Seiichero Sakurai, ‘A Knowledge-Based Systems Approach to Educating Creative Legal Minds’, in: Proceedings of the ICAIL-05 Workshop “Artificial Intelligence and Legal Education”, ed . Hajime Yoshino, Kevin D . Ashley and Katsumi Nitta (Bologna: ACM, 2005), 9–13; Hajime Yoshino, ‘Reasoning of Legal Creation and Education for Creative Legal Mind’, Journal of Artificial Intelligence (Japanese), Vol . 19, No . 5, 2004, 530–536; Lluis Vila and Hajime Yoshino, ‘Time in Automated Legal Reasoning’, in: Handbook of Temporal Reasoning in Artificial Intelligence, eds . Michael Fisher, Dov M . Gabbay and Lluis Vila (Amsterdam: Elsevia, 2005), 537–557; Hajime Yoshino, ‘ The Systematization of Law in Terms of the Validity’, in: Proceedings Thirteenth International Conference on Artificial Intelligence and Law, eds . Kevin D . Ashley and Tom M . van Engers (New York (N . Y .): ACM, 2011), 121–125 . The author showed the fundamentals of Logical Jurisprudence in: Hajime Yoshino, “Tractatus Logico-Juridicus – its Basis”, in: Auf dem Weg zur Idee der Gerechtigkeit: Gedenkschrift für Ilmar Tammelo, (eds .) Jakob Raimund, Lothar Philipps and Csaba Varga (Viena: LIT-Verlag, 2009), 127–148 .

The Concept of Truth in Law as the Validity

15

1.2 Primitives of LogicaL jurisPrudence In order to establish a genuine science of law, Logical Jurisprudence should start with sound minimum elements just as classical physics did . Classical physics started with the three following primitives3: gravity, force, and motion . Physicists have analyzed and constructed the physical world in terms of these three primitives . Logical Jurisprudence starts with three primitives as well . Its primitives are: “sentence”, “truth,” and “inference.” The author’s approach tries to thoroughly analyze and reconstruct the entire legal system on the basis of these three primitives . 1.3 “sentence” Logical Jurisprudence starts with “sentences” . More precisely, it starts with “legal sentences .” Legal sentences are sentences that are formed as legal sentences in the real world .4 Logical Jurisprudence distinguishes between legal sentences and legal norms, whereby the latter are conceived as the meaning of legal sentences . Logical Jurisprudence does not start with the “legal norm” as a meaning, unlike most traditional continental legal philosophers, such as Hans Kelsen . Logical Jurisprudence considers the norm as a meaning to be non-existent as an inter-subjective object, because the meaning of the sentence appears only in the consciousness of the people who use the sentence, i . e ., those who create or interpret it . On the contrary, the existence of sentences can be checked inter-subjectively, because the process of forming sentences is based on empirical events . Those events can be confirmed by evidence . Logical Jurisprudence analyzes and constructs law in terms of three types of alternative fundamental legal sentences: – Legal rule sentences and fact sentences – Legal element sentences and complex sentences – Legal object sentences and meta-sentences Let us have a closer look at these three types of alternative conceptions of legal sentences . 1 .3 .1 Legal Rule Sentences and Fact Sentences legal rule sentences have the following syntactical structure: (1) ∀X (a(X) ß b(X)) Let us have a look at an example: (1’) ∀X (‘with death penalty’(X) ß (murder(X))5

3 4 5

The terminology of “primitives” here is used to represent fundamental concepts and components with which all is analyzed and explained . The author will discuss the formation of legal sentences later in Part 5 .3 .3 . The author applies the single quotations to formalize predicates which are represented by several words together with spaces .

16

Hajime Yoshino

legal fact sentences have the following syntactical structure: (2) b(x1) Let us have a look at an example: (2’) murderer (‘Charles Manson’) 1 .3 .2 Legal Element Sentences and Complex Sentences legal element sentences are the smallest units of legal sentences . Let us have a look at an example: CISG 6 Article 15 (1) “An offer becomes effective when it reaches the offeree.” legal complex sentences are a set of legal sentences that have a unique name . A code, its parts, and its chapters are legal complex sentences . An article can also be a legal complex sentence if it has more than two sections . For example, CISG Article 15 is a legal complex sentence: CISG Article 15 (1) An offer becomes effective when it reaches the offeree. (2) An offer, even if it is irrevocable, may be withdrawn if the withdrawal reaches the offeree before or at the same time as the offer. Through introducing these two conceptual devices of legal element and complex sentences, Logical Jurisprudence can analyze legal sentences into their minimal elements on the one hand and reconstruct them systematically on the other hand, the way they exist in fact . 1 .3 .3 Legal Object Sentences and Meta-Sentences a legal object sentence describes an object . The object in law is the obligation of a person to conduct a certain action . The law affects peoples’ conducts by imposing duties on them in order to realize the purpose of law . The obligation is an object that constitutes the source of power for law to control society . Legal object sentences describe the obligations of people who should perform specific actions . For example, the following sentences are legal object sentences: “A murderer must be punished with the death penalty” and “B must pay $50,000 to A .” a legal meta-sentence describes something about a legal sentence; to be precise, it describes the validity of such a legal sentence . For example, the following sentences are legal meta-sentences: (1) “’B must pay $50,000 to A’ is valid on April 15, 2014.” 6

“CISG” is a common abbreviation of “The United Nations Convention on Contracts for the International Sale of Goods” .

The Concept of Truth in Law as the Validity

17

(2) “This Convention applies to contracts of sale of goods between parties whose places of business are in different States […].” (Article 1 clause (1) of the CISG) . The terminology “meta” originates from the “meta-language” of Tarski . According to Tarski, if there is another language L2 describing something about language L1, L2 is called a meta-language of L1 .7 The legal sentence (1) above describes something about the sentence ‘B must pay the price of $50,000 to A,’’ i . e ., it describes the validity of the latter sentence while the legal sentence (2) describes something about the legal sentences of the convention, i . e ., the applicability of the legal sentences of the Convention . Therefore, these can be called “legal meta-sentences” in Tarski’s sense . A legal meta-sentence can also be described further by another legal meta-sentence . The latter is a legal meta-sentence to the former legal meta-sentence, and therefore, it could be called “legal meta-meta-sentence” or simply “legal meta-sentence” as well . 1.4 “trutH” The concept of truth is the second primitive of Logical Jurisprudence . This paper focuses on the concept of truth in law . 1.5 “inference” The legal sentence itself is merely an array of symbols . The meaning of a legal sentence becomes visible only when it is used by people, i . e ., created and applied by people . In other words, the legal inference activates the legal sentences as living legal norms . Logical Jurisprudence works with the “inference” as its third primitive . The theory of Logical Jurisprudence clarifies how the meaning of legal sentences can be activated through inference and how further legal sentences are developed in the process of legal reasoning . Logical inference is based on inference rules . An inference that is based on those inference rules is a logically correct inference . The most important inference rule is the rule of “Modus Ponens”: ((A ⇒B) & A) ⇒B This formula is to be read as follows (where A as well as B are propositions): If “B follows from A” is true and if “A” is also true, it logically follows that “B” is true .

7

Alfred Tarski, ‘The Concept of Truth in Formalized Languages’ (first publ . 1933), in: Logic, Semantics, Metamathematics. Papers from 1923 to 1938 (Oxford: Clarendon Press, 1956), 152–278 at 167–168 . Tarski called L1 “object language” . In his usage, if L2 is described by another language L3, L2 is also called an “object language” of L3 . The relation between “object language” and “meta-language” is relative for Tarski . The author of this paper only uses “legal object sentence” for the sentence describing the obligation . Logical Jurisprudence avoids to use the word “object sentence” for the sentence which is described by a meta-sentence . The legal meta-sentence, which is described by another legal meta-sentence should not be called a “legal object sentence,” but still it should be designated as a “legal meta-sentence” .

18

Hajime Yoshino

The rule of Modus Ponens is a fundamental inference scheme underlying the reasoning of justification in law, especially in the application of law to given cases . Although the reasoning of the application of law does not consist only of the reasoning of justification but also of the reasoning of creation (or discovery), where inductive as well as abductive reasoning is performed, the Modus Ponens could play an important role as a constraining scheme concerning the reasoning of creation . In summary: Logical Jurisprudence analyzes and reconstructs law in terms of these three primitives: sentences, truth, and inference . ParT Two: The defInITIon

of

TruTh

In

logIC

In order to get a sound and adequate starting point, let us discuss the concept of truth in logic and try to provide its formally correct definition in this part . 2.1 tHe ProbLem With respect to the applicability of the concept of truth in logic to law itself, pessimistic views have been widespread . The law is traditionally conceived as a set of norms . The legal norm is seen not as descriptive but as prescriptive . This view has lead many scholars to reject the application of classical logic to legal norms since the earliest discussion of the logic of norms . At the same time, philosophers were discussing the “Dilemma of J¢rgensen” that originates from the following:8 1 . Norm-sentences cannot be evaluated as true or false . 2 . The system of classical logic is based on the evaluation of sentences with respect to their truth or falsehood . 3 . Classical logic, therefore, cannot be applied to norm-sentences . Here, one should correctly grasp the concept of truth in logic . 2.2 tHe definition of trutH in Logic on tHe basis of tarski’s view In logic, the concept of truth applies to sentences . The word “true” is applied to a sentence such as “A is true,” where A is a sentence . For example: “Snow is white” is true .9 Here, “true” is used as a predicate . We can also say: “A is a true sentence .” The “definition” can be developed in three ways: (a) a material definition, (b) a lexical definition and (c) finally, a promissory definition .10 The material definition explains the essential meaning of the definiendum11 of the word “truth,” represented by a definiens12, i . e ., giving the genus and differentia of the concept . To define “truth” lexically is to describe the real usage of the term, i . e ., how it is used . Finally, 8 9 10 11 12

See J¢rgensen, J ., Imperatives and Logic, Erkenntnis, 7, 1937/38, 288–296 . Tarski, A ., ‘The Concept of Truth in Formalized Languages’ (n . 7), 152–278 at 154–165 . See Raziel Abelson, ‘Definition’, in: Encyclopedia of Philosophy, vol . 2, 2nd ed ., Macmillan, 2006, 664–677 . “Definiendum” is the Latin term for “that what is to be defined” . “Definiens” is the Latin term for “that what is defining” .

19

The Concept of Truth in Law as the Validity

the promissory definition means to promise or propose the usage of the term, e . g . “Let us use the term ‘truth’ this or that way .” In this part, the author will propose the usage of the term “truth” or “true” to coincide with the general usage of the term .13 The author defines the concept of truth in logic on the basis of Tarski’s conception of truth, paraphrased as follows: The truth-valuation, i . e ., the assignment of truth-values, for an atomic proposition-formula, can be presented in predicate logic as described below . The following symbols will be used:

Φ: a predicate i: an interpretation functor α1, … , αn: an individual constant or variable (A) Φ (α1, … , αn) is true under i iff < i (α1), … , i(αn) > ∈i (Φ), and (B) Φ (α1, … , αn) is false under i iff < i (α1), … , i(αn) > ∉i (Φ) Accordingly, when an interpreted individual constant or variable is an element of the set which is the extension of the interpreted predicate, the relevant propositionformula is true and, if not, it is false . This relationship, in the case of a proposition with a one-term predicate, can be represented in the following figures:

2.3 The ConsequenCe

of The

ConCePT

of

TruTh

In

logIC

On the basis of the foregoing demonstrations, one should point out that the definition of the truth-concept of logic by Tarski is constructed purely formally, without questioning the criteria by which the fulfillment must be decided . According to the definition by Tarski, the logical calculus needs, as a presupposition, nothing but the purely formal principle of bivalence, namely, that a value of two possible values is allocated to every sentence uniformly .14 In the sense above, legal sentences can be 13 14

See Alfred Tarski, ‘Truth and Proof ’, in Scientific American, Vol . 220, Issue 6, 1969, 63–70, 75–77 . See Hajime Yoshino, “Über die Notwendigkeit einer besonderen Normenlogik als Methode der juristischen Logik,” in: Gesetzgebungstheorie, Juristische Logik, Zivil-und Prozessrecht, eds . Ulrich Klug, Thilo Ramm, Fritz Rittner and Burkhard Schmiedel (Berlin/Heidelberg/New York: Springer Verlag, 1978), 140–161 at 145 .

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Hajime Yoshino

evaluated as true or false according to certain criteria . A value of these two values can be allocated to every legal sentence . ParT Three: The defInITIon

of

TruTh

In

law

as The

valIdITy

of

law

The legal sentence is said to be valid or invalid . The validity is the key concept in law . It is very important for the theory of law to have a correct and precise concept of “validity” . Logical Jurisprudence considers the validity of legal sentences as their truth in the legal world . Being valid or invalid means that a sentence is true or false in the legal world . It is marvelous that law has represented the truth of legal sentences as “validity” and that it has provided a system to determine the validity of legal sentences . The author would like to provide a formal semantic definition of the concept of truth as validity, on the basis of the definition of truth in logic above . The Tarski-type definition of the truth-concept described above can be applied to interpret the truth-concept as validity . If “Φ” is applied to an atomic predicate with n-terms and if is applied to an individual constant or variable, the truth-valuation, i . e ., the allocation of truth-values to an atomic proposition in predicate logic, is represented as in the following: (A’) Φ (α1, … , αn) is valid iff < i (α1), … ,i (αn)) > ∈ i (Φ)15 (B’) Φ (α1, … , αn) is invalid iff < i (α1), … ,i (αn)) > ∉ i (Φ) When an individual constant or variable comes under the class of the interpreted predicate, the proposition formula is “valid” (A’) and otherwise it is not “valid,” namely “invalid” (B’). This relationship, in the case of a proposition with a one-term predicate, can be represented in the following figures:

15

“iff” in the definition means “if and only if ” .

21

The Concept of Truth in Law as the Validity

This definition of the concept of truth as validity can be explained understandably in the example below: (a) “All humans must be punished if they kill another human” is valid. (b) “All humans must be praised if they kill another human” is invalid. In this norm, an individual constant or variable, which belongs to the class, “being who kills a human,” on the basis of the conditional half-sentence, comes under the class of “being punished” in (a), but not under the class of “being praised” in (b) . It is understandable that the sentence “All humans must be punished if they kill another human” is valid. But the sentence “All humans must be praised if they kill another human” is invalid, because it is intuitively clear that the state of affairs is not that the “individual who belongs to the class of people who kill another person” falls under the class of “people who are praised”, as the sentence designates, but is to be excluded from the class. The state of affairs in (a) is “valid” and in (b) is “invalid.” This relationship can be represented in the following figures:

ParT four: The lInguIsTIC and logICal rePresenTaTIon TruTh In law as valIdITy

of The

ConCePT

of

The author would like to clarify first how the truth as the validity of law is linguistically represented and secondly how it can be logically represented . The following is an example of a linguistic and logical representation of a legal rule sentence: r1: All persons who kill another person must be punished by the death penalty. r1: ∀X(person(X)&’another person’(Y,X)&kill(X,Y) à ’must be punished with death penalty’(X))16

16

In this formula, the predicate “must be” is used . This is a purely predicate-logical formula and the predicate “must be” has no meaning as a deontic operator of deontic logic .

22

Hajime Yoshino

Persons who insist that this legal rule sentence is valid usually phrase this sentence directly (without using any predicate such as “valid”), as follows: “All persons who kill another person must be punished by the death penalty.” However, if one would interpret one’s speech correctly according to one’s own intention, one should interpret it in terms of the validity of the sentence . If one would like to represent one’s assertion correctly, using the predicate “valid,” the legal rule sentence should be reformulated as follows: r1’: It is valid that all persons who kill another person must be punished by the death penalty. The legal sentence r1’ can be linguistically and logically reformulated as follows: r1: “All persons who kill another person must be punished by the death penalty.” r1: ∀X(person(X)&’another person’(Y,X)&kill(X,Y) à ’must be punished by the death penalty’(X)) f1: “r1 is valid.” f1: is_valid(r1,T). The fact sentence f1 above describes that the legal sentence r1 is valid . It describes the validity of a legal sentence . Therefore, the sentence f1 is a meta-sentence to the sentence r1 as explained above17 . If one glances at positive laws, it is clear that legal rule sentences are not represented in the type of r1’ but only in the shape of r1 . One cannot find any positive legal rule sentence of the type r1’ . This suggests that the extant legal rule sentence itself does not guarantee that it is valid . However, the legal rule sentence r1 is presented under the presupposition that it can be proven that r1 is valid . There must be another legal rule sentence according to which it is decided whether the relevant legal rule sentence is valid, e . g . “r1 is valid.” How can the sentence “r1 is valid” be proven as true? One cannot find any legal rule sentence in positive laws to decide that “a legal sentence is valid .” There is no positive legal rule sentence that says “The legal sentence S is valid,” i . e ., “is_ valid(S,T)”18 as the consequence part of the rule sentence . However, in order to prove that “a legal sentence is valid”, there must be a rule sentence that has “is_ valid(S,T)” as its consequence . As such a rule sentence cannot be found in positive legal rule sentences, one should endeavor to find such a rule sentence as an implicit common sense rule . This could start with the analysis of various expressions of legal rule sentences that refer to the validity of legal sentences . If one looks all over and examines laws in detail, one can notice that there are many legal rule sentences that contain linguistic representations relating to “validity” such as “validity” itself, “is valid,” “is in effect,” “is in force,” “is enforceable,” 17 18

See Part 1 .3 .3 in this paper . “S” is a variable to represent legal sentences and “T” is a variable to represent time . A legal rule is not valid forever but relatively valid according to the progress of time . It is necessary for a legal rule sentence to be valid at the time point when it is to be applied and when the event occurs . Therefore, it is necessary for a legal sentence describing the validity to refer to the time point and for the logical formula to have a variable or a constant to represent the time point .

23

The Concept of Truth in Law as the Validity

“enters into force,” “comes into force,” “becomes effective,” “goes into effect,” “is terminated,” “is expired,” “loses effect,” “goes out of force,” “is null,” “is void,” “is invalid,” and so on . Legal rule sentences that use such expressions must regulate the validity of legal sentences . As a result of the analysis of such legal expressions in positive laws, Logical Jurisprudence proposes the following four predicates as fundamental predicates to represent legal rule sentences that decide the validity of other legal sentences:

1) 2) 3) 4)

Linguistic Representation “S is valid at time T” “S becomes valid at time T” “S becomes null at time T” “S is invalid at time T”

Logical Representation is_valid(S,T) become_valid(S,T) become_nul(S,T) is_invalid(S,T)

According to Logical Jurisprudence, all predicates used in positive legal rule sentences to regulate the validity of laws could be classified under these four predicates . Legal rule sentences that deal with the validity of legal sentences are to be represented by using some of these four predicates . Among these four predicates, “is valid” is the most fundamental predicate . Among the legal sentences being composed of these four predicates, “S is valid” (1) above) is the most fundamental legal sentence describing the validity . It is to be noted that in actual laws, these predicates representing validity do not refer to the contents of legal sentences themselves, but to the names or identifiers of the legal sentences in law . Thus, that legal rule sentence r1 is valid is to be represented linguistically and logically in the following way, as described above: r1: All persons who kill another person must be punished by the death penalty. r1: ∀X(person(X)&’another person’(Y,X)&kill(X,Y) à ’must be punished with death penalty’(X)) f1: “r1 is valid.” f1: is_valid(r1,T) The same applies to the other three predicates of validity as follows: Linguistic Representation Logical Representation f2: “r1 becomes valid” become_valid(r1,T) f3: “r1 becomes null” become_null(r1,T) f4: “r1 is invalid” is_invalid(r1,T) With reference to the fundamental predicates representing the validity of legal sentences presented above, the author discusses below how the truth in law as validity could be and should be decided using these fundamental predicates .

24

Hajime Yoshino

ParT fIve: how

Is The TruTh In law as valIdITy To be deTerMIned?

How is the truth in law as validity to be determined? It is to be decided through a legal inference . The validity of legal sentences does not last forever . It is restricted to a certain time period . The span of time during which a legal sentence is valid is to be determined through a legal inference . Whether a legal sentence is valid at a certain point in time is also determined through a legal inference . 5.1 LegaL meta-inference The legal inference that determines the validity of legal sentences is to be called a “legal meta-inference” because it deals with legal meta-sentences that describe the validity of legal sentences . In such an inference, a goal sentence that is to be solved is presented . The goal sentence is to be solved through the application of rule sentences as well as fact sentences . For example, in order to determine that the legal sentence r1 is valid at a certain time t1, the following goal sentence is to be presented: r1 is valid at time t1. is_valid(r1,t1) If this goal sentence is proven as true, then the legal sentence r1 is valid at time t1 . If it is not proven as true, then the legal sentence r1 is not valid . In order to decide whether this goal sentence is true, the relevant rule sentences and fact sentences are to be applied . 5.2 tHe most fundamentaL LegaL meta-ruLe sentence determining tHat a LegaL sentence is vaLid What kind of rule sentences are to be applied to decide that a legal sentence is valid at a certain point in time? The rule sentence that determines that a legal sentence is valid must correlate to the goal sentence of “a legal sentence is valid” as the consequence part of the rule sentence . But what then is the requirement part of the rule sentence? Generally speaking, that a state of affairs exists at a certain point in time means that the state has occurred on the timeline before the evaluated point in time and has not ceased to exist up to and including the evaluated point in time . This must be the case for the validity . Therefore, one could suppose the following rule sentence using other fundamental predicates of validity listed above . As a conclusion, Logical Jurisprudence has generated the following rule sentence19:

19

The author found this meta-rule sentence through the analysis of positive legal rule sentences, getting a hint from Event Calculus, see Marek J . Sergot, Fariba Sadri, Robert Kowalski, Frank R . Kriwaczek, Peter Hammond and H . Therese Cory, ‘The British nationality Act as a Logic Program’, Communications of the ACM, Vol . 29, No . 5, 1986, 370–386; Hajime Yoshino, ‘The Systematization of Legal Meta-inference’ (n . 1), 266–275 at 269 .

The Concept of Truth in Law as the Validity

25

[r0]: A legal sentence is valid at time T, if and only if the legal sentence has become valid at time T1 (which is before or at the same time as T) and it is not the case that the sentence has become null at T2 (which is before or at the same time as T). [r0]: ∀S∀T∀T1∀T2 {is_valid(S, T) ßà become_valid (S, T1) & before_or_same (T1,T) & not ((become_null (S,T2) & before_or_same (T2,T)))}. This rule sentence is always applied whenever it is decided that a legal sentence is valid . Therefore, it is called “the most fundamental legal meta-rule sentence” (MFLMRS) . Here, two fundamental predicates, “become_valid” and “become_null” above, are used in the definiens (requirement) to define the definiendum (consequence), “A legal sentence S is valid” . The sentence “A legal sentence S becomes valid at time T1” means that the sentence S becomes true at the time point of T1 in the world of the legal discourse . The sentence “the legal sentence S becomes null at time T2” means that the sentence loses its truth or validity at the time point of T2 in the legal world . In order that a legal sentence S is valid at time T, it is necessary at first that the sentence S becomes valid at time T1, which is before or at the same time as T . This condition is written down as the first element of the requirement in the rule sentence [r0] . The second element of the requirement of the rule sentence is written down in the third line of the rule sentence [r0]: In order that the legal sentence is valid at time T, it is necessary that it is not the case that the sentence that has become valid at time T1 has become null before or at the same time as T . The term “not” in the formula of the second element of the requirement states a negation . But if this rule sentence is applied to a legal reasoning system in which the reasoning is performed on a computer, the negation is not interpreted as perfectly equal to the concept of the negation in the sense of classical logic . It is to be interpreted as a “negation as a failure”20 in the sense of logic programming .21 In short, the MFLMRS (the most fundamental legal meta-rule sentence) expresses that a legal sentence is valid if and only if it has become valid and if it has not become null yet . This rule could be called “a principle of recognition” in law, because it must be applied whenever one judges whether something exists in the legal world .

20 21

The Negation as failure (NAF) is an inference rule in logic programming according to which a proposition failed to prove true is considered as a negation of the proposition . For example, “not (p)” is interpreted not to hold when it fails to prove p . Logic programming is a computer programming method based on horn-clause logic as a subset of predicate logic, which fits to represent legal sentences and stimulate legal inferences on a computer .

26

Hajime Yoshino

5.3 Positive LegaL meta-ruLe sentences and fundamentaL LegaL meta-ruLe sentences How is it decided whether the first element and the second element of the requirement of the MFLMRS [r0] above are fulfilled? To make these determinations, positive legal rule sentences in positive laws are finally applied . 5 .3 .1 Positive Legal Meta-Rule Sentences That Contribute to Determining the Validity of Legal Sentences In positive laws, one can easily find many positive legal meta-rule sentences (PLMRS) that may contribute to determining the validity of legal sentences . For example, one could find the following positive legal meta-rule sentences: The Act on General Rules for Application of Laws of Japan Article 2: “A law shall come into effect after the expiration of twenty days following the date of its promulgation; provided, however, that if a different effective date is provided by law, such provision shall prevail.” (2) Civil Code of Japan Article 135 (1): If time of commencement of validity is assigned to a juristic act, the performance of such juristic act may not be demanded before the arrival of such time. (3) Civil Code of Japan Article 127 (1): A juristic act which is subject to a condition precedent shall become effective upon fulfillment of the condition. (4) CISG Article 23: A contract is concluded at the moment when an acceptance of an offer becomes effective22 in accordance with the provisions of this Convention. (5) CISG Article 18 (2): An acceptance of an offer becomes effective at the moment the indication of assent reaches the offeror. (6) The Constitution of Japan Article 59: A bill becomes a law on passage by both Houses, except as otherwise provided by the Constitution. (7) Civil Code of Japan Article 90: A juristic act with any purpose which is against public policy and good custom is void. (8) The Constitution of Japan Article 98: This Constitution shall be the supreme law of the nation and no law, ordinance, imperial rescript or other act of government, or part thereof, contrary to the provisions hereof, shall have legal force or validity. (9) Civil Code of Japan Article 135 (2): If time of expiration of validity is assigned to a juristic act, the validity of such juristic act shall expire upon the arrival of such time. (10) Civil Code of Japan Article 127 (2): A juristic act which is subject to a condition subsequent shall become ineffective upon fulfillment of the condition. (11) Civil Code of Japan Article 167 (1): A claim shall be extinguished if not exercised for ten years. (12) CISG Article 81 (1): Avoidance of the contract releases both parties from their obligations under it, subject to any damages which may be due. (1)

22

It is to be noted that it is not the predicate “valid” but “effective” that is used in these articles .

The Concept of Truth in Law as the Validity

27

5 .3 .2 Positive Legal Meta-Rule Sentences Which Are Related to Determining That a Legal Sentence Becomes Valid Among the positive legal rule sentences above, (1) The Act on General Rules for Application of Laws of Japan Article 2 regulates when a law (statute) becomes effective; (2) Civil Code of Japan Article 135 (1) regulates indirectly when a juristic act with a time of commencement of validity becomes effective; and (3) Civil Code of Japan Article 127 (1) regulates when a conditional juristic act as a law becomes effective . These positive legal meta-rule sentences decide when the relevant legal sentence becomes effective, i . e ., the beginning time of its validity . Therefore, these positive legal meta-rule sentences should be taken as constituting elements of the requirements that have to be fulfilled in order that a legal sentence becomes valid . However, these legal meta-rule sentences do not provide a sufficient condition for the relevant legal sentence becoming valid; they provide only a necessary condition for that . What other conditions are necessary to be fulfilled in order that a legal sentence becomes valid? In other words, what is the necessary and sufficient condition for a legal sentence to become valid? In order that a sentence becomes legally valid, it must first be a legal sentence . To say it precisely, the sentence must be formed as a legal sentence to become valid . No non-legal sentence can become valid . The formation of legal sentences is a necessary precondition in order that a sentence becomes valid as a legal sentence . Among the positive legal rule sentences above, (4) CISG Article 23, (5) CISG Article 18(2) and (6) The Constitution of Japan Article 59 regulate the formation of legal sentences . CISG Article 23 regulates when and how a contract is concluded . Therefore, it can be said that this article regulates the formation of a contract as a law . CISG Article 18(2) contributes, as a sub-rule sentence of CISG Article 23, to deciding when the requirement of legal rule sentence Article 23 is fulfilled, i . e ., when an acceptance of an offer becomes effective . This rule sentence also contributes to determining the formation of a contract . The Constitution of Japan Article 59 regulates when a bill becomes a law (statute) . It can be said that this article regulates the formation of a statute as a law . It is evident that these positive legal meta-rule sentences from (4) through (6) above, which regulate the formation of legal sentences, are related to determining that a legal sentence becomes valid . The formation of a legal sentence must be one of the elements of the requirement part of a legal meta-rule sentence according to which it is determined that a legal sentence becomes valid . How are (7) Civil Code of Japan Article 90 and (8) the Constitution of Japan Article 98 related to determining the validity of legal sentences? The legal consequence of both legal meta-rule sentences is that the relevant legal sentences are invalid . At first glance, these legal meta-rule sentences seem to be related to determining that the legal sentences become null, namely the second element of the requirement of the MFLMRS [r0] . However, in order that a legal sentence becomes null at time T2, it has to be valid just before time T2 . For, if a legal sentence is already invalid, it cannot become null, and if a legal sentence is invalid, it was invalid from the beginning . For this reason, in order that a legal sentence becomes valid, it is necessary that the legal sentence is “not invalid” . In conclusion, a legal sentence not being “invalid” is a necessary condition of the requirement of the legal meta-rule

28

Hajime Yoshino

sentence that determines the first element of the requirement of the MFLMRS [r0], i . e ., that a legal sentence becomes valid . 5 .3 .3 The Fundamental Legal Meta-Rule Sentence Determining That a Legal Sentence Becomes Valid After clarifying the important factors of positive legal meta-rule sentences that are related to determining when a legal sentence becomes valid, one can proceed to integrate these factors . How are the above positive legal meta-rule sentences related to each other? How could they, in an integrated manner, contribute to determining that a legal sentence becomes valid? What is a necessary and sufficient condition to determine that a legal sentence becomes valid? What is a fundamental legal metarule sentence (FLMRS) that should determine the first element of the requirement part of the MFLMRS [r0], i . e ., that a legal sentence becomes valid? The answer to this question can be and should be given in the following FLMRS as a legal meta-rule sentence which must be implicitly presupposed in legal praxis: [r3AA1]: A legal complex sentence becomes valid at time T, if and only if the legal complex sentence is formed at time T1 and it is not the case that the complex sentence is invalid, and ((there is a clause referring to the beginning time of effectiveness of the legal sentence and the beginning time has come at T) or (there is a clause referring to the beginning condition of the effectiveness and the condition is fulfilled at time T)) or T is T1). The consequence of this rule sentence [r3AA1] “A legal complex sentence becomes valid at time T” has the same structure as the first element of the requirement of the MFLMRS [r0] “the legal sentence becomes valid at time T1”. The difference between them is that [r0] refers to a “legal sentence,” whereas [r3AA1] refers to a “legal complex sentence” . The concept of a “legal sentence” is a wider general concept in comparison to that of a “legal complex sentence .” The latter is a subset of the former . The concept of a “legal complex sentence” is explained in Part 1 .3 .2 of this paper . This concept is introduced by Logical Jurisprudence in order to represent a collective concept like a statute or a contract, which consists of many legal element sentences . Positive legal meta-rule sentences usually do not directly regulate individual legal element sentences; instead, it regulates collections of individual legal element sentences, i . e ., legal complex sentences such as statutes or contracts as is the case in the above examples of legal meta-rule sentences . The first element of the requirement of [r3AA1] is the formation of a legal complex sentence . In order that a legal complex sentence becomes valid, it is first necessary that it is formed as a legal complex sentence . CISG Article 23 and 18(2) (see (4) and (5) above) contribute to the determination on when and how a contract as a legal complex sentence is formed . The Constitution of Japan Article 59 (see (6) above) regulates when and how a statute as a legal complex sentence is formed, as explained above . In order to solve the first element of the requirement of [r3AA1], these positive legal meta-rule sentences are applied . The second element of the requirement of [r3AA1] is that the respective legal complex sentence is not invalid . As above explained, in order that a legal sentence

The Concept of Truth in Law as the Validity

29

becomes valid, it is necessary that the legal sentence is “not invalid .” This condition is set as the second element of the requirement of the fundamental legal meta-rule sentence [r3AA1] . The third element of the requirement of [r3AA1] determines when the relevant legal complex sentence becomes effective . The first part of this element determines it when there is a clause referring to the beginning date of the effectiveness of the legal sentence . The second part determines it when there is a condition clause for the legal sentence to become effective . The third part (“T=T1”) determines that the legal complex sentence becomes effective at the time of the formation of the legal sentence, in the case that there is neither a clause referring to the beginning date of the validity nor a condition clause for the legal sentence to become effective . 5 .3 .4 Legal Meta-Rule Sentences Which Are Related to Determining That a Legal Sentence Becomes Null Among the positive legal rule sentences above, (9) Civil Code of Japan Article 135 (2) regulates when a juristic act with a clause of a time of expiration becomes null; (10) Civil Code of Japan Article 127 (2) regulates when a juristic act with a clause of a condition subsequent becomes null; (11) Civil Code of Japan Article 167 (1) regulates that a claim becomes null when it is not exercised for ten years; and (12) CISG Article 81 (1) regulates that legal object sentences, which describe the obligations of parties, become null when the contract as a legal complex sentence is avoided . There are implicit fundamental legal meta-rule sentences which regulate that a legal sentence becomes null . For example, a legal object sentence which describes one’s obligation becomes null when the obligation is performed by the person, a legal object sentence becomes null when its obligation becomes unfeasible, and a legal complex sentence become null when it becomes ineffective . One can now conclude the following: The truth of law as the validity of law is decided through a legal meta-inference in which the most fundamental legal meta-rule sentence (MFLMRS) is applied . In its application, the first element of its requirement is to be determined through a legal meta-inference where fundamental legal meta-rule sentences as well as positive legal meta-rule sentences, which regulate that a legal sentence becomes valid, are applied . The second element of its requirement is determined through a legal meta-inference where fundamental legal meta-rule sentences as well as positive legal meta-rule sentences, which regulate that a legal sentences becomes null, are applied . ConCludIng reMarks In this paper, the author has discussed on the concept of truth in law as validity, from Logical Jurisprudence’s point of view . As for a conclusion, he would like to summarize this discussion while he would also like to present the objectives which are left as future tasks . 1 . The author has explained briefly what Logical Jurisprudence is, namely that Logical Jurisprudence starts with three primitives: sentences, truth and inference . Logical Jurisprudence provides three fundamental sorts and structures of legal sentences through which legal systems can be analyzed and reconstructed .

30

Hajime Yoshino

2 . The author focuses on that the concept of truth in law has been represented as the validity of law in legal praxis . He insists that the validity of law is to be regarded as the truth of law . 3 . In order to base this assertion, the author has presented a formal semantic definition of the concept of truth in logic and clarified that the truth in logic can be applied to legal sentences . Afterwards, he provided a formal semantic foundation of the concept of validity as truth and has demonstrated that the truth of law can be regarded and represented as the validity of law from the logical point of view . 4 . Furthermore, the author has discussed how the truth of law as validity is linguistically represented, and how it can be logically represented . In these discussions, he clarified the fundamental predicates that should represent the validity of legal sentences: “is valid,” “becomes valid” and “becomes null .” 5 . Finally, the author has discussed how the truth of law as validity is determined in law . The author has pointed out that the validity of legal sentences is determined through legal inferences, precisely to say, through legal meta-inferences where legal meta-rule sentences are applied . Focusing on the process of legal meta-inference and using fundamental predicates above, the author generates the most fundamental legal meta-rule sentence as an implicit meta-rule sentence in the legal world, which determines that a legal sentence is valid at a certain time . The rule sentence is as follows: A legal sentence is valid at time T, if and only if the legal sentence becomes valid at time T1 which is before or at the same time as T and it is not the case that the sentence becomes null at T2 which is before or at the same time as T. The author discussed further how the fulfillment of the first and the second element of the requirement of this meta-rule sentence can be determined, and he elaborated on fundamental legal meta-rule sentences, as well as positive legal meta-rule sentences, which determine that a legal sentence becomes valid and then it becomes null . Thus, the author has presented a system of legal meta-rule sentences, which should be applied to determine the validity of legal sentences in a legal meta-inference . As for the future tasks, the following objectives are left unsolved in this paper: Although the author could present some examples of fundamental legal meta-rule sentences that play roles in deciding the first or second element of the requirement of the most fundamental legal meta-rule sentence, he does not insist that these fundamental legal meta-rule sentences are forming a complete set of such legal meta-rule sentences . On the contrary, he insists that one should endeavor to find other fundamental legal meta-rule sentences, which are implicitly presupposed in legal praxis, to create a sufficient list of such legal meta-rule sentences . The author would like to continue to find those further fundamental legal meta-rule sentences23 . Logical Jurisprudence should demonstrate, in concrete examples, how the theory and the devices provided in this paper work correctly and efficiently in formalizing the legal meta-inferences that determine the validity of legal sentences . The

23

To find fundamental legal meta-rule sentences which are implicitly presupposed and applied in the reasoning of legal praxis is a task being important and meaningful for the science of law just as discovering a law of nature for natural sciences .

The Concept of Truth in Law as the Validity

31

author will perform this task of demonstration in his next paper on the concept of truth in law . The concept of truth in law is closely related to the concept of the existence of law, because people believe that law exists when it is proven that the law is valid . The relationship of the existence of law to the truth of law and the validity of law should be discussed further . In this paper, the author has clarified the distinction between the formation and the validity of law, demonstrating that the former is one of the required elements for the law to become valid . From this point of view, the problem of the concept of law should be reconsidered . The author would like to work on the last two objectives as for his near-future tasks . Finally, the author is concluding this paper by calling on readers to participate in Logical Jurisprudence in order to develop a genuine science of law . Please join Logical Jurisprudence! aCknowledgeMenTs This paper was written by the author during his study as a visiting professor at the Hermann-Kantorowicz-Institute of the University of Kiel (Faculty of Law) and during his further studies as a visiting scholar at Harvard Law School . The author thanks his host professor, Robert Alexy, very much and his colleagues Ino Augsberg, Rudolf Meyer-Pritzl, and Joachim Jickeli in Kiel, as well as Professor Scott Brewer in Harvard for their kind support to the author’s study there . The author would like to thank his student assistant Dennis Hardtke at the University of Kiel for checking the original manuscript of this paper to give him much valuable advice . The author would also like to thank Professor Michael Brown at Northeastern University, Ms . Kathleen Lancaster, Ms . Stephanie Meadows, Mr . Justin Pounds, and the co-editor of this proceedings, Mr . Gonzalo Villa Rosas, for reading through the final version of the manuscript to check it and give their valuable editorial advice to the author .

andrés santacoLoma santacoLoma on TruTh

of

norM ProPosITIons: re-fIndIng

a

True PaTh*

InTroduCTIon In two articles published in the 90’s, Tecla Mazzarese introduced a skeptical view on norm propositions . She claims that due to some semantic and epistemic problems, as well as the fuzziness of the natural language, the norm propositions are lacking truth-values . My purpose is to show, that even if we accept that norm propositions are conjunctions of different statements, or even if we accept them as complex linguistic entities, this does not undermine their capability of being truth-bearers . After presenting Mazzarese’s account, I will argue, (i) that even if there is such complexity of the linguistic entity norm proposition, this complexity could be understood and solved with a detailed account of the nature of the sentences and statements involved, (ii) that the lack of truth capability, which Mazzarese points out, is a result of the lack of a sharp distinction between the concept of truth and the criteria of truth, as well as the selection of a theory of truth, which altogether makes the application of criteria of truth to norm propositions possible, (iii) that in this skeptical account, a clear distinction between the event of interpretation and the content of the interpretation is missing, from which follows the viability of norm propositions as truthbearers, (iv) that a clear definition of the abstract noun valid with its uses is to be clarified, in order to allow the propositional reference of norm propositions and, (v) that the fuzziness of the language is not a problem but a necessary condition for the law to fulfill its purpose, which does not undermine the possibility of norm propositions to be a truth-bearers . ParT one: norM ProPosITIons

and The

IMPossIbIlITy

of

seManTIC values

In two articles Tecla Mazzarese defended a skeptical view on norm propositions; she stressed, basically, that these propositions could neither be descriptions of valid norms nor be truth-bearers . The first article “‘Norm Proposition’: Epistemic and Semantic Queries,”1 begins with a short introduction about the different terms used by legal philosophers to refer to the same linguistic entity2 . She utilizes the term norm proposition, (i) for referring to a concrete moment into which a norm is valid, and (ii) for describing a norm as valid, in other words, to establish the validity of a norm or to describe a valid one . *

1 2

I would like to express my gratitude to José Juan Moreso for his comments on previous versions of this article . I would also like to thank Ulfrid Neumann for having me as a visiting student at his department in 2012 and for his support and help with the publishing project of the current volume . Tecla Mazzarese, ‘“Norm Proposition”: Epistemic and Semantic Queries’, Rechtstheorie, 22 (1991), 39–70 . Ibid., 39–40 .

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These two tasks, which are intrinsic to the norm propositions, are not to be fulfilled, according to Mazzarese, because a norm proposition has in itself two different kinds of statements . The first one, which Mazzarese calls interpretative, is a statement which has a description about what is required from the normative formulation3 and/or what is the meaning which is ascribed to it4 . The other one, which she calls of validity, is a statement which refers to the fact that a norm is valid and/or to the existence of a norm which is considered to be valid5 . The norm propositions have to face two serious challenges . On the one hand, a challenge concerning the recognition and distinction of their own content, i . e . the acceptance of the different kinds of statements inside them and their consequences . On the other hand, a challenge regarding the purpose they are supposed to fulfilled, and the apparently impossibility of assigning semantic values to them . The first group is the one Mazzarese calls epistemic; the other one is semantic . Taking into account the existence of two different kinds of statements, Mazzarese asserts, that in each form of statement inside the norm proposition are jointly epistemic and semantic problems . The interpretative statements, due to the variety of interpretative criteria which are available, will have to respond to the following questions: how is it possible for an interpretative statement to describe the meaning or at least one meaning of a normative formulation?–this being an epistemic query– and how is it possible to ascribe truth values to these statements?–this being a semantic query–The statements of validity will have to respond to the following: how is it that a statement of validity expresses the validity of a normative formulation or how is the validity of a normative formulation or of a norm to be understood and presented by a statement of validity?–this being an epistemic query–and how is it possible to ascribe truth values to these statements?–this being a semantic query– She does not see a possible answer, a way out of these problems, so she abandons the idea of truth concerning norm propositions6 . According to Mazzarese, due to the plurality of methods of interpretation to be applied inside the law, the normative formulations could have as many meanings as methods are at hand . Moreover, because of the flexibility of the natural language the same method of interpretation could come up with very different results i . e . different meanings of one and the same normative formulation . It is because of this that the interpretative statements are not describing the meaning or a meaning of the formulation, but ascribing one possible meaning to it7 . The possible interpretations and consequently, the interpretative statements, will be part of a very broad interpretative set, which could be always expanded, delimited, or completely modified . Additionally, if the interpretation of the normative formulations is a process where political, moral, and different kinds of social arguments are taken into account; there will be no reason to argue for the ascription of truth values to the statements8 .

3 4 5 6 7 8

For Mazzarese the norms which are part of statutes are not really norms but norm formulations . A norm is the result of a normative formulation being interpreted and applied by the judge . Tecla Mazzarese, (n . 1) at 40 . Ibid., 40 . Ibid ., 47 . Ibid ., 52 . Ibid ., 56 .

On Truth of Norm Propositions: Re-finding a True Path*

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When Mazzarese clarifies the use of the term norm formulation in her project, she is not only aiming to refer exclusively to written statutes, but to any kind of linguistic formulation which makes the communication and the legal practice possible . This idea is applied to the statements of validity as well; abandoning the idea of such a statement being understood under the common formula “NF belongs to the sources of law”9 According to her, this will make clear, that there are at least three difficulties with the concept of validity: (i) the multiplicity of legal systems, the variety of sources of the law, and the hierarchy of the relations inside those sources, which undermine the possibility of affirming the validity of a norm formulation, because there are no objective criteria of selection, (ii) the normative formulations could be themselves a result of a process of interpretation, making them and their validity objectionable, and (iii) because of the variety of the requirements to assess the validity of a norm formulation, several statements of validity will be not referring to valid norm formulations at all10 . This last argument runs as follows: the statement of validity could be itself the result of several statements e . g . one expressing the validity of the norm formulation or a norm, one affirming that a specific norm formulation or a norm is effectively followed, and another one which confirms that a norm formulation or a norm has not been derogated . If this is so, then it would not right to talk about a statement of validity as being only descriptive, because it would be evaluative as well; the one who is uttering it is taking decisions about its content . This would impede the ascription of truth values to the more general statement11 . Furthermore, Mazzarese criticizes the idea of the norm proposition being a truth-bearer affirming, that even if it were possible to ascribe semantic values to the norm proposition, being two different statements inside of it, each of which could have a semantic value, even colliding ones, it would be impossible to establish the one truth-value of the proposition12 . In order to reinforce the thesis of the existence of two different kinds of statements and the lack of truth-values of the normative propositions, and to show that this was already present somehow in the work of other legal philosophers, Mazzarese discusses some arguments from Niiniluoto, Aarnio, and Kelsen . (a) Niiniluoto and the partiality of the argument In his ‘On Truth and Argumentation in Legal Dogmatics’ and ‘On the Truth of Norm Propositions’ Niiniluoto, according to Mazzarese, recognizes the problems about the statements inside norm propositions . In the first paper he acknowledges the interpretative statements as part of the norm propositions, and in the second one, he treats the statements of validity as part of the propositions . Mazzarese stresses, that it is because of this unrelated treatment of the issue, that Niiniluoto fails to recognize the problem of having two different kinds of statements inside the linguistic entity, which led him to accept, erroneously, that it could be a truth-bearer . Regarding the interpretative statements and the epistemic problems which Mazzarese identifies, Niiniluoto defends an idea of interpretation according to 9 10 11 12

Ibid ., 56 . Ibid ., 56–57 . Ibid ., 58 . Ibid ., 51–52 .

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which it will be possible to determine the meaning and reference of the “obscure” terms; this will be an exhaustive process after which the universe of generic cases and generic solutions, following Alchourrón and Bulygin’s terminology13, of the normative formulation would be specified; making the result of interpretation a more or less specific set . Mazzarese believes this is a mistake, since the interpretation neither allows the establishment of such a set, nor would be determining the final meaning of a normative formulation after one process of interpretation14 . Concerning the meaning of legal validity, the statements of validity, and the content of the norm propositions, Niiniluoto increases the complexity of the argument, introducing a new group of statements, which Mazzarese calls the statements of acceptance15, when he takes as synonyms, the following expressions: (i) The norm N is valid in C, (ii) The norm N belongs to the normative system C, and (iii) The legal community in C accepts the norm N al legally valid in C16 . In the end, this will be a third group, which in case of being capable of semantic values, will add a third value to be taken into account for the truth value of the norm proposition itself17 . (b) Aarnio and the problem of truth Aarnio is aware of the epistemic problem raised by Mazzarese regarding the interpretation and the interpretative statements . Nevertheless, he argues that after the interpretation process takes place, it is possible to choose one of the resulting meanings, ascribing it to the expression or the term as its meaning . That the interpretative statement will work as a clarifier of the normative formulation is a mistake for Mazzarese, because there is no way to establish the meaning of the formulation, which is not arbitrary and open to revision: all the meanings could be its meaning18 . Aarnio utilizes the coherence of truth to show that this idea of assigning semantic values to the interpretative propositions could be right . Aarnio argues for the use of alternative predicates to be applied to these statements, like those of justified/ unjustified, valid/invalid . Which Mazzarese does not deny, but takes as a reinforcement of the impossibility of taking norm propositions as truth-bearers19 . (c) Kelsen and the reinforcement of Mazzarese’s argument Mazzarese takes the distinction of Kelsen’s between norm (Rechtsnorm), rule and normative statement (Rechtssatz), and his account on legal interpretation . Kelsen defends the idea of an interpretation frame of the norm, where there are no single meanings, single interpretations or interpretative statements, but a space which is to

13 14 15 16 17 18 19

Carlos Alchourrón and Eugenio Bulygin, Normative Systems, (Wien/New York: Springer Verlag, 1971) there is also a spanish version: Introducción a la metodología de las ciencias jurídicas y sociales, (Buenos Aires: Astrea, 5ta reimpresión, 2006) . Mazzarese, (n . 1) at 52 . Ibid ., 45 . Ilkka Niiniluoto, ‘On Truth and Argumentation in Legal Dogmatics’, Rechtstheorie, Beiheft 2, (1981), 53–76, 76 . Mazzarese, (n . 1) at 52 . Ibid ., 53 . Ibid ., 54 .

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37

be fulfilled after the interpretations process . Is because of this idea, Mazzarese argues, that the epistemic problem of the interpretative statements cannot be solved20 . In the second article “‘Norm Proposition’” A Tentative Defense of a Skeptical View,”21 which is a response to a criticism raised by Eugenio Bulygin in an article published the same year22, Mazzarese presents her former arguments for the defense of her skeptical position, adding a new one, namely, that the fuzziness of the language of the law, which is a property of the natural language, impede the resolution of both, the epistemic and the semantic problems, necessarily affecting the interpretative statements and the statements of validity, as well as the normative formulations23 . Since the fuzziness of the natural language is a condition being present in the language of the law, it affects the interpretative statements; it is because of this, that there is no way to settle on the meaning of a term . In the interpretation process there are more elements which are playing a role to get to the result, i . e . psychological, political, and moral terms, which being evaluative, are meaning-overloaded, and consequently, they undermine the idea of a meaning of a legal term . Moreover, the law has in itself some elements facilitating the every changing meaning of the norm formulations e . g . the maxims of experience or the customs24 . Mazzarese also argues that because of the fuzziness inside the criteria of interpretation, no result is to be considered as the result of an interpretation25 . Because of the absence of objective criteria helping to reach the meaning of a norm formulation to get to a judicial decision, the only aim we can hope for is to offer better subjective explanations/ justifications for one meaning over another26 . The statements of validity are, even if not in a direct way, also affected by the fuzziness of the language . There are several relations inside the legal systems, between the norm formulations, which are fuzzy . These relations show, that there are different possibilities of a norm formulation and consequently for a norm to be valid . If the interpretative statements are understood as trying to express which meaning of a norm formulation is the right meaning, then they will be pursuing the valid meaning27 . But because this meaning is not to be found–there is no such thing as the meaning–, and the relations between norm formulations offer different alternatives, the validity of a norm formulation is not to be settle down; it could always be debatable, remaining open28 . 20 21 22 23 24 25 26 27 28

Ibid ., 54 . Tecla Mazzarese, ‘‘Norm Proposition’ A Tentative Defense of a Skeptical View’, in In Search of a New Humanism: The philosophy of Georg Henrik von Wright, M . R . Egidi (ed .), (Wien, New York: Springer, 1999), 193–204 . Eugenio Bulygin, ‘True or False Statements in Normative Discourse’, in In Search of a New Humanism: The philosophy of Georg Henrik von Wright, M . R . Egidi (ed .), (Wien, New York: Springer, 1999), 183–193 . Mazzarese, (n . 21) at 195–197 . Ibid ., 196 . Ibid ., 196 . Ibid ., 196–197 . Ibid ., 197 . I say open and not susceptible of degrees, because Mazzarese does not say of the statements of validity, that they are fuzzy themselves, in the sense used by Zadeh, but that they remain unsettled . See: Lotfi Zadeh, ‘Fuzzy Logic and Approximate Reasoning’, in Synthese 30, (1975), 407–428 ., Lotfi Zadeh, ‘From Computing with numbers to Computing with words’ in IEEE

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This fuzziness of the legal language is also present in the norm formulations . This makes possible to get different interpretations of one and the same formulation . Each interpreted formulation would be also dependent of the context of the interpretation . The norm formulations and the norms resulting from them, would be consequently fuzzy themselves, according to Mazzarese: (i) due to the variety of norms which could be adjudicated to the same formulation, and (ii) because different valid norms could be expressed by the same formulation, depending on the context of interpretation; the norms, which are dependent of the relations inside the system, would be a result from a very complex and changeable set of variables29 . These arguments seem to me to be confusing different things . I will begin with the idea of different sentences and statements been part of the same proposition, to go to the discussion about truth, what it means and its criteria . Later on I will tackle the arguments about interpretative and validity statements and their truth-values being part of norm propositions, to conclude with some remarks about the fuzziness of the language of law . ParT Two: senTenCes, sTaTeMenTs,

and

ProPosITIons:

a neCessary

dIsTInCTIon

In her Philosophy of Logics, Susan Haack discusses the distinction between sentences, statements, and propositions30, making an argument about different sentences and statements having the same proposition, which I find useful to start showing the problems with the skeptical view of norm propositions . Haack defines sentences as “… any grammatically correct and complete string of expressions of a natural language .”31 She also distinguishes between tokens and types, the former being the physical objects which are used to express the sentence, and the later being either “…a pattern which similar tokens exemplify, or as a class of similar tokens .”32 Each sentence could be of a different type, e . g . declarative, interrogative, imperative, and so on; being possible to assign truth-values only to the first type e . g . “The sky is blue” . Statements, she argues, are “…what is said when a declarative sentence is uttered or inscribed .”33 Haack is aware of two problems which arise with the statements . First, there is a different use for “statement” in the ordinary language; one been the event of the utterance and other been the content of what is uttered . The line of the argument she follows, in order to explain the capability of assigning truth-bearers to statements and consequently to propositions, is the one of statement as content . Second, there is a difficulty posed by the capability of different kinds of sentences to form the same statement, due to the meaning of simple terms and synonyms34 .

29 30 31 32 33 34

Transactions on Circuits and Systems – I Fundamental Theory and Applications, Vol 45, No . 1, January 1999, 105–119 . In MacCrimmon and Tillers Peter (eds .) The Dynamics of Judicial Proof, Computation, Logic and Common Sense, (New York: Physica-Verlag, Springer, 2002) . Mazzarese (n . 21) at 199 . Susan Haack, Philosophy of Logics, (Cambridge: Cambridge University Press, 1978), Chapter 6, 74–86 . Ibid ., 75 . Ibid ., 75 . Ibid ., 76 . Ibid ., 76 .

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Then she introduces the definition of propositions being “…what is common to a set of synonymous declarative sentences… two sentences will express the same proposition if they have the same meaning…”35 According to these definitions and differences, Haack identifies the following possible relations between sentences, statements and propositions “…same sentence/different statement/different proposition, same statement/different sentence/ different proposition, same proposition/different sentence/different statement .”36 She also introduces, after analyzing the discussion about the capability of sentences of being true or false, two requirements which are to be fulfilled in order to determine whether sentences, statements and propositions could be truth-bearers . These criteria are: (i) that the item would not change its truth-value and; (ii) that all the relevant items of the same kind will share the same truth-value . The first criterion deals with what is meant by saying that something means “the same” referring to “the same thing”; it has a relation to the occasion of the utterance . The second one deals with synonymy and the possibility of two items meaning the same and being capable of truth-value . The point cannot be further explained, however there is a consequence which is important for the sake of my argument: all three linguistic entities could have truth-values . This, which occurs in the natural language, is a fact in the legal language as well . In this sense, the exclamations and prescriptions of the natural language, which lack truth-values because of their type, lack truth-values in the legal language as well, and because of the same reasons . The sentences, statements, and propositions of the legal language could, just like in the natural language, under the certain circumstances i . e . having the same type and been uttered at the same time and place, be capable of truth-values . The main point is to determine how the social facts of the law could be seen as objective, since the sentences, statements, and propositions about the law are to be uttered about some objective fact . In order to reach my goal, a form of realism must be acknowledged . The law establishes its concepts in order to achieve some results . Those concepts acquire their reference only on a specific community and at a specific time and because of social institutions . Their truth-values, just as the truth-values of other forms of social facts, depend on what people do, believe, hope, fear, expect, and so on . They do not have a natural existence and their processes, due to the facts, are not the same . This idea is on the basis of Kelsen’s distinction between causality and the doctrine of imputation37 . Moreover, the legal norms are not only social facts, but linguistic facts as well . As such, their truth-value could also be determined .38 The social institutions have an independent existence of the individuals, but not of the community . Haack put’s it as follows: “Social institutions aren’t com35 36 37 38

Ibid ., 76 . Ibid ., 77 . Hans Kelsen, Reine Rechtslehre, 2ª ed ., (Wien: Franz Deuticke, 1960), Ch . I . See also: Stanley Paulson, ‘Hans Kelsen´s Doctrine of Imputation’, Ratio Iuris, Vol . 14 No . 1, March 2001, 47–63 . This is a very interesting argument, but is not part of my claim . Regarding this point, I am following Labov and Searle about linguistic facts . William Labov, What is a Linguistic Fact?, (Lisse: The Peter de Ridder Press, 1975) . John R Searle, ‘How Performatives Work’, Linguistics and Philosophy, 12, 1989, 535–558 . available at: http://ist-socrates .berkeley .edu/~jsearle/133/ howperfwork .pdf

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pletely independent of us, and may not even be completely independent of what most people in a society believe about them . But they are independent of what you or I or any individual believes about them; and this is enough to make them real– and to make the truth of propositions about social institutions objective”39 . The norm propositions are meanings of the declarative statements as social facts . The validity of a given norm or a given interpretation of a certain norm, are possible because of the institutions of law: it is only because of what the people in the legal community do, believe, hope, fear, expect, etc . from the legal system that it is possible to talk about legal interpretation and legal validity . A possible shortcoming will be that there are so many theories of truth, some of which are even incompatible with each other, but there is no clarity about what is meant by truth and when to talk about something being true . ParT Three: TruTh

as an

absTraCT naMe: ConCePT

and

CrITerIa

of

TruTh

In order to be able to take into account a theory of truth or to discuss it, as correctly stated by Mackie40, Rescher41, Haack42, or more recently by Frápolli and Nicolás43, there must be at least a clear distinction about the definition and the criteria of truth . It is because of the lack of detailed discussions of these issues inside the philosophy of law, that there are absences of real disagreements, shallow argumentations pro or against some theories of truth, and combined uses of different theories of truth which lead to misunderstandings .44 In order to avoid these problems, I will use the theory of truth proposed by F . P . Ramsey . There are two reasons for the use of this theory . On the one hand, is because Ramsey utilizes his definition and criteria in order to avoid some sort of idea of truth being a special objective property to be discovered or apprehended . On the other hand, is because its proximity to the idea of discussing truth about mental states and propositions . Ramsey, who presents his definition of truth following substantially that of Aristotle, writes: “…a belief is true if it is a “belief that p” and p, but false if it is a

39 40 41 42 43

44

Susan Haack, ‘Nothing Fancy: A Few Simple Truths About Truth in the Law’, in: Evidence Matters, (Cambridge: Cambrige University Press, 2014), 294–323 . John L . Mackie, Truth, Probability and Paradox: Studies in Philosophical Logic, (Oxford: Oxford University Press, 1973), Chapter I . Nicholas Rescher, The Coherence Theory of Truth, (Oxford, Oxford University Press, 1973), Chapter II . Haack, (n . 30) at 88–90 . They discuss not only the importance of the definition and criteria, but they present the several positions, as well as other elements in the theories of truth . Maria José Frápolli and Antonio Nicolás, (ed .), Teorías contemporáneas de la verdad, (Madrid: Tecnos, 2012), 9–50 . Frápolli and Nicolás argue rightly, that the importance of Ramsey’s attempt is that it offers a logical-semantic clarification of the abstract term truth, being a word which is capable of fulfilling tasks like those of the pronouns, but being in a different logical category . Neumann presents a very interesting discussion about these problems . Ulfrid Neumann, Wahrheit im Recht. Zu Problematiken und Legitimität einer fragwürdigen Denkform (Baden-Baden: Nomos Verlagsgesellschaft, 2004) .

On Truth of Norm Propositions: Re-finding a True Path*

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“belief that p” and –p…”45 He adds “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…”46 This definition offers two particularities . The first one is the rejection of a correspondence theory of truth; as he himself stated, since what is to be utilized to determine truth is no the correspondence but the propositional reference of the belief i . e . it is only because of the content/structure of the belief “A is B”, that it could be true and not because of its correspondence with facts . But not undermining the possibility of a correspondence with facts . Second, he utilizes the word truth as a prosentential one; Ramsey compares the use of the word truth with pronouns, with words which could express sense by themselves . It is because of the lacking of pro-sentences in the natural languages that the discussion of truth turns out difficult, according to him, words like “that” or “what”, which are shorts of sentences, are always to be supplied with a verb, not being this the case with the only two words which are accepted as pro-sentences in natural languages, meaning, yes and no47, making the definition of truth problematic . What he actually wants to show with the idea of the content/structure of the belief, is that every time we affirm something like “the belief that p is true iff p”, what we are doing is using p as a variable sentence, which is in need of a verb . But p actually contains a verb already, e . g . p (variable sentence) being “A is B” (A and B being variable words or phrases); “… a belief that Smith is either a liar or a fool is true if Smith is either a liar or a fool and not otherwise”48 . It is also important to notice, that Ramsey defines truth starting with falsehood, like Aristotle did, but falsehood not as an expression of a negation related to the use of the former in relation with some term, but as an equivalent to being no-truth, applied to mental states such as beliefs, which have a propositional reference and an affirmative character . Regarding the criteria of truth, Ramsey introduces the idea of propositional reference and the affirmative character of the mental state . The propositional reference is what a belief has as part of its content; “A belief is necessarily a belief that something or other is so-and-so, for instance that the earth is flat; and it is this aspect of it, its being “that the earth is flat” that I propose to call its propositional reference .”49 It is the sort of reference “…which it takes a sentence to express…”50 This propositional reference is what allows us to come to identify something as being true or false . The way in which someone arises to the propositional reference of the belief is not to be taken into account as an element to be explicitly established . Once two persons share the belief that “A is B”, we talk about them having the same belief, 45

46 47 48 49 50

Frank P . Ramsey, On Truth: Original Manuscript Materials (1927–29) from the Ramsey Collection at the University of Pittsburgh, eds . Rescher, Nicholas, and Ulrich Majer . (Pittsburgh, PA: University of Pittsburgh Press, 1991) 11 . See also: Frank P . Ramsey, ‘Facts and Propositions’ (1927) . In Ramsey, The Foundations of Mathematics and Other Logical Essays, ed . Braithwaite, (London: Routledge and Kegan Paul, 1931), 138–55 . Frank P . Ramsey, (n . 45), On Truth, at 12 . Ibid ., 10 . Ibid ., 12 . Ibid ., 7 . Ibid ., 8 .

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independently of the path taken from each one of them to arrive to this conclusion . He also clarifies that the property true, when ascribed to a mental state, shall not be confused with other epistemological properties of a belief, like being well-grounded or being held for right or wrong reasons51 . Nevertheless, this criterion is not to be understood as a general criterion of truth, which following Kant, Ramsey argues would be as absurd “…as for one to milk a he-goat while another holds a sieve to catch the milk”52, because “…every object is distinguishable and therefore has something true of it which is true of no other object”53 . However, there are several mental states which even having a propositional reference, like having knowledge about something, having an opinion, being under the impression of something, among others, are truth-value lacking . Ramsey was aware of this and consequently, he introduced a second criterion: the affirmative or assertive character of the mental state, which is “…the element that is present in thinking that, but absent in wondering whether .”54 Ramsey was uncertain about discussing the problem of truth in relation to propositions, since there was at the time a disputed view on the subject . But he was thinking about propositions as the content of believes; as the relation to the character ascribed to a belief that something is something or something else .55 These ideas, further developed by the nowadays called pro-sentential theory of truth56, made clear that believes are to be expressed by declarative sentences, which could be conjunctions of statements . It is precisely two propositions expressing the meanings of declarative statements or being the contents of those believes to which the truth-bearers are to be applied . When a judge determines that a norm formulation fn1 means the norm n1, he does it taking into account not only the formulation, but other sources of law, normative concepts, precedents, which are part of the legal system, he is utilizing the elements which form its propositional reference . This meaning I am referring to could be the result of a belief about the linguistic facts or the legal facts and their meaning in a specific context and time, as von Wright puts it, in a specific occasion57; being this the case, it is possible to see the interpretation result as a belief which could be true or false . Even though this argument about the meaning of a norm and its truth could be disputed, the norm proposition, which are the focus of Mazzarese’s argument, are propositions about the norms already interpreted by the judges i . e . the meaning of a declarative sentence which refers to the existence of a certain norm in a certain 51 52 53 54 55 56

57

Ibid ., 8–9 . Ibid, 13 . Ibid, 16 (Footnote 13) . Ibid, 8 . Ibid, 7 . See: Peter Strawson, ‘Truth’, Proceedings of the Aristotelian Society, Vol . XXIV, 1050 . Reprinted in G . Pitcher . (ed .), Truth, (New Jersey, Prentice Hall, 1964), 32–53; Christopher J . F . Williams, ‘The Prosentential theory of Truth’, Reports on Philosophy, No . 15 (1992), 147–154; Jennifer, Hornsby, ‘Truth: The identity Theory’, in Proceedings of the Aristotelian Society, No . 97, (1997), 1–24 . Reprinted in Lynch, Michael, (ed .), The Nature of Truth: Classic and Contemporary Perspectives, (Cambridge Massachusetts, MIT Press, 2001); Maria José Frápolli and Antonio Nicolás, (n . 43) . G . H . von Wright, Norm and Action: A Logical Inquiry, (London: Routledge & Kega Paul, 1963), 23 .

On Truth of Norm Propositions: Re-finding a True Path*

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legal system in an occasion: there is a norm n1 which says that it is mandatory p i . e . Op or –p O–p . Here we have a construction which perfectly matches “the belief that p is true iff p”, “A is B” . A statement uttered by a legal scholar who wants to refer to a decision of a case and the way a norm formulation was interpreted and applied by a judge or a statement being made by a judge citing a precedent to empower his own decision in a specific case, are in an occasion to be confused to the moment of interpretation of a norm formulation . Legal truths are the result of our legal practices . Haack argument is here illuminating: “…unlike natural-scientific truths, legal truths become true only when some person or body makes them so; but of course, once they have been made true, that they are true is something to be discovered .”58 ParT four: legal InTerPreTaTIon

as

TransforMaTIon

Legal interpretation could be seen as a process seeking to clarify the meaning of a legal disposition, provision, formulation, expression, decision or some other form of legal statement or sentence being part of a legal system . There are several definitions, criteria, and methods of interpretation in the law . I want to focus on the idea of the interpretation seen as a transformation . The reason for this is that the idea of transformation shows clearly something Mazzarese seems to be missing in her argument: the difference between the process of interpretation and the result of interpretation, and the relation between norm propositions to the later . The idea of transformations in the law was introduced by Peczenik in 1979,59 and was further developed in relation with legal reasoning jointly by Aarnio, Alexy, and Peczenik (AAP) in their article “The Foundation of Legal Reasoning”60 . Following closely the theory of transformations presented by Peczenik, AAP see the idea of transformations in the law as “jumps” from certain layer to another . This form of jump is executed between sensations, propositions, or general theories, once the following requirements are fulfilled: “…(1) p is brought forward as a reason for q; and (2) p does not deductively entail q”61 . AAP utilize p and q in the same way Ramsey utilizes them, meaning, as variable sentences . By AAP theses variables could be composed of more than one proposition at the time . The jump could be done in different forms of relation: from 1 to 58 59

60 61

Haack, (n . 39) at 317 . Aleksander Peczenik, ‘Non-equivalent Transformations and the Law’, in A . Peczenik, J . Uusitalo (ed .) Reasoning on Legal Reasoning, (Vammala: Publications – Society of Finnish Lawyers, Group D, no . 6, 1979), 47 . Reprinted in Rechtstheorie Beiheft 1 (1979) . The argument of transformation is also brought by G . H . von Wright when discussing issues about facts and the logic of changes in his Norm and Action. As he introduced the discussion about propositions, and the difference between generic and individual propositions and their relationship to facts in order to predicate truth, von Wright distinguished three different sorts of facts–not being an exhaustive differentiation–: states of affairs, processes and events . It seems plausible to me to establish some relations between the processes of legal interpretation and the idea of event . I think the interpretation process of the law could be seen as an event of “…ordered pair of two states of affairs” . This is to be explored, following von Wright, on a different occasion . Aulis Aarnio, Robert Alexy and Alexander Peczenik, ‘The Foundation of Legal Reasoning’, Rechtstheorie, 12 (1981), 133–158, 257–279, 449–471 . Ibid ., 137 .

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1, 1 to 2,…2n, from 2,…2n to 1 or from 2,…,2n to 2,…,2n . The simplest form would be pTq, which could be replaced by the complex formula (p1,…,pnTq1,…,qn)62 This process of transformation could be performed into and inside the law . Into the law they distinguish two sorts of transformation (i) category-transformation T1/1 and (ii) criteria-transformation T2/1 . Inside the law they distinguish three different kinds (i) source-transformation T1/2, (ii) general-norm-transformation T2/2 and, (iii) decision-transformation T3/263 . The whole discussion about the transformations into the law and inside the law cannot be reconstructed here . I want to focus on the transformation T3/2 i . e . on the decision-transformation and inside this group, only on the first of the subgroups, meaning, the precise interpretation (Präzisierung), since this is the problem concerning Mazzarese’s argument against the truth of norm propositions . A precise interpretation implies the existence of a well established norm–norm formulation in Mazzarese’s terminology–, which could be the result of the transformations T1/2 and/or T2/2 inside the law, but has a disputable application concerning a certain case because of the particularities of the case i . e . being doubtful whether a situation, some action, some part of an action, a specific person and so on, could be part of the relevant elements of the norm to be applicable, but more important, because of the norm itself . What is under discussion is the extension of the norm, because its ambiguity, vagueness, opened texture or some other kind of openness from an evaluative point of view64 . In order to solve this problem, AAP suggest to rely in the criteria of a norm or several of them already established in the system to determine whether a case belongs in the spectrum of a norm or not–a procedure established by legal dogmatics as well! They reproduce Alexy’s formalization introduced in his “Die logische Analyse juristischer Entscheidungen”:65 let (x) (Tx → ORx) be a legal norm and a a situation which is part of a case being disputed as falling under the scope of the norm (x) (Tx → ORx) . They introduce two more norms (x) (Mx → Tx) and (x) (Sx → Mx) in order to do the transformation which is necessary to settle the dispute . They do a transformation of the form (p1, p2Tq) as follows66: (1) (2) (3) (4) (5)

(x) (Tx → ORx) (x) (Mx → Tx) (x) (Sx → Mx) Sa ORa

(p2) (p1) (q)

For them this jump, the interpretation of a legal norm “…may be defined as an operation where one gives a specific content to a group of criteria forming legal facts

62 63

Ibid ., 137 . Schematically, these transformations work in the legal systems as follows: Facts, nonlegal values and/or non legal norms

64 65 66

T1/1

Constitution and some independent sources of law

T1/2

Other sources of law

T2/2

Rules and principles

T3/2

decisions

Ibid ., 150 . Ibid ., 153 . Robert Alexy, ‘Die logische Analyse juristischer Entscheidungen’, ARSP Beiheft 14 (1980), 187 . AAP, (n . 62) at 153–154 .

On Truth of Norm Propositions: Re-finding a True Path*

45

(and/or legal consequences) .”67 What is clear is that (i) these processes of interpretation take place before someone can affirm a norm is part of the legal system or not, and (ii) after the process a specific content is given . The statements which are part of the normative propositions, which Mazzarese calls interpretative statements, are declarative sentences about the end-state after the transformation process of legal interpretation . As we have seen, following Haack’s argument, there is no reason to accept the impossibility of these kinds of statements as truth-bearers . The problem of Mazzarese’s account is that she is confusing on the one hand, the fact “process” with the fact “end-state” i . e . the process with its result, and on the other hand, the sentence about the fact “process” with the one about the “end-state” . The interpretative statement is not a process or event of interpretation, in which a meaning is to be ascribed, but a result in which it is declared that the meaning x of the norm formulation nf1 exist as a legal fact in the legal system LS1 in an occasion after a process or event of transformation . Mazzarese also argues that it is not possible to establish the meaning of a norm formulation . What does this mean? If the goal is to determine the one and only possible meaning of a norm, it is certainly not possible . But are the legal system and the work of the judges to be understood in this way? This seems to be a dreadfully exaggeration to me . After the process or event of legal interpretation the end-state could be more or less justified or grounded, it could be more or less accord to some social or moral rules, it could be more or less just, but these are different queries . The meaning which is ascribed after the event is the meaning which is at the occasion part of the legal system and from which a declarative statement could be made . It is also because of this always changing capacity of the legal system that legal truths are relative to a specific occasion . Nevertheless, the occasion of the end-state does not entail the impossibility of legal truths; it just makes the true-value of the declarative statement “the norm n1 means that it is mandatory to do p” relative to a place and time . Some examples of different domestic legal system could help . If someone affirms in Germany that in the tort law in continental legal systems it is possible to see some forms of psychological causality as the key element to determine the liability of someone in a case of damaging, this will be only true if the sentence contained in the proposition is referring to the German legal system after 1975, when the Supreme Court decided to take the psychological causality as a element to establish liability in cases where the person who is injured, is justified in acting in some way because of the feeling of being challenged by the action of someone else after the well know case of “Herausforderungfälle” in German’s tort law68 . The true of a statement like “the criterion for admissibility of novel scientific testimony inside the U . S . legal system is the “general acceptance” standard,” will 67 68

Ibid ., 425 . See, among others the decisions: BGHZ 63, 189 = JZ 1975, 374 . = NJW 1975, 168 . BGH, NJW 1993, 2234 . BGH, Urt . v . 12 .03 .1996 – VI ZR 12/95 . The justification of this idea of causality is derived from Kant . Kant, Kritik der praktischen Vernunft (1788) . Grundlegung zur Metaphysik der Sitten, (Hamburg: Meiner Verlag, 2003) . About the idea of psychological causality and tort law in Germany: Till Ristow, Die psychische Kausalität im Deliktsrecht, Peter Lang, (Frankfurt am Main: Europäischer Verlag der Wissenschaften, 2002); Christoph Rothenfußer, Kausalität und Nachteil, (München: Verlag C . H . Beck, 2003) .

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depend on the place and time of the utterance . If it is prior to 1993 it will be true, if it is uttered after 1993 it will be false, but if it is uttered in Florida in 2003 it will be again true . This will be always dependent on the FRE 70269, the former criteria established on Frye,70 the later criteria developed in Daubert71, and the place of the utterance . If someone affirms that in Colombian Tort Law system, the principle of ‘the good family man’ introduces an obligation of a duty of best efforts and not a duty to achieve a specific result it will be true, but only if asserted before the case Granahorrar v . Superintendencia Financiera72 (the state entity responsible for monitoring and controlling the banks) and Fondo de Garantías Financieras73 –FOGAFIN– (a public entity to protect depositors and creditors of financial institutions for the damage they could cause in the development of activities), where a Colombian decided that ‘the good family man’ must respond for the obligation in both ways; as duty of best efforts and as a duty to achieve a specific result . But it will be again true, if uttered after May 2011, when the Constitutional Court reversed the former decision74 . What these examples clearly show, is that an interpretative statement, and the proposition containing it, are capable of being true or false, maybe true only relative to a place and time, to an occasion, but nevertheless true! The legal interpretation is done inside the law following the criteria that the legal system itself had determined–according to some procedure–or with those the legal culture has established . There is a discussion about the discretional powers of a judge who is interpreting a legal provision which has no specific meaning ascribed, because is a new one, because is one not ever enforced, and so on . But even when a judge has to ascribe a new meaning, there are always elements inside the systems which allow him to do so . It is certainly true that the legal interpretation is a constitutive, normative enterprise; not only because of the peculiarities of the language of the law and the theories of legal scholars, but also because what the people doing it are pursuing is the establishment of meaning in order to settle down legal disputes . Nevertheless, this is a process which takes place, following AAP terminology, in the level of the legal order and not of the legal dogmatics75 . Mazzarese argues that the interpretative statements are ascriptions of meaning; I think the ascription of meaning is a process or event which is described by an interpretative statement . The legal meaning is ascribed in the level of the legal order; the utterance of the interpretative statement is later event which is part of the legal dogmatics: on this level the existence of different meanings of a legal provision (norm formulation) is only being informed by 69

70 71 72 73 74 75

Federal Rule of Evidence – FRE – 702 (1975); If scientific, technical, or other specialized knowledge will assist the finder of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill experience, training, or education, may testify in the form of an opinion or otherwise Frye v . United States, 54 App . D .C ., 46, 293 F . 1013 (1923) . Daubert v . Merrell Dow Pharmaceuticals Inc ., 509 U . S . 579 (1993), p . 2790 . The numbers on the list are mine . See also: http://www .daubertexpert .com/basics_daubert-v-merrell-dow .html http://www .superfinanciera .gov .co/ https://www .fogafin .gov .co/Principales/principal .html Constitutional Court of Colombia, Ruling SU-447, 2011 . AAP, (n . 62) at 429 .

On Truth of Norm Propositions: Re-finding a True Path*

47

who is uttering the statement . And it is because of this, that the truth about a norm proposition concerning the statement uttered is to be determined . ParT fIve: legal valIdITy – onCe agaIn: absTraCT naMes, defInITIon, CrITerIa

and

There are several definitions about what the legal validity is . I am going to focus on the definition developed by Alchourrón and Bulygin (following A&B) and further discussed by Bulygin alone76, which follows closely the one of Kelsen, since Mazzarese’s arguments are directed towards this definition and criteria . A&B and Bulygin suggest that in a very general way the legal validity could be understood at least, in two different senses: first as a relational concept or membership and second as a normative concept i . e . as a binding force . Under the first sense, what they call valid norms, are the ones which are to be counted and admitted as part of the legal system77 . Bulygin explains, following von Wright, that in this sense, the relationship of membership is not a consequence of the validity of other norms, but the existence of other norms of the legal system78 . According to the second meaning of validity, i . e . the normative one, a norm derives its binding force from another norm which grants its applicability . This idea, which A&B and Bulygin took from Kelsen, is discussed and abandoned, because of its circularity and the problems it posses to legal positivism79 . A&B also determined the criteria for validity, which they call “criteria of identification” . These criteria are conceptual rules, which serve to define the terms validity and valid norms80 . These rules are not to be confused with rules of action, norms, since the later deontically qualify some conducts and the former are restricted to the establishment of how some terms are to be used and how some concepts should be understood81 . They distinguished two different groups of conceptual rules: (i) rules of admission and (ii) rules of rejection82 . The former group determines under which conditions a norm is to be considered valid and the later, under which circumstances, a norm loses its validity in the system . It is only taking into account both groups of conceptual rules and following their content, that the recognition of the valid norms of the legal system could be done83 . A&B also argue, that the validity is 76

77 78 79 80 81 82 83

Eugenio Bulygin, ‘Norms, Normative Propositions, and Legal Statements’, in G . Fløistad, Contemporary Philosophy. A New Survey, vol . 3: Philosophy of Action, (La Haya: Martinus Nijhoff, 1982), 184 . There is a Spanish version in Carlos Alchourrón and Eugenio Bulygin, Análisis lógico y derecho (Madrid, Centro de Estudios Constitucionales, 1991) . A&B, (n . 13) at 69ss . Eugenio Bulygin, ‘An Antimony in Kelsen’s Pure Theory of Law’, Ratio Juris, Volume 3, Issue 1, March 1990, 29–45 . Ibid . A&B, (n . 13) at 73 . Ibid ., 73; Eugenio Bulygin, (n . 22); Eugenio Bulygin, ‘Regla de reconocimiento ¿norma de obligación o criterio conceptual? Réplica a Juan Ruiz Manero’, DOXA: Cuadernos de filosofía del derecho, 9, 1991, 311–318 . A&B, (n . 13) at 72 . Ibid ., 72–73 .

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predicated only from a part of the system, i . e . from a finite set of legal norms and their consequences–universe of cases and universe of solutions–which are applicable in a particular case . The determination of validity is something that the judiciary does, not in order to validate the system as a whole, but the norms of a legal order at a particular case at a particular occasion . This means in A&B theory, that there is a definition of validity and there are certainly criteria to determine it, even when not all the legal valid norms are at any moment determined84 . Take for instance the Colombian Constitution and the procedures established in it in the articles 150ss . The procedures to enact new norms in the system are all well established: there are several rules which determine the way the project is to be presented according to the theme, competence, impact, and so on, the way it has to be discussed, which kind of majority is to be reach in order to get the approval, etc . But these subsets of conceptual rules, which are part of the constitution, are also present at different levels of the system: norms establishing specific procedures in order to modify some provisions or the way they are to be applied . Even the rulings of the Supreme Court or of the Constitutional Court give some conceptual rules about the validity of norms, take for instance the decisions C-932 from 2006, the T-697 from 2010 or the T-119 from 2011, where the Constitutional Court gave some new criteria to determine when a specific norm is to be considered valid or invalid in the system, or when their validity could be submitted to a condition (The norm is valid, only if it is understood as ordering X and not otherwise . These are the socalled “sentencias condicionadas” of the Colombian Constitutional Court) . The word validity could be seen, like the words truth and the word law85–this happens in Spanish with “derecho” and in German with “Recht” as well–, as an abstract name which is used to refer to two different things: on the one side to the phenomenon and on the other side to the extensions or uses of the term . What is meant by saying that the law is valid is not the same as saying that there are valid laws inside the legal system . The term could be defined and applied in concrete cases . A&B state that legal validity is relative matter; this is due to the changing character of the linguistic terms been defined, which are experience dependent,86 and because legal systems themselves are temporal systems . What does this means? It means that even having a definition and a sharp distinction of the criteria, been valid is relative, just as it happens with truth, to an occasion; this does not presupposes that validity could not be predicated from norms . Despite of the fact legal validity and truth share some common elements; there is an important distinction to be made . While the definition of truth will remain the same and the criteria to determine it as well, the validity definition and the criteria to determine it could vary . Consequently, the epistemic problem about the validity statements disappears once we accept that the complexity of the matter is to determine the criteria to establish the validity of a legal norm and not to utter a declarative sentence about a legal fact . This process or event will depend on several reasons or arguments, on the variety of the contents of the conceptual rules, on the possibility of interpretation 84 85 86

Ibid ., 73–74 . I am using the distinction introduced by Haack . Nevertheless I am making an extension of it to the word valid, which she does not take into account . See: Haack, (n . 39) at 317 . A&B, (n . 13) at 77 .

49

On Truth of Norm Propositions: Re-finding a True Path*

of the conceptual rules and their terms, on the society and the legal culture of the society in which some criteria are to be created, and so on . But all these elements, after clearly elucidated, discussed, and evaluated will be incorporated into the criteria of validity, making the legal validity of norms possible and the discussion about these results true or false . As I see it, these are two different scenarios or, to keep it up with the terminology, two different (maybe but not necessarily) successive occasions87 . The argument of the levels of the legal order and of the legal dogmatics, using AAP terminology, applies mutatis mutandis to the utterance of a declarative sentence which will be taken as a validity statement (membership) of the system . Take for instance the ruling C-932 from 2006 of the Constitutional Court of Colombia, where new parameters for the validity of norms where introduced in the system because of an event of interpretation of the constitution . What the Court said in that decision is constitutive i . e . normative . But when I say something about the existence of this ruling, I am again, changing the level of the discourse and then, making a declarative statement about a valid norm, derived from a ruling, in the Colombian legal system . This declarative statement of validity which I am uttering and the proposition containing it–and by the way the results of the legal interpretations of the provisions involved, made by the Constitutional Court, as well–are subjects of true-values . ParT sIx: fuzzIness: a neCessITy languages

for The

naTural

and The

legal

In her second article, “‘Norm Proposition’” A Tentative Defense of a Skeptical View,” Mazzarese stresses the argument of the fuzziness of the language and the impossibility to assign truth-values to interpretative and validity statements . About the interpretative statements she writes: “… the semantic fuzziness of the language of law and the fuzziness of the most usual interpretative criteria lead to interpretative results which are fuzzy not because of any uncertainty in the formulations they are given, but because there is no one way to decide which is the right one…there is no objective way to find out the very norm a norm-formulation expresses…”88 regarding the validity statements she argues that because of the fuzziness of the interpretative statements, the validity statements must turn fuzzy themselves, furthermore she stresses that “…the question as to whether a given norm can be open to debate, and hence that the norm at issue can lead to different fuzzy valid statements; i . e . statements which, alike the interpretative statements, are “true” only to a certain extent, depending on the differing (legal) criteria their assessment is grounded on .”,89 makes validity disputable . As I see it, the argument is confusing different elements, which are in need of distinction and clarification . First, the idea of the semantic fuzziness of the language of the law; a sophisticated use of the expressions of natural language, and the impossibility to establish a meaning of an expression, in Mazzarese’s terminology, the 87 88 89

Von Wright, (n . 59) at 27–28 . Mazzarese, (n . 21) at 196 . Ibid ., 197

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impossibility to obtain a norm from a norm-formulation because of its fuzziness . Second, the way a meaning of an expression is better or worse justified or warranted . Third, the idea of a statement been partly true and the false consequence of not been capable of truth-values at all . If the argument goes the path of the fuzziness of the language, it seems to me, that the law is indeed in need of it in order to be capable of transformations . Transformations are in fact possible, among other reasons, because the language of law, like the natural language, is highly versatile . This is necessary for the law to transform, to evolve and preserve itself; creating possible uses of words in many unforeseen senses90 . This unforeseen “flexibility” creates different problems of precision when somebody needs or wants to say something . In this set of linguistic problems, there are two which are particularly relevant for the law: vagueness and open texture . Vagueness can be defined, basically, as an indetermination that exists in the meaning of a word, the way in which it has to be understood in a specific context . A vague word is one that, without further explanations about its meaning, can be interpreted in dissimilar senses, even contrary or contradictory . When vagueness is present in an event, it can be, as S . Haack established “… (primarily) a linguistic matter (words can be vague, not the things to which words apply), and furthermore, (primarily) semantic rather than pragmatic (‘vague’ is treated as a predicate of predicates, and sentences, rather than of uses of sentences)…”91, vagueness affects terms, not the things defined or described92 . But as Carnap showed, the meaning of vague concepts can be restricted and well developed to be clear to be able to be used in formal logic calculus93 . Vagueness will disappear once the meaning of the concepts used in a proposition is specified . So this is not really a problem, neither in Mazzarese’s account, nor in mine . But when a concept is imprecise in its meaning, is not always because it is vague . Vagueness is a condition that can be changed to make concepts clear . There is another situation that is not that easy to deal with . We are talking about the ‘open texture’ of the concepts; an idea introduced by Friederich Waismann in 194594 In Waismann words: “Vagueness should be distinguished from open texture . A word which is actually used in a fluctuating way (such as ‘heap’ or ‘pink’) is said to be vague; a term like ‘gold’, though its actual use may not be vague, is non-exhaustive 90

91

92 93 94

Gottlob Frege, Uber die wiessenschaftliche Berechtigung einer Begriffsschrift in Zeitschrift fur Philosophie und philosophische Kritik, vol . I, 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, (1882) 2002), 86 . Susan Haack, ‘Do We Need ‘Fuzzy Logic’?’, International Journal of Man-Machine Studies, 11, 1979, 432–45 . Reprinted: Susan Haack, Deviant Logic (Cambridge: Cambridge University Press, 1974), 2nd expanded edition, Deviant logic, Fuzzy Logic: Beyond the Formalism (Chicago, IL: University of Chicago Press, 1996), 232–42, at 236 . I am aware of the theory that argues for the existence of vague objects, which seems to me unsustainable . Rudolf Carnap, Meaning and Necessity. A Study in Semantics and Modal Logic, 2nd expanded edition, (Chicago and Londres: The University of Chicago Press, 1956) . See also: Haack, (n . 97) at 120 f . f . Friedrich Waismann, ‘Verifiability’, Proceedings of the Aristotelian Society, Supplementary Volume XIX (1945) . Reprinted in Antony Flew, (ed .) Logic and Language, the First Series (1951) . Available at: http://www .ditext .com/waismann/verifiability .html

On Truth of Norm Propositions: Re-finding a True Path*

51

or of an open texture in that we can never something like possibility of vagueness . Vagueness can be remedied by giving more accurate rules, open texture cannot . An alternative way of stating this would be to say that definitions of open texture terms are always corrigible or emendable .”95 What is open texture? It can be defined as the potentiality of vagueness that an empirical96 concept has itself, making the search and determinacy of the proper conditions for its verification a necessity for the concept, to be used in a proposition . But empirical concepts impede, at the same time, any conclusive or complete verification of concepts, because, as Waismann says “There will always remain a margin of uncertainty”97 product of the “…essential incompleteness of an empirical description…”98 which is, the possibility of extend any description with further details not viewed before99: “Any real thing is inexhaustible . My knowledge of it is always extensible . There is no maximal description”100 . This idea is later used by Hart in order to explain the use of general terms inside the law . According to Hart this problem of open texture is reflected in the impossibility of a legal rule being completely determined when there is a general term101, used to describe the norm . But at the same time, this is in some sense a necessity of the law to direct conduct; Hart states: “If it were not possible to communicate general standards of conduct, which multitudes of individuals could understand, without further direction, as requiring from them certain conduct when occasion arose, nothing that we now recognize as law could exist”102 . General terms (related to empirical terms) have the capability of changing because they involve states of things that are one way now but change, because of the tendency of human nature, social institutions and natural language to change quickly and easy . So this makes some concepts have an explicit meaning when promulgated or used in a legal decision making, and another implicit meaning that can be use or force the judge to consider another possibility on his decision . These kinds of situations are possible only, when an open-texture concept is involved . According to Mazzarese, this would undermine the idea of truth of norm propositions, because the interpretation has a no-final-character, but it is exactly because of this that my argument becomes stronger . The no-final-character does not undermine the possibility of having a final state of affairs, even if it is a temporal one . What does this mean? It means, that a decision could be reinterpreted, overruled, or supersede, but does not entail the impos95 96 97 98 99

Ibid . Ibid . Ibid . “…no definition of an empirical term will cover all possibilities…” Ibid . Waismann uses an example to present the argument: “…If I had to describe the right hand of mine which I am now holding up, I may say different things of it: I may state the size, its shape, its colour, its tissue, the Chemicals compound if its bones, its cells, and perhaps add some more particulars; but however far I go, I shall never reach a point where my description will be completed.” Ibid . See also: Frederich Waismann, ‘Language Strata’ in Logic and Language, 2nd ser . II, ed . A . Flew, (Oxford, Basil Blackwell, 1961) . 100 Ibid . 101 H . L . A . Hart, The Concept of Law, 3rd edition: with an Introduction by Leslie Green (Oxford, Oxford University Press, 2012) Brian Bix, Law, Language and Legal Determinacy (Oxford, Clarendon Press, 1993), Chapter one: ‘H . L . A . Hart and the ‘Open Texture’ of Language’ 102 Bix, (n . 101) at 124 .

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sibility of being described once been took103 . This is exactly what my previous examples show . As I said, the interpretation event and the claim of validity occur at a specific occasion . This means: when someone utters a declarative statement about the state of affairs, which after the processes or events of interpretation is final, this statement will be capable of truth-values . The second element of Mazzarese’s argument is related to a different epistemic problem i . e . to the result of interpretation as being better or worst justified or warranted . To determine which interpretation could be valid in the legal system is a task judiciaries must do with the elements and criteria of the system . Their decisions, as long as not challenged and changed because of e . g . new decisions or legislation acts, will be the decisions which are valid . The questions whether they are right, well justified, warranted, and so on, are an entirely different matter which in any case, does not undermine the idea of uttering declarative statements about states of affairs which are final in a specific occasion and, consequently, predicating truth-values about the propositions containing the statements of these declarative sentences . Regarding the last element of the argument, i . e . the idea of partial truth and not truth at all, a few remarks will suffice . After applying the criteria to determine truth, which I borrowed from Ramsey, it is possible to say that a statement could be partially true, that it would be, as Mazzarese puts it true “…only to a certain extent…” . This however, does not presuppose the impossibility of truth-values either . Like in the natural, or even in the formal language e . g . propositional logic, a proposition would be true if what is in its propositional reference is, and not, if it is not . If only a part of its propositional reference is, then it would be partly true but, as a whole, false . Again, the problem is not truth, but the criteria been applied to determine the true of the proposition . ConCludIng reMark The arguments of Mazzarese seem to me to be the result of some confusion and the lack of detailed account about propositions, interpretation and validity . Moreover, regarding the idea of truth-values of norm propositions, as seen, the problem is a result of no differentiating the definition and the criteria of truth, in order to be applied to norm propositions . As I have tried to show, hopefully clearly enough, a detailed account on these matters suffices to abandon the skeptic view on norm proposition, re-finding a true path .

103 This is the same in the natural sciences . Take for instance the discussion about planets . After the definition of planet developed by the International Astronomical Union in 2006, Pluto fell into a new category . Nowadays Pluto is no longer considered to be a planet but a “dwarf planet” . Until 2006 the Solar System has had nine planets . But the fallible character of a theory does not compromise its truth-value, as long as it is not refuted . As long as Pluto was considered part of the Solar System as a planet, all the propositions having a propositional reference in this respect would have been true . See: https://www .iau .org/static/resolutions/Resolution_GA26-5-6 .pdf and also, https://www .iau .org/public/themes/pluto/

PART II –

TRUTH AND

LEGAL REASONING

giusY conza, fLora di donato & francesca scamardeLLa CrossIng TheorIes of arguMenTaTIon and huMan-ConTexTual dIMensIons To analyze judICIal deCIsIons and legal TruTh aCquIrIng1 1. InTroduCTIon In classical legal theories (from the 1950s) argumentation has mainly been defined as a tool to justify judicial decisions (i . e . the judges’ judgments) rather than a process of decision-making2 . Taking distance from these classical perspectives, we move from the definition of the trial as a “complex of social interactions that give structure to the legal dispute”3 and we assume that argumentation supports the (inter-)action of human beings involved in the legal discourse, by orienting their activities and legal strategies . In fact, our starting hypothesis is that individuals play a communicative role within the trial in order to claim their representation of facts and accomplish their legal agentivity4 . In order to develop this hypothesis, we will divide this paper in three parts . In the first part, we will present a model of “argumentative process” based on Manuel Atienza’s thesis5 . His conceptual framework seems to be very useful for different reasons and especially because he imagines that the judicial argumentation is made of three dimensions: formal, material and pragmatical . Therefore, we adopt this model in order to manage the main aim of the trial: the pursuit of the truth . In the second part, we explain the concept of legal agentivity showing its connections with the argumentative process6 . Moving from the scientific framework sketched in parts one and two (§§ 2, 3, 4), in the third section we will analyse a decision taken by the Italian Corte di Cassazione in order to verify our scientific hypothesis and to show how the argumentative process is not only based on theoretical criteria or

1 2 3 4

5 6

Even if this contribution is the product of the collaboration between the co-authors, §§ 1 and 6 have been written by the co-authors; §§ 2 and 5 have been written by Giusy Conza; § 3 and the appendix by Francesca Scamardella; § 4 by Flora Di Donato . Manuel Atienza, El derecho como argumentación (Barcelona: Ariel Derecho, 2006) 11, Id ., Diritto come argomentazione. Concezioni dell’argomentazione, ed . it . (edited by) A . Abignente, trans . V . Nitrato Izzo (Napoli: Editoriale Scientifica, 2012) . R . L . Abel, ‘A comparative Theory of Dispute Institutions in Society’, in Law And Society Review, 1974, vol . 8 (n . 1), 217–347 . See the presentation at the scientific journey on “Argumentation and Knowledge” organized by the University of Neuchâtel and the University of Lugano: Flora Di Donato, “The interplay between legal, cultural and emotional arguments in solving legal cases: the agentivity of the protagonists”, 23 January 2014 . See Atienza, El derecho como argumentación (n . 2) . For an expanded discussion of the concept of legal agentivity see Flora Di Donato, Narratives in Cultural Contexts. The Legal Agentivity of the Protagonists, 2014b, 1–25, http://papers .ssrn .com/ sol3/papers .cfm?abstract_id=2469436 .

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logical and formal argumentation but is socially shared too7 . Actually, the aim of this contribution is to show how human beings play a relevant role within the trial in acting and in searching for the legal truth, in given contexts8 . Thus, we will investigate the relationship between argumentation and legal truth in order to understand how individuals use argumentation for acting inside the trial that could be considered as a process open to factors such as the socio-cultural context . 2. arguMenTaTIon judgMenT?

and legal dIsCourse: good reasons as jusTIfICaTIon of a

Despite of a traditional use of argumentation as being linked to the dialectic and rhetoric issues9, today argumentation is meant as a social, dialectical, and intersubjective practice10 . This transformation started in the second part of the last century when legal theorists criticized the traditional model of legal reasoning based exclusively on formal logics and legal syllogism . The main expression of this new trend can be considered Perelman’s nouvelle rethorique; Toulmin’s conceptualization of the working logic and Alexy, Peczenik, MacCormick, and Aarnio’s works who formulated their so-called standard theories of the argumentation11 . Through these theories, argumentation discovers its practical matrix that arises from the dilemmatic and never resolvable tension between law and moral12 . Amongst these new approaches we can also consider the one elaborated by Manuel Atienza, whose main merit has been the development of a theoretical argumentative model that goes beyond the classical theories of jusnaturalism and juspositivism . Manuel Atienza’s conception of argumentation is based on three dimensions: formal, material, and pragmatic13 . These dimensions are strictly related in the sense that argumentation can be considered as a whole only at the presence of all of these three dimensions14 . Actually, every dimension expresses its own function: the formal conception is strictly linked to the canon of certainty; the material one expresses the need of truth and justice; the pragmatic dimension warrants the accep7 8 9 10 11 12 13 14

Manuel Atienza, Curso de argumentación jurídica (Madrid: Editorial Trotta, 2013); and see Atienza, El derecho como argumentación (n . 2) . Flora Di Donato and Francesca Scamardella, ‘Epistemologia e processo: un approccio di socioclinical law per l’analisi narrative di casi giudiziari’, in Sociologia del diritto, 2013, 3, 75–109 . Aristotele, Retorica e Poetica, (edited by) M . Zanatta, (Torino: Utet, 2004) . Francesco Viola, Giuseppe Zaccaria, Diritto e interpretazione. Lineamenti di teoria ermeneutica del diritto (Roma-Bari: Laterza, 2002), 106 . Italo Testa and Paola Cantù, Teorie dell’argomentazione. Un’introduzione alle logiche del dialogo, (Milano: Mondadori, 2006) . Frans H . Van Eemeren and Rob Grootendorst, Teoria sistematica dell’argomentazione. L’approccio pragma-dialettico, trans . A . Gilardoni (capp . 6–8, appendice) and G . Raniolo (capp . 1–5), (Milano: Mimesis, 2008) . See Atienza, El derecho como argumentación (n . 2) . Even if argumentation is an enterprise made of these three dimensions, in every field there is a prevalent dimension . For example Atienza (See Atienza, El derecho como argumentación (n . 2) argues that lawyers’ argumentation is dialectical as regards the client’s defense and rhetoric when it is referred to the judge’s persuasion .

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tance of decision and the consensus given by its addresses . For Atienza, law is a good example of the rational enterprise where the legal justification consists in giving good reasons in an adequate form, in order to persuade/convince the addressee of the decision itself15 . Moving from the theoretical premise, that the legal argumentation is a process made of logical and formal features, combined with good reasons that aim to make pragmatically acceptable a decision for a social community, our attempt is to show if and how it is possible to establish a relationship among the legal argumentation itself and the trial’s community . Our question is: should we consider judicial argumentation only as a process in which the judge evaluates objective evidences and rationally and coherently decides the litigation according to them? Or argumentation is a more complex enterprise, involving other participants to the trial (client, lawyer, witnesses)? We think that the use of the legal argumentation is not so simple as it can appear . Legal argumentation is problematic because it is strictly linked to a conflict . If there is not any conflict there is no need to argue . On the contrary if there is a problem to solve, a conflict that requires a legal decision, legal argumentation has to play its own role, as earlier said . From this perspective argumentation can be associated to the legal discourse, its structure and processes . As we know, the legal discourse does not consist in an exchange of ideas or opinions; it is a communicative process aiming to achieve a rational consensus through the justification of the interlocutors’ argued instances . So the question is: how we can represent the legal argumentation when it is linked to the judicial trial? If we admit that there is no one definition of what argumentation is, then we can approximately assume that it “is an activity consisting in giving reasons for supporting thesis and opinion or instances” . Argumentation provides means to decide the issues, to resolve the conflict and establish the truth within a trial . 3. arguMenTaTIon

and TruTh

In the previous section we have defined the argumentation as a process capable of giving reasons for rationally justifying an assertion in order to make it acceptable for a community . The argumentation process allows solving a conflict in the specific context of the trial, through its capacity to give rational reasons concerning the issue, the problem looking for a solution . Legal argumentation shapes the voice of the actors inside the trial . It gives an institutional form to their pluralism within the trial . Legal argumentation refuses every pre-existent truth, as a priori truth: the only truth comes from the trial itself where people argue their assertions in a dialogical way16 . Legal actors (witness, 15 16

See Atienza, El derecho como argumentación (n . 2), 97 . “What is truth in a trial?”, has asked Susan Haack giving a speech at the Congress “Un jurista pluridisciplinar: en torno al pensamiento de Michele Taruffo”, organized by the Càtedra de Cultura Jurídica, Universitat de Girona, 24–25 January, 2015 . [Truth] “Is only something that we can define: «It is so!» . To say what is it, that it is” .

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judges, lawyers) can act in the process through the narrative and reflexive forms of argumentation . As Atienza suggests, “[a]rgumentation is different from mechanisms based on votes . Argumentation requires that the subjects who must decide reflect on the exchanges of arguments and reasons with the aim of rationally convincing others17” . In a jus-positivistic model, legal truth is perceived as an objective and absolute way, for which judge decides and verifies the previous facts18 . Nevertheless the issue of truth has become more problematic in the light of New Realism . According to the New Realism, reality is not true because facts can be known but the circumstance of their knowledge does not change their objectivity . Facts do exist even if we don’t know them . Reality has to be meant in an ontological sense and only eventually known by agents, because if we know it and we ignore it “the world stays as it is19” . Put in other words, the New Realism conceptual proposal consists in a strong separation between reality and truth in the sense of the autonomy of facts that cannot be changed in their ontological existence by cognitive schemes, as the constructivism has argued20 . Thus, we do not apply in total the distinction proposed by the New Realism because it would miss some important features for the trial in neglecting how agents act in trial through argumentation; how a judge’s decision and its justification arises and how it will be rationally perceived (and for this fact acceptable) if every its assertion will be rationally justified . The concept of truth, proposed by New Realism, can be referred as a factual truth that deals with known facts as they happened, but not as a legal (interpretative) truth that expresses the possibility to establish the correspondence between an interpretative judicial assertion to a legislator rule . According to this, argumentation refers to both concepts of truth and if it is quite clear that a judge cannot achieve an objective and absolute truth, it does not mean that a trial has to renounce to the pursuit of truth, because of a radical skepticism . According to us the truth needs always to be contextualized and re-established every time21 . 4. how

To ConCIlIaTe The Theory of arguMenTaTIon wITh human agency?

In discussing the theoretical perspective described in the previous sections and in conceiving the legal argumentation as a process that also includes material and pragmatical dimension – based on legal actors’ arguments (legal and cultural) in order to support thesis and act the law and justice – on one hand, we propose to focus on these argumentative dimensions, trying to understand how they work within the trial in orienting the parties in the research of the legal truth . On the other hand, we

17 18 19 20 21

See Atienza, Curso de argumentación jurídica (n . 7), 41 . Maurizio Ferraris, Documentalità. Perché è necessario lasciar tracce (Roma-Bari: Laterza, 2001), 117 . Maurizio Ferraris, Manifesto del nuovo realismo (Roma-Bari: Laterza, 2012), 46 . Flora Di Donato and Francesca Scamardella, ‘Epistemologia e processo: un approccio di socioclinical law per l’analisi narrative di casi giudiziari’, (n . 8) . Norberto Bobbio, Prefazione a C . Perelman, L . Olbrechts-Tyteca, Trattato dell’argomentazione. La nuova retorica, trans . C . Schick, M . Mayer, E . Barassi, (Torino: Einaudi, 2001) .

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wish to focus on human beings’ activity within the trial, showing them as protagonists of their own (legal) destiny22 . With this aim we adopt the expression of legal agentivity proposed by Di Donato to describe the active positions of the “legal protagonists” (clients) in solving cases, despite a traditional vision where people are represented having a passive role in society and in the law and justice23 . The concept of human-legal agentivity is shaped within cultural and legal-contextual frameworks . In a geertzian sense, culture can be basically meant as the capability of human beings to get connected by sharing a common language and symbolic resources (i . e . religion, cooking, storytelling and other daily activities24) . The socio-anthropological meaning of culture fits also with a juridical one . Cotterell25, for example, introduces the notion of legal culture to describe the function of law to shape and orient social relationships; reciprocally social relationships affect the ways in which law is interpreted and practiced by common people in a community . The notion of legal culture has been created by jurists not only in a technical sense – as the expertise of lawyers in filtering legal notions arising inside and outside of the legal system – but also to conceive of the participation of common people in a shared construction process of legal meanings26 . The other notion, that of context, is adopted with a “flexible” meaning to describe a “sense-making activity” as the product of negotiations between different visions of the reality, intentions and emotions among social actors . These negotiations can be translated into daily conversations or legal argumentations . Finally the notion of agentivity is related to that of context, thereby highlighting the active role of individuals inter-acting in social contexts with the intention to produce results (aims) that can be shared within a community . Moving from these socio-legal assumptions, the aim of our contribution is to highlight some contextual and human dynamics that influence the legal decisions and the truth acquiring in the trial . To join this goal, we propose to open the theories of argumentation toward external factors as the “reality” of the cases and the argumentation of the parties as expression of their own (legal) agentivity . To demonstrate our 22 23

24 25 26

For more, see also: Sztompka . The author argues that the social action, not linked to that of the institutions, can be read as a distrust in the istitutions themselves . Piotr Sztompka, Trust. A sociological Theory, (Cambridge, U . K .: Cambridge University Press, 1999) The word agentivity refers to the capacity of human beings “to act” influencing institutions in a given context . It started to be diffused at the beginning of 1970’s as a reaction to structuralism which did not consider the role of human activities in society . The aim of reactionary movements such as feminisism was to demonstrate how human agentivity can shape social and political structures . Giddens was one of the first sociologists to define agency . Then the concept was adopted by anthropologists and further developed by linguists . For more, see: A . Duranti, Etnopragmatica. La forza nel parlare (Roma: Carocci, 2007), 18 ss . For the shaping of the concept of legal agentivity, see Flora Di Donato Flora, La realtà delle storie. Tracce di una cultura, (Napoli: Guida, 2012a); Flora Di Donato withdraw “Flora”, ‘La soluzione di casi giudiziari tra diritto e cultura: le narr-Azioni dei protagonisti’, in L’eccezione e la regola. Opposizioni, convergenze, paradossi, ed . Andrea Smorti (Firenze: SEID, 2014a), 149–174 . Id, Narratives in Cultural Contexts (n . 6) . Clifford Geertz, The Interpretation of Cultures (New York : Basic Books, 1973) . Roger Cotterrell, ‘Law in Culture’ in Ratio juris, 2004, 17, 1, 1–14 . Lawrence M . Friedman, The Concept of Legal Culture: A Reply in D . Nelken, Comparing Legal Cultures (Brookfield (VT): Darmouth Publishing, 1997) .

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theoretical hypothesis we propose the analysis of a ruling of the Italian Corte di Cassazione – n . 10741 in 2009 – dealing with a case of a child born with malformations . 5. a

sound judgMenT?

Facts A woman with a problem about getting pregnant was given the medicine Clomid by doctors in order to stimulate her ovulation . After giving birth the woman’s child had serious malformations . The woman and her husband went to Court asking for condemnation of the medical Center, the doctors and their staff . They argued that they had not been informed about the negative effects that the medication Clomid caused . tHe LegaL Process deveLoPment Tribunal of Naples and the Court of Appeal of Naples. The parents of the child went to the Tribunal of Naples denouncing the Medical Care Center and the two doctors . Both participated in the trial: the Center argued that it did not take any responsibility (contractual nor extra-contractual) because the woman received the medical attention by the two doctors and the baby was not born in the Center . The doctors argued that they had been working for the Center without any kind of autonomy and had followed the Center’s directives . They also argued that it was not Clomid to have caused the malformations of the baby and that they could not have been diagnosed through the scan before the fifth month of the pregnancy . Given the evidence by the parts involved, the Tribunal decided for the exclusive responsibility of the Center, condemning it to pay money to the baby’s parents . The Court of Appeal of Naples Against the Tribunal’s decision the medical Center went to the Court of Appeal asking for a different conclusion . It assumed as follows: – Clomid did not give the effects denounced by the woman; – there was no legal consent necessary for prescribing Clomid; – Clomid was prescribed before the pregnancy occurred and it could not be considered the cause of the child’s malformations; – these malformations could be scanned only after the fifth month that is to say out of the eugenic abortion period; – the responsibility must be attributed to the doctors . The two doctors participated in this second trial too, arguing that the malformations could not be caused by Clomid because the woman had taken it before becoming pregnant . They argued the Center’s responsibility . The parents asked for the responsibility of the two doctors . The Court of Appeal changed the decision of the Tribunal establishing the responsibility of doctor A* who prescribed Clomid to the woman and it condemned both doctors (A*, B*) to pay the damages together with those already paid by the Center .

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The Corte di Cassazione decision. Adduced reasons by doctor A* Violation and false application of paragraphs 1218, 1223, 2043, 2056 Civil Code . Specifically doctor A* argued that he was doing his job in proscribing the medicine capable of curing the woman’s infertility . With the prescription of Clomid the woman became pregnant . So, according to the medical duties, doctor A* was not responsible for the malformations of the fetus . Doctor A* argued that there was no evidence that malformations were caused by the Clomid because it was proscribed to the woman before she became pregnant . He also argued that in the Italian legal system there is no legal right to be born healthy and so the child had no legal right to be paid for the damages caused . He concluded that the decision of the Court of Appeal of paying for the damages to the child could not be justified, because he had not violated any laws . How the Court decides. The doctor A*’s thesis was not accepted by the Corte of Cassazione for the following reasons: – The fetus must be considered a legal subject with his/her own personal rights . The causality between the misinformation (about the negative effects of Clomid)27 and the malformations of the fetus makes the baby’s right for compensation viable . – The legal subjectivity of the fetus (futurus esse) arises from the pluralism of the national, international and deontological sources of law and from the general clause of the centrality of the person Finally the decision of the Court was: “established the legal subjectivity of the fetus as a futurus esse and his own right to be born healthy, the assumption of the Clomid in violation of the informed consent in terms of its negative effects for the fetus’ health, there is a legal duty for doctors A* and B* for compensation to the child” .

The Court legal reasoning: two good reasons Is the fetus a legal subject? The first relevant issue of this sentence is the legal condition of an entity (foetus) who does not exist yet (the so-called futurus esse) . Has a foetus the right to be born healthy? The Court accepts the Italian theory that considers the futurus esse as a person having specific rights because the foetus has a particular legal subjectivity28 . The Court declares to follow the hypothesis of the wrongful life29 theory . 27 28 29

The Court of Cassation also has used the so-called argument from consequences, arguing that statistics showed the negative effects of the Clomid in terms of fetus’damages . C . Massimo Bianca, Diritto civile, I, La norma giuridica. I soggetti (Milano: Giuffrè 2002); Francesco Gazzoni, Osservazioni non solo giuridiche sulla tutela del concepito e sulla fecondazione artificiale, in Diritto famiglia e persona, (Milano: Giuffrè, 2005),168 ss . . The wrongful life – that is an expression used in the common law countries – indicates an unwanted life for malformations not diagnosed . It is referred to a requirement of compensation formulated by the child him/herself . Other hypothesis are the cases of a wrongful birth and of a

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The legal subjectivity of the futurus esse is based on two argumentative reasons: a) the pluralism of the legal sources; b) jurisprudence with its stare decisis limit is considered a legal source of law . As concerns the first issue, the Court argues that the contemporary legal system has to be considered as partially open in the sense that it is made not only of formal rules (coming from the Parliament) but also of principles and general clauses that should be used by interpreters and judges for making law more capable to protect fundamental rights . So the legal system can be considered as a space where human beings can act and contribute to the reconstruction of the legal truth . In the analyzed specific case, the Court recognizes the presence of a “general clause of the centrality of the person” coming from the national and international law . This clause makes it possible in order to recognize the legal subjectivity of the fetus (futurus esse) . The use of this general clause explains the second issue (the role played by the stare decisis) . As we know, a general clause, as a principle, has an open and not well-defined meaning . The judge’s task (or of the interpreter more in general) is to give a specific content to it looking for the right to be protected . The general clause used by the Corte di Cassazione (the centrality of the person) is not expressed in any written rule . It means that more than a general clause it has a concept that the Court deduces interpreting the Italian Constitution30 (paragraphs 2 and 32) and uses it for establishing the legal subjectivity of the fetus . How the Court defines this specific legal subjectivity? It argues that the fetus’ legal subjectivity “is wider both the legal capacity (that is obtained only after birth) and the legal personality (recognized to the associations, in terms of economic autonomy) . In such a context the foetus, futurus esse, has an autonomous legal subjectivity because he has specific rights, such as the right to live, to be healthy, to have his/her own identity and so on . Being born has to be considered as the event that legitimates all legal rights for a new human being and compensation must be applied to all damaged fetus born with malformations” . This premise leads the Court to declare that the foetus is a person31, even if the issue is not so easy for jurisprudence and doctrine . What does the expression “the foetus is a person” mean? It means that the foetus, even if he/she cannot be considered as an effective subject before of the birth, he/she has a specific sphere of rights that must be protected . Giorgio Agamben32 has described this particular situation with the oxymoron “inclusive exclusion”,

30 31 32

wrongful conception . The first expression is referred to a requirement of compensation asked by parents of the child with malformations; the second indicates the case of a child born healthy but unwanted by the parents (born, for example, after a surgery of sterilization, failed because of medical responsibility) . For more, see: Eduard Picker, Il danno della vita. Risarcimento per una vita non desiderata (Milano: Giuffrè, 2004), 12 ss . Giuseppe Cricenti, ‘Il concepito soggetto di diritto e i limiti dell’interpretazione’, in La nuova giurisprudenza civile commentata, (Padova: Cedam, 2009) XXV, 12, 1258–1275 . The Court declares: “on the general clause of the centrality of the person it is possible to establish that the fetus is a legal subject”. Giorgio Agamben, Homo sacer. Il potere sovrano e la nuda vita (Torino: Einaudi 2005) .

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meaning that even if the fetus cannot be considered as a subject for the imputation of rights and duties, she has the right to be protected because of his/her own legal subjectivity (the wrongful birth theory) . Once the Court has argued that the fetus, futurus esse, is a legal subject, having specific rights, it recognizes a new right: that to be born healthy . It is because of this right that the fetus must be compensated for the damages caused by Clomid . The Court argues that the doctors’ civil responsibility is based on three circumstances: the mistake, the damage, the causality between the mistake and the final damage . The first one consists in the violation of the informed consent duty: the doctors had the duty to inform the woman about the negative effects of Clomid . Here the issue is that the loss of the informed consent had caused a wrongful life . The damages of the fetus constitute a legal case of “material damage33” that justifies the compensation asked by the parents . The Court considers the wrongful life itself as damage because every person has the right to be born healthy . But on another perspective we should argue that if the doctors had informed the woman about the possible negative effects of Clomid, the woman could not ask for an abortion because the Italian law forbids the eugenic abortion .34 The question is: could we see the causality in the medical mistake as the cause of the fetus’ handicap? The answer to this question is not so simple . The judge has to choose if the fetus has the right to be compensated if his wrongful birth is allowed35 . We are talking about an issue that looks for ethical and rational answers establishing that the eventual right to be born healthy can justify a compensation . The right to be born healthy, argues the Court, is an explication of the health right established by the paragraph 32 of the Italian Constitution: the fetus has the right to be born healthy and, once cut: been born, he can act thanks to the right established by paragraph 32 of the Constitution . For the Court this paragraph also means that before the birth the legal order has to warrant all the essential conditions for a healthy birth . It follows that the informed consent must be considered as one of the necessary conditions that warrants the healthy birth of the fetus . This right is exercised by the parents of the fetus and its violation justifies compensation for them and not only for the damaged baby .

33 34

35

Jurgen Habermas, Il futuro della natura umana, trans L . Ceppa (Torino: Einaudi, 2002), 16 . Actually the last October the Italian Constitutional Court, with the decision n . 221/2015, has declared the constitutional illegitimity of the paragraphs 13, clausus 3 (lett . b) and 4 of the Law n . 40/2004 . It means that now it is possible to select embryos with a preimplantation genetic diagnosis . See Picker, Il danno della vita. Risarcimento per una vita non desiderata (n . 29), 13 .

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6. ConCludIng reMarks: on by usIng legal arguMenTs

how To

develoP agenTIvITy

InsIde The

TrIal

The aim of this contribution was to explore the trial by a particular perspective: that of human beings acting in the trial . We moved from the assumption that the aim of the trial is not only to solve the conflict but also to establish some kind of truth . We have refused a jus-positivistic concept of objective and absolute truth, accepting a relative concept that does not mean to go toward a radical skepticism but only to the awareness that truth is a concept never definitive, but always plausible in a given context . We have approached this issue from the perspective of human beings, exploring their legal agentivity as a specification of the larger contemporary category of human agency . More specifically we have tried to understand if this legal agentivity can be expressed through argumentations . Thus our theoretical starting points were represented, on one hand, by Manuel Atienza theory that points out three dimensions of the argumentation, underlining, above all, the material and the pragmatical ones; and on the other hand, on contemporary socio-legal assumptions that aim to explore the active role of human beings acting the law and the justice . In order to verify our hypothesis we have analyzed a decision of the Italian Corte di Cassazione . By using the case law methodology, we have tried to keep the theoretical approach with the practical one together . On one hand the analysis of the case has allowed us to verify if the external and internal justification36 have been satisfied by the judge’s argumentation37; on the other hand we have tried to focus the individuals’ agentivity inside the trial that assumes the form of the procedural argumentations . In considering both aspects we meant the trial as an enterprise whose solution depends on formal rules but also contextual ones (that often are silent or hidden)38 . Therefore in the specific case, the adoption of the legal agentivity category showed us how a fetus can be considered as a legal subject expressing and acting his own rights through the activity of the parents . More specifically, the child – through the voice of his parents – invokes a specific protection, not as an object that has to be defended, but as a subject having specific rights . His first right is to be born healthy . Linked to this right there is the right to have the conditions necessary to be born healthy . The birth is only the natural event that allows to the child to act, expressing his agentivity (because if the fetus dies he cannot require compensation) . How we can legally explain the agentivity of the fetus? The Court clearly declares that the subjectivity of the fetus is a category wider than that of the legal capacity (obtained with the birth, as the Code Civil declares) . Therefore the category of the legal agentivity experiences a form of expansion because the child is not a subject without any defense . Starting to the general clause of

36 37 38

Robert Alexy, Teoria dell’argomentazione giuridica. La teoria del discorso razionale come teoria della motivazione giuridica (Milano: Giuffrè, 1998) . See Atienza, El derecho como argumentación (n . 2) . Flora Di Donato and Francesca Scamardella, ‘Il silenzio “a più voci” nelle narrazioni di clienti e avvocati’, in Sociologia del diritto, vol . 2012, 2, 127–150 .

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the centrality of the person – having the right to be born healthy – the child can directly act in the trial (of course through his parents and his lawyers) . We can realize this kind of agentivity considering the doctors’ argumentations and the parents ones . In the first case, two doctors argue that the child has no right to compensation because as a fetus he has any autonomous right to be refunded . They assume to have respected their medical duty when the woman became pregnant . The parents of the child act for requiring a compensation for themselves and as voices of their child: it means that the child has an autonomous subjectivity . The fetus’ legal agentivity is expressed through the legal argumentation that he has the right to be born healthy . He is the real owner of this right and the judges with their decision recognize this right linked to this specific form of legal agentivity .

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Appendix

The argumentative scheme used by the Corte di Cassazione

Is the foetus a legal subject?

Is the category “to be born healthy” a right?

Legal sources pluralism

§ 1, L. 40/2004 § 254, Civil Code § 32 Constitution

§ 3 Universal Declaration Has the contract between pregnant

decodification

depatrimonialization

woman and doctor effects for the fetus (futurus esse)?

uncertaingy of law YES

centrality of the person “general clause”

-§ 1411 Civil Code - Interpretation of the Civil Code

judge’s interpretative function

constitutionally oriented Do these rule violate the Italian Constitution? Violation of the legal duty of the informed consent

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Crossing Theories of Argumentation and Human-Contextual Dimensions

(for the woman)

NO

Clomid

Woman’s decision

potential negative

to interrupt

Does the judge’s interpretative

effects

the pregnancy

function violate the Constitution?

NO Fetus’ right to be compensated

No compensation for the fetus The fetus is a legal subject

There is a right

There is any right

to be born healthy

to be not born (if the fetus is not healthy)

Eugenetic abortion forbidden

fernando josé armando ribeiro1 TruTh, herMeneuTICs

and judICIal

deCIsIon

InTroduCTIon Law is not only what is contained in the texts of statutes and precedents . These legal texts only set forth abstract commandments, able to regulate interpersonal relations . Therefore, the search for law in legal texts is fruitless if it does not consider the role of the interpreter and the plurality of all the other norms that compose the legal system which by themselves are the product of interpretation . Modern hermeneutics teaches us that everything that is perceived and represented by the interpreter refers to a process of interpretation, and that the world comes to mind through language . If language is already a form of interpretation, hermeneutics is inseparable from human life and, therefore, inseparable from Law . Hence, Law depends on hermeneutic mediation . Without hermeneutics there is no law, only normative texts . Only through discourse can Law express the valid and invalid, the reasonable and unreasonable, and the dialectical affirmation of human freedom . To investigate and reflect the application of law in a democracy and in the context of pluralism requires the recognition of the inevitability of reflective interpretation of texts . In this sense, Gadamer’s philosophical hermeneutics can be considered indispensable to the study of Law . It demonstrates its critical and reflective dimension when understood as a dialogue with tradition . Making use of Gadamer’s philosophical hermeneutics, this paper investigates the limits and possibilities of judicial interpretation of law . ParT one: The role

of The judge: soMe

refleCTIons

In the Civil Law system, in the beginning of the modern era the law as an incarnation of the State found the very meaning of its sovereignty through the statutes . To the judge, understood as a simple instrument of the State, rested the role of applying the law according to the model of syllogistic application . Member of a power of reduced importance, the Constitution would lie beyond judiciary reach, considering that the concept of law did not cover the normative force of the Constitution, a dimension able to establish the public space2 . When legal positivism came to its peak, with its concern about the abstract system of Law, judicial interpretation was also separated from the force of tradition, as well as from the possibility of rescuing the fundamental principles of the legal system itself . The formalist perspectives can be explained by different reasons . Among them, with prominent evidence, is the historical evolution of the law that led it through 1 2

PhD; Professor of Law at PUC-Minas; Judge in the state of Minas Gerais (Brazil) Lênio Streck, O que é isto – decido conforme minha consciência? (Porto Alegre: Livraria do Advogado, 2010) 81 .

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medieval times to the modern age . If the people became the new sovereign, and they speak through legislation, laws and statues should be seen as their voice . The more systematic and precise legislation is, the more interpretation is restricted and so the self-government principle will be more respected as the will of the people . Law’s interpretation could then be reduced to a subsumptional process . This idea was properly incorporated into the ideology of the Liberal Modern State . It can be understood by Montesquieu’s words, written in the Le sprit des lois, according to whom the judge should be merely seen as “la bouche de la loi”, the law’s mouth, responsible only for pronouncing what was already contained in legal statutes .3 However, the tragic events that happened under the totalitarian states of the twentieth century demonstrated with strong force that the rationality of the Law should not be separated from the normative order of morals . The search for justice, reborn in contemporary law meant, firstly, that Law depends on principles and the interpreter should have a more relevant role in the application of the law . ParT Two: The evoluTIon of herMeneuTICs hans-georg gadaMer

and The

ConTrIbuTIon

of

The model of hermeneutics, from the scholastics to the historic-evolutionary system, consists in the study of the processes used to establish the meaning and the reach of language’s expressions . However, since Heidegger, hermeneutics studies cannot be conceived as a mere instrument to make the subject of study understandable . Following the path of his master Heidegger, Gadamer says, “being that can be understood is language”4 . The language in the context of Gadamer’s Philosophical Hermeneutics is the total mediation of the experience of being . And, in these terms, the limit is imposed on all hermeneutical experience of meaning . As well explained by Jean Grondin, “Hermeneutics looks to understand what the understanding is, over and above the ease of a purely technical control of it . This is perhaps what hermeneutics wanted to be, as far as the art of understanding goes . The experience of truth to which Gadamer appeals is found to depend less on epistemology (…) Experience which strikes us and becomes part of us, more deeply than any syllogism or analytic argument . Our understanding, our experience, are dependent on such a ‘grounding’ . The great enticement of modern methodology is to persist in making us forget it .”5

For Gadamer, being can never be understood in its totality, because for everything that triggers language always refers beyond the statement as such . The self cannot be understood in its entirety and cannot therefore claim to be a complete interpreta-

3 4 5

Charles Luis de Secondat Montesquieu, Baron de la Brède et de, De l’esprit des lois (Paris: GarnierFlammarion, 1979) . Hans-Georg Gadamer, Truth and Method, 2nd Ed ., translated by Joel Weinsheimer and Donald Marshall, (New York: Continuum, 2006), 470 . Jean Grondin, The philosophy of Gadamer, (Montreal & Kinsgston: McGill-Queen’s University Press), 19–20 .

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tion6 . It is noteworthy that, in the preface to the 2nd edition of Truth and Method Hans-Georg Gadamer states that “if there are any practical consequences of the present investigation, it certainly has nothing to do with an unscientific ‘commitment’; instead, it is concerned with the scientific integrity of acknowledging the commitment involved in all understanding” .7

For Gadamer, if the experience of art proves that the truth rests beyond the sphere of methodical knowledge, something similar is true for all the sciences of spirit (Geisteswissenchaften) in which historical tradition is transformed into an object of research . Truth and Method is proposed to expose the truth as happening, always an actualization, but already steeped in tradition8 . In this sense, Gadamer presents some important contributions that should be noted . The historical horizon is the possible range of view from a particular point in history, i . e ., the result of the dialectical contrast of past and present . In the words of Gadamer, “the interpreter’s own horizon is decisive, yet not as a personal standpoint that he maintains or enforces, but more as an opinion and possibility that one brings into play and puts at risk, and that helps one truly to make one’s own what the text says” .9

The historic experience shows that man’s access to the world comes from the point of view of his hermeneutical situation, which is his specific position in front of the phenomena . Prejudices would be an advance and diffuse prior meaning of the text influenced by the tradition in which the interpreter is situated . In other words, they are the product of the intersubjective relationship the interpreter keeps with the world . Prejudice – or pre-understanding – is a part of understanding itself . In sum, it ontologically constitutes comprehension . Understanding is formed through pre-understandings . According to Gadamer, “there is undoubtedly no understanding that is free of all prejudices, however much the will of our knowledge must be directed toward escaping their thrall” .10

We do not know something in its integrity, but always something as something . Gadamer points out that the historical horizon does not mean enclosure, but opening . Tontti observes that awareness of the historical horizon allows a better glimpse of it towards a more correct standard .11 The concept of historical perspective comes to the consciousness of the plurality of meanings in which there is a constant shifting of changing meanings over time . The understanding that comes through the hermeneutic dialogue involves merging the horizon of the interpreter with the horizon of what is interpreted . And from the inter-relationship of the interpreter’s own horizon with the horizon of the text, a new one is born . For Gadamer, the fusion of horizons is what takes place in conversation in which something that is not only my author’s, or mine but in com6 7 8 9 10 11

Hans-Georg Gadamer, Truth and Method, (n . 4), 471–472 . Ibid, XXV . Hans-Georg Gadamer, Truth and Method (n . 4), XXV . Ibid ., 390 . Ibid ., 484 . Jarkko Tontti, Right and prejudice: Prolegomena to a hermeneutical philosophy of law (Burlington: Ashgate, 28) .

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mon, is expressed .12 The interpreter’s understanding is part of an event that stems from the actual text that needs interpretation . In the fusion of horizons rests the idea that the truth of the text is not in unconditional submission to the opinion of the author, and not only in the interpreter’s preconceptions . It should be noted that the fusion of horizons involves another kind of fusion, that one between understanding, interpretation and application . In a reversal of the classic position, according to which first comes interpretation and then understanding, Gadamer shows that something always needs to be understood before being interpreted . According to the philosopher for the interpretation there must be a previous understanding (prejudice or pre-understanding) . However, for Gadamer the application is not a third moment in a process of understanding and interpreting . For Gadamer, interpretation is nothing more than an explicit understanding and not a specific moment distinct from it . The application will not proceed further than the very act of understanding . However, the authority of tradition does not take away the freedom of the interpreter, as it can be rationally controlled . Therefore, the recognition of the history of effect does not mean the absence of critical sense . The other way, facing a future time when the prejudices originating from tradition no longer respond, brings the possibility of differentiation between true prejudices, those which make our understanding possible, and those false prejudices that only bring misunderstanding .13 We should always consider the new meaning of language beyond Gadamer’s hermeneutics . The German philosopher states “language is the universal medium in which understanding happens .” Only through language can we understand . And language cannot be understood merely as the description of objects . It is through language that we can create and act in the world .14 This allows Gadamer to interrelate the intrinsic dialectic in the relationship between thought and speech as a conversation . And also the dialectic relation between question and answer is relevant to the interpretation of any text . In this sense the author says, “the linguisticality of understanding is the concretion of historically effected consciousness” .15 Not only tradition, but also the very nature of linguistic understanding has a fundamental relationship with linguistics . As Gadamer points out, the world itself is the common ground, not trodden by anyone and acknowledged by all, that unites all who speak to each other . All forms of community life are forms of linguistic community, and moreover, are forms of language .16 The linguistic worldliness of the world in which we have always lived is the condition for all of our concepts and thoughts . There is no possible perspective outside of history, as there is no history without language . The speculative character inherent to language is then understood .

12 13 14 15 16

Hans-Georg Gadamer, Truth and Method (n . 4), 390 . Ibid ., 298 . Ibid ., 390 . Ibid ., 391 . Ibid ., 443 .

73

Truth, Hermeneutics and Judicial Decision

ParT Three: whaT

Can

law learn

froM

TradITIons?

The modern Law was built over some patterns such as predictability and security, and it has been a difficult task for judges and lawyers to face the inevitable open texture of Law . So far, whether in the Common Law or in the Civil Law systems, jurisprudence has tried to cover this inherent “imperfection” using some interpretation tools and patterns in order to limit the level of generality . Among those, the appeal to the original intention has been one of the most important . The originalism defended, among others, by Justice Antonin Scalia and Robert H . Bork, frequently refers to historical traditions as a source of Law, or as something able to provide meaning to legal texts, or craft the precedents with a special consistency and objectivity .17 It would be the only way to really interpret the Constitution . All the other approaches would be trying to change the Constitution, and not to interpret it . But the use of historical traditions suggested by Scalia is very different from that one came from the philosophical hermeneutics . As some scholars have noted, in Scalia’s argument there is an implicit suggestion that historical traditions come equipped with instruction manuals explaining how abstractly they are to be described .18 If we consider the historical traditions this way, they become subtle to serious manipulations, what compromises the objectivity, strongly advocated by the originalist school . There will always be a question remaining unanswered, which is how can we identify the appropriate time to reject historical traditions, and what should we reject about them? We can find in Scalia a paradoxical answer which strengthen even more the difficulties to understand his coherence, and which shows the contradictions of the originalist proposal . Scalia says that “even if it could be demonstrated unequivocally that public flogging and hand-branding practices were not cruel and unusual measures in 1791, these practices would not be sustained by our courts” .19

As questioned by Tribe and Dorf, what precisely is the “most specific level at which a relevant tradition “exists? Are positive laws more or less specific than social attitudes? Are social attitudes about one subject, say gender, more or less specific than social attitudes about another, such as religion?20 That’s why the originalism cannot escape from the hermeneutical approach . Only through hermeneutics and argumentation one can answer the questions came before the historical search for intentions . As put by Sortirios Barber, originalism “assumes the theorist have done their philosophic work successfully – assume they’ve shown who ought to count as framers, what should count as evidence of their intentions, how to deal with disagreements among leading framers, and so forth . Intentionalist theorists still would face

17

18 19 20

To a broader understanding of the originalism , see the following works: Antonin Scalia, A matter of interpretation (Princeton, NJ: Princeton University Press, 1997); Robert H . Bork, The tempting of America (New York: Free Press, 1990); Keith E . Whittington, Constitutional interpretation: textual meaning, original intent and judicial review (Lawrence: University Press of Kansas, 1999) . Laurence Tribe and Michael Dorf, On reading the constitution (Cambridge: Harvard University Press, 1991), 98 . Antonin Scalia, “Originalism: the lesser evil”, University of Cincinnati Law Review 57 (1989), 856–857 . Laurence Tribe and Michael Dorf, On reading the constituion (n . 17), 101 .

74

Fernando José Armando Ribeiro the question – a philosophic question – of what kind of interpretation their judges should seek: abstract intentions or concrete intentions?”21

The use of traditions is a form to make contextualization or to limit constitutional rights . The risk brought by the originalist approach is to flatten human language, action and comprehension . It can lead to a distortion of history in history’s name .22 A provocative insight about the constitutional interpretation and its reflexive dimension was conceived by Michel Rosenfeld, in his article “The identity of the constitutional subject”23 . In an analysis of the deconstructive discourse Rosenfeld shows how the interpretation can forge the constitutional identity, and how the traditions can be used by the law . The fact, presupposed by Rosenfeld is in accordance with the hermeneutic conception, and it departs from the inherent incompleteness of the constitutional text . As he explains: “A written constitutional text is inevitably incomplete and subject to multiple plausible interpretations . It is incomplete not only because it does not cover all subjects that it ought ideally to address, but also because it cannot exhaustively address all conceivable issues arising under the subjects that it does encompass . Moreover, precisely because of the incompleteness of the constitutional text, constitutions must remain open to interpretation; and that, in most cases, means open to conflicting interpretations that appear to be equally defensible .”24

To Rosenfeld, the interpretation issue must never be put apart from the problem of understanding and integrating traditions . That’s because the constitutional interpretation depends on a reflexive comprehension of the constitutional identity . And the constitutional identity is inevitably related with other identities such as the national, the ethnics, religious and cultural identities which are always in tension under the pluralistic dimension of contemporary constitutionalism . As said by Rosenfeld, “constitutional interpreters cannot be completely stripped of their national or cultural identity . Accordingly, the key question becomes how constitutional identity can distance itself sufficiently from the relevant identities against which it needs to forge its own image while, at the same time, incorporating enough elements from these identities to remain viable within its own sociopolitical environment .”25

According to Rosenfeld, the tools for the reconstruction are the negation, the metaphor and the metonymy . He recurs to Hegel in order to explain the negation . The way to conform the so called identity of the constitutional subject is reflexive and hermeneutical . It evolves three stages . At the first stage, the relation with the tradition is one of negation . There is a search for a different identity . An identity different from the one came from the pre-constitutional one . The features of this first stage are the repudiation of the pre-revolutionary past, the rejection of the traditional identities and the exclusion of the aggressive and anti-pluralist traditions .26 The second stage is characterized by the selective incorporation of the traditions left behind and not by a mere return to them . The traditions are evoked as long as they 21 22 23 24 25 26

Sortirios Barber, Constitutional interpretation: the basic questions (New York: Oxford University Press, 2007), 82 . Ibid ., 107 . Michel Rosenfeld, “The identity of the constitutional subject”, Cardozo Law Review 16 (1995), 1049 . Ibid ., 1095 . Ibid ., 1051 . Ibid ., 1071 .

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are compatible with the interests of the constitutionalism . At this moment we have a negation of the negation, i . e . the pluralism must reincorporate the conceptions of good previously denied, adopting an activist profile, knowing that the resulting tradition came from its own work . The use of the metaphor corresponds to the Freudian concept of condensation . To combine and organize complex and multifaceted elements in terms of similarities it becomes possible to better apprehend the identities . To Rosenfeld, the metaphor plays a fundamental role in the legal rhetoric as well as in legal interpretation . An example could be found in the American dictum that “the Constitution is colorblind” . It should be seen as a metaphor to emphasize the similarities among the races, or in other words, what they share in spite of their differences .27 The dissenting opinions in Bowers v. Hardwick did not consider the homosexuality among different cultures in history . They focused at the similarities between homosexuals and heterosexuals through the individual view, considering that they both have “the same interest in deciding how he will live his own life, and, more narrowly, how he will conduct himself in his personal and voluntary associations with his companions . State intrusion into the private conduct of either is equally burdensome” .28

The metonymy goes in an opposite direction of that one adopted by the metaphor . While the last one points to the similarities, the metonymy leads to a larger contextualization . And concerning constitutional rights, the use of the metonymy can lead both to its enlargement as well as to its restriction . It can be well illustrated by the majority opinions in Bowers v. Hardwick . The Supreme Court’s majority refusal to extend intimate association privacy rights to protect consensual homosexual sex, was considered to be justified by traditional repudiation through criminalization of homosexual acts and by hostility towards homosexuality rooted in the Judeo-Christian religious tradition . The idea of the autonomous individual left alone to decide about his or her intimate associations was denied by the Justices in the majority in Bowers . The idea of the autonomous individual had to be contextualized with the historical traditions and the precedents, in order to show the inapplicability of Griswold, which was considered to involve the right of privacy in the context of the marital relationship . The process of interpretation is a process of reconstruction . But it does not mean that law should be seen as if really were a mirror for the readers . Even if it was possible to return to the original intention of the authors, as of the Framers – and, as Gadamer shows, it is not possible – this would be no guarantee for a proper interpretation . We must take the text seriously, because without text we don’t have norms .29 Or, in Gadamer’s lesson: who wants to understand a text must, first of all, let the text tell him something . The best way to interpretation is to search for the meaning in the dialectical interplay between the text and the attribution of meaning . Law requires a perennial interpretation considering that the words of the law are not unequivocal . As Dworkin has shown, the reflexive (or philosophic) approach is 27 28 29

Ibid ., 1078 . Ibid ., 1079 . Laurence Tribe, “Taking text and structure seriously”, Harvad Law Review 108, 6, 1995 .

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the only interpretive dimension which is coherent to a written Constitution . It continues the tradition, but it will be a tradition of cultivating citizens who can think critically for themselves about the meaning of the common and shared lives, as well as their duties and commitments .30 The interpretative process of law does not mean the discovery of unequivocal or right direction, but, instead, means a productive interpretation originated from a process of understanding . In this process, the hermeneutic situation of the jurist merges with the legal text expressing something that is not only the prejudices of the interpreter, and not only the text . It is something that comes from the inherent difference between them, and appears as something new . An interpretation can only be improved on a given context, and therefore, the concrete case becomes important . The case reflects a new situation in which the interpreter (the judge is primarily an interpreter) has to renew the effectiveness of the norm . Such effectiveness is not achieved by simply trying to reconstruct the original intent of the legislature . It is an attempt doomed to failure whereas the interpreter’s pre-understanding takes part of the interpretive process . Renewing the effectiveness of the norm means to create a new meaning for the norm applied to a case . The horizon of the interpreter, with all his pre-understandings (his life experiences, study and knowledge of law) merges with the horizon of the legal case . From the inter-relationship of the horizon of the interpreter himself with the horizon of the case, a new meaning is born . This meaning needs to be deepened by the interpreter . Otherwise there will certainly be misconceptions and inauthentic preconceptions . Thus, the norm’s text is only the beginning of a whole process of interpretation, since understanding is not a simple act of reproduction of the original meaning of the text . Justice Stephen Bryer has said very appropriately that “as history has made clear, the original Constitution was insufficient . It did not include a majority of the nation within its `democratic community` . It took a civil war and eighty years of racial segregation before the slaves and their descendants could begin to think of the Constitution as theirs . Nor did women receive the right to vote until 1920” .31

It is valid to remember, with Justice Cardozo, that a legal principle, once enunciated, will tend to expand its logical limit, occupying fields for which it was not crafted .32 The danger, also noticed by the renowned Justice is that, in striving for a coherent and consistent body of law, we might so exalt abstract principles that we would lose sight of the commonsense of justice . But if a legal text – and a precedent is also a text – could cover all the hypotheses of application, then it would be a “perfect norm” .33 It would be as if we could draw a map that was perfectly set accordingly to the earth . But then, what advantages could we take from it? As said by Lenio Streck, if the reality could be transmitted as it is, we would be facing a para30 31 32 33

Ronald Dworkin, Law’s empire (Cambridge: Harvard University Press, 1986), 16–19 . Stephen Breyer, Active liberty: interpreting our democratic constitution (New York: Alfred Knopf, 2005), 32 . Benjamin Cardozo, The nature of the judicial process (New Heaven: Yale University Press, 1921), 51 . Jürgen Habermas, Between facts and norms: contributions to a discourse theory of law and democracy (Boston: MIT, 1999); Klaus Günther, The sense of appropriateness: application discourses in morality and law (New York: Sate University of New York Press, 1993) .

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dox . And paradoxes are things about which we cannot decide .34 Law always demands decision . Therefore, it has to deal directly with the problem of interpretation, with all its difficulties, conflicts and problems . ParT four: analyzIng

a

Case

In Brazil, we can find a very important example of the contribution of the hermeneutic dimension of language on a judicial decision . The writ of habeas corpus 82 .424–2, decided by the Brazilian Supreme Court (Supremo Tribunal Federal) became an emblematic decision, a leading case not only about “hate speech” and “freedom of speech”, but also for the important discussion about the limits of judicial interpretation concerning legal concepts . In this case, the Brazilian Supreme Court was judging a writ of habeas corpus concerning the possibility of freeing Siegfried Ellwanger, charged and imprisoned for having committed the crime of racism . His crime, typified by law, consisted of having edited, distributed and sold anti-Semitic books, as a writer and editor in chief of the private Press called Revisão Editora Limitada . According to the prosecution, the books contain and support anti-Semitic, racist and discriminatory messages . They intend thereby to induce and incite racial discrimination, sowing in their readers feelings of hatred, contempt and prejudice against people of Jewish origin .35 The other side, the defense, although recognizing the discriminatory effects of the publications, argued that the Jews are a people and not a race . Therefore, Ellwanger could not have committed the crime of racism, which is non-bailable and imprescriptible according to the Brazilian Constitution (Article 5, Clause XLII) . Justice Moreira Alves, who did not recognize the crime of racism, opened the main discussion . His opinion was for the concession of the habeas corpus . In his analysis, the historical element is fundamental for constitutional interpretation . It shows that, when there is no sufficient time for a significant change in the use of the concepts, the use of the word must be considered in its most common meaning . According to the Justice, in the case, the word “racism” is designated to protect the historically persecuted races in Brazil, or, in other words, the black people .36 The Jews are not properly a race, and so the crime committed by Siegfried Ellwanger cannot be considered racism . We can see in Justice Moreira Alves’ opinion the problems that came from the semantic use of language . In a passage of the opinion, the Justice used some dictionary and encyclopedia definitions of the term . In the end, his vision of race tended to be limited by a biological meaning combined with a certain traditional use in the past . This was the main critique that came from the opinion of Justice Mauricio Corrêa . Inaugurating the divergence, Justice Corrêa emphasized that we cannot use the concept of race in a mere biological meaning . We should never limit our inter34 35 36

Lênio Streck, ‘Interpretando a constituição: Sísifo e a tarefa da hermenêutica’, in Hermenêutica constitucional, Laurence Tribe and Michael Dorf (Belo Horizonte: Del Rey, 2007), XXXIV . Brasil . Supremo Tribunal Federal, Crime de racismo e anti-semitismo: um julgamento histórico do STF (Habeas Corpus n . 82424) (Brasília: Brasília Jurídica, 2004) . Brasil . Supremo Tribunal Federal, Crime de racismo e anti-semitismo: um julgamento histórico do STF (Habeas Corpus n . 82424) (n . 34), 14 .

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pretation to the literal meaning of the term . We must combine it with its sociological and anthropological senses .37 In a very important moment, the Justice points out that, nowadays, science does not give support for a definition of human races . Biologically speaking, there’s no human race because all human beings are biologically equals . Then he concludes: “Although we cannot recognize anymore, under a strict scientific perspective, any division of human races, racism still exists as a social phenomenon . And that leads us to say that the existence of different races comes from historical, political and social conceptions, which must be considered in the law’s application . It is this social aspect, and not the biological one, which inspires the normative regulation of the crime, with its imprescriptibility established by Clause XLII, Article 5 of the Constitution” .38

There was also an argument that cannot be forgotten . It said that the original intention of the Constitution was to consider racism only the crime committed against black people . Here we can clearly see the potential danger to consider the effects of a strict originalist approach in legal interpretation . There was really a predominance of references about black people during the constitutional debates . But we should never forget that this award granted to black people in the constitutional debates could have come from the natural indebtedness of Brazilian society with the black community . This conscience predominated during the debates, but it never meant to lose sight of the broader coverage of the normative innovation that was being formulated by our new and democratic Constitution . Therefore, to take tradition as a parameter to legal interpretation requests that the interpreter never forget the intrinsically open nature of traditions, in their constant and dialectical evolution . As Gadamer taught, the “hermeneutical horizon” is not the horizon of the past, but the fusion of present, past and future in an open and continued construction . The Ellwanger case shows with great clarity that treating normative concepts such as race, by mere reference to the intention of its creators, can lead to the exclusion of minorities, or even of majorities, from a fundamental protection of rights . Should only the black community be considered the racially protected group of twenty first century Brazil? Why should we not consider the largest Japanese community outside Japan, living in São Paulo and struggling to keep loyal to their traditions? Should we forget the Arabic people, or the Italian and German communities in Southern Brazil? And last but not least, should we once more forget the Indians, the first inhabitants of the country, fighting hard to preserve the integrity of their diverse communities? If we look at the problem through this veil, it becomes almost self evident that the answer can only be a reverberating no . We cannot interpret race literally, because the other way, it would lead racism to become an impossible crime, for absolute lack of subject . After all, if there is no other human race than the human race itself, the crime of racism losses its purpose and meaning . We also cannot interpret race according to the original intents, because the concepts in Law must always be conceived as a web of concepts and practices, and, as Gadamer demonstrates, the con-

37 38

Ibid ., 25 . Ibid ., 30 .

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ceptual content can never be separated from the other concepts and pre-concepts (prejudices) that conform to our world view and understanding . ConCludIng reMark The adoption of the reflexive model of hermeneutics in law casts judges as policy makers as well as representative of one of the dimensions of society’s “public reason” . This dimension is the one of the “rule of law” . So, if we add to this the democratic vector as a key element in the system’s architecture, we will understand how the judicial process can be a fundamental part of the concept of the right to freedom . It will be a freedom that acquires a more concrete dimension, so far as it can catalyze a new concept of political representation . This will come not only through the abstract voice of the legal statutes, but from the “we the people actually speak”, as conceived by Ackerman39 . The courts mission will be to become a policy agent, in the sense that the judges will act as representatives of the people, and on behalf of the people, to prevent and control the abuses eventually perpetrated by the pattern of the so called “normal politics” (Ackerman) . These abuses will not only be those contrary to the majority’s institutionalized will through law, but also those abuses committed against the procedurals of the minority’s will . The courts major function will be to create conditions of reliability and trust that these fundamental legal edges will not be overcome . Therefore, this model of democracy leads the Judiciary to become an instrument of society, and not merely of the State .

39

Bruce Ackerman, ‘Discovering the constitution’, Yale Law Journal 93 (1984), 1013 ss .; Bruce Ackerman, ‘Constitutional politics/constitutional law’, Yale Law Journal 99 (1989): 453 ss .

PART III – OBJECTIVITY

AND

LEGAL REASONING

bruce anderson and micHaeL sHute The ProCedural and ConTexTual asPeCTs In legal reasonIng

of

objeCTIvITy

InTroduCTIon In his ‘Introduction’ to the collection of essays, recently published in Objectivity in Law and Jurisprudence,1 Mark Van Hoecke repeatedly points out that the meaning of objectivity is vague and problematic . This paper is an attempt to untangle some of those discussions in light of Bernard Lonergan’s explanation of objectivity and the mental activities that comprise the decision making process .2 I begin by rehearsing various portraits of objectivity in legal reasoning . Next I present a description of a legal decision process . This account is used to illustrate three partial aspects of objectivity: the intelligent and critical aspect of objectivity, truth as an aspect of objectivity, and the experiential aspect of objectivity . I end with the principal notion of objectivity, that is the idea that objectivity is contained in a patterned context of judgments . ParT one: objeCTIvITy

as The

‘reasonable Person’

In law school my first impression of talk about objectivity was that it was quite simple-minded . My undergraduate degree was in experimental psychology . In psychology if you framed a hypothesis, invented and completed some sort of experiment to test the hypothesis, graphed the results, performed an appropriate statistical analysis of the independent and dependent variables, and presented the results and discussed them in the context of the hypothesis and other empirical studies your findings were considered objective . This was taken for granted by experimental psychologists . But in torts and criminal law classes the way my professors talked about objectivity did not make sense . They used the word ‘objectivity’ but it did not have a meaning I could readily pin down . I could not understand why a judgment concerning what a reasonable person would do in a situation is an ‘objective test .’ Of course, I knew they called it an ‘objective test’ because whether or not a defendant believed he was acting reasonably is deliberately not considered part of the test . And I knew that, in contrast, a ‘subjective test’ for mens rea in murder cases, for instance, is called ‘subjective’ because the focus is on the actual state of mind of the accused . For my law teachers the difference between objective and the subjective tests was simple . In an objective test the judge ignores what the defendant is thinking and decides what 1 2

Mark Van Hoecke, ‘Introduction’, in Objectivity in Law and Legal Reasoning, ed . Mark Van Hoecke (Oxford: Hart Publishing, 2013), 1–20 . See especially Bernard Lonergan, ‘Insight: A Study of Human Understanding’, in Collected Works of Bernard Lonergan, Vol . 3, ed . Fred Crowe and Robert Doran (Toronto: University of Toronto Press, 1988), 399–409 .

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he thinks is reasonable; in a subjective test the judge considers the defendant’s intention . However, in light of what I knew about objectivity in experimental psychology, objectivity as understood in law seemed much more complex than these crude differences between what you paid attention to when making a judgment . For instance, it was evident to me that both objective and subjective tests depend on judgments of fact and judgments of value . If that is the case, then in what precise way are judgments of fact and judgments of value objective? Is one test really objective? Is the other really subjective? When I went on to teach both torts and criminal law the ‘objective’ reasonable person test in negligence struck me as highly subjective because what is judged to be reasonable behavior depends on value judgments, and value judgments are clearly a result of personal deliberations . Further, the ‘subjective’ mens rea test struck me as primarily objective because judging whether or not a defendant intended to kill someone depends on the evidence, how we interpret the evidence, and finally, judgments of fact . Either the defendant, in fact, had the requisite mens rea or he did not . To this day when I teach negligence to my business law students I cannot bring myself to tell them that the reasonable person test is objective . They simply would not believe me . ParT Two: objeCTIvITy

versus

subjeCTIvITy

Numerous legal theorists have written about objectivity and legal reasoning . In this section I will consider the recent work of four legal theorists who contrast objectivity and subjectivity: Neil MacCormick, Matti Niemi, Bertjan Wolthuis, Niko Soinenen . I begin with Neil MacCormick’s work . Although he does not offer a systematic treatment of objectivity he has written about objectivity in various contexts . For him an ‘objective test of reasonableness’ means that a judgment is made “without regard to personal peculiarities or predilections of individuals in a particular relationship .”3 By contrast, a ‘subjective test of reasonableness’ means “reasonable for a particular individual in a particular setting .”4 Like the difference between objective and subjective tests presented by my law teachers, the distinction here rests on a difference in attention to the common sense or ordinary language meanings of words used by the legal profession rather than on any actual explanation of what constitutes objectivity . In other words, MacCormick points to or describes the different uses of the word objectivity in their ordinary language usage but he does not explain what objectivity actually is . To describe how people use a word seems to me quite different from explaining what the reality of the word is, a point Socrates realized quite some time ago about the meaning of the word ‘justice .’ Given his stress on objectivity, I was surprised that MacCormick acknowledged that there is a subjective dimension to the objective test of reasonableness . In his view, the subjective aspect is due to the fact that 3 4

Neil MacCormick, Rhetoric and the Rule of Law (Oxford: Oxford University Press, 2009), 177 . Ibid . 177 .

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reasonable people can disagree about the benefits of an activity, the likelihood of the risks, the seriousness of the risks, the costs of the safeguards, and their probable efficacy .5

He wrote that this sort of irreducible subjectivity, where reasonable people disagree, can best be dealt with by a majority vote, for instance, by an appellate court or by a designated authority . He stresses that although the standard for what a reasonable person would do is objective, ‘it has to be applied only as mediated through the subjectivity of whoever has to decide .”6 In other words, the objective test is applied subjectively and so while there is an objective test, any disagreements are subjective . Here the judgments and perspectives of individuals are subjective, and objectivity is presumably achieved by a higher authority . At any rate, MacCormick argued we can make objective judgments in cases when there are conflicting reasons . The key is to move beyond immediate emotional responses to cases . He claimed that Adam Smith perhaps has the most complete and almost convincing view, because his device of the ideal impartial spectator supplies for us a common inter-subjective yardstick against which to adjust and objectify our particular passionate responses to cases . But how does this fare as a theory of how to justify decisions . What we do in justifying judgments, if Smith is right, is a matter of showing that we have gone beyond an immediate reaction to a situation seen at first glance . We will have sought to be fully informed and to have achieved an ideal impartiality in order to move from mere anger, sympathetic or direct, to settled moral concern and perhaps condemnation (or, in the converse case, approval in various degrees of warmth) . In such a process of correction or adjustment of immediately felt sentiments, one literally rationalizes the passionate reaction, in seeking a view that can be common to all concerned persons . The whole balance of judgment concerns a rationalized response to the whole of a situation in all its particularity . Therefore the weight of one’s final responses of disapproval and approval to a situation in all its aspects gives a common metric that makes intelligible how this sort of weighing might work .7

It seems to me, however, that MacCormick’s ‘impartial spectator’ approach to objectivity is flawed . As I hope to establish, the ideal of impartiality is more a defective metaphor than an actual explanation of how we truly achieve objective legal decisions . Nonetheless, in at least one respect, his discussion of how we reach objective judgment in law is reasonably consistent with human experience and that is with respect to the operation of marshaling and weighing the evidence in support of an eventual judgment . MacCormick writes: A measure of weight is found in the sympathetic or emphatic response of the deliberator to the feelings of persons involved after making the adjustments for impartiality and adequate information . If this is so, there is an element of the subjective in everyone of our best efforts at pure objectivity .8

Here objectivity means impartiality in the sense of not preferring one side to the other at the outset of a decision process, and subjectivity means some sort of unadjusted raw feeling .

5 6 7 8

Ibid . 163 . Ibid . 164 . Ibid . 87 . Ibid . 186 .

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Another use of objectivity as impartiality can be detected in MacCormick’s work . Reasonable people are objective in that they are not so consumed with passion for their own interest or project… can see situations from other person’s points of view…can judge their own interests in relation to others’ interests with a fair degree of impartiality, can recognize that a greater interest or value takes priority over their own, and cultivate Smithian self-command .9

Here objectivity means judgments not derailed by self-interest . Just as we ought not to prefer one side to the other at the onset of a deliberation, so too we should not let our own personal self-interests effect the outcome of a deliberation . Near the end of Rhetoric and the Rule of Law MacCormick moves beyond the impartial spectator and links the criteria found in analyses of legal argumentation and legal justification with objectivity . He claims we can establish to a very large extent objective grounds of rightness among us, things about which we can be mistaken or about which we can give right answers .10

Such grounds include: legal tests of coherence and consistency, universalized outcomes, facts and rules, canons of good argumentation and sound legal argumentation, the reasonableness of general practical reason, or some designated authority to decide when law and general practical reasonableness cannot solve a disagreement . Here objectivity rests on accepted forms of legal justification . Let’s take our bearings . In its various forms, MacCormick’s account of objectivity is portrayed in opposition to subjectivity . The reasonable person test in negligence law is said to be objective because it does not take into account the actual state of mind of a defendant and because it ignores the personal characteristics of individuals . Judgments reached when there are competing reasons are objective because self-interest and feelings favouring one side over the other have been adjusted to the stance of the impartial spectator . Hence a judgment is objective because the decision maker is impartial or neutral . Finally, a judicial decision itself is objective because it meets a particular set of external criteria of legal justification thereby effectively dealing with competing ‘subjective’ arguments . Objectivity, then, takes three forms in MacCormick’s Rhetoric and the Rule of Law . One, when the test for reasonableness explicitly excludes personal characteristics the test is called objective . Two, when the judge has overcome initial preferences favouring one side over the other and self-interest the judgment is objective . Three, when a decision is justified by legal argumentation, general practical reasonableness, or made by a designated authority it is objective . Matti Niemi claims legal reasoning aspires to be objective .11 The “aspiration is to reach the most acceptable and objective standpoint of the law .”12 Applying Robert Alexy’s general rules of legal reasoning is one way to reach for objectivity in law . Niemi also believes that objectivity is a matter of degree in that judgments can be more or less objective or more or less subjective . To be objective, a sentence must be aimed at the ‘general level’ in the way that Alexy’s rules of reasoning, legal prin9 10 11 12

Ibid . 167 . Ibid . 278 . Matti Niemi, ‘Objective Legal Reasoning-Objectivity Without Objects’, in Objectivity in Law and Jurisprudence, ed . Mark Van Hoecke (Oxford: Hart Publishing, 2013), 69–84 . Ibid . 83 .

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ciples, statutes, and precedents are general . Presumably, these texts are general insofar as they cover types of situations rather than one particular concrete scenario . Also, to be objective the sentence must be free from particular interests, personal attitudes, feelings, personal desires, personal opinions, and particular personal viewpoints . In the case of legal argumentation, in order to be objective, arguments must be presented from the standpoint of the society, not an individual . The focus is on societal values expressed by law that are objective, not individual values that are subjective . Niemi stresses that a crucial dimension of objectivity is intersubjectivity” meaning that “the notion of objectivity and its criteria must be common to reasonable persons .13

According to Niemi, conventional modes of legal justification also promote objectivity in law . He claims that the reach for objectivity in legal reasoning requires that conclusions be well-justified . By deploying “legal reasons in a conventional and acceptable fashion…we try to warrant the objectivity of reasoning .”14 Impartiality and neutrality are also dimensions of objectivity . Not only does “the objectivity of legal reasoning appear as impartiality,”15 but “the dimensions of objectivity…resemble the demands regarding a disinterested and competent judge .”16 In summary, for Niemi objectivity is something to be strived for and is a matter of degree in legal reasoning . To be objective requires that legal texts are general in application . For argumentation to be objective arguments must rest on shared laws and values that reasonable people have accepted, not on the subjective desires and values of particular individuals . And for a legal decision to be objective, it must be justified in the accepted conventional fashion . Bertjan Wolthuis claims that the basic rules of argumentation are objective .17 His focus is Habermas’s rules of argumentation, namely inclusion, equality, sincerity, and non-domination . His argument goes like this . Legal rules are objective because they constitute the game of argumentation . If you abandon these rules you are no longer playing the game of argumentation . In other words, you cannot disregard these rules if you want to argue . Here objectivity entails the putative presence of essential features of argumentation . In his words, these rules are “unquestionable objective presuppositions .”18 Further, “these rules are objective in the sense that they reflect wide and deep agreement about how discussions are to be conducted .”19 Wolthuis goes on to assert that these rules are not subjective in that they do not depend on individual preferences or opinions . To summarize Wolthuis’ position, the objectivity of legal argumentation depends on the absence of subjective individual preferences, the claim that Habermas’ rules of argumentation are the most basic and essential elements of argumentation, 13 14 15 16 17 18 19

Ibid . 79 . Ibid . 82 . Ibid . 82 . Ibid . 83 . Bertjan Wolthuis, ‘Objective Rules of Argumentation’, in Objectivity in Law and Legal Reasoning, ed . Mark Van Hoecke (Oxford: Hart Publishing, 2013), 109–130 . Ibid . 119 . Ibid . 130 .

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and the assertion that argumentation (in the form captured by Habermas’ rules) occurs in, and is accepted by all cultures . Niko Soinenen portrays objectivity as the absence of subjective choice in deciding ‘easy cases .’20 In an easy case there is only one answer and that answer is the right answer . Hence the outcome of an easy case is objective . By contrast, ‘in-between cases’ and ‘hard cases’ do not have objective solutions . By contrast, these types of cases are not mechanical and demand that judges make subjective choices and exercise discretion in the decision process . Soinenen declares that the interpretation of law in an easy case is the only possible one and this application is objective because there is not and cannot be any alternative interpretation in easy cases .21

He stresses that “there is no space for subjective choices”22 in easy cases and that formal logic is used to reach the decision and also serves as the sole justification of the decision .23 But his notion of objectivity is a little more complex in that it depends on his definition of an easy case . A case is easy when (1) similar cases have been solved earlier, (2) the premises in these cases are similar in all legally relevant respects, (3) all similar cases are solved in a similar manner, (4) there can be only one legally relevant interpretation of the law and facts, (5) there are no legally relevant conflicts of interpretations of facts or the norm(s), and as a result (6) the use of legal discretion is not possible .24

It is evident that Soinenen’s notion of easy cases is not as easy as it looks . To decide easy cases depends on making judgments about at least six complex sets of issues . In sum, when we consider the positions of Neil MacCormick, Matti Niemi, Bertjan Wolthuis, and Niko Soinenen, while there are various nuances and even fundamental differences, all of them treat subjectivity and objectivity as somehow opposed . While subjectivity may be acknowledged as an unavoidable feature of some decisions, in general it is viewed as a hindrance to achieve objectivity in judgment . This assumption is where the problem lies . ParT Three: objeCTIvITy

as

InTellIgenT InquIry

and

CrITICal refleCTIon

I want to explore the notion that objectivity in judicial decision-making ultimately depends on being a good judge . Let’s begin with Neil MacCormick’s portrait of intuition in good judging . An intuitionist approach to decision-making would tell us that we have a capacity to discern (to ‘intuit’) the factors in situations of choice that make a decision right or not right . We also have a capacity to tell in context which rightness reason defeats which others, either on their own or cumulatively with other relevant reasons . We further have a capacity to discern when it is right

20 21 22 23 24

Niko Soinenen, ‘Easy Cases and Objective Interpretation’, in Objectivity and Legal Reasoning, ed . M . Van Hoecke (Oxford: Hart Publishing, 2013), 131–150 . Ibid . 132 . Ibid . 150 . Ibid . 132 . Ibid . 136 .

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to consider goals as justifying decisions, to rank different goals, and to see when an important goal overrides other aspects of a case, including rightness reasons that may be acceptable… The difference between a good judge and a bad one would turn on whether a person has sound intuition, or has developed practical wisdom through long experience of decision making… Even more would depend on the care she or he takes to look attentively at every aspect of any case of decision so as to be sure that every reason has been brought to light, considered carefully, and evaluated relative to all others… These are persons of sound intuition and endowed both with adequate attentiveness to detail and with a fair-minded readiness to make no decision till in possession of all relevant reasons in any particular case .25

Does such intuition exist? Can such wisdom be cultivated? Although he refers to Adam Smith, MacCormick does not develop the notion of intuition . But apparently being a good judge involves successfully completing some sort of decision procedure in which intuition plays a crucial role . But exactly what is intuition and what sort of procedure is involved? MacCormick begins with Adam Smith, but I am going to begin with myself . What follows is an introspective analysis of a ‘legal’ decision I made last year . The point of the analysis is to tease out what it means to be objective . In Bruce Anderson’s role as a department chair he had the task of deciding whether or not to recommend to the academic vice-president that the teaching load of one of his colleagues should be increased due to inadequate research activity . He recalls that experience here: I remembered that under our collective agreement that this action is permitted and that the chair of the department is supposed to be consulted before the Dean recommends to the academic vice-president that a faculty member’s teaching load should be increased . But what still stands out for me are the questions I asked, ‘what should I recommend? and ‘how am I going to figure out what to recommend?’ I knew that my colleague’s publication record was minimal, but was it low enough to warrant increasing his teaching load? I wanted to know what precisely his research record was so I collected and read his recent Annual Reports . On other occasions I found this person difficult to deal with, so I wanted to ensure that would not influence my decision . It is worth noting that I didn’t begin my problem-solving process by looking for a rule; rather I started by asking questions . Of course I read the relevant article in the collective agreement that confirmed what I remembered . I decided that a good initial plan would be to ask my colleagues their views, and so I listened to, and evaluated their opinions . I mused that a key role of faculty at universities is to do research, and I recalled my view that research should take precedence over teaching . I considered the fact that our collective agreement stipulates that scholarship is one of the responsibilities of faculty . I compared my colleague’s scholarly activity to other faculty members of the same rank, and to those more junior . I judged his research record to be below the level of his junior colleagues . I also considered the fact that he was hired at a time when it was not as important to do research as it is today . I considered the fact that he was not warned by the Dean that if his scholarship did not increase he would likely be given more courses to teach . I also recalled other faculty members hired at the same time who successfully managed to do research . I imagined some of the possible negative actions that might be taken against me if I recommended an increased teaching load . However, I judged, provisionally, that his 25

MacCormick, Rhetoric and the Rule of Law (n . 3), 84 .

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scholarship fell below the level appropriate for his discipline and rank . I judged it would be best to begin writing a draft of my recommendation because this action would probably help me get to grips with the nuances of this situation and the complex evaluations called for in this situation . I lost sleep thinking about various details, and doubts troubled me . I edited my draft, and added the fact that my colleague had voluntarily done extra paid teaching during the previous two years . The reasons for my recommendation became more precise and explicit the more I fussed over it . At some point I remember reaching the judgment that my colleague’s level of scholarship is definitely below the level appropriate for his discipline and rank, and that I had no choice but to recommend that his teaching load should be increased . I felt satisfied and a little relieved when I printed my memo and delivered it to the academic vice-president . In the end I thought I had done a good thorough job and that my recommendation was objective . But in what sense was my recommendation objective? I knew it was not objective because I simply applied the relevant article in the collective agreement . There was clearly much more to consider than that . I also knew it was not objective because it could be legally justified (meaning that it could be rationally reconstructed and expressed in the fashion acceptable to the legal profession) . I didn’t even consider the possibility of universalizing my recommendation . In fact, at the same time I was dealing with this situation I was dealing with a similar case of another colleague whose level of scholarship also did not meet the standard appropriate for his discipline and rank . Of course, we understand similars similarly, but to think that my judgment is objective because it could be universalized does not add anything more than what is already contained in the proverb ‘what is good for the goose is good or the gander .’ My recommendation certainly was not objective because of any adjustments or corrections to my sentiments so they would line up with an ideal spectator . Rather, I asked questions, came to understand the situation, and made judgments that I, not an ideal spectator, had to be satisfied were correct . Many questions and answers preceded my recommendation . I was fully engaged in an intellectual, not a sentimental activity . Further, my activity was creative . I discovered a way to answer my two overarching questions: what precisely is the situation? and what should I do in this situation as I understand it? I was able to successfully answer those questions and all the other relevant questions that I needed to answer . When I made my decision I knew that it was the right decision and that it was objective . I couldn’t help but surmise that the objectivity of my recommendation depended on me, how I solved the problem: the materials I selected, the questions I asked, the answers I reached, my interpretation of the situation, and the factual judgments and value judgments I made . Could this be the core of objectivity? For starters, consider the materials I sought out, collected, and considered in the process of reaching the value judgment that my colleague’s level of scholarship was not appropriate for his discipline and rank . They included annual reports written by the faculty member, the Dean’s written responses to those annual reports, relevant articles in the collective agreement, annual reports of other faculty members in the department at the same rank and at a lower rank, and the opinions of various department members . I wanted to collect everything that could be relevant regardless of

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whether or not it supported or did not support an increase in teaching load, and that is what I did . In addition, I did not pay attention to any statements or evidence that I judged mistaken, misleading, or biased . In short, I successfully collected relevant and reliable evidence . It is not a stretch to think that my treatment of materials in this way is objective . Now let’s turn to my interpretation of the situation . I wanted to understand, as best as I could, what the situation was . I asked questions such as: how many papers did my colleague publish over a two-year period? How many conferences did he attend? Did he engage in other scholarly activities? What is the quality of that work? How many extra courses did he teach in the previous two years? Does his teaching demand an exceptional amount of preparation and marking? How does his scholarly activity compare to others in the department? What exactly does the collective agreement say on the topic? These questions arose spontaneously as I considered the problem . I discovered strategies to answer those questions . And I answered those questions correctly . I did not follow a rulebook for interpreting situations . I was not looking for facts to subsume under a major premise in order to reach a conclusion . I certainly was not ‘feeling’ my way to understanding the situation and I also was not drawing ever-finer distinctions among categories in order to get to the root of the issue . On the contrary, what I was doing was intelligently asking and answering questions and in that way moving forward toward correctly understanding the situation . I made various judgments in my process of coming to understand the situation . One judgment of fact that I made was that my colleague’s scholarship was less than that of colleagues at a lower rank . To reach that judgment I had to understand how much research each of the faculty members at a lower rank had done and how much my colleague had done . I consulted annual reports . I compared each person’s record to my colleague’s record and judged that, in fact, my colleague had fewer publications and fewer conference presentations than any of the faculty at a lower rank . The evidence that supported my judgment was the annual reports of faculty members . This evidence was sufficient for my judgment . I was satisfied I had asked, and satisfactorily answered, all the questions relevant to my judgment . My judgment is not merely my opinion; it is supported by sufficient evidence and in that sense is not relative to me . Further, my judgment is true . It is as true today as it was last year and it will also be true tomorrow . It makes sense to say that this judgment is objective . To be more specific, I grasped the conditions for the judgment and grasped that the conditions are fulfilled . This was a creative activity . It was also neither lacking intelligence nor rash or irrational . The objectivity of this judgment lies in my grasp of the sufficiency of the evidence for this judgment, that is asking and answering all the questions relevant to it . It is worth stressing that this judgment of fact is not objective because I followed logical procedure (though no doubt the result could be logically formulated) or because it is in accord with an external criterion . Further, the judgment is not subjective in the negative sense that raw feeling or other irrational elements influenced it . In addition to factual judgments I made various value judgments in order to reach my decision . Let’s explore the objectivity of my overarching value judgment . According to Article 15 .1 .12 (c) of the collective agreement, “The standard teaching load for faculty members who do not demonstrate a level of scholarship appropriate

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for their discipline and rank will be increased to 3 .0 full credit courses or equivalent .” While the collective agreement provided a context for the judgment I was to make, a good judgment in this case required answering a further question: ‘Is my colleague’s level of scholarship appropriate for his discipline and rank?’ This question called for deliberation and a judgment of value – either his level of scholarship is appropriate or it is not . I didn’t have a ready-made criterion for what counted as ‘appropriate for his discipline and rank .’ It is evident that this value judgment is related to prior questions I asked, insights I achieved, and judgments I reached . Before I made this judgment of value I assessed and evaluated the role of scholarship in universities, the increasing importance of scholarship at my university, the length of tenure of my colleague, the number of courses he taught for extra remuneration, the quantity and quality of his research, how his scholarship compared to others in the department, the extent of his administrative responsibilities, and so on . My overarching value judgment that his scholarship is below the appropriate level depends on my previous questions, insights, and judgments . And this value judgment itself depends on the fact that I grasped, in a single moment, the sufficient conditions for my judgment of value and that its conditions are fulfilled . Yet I am confident this value judgment is correct . I identified, evaluated and grasped sufficient reasons for making that judgment . I knew I had asked all the questions relevant to it and that I had answered them correctly . It is safe to say this judgment is objective . It is the outcome of a qualified person, knowledgeable of the context, who paid attention to what is relevant, intelligently carried out the inquiry, and made a reasonable and responsible judgment . The objectivity of my overarching judgment depends on me operating at my best, fully engaged in an intelligent and critical inquiry . This value judgment is not objective because it can be universalized and linked to the relevant article in the collective agreement by a legal justification procedure . Further, my value judgment, while it involves the operations of a subject, is not subjective, in any negative sense . It is not merely one opinion among others; it rests on a constellation of related questions, insights, and judgments . These activities are intellectual; they are not ruled by emotions . The inquiry unfolded intelligently; I did not arbitrarily ask questions and accidently stumble upon this value judgment . Finally, neither my attitude toward my colleague nor self-interest interfered with my inquiry and subsequent value judgment . They did not form part of the conditions for any of my judgments . In these various ways my value judgment is objective . ParT four: Three ParTIal asPeCTs of objeCTIvITy noTIon of objeCTIvITy

and

The PrInCIPal

Intelligent and Critical Inquiry as an Aspect of Objectivity . In the various analyses of objectivity, including my own, impartiality emerges as an important aspect of objectivity . For MacCormick, impartiality means that a judgment does not rest on personal predilections, raw feelings, and self-interest . Niemi cast impartiality in terms of a neutral, disinterested judge free from personal desires, opinions, and attitudes . And in my own account, I portrayed impartiality in terms of my efforts to rise above the fact that I found my colleague difficult . I also stressed that I asked and

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answered questions and I suggested that this intelligent and evaluative activity was a crucial aspect of being objective . Part of my effort in reaching my decision was to ensure that my opinion of my colleague did not interfere with the process of asking and answering questions . This particular aspect of objectivity can be grasped by comparing the intelligent and critical nature of my questioning and answering process with reasoning that has gone astray due to wishful thinking, rash judgments, overly cautious judgments, or judgments derailed by fear, hate, anger, depression, love, hope, excitement . Although MacCormick and Niemi deal with this issue, I want to stress that this aspect of objectivity is not simply taking and declaring a neutral stance on some issue . It is not simply the declaration that individual and personal elements are not to be part of the decision process . It is not simply waiting for the emergence of the impartial spectator in ourselves . Rather, this aspect of objectivity demands the unfolding in a subject of the detached and unrestricted desire to know and act intelligently . Objectivity is not achieved by following Habermas or Alexy’s rules of argumentation . It is not achieved by simply following rules of logic . And objectivity is not achieved by expressing the outcome of a case in the accepted fashion . Further, objectivity in legal reasoning is not achieved by referring to the shared accepted values of reasonable people in a society . My claim is that objectivity is achieved because the decision is part of a process comprised of intelligently and critically asking and answering all the relevant questions . It is not the outcome of a problem-solving process that goes astray due to anger or hate, inattention, bias, meaningless and incoherent questions, and incomplete and mistaken answers to questions . To state it simply, intelligent inquiry and critical reflection are aspects of objectivity . It is also important to stress that judgment is not objective because reasonable people agree with it, or because it reflects societal values, or because it satisfies an accepted form of legal justification . Rather, a judgment is objective because the person engaged in the inquiry judged well, that is they asked and answered all the relevant questions, and are satisfied that their answers are correct . In this way, objectivity depends on the subjectivity of the decision-maker, a subjectivity operating at its best, attentive to the situation, asking pertinent questions, understanding what there is to understand, correctly judging what is true and what is false, creatively inventing possible solutions, correcting evaluating those possibilities to judge what the best solution is, and deciding to execute that solution . The efforts of legal theorists who portray objectivity as neutrality and impartiality and subjectivity as individual and personal factors do not capture the intelligent and critical nature of the decision process . The various stances on objectivity I summarized above have portrayed subjectivity as a bad thing . For Niemi and MacCormick decision making should be free from individual opinions and attitudes, and personal preferences and desires . Soinenen believes that choice and discretion are subjective activities . They have simply noticed negative influences on decision making . These scholars have not explicitly highlighted intelligent and critical inquiry as an important aspect of objectivity . Moreover, in light of the stance on objectivity I am advocating, individual opinions, attitudes, preferences, and choices grounded on intelligent and critical inquiry would, in fact, be objective .

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Truth as an Aspect of Objectivity . However objectivity involves more than successfully rising above unhelpful emotions and bias in a decision process . Additional aspects of objectivity can be detected in my account of how I reached the judgment that my colleague’s scholarship was less than that of colleagues at a lower rank . I identified the evidence supporting this judgment and wrote that I had grasped that this evidence was sufficient to support that judgment . I also wrote that my judgment is correct . There is a way in which this particular judgment is true . I posited it without reservation . The sufficient conditions for making this judgment were fulfilled . There were no further relevant questions that need to be asked . The judgment was not relative to me . The same judgment can be made by anyone else with the relevant experience that had the same raw materials . The judgment was true when I made it . It is true today . And it will still be true tomorrow . The judgment is true regardless of whether I am currently in Belo Horizonte or Halifax . My value judgment that my colleague’s level of scholarship is not appropriate for his discipline and rank is also correct . A process of deliberation and grasping sufficient reasons for my judgment preceded that particular judgment . That judgment is not arbitrary or biased . Even though this judgment is a value judgment it still posits truth, namely that it is true that my colleague’s scholarship is not appropriate for his rank . Further, that value judgment is as true today as when I made it, and it will be true tomorrow . Further, it is possible for someone else in Brazil to reach the same judgment . Here I have been presenting objectivity in terms of true judgments . A particular judgment is objective because the conditions sufficient for making that judgment are satisfied . And if the conditions for a particular judgment are fulfilled, that judgment is posited as true . In this way, a particular judgment is objective . The legal scholars mentioned above have not noticed this aspect of objectivity . Rather, they are content to give a higher authority the job of judging what is the correct thing to do, or they are willing to replace personal responsibility with agreement among reasonable people or conventional forms of legal expression . The Experiential Aspect of Objectivity . So far, the discussion of objectivity has focused on intelligent and critical inquiry and truth as aspects of objectivity . But before critical inquiry leads to judgments of fact and judgments of value it needs materials to inquire about . Law, like other fields, has its own proper raw materials to be selected and interrogated . Statutes and previous cases are, perhaps, the most common examples . But rumour and hearsay have no place in judicial decision-making . Rules of evidence and procedure have developed to screen out unreliable and irrelevant evidence . There is, then, an experiential aspect of objectivity insofar as only the appropriate materials are selected, analyzed, and evaluated . Portraying objectivity in terms of three partial aspects – paying attention to the proper data, rising above bias in critical inquiry, and making correct individual judgments – means that objectivity cannot be reduced to seeing only what is there to be seen, and not seeing what is not there . Rather, “the criteria of objectivity are a compounded criteria of experience, understanding, judging, and believing .”26 This means that an easy case is not objective because the decision maker has no choice, 26

Bernard Lonergan, Method in Theology (London: Darton, Longman, and Todd, 1971), 238 .

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but because the raw materials are easily selected, questions and answers arise spontaneously, and grasping that the sufficient conditions for the judgment are fulfilled is effortless . The Principal Notion of Objectivity . So far, my analysis of objectivity has focused on three partial aspects of objectivity: the objectivity of an intelligent and critical inquiry that rises above mere subjectivity and bias, the objectivity of individual judgments, and the objectivity of data . These three aspects of objectivity are partial in the sense that they are parts of some sort of a whole, but what is the nature of that whole? To state it crudely, it seems that there should be more to objectivity . Is objectivity more than simply the sum of these three parts . Let’s consider my decision process . There is a sense that my entire effort to reach my decision is objective . My ultimate decision does not rest simply on one judgment of fact or one judgment of value . The objectivity of my decision cannot be solely attributed to rising above my opinion of my colleague, or selecting the appropriate materials to consider . Rather, the objectivity of my decision somehow depends on the contents of my entire decision process, not on partial elements . In fact, my various judgments form a patterned context . They depend on, and are related, to other sets of judgments . It is this principal or overarching notion of objectivity that is implicit in my decision process . The judgments I reached fit together as a whole . Relevant questions have been asked and answered satisfactorily . Some judgments depend on others . Some judgments are consistent with others . Some judgments complement each other . Other judgments are consistent with each other . The pattern that these judgments form is the narrative I constructed . The principal notion of objectivity is hinted at in discussions of the requirements of coherence and consistency in legal justification . Previous decisions, legislation, and the decision of a particular case are supposed to fit together . However, the views of MacCormick or Niemi on this topic in relation to objectivity are undeveloped . For them, coherence and consistency are supposed to keep the irrational and arbitrary elements of reasoning under control . It does not matter how a legal decision is reached as long as it can be legally justified in the accepted fashion . By contrast, my position is that the patterned context of judgments is not the outcome of an arbitrary or irrational process, but an intelligent and reasonable procedure . Further, the pattern of judgments is not fixed by criteria established prior to the decision process . Rather the form of the pattern is open, and is discovered by engaging in an intelligent and critical inquiry . The legal problem-solving process is essentially creative . In fact, I believe that breaking from past legal decisions is obligatory when there are compelling reasons . The principal notion of objectivity is implicit in Soinenen’s explanation of objectivity in easy cases . He constructs a narrative whereby his various judgments concerning objectivity, choice, logic, assessing similarity among cases all fit together as a patterned context of judgments . His chief mistake, however, is that he limits his account of objectivity and his understanding of the decision process to experiential objectivity . By taking a stance against the objectivity of creative and intelligent problem-solving and by not noticing the objectivity posited by individual judgments, Soinenen is left to define objectivity in opposition to choice and discretion even though a principal notion of objectivity can be detected in his work, albeit flawed .

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ConCludIng reMark The portrait of objectivity as a compound of genuine attentiveness, genuine intelligence, and genuine reasonableness makes it possible to pin point the difference between objective and subjective legal tests identified early in this paper in terms of judgments concerned with what is, and what is not, relevant to an inquiry . The analysis of objectivity as grounded in a conscious deliberate intelligent problemsolving process offers a strategy to overcome the problems MacCormick identifies, namely immediate reactions to situations, anger, and self-interest . Insofar as a person genuinely engages in an intelligent and critical inquiry, the outcome of a deliberation can overcome those factors that might potentially derail a good, responsible and objective decision . Here objectivity understood as impartiality depends on identifying and ensuring sentiment and self-interest are not part of any judgments in the problem solving procedure . In this light the criterion of the ideal impartial spectator has little to offer for, even if we invoke such a criterion, we can only determine what it actually means by personally engaging in a conscious deliberate intelligent problem-solving process . The view of objectivity grounded in intelligent inquiry and critical reflection highlights the contextual and subjective aspects of objectivity . Objectivity is contextual in that a judgment fits into a constellation of other insights and judgments . Objectivity is subjective in the positive sense of subjectivity in that the objectivity of an individual judgment lies in a person grasping the conditions for a judgment and grasping that the conditions are fulfilled . The ground of objectivity is not beyond the person making the judgment, it is the consequence of a person actually judging and deliberating well . Finally, the stance that “the criterion of objectivity lies in intelligent inquiry, critical reflection, and a grasp of the virtually unconditioned”27 challenges various aspects of legal theory that are taken for granted . One, it means that a legal decision is not objective because it can be rationally reconstructed and expressed in accord with accepted structures of legal justification . Rather, an individual judgment is objective because it posits truth, and a legal decision is objective insofar as the decision process forms a patterned context of judgments . Two, it means that the criterion of objectivity in legal decision-making is not to be found in rules purporting to govern ideal practical discourse and/or legal discourse . Rather, the decision maker discovers the criteria of objectivity in legal reasoning by asking and satisfactorily answering all the relevant questions . Three, it means that when judges ‘run out of rules’ they can potentially reach decisions that are objective . Objectivity is not the absence of choice and discretion . Rather, objectivity is achieved by making intelligent choices . Four, it means that the interpretation of a statute is not objective because the interpreter ‘only looked at what was there’ and didn’t read anything into the text . Understanding and judging are crucial aspects of objectivity . Experiential objectivity is only one partial aspect of objectivity . Five, it means that there is no need to universalize judgments of fact or judgments of value . Generalizing them does not make them objective . Further, following a precedent does not ensure that the subsequent judgment is objective . We understand similars similarly, but objec27

Lonergan, Collected Works of Bernard Lonergan (n . 2), 605 .

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tivity is grounded in intelligent and critical inquiry . Part of that inquiry should include whether or not there is sufficient similarity between two cases and also whether or not the precedent case was decided correctly . For, in all instances of decision-making, objectivity depends on the procedural criteria of attentive, intelligent, and reasonable inquiry .

Luiz fernando castiLHos siLveira objeCTIvITy and legal deCIsIon-MakIng: an objeCTIve dIsCovery? InTroduCTIon The intent of this chapter is to introduce an alternative approach to objectivity in legal decision-making, one that transcends the context of justification and incorporates the context of discovery . The argument will unfold in four steps: 1) an analysis of a particular conception of legal objectivity: that of 19th Century legal formalism and related theories; 2) a brief analysis of how this conception was transformed in the 20th century, especially by legal positivism; 3) a study of the premises of this transformation, namely, the rigid distinction between discovery and justification in the philosophy of science; 4) the proposal of an alternate, and we think more complete, conception of objectivity in the context of legal decision-making . This alternative approach to objectivity is called for in order to allow the concept to reach its full potential . The mainstream conceptions of objectivity in legal decision-making that are predicated in a rigid distinction between discovery and justification jeopardize this potential by drawing our attention to the wrong features and goals of objectivity in Jurisprudence . Their mistakes include – as Coleman and Leiter1 masterly pointed out – a conflation between objectivity and determinacy, as well as between these and other related concepts such predictability or certainty2 . These undesirable conflations obscure the contribution objectivity could offer – as a distinct concept – to the study of law and its relations to political theory through concepts such as legitimacy and the rule of law . This chapter presents an argument that is part of a larger project . The final steps of the larger argument will include a development of the ideas set forth here . They will go through an in depth study of Bernard Lonergan’s concept of objectivity and its application in the context of decision-making and, more specifically, legal decision-making . The goal is to re-contextualize the concept of objectivity in legal-decision making apart from the conflations presented in the last paragraph – that is, objectivity in decision-making is not a question of truth, certainty, predictability, determinacy, or similar concepts . It is a question of objectivity . My hypothesis is that the question of objectivity (in decision-making) is closely related to the problem of epistemic luck . As such, it calls for a novel understanding of the role of jus1 2

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 . Regarding this contemporary conflation between certainty and objectivity, Andrei Marmor’s remark is rather fitting: “The philosophical discourse about the subjective-objective dichotomy probably stems from 17th-century Rationalism . Interestingly, however, the Cartesian use of these notions was almost the opposite of their current one; for Descartes, the idea of objectivity carried sceptical connotations with it, whereas the subjective realm was associated with truth and certainty . See his Meditations on First Philosophy (1691) […]”, Andrei Marmor, ‘Three Concepts of Objectivity’, in Law and Interpretation. Essays in Legal Philosophy, ed . Andrei Marmor (n . 1), 177, note 1 .

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tification and its relations to both the discovery process and the subject responsible for the discovery .3 One last disclaimer: In the context of this broader argument, the present chapter deals primarily with epistemic objectivity4 . With this I mean that although these could be valid questions, I am not here concerned with the truth-aptitude of legal statements, or with the existence of “legal objects” that may or may not be dependant upon subjects or subjectivity . My questions are in the realm of epistemology for in decision-making our concern ought to be, not the existence of objects “out there” or the truth-aptitude of legal statements, but what and how can we know about them . ParT one: objeCTIvITy

as The avoIdanCe of subjeCTIvITy

The conception of objectivity I criticize in this paper was most prominent in the formalist theories of the 19th and early 20th centuries . I will refer to this conception as “objectivity” (with quotation marks), and its main tenet is the following: “objectivity” is preserved through the avoidance of subjectivity . In this sense, an “objective” judicial decision would be a decision which: 1) was taken by the judge with no influences from his or her subjectivity; 2) can be evaluated independently of any consideration regarding subjective traits, whether the judge’s or those of the person evaluating the decision . Thus “objectivity” in law (i . e ., an “objective” legal system) would entail this dual conception encompassing both legal decision-making and legal reasoning . The justification for the need of such “objectivity” was, very broadly considered, twofold (not necessarily stated here in order of importance): 1) an ideal of “legitimacy”, which in a democratic context demanded that the law stemmed from the people through the legislative power . In this case, the judiciary should refrain from interfering as it ought to respect legitimate law . More broadly, however, one can phrase this demand as “being governed by the law and not by people”, or simply by (again, broadly) “the rule of law”; 2) an ideal of predictability or even certainty regarding law and legal reasoning . Since different people can have different moral convictions and personality traits, letting the subjective elements of a judge influence her decision-making would jeopardize the predictability that is necessary for the planning of our lives . One way of safeguarding “objectivity” from subjective interference was thought to be through the use of formal logic . The best example is the legal syllogism, in which if the legal solution of a case is a deduction from the major premise (law) and minor premise (facts) it is to be considered “objective” . The legal syllogism, in other words, is a way in which one can demonstrate that no subjective elements have influenced the decision . The predictability, if not the certainty, of the law would then be preserved, as well as the respect for legitimate law . 3 4

Due to space constraints, these arguments will be developed in full elsewhere . For an overview of the classification of objectivity into ontological, epistemic and semantic, see Matthew Kramer, Objectivity and the Rule of Law (Cambridge: Cambridge Universitiy Press, 2007) . For an alternate yet slightly overlapping classification of objectivity into semantic, metaphysical and logical, see Andrei Marmor, ‘Three Concepts of Objectivity’ (n . 2) .

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The typical example of this school of thought in practice is that of the continental codification throughout the 19th Century . Both the French5 and the German6 codes stand out as instances in which an attempt has been made to codify a complete system of law, from which all legal decisions should be derived with certainty (and thus predictability) . Formalism was not, however, restricted to continental law, and can also be found in seminal works within the common law tradition – among which one could cite that of Austin7 . Despite the features they might share, it is paramount for my argument that we do not confuse formalism with positivism . Regardless of which criterion we decide to use as a definition of legal positivism (including the traditional postulates such as the separation thesis or the sources thesis), it is not necessary for a positivist theory to defend formalist premises . Conversely, there are natural law theories that are formalist . This is important to highlight, because the criticism toward formalism does not necessarily affect neither positivist nor natural law theories . The concept of formalism we are working with here is akin to that drawn by Bańkowski8 and Shklar9 . It means more than just a school of Jurisprudence: in broad terms, formalism is way to conceive rules and their application . As an ideology, formalism “can run across the institutions of morals and law”10, and is a way to achieve certainty or, in other words, to remove contingency from the world through rigid rule-following . Amongst the many attacks that formalism faced in the late 19th and early 20th centuries is the claim that rigid rule-following does not guarantee objectivity . Three of the reasons that support this claim are worth citing: 1) it is impossible for a body of rules to cover all possible future cases . There will always be “gaps” that need to be filled, and this “filling” cannot be objective; 2) there will always be the need to interpret the rules, which can’t themselves be always clear . This argument received more attention as the 20th century unfolded, among other reasons due to the linguistic turn and to the growing adoption of “open texture clauses” in both legislation and constitutions; 3) we do not think from premises to conclusion . In fact, logic does not picture the way we think at all . Logic arrives “late”, only to make sense, to prove or to explain a conclusion which we reached through other ways of reasoning – ways that are subjective . The American Legal Realism was part of these attacks . In short, they claimed that formalism was no guarantee against subjectivism in legal decision-making; in fact, they asserted that rigid formalism was part of the cause of excessive subjectivism in adjudication . It is important to stress that American Legal Realists were not against objectivity nor pro subjectivism but quite the opposite . Their claim was that

5 6 7 8 9 10

Charles Sumner Lobingier, ‘Napoleon and his Code’, Harvard Law Review, 32,1918–1919, 114– 120 . Ernest Schuster, . ‘The German Civil Code’, Law Quarterly Review, 12, 1896, 17–22 . For this interpretation, see (for example) Michael Lobban, The Common Law and English Jurisprudence 1760–1850 (Oxford: Clarendon Press, 1991), 223–256 . Zenon Bankowski, . Living Lawfully: Love in Law and Law in Love (Dordrecht: Kluwer Academic Publishers, 2001) . Judith Shklar . Legalism (Cambridge, Mass .; London : Harvard University Press, 1986) . Zenon Bankowski, Living Lawfully (n . 9), 45 .

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formalism (i . e ., a rigid posture regarding rules and their application) was not the way to obtain objectivity . If formalism could not guarantee objectivity in Jurisprudence, what could? Enters the distinction between discovery and justification . ParT Two: dIsCovery

as subjeCTIve; jusTIfICaTIon as objeCTIve

“Discovery” may be understood, in an initial definition, as the process by which the judge “actually” reaches a tentative decision,11 a conclusion concerning a judicial problem . It includes factors like the motivation he had to do so and the reasons he had to think he is making the right choices . “Justification” may be understood as the way in which the judge publicly justifies a decision12 . It is the exposition of the reasons why it shall be accepted by society as the right decision, and the reasons that should be considered logical as leading to the right conclusion . In broad terms, this distinction between discovery and justification is well summed up by MacCormick: “what prompts a judge to think of one side rather than the other is quite a different matter from the question whether there are on consideration good justifying reasons in favor of that rather than the other side.”13 This distinction was brought into Jurisprudence from the philosophy of science by Richard Wasserstrom .14 Bruce Anderson15 has an interesting analysis of this attempt to settle the debate between formalism and the American legal realists: a rigid distinction yields the claim that while the latter where focusing on discovery, the former dealt with justification . For Wasserstrom, neither the thinking path nor the reasons that lead to a certain decision are relevant – as much as it is not relevant the method a scientist used to arrive at the formula for a new vaccine .16 What does matter is that the vaccine, in fact, works . The tests which prove that the vaccine works are enough as justification . In similar fashion, in law the tests which demonstrate that the decision is “in accordance to the law” are what justify such a decision . The reasons or the process by which a judge reached such a decision are irrelevant . This position led to an exclusive focus on justification, thus regarding discovery as marginal and unimportant in the field of jurisprudence . Such a theoretical stance was followed – in some cases more explicitly than others – by many jurists in the second half of the last century, mainly by those of positivist convictions . Neil MacCormick was one of the most explicit17, along with others such as Joseph

11 12 13 14 15 16 17

Bruce Anderson, “Discovery” in Legal Decision-Making (Dordrecht: Kluwer Academic Publishers, 1996) . Ibid. Neil MacCormick, . Legal Reasoning and Legal Theory (Oxford: Clarendon Press, 1997), 16 . Richard A .Wasserstrom, The Judicial Decision: toward a theory of legal justification (London: Oxford University Press, 1961) . Bruce Anderson, “Discovery” in Legal Decision-Making (n . 12), 11 et seq . His classic example . See Richard A .Wasserstrom, The Judicial Decision: toward a theory of legal justification (n . 15), 25 et seq. Neil MacCormick, . Legal Reasoning and Legal Theory (n . 14) .

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Raz18, Aulis Aarnio19, Gidon Gottlieb20, and Jerzy Wróblewski21 – just to name a few . Bruce Anderson has shown that the arguments for setting discovery aside from jurisprudence do not hold: Namely, that discovery would an irrational and arbitrary flash of creativity, one which would be irrelevant to lawyers and should be left to psychologists . In fact, with support on the works of Bernard Lonergan22, Anderson demonstrated that the process of discovery is rather a rational and deliberate process of creativity, the study of which is not only possible but one that could be quite relevant for the understanding and evaluation of legal decisions . My claim is that the rigidity of this distinction does not hold water, neither in law nor in other sciences . Due to space restraints, I will not go into detail in this paper about why the rigid distinction does not hold in law . Shortly, my argument is that, while the distinction itself is valid and can help us better understand legal reasoning and legal decision-making, separating discovery and justification into two completely independent processes jeopardizes the possibility of a thorough evaluation of legal decisions . In other words, justification without any anchoring on discovery is not enough . Among other things, it is not enough for us to achieve a satisfactory degree of objectivity in legal decision-making . The next part of this paper will deal with the inadequacy of a rigid distinction in its own field: the philosophy of science, which is where Wasserstrom got his inspiration from . The possibility of such a distinction is far from being uncontested in the field of epistemology . ParT Three: dIsCovery,

jusTIfICaTIon and sCIenCe

The distinction between discovery and justification in science goes back to Reichenbach, who asserted: “The act of discovery escapes logical analysis; there are no logical rules in terms of which a ‘discovery machine’ could be constructed that would take over the creative function of the genius .”23 This stance regarding the illogical and arbitrary nature of discovery was carried on by Popper’s falsificationism,24 which in turn was the inspiration for Wasserstrom and later MacCormick . There exists, however, no consensus on this impossibility of logical evaluation of discovery in the contemporary literature on the philosophy of science . As Theodore Arabatzis points out, “[…] there has been overwhelming evidence that hy-

18 19 20 21 22 23 24

Albeit with the terminology of “reasons for comformity” and “reasons for compliance” . See Joseph Raz, . Practical Reason and Norms (Princeton: Princeton University Press, 1990), 179 et seq. Aulis Aarnio, The Rational as Reasonable: a treatise on legal justification (Dordrecht: D . Reidel Publishing Company, 1986) . Gidon Gottlieb, . The Logic of Choice: an investigation of the concepts of rules and rationality (New York: The MacMillan Company, 1968), 159; Jerzy Wróblewski, . The Judicial application of law (Dordrecht: Kluwer Academic Publishers, 1992) . More on Lonergan below, including references . Hans Reichenbach, The Rise of Scientific Philosophy (Berkeley: University of California Press, 1951), 231 . See mainly Karl Popper, The logic of scientific discovery (New York: Routledge, 2002) .

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pothesis generation and theory construction are reasoned processes whose explication are (and should) be carried by philosophers of science .”25 I will propose that Arabatzis’ interpretation of the distinction between discovery and justification is an important statement of the limitations of the rigid distinction in the context of jurisprudence . Arabatzis uses the case of “the discovery of unobservable entities and the discovery of new phenomena” to support the inextricability of the two contexts . He stresses the differences between the discovery of entities that are accessible to immediate inspection or that are discovered through controlled experiment, and the discovery of objects which are not accessible to unaided observation and those that are unobservable in principle (of which the electron spin is given as an example) .26 In a nutshell, Arabatzis points out that a “mere hypothesis to the effect that a new entity exists would not qualify as discovery of that entity” .27 In this sense, there is no such thing as an irrational or arbitrary discovery . Discovery and justification do go together: […] ‘discovery’ is a term which refers to an epistemic achievement […] No historian or philosopher […] has ever used the term ‘discovery’ to characterize the proposal and acceptance of an entity (e . g ., phlogiston) that we now believe was a fictitious one […] . Contemporary historians and philosophers do not think that phlogiston was discovered, despite the fact that some 18th century chemists referred to phlogiston as one of the most significant discoveries in the history of chemistry .28

A vast number of legal decisions, and especially those made in hard cases, are more akin to unobservable than to observable phenomena . Granted, few would question the justification of a speeding ticked issued by an official to someone caught driving much to fast with a reliable radar speed gun (regardless of any subjective inclinations the traffic officer might have) . Nevertheless, the assessment of many decisions is analogous to the evaluation of the discovery of non observable entities . One cannot justify the entity’s existence based on the fact that the entity’s existence is true . Notwithstanding, this impossibility does not yield scepticism: the existence of non observable entities is (prospectively) decided upon careful reflection of the process for their discovery . “Was all the evidence considered?”, “Were competing explanations for the same observable phenomena ruled out?”, and so on . The better, the more exhaustive the process of discovery is, the more certainty one can have about the existence of that particular entity . In other words: the process of discovery justifies . It is not only in the case of unobservable phenomena that the rigid distinction is questioned . Hoyningen-Huene, for example, demonstrates that even in the case of empirical laws for which we have methods of measurement, the distinction does not hold . Empirical laws, he stresses, must be discovered and justified . In the case of a refinement of the methods of measurement which lead to a needed refinement of

25 26 27 28

Theodore Arabatzis, ‘On the Inextricability of the Context of Discovery and the Context of Justification’, in Jutta Schickore and Friedrich Steinle, Revisiting Discovery and Justification: Historical and philosophical perspectives on the context distinction (Netherlands: Springer, 2006), 216 . Ibidem . Ibidem. Ibidem.

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the empirical law, it is unclear if the refined new methods are part of the discovery or part of the justification .29 This undermines the assumptions of Wasserstom’s example of scientific reasoning . His most famous example, that of a scientist taking potential formulae for a vaccine out of a hat,30 is inaccurate when it comes to the distinction between discovery and justification . The process of discovery (in this case the act of taking multiple formulae out of a hat) is unrelated to, asserts Wasserstrom, the fact that such a substance works or not as a vaccine . What justifies the scientist’s discovery is not the process of discovery but the fact that the vaccine works . “[…] if ex hypothesi the vaccine were effective, it would certainly not be rejected because of the way in which the scientist selected it for testing .”31 Whereas this last assertion is probably true, Wasserstrom is wrong in at least two levels: Firstly, he misses the point made by both Arabatzis and Hoyningen-Huene, that it is not clear why should testing the formulae be part of the context of justification and not as still part of the context of the discovery of that vaccine . As a matter of fact, until the substance has been tested and deemed effective, one has not discovered a vaccine but has merely taken a piece of paper out of a hat . Secondly, Wasserstrom seems to make at least two mistakes regarding justification and truth: 1) he conflates both justification and truth, as if it was the truth of a fact that provided its justification;32 2) he does not consider that the truth is, even if independent from the scientist and his discovery, only assessed via both the discovery and the justification . In other words, it is only through the very same process of discovery (which includes the testing phase) which lets a scientist assert that she discovered a vaccine that the truth of the effectiveness the vaccine can be appreciated . Hoyningen-Huene goes on to identify different versions of the discovery/justification distinction, and a handful of objections to each of them . He introduces 5 different ways in which the distinction may be considered – some of which are, of course, intertwined or conflated and may carry (as he puts it) different hidden assumptions . The 5 versions of the distinction are, in short: 1) temporal (for something to be justified it needs to first exist); 2) methodological (justification involves testing whereas discovery is a path to reach a scientific claim), which is related to a distinction between descriptive and normative (discovery describes the thought processes whereas justification evaluates them); 3) discovery as empirical while justification is 29 30 31 32

Paul Hoyningen-Huene, ‘Context Of Discovery Versus Context Of Justification and Thomas Kuhn’, in Jutta Schickore and Friedrich Steinle, Revisiting Discovery and Justification: Historical and philosophical perspectives on the context distinction (Netherlands: Springer, 2006), 120–121 . Richard A .Wasserstrom, The Judicial Decision: toward a theory of legal justification (n . 14), 25 et passim . Ibidem, 26 . Not an uncommon mistake to make in epistemology, but one that renders useless the whole concept of justification . If one has direct access to truth it adds nothing to say some belief is justified, and moreover the conflation of truth and justification would spoil the widespread concept of knowledge as “true, justified belief ” . For example, ref . Marian David, ‘Truth as the Epistemic Goal’, in Knowledge, Truth, and Duty: Essays on Epistemic Justification, Responsibility, and Virtue, ed . Matthias Steup (New York: Oxford University Press, 2001), 151–169 . David goes as far as stating that neither truth nor knowledge are epistemic concepts, but only justification (see pages,153–154) .

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logical; 4) a division of disciplines (history, psychology and sociology of science are empirical, thus deal with discovery; philosophy of science is logical and thus deals with justification; 5) the distinction focuses on the different approaches taken by the subject when performing either discovery or justification .33 The problem is that if the distinction between discovery and justification does not hold, one important conceptual tool is lost to support these other distinctions such as descriptive/normative, empirical/logical, subjective/objective . The assertion of a rigid distinction is too artificial and ultimately false as it does not correspond to the ways in which we human beings discover, decide and justify our discoveries and decisions . What we need, then, is a theory capable of dealing both with discovery and justification, as well as apt to deal with their relation to one another . That, I argue, is key for the understanding of the other dualisms mentioned by Hoyningen-Huene as closely related to, if not dependent on, the rigid distinction . Lonergan’s theory exposed in Insight34 seems to fit the bill . ParT four: lonergan

and objeCTIvITy In legal deCIsIon-MakIng

The use of Lonergan’s theory in jurisprudence can be taken one step further . As previously mentioned, Anderson has demonstrated that Lonergan’s philosophy is relevant to the study of legal decision-making, more specifically to the evaluation of legal decisions and their discovery process . This study paved the path to my current claim: that Lonergan’s take on objectivity is relevant for a better understanding of objectivity in legal decision-making . Objectivity in Lonergan’s theory is not a given but emerges in the context of a plurality of judgements . For Lonergan, judgement is the decision that puts an end to a set of questions and answers . It is the decision that concludes the reflection regarding if a certain understanding or formulation is correct . These formulations are in their turn the result of insights, or of acts of understanding that grasp an intelligent form emergent from experience (whether sensible or imagined) . 35 In this sense, objectivity is not something that ought to be preserved but it needs to sought for and achieved via a conscious process of knowledge production . It is in the context of judgements that affirm the knower that objects emerge . And considering that human knowing is cyclic and cumulative, it is in sharing of this knowledge that objectivity transcends the subject – or, in other words, detaches from the subject . The judgement “I am here now” becomes an utterance and transcends into “he was there then” – an objective true statement that detaches from the space and time in which it was uttered .36 It is thus in the context of communication that objectivity arises . In other words, it is through individuals and not by avoiding them . This is the final departure 33 34 35 36

Paul Hoyningen-Huene, ‘Context Of Discovery Versus Context Of Justification and Thomas Kuhn’ (n . 30), 119–131 . Bernard Lonergan, Insight: a study of human understanding . Collected Works of Bernard Lonergan, vol . 3 (Toronto: University of Toronto Press, 1992) . Ibid ., 300 . In turn, this is what differentiates absolute from normative objectivity . Bernard Lonergan, Insight: a study of human understanding . Collected Works of Bernard Lonergan (n . 35), 399 et seq.

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from any formalist claims in which objectivity should be preserved from subjective contamination . It is, in fact, the denial that the object or the objective is something “out there” . Rather, the object is something we arrive at, while objectivity is something that should be sought for before being preserved . Beliefs are for Lonergan the basis of the transcendent human knowledge . In other words, they are the elements of knowledge that transcend the individual, in opposition to immanently generated knowledge . In Lonergan’s words, “The general context of belief is the collaboration of mankind in the advancement and the dissemination of knowledge .”37 This collaboration exists at least in part because our senses are extremely limited in space and time, thus the possibilities of our understanding would also be limited should we not be “ready to rely on the senses of others” .38 Knowledge, then, is seldom independent of this reliance in the experience and judgment of other people . In Lonergan’s illustration, “One does not simply know [immanently] that England is an island . Neither does one merely believe it .”39 For Lonergan, all knowledge is both individual and collective – or, in his terms, immanent and transcendent . In other words: on the one hand, all knowledge is grasped by individuals through their acts of experience, understanding, judgment and decision; on the other hand, the insights attained are only possible because the individual is embedded in a collective endeavour which provides the meaning for her quest . This meaning, which is mediation between individual and collective, and at the same time between tradition and future, is closely related to and dependent of authentic communication . Regarding objectivity, in conclusion, the primal factor is the quality of this engagement of the decision-making process with a particular scientific community – in this case, a legal community . This is because objectivity is achieved by affirming the subject while transcending it . This transcendence is only possible through communication . The implications of these considerations in legal practice point to the fact that we need richer forms of expression to justify legal decisions . It is one thing to demonstrate a certain decision is true or that it is in accordance to the law, but this is not the same as justifying a decision . Demonstration is short, logical, clear, and makes use of known and shared formulations and definitions available to both the speaker and her audience . Justification, on the other hand, needs more consideration . It engages with the audience in the building of formulations and definitions, which in turn are part of communicating that the conclusion is justified because the relevant questions were raised, addressed, and decided to the best of one’s ability .40 We are aware that Lonergan is far from being the only author to claim objectivity as a construct that should go through the individual (or, in other words, through subjectivity) . Nevertheless, his work does deserve more attention in law since it has already been demonstrated that it is relevant for the analysis of legal decisions and

37 38 39 40

Ibid ., 725 . Ibid ., 726 . Ibid ., 728 . These distinctions are predicated in the difference between rhetoric and axiomatic expressions as proposed by Lonergan . For a good overview, see Bruce Anderson, “Discovery” in Legal DecisionMaking (n . 12), Ch . 8 .

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the context of their discovery . In short, this understanding of the context of discovery (i . e ., how decisions are made) is what could make possible the understanding of the objectivity we are looking for in jurisprudence and in legal decision-making .

PART IV – OBJECTIVITY

IN LAW AND

MORALS

aLejandro saHuí legal PosITIvIsM and arguMenTaTIve ConCePTIon are They CoMPaTIble?

of

law:

InTroduCTIon In a text published as a tribute to Eugenio Bulygin for its 75th anniversary, Manuel Atienza1 observes that in the last 20 or 25 years latin and analytic legal philosophers have lined up basically into two sides . The first is characterized as formalistic and close to Bulygin’s work, with the following features: 1) an strict or exclusive positivism; 2) a highly skeptical attitude towards objectivity and rationality in ethics, and 3) an understanding of the theory of law as a mere conceptual analysis with no interest for practical aspects . The second side, represented by Carlos Santiago Nino, is distinguished by: 1) an inclusive positivism, or openly a non-positivism; 2) a claim of rationality in ethics matters (cognitivism more or less strong); and 3) a non-isolated conception of legal thought which includes legal philosophy in the wide spectrum of practical philosophy, with a close connection with the moral and legal philosophy . Manuel Atienza is aware that such a typology tends to simplify the discussion, but still he believes that it is useful to set some positions and to determine whether the thesis defended by each side are compatible or not with an argumentative conception of law. Atienza believes that Bulygin’s thesis are not . According to Atienza, an argumentative conception of law favors its practical dimension, its functioning in society . It is particularly related to the task of those who perform specialized legal activities2 . But not only with the behaviour of judges and other legal actors, but also with the kinds of reasons that justify and guide such a behaviour . Therefore, from his point of view, such a conception is compromised with a minimal objectivism in ethics3 Atienza sustains that the notion of legal validity demands substantial and not just formal criteria, because rules in order to be valid must respect constitutional values and principles . Moreover, he argues that there is a conceptual or intrinsic connection between law and morality; not casual nor contingent, and therefore, this leads to a greater integration between the various fields of practical reasoning: law, morality and politics . The idea is that there exist objective criteria (such as universality, consistency, completeness, etc .) that confer a rational character to the process of justifying decisions . The purpose of this text is to discuss the viability of law’s argumentative approach from the legal positivist side in the way presented by Eugenio Bulygin4 . In 1 2 3 4

Manuel Atienza, ‘Eugenio Bulygin y la teoría de la argumentación jurídica’, in Un diálogo con la teoría del derecho de Eugenio Bulygin, ed . Juan José Moreso and María Cristina Redondo (Madrid: Marcial Pons, 2007), 39–49 . Manuel Atienza, El derecho como argumentación (Barcelona: Ariel, 2006), 21 . Ibid, 53 . Eugenio Bulygin, El positivismo jurídico (México: Fontamara, 2006) .

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particular, this text criticizes the idea that legal positivism per se implies a non cognitive or relativist position in practical questions; such a lack would prevent it from understanding law as an argumentative practice, such as it is described above by Atienza . This consequence is associated to formalism that often accompanies positivism, as well as to the conceptual independence that positivism accuses regarding morality . It is true that a social institution such as law requires objective criteria in deciding its correct and deviant uses, for rejecting arbitrariness . However, it is not necessary to go deep into a moral order to establish such a criteria . This is because it is possible that those criteria depend on common uses and conventions related to political issues, v . g ., order, cooperation, justice, etc . These imperatives may be followed autonomously, but it does not always means that they are moral because of this . According to this, not only moral norms can be followed in an autonomous manner . Some social and positive norms can be freely accepted by conscience, without being coerced externally, although they conflict with ultimate moral and inner values from each person . In this sense Carlos Santiago Nino conceived democracy as the best substitute of moral discourse5, because he suggested that we need inclusive public discussion in order to test our inner convictions . Due to the fact that people may be wrong when they think about moral questions, and considering social plurality, it is very important then to conceive positive legal procedures to solve eventual discrepancies in an objective manner . In such cases democratic decision primarily reflects people’s autonomous will of living together with respect for each other . I think this is the same intuition behind constructivism in John Rawls theory of justice . Constructivism provides us with an approach to grasp the idea of objectivity in practical philosophy without thinking in a transcendent moral order or in moral facts . This proposal, which can be traced to the philosophy of Immanuel Kant, has been assumed by the authors referred above: in moral and law by Carlos Santiago Nino6; and in politics by John Rawls7 . In both cases it is argued that objectivity depends on a public point of view, constructed contingently, ie, through deliberation, but that nevertheless is not arbitrary . Hence, it is possible to think that objectivist and cognitivist positions and legal positivism are compatible . This text is structured in five parts . Part one briefly explains formalism in Eugenio Bulygin’s work and his ideas about judicial decisions’deductive justification . Part two discusses the relationship between morality and law according to positivism, and it is argued that there is no conceptual connection nor justificative between those normative orders, even though some of its content clearly overlap . Part three deals with the thesis about the unity of practical reason and opposes the idea supported by Atienza, Nino and mysteriously Bulygin, who ends up conceding certain 5 6 7

Carlos Santiago Nino, La constitución de la democracia deliberativa (Barcelona: Gedisa, 1997) . English version: The Constitution of Deliberative Democracy (New Haven and London: Yale University Press, 1996) . Carlos Santiago Nino, El constructivismo ético (Madrid: Centro de Estudios Constitucionales, 1989) . John Rawls, ‘Kantian Constructivism in Moral Theory’, in Collected Papers, ed . Samuel Freeman, (Cambridge, Mass .: Harvard University Press, 1999), 303–358 .

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primacy to moral reasons over legal ones; since only those reasons qualify as genuine and definitive in relation to human action . Part four discusses whether methodological positivism implies accepting a non-cognitivist metaethics or a relativistic theory, and a negative response is adopted . Finally, part five offers some concluding remarks suggesting that it is possible to reconcile methodological positivism with an argumentative conception of law . This idea does not requires including moral criteria in juridical debates, but to appeal to political and public values . ParT one:

legal forMalIsM and judICIal syllogIsM.

I begin with Manuel Atienza’s characterization of Bulygin as formalist . Admittedly Bulygin attaches fundamental importance to the scheme of the syllogism and deductive logic to justify judicial decisions . However it is necessary to note that the strong defense of the syllogism is not formal per se, but material . It is explicitly based on liberal political philosophy principles: popular sovereignty, separation of powers, representative democracy and constitutionalism . Bulygin believes that theory of judicial syllogism is a consequence of the separation of powers, because it imposes judges the duty to solve cases by logical deductions from positive rules to particular circumstances . Within this framework it is expected that democratic norms are accepted as valid and binding . Law dictated by legislature must provide judges with the necessary tools to accomplish its mission: to exert law without modifying it, because according to the separation of powers doctrine, judges should be limited to the application of general rules created by the legislator, who is responsible for changes in law in case of necessity or convenience8

Francisco Laporta has interpreted in such a way Bulygin’s formalistic position: “Bulygin is a liberal, and certainly is a liberal precisely because he is logic”9 . From this point of view, deductive logic would be a consequence of the idea of rule of law . Bulygin does not reject the label of formalism for his theoretical position, because of his conception of arguments as chains between premises and conclusion-propositions . From his perspective, legal arguments are connected with the notion of justification . A justified decision from judges should have the structure of a complete syllogism . It has to exhibit reasons as premises that lead to a definite conclusion . The deductive model of subsuming a particular case under a general rule which has assumed the status of a valid law is the best and perhaps the only guarantee of control of a judicial decision . Inevitably then the justification of a judgment shall emerge from a syllogism scheme . Juan Carlos Bayon argues that deductive model is both a condition of rationality and a corollary of the principle of universality: “if a judgment is correct, it is correct under a general pattern (ie, to the extent that it is an application of a rule)10

8 9 10

See Eugenio Bulygin, El positivismo jurídico (n . 4), 64 . Francisco Laporta, ‘Para Eugenio Bulygin’, in Un diálogo con la filosofía del derecho de Eugenio Bulygin (n . 1), 36 . Juan Carlos Bayón, ‘Bulygin y la justificación de las decisiones judiciales: la parte sorprendente’, in Un diálogo con la filosofía del derecho de Eugenio Bulygin (n . 1), 147 .

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Carlos Santiago Nino emphasized the importance of the purely logical sense of justification, as a result of decisions’ content derived from general norms; however, he felt that it was very important to keep in mind that norms should be valid, true or fair in substantive terms . Naturally there is a sense of “justification” in which a judge’s decision to send to jail a person is justified if its propositional content derives from the following utterances “all bald should go to jail” and “this person is bald” . I have never dealt with this sense of “justification”11 .

Manuel Atienza criticizes that formal conception of legal reasoning takes for granted all questions concerning validity of legal premises, without inquiring about the truth or justice of its contents . He indicates that lawyers must consider substantive dimension of norms because they need to know if those norms are really valid before use them in a syllogism . However, Atienza argues that both conceptions of arguments are complementary, not exclusive . If this is true, the transition from formal to material conception of legal reasoning does not lead to abandon the logical scheme of reasoning defended by Eugenio Bulygin, which remains valid . Rather, it leads to question about the criteria that would be useful to support or reject certain questionable premises inside those schemes . Because of his liberal position, Bulygin assumes the a priori validity of rules based on the doctrine of separation of powers . On the contrary, Nino and Atienza explore the ultimate validity of Law, beyond positive law . They pretend that there is an intrinsic link between moral and law . Here I think that Bulying is right . If we talk about a theory of legal reasoning that helps the work of judges, whose decisions are reinforced by the use of state coercion, then the principle of democratic legitimacy of laws must be respected . This principle is not equivalent to merely formal legality, nor always coincides with morality or justice . Decisions that could seriously affect people’s live require a basic citizen consensus on the legitimate origin of norms that support them . ParT Two:

MeThodologICal PosITIvIsM: The ConCePTual seParaTIon beTween law and MoralITy.

According to Manuel Atienza, exclusive legal positivism establishes a conceptual separation between law and morality . In terms of Eugenio Bulygin this means that: The legal validity of a norm does not necessarily imply moral validity and moral validity of a norm does not necessarily mean its legal validity12 .

This is a central thesis of positivism to Bulygin . However, it is important to look at the distinction made between methodological and ideological positivism . Methodological positivism distinguishes the existence of law and its moral value . For this reason, it does not prescribe the absolute obligation to obey current law, because it could be contrary to the moral order . 11 12

Carlos Santiago Nino, ‘Respuesta a J . J . Moreso, P . E . Navarro y M . C . Redondo’, in Derecho, moral y política. I, (Buenos Aires: Gedisa, 2007), 167 . See Eugenio Bulygin, El positivismo jurídico (n . 4), 73 .

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Here I defend that methodological positivism does not preclude an argumentative conception of law . Carlos Santiago Nino, for example, who according to Atienza is placed on the opposite side to Bulygin, also denies that there is a conceptual connection between law and morality, because it implies a questionable metaphysical thesis: that there is a unique valid notion of law . But in fact many regular notions of law are purely descriptive, and this means that they are not related to moral in a conceptual sense . That is why Nino argues that connection between moral and law only exists in the context of justification and interpretation13 . Nino is right in defending that a legal system can be perfectly identified and described without any reference to morality . According to Eugenio Bulygin, this possibility depends on another thesis that he assigns to the methodological positivism: the social sources of the law . Positivism maintains that the “existence and content of law in a society depend on social facts, that is to say, on acts or activities of the members of that society”14 . Ultimately the law depends on social conventions . Constructivism helps Nino to reflectively understand some complex social conventions as law and morality . Individuals within a practice usually follow its rules in a calculated way, not mechanically or automatically . From this perspective, he stands apart from sociological conceptions of practices and conventions that assume that they are valid only because of its regularity . I intend to defend […] a certain conception of moral knowledge which I call “epistemological constructivism .” It is a conception according to which social practice is a suitable mean to reach such knowledge15 .

However, in a very strange move Eugenio Bulygin, concedes primacy and exclusivity to morality in order to define the notion of normativity . For Bulygin the problem of the normativity of law is not legal but moral16 . In his opinion a pure descriptive positivist theory could not use the normative concept of validity as binding force, as a reason for action17 . Surprisingly, as Nino and Atienza, Eugenio Bulygin says that only morality provides conclusive and ultimate reasons to act . Legal obligations would be merely instrumentals18 . It is unclear however, why only moral rules are characterized as normatives genuinely ie, as valid reasons for action; while legal rules are just instrumental . I consider that Bulygin demerits the idea of legal validity, when he interprets it as the mere membership of norms to the system of law and their applicability by judges . Although these two notions are descriptive, and this is particularly relevant for the notion of judiciary system of Bulygin, it is a fact that any person, and also those who defend methodological positivism, at the moment of assuming the rol of agents who take position in front of specific legal rules, should internally decide if they accept those rules as ultimate and conclusive reasons to act according to the context . 13 14 15 16 17 18

Carlos Santiago Nino, ‘Derecho, moral y política’, in Derecho, moral y política I (n . 11), 140 . Eugenio Bulygin, El positivismo jurídico (n . 4), 74 . Carlos Santiago Nino, ‘Constructivismo epistemológico: entre Rawls y Habermas’, in El constructivismo ético (n . 6), 93 . Eugenio Bulygin, El positivismo jurídico (n . 4), 74 . Ibid, 100 . Ibid, 107 .

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If Bulygin himself admitted that his formal notion of justification based on subsuntive syllogism was derived from a liberal political philosophy, then there is no problem for assuming too that a methodological positivist may derive his internal duty to obey the law considering political values, not moral ones . Some times people refuse to act according to their inner moral beliefs without being instrumentals or hypocritical . They feel really obligated because they are conscious of their epistemic limitations, so they are willing to test those moral beliefs, even the strongest ones, above all when democratic legitimacy of law has not been seriously contested . Nino says that the acceptance of democratic decisions implies being guided by an epistemic presumption . And he adds in a somewhat redundant mode The democratic origin of a norm, gives us reasons to realise its content . In providing us those reasons consists the moral superiority of democracy, because we have reasons to do what we have reason to believe that we have reason to do19 .

This perspective recognizes that there may be good reasons, in the sense of personal and internal reasons to obey law, without falling back on moral . However, this does not imply that laws deserve obedience because of their mere existence . Morality is not an undisputed domain . Therefore it can not solve the problems that arise when we try to judge the fairness of single rules; or of legal order, seen globally . Therefore Bulygin rightly notes that from the internal perspective of people, objective morality usually coincides with their moral beliefs . This situation stems from the lack of a generally accepted method to decide the truth or correctness of moral statements20 . The difficulty in accessing the moral domain was also seen by Carlos Santiago Nino, for whom moral truth, according to the constructivist paradigm was relative and internal to a specific moral conception; but may not be valid for those who not assume their presuppositions21 . In view of this, I do not follow Bulygin in the idea that morality is the privileged domain to evaluate law as a set of norms that generate genuine obligations, that is to say internal reasons to act for people . This is an odd belief for a moral skeptic . It is well known that Immanuel Kant distinguished law and morality, and stated that law must be useful even for “a people of demons” . A methodological positivist would not have to add anything else . This is because participants’ attitude in relation to the norms is irrelevant to this approach, and the notion of justification derived from syllogism is not dependent on it . Thus, we can also reject Nino’s connection between law and morality in the field of justification . There is no conceptual connection nor dependence on justification between them . However, this does not mean that there are no frequent overlaps . Law arises through a process of functional differentiation between normative orders from which, according to Jürgen Habermas, people separate from morality 19 20 21

Carlos Santiago Nino, El constructivismo ético (n . 6), 132 . Eugenio Bulygin, El positivismo jurídico, (n . 4), 120 . “This means that there is a kind of relativism that a constructivist position is committed to accept: position […] that I have called the ‘conceptual relativism’, by which the meaning, truth and validity of moral judgments are relative to the rules and the structure that are underlying to social practice or institution of moral discourse”, in Carlos Santiago Nino, Ética y derechos humanos. Un ensayo de fundamentación, (Barcelona: Ariel, 1989), 161; see Carlos Santiago Nino, The Ethics of Human Rights, (Oxford: Clarendom Press, 1991) .

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and religion some areas of their lives . This means a cognitive advance, but mostly practical . This tendency was brought about by pluralism and opposed to the logic of more homogeneous communities22 . In principle, it would have served to turn off or at least reduce the violence of many conflicts that often emerge from tagging as sin any deviation . Manuel Atienza defends both a justificative and a conceptual connection between law and morality . He believes that an extremely unjust normative system may not qualify as juridical . On the contrary, I think Eugenio Bulygin is right to indicate that a system of law may be admitted as a valid one despite its injustice . Sometimes this analytical distinction is important in order to prevent injustice . Consider the case of the soldier who is ordered to torture, discussed by Bulygin and Atienza23 . According to Bulygin, the soldier would have to deal with the legal obligation to torture as well as the moral obligation not to torture, which are not logically contradictory . He sustains that if we do not recognize the actual conflict of obligations that people may have, by mere semantic or definitional provisions, it is both inadequate and misleading24 . Nevertheless, there is a problem with Bulygin’s concept of justification in this kind of situations . As we have said, Bulygin thinks on justification in purely logical terms, and so he denies that it has an intrinsic normative force, that is to say, an obligatory character for people . Even if he is right at sustaining this, it is questionable that only the morality has that kind of force or power, and that only the eventual overlap between legal and moral premises can give us internal reasons to act and obey the law . As Nino indicated, this would lead to the irrelevance of legal order . Bulygin, the skeptic, suddenly becomes a moralist, even though he declares that he does not know what morality dictates . Instead of simply noting the distinction between law and morality, and leave people the responsibility to select which normative order must govern their conduct and their conscience, Bulygin says that morality has precedence over the the law: unlike moral obligations, legal ones are not conclusive reasons to act . I leave open the question about the criteria for the determination of these obligations . As personally I do not believe in the existence of objective (true) values, therefore I do not think there is an objective criterion to determine what is morally right or due . But if a person believes that his moral duty is to put aside their legal duties, must act accordingly25 .

It is difficult to see how this statement could improve our understanding of methodological positivism . But, I do think that not accepting it, puts anyone in the side 22

23 24 25

Habermas says that human rights and the principle of popular sovereignty are not by coincidence the only ideas, according to which modern law may be justified . In these two ideas are condensed the content of an ethos rooted in religious and metaphysical traditions that are forced to pass through the filter of postraditional foundations, see Jürgen Habermas, Facticidad y validez. Sobre el derecho y el Estado democrático de derecho en términos de teoría del discurso, (Madrid: Trotta, 1998), 164 . Between Facts and Norms. Contributions to a Discourse Theory of Law and Democracy, (Cambridge: Polity Press, 1997) . Manuel Atienza, ‘Eugenio Bulygin y la teoría de la argumentación jurídica’, in Un diálogo con la teoría del derecho de Eugenio Bulygin, (n . 1), 47 . Eugenio Bulygin, ‘Manuel Atienza: análisis conceptual versus teoría de la argumentación jurídica’, in Un diálogo con la teoría del derecho de Eugenio Bulygin, (n . 1), 179 . See Eugenio Bulygin, El positivismo jurídico (n . 4), 107 .

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of ideological positivism or ethical relativism . In the end, each person must determine the definitive reasons that support or not its adhesion to juridical norms, but there is no a priori reason to disobey the law only influenced by our intimate moral beliefs . Specially if as Bulygin has admitted, moral reasons count as such if someone believes they are . How do we know it is true that a rule which lacks of social origin is morally right? In the absence of an intersubjective criterion for deciding when a norm is morally right, due to the fact that moral standards are inherently controversial, if a judge must decide whether a rule is morally right or not, will have to necessarily use what he thinks is right26 .

Considering this, it is possible to argue that democratic juridical norms give us the best set of reasons to judge conclusively each time, even if they are not definite . That is why Nino thought that the democratic process was the best substitute for moral discourse27 . The authentic methodological positivists should stop working on the mere definition of the moral and legal domains, and let individuals decide by themselves about which of them should prevail each time . Notions of conclusive or ultimate reasons contain evaluative criteria, and therefore should not be used lightly by a positivist . ParT Three:

Moral reasons as ulTIMaTe: The ThesIs of The unITy of PraCTICal reason.

In what follows I want to criticize the idea that only moral reasons can operate as ultimate and conclusive reasons in discussing the justification of practical decisions, whether legal, political, religious . Manuel Atienza claims that cancelling the chain of reasoning in favor of a practical decision in a legal rule or at any time prior to the morality, is arbitrary, “the openess of discourse is a requirement of rationality”28 . Carlos Santiago Nino holds a similar position when he argues that legal decisions’ justification,even inside of a progressive constitutionalism, responds to a rationality of “the second best” because it would always be better to justify decisions on the basis of ultimate evaluative principles . As mentioned in the previous section, Eugenio Bulygin also supports the idea that only moral reasons are conclusive, denying this to legal ones . It is difficult to understand how certain reasons and principles can be classified a priori as moral ones, and because of this then be valued as ultimate and definitive . That is to say, how certain norms and judgments of value that eventually appear in a speech, always from the perspective of particular individuals or groups, can claim for themselves the attribute of being conclusive reasons . It is obvious that it is not enough for any party in a practical discourse to pretend that its reason is a moral one, and that reasons from his adversaries are not moral, or that they are merely 26 27 28

Ibid, 112 . Carlos Santiago Nino, Ética y derechos humanos (n . 21), 367–411 . The Ethics of Human Rights, (Oxford: Clarendom Press, 1991) . Manuel Atienza, ‘Lógica y argumentación jurídica’, in Calculemos… Matemática y libertad. Homenaje a Miguel Sánchez-Mazas, ed . Javier Echeverría, Javier de Lorenzo and Lorenzo Peña, (Madrid: Trotta, 1996), 229–238 .

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legal, political or religious reasons . Precisely, because “authentic” or “ultimate” moral reasons are not evident by themselves, all reasons invoked in their name should be able to respond to any question that may come from the most plural and inclusive public sphere, where people may have different moral conceptions . In sum, as any other normative system, morality is a domain in constant dispute, and therefore open, and consequently, it can not be used to conclude and sum up real life discourses aimed at justifying practical decisions, mostly because of epistemic constraints . But to do the opposite, implies to assume the role of a completely objective and impartial observer, a view from nowhere – in Thomas Nagel expression . Manuel Atienza is right when he argues that no participant, lawyer, judge or magistrate, should end a discussion about practical issues, based solely on the legal premises that has taken into account when deciding . In fact, no one should do this, if ending a practical discussion means to shield their results against any reasonable criticism . It is always possible and valuable to continue making questions and asking if the results were the best, given the information and terms available to participants . Ergo, to recognize legal limits for offering a final or definitive justification, and opening a discourse to morality does not solve the underlying problem, simply it is postponed . This is because, as well as Eugenio Bulygin observed “There is no guarantee that the resulting system from including moral standards in law becomes necessarily complete and consistent . Instead of this, it seems very plausible […] that resort to moral standards tends to introduce further subjectivity in law”29 . The fallacy here is to stipulate that moral reasons are always ultimate and conclusive, by definition . In a plural and complex world as ours, only at the risk of confusing and impoverishing practical discussions, is that it can be argued that for each person the morality is always the last redoubt of an authentic practical justification, and that any other reason must be understood as a mere pragmatic compromise, suboptimal, ie a second best . To say that a person is wrong or self-deceived because explicitly understands that the intimate source of his obligation is religious, attending to the assumption that all ultimate reasons are moral, induces to ignore the fact that people can, and usually does, justify their conduct by different kind of reasons and motives . It is a verifiable fact that people’s ultimate reasons are not always moral, sometimes deliberately . To stipulate, as Atienza does, that the real reason behind a practical decision qualifies as moral precisely because it is the ultimate for an individual, is counterintuitive . People can often be aware of acting against his strongest moral judgments, for reasons that nonetheless can be justified . And adding that such inconsistencies in individuals are also a sign of a particular type of morality, “distracted” or “corrupt”, does not make sense in this case, because discourse is about justification of practical decisions . So, discourse should respect individual autonomous reasons and judgments . According to Nino, all decisions that pretend to be morally or practically justified must be explicit, deliberate, reflexive, conscious . But even if a participant reflexively estimates that its reasons are moral, he or she may not be sure they actually are . There is no consensed method to elude the 29

Eugenio Bulygin, El positivismo jurídico, (n . 4), 128 .

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difficulty indicated by Eugenio Bulygin: that it counts as moral reasons whatever one thinks they are . What then is the meaning of the unity of practical reasoning in plural and complex societies? If the moral is not conclusive in order to justify practical decisions, what could it be then? I understand it is possible to continue referring to that unit without reducing the idea of justification to the field of morality . There are many normative domains in which actions count as justified or right under their own standards . This represents a cognitive and practical advantage of modern societies over traditional ones, in which any singular action remains under an evaluation based on moral or religious parameters . Legal order helps to accomplish the difficult task of evaluating the treatment we procure to other people in complex and plural societies, because in these circumstances recurring to particular moral judgments have enormous costs, epistemic and normative . Modern societies, given their complexity, require a high degree of reflexivity of individuals . Immanuel Kant perfectly noticed this by stressing that people could justify norms, not only as individuals but as citizens of a particular state, and even more, as citizens of the world or cosmopolitans30 . None of these domains are normatively coextensive . Perhaps Manuel Atienza’s belief that morality is the “final court of appeal” in justifying actions, it is associated with the central role of the individual and his rights, which since the Enlightenment has influenced the practical reflection . The problem is that this centrality has commonly been defended based on a subjectivist philosophy of conscience, suggesting that each individual is by himself the ultimate source of morality, since there can not be moral without autonomy . However, this assertion is problematic . Javier Muguerza suggested the idea of an “ethics of dissent”, criticizing the place of consensus in the process of justifying norms . But, according with his proposal for a communicative ethics, Habermas responded that there are very difficult cases in which, in relation to the dissident, it is complicated to discern if he has an authentic moral reason or it is just an “idiocy”, in the greek sense of the term . The thesis of the unity of practical reason does not mean unity under the moral reason . After the linguistic turn, and the consequent neglect of the transcendental philosophy of conscience, all reasons must pass through the test of intersubjectivity . They depend on certain criteria that are not strictly moral, but pragmatic, ie constitutive restrictions, such as the rules of games . In Carlos Santiago Nino’s sense of ethical and conceptual constructivism, these rules, seen as explicit and reflective conventions, are the standards or criteria which prevent instrumental and strategic uses of practical discourse, which may be moral, religious , political, etc . Nino doubted about the capacity of individuals to elucidate the content of morality beyond the intersubjective practical discourse . Hence the thesis of democracy as the best substitute for moral discourse . The unity of practical reason is not at the same level of norms that people use acritically as moral and pretend they are definitive and conclusive . Remembering in 30

Immanuel Kant, “En torno al tópico ‘Tal vez eso sea correcto en teoría, pero no sirve para la práctica’”, in Teoría y práctica (Madrid: Tecnos, 1993) . ‘On the Common Saying: ‘This May Be True in Theory, But It Does Not Apply in Practice’ . ’, in Kant: Political Writings (Cambridge: Cambridge University, 2003) .

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some way the concept of John Rawls’s reflective equilibrium, Nino proposes that there exist two levels of justificative reasoning . Only reasons are able to justify decisions on practical matters . This is so because only reasons can motivate reflective and autonomous conscience, which is the final court of appeal of personal judgments . However, autonomy and morality are not coextensive domains . It means that following autonomously a moral norm requires an attitude of internal acceptance from individuals, and yet this does not imply that only by such acceptance, a norm becomes moral . Then we can conclude that it is possible to follow legal norms in an autonomous manner, that is, not only for instrumental or utilitarian motives . Even though the rationale of the legal practice does not requiere such a conduct from people . Law must govern even a people of demons . ParT four: skePTICIsM

or Moral CognITIvIsM.

of MeThodologICal PosITIvIsM.

The

PosITIon

In connection with the work of Eugenio Bulygin, Francisco Laporta has said correctly: “We do not see a necessary conflict between a positivist theory of law and any metaethics, whether or not cognitive”31 . There is no reason to think that being a methodological positivist implies being a skeptic or relativist in moral questions . Strictly speaking, what a positivist thinks on morality is totally irrelevant to explain and understand the legal order . Although some important positivists have been moral skeptics or relativists, I will argue that it is possible for positivism to be an objectivist and a cognitivist, without implying that law must be subjected to moral standards . On this topic Carlos Santiago Nino explained: which brings together the greatest representatives of positivism is not the rejection of moral objectivism but the rejection of the conceptual thesis defended by naturalist lawyers in favor of its opposite: that the existence and content of a legal system can be determined solely on the grounds empirical properties without resorting to evaluative considerations . This is the only issue that clearly divides the representatives of both schools of thought32 .

As I stated before, constructivism offers an approach that avoids the difficulties from thesis that confuse objectivity with moral realism, as if some facts from the world could be classified as inherently moral . John Rawls has criticized these views when he developed the idea of justice as a political and not metaphysical notion33 . The constructivist strategy of Rawls is usefull in assesing the truth or correctness of norms without requiring any correspondence with external facts or comprehensive conceptions about the good . His reflections on these themes set the foundations of political constructivism; while Nino refers to ethical constructivism . But, for both defending objectivity of norms does not require an external instance to justify our daily conventions and social practices about law, politics and morality . 31 32 33

Francisco Laporta, ‘Para Eugenio Bulygin’ (n . 9), 35 . Carlos Santiago Nino, ‘Ética legal: entre la metafísica y la futilidad’, in Derecho, moral y política. I., (n . 11), 112 . See John Rawls, ‘Justice as Fairness: Political not Metaphysical’, in Collected Papers, (n . 7), 388– 414 .

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Some could be methodological positivists and still defend at the same time objectivism and cognitivism in practical philosophy, namely, in relation to norms . It is not relevant here if we refer to moral norms or juridical ones . Both normative systems can be subject of theorethical knowledge and source of authentic obligations, defined as internal reasons for action . Based on the principles and corollaries of the legal system itself, a methodological positivist could object certain rules of existing law because they are incorrect or unjust in juridical terms, and he can do it simultaneously from his moral beliefs . To do this, people requiere reflexivity only, that is, the individual’s ability to assume the attitude of an agent, observer or participant as appropriate . A discussion of whether the law depends on morality is not inherently related to the question of objectivity . Eugenio Bulygin, for example, affirms that according to positivism “there is no such thing as legal norms objectively valid”34 . He believes that norms’objective validity is identical to their truth, and that there are not true norms . This issue has nothing to do with the possible existence of a relation between law and morality . It derives rather from the idea that it is not the same those norms which directly obligate, and the propositions about norms which qualify certain conducts as right or wrong . Only the latter are susceptible of truth and falsity . Then there is no reason to believe that all methodological positivists should be moral relativists and skeptics . What they reject is that legal order has an intrinsic and essential relationship with morality, without which it would not be valid . Even though a methodological positivist could admit that there are multiple overlaps between the contents of the law and morality, in no way this affects his concept of law . Such cross-links would be contingent regardless that throughout history and in most cultures they have been regular and consistent . There may be many moral systems and there is no doubt that in fact all legal orders are based on certain beliefs or moral values, but they are not necessarily (for conceptual reasons) tied to any particular moral system35 . Manuel Atienza has characterized Bulygin’s position as “exclusive positivism” . For him, there is no way to disconnect in his work the thesis of conceptual separation between law and morality, and ethical skepticism . Based on a statement made by Bulygin himself, Atienza claims that without skepticism it is not possible to maintain the separation thesis . Bulygin assumed that if there is an objective morality, then the law should be subject to it, because if there are legal norms that command something incompatible with moral, then they should not be obeyed . Bulygin says: In this sense, if “admitting a degree of objectivity in moral discussions” means accepting that there is moral truth, then the conceptual distinction between law and morality becomes untenable . All the more, the existence of the law (meaning the positive law) becomes problematic . Why dictate legal rules whether we know what we must do?36

Following Caracciolo’s critic37, Eugenio Bulygin reflects on this issue and corrects “contrary to my previous opinion, positivism is in principle compatible with the 34 35 36 37

Eugenio Bulygin, El positivismo jurídico, (n . 4),118 . Ricardo Caracciolo, ‘Entrevista a Eugenio Bulygin’, Doxa, 13 (1993), 510 . Ibid, 511 . Ricardo Caracciolo, ‘Realismo moral vs . positivismo jurídico’, Analisi e diritto, a cura di R. and P. Comanducci Guastini (2000), 37–44 .

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moral objectivism”38 . I think that Bulygin is right to rectify, but he does this at the price of sacrificing completely the law’s pretension of objectivity, ie, he thinks there is no incompatibility with moral objectivism because the legal norms are not themselves objective . That legal norms, whatever their nature or origin (rules or principles, legislated norms, customary or legal precedents), may not be classified as true or objectively valid is a central thesis of legal positivism39 .

Instead, I have tried to defend that objectivity of law is not meaningless for methodological positivism . Assuming that positivism defends conceptual and not metaphysical thesis, it is strange that Bulygin refuses this possibility, especially because he distinguishes epistemological objectivity from the metaphysical . Also, it has been argued that even assuming the existence of an objective morality we would not have to derive the conceptual relationship between law and morality, nor the irrelevance of law as a normative system . It is not desirable to assume that morality is the main normative system and that its norms could defeat any other criteria . Neither it can be said that only its norms are definitive and conclusive, as Nino and Atienza do . The reason for this is that we live in pluralistic and functionally complex societies . Somehow Nino recognizes these issues stating that democracy is the best substitute for moral discourse . Even if the term “substitute” may connote something of a lesser value than the original or true reference, the fact is that democratic rules have become the best way people have to know the right political and legal, and in the end, even what is right in moral terms . This [epistemological] value is transferred in part, as we shall see, to a substitute for moral discourse, as is the democratic decision-making process, which can overcome, within the constraints imposed by those same principles, many moral uncertainties (…) . However, our ultimate answers to practical questions must arise from the progress of moral discussion (and that moral reasons must operate not only “behind” the law but also, so I just said, “through” the law)40 .

According to this, the results of the collective discussion, as long as they are tied to certain procedures, must be considered obligatory in practical matters . It is ironic, however, comming from Nino, that those results count as valid not only in political and juridical terms, but moral, and consequently they become final and conclusive reasons . Rejecting this conclusion implies to distrust the democratic process as the best substitute for moral discourse, leaving individual and subjective conscience to be the last bastion of morality . But this is what Nino was trying to avoid, though I suspect it fails in his effort to link political, moral and law . I think his proposal ends up bringing down the difference between normative orders . The norms that democratic discourse produces at creating law are not moral strictly speaking, though contingently they overlap with moral norms41 . That rea38 39 40 41

Eugenio Bulygin, El positivismo jurídico, (n . 4), 119 . Ibid, 129 . Carlos Santiago Nino, Ética y derechos humanos, (n . 21),124–125 . Habermas says “The legal and moral issues will certainly refer to the same problems: how legitimately order interpersonal relationships and how to coordinate actions each other through justified norms, and how to consensually resolve conflicts on the background of normative principles and rules intersubjectively recognized . But they refer to the same problems differently

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sons from different people coincide in a minimal agreements on the legal order, do not imply that only juridical norms matters when thinking on justice or correctness of interpersonal relationships . But individual’s morality is only relevant to law to the extent it affects other people, and influences the mechanisms of social integration and cooperation . Here morality must be subject of public evaluation standards, like those offered by the democratic procedure . ConCludIng reMarks Manuel Atienza is right when he argues that the argumentative conception of law demands objectivity and rejects arbitrariness . Discussions about practical matters, whether moral or legal, only make sense if we assume as an inherent presupposition that it is possible to arrive to objective and justifiable solutions . Nevertheless, Atienza thinks that legal justification depends on morality, whereas for the methodological positivism is independent and self-referential . However, Atienza’s position does not elude problems attributed to the rules of positive law, because it is possible to keep on asking about the objectivity of morality, above all in our highly pluralistic and complex societies . Atienza states that only moral norms can provide ultimate and conclusive reasons, but he does not question the fact that people have different moral beliefs . This fact undermines his proposal of defining morality as the best place or domain to discuss about practical issues . In the words of Eugenio Bulygin, under this approach it tends to be defined as moral reasons, all the reasons that people think are such a thing . Not much is gained in practice pretending to found the legal validity on morality . Methodological positivism does not have to be relativist, skeptic, or non cognitive in practical issues . As it is the case of Eugenio Bulygin’s work, his choice can be directly justified by a liberal conception of political philosophy, which relies on the principle of division of powers, the rule of law, popular sovereignty and human rights . The standards to judge the objectivity of law, and also morality a posteriori, depends on the democratic procedures, as Nino recognized too . Democracy provides the only source of legitimacy of practical decisions reinforced by state coercion . However, the necessary closing of real debates about such decisions, legislative or judicial, must always be understood as provisional and tentative . Besides errors, it is also possible to find perverse or strategic uses of reasons . The position of methodological positivism prevents against the attempt to assimilate the present and contingent legal reasons with an alleged transcendent moral order, and as such beyond criticism .

in both cases . Spite of the common reference, morality and law are distinguished prima facie by the fact that the post-traditional morality represents only a form of cultural knowledge, while the law is obligatory in the institutional level”; Jürgen Habermas, Facticidad y validez, (n . 22), 171–172 .

gonzaLo viLLa rosas The Two sTraTegIes objeCTIvITy, ePIsTeMIC aCCess,

and

exTreMe PosITIons

„Die wahre Welt – unerreichbar; Jedenfalls unerreicht . Und als unerreicht auch unbekannt . Folglich auch nicht tröstend, erlösend, verpflichtend: wozu könnte uns etwas Unbekanntes verpflichten; . .“ Friedrich Nietzsche . Götzen-Dämmerung oder Wie man mit dem Hammer Philosophiert . Wie die „wahre Welt“ endlich zur Fabel wurde . Geschichte eines Irrtums § 4

InTroduCTIon Objectivity is a very contested concept . Despite its ambiguity, it is commonplace to claim that it demands rationality and meaningfulness of the utterances under assessment .1 Based on its evaluatively thin nature, it is possible to differentiate at least three different objectivity genera .2 Objectivity can be understood in an epistemological, in a semantic, and in an ontological sense . In the realm of practical reason, epistemic objectivity implies in its restricted sense that the state of mind indicated by our practical statements is none other than that of belief or knowledge . In other words, epistemic objectivity means that our reasons for action are embedded in truth-evaluable entities – i . e . propositions – as opposed to desires or volitional states in the broad sense . 3 According to its extended sense, epistemic objectivity is the tendency to converge shown by subjects’ beliefs about a phenomenon that they observe .4 Differently put, a phenomenon is objective in an epistemic sense if the participants in a purview of knowledge agree on the specifics of this phenomenon . Thus, this objectivity genus is a matter of degree .5 In such a way, a weak form of epistemic objectivity may include an agreement on the necessary methods for achieving convergence .6 Insofar as these methods are accepted, these methods are used as grounds for convergence . In other words, they allow to gain epistemic access to the object of 1 2 3 4 5 6

Matti Ilmati Niemi, ‘Objective Legal Resoning – Objectivity Without Objects’, in Objectivity in Law and Legal Reasoning, eds . Jaakko Husa and Mark Van Hoecke (Oxford: Hart Publishing, 2013), 69–84, at 69 . Matthew Kramer, Objectivity and the Rule of Law (Cambridge: Cambridge Universitiy Press, 2007), 2 . George Pavlakos, ‘Correctness and Cognitivism . Remarks on Robert Alexy’s Argument from the Claim to Correctness’, Ratio Juris, 25, 1, 2012, 15–30, at 16 . Matthew Kramer, Objectivity and the Rule of Law (n . 2), 47 . Ibid . 47 . Ibid . 47 .

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knowledge by making the convergence intelligible to participants in the purview of knowledge . Hence, a statement is objective in an epistemic sense, if it can be verified or justified as a valid statement according to the rules provided by the convergence method . A phenomenon is devoid entirely of epistemic objectivity – in an extended sense – if there is not even an agreement on the possible techniques to achieve intersubjective intelligibility needed to resolve issues related to it .7 With regard to practical reason, epistemic objectivity in its extended sense has been termed procedural .8 Conforming to this conception, procedures presuppose a rational convergence, that is to say, a system of rational rules and principles,9 whose application is able to achieve the needed convergence related to practical issues . The decision making rational procedures justify our reasons to act, by reason of their capacity to ensure impartiality and intersubjective intelligibility of practical statements . On the other hand, as has been held by Coleman and Leiter, semantic theories provide explanations about the meaning, that is, about what meaning consists of itself, about its properties, and about the way in which the meaning units can be the bearer of it .10 Thus, a very starting point or prima facie reason in order to acknowledge the semantic objectivity of practical statements lies in realizing that the truth-conditional semantics is the simplest way to represent the meaning of such statements .11 This is due to the fact that our daily semantic use referring to practical issues raises a claim to objectivity .12

7 8 9

10 11

12

Ibid . 48 . 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, at 95 . 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 . 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 248–249 As maintained by Svavarsóttir, “[f]or moral language displays all the features characteristic of the fragments of language for which truth-conditional semantics has been developed . It is indisputable that moral terms have the synthactic behavior of predicate expressions, both in simple sentences containing a singular term, and in sentences obtained by syntactic transformations on such simple sentences . Moreover, the truth predicate can be applied to sentences that contain moral terms, and these sentences enter into apparent truth-functional compounds formed with the help of the standard sentential connectives . Relations of logical entailment, equivalence, and contradiction seem to hold among these sentences, and they can function as sentential complements to verbs such as ‘know’, ‘believe’, and ‘doubt’ . All these features make truth-conditional semantics the most straightforward approach for representing the meaning of the fragment of language in which moral terms figure .” (Sigrún Svavarsóttir, Thinking in Moral Terms (New York: Garland Publishing, Inc ., 2001), 13 . As is well known, the expression comes from Mackie . See John L . Mackie, Ethics: Inventing Right and Wrong (Penguin Books: Harmondsworth, 1977), 30–35 .

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As stated by Marmor, from the semantic point of view, objectivity basically characterizes a given type of speech.13 Due to the fact that semantic objectivity is not committed to ontological objectivity, from the semantic point of view objective statements are those that, independently of their truth or falsehood, refer to states of affairs accessible not only to the subject making the statement, but also to her addressee .14 Since practical statements do not refer to some mental state only accessible to their speaker,15 such statements are endowed with truth-values .16 In an ontological sense,17 objectivity refers to what exists – i . e ., to what the things are independently of what we think of them .18 A fundamental ontological distinction is that between objects, which exist independently of our states of mind, and those objects, whose existence depends on them .19 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 .20 In this way, asserting the independence of mind of certain facts, we can simply say that although the existence of these facts does not depend on the existence of an individual’s states of mind, it depends on the role of the community, to which this individual belongs .21 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 perspective, nor on the states of mind shared by the community, to which she belongs – i . e ., strong objectivity .22 On this basis, it is possible to think two extreme positions about the definition of what exists .23

13 14 15

16 17

18 19 20 21 22 23

Andrei Marmor, Positive Law and Objective Values (Oxford: Oxford University Press, 2001), 114 . Ibid . 114 . By contrary, as is well known, according to the emotivist tenet, practical statements refer to some mental state only accessible to the speaker . In this vein, according to Ayer, “[i]n adding that this action is wrong, I am not making any further statement about it . I am simply envincing my moral disapproval of it . It is as if I had said, ‘you stole that money,’ in a peculiar tone of horror, or written it with the addition of some special exclamation marks . The tone, or the exclamation marks, adds nothing to the literal meaning of the sentence . It merely serves to show that the expression of it is attended by certain feelings in the speaker .” (Alfred Jules Ayer, Language, Truth and Logic, 2nd ed . (London UK: Gollancz, (1936) 1946), 107) . Matthew Kramer, Objectivity and the Rule of Law (n . 2), 69 . According to Moore: “Ontology is the study of what exists […] Prima facie, our legal ontology seems to include: particular entities, such as laws; properties (qualities, sets, classes), such as legal validity; and relations, such as legal obligations from one person to another” . (Michael S . Moore, ‘Legal Reality: A Naturalist Approach to Legal Ontology’, Law and Philosophy, 21, 2002, 619–705, at 620) . George Pavlakos, Our Knowledge of the Law: Objectivity and Practice in Legal Theory (Oxford: Hart Publishing, 2013), 2007, 15 . John R . Searle, The Construction of Social Reality (Free Press: New York, 1997), 9 . Matthew Kramer, Objectivity and the Rule of Law (n . 2), 7–9; Andrei Marmor, Positive Law and Objective Values (n . 13), 200 . Matthew Kramer, Objectivity and the Rule of Law (n . 2), 4 . Ibid . 4 Jules L . Coleman and Brian Leiter, ‘Determinacy, Objectivity, and Authority’ (n . 10), 252–256 . In addition to these extreme positions, Coleman and Leiter have distinguished the minimal and the modest conceptions of objectivity in the practical thought .

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First, from the ontological point of view, an extreme externalist position is defended by external realism .24 According to Button,25 external realism can be characterized by three principles . The ontological commitment of the external realism characterized by Putnam,26 has been termed the independence principle by Button .27 According to the independence principle the world consists of some fixed totality of objects, whose existence is independent of the states of mind – being indifferent whether these states of mind are individual or shared by a group of individuals .28 The independence principle determines not only the concept of truth defended by external realism – i . e . correspondence principle – but also the epistemic attitude that characterizes it – i . e . Cartesian principle .29 According to Putnam, due to the fact that the world consists of some fixed totality of mind-independent objects, “truth involves some sort of correspondence relation between words or thoughts sings and external things and sets of things .”30 Furthermore, if the world is really independent of the states of mind, then “even an ideal theory might be radically false .”31 Second, besides this extreme externalist position, it is possible to think of another one . Consider an extreme internalist position, according to which there is no existence separated from an individual’s mind .32 Let us now deal with these approaches in relation to the practical thought . Relating to the practical thought, two different moral conceptions correspond to the described ontological positions .33 Indeed, a strong moral objectivism is consistent with an extreme externalist position . In accordance with this moral conception, what is right cannot be determined by us as humans, even if we are under ideal epistemic conditions .34 By contrast, a subjectivist moral conception is consistent

24

25 26 27 28 29 30 31 32 33 34

As pointed out by Button, “[e]xternal realism goes by many aliases: metaphysical realism; capital‘R’ Realism; robust realism; desk-thumping realism; genuine realism; the choice of adjective is yours . The purpose of that adjective is to indicate just how serious the position is about its realism . I have chosen to stick with ‘external’ realism, because that adjective is most evocative of the philosophical picture which this position employs . That picture is of reasoning from a ‘God’s Eye point of view’ .” (Tim Button, The Limits of Realism, (Oxford: Oxford University Press, 2013), 7 .) Ibid ., 7–13 . Hilary Putnam, ‘Model Theory and the “Factuality” of Semantics’, in Words and Life, ed . James Conant (Cambridge MA: Harvard University Press, 1994), 351–375, at 352; Hilary Putnam, Reason, Truth and History (Cambridge: Cambridge University Press, 1981), 49 . Tim Button, The Limits of Realism (n . 24), 8 . Hilary Putnam, Reason, Truth and History (n . 26), 49 . Tim Button, The Limits of Realism (n . 24), 9–10 . Hilary Putnam, Reason, Truth and History (n . 26), 49 . Tim Button, The Limits of Realism (n . 24), 10 . The idea that nothing exists except out mental entities is associated with Berkeley’s philosophy . See Hilary Putnam, Mind, Language and Reality (Cambridge: Cambridge University Press, 1975), 34 . An alternative position, which assumes the correspondentist tenet, is the error theory of J . L . Mackie . See John L . Mackie, Ethics: Inventing Right and Wrong (Harmondsworth: Penguin Books, 1977) . Jules L . Coleman and Brian Leiter, ‘Determinacy, Objectivity, and Authority’, in Law and Interpretation . Essays in Legal Philosophy (n . 10), 252 .

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with an extreme internalist position . This moral conception supports that the definition of what is right depends on an individual’s judgement . 35 The criticisms raised against semantic realism based on the interpretation of Wittgenstein’s later writings – especially related to his consideration concerning to the rule-following problem – provide us with the best arguments against the extreme internalist positions . According to these criticisms, to the extent that the meaning of a rule is not exhausted by the rule itself,36 the meaning of a rule is supported by the meaning horizon defined by the speakers’ community . In this vein, the meaning is a social phenomenon, as stated by Williams .37 In this manner, an extreme internalist – or, better said, a Protagorean38 – position under which the definition of what is right depends on the subjective judgement is nonsense, granted that the meaning of a particular rule cannot be determined by a single individual .39 On another note, the extreme externalist positions are based in the main on the assumption that either moral facts and properties are sui generis – that is, they are “real ethical properties and facts that are not among the natural properties and facts of the world”40 – or on the contrary, that they are identical to (or reducible to),41 or are constituted by42 natural, and social facts and properties .43 35 36

37 38 39 40 41 42

43

Plato, Theaetetus, 152a; 166 a-b . According to Wittgenstein, “[t]his was our paradox: no course of action could be determined by a rule, because every course of action can be made out to accord with the rule . The answer was: if everything can be made out to accord with the rule, then it can also be made out to conflict with it . And so there would be neither accord nor conflict here .” (Ludwig Wittgenstein, Philosophical Investigations, § 201) Against this interpretation see G . P . Baker and P . M . S . Hacker, Wittgenstein: Rules, Grammar and Necesstity, Vol . 2 of An Analytical Commentary on the Philosophical Investigations . Essays and Exegesis of §§ 185–242, 2nd ed . (West Sussex UK: Wiley-Blackwell, 2009), 149–255 . Meredith Williams, Wittgenstein, Mind and Meaning: Towards a Social Conception of Mind (New York: Routledge, 2002), 168 . Jules L . Coleman and Brian Leiter, ‘Determinacy, Objectivity, and Authority’, in Law and Interpretation . Essays in Legal Philosophy (n . 10), 252 . See Ludwig Wittgenstein, Philosophical Investigations, § 258 . William J . FitzPatrick, ‘Ethical Non-Naturalism and Normative Properties’, in New Waves in Metaethics, ed . Michael Brady (London UK: Palgrave MacMillan, 2010) 7–35, at 7 . See Peter Railton, ‘Moral Realism’, Philosophical Review, XCV, 2, April, 1986, 163–207; Peter Railton, ‘Facts and Values’, Philosophical Topics, 14, 2, 1986, 5–31; Richard B . Brandt, A Theory of The Good and the Right (New York: Oxford University Press, 1979 . According to Brink, “[e]thical naturalism claims that moral facts are nothing more than familiar facts about the natural, including social, world . I shall gloss this as the claim that moral facts are natural and social scientific (e . g ., social, psychological, economic and biological) facts . To understand the import of this claim, we should distinguish between the ‘is’ of identity and the ‘is’ of constitution . Because ‘are’ can represent ‘is’ of identity or the ‘is’ of constitution, naturalism can be construed as claiming either that moral facts and properties are identical with natural and social scientific facts and properties or that moral facts and properties are constituted by, but not identical with natural and social scientific facts and properties” . (David O . Brink, Moral Realism and the Foundations of Ethics (Cambridge Universitiy Press: Cambridge, 1989), 156–157 .) Ibid . 156 . In this vein, according to G . E . Moore, “[b]y ‘nature’, then, I do mean and have meant that which is the subject matter of the natural science and also of psychology . It may be said to include all that has existed, does exist, or will exist in time .” (George Edward Moore, Principia Ethica (Cambridge Universitiy Press: Cambridge, (1903) 1959), 40) . See i . a . David O . Brink, ‘Legal Theory, Legal Interpretation, and Judicial Review’, Philosophy & Public Affairs, 17,

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As stated by Enoch, a common worry about extreme externalist positions runs as follows: “realists owe us an account of how it is that we can have epistemic access to the normative truths about which they are realists .”44 As is well known, Mackie advanced different arguments directed towards this worry .45 Based on the path enlightened by him,46 that is assuming the ontological condition that moral facts and properties either exist independently of natural kinds47 or supervene somehow upon them,48 it is possible to maintain that our inability to have epistemic access to them – or in other words, our inability to justify our reasons to act based on them – makes their existence – not only from the theoretical, but also from the practical point of view – irrelevant to us .49 Only to the extent that extreme externalist positions can assure our epistemic access to the moral facts and properties posited by themselves, these positions can provide a suitable account of the objectivity of our practical matters . With these caveats, the following pages are aimed at answering a worry which can be expressed in the following terms: Do extreme externalist positions assure our epistemic access to the moral facts and properties posited by themselves? To answer this question, our inquiry will be divided into three parts . The first part shall deal with setting out the more usual strategies used by contemporary extreme externalist positions in order to explain our epistemic access to moral facts and properties, and

44 45 46

47 48 49

105, 1988, 105–148, at 112–124; Michael S . Moore, ‘The Interpretive Turn in Modern Theory: A Turn for the Worse?’, Stanford Law Review, 41, 4, April, 1989), 871–957, at 882 . David Enoch, Taking Morality Seriously. A Defense of Robust Realism (Oxford: Oxford University Press, 2011), 151 . See John L . Mackie, Ethics: Inventing Right and Wrong (n . 12), 38–42 . The more basic argument from queerness (Mark Timmons, Morality without Foundations (Oxford: Oxford University Press, 1999), 49) was viewed by Mackie as having two parts, one ontological, and the other epistemological . (John L . Mackie, Ethics: Inventing Right and Wrong (n . 12), 38) This argument was summarized by Mackie as follows: “If there were objective values, then they would be entities or qualities or relations of a very strange sort, utterly different from anything else in the universe . Correspondingly, if we were aware of them, it would have to be by some special faculty of moral perception or intuition, utterly different from our ordinary ways of knowing everything else .” (Ibid ., 38) According to Mackie, maintaining the ontological assumption that moral facts and properties either exist independently of natural kinds (Ibid ., 38–39) or supervene somehow upon them (Ibid ., 41) carries to hold the implausible existence of a queer faculty which allows us to gain epistemologically access to these singular facts and properties . (Ibid ., 38) Ibid ., 38–39 . Ibid ., 41 . Crispin Wright has highlighted these two demands of realism . On the one hand, the existence of an ontological objectivity, and on the other, the need for our epistemological access to it . Indeed, according to Wright, “[r]ealism is a mixture of modesty and presumption . It modestly allows that humankind confronts an objective world, something almost enterely not of our making, possessing a host of occasional feature which may pass altogether unnoticed by human consciousness and whose innermost nomological secrets may remain forever hidden from us . However, it presumes that we are, by and large in favorable circumstances, capable of acquiring knowledge of the world and of understanding it . Two sorts of ability are thereby credited to us: the ability to form the right concepts for the classification of genuine, objective features of the world, and the ability to come to know, or at least reasonably to believe, true statements about the world whose expression those concepts make possible” . (Crispin Wriht, Realism, Meaning and Truth (Oxford: Blackwell Publishers, 1993, 1–2) .

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their salient shortcomings . The second part will be devoted to non-naturalist theories and its intuitionist approach to epistemic access through the analysis of G . E . Moore and Shafer-Landau’s influential work . Finally, the third part will deal with natural realist theories and their coherentist approach to epistemic access to moral facts and properties by means of the analysis of Moore and Brink’s relevant contributions . fIrsT

ParT:

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As is well known, as stated by Brink, “[f]oundationalism and coherentism represent the historically most influential alternative theories of justification .”50 According to the role attributed to inference with regard to justification, there are two possibilities regarding a given system of beliefs: either it contains no single belief which is noninferentially justified,51 or it contains at least one belief which is non-inferentially justified or self justifying .52 As is known, an inferential version of the former possibility53 must face several deep standard criticisms . First, as stated by BonJour, “[n]othing about any requirement of coherence dictates that a coherent system of beliefs needs receive any sort of input from the world or be in any way causally influenced by the world .”54 Thus, if coherence is purely a matter of an internal relation between the components of a belief system, then it “depends in no way on any sort of relation between the system of beliefs and anything external to that system .”55 In this way, if an inferential version of coherentism were the sole basis for justification of an extreme externalist position, this position would posit a system of beliefs that might be adequately justified, in spite of being utterly out of contact with the moral facts and properties that it purports to describe . Second, if a coherent system of beliefs is the sole basis for justification, then there will be no criterion to pick out one uniquely justified system of beliefs . For, as asserted by BonJour, “on any plausible conception of coherence, there will always 50 51

52 53

54 55

David O . Brink, Moral Realism and the Foundations of Ethics (n . 42), 101 . In the same vein, see Amalia Amaya, The Tapestry of Reason. An Inquiry into the Nature of Coherence and its Role in Legal Argument (Oxford: Hart Publishing, 2015), 363 . As is well known, according to the definition introduced by Davidson, “[w]hat distinguishes a coherence theory is simply the claim that nothing can count as a reason for a belief except another belief ” . (Donald Davidson, ‘A Coherence Theory of Knowledge and Truth’, in Truth and Interpretation: Perspectives on the Philosophy of Donald Davidson, ed . Ernest LePore (Oxford: Blackwell, 1986) 307–319, at 310 .) David O . Brink, Moral Realism and the Foundations of Ethics (n . 42), 101 . As is well know, BonJour has tried to overcome some of the criticisms raised against coherentism . See i . a . Laurence BonJour, The Structure of Empirical Knowledge (Cambridge, MA: Harvard University Press, 1985), esp . 89–93; Laurence BonJour, ‘Can Empirical Knowledge Have a Foundation?’, American Philosophical Quarterly, . 15, 1978, 1–14; Laurence BonJour, ‘The Coherence Theory of Empirical Knowledge’, Philosophical Studies, 30, 1976, 281–312 . BonJour has rejected the coherentist approach and has argued for a version of foundationalism . See Laurence BonJour, ‘Foundationalism and the external world’, Philosophical Perspectives, 13, 1999, 229–249 . Laurence BonJour, The Structure of Empirical Knowledge (n . 53), 108 . Ibid ., 108 .

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be many, probably infinitely many, different and incompatible systems of belief which are equally coherent .”56 In this way, a given theory will defend a certain system of beliefs which was arbitrarily chosen . This “obviously vitiates entirely the concept of epistemic justification by destroying its capacity to discriminate between different empirical beliefs .” 57 Third, as is well known, according to the objection addressed against coherence theories of justification, “coherentist conditions of justification cannot be shown to be truth-conducive unless truth is constructed along non-realist lines .”58 Thus, “[t]here is no reason to suppose that maximizing coherence will lead to moral beliefs that correspond to an inquiry independent reality,”59 then an inferential coherentist strategy would not be in principle compatible with an extreme externalist position . Fourth, to the extent that, as we have seen above, a coherent system of beliefs does not need to receive any sort of external input to the system, then this method allows people who employ it “no objective or external vantage point from which to criticize their existing moral beliefs .”60 Thus, not only inferential coherentism is subjective, but it also is essentially conservative .61 It is subjective, in the sense that it does not demand any communicative structure which ensures convergence . It is conservative, in the sense that this method does not allow for a critical attitude towards one’s own moral views .62 Finally, inferential coherentism applied to theories of ethical justification leads to skepticism due to the fact that it entails an infinite regress . This infinite regress is based on the epistemological requirement that justifying beliefs themselves be justified .63 Indeed, if it is supposed that a system of beliefs S that contains no single belief which is non-inferentially justified, then given a belief B1 which belongs to S, B1 might be justified in virtue of a justified belief B2, if and only if B2 belongs to S and it is a necessary condition of B1, which follows by some rationally acceptable kind of inference from B2 . But B2 can confer justification to B1 just in virtue of a justified belief B3, if and only if B3 belongs to S and it is a necessary condition of B2, which follows by some rationally acceptable kind of inference from B3 . And now, as stated by BonJour, “if the question regarding the justification of B3 is answered in the same way by appeal to another justified belief B1, and so on, we seem to be faced with a potential infinite regress in which each answer to an issue of justification simply raises a new issue of the same kind, thus seemingly never reaching 56 57 58 59 60 61 62 63

Ibid ., 107 . Ibid ., 107 . Amalia Amaya, The Tapestry of Reason . An Inquiry into the Nature of Coherence and its Role in Legal Argument (n . 50), 402 . Ibid ., 370 . David O . Brink, Moral Realism and the Foundations of Ethics (n . 42), 141; Amalia Amaya, The Tapestry of Reason . An Inquiry into the Nature of Coherence and its Role in Legal Argument (n . 50), 371 . David O . Brink, Moral Realism and the Foundations of Ethics (n . 42), 141 . Richard B . Brandt, A Theory of the Good and the Right (n . 41), 21–22; Richard Mervyn Hare, Moral Thinking: Its Levels, Method and Point (Oxford: Oxford University Press, 1981), 76 . David O . Brink, Moral Realism and the Foundations of Ethics (n . 42), 104 . This requirement is termed by Shafer-Landau “doxastic ascent argument .” (Russ Shafer-Landau, Moral Realism: A Defense (Oxford: Clarandon Press, 2005), 252–253) .

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any settled result and leaving it uncertain whether any of the beliefs in question are genuinely justified . All of the justifications up to any point depend on whether or not beliefs further along (or back) in the sequence are justified, and this issue is never fully resolved .”64 BonJour pointed out some possible outcomes of this infinite regress .65 First, we might eventually arrive at an unjustified belief, upon which the justification of the previous belief in the series rests .66 In this case, we have to conclude that the belief which rests upon the unjustified belief is itself unjustified . Notwithstanding, if this belief is unjustified, then, contrary to the original assumption, the whole chain of beliefs must be unjustified .67 Second, as stated by BonJour, “it seems to be at least logically possible that the regress might continue infinitely with new beliefs being appealed to at each stage that are sufficient to justify the preceding belief but are themselves in need of justification from one or more other new beliefs .”68 Nevertheless, this possibility faces the fact that having an infinite chain of beliefs is not a sufficient condition for justification of a certain belief .69 Third, it is possible to think a loop in the chain of beliefs, that happens when a certain belief – by itself or in conjunction with other ones – that has already appeared in the chain is appealed to again .70 The problem raised by this third possibility is obvious . In this case, the general reasoning shown by the chain of beliefs would be circular or question-begging .71 The foundational strategy is an alternative to avoid the infinite regress and its outcomes that characterize the inferential coherentist justification . According to this strategy, beliefs can be justified on at least one non-inferential relation to another belief . Consequently, as asserted by BonJour, “any chain of alleged inferential justifications that genuinely yields justification must terminate with beliefs that are justified in this other, non-inferential way . These non-inferentially justified or basic beliefs are thus the foundation upon which the justification of all other beliefs ultimately rests .”72 According to Brink, “[v]ersions of foundationalism vary according to their views about the nature and content of foundational beliefs and about the appropriate kind of inferences linking foundational and non-foundationally justified beliefs .”73 Intuitionism is a version of moral foundationalism74 that provides an answer to epistemological skepticism, due to its promise to a non-inferential access to the world .75 In this way, intuitionism seems to satisfy extreme realist requirements, since 64 65 66 67 68 69 70 71 72 73 74 75

Laurence Bonjour, ‘Foundationalism and Coherentism’, in Epistemology. Classic Problems and Contemporary Responses, 2nd ed . (Plymouth UK: Rowman & Littlefield Publishes Inc ., 2010), 177–202, at 178–179 . Ibid ., 179 . Ibid ., 179 . Ibid ., 179 . Ibid ., 179 . Ibid ., 179 . Ibid ., 180–181 . Ibid ., 181 . Ibid ., 181 . David O . Brink, Moral Realism and the Foundations of Ethics (n . 42) . 101 . Ibid ., 102 . Ibid ., 106 .

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it “promises to base the justification of our moral beliefs on direct, non-inferential access to objective moral facts .”76 In this way, for intuitionism we have access to moral facts and properties without making any use of any process of reasoning,77 due to the fact that they are self-evident . 78 Thus, intuitionism suggests an analogy between moral beliefs and basic empirical beliefs . Indeed, according to this position “reliable ethical observers ‘perceive’, ‘intuit’ or ‘detect’ moral properties which are attached to particular acts in a way analogous to how we perceive the physical properties of objects .”79 Notwithstanding, as stated by Amaya, “[u]nlike ordinary perceptual judgements, we do not have a causal theory that explains the reliability of particular moral judgements .”80 Hence, “it is difficult to give an account of self-evident beliefs that is able to provide us with a stock of beliefs adequate for supporting the edifice of moral knowledge and that does not involve a story about reliability similar to that [empirical] account .”81 Furthermore, on the one hand, the analogy between moral beliefs and basic empirical beliefs, on which intuitionism is based, is committed to subjects’ implausible special way of perception of moral facts and properties .82 On the other hand, due to the fact that, according to intuitionism, our epistemic access to moral facts and properties rests on their self-evidence, this account does not offer any explanation to conflicting moral beliefs .83 Regarding the foundations of rules of inference, Goodman84 put forward a new method aimed at overcoming not only the pitfalls of foundationalism, but also the objection of vicious circularity raised against inferential coherentism by the explanatory virtues of a consistent contextual justification . Indeed, Goodman ruled out the position of some philosophers who insist that the rules of inference “follow from some self-evident axiom, and others who try to show that the rules are grounded in the very nature of the human mind .”85 Goodman realized the relation of mutual support between deductive inferences and general rules in the sense that the latter are justified by the conformity to the former, and the former are justified by the conformity to the latter .86 Although he recognized that this kind of justification is circular, he maintained that this circularity is a virtuous one, since the justification of the rules lies in a process of mutual correction and revision with regard to accepted inferences . This process brings them into agreement with each other . According to Goodman, “the process of justification is the delicate one of making 76 77 78 79 80 81 82 83 84 85 86

Ibid ., 106 . Richard Price, ‘A Review of the Principle Questions in Morals’ (1758), in The British Moralists 1650–1800, vol . 2, ed . David Daiches Raphael (Oxford: Clarendon Press, 1969), 131–198, at 159 . Russ Shafer-Landau, Moral Realism: A Defense (n . 63), 247 . Amalia Amaya, The Tapestry of Reason . An Inquiry into the Nature of Coherence and its Role in Legal Argument (n . 50), 364 . Ibid ., 364 . Ibid ., 364 . David O . Brink, Moral Realism and the Foundations of Ethics (n . 42), 108 . Ibid ., 108 . Nelson Goodman, Fact Fiction and Forecast, 4th ed . (Cambridge MA: Harvard University Press, (1979) 1983), 63–64 . Nelson Goodman, Fact Fiction and Forecast (n . 85), 63–64 . Ibid ., 64 .

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mutual adjustments between rules and accepted inferences; and in the agreement achieved lies the only justification needed for either .”87 As is well know, Rawls applied a modified version of Goodman’s method to the ethical and political-philosophical domain,88 in order to justify our convictions of social justice .89 As Goodman, Rawls maintained that “[a] conception of justice cannot be deduced from self-evident premises or conditions on principles; instead, its justification is a matter of the mutual support of many considerations, of everything fitting together into one coherent view .”90 As stated by DePaul, Rawls’ method91 recognizes that the process of moral inquiry begins “with a fair number of intuitive moral beliefs already in hand .”92 The method requires the formulation of a moral theory in order to explain these intuitive moral judgements .93 In this way, according to Rawls, the process needs the comparison between the principles making up the moral theory and “our considered convictions of justice,” in order to appreciate if they match in an acceptable way .94 Thus, to the extent that we assume these convictions as “provisional fixed points which we presume any conception of justice must fit,”95 we can recognize whether applying the principles intuitively chosen would lead us to the greatest confidence by virtue of their concordance with our considered convictions of justice; or whether, on the contrary, applying these principles would lead us to discrepancy with those convictions .96 In this latter case, Rawls points out that we have a choice, “[w]e can either modify the account of the initial situation or we can revise our existing judgments, for even the judgments we take provisionally as fixed points are liable to revision .”97 By going back and forth, Rawls assumes that we eventually shall find an upshot that “both expresses reasonable conditions and yields principles which match our considered judgments duly pruned and adjusted .”98 The upshot of the process is termed by Rawls “reflective equilibrium .”99 According to his 87 88 89 90 91

92 93 94 95 96 97 98 99

Ibid ., 64 . Amalia Amaya, The Tapestry of Reason . An Inquiry into the Nature of Coherence and its Role in Legal Argument (n . 50), 365 . John Rawls, A Theory of Justice (Cambridge MA: Harvard University Press, (1971) 1999), 18 . Ibid ., 19 . Taking into account our aim, the description offered in this paper of the method developed by Rawls can merely be schematic . A deeper analysis will certainly reveal a very complex matter . As Mikhail has pointed out “scholarly discussions of reflective equilibrium often proceed as if there were a single, uniform notion going under this name . This assumption is mistaken .” (John Mikhail, ‘Rawls’ Concept of Reflective Equilibrium and its Original Function in ‘A Theory of Justice’’, Georgetown Public Law and Legal Theory Research Paper, No . 11–103, July 2011, 1–30, at 2 .) On Rawls’ different accounts and uses of reflective equilibrium see John Mikhail, ‘Rawls’ Concept of Reflective Equilibrium and its Original Function in ‘A Theory of Justice’ ’, Georgetown Public Law and Legal Theory Research Paper, No . 11–103 July 2011, 1–30 . Michael R . DePaul, ‘Intuitions in Moral Inquiry’, in The Oxford Handbook of Ethical Theory, ed . David Copp (Oxford: Oxford University Press, 2006), 595–623, at 599 . Ibid ., 599 John Rawls, A Theory of Justice (n . 89), 17 . Ibid ., 18 . Ibid ., 17 . Ibid ., 18 . Ibid ., 18 . Ibid ., 18 .

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account, “[i]t is an equilibrium because at last our principles and judgments coincide; and it is reflective since we know to what principles our judgments conform and the premises of their derivation .”100 Given that the equilibrium reached so far offers us just a narrow approach towards one possible upshot of the method, “[i]t is liable to be upset by further examination .”101 Indeed, this upshot attains “a person’s sense of justice more or less as it is although allowing for the smoothing out of certain irregularities .”102 As stated by DePaul, to bring her sense of justice into wide reflective equilibrium,103 “she must consider alternatives to her narrow equilibrium theory and the arguments that might be constructed for and against the alternative theories and her own theory .”104 In this sense, wide reflective equilibrium entails advancing “philosophical arguments intended to bring out the relative strengths and weaknesses of the alternative sets of principles (or competing moral conceptions) . These arguments can be construed as inferences from some set of relevant background theories .”105 Wide equilibrium is, however, a regulative idea .106 Indeed, as Rawls pointed out, it is quite doubtful whether the person can ever reach a wide reflective equilibrium, “[f]or even if the idea of all possible descriptions and of all philosophically relevant arguments is well-defined (which is questionable), we cannot examine each of them . The most we can do is to study the conceptions of justice known to us through the tradition of moral philosophy and any further ones that occur to us, and then to consider these .”107 Although reflective equilibrium offers a non-linear, holistic, account of systemic justification which allows one to overcome the objection of vicious circularity,108 reflective equilibrium must face general objections raised against coherentism . But not only that, reflective equilibrium must also face numerous specific objections .109 As asserted by Amaya, “[o]n the one hand, by ‘reflective equilibrium’ one may refer to the process that leads one to achieve the desired equilibrium point . On the other hand, ‘reflective equilibrium’ may be understood as the product of such a process, namely, a system of beliefs that is in a state of equilibrium .”110 If taken as a process, two kinds of reflective equilibrium’s components come into view . Reflexive equilibrium is composed by a kind of elements and a certain method applied in

100 101 102 103

104 105 106 107 108 109 110

Ibid ., 18 . Ibid ., 18 . Ibid ., 43 . The distinction between narrow and wide reflective equilibria was implicitly presented by Rawls in A Theory of Justice (Ibid ., 49), but in an explicit manner in John Rawls, ‘The Independence of Moral Theory’, Proceedings and Addresses of the American Philosophical Association, XLVII, 1974/1975, 5–22, at . 8 . Michael R . DePaul, ‘Intuitions in Moral Inquiry’ (n . 94), 602 . Norman Daniels, ‘Wide Reflective Equilibrium and Theory Acceptance in Ethics’, The Journal of Philosophy, 76, 5, 1979, 256–282, at 258 . Immanuel Kant, Kritik der reinen Vernunft, John Rawls, A Theory of Justice (n . 89), 43 . David O . Brink, Moral Realism and the Foundations of Ethics (n . 42), 123–124 . Amalia Amaya, The Tapestry of Reason . An Inquiry into the Nature of Coherence and its Role in Legal Argument (n . 50), 369 . Ibid ., 372 .

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order to bring the elements into agreement with each other .111 In this way, the specific objections raised against reflective equilibrium can be distinguished in their turn into two groups . The first group of objections aims at discussing the reliability of the considered convictions, in the extent that they have to be assumed as fixed points in order to begin the reflective process . The second group of objections aims at arguing against reflective equilibrium’s method . To the first group of objections belong two subgroups of criticisms . On the one hand, it has been stated against reflective equilibrium that, due to the fact that considered convictions do not carry any epistemological privilege,112 the method merely systematizes some relatively determinate set of moral judgements .113 On the other hand, the argument has been raised against reflective equilibrium that the considered moral judgements are not a proper foundation for an ethical theory .114 In its turn, Thagard has stated against reflective equilibrium’s method, “[t]he term ‘wide reflective equilibrium’ is used to describe a state in which a thinker has achieved a mutually coherent set of ethical principles, particular moral judgments, and background beliefs . But how people do and should reach reflective equilibrium has remained poorly specified .”115 As a matter of fact, the criticism has been raised against the objective reliability of reflective equilibrium, according to which, due to the fact that considered convictions – which determine the shape and content of the rest of the theory –116 are subjectively defined, they cannot carry any epistemological privilege .117 In this way, there is no sense in which we can speak of a theory being objectively valid .118 In fact, the theory would allow merely to systematize some relatively determinate set of moral judgements .119 For Hare, “[i]ntuitionism is nearly always a form of disguised subjectivism .”120 Thus, due to the intuitionist nature of Rawls’ requirements for the definition of the considered convictions, against which the theory must be tested,121 reflective equilibrium must be conceived as an intuitionist method . According to Hare, Rawls should be considered not only as an intuitionist in the usual sense of the term,122 but also as an subjectivist, “in the narrowest and most old-fashioned sense” .123 Furthermore, according to Singer, “[t]his point is not affected by the question of whether there is one unique reflective equilibrium for all men or not (a question upon which Rawls refuses to speculate) . Even if everyone shared the same 111 Nelson Goodman, Fact Fiction and Forecast (n . 85), 64 . 112 Amalia Amaya, The Tapestry of Reason . An Inquiry into the Nature of Coherence and its Role in Legal Argument (n . 50), 369 . 113 Norman Daniels, ‘Wide Reflective Equilibrium and Theory Acceptance in Ethics’ (n . 105), 265 . 114 Ibid ., 265 . 115 Paul Thagard, Coherence in Thought and Action (Cambridge MA: Massachussetts Institute of Technology, 2000), 126 . 116 Richard Mervyn Hare, ‘Rawl’s Theory of Justice’, in Reading Rawls. Critical Studies on Rawls’ ‘A Theory of Justice’, 81–107, at 83 . 117 Peter Singer, ‘Sidgwick and Reflective Equilibrium’, The Monist, 58, 3, Jul, 1, 1974, 490–517, 494 . 118 Ibid ., 494 . 119 Norman Daniels, ‘Wide Reflective Equilibrium and Theory Acceptance in Ethics’ (n . 105), 265 . 120 Richard Mervyn Hare, ‘Rawl’s Theory of Justice’ (n . 118), 83 . 121 Peter Singer, ‘Sidgwick and Reflective Equilibrium’ (n . 119), 494 . 122 Richard Mervyn Hare, ‘Rawl’s Theory of Justice’ (n . 116), 83 . 123 Ibid ., 83 .

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considered moral judgment, this would only mean that a theory might have intersubjective validity: it would not make for objective validity . People might have judged differently, and then a different moral theory would have been ‘valid’ .”124 Notwithstanding, even leaving aside the question about the nature of considered moral convictions, the objective reliability of reflective equilibrium can be called into question . In fact, according to Brandt’s description of the reflective equilibrium method, the ‘credence level’ assigned to the chosen principles depends upon the ‘initial credence’ level assigned to the considered convictions . However, due to the fact that the consistency shown by considered convictions with the chosen set of principles is a reason for their selection, the reflective equilibrium method offers an account in which considered convictions do not seem foundational enough to development a moral theory . According to Brandt, “the theory claims that a more coherent system of beliefs is better justified than a less coherent one, but there is no reason to think this claim is true unless some of the beliefs are initially credible and not merely initially believed – for some reason other than their coherence .”125 Despite their shortcomings, intuitionism and reflective equilibrium are the more usual strategies used by contemporary extreme externalist positions to explain our epistemic access to moral facts and properties . On the one hand, as stated by Brink, traditional defenders have combined “moral realism with a version of foundationalims to form a metaethical position known as ‘intuitionism’ .”126 On the other hand, as maintained by Mikhail, many commentators have assumed that the concept of reflective equilibrium entails a “close nexus between the methods of ethics and empirical science, and thus may shed light on the nature of moral truth, justification, and objectivity .”127 seCond ParT: non-naTuralIsT TheorIes

and

InTuITIonIsM

As is well known, although G . E . Moore defended not only that moral claims ascribe the property of goodness to states of affairs,128 but also that moral claims are meaningful,129 he posited that these kind of claims refer to non-natural properties, that is to say, properties that are not part of the causal order, 130 but rather they are self-evident .131

124 125 126 127 128 129 130 131

Peter Singer, ‘Sidgwick and Reflective Equilibrium’ (n . 117), 494–495 . Richard B . Brandt, A Theory of the Good and the Right (n . 41), 20 . David O . Brink, Moral Realism and the Foundations of Ethics (n . 42), 100 . John Mikhail, ‘Rawls’ Concept of Reflective Equilibrium and its Original Function in ‘A Theory of Justice’’ (n . 91), 1 . Thomas Hurka, ‘Moore’s Moral Philosophy’, in Stanford Encyclopedia of Philosophy, First published Wednesday January 26, 2005; substantive revision Saturday July 18, 2015 . Ibid . Alexander Miller, An Introduction to Contemporary Metaethics (Cambridge: Blackwell Publishing Ltd ., 2003), 35 . Joseph Margolis, ‘G . E . Moore and Intuitionism’, Ethics, 87, 1, Octuber, 1976, 35–48, at 48 .

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G . E . Moore used the open question argument to challenge the theoretical claim according to which moral properties can be defined in natural terms .132 G . E . Moore applied the method of conceptual analysis133 in order to respond to the most fundamental question in all of ethics, i . e . what “good” is .134 Due to the fact that this point raises a question of identity, the answer must show, according to G . E . Moore, “a relation of equivalence between the analysandum and the analysans .”135 Nevertheless, he showed that any attempt to define moral goodness in naturalistic terms entails an epistemic and semantic non-equivalence of the terms,136 which is expressed as an open question .137 This conclusion led G . E . Moore to conclude that due to the fact that moral claims are meaningful, they must refer to properties not reducible to natural kinds .138 In this way, based on the fact that “good denotes something simple and indefinable”139 – or, what is the same, that it does not have any analytical connection to the objects of our perceptions – G . E . Moore posited, regarding our epistemic access to 132 George Edward Moore, Principia Ethica (n . 43), 5–20 . 133 Alexander Miller, An Introduction to Contemporary Metaethics (n . 130), 12 . According to G . E . Moore, “[b]ut our question What is good? may have still another meaning . We may, in the third place, mean to ask, not what thing or things are good, but how good is to be defined . This is an enquiry which belongs only to Ethics, not to Casuistry; and this is the enquiry which will occupy us first . It is an enquiry to which most special attention should be directed; since this is question, how ‘good’ is to be defined, is the most fundamental question in all Ethics… Such a definition can never be of ultimate importance in any study except lexicography . If I wanted that kind of definition I should have to consider in the first place how people generally used the word good; but my business is not with its proper usage, as established by custom . I should, indeed, be foolish, if I tried to use it for something which it did not usually denote: if, for instance, I were to announce that, whenever I used the word ‘good,’ I must be understood to be thinking of that object which is usually denoted by the word table . I shall, therefore, use the word in the sense in which I think it is ordinarily used; but at the same time I am not anxious to discuss whether I am right in thinking that it is so used . My business is solely with that object or idea, which I hold, rightly or wrongly, that the word is generally used to stand for . What I want to discover is the nature of that object or idea, and about this I am extremely anxious to arrive at an agreement .” (George Edward Moore, Principia Ethica (n . 43), 5–6) . 134 George Edward Moore, Principia Ethica (n . 43), 5 . Indeed, G . E . Moore defended a reductionism about normative concepts, althouth he posited that this primitive was good rather than ought . See Thomas Hurka, ‘Moore’s Moral Philosophy’, (n . 122) 135 Cooper Harold Langford, ‘The notion of analysis in Moore’s philosophy’, in The philosophy of G. E. Moore, ed. Paul Arthur Schilpp, (Northwestern University: Evanston and Chicago, 1942), 319–342, at 323 . 136 Russ Shafer-Landau, Moral Realism: A Defense (n . 63), 57 . 137 George Edward Moore, Principia Ethica (n . 43), 21 . 138 Ibid ., 21 . 139 Ibid ., 21 . In this sense, according to G . E . Moore, “[t]here is, therefore, no intrinsic difficulty in the contention that good denotes a simple and indefinable quality . There are many other instances of such qualities . Consider yellow, for example . We may try to define it, by describing its physical equivalent; we may state what kind of light-vibrations must stimulate the normal eye, in order that we may perceive it . But a moment of reflection is sufficient to show that those light-vibrations are not themselves what we mean by yellow . They are not what we perceive . Indeed we should never have been able to discover their existence, unless we had first been struck by the patent difference of quality between the different colours . The most we can be entitled to say of those vibrations is that they are what corresponds in space to the yellow which we actually perceive .” (George Edward Moore, Principia Ethica (n . 43), 10) .

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moral goodness, that intuitionism is itself a form of moral cognition .140 In fact, according to G . E . Moore’s position, the nature of “good” is what determines our way of epistemic access to it .141 As stated by Margolis, “[i]f good were a natural quality, we should not need a capacity (let us not say a faculty) for intuition though sensory perception is like intuition in another respect . And if good were not a simple quality, then, since it would be analyzable, we should not need a capacity for intuition to account for cognizing good though if it were definable non-naturalistically we should still need to admit intuition . Furthermore, if good were, even if simple, a natural quality, absolutely no consequences regarding conduct would follow from the detection of good .”142 As is known, a main target of the criticisms raised against G . E . Moore’s position has been especially directed not only at its expansive ontology,143 but also at its epistemic tenet . On the one hand, since, according to G . E . Moore, our epistemic access to moral goodness depends on intuition, our perception of moral goodness is a necessary condition for our epistemic access to it . In this way, if, as stated by Blackburn, the supervenience of moral properties upon the natural ones is a conceptual necessity, that is an a priori necessity,144 then “non-naturalism is thereby thrown into doubt .”145 On the other hand, given the characteristics attributed by this account to moral goodness – i . e . “simple and indefinable”146 – although this account gives a plausible explanation about the subjective way to learn the meaning of “moral goodness”147 – that is by means of intuition148 – it offers no criterion of certainty that allows one to assess the subjective infallibility of intuition .149 Moreover, it offers no explanation about the intersubjective access to moral properties – or better said, about their demonstrative justification . That is why, in the case of G . E . Moore’s theory, moral properties remain intersubjectively uncertain150 and ethical disagreements are unexplained .151 But even more importantly, due to the fact that, for G . E . Moore, moral properties are not part of the causal order,152 then moral properties are not objects of our perceptual apparatus . In consequence, in the case of G . E . Moore’s account, the way we access moral properties remains obscure .153 Furthermore, as pointed out 140 141 142 143 144 145 146 147 148 149 150 151 152 153

Joseph Margolis, ‘G . E . Moore and Intuitionism’ (n . 131), 44 . Ibid ., 47 . Ibid ., 47 . Russ Shafer-Landau, Moral Realism: A Defense (n . 63), 73 . Simon Blackburn, ‘Supervenience Revisited’, in Essays on Moral Realism, ed . Geoffrey SayreMcCord (Ithaca NY: Cornell University Press, 1988), 59–75, 60, 67 . Alexander Miller, An Introduction to Contemporary Metaethics (n . 130), 32 . George Edward Moore, Principia Ethica (n . 43), 10 . Peter Frederick Strawson, ‘Ethical Intuitionism’, Philosophy, 24, 88, Januar, 1949, 23–33, 24 . Ibid . 24 . Ibid . 27 . Ibid ., 26 . Ibid . 27 . Alexander Miller, An Introduction to Contemporary Metaethics (n . 130), 35 . This obscurity has led some to assume that intuitionists – especially G . E . Moore – posit the existence of a special faculty of moral perception . In this way, according to Mackie, “[i]f there were objective values, then they would be entities or qualities or relations of a very strange sort, utterly different from anything else in the universe . Correspondingly, if we were aware of them,

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by Brink, Moore’s “intuitionism must be embarrassed by the existence of conflicting moral beliefs .”154 As G . E . Moore,155 Shafer-Landau has pointed out that the aim of non-naturalism is to characterize ethics as an autonomous discipline, what is sometimes meant is that “the concepts and terms employed therein are not synonymous with those employed in other disciplines . A stronger conception has it that the properties that figure in its laws or principles are not identical to those that figure centrally in the theories of any other discipline . The ethical non-naturalist insists on the autonomy of ethics in this stronger sense, and in this regard is no worse off than theorists in any discipline whose properties are not reducible to those of physics .”156 Nevertheless, Shafer-Landau’s programme rests on certain non-reductionist theories in the philosophy of mind,157 according to which “mental properties are not identical to physical ones; mental facts are not physical facts; but mental properties are realized by instantiations of physical properties . At least in worlds relevantly close to ours, there would be no mental life without the physical stuff that constitutes it .”158 In consequence, as stated by Shafer-Landau, his theory not only “captures our convictions about the non-identity of mental and physical properties”,159 but also “it is not ontologically extravagant” .160 These two upshots are based on the assumption of “a supervenience relation that obtains between the mental and the physical .”161 Indeed, Shafer-Landau asserts that he prefers “to cast a non-naturalim’s view as the one that insists on the non-identity of moral and descriptive properties, while allowing the moral to be entirely and exhaustively constituted by the descriptive .”162 Notwithstanding, despite its aim at overcoming the well known pitfalls of the classic non-naturalism, Shafer-Landau remains loyal to the epistemic tenet raised by the classical non-naturalism .

154 155 156 157 158 159 160 161

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it would have to be by some special faculty of moral perception or intuition, utterly different from our ordinary ways of knowing everything else . These points were recognized by Moore when he spoke of non-natural qualities, and by the intuitionists in their talk about a ‘faculty of moral intuition .’” (John L . Mackie, Ethics: Inventing Right and Wrong (n . 12), 38) . David O . Brink, Moral Realism and the Foundations of Ethics (n . 42) 108 . George Edward Moore, Principia Ethica (n . 43), 5–6 . Russ Shafer-Landau, Moral Realism: A Defense (n . 63), 72 . Ibid ., 72 . Ibid ., 73 . Ibid ., 73 . Ibid ., 73 . According to Shafer-Landau, “[i]f the moral fails to supervene on the non-moral, then the non-moral world does not control the moral world . But if that world does not control the moral world, then the moral world is out of control .” (Ibid ., 78) Ibid ., 73 . According to Shafer-Landau, “a moral fact supervenes on a particular concatenation of descriptive facts just because these facts realize the moral property in question . Moral facts necessarily covary with descriptive ones because moral properties are always realized exclusively by descriptive ones . Just as facts about a pencil’s qualities are fixed by facts about its material constitution, or facts about subjective feelings by neurophysiological (and perhaps intentional) ones, moral facts are fixed and constituted by their descriptive constituents .” (Ibid ., 77 .) Ibid ., 76 .

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Indeed, Shafer-Landau defends ethical intuitionism as the view, according to which “there are non-inferentially justified moral beliefs .”163 According to him, “[a] belief is non-inferentially justified provided that its justification does not depend on a believer’s ability to infer it from another belief .”164 That means that there are moral beliefs that are self-evident . For Shafer-Landau, “beliefs are self-evident if they have as their content self-evident propositions . A proposition p is . self-evident = df . p is such that adequately understanding and attentively considering just p is sufficient to justify believing that p .”165 In other words, “a proposition is self-evident provided that those who really understand its content, and believe it on that basis, are thereby justified in believing it .”166 In this sense, self-evident beliefs are epistemically overdetermined .167 Shafer-Landau claims that the most important classical rationale in order to accept self-evidence as a way of justification lies in the possibility of avoiding “infinite regresses and circular argumentation by citing a belief that is self-evident .”168 Notwithstanding, Shafer-Landau accepts the epistemic restrictions that self-evidence entails . Indeed, Shafer-Landau warns of the impossibility of proving or demonstrating the existence of self-evident moral propositions .169 Based on this epistemic restriction, he maintains that what can be offered in this case is only an indirect demonstration which rests on the response to the criticisms raised against the idea of moral self-evident beliefs and propositions . 170 Shafer-Landau introduces self-evidence as a way of justification and terms it agent justification . This kind of justification, through which is asked whether a given believer is justified in holding a belief, must be differentiated from the demonstrative justification, by means of which is asked whether a given believer is able to show that her belief is plausible .171 It has been raised against the distinction between agent and demonstrative justification that this distinction is superfluous, due to the fact that “one justifies one’s belief just if one is able to adequately defend its status as justified .”172 Shafer-Landau considers that this criticism is based on a very strong notion of demonstrative justification . Indeed, according to him, “[o]ne needn’t convince everyone (or in some cases, anyone) in order to be justified in one’s beliefs .”173 Coherentists have insisted that self-evidence is never sufficient to confer epistemic justification, due to the fact that whether “a belief is justified depends on the other beliefs one holds .”174 Shafer-Landau has claimed that the foundations of this 163 Russ Shafer-Landau, ‘Defending Ethical Intuitionism’, in Moral Psychology. The Cognitive Science of Morality: Intuition and Diversity, vol . 2 (Cambridge MA: Massachussetts Institute of Technology, 2000), 83–96, at 83 . 164 Ibid . 83 . 165 Russ Shafer-Landau, Moral Realism: A Defense (n . 63), 247 . 166 Ibid ., 255 . 167 Ibid ., 248 . 168 Ibid ., 250 . 169 Ibid ., 247 . 170 Ibid ., 247 . 171 Ibid ., 251 . 172 Ibid ., 251 . 173 Ibid ., 252 . 174 Ibid ., 253 .

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criticism fail . Indeed, such objection rests on the thought, according to which “a proposition is self-evident only if every competent speaker of a language will affirm it on understanding its terms .”175 Nevertheless, Shafer-Landau has maintained that, on the one hand, “this criterion is too strong, and almost certainly unsatisfiable, given the existence of agents with seriously immoral sensibilities .”176 On the other hand, he has claimed that “propositions may be self-evident for some agents without being self-evident for all .”177 Shafer-Landau recognizes that “[o]ne isn’t an infallible indicator of one’s own epistemic reasons . In this sense, propositions may be self-evident even if some agents fail to believe them, or fail to find them obvious or immediately compelling . Self-evidence is a normative notion – self-evident propositions are those that are sufficient to justify belief .”178 Moreover, it has been raised against self-evident beliefs that “if one is unable to articulate the grounds that support the content of one’s belief, then one cannot be justified in believing it .”179 For Shafer-Landau, this criticism rests on a failure either by conflating “belief and demonstrative justification”180 or by assuming that “an agent’s justification for her beliefs is conditioned on her ability to reveal their plausibility .”181 Indeed, Shafer-Landau asserts, “believing simple mathematical propositions or analytic truths may be justified even if one can say nothing on their behalf .”182 In this sense, “[o]ne does not undermine the claims that there are self-evident beliefs by citing the intractable disagreement that inevitably arises about which candidates are genuinely self-evident .”183 Indeed, based on Audi, Shafer-Landau maintains that “a belief may be self-evident even if one does not believe that it is, or one believes that it isn’t . One may fail to believe that a given belief is self-evident, either because one lacks the concept of self-justification, or because one has failed to attend to the issue and so has not formed any belief on the matter, or because one has thought about the matter but with insufficient care .” 184 Thus, one might not say that the existence of intractable disagreement about moral principles is sufficient to undermine our justification for believing in them .185 On another note, against the doxastic ascent argument posited by coherentist theories of justification, according to which “one’s belief p can be justified only if one has a higher-order belief to the effect that (i) p is a token of a certain type of belief, and (ii) beliefs of that type are justified,”186 Shafer-Landau maintains that first, “many beliefs (e . g . simple perceptual beliefs, those of young children) are justified even in the absence of any accompanying higher-order beliefs about their proper

175 176 177 178 179 180 181 182 183 184 185 186

Ibid ., 254 . Ibid ., 257 . Ibid ., 257 . Ibid ., 258 . Ibid ., 251 . Ibid ., 251 . Ibid ., 251 . Ibid ., 251 . Ibid ., 260 . Ibid . . 260 . Ibid ., 262 . Ibid ., 252 . See n . 64 .

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classification or the class’s justificatory status,”187 and second, “the argument threatens to create an infinite doxastic regress .”188 This regress can be avoided by positing self-evident beliefs . According to the historical contingency argument, “the best explanation for our holding the moral views we do is that we acquire them through complicated socialization and acculturation processes . But if we hold our moral views primarily in virtue of some historical accident, then we lack sufficiently good reason to suppose that our own moral views, even those we take to be self-evident, are true .” 189 In this sense, “[g]iven the fortuitous origins of our beliefs, it would be nearly miraculous were they to reliably line up with the dictates of any kind of realistic moral truth .”190 Shafer-Landau has maintained that this argument does not entail any criticism against self-evident beliefs and propositions . Indeed, according to him, “the fact that one’s views would probably have been different in other context does not defeat whatever justifications one’s beliefs presently enjoy .”191 As we have seen above, various criticisms have been raised against the intuitionist strategy for ensuring our access to the moral facts and properties posited by non-naturalist theories . It has been raised against non-naturalist theories that unlike, ordinary perceptual judgements, we do not have any causal theory that explains our access to properties that are not part of the causal order . Regarding this issue, Shafer-Landau has developed a refined argument aimed at reconciling the ontological tenet of non-naturalism with the position according to which moral properties are constituted by natural properties .192 Notwithstanding, even assuming that Shafer-Landau’s solution is correct – that is, that he can explain the supervenience relation based on ontological naturalist tenets – and in consequence, that his account can explain the subjective way of access to non-natural facts and properties, his theory does not offer any criterion of certainty that allows one to assess the subjective access to these facts and properties . Indeed, although Shafer-Landau assumes the independence principle in order to explain the difference between the mental state of believing and the non-natural objects towards which this mental state is directed,193 since his account does not offer any description of convergence, the definition of these two components depends upon the decision of the subject who experiences the self-evidence . But not only that, due to Shafer-Landau’s account – like Moore’s theory – does not offer any explanation about the intersubjective access to moral properties – i . e . convergence – moral properties remain intersubjectively uncertain194 and ethical disagreements are unexplained .195 Based on these thoughts, we can conclude – in the manner of Hare –196 that when intuitionism is defended 187 188 189 190 191 192 193 194 195 196

Ibid ., 253 . Ibid ., 253 . Ibid ., 258 . Ibid ., 258 . Ibid ., 260 . Ibid ., 80–118 . Ibid ., 260 . Peter Frederick Strawson, ‘Ethical Intuitionism’ (n . 147), 26 . Ibid ., 27 . Richard Mervyn Hare, ‘Rawl’s Theory of Justice’, in Reading Rawls. Critical Studies on Rawls’ ‘A Theory of Justice’ (n . 116), 83 .

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by non-naturalist positions, intuitionism brings these positions nearer to an extreme internalist position, i . e . subjectivism . ThIrd ParT: naTuralIsT TheorIes

and

CoherenTIsM

As is well known, Moore has defended an extreme externalist position – i . e . metaphysical realism – based on which he has posited an empirical reductionism of moral facts . Moore has characterized his externalist position “primarily by its distinctive ontological commitments and only secondarily by its truth-related, semantic and epistemic commitments .”197 According to Moore, the realist ontological commitments refer to the mind-independent feature of the existing entities of reality .198 Although Moore advocates the bivalence thesis, according to which any possible proposition within some discourse is either true or false,199 the semantic commitments of his account allow him to assert that the correspondence principle is not a necessary condition for the definition of a natural realist moral view .200 Indeed, due to the fact that for Moore a statement can be true, although it cannot be warrantedly assertible – even under ideal epistemic conditions – according to his position, what is a necessary condition for the definition of a natural realist moral view is a negative justificatory thesis of truth, according to which justification is neither a necessary nor a sufficient condition for truth .201

197 Michael Moore, ‘Moral Reality Revisited’, in Michigan Law Review, 90, 1992, 2424–2533, at 2433 . 198 In this way, according to Moore, “[t]he ontological theses of the realist are two: first, an existential thesis that asserts the existence of the entities in question, be they numbers, legal rights, mental states, or moral qualities; second, an independence thesis that asserts that mindindependence of the entities in question . This second thesis asserts that, for example, electrons would exist even if we had no thoughts about them and, indeed, if we did not exist .” (Ibid ., 2433) . 199 Ibid ., 2437 . 200 Ibid ., 2437 . 201 According to Moore, “[t]he realist is committed at a minimmum to a negative thesis about truth: the realist cannot think that the phrase is true only means ‘warrantedly assertable in light of other beliefs, available evidence, or social conventions .’ Realism requires, for any given assertion about the world, the possibility both that the assertion is warrantedly assertable (justifiably bilieved) and that it is false nonetheless . So at a minimum a realist must divorce her theory of truth from her theories of warranted belief or assertion . Moreover, the realist who interests me divorces her theory of truth even from idealized justification, not merely from the actual justification historically situated individuals may possess . Such a realist asserts that the phrase is true does not mean ‘that a fully rational agent with complete information would believe or would be warranted in asserting .’ My realist reads Putnam’s ‘internal’ or ‘pragmatic’ realist out of the club because she thinks it is possible that the ideally rational human knower can get it wrong . Put another way: it is possible that there are truths not graspable by the human mind, even at the limit of its perfection .” (Ibid ., 2437) .

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Even though the semantic commitments of Moore’s account of natural moral realism advocate the causal theory of reference,202 they do not involve a contradiction of the Cartesian principle, due to the fact that what defines Moore’s realist theory of meaning is not an ideal truth conditional theory of meaning,203 but rather our linguistic intentions204 which are directed towards a mind- and convention-independent reality .205 Indeed, Moore’s account of natural moral realism maintains that “the meaning of a word is not given ‘what’s in the head’ of some linguistic community that uses the word (and certainly not by what’s in the head of some individual speaker within that community) . These sources are too subjective and conventional for the realist . Rather, the meaning of a word is a function of the nature of the thing to which the word refers . The referent of the word, in other words, determines its meaning, and the referent exists in the world and not in the mind .”206

202 As stated by Stoutland, the causal theory of reference has been the most notably way through which metaphysical realists have responded to the argument of ontological relativity advocated by Quine – i . e . Quine´s doctrine of the indeterminacy of reference, also called “Ontological Relativity” – which also held that there can be no such thing as a reference relation and no such thing as a term referring to one set of objects rather than any number of others . Quine held not only that reference depends on the reference scheme of a language but that there are unlimited ways of applying a reference scheme – of `mapping´ it unto the world – no one of which is any more correct (or incorrect) than another . Any number of further shifts (permutations) can be devised (in accordance with what Quine called “proxy functions”), all of which leave both the truth values and truth conditions of the statements unchanged . This kind of shifting of the reference of terms is possible for any statement, provided we also shift the terms in other statements in a systematic way . Reference, that is to say, is indeterminate: there is no fact of the matter as to which object(s) any term refers . According to the causal theory of reference, “reference is determined, not by the use we make of the expressions in a language, even when that use meets every relevant constraint, but by causal relations between users of the terms and what those terms refer to (so that reference relation is a kind of causal relation), which amounts to the view that reference determines use rather than the other way around .” (Frederick Stoutland, ‘Putnam on Truth’, in The Practice of Language, e . M Gustafsson and L . Hertzberg (Dordrecht: Kluwer Academic Publishers, 2002), 147–176, at 159) . 203 According to Moore, “[p]eople in the past were wrong about when someone was dead . They and we meant the same thing by our usages of the word ‘death’ namely, to name the natural kind of event that death (really) is . They got it wrong and we, by our present knowledge, are closer to the truth .” (Michael Moore, ‘A Natural Law Theory of Interpretation’, in Southern California Law Review, 58, 1985, 279–398, 297) . 204 Ibid . 294 . 205 In this vein, according to Moore, “[u]nlike the semantic notion of analytical necessity, a metaphysically necessary truth is a truth only dependent on how the world is and not upon the convention of human language use . ‘Water is H2O’ is (as far as we know) a metaphysically necessary truth because something wouldn’t be water if it were not H2O . Put another way, one atom of oxygen bound to two of hydrogen gives the essential nature of water . Such essence is not fixed by what English speakers mean when they say or think to themselves, ‘water’ . Such an essence is to be found in the nature of the kind of thing that water is . We have theories about such essential natures, but theories can be wrong; definitions (analytical truths), which purport to fix such essences by conventional stipulation, could not be wrong .” (Michael Moore, ‘Law as a Functional Kind’, in Natural Law Theory: Contemporary Essays, ed . George Robert . P (Oxford: Clarendon Press, 1992, 188–242, at 200) . 206 Michael Moore, ‘Moral Reality Revisited’ (n . 198), 2439 .

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In accordance with the causal theory of reference, Moore asserts that according to the realist’s semantics “only the conditions that must obtain for a sentence to be true provide that sentence’s meaning .”207 That means that “neither conventions of appropriate utterance nor even the limitations of the human mind affect meaning on a truth conditions theory . Thus, sentences, being the bearers of such (mind- and convention-independent) meaning, can correspond to a mind- and convention-independent reality .”208 Correspondingly, Moore advocates the distinction between conventionalist and realist theories of meaning . According to this distinction, conventionalist theories regard “the relationships between symbols and things to be essentially arbitrary, a ‘mere matter of convention’ .”209 Thus, these theories maintain that “meaning will ‘run out’ in our attempt to describe the world .”210 That amounts to the conventional reductive thesis, according to which no other condition than conventions determine the meaning .211 In this way, only a conventional change can change the meaning of a word .212 By contrast, according to Moore, a realist theory of meaning asserts that the meaning is not fixed by convention, but instead by “a natural kind of event that occurs in the world .”213 Which means that we will guide our usage not by some set of conventions we have agreed upon, but instead we will seek to determine the meaning applying the best scientific theory available in order to find what really is .214 Consequently, Moore maintains that “on a realist theory of meaning fact will not outrun diction .”215 Putting it differently, Moore asserts that a realist believes that the meaning is not only what is captured by our current conventions .216 That means that a realist will assert that there are relevant facts which fix the meaning . These 207 208 209 210 211

212

213 214 215 216

Ibid ., 2438 . Ibid ., 2438 . Michael Moore, ‘A Natural Law Theory of Interpretation’ (n . 203), 292 . Ibid ., 292 . In this way, according to Moore’s example, “we have (on a conventionalist theory of meaning) a set of conventions that give the word ‘death’ a meaning . Suppose, for example, we took the meaning of ‘death’ to be, ‘cessation of heart function, cessation of breathing, and loss of consciousness .’ We then come across a person who has lost consciousness and who has stopped breathing (until put in an artificial lung), but whose heart is still beating . Our conventions, in such a case, may yield no answer to the question of whether this person is properly described as ‘death .’ New facts outrun the indicators derived from past usage precisely because past usage dealt with past situations that recurred often enough to develop the conventions that have developed about ‘death .’” (Ibid ., 212) . According to Moore, “[w]ith regard to ‘death,’ imagine that we come across a ‘drowned’ person whose heart has ceased beating, whose breathing has stopped, and who has lost consciousness; we also discover, however, that this individual is revivable if certain procedures are undertaken quickly enough upon removal from cold water . On the conventionalist theory of meaning that makes cessation of heart and lung function and loss of consciousness sufficient to be called dead, we should say that such a person is dead . If we decide not to say this in various contexts it will only be because we have decided to change the meaning of the word ‘death .’ After the discovery of such revivable individuals, and after our decision not to call them ‘death,’ we will have stipulated to a new meaning of ‘death’ having to do with revivability .” (Ibid ., 293–294) Ibid ., 294 . Ibid ., 294 . Ibid ., 294 . Ibid ., 294 .

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facts must be found by applying the best scientific theory available . Our present theories may be inadequate to resolve the issue, but a realist will assert that there are relevant facts about the meaning “even if we presently lack the means to find them .”217 In consequence, “a realist theory of meaning will not view a change in our conventions about when to apply a word as a change in its meaning,”218 since our linguistic intentions are directed towards the reference to the naturally occurring kind of thing, “whatever the true nature of the event turned out to be .”219 According to the Moore’s realist theory of meaning, our linguistic intentions directed towards a mind- and convention-independent reality are constant, “even if our scientific theories change considerably .”220 This direction of our linguistic intentions allows us to explain our theoretical disagreements .221 Indeed, if the conventional reductive thesis were true, theoretical disagreements would be unsolvable . For, if not other condition than conventions determine the meaning, there would not be any criterion based on which it would be claimed that a certain usage or theory is better than another one, and consequently, every theoretical disagreement would be reducible to a simple comparison of arbitrary conventions in the use of words .222 With these caveats, Moore has claimed that natural moral realism is a species of metaphysical realism over the domain of moral discourse .223 However, the independence of a moral reality defended by Moore’s conception does not refer to all mental states of all persons,224 but rather to individual and collective observers’ states of mind .225 In this way, Moore advocates not only against the extreme internalist position – i . e . subjectivism,226 but also against the conventionalist conception, according to which the states of mind shared by a group determine what is right for everyone .227 Based on the causal theory of reference, Moore maintains that what justifies having moral words in our language is their ontological causal bond with particular qualities belonging to reality, such as courageousness, culpability, and the like .228

217 218 219 220 221 222 223 224 225

Ibid ., 294 . Ibid ., 294 . Ibid ., 294 . Ibid ., 294 . See Ronald Dworkin, Law´s Empire (Cambridge MA: Harvard University Press, 1986), 41–42 . Michael Moore, ‘A Natural Law Theory of Interpretation’ (n . 203), 298 . Michael Moore, ‘Moral Reality Revisited’ (n . 197), 2443 . Ibid ., 2443 . In this way, according to Moore, “[f]or example, my own natural law view regards legal rights and duties as depending in part on the existence of certain institutional conventions . Such conventions are part of what is observed . Yet legal rights, legal duties, and so forth, are convention-independent for the natural lawyer or ‘legal realist’ (i . e ., metaphysical realist about law) in the sense that the conventions of the observer(s) are not relevant to the existence of legal rights . Legal rights could exist in some society even if the observer raising the question had no conventions constituting a concept of law and, indeed, even if he did not exist .” (Ibid . 2443–2444) . 226 Ibid ., 2444 . 227 Ibid ., 2445 . 228 Ibid ., 2443 .

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Thus, moral facts belong to the existing mind-independent reality,229 that means that there is a moral reality independent of what we think about it .230 According to Moore, this independence principle regarding practical thought involves “the existence of some intimate relation between non-moral qualities (such as an action’s being an intentional infliction of pain on another) and moral qualities (such as the action’s being wrong) .”231 Along these lines, “moral qualities have real world effects, and those effects provide us evidence for the existence of those moral qualities .”232 These real world effects allow us epistemic access to the moral reality . For, moral qualities cause moral beliefs through emotions caused in their turn by their real world effects .233 Notwithstanding, according to Moore, our ontological beliefs about what exists are not foundational in the sense that some direct experience of it is all the proof we need .234 Indeed, Moore claims that “we justify [the existence] like any other of our beliefs, by appeal to everything else we believe .”235 It is in fact an inference we make in light of all other beliefs which allows us to infer that the best explanation for why we had the experience we had was that there was an existing object .236 In consequence, “[i]f such explanation is truly the best, then we are justified in believing that there are such things .”237 In this vein, Moore claims that “this view of justification is rightly labeled both non-foundationalist and empiricist . It is non-foundationalist in that no belief is to be taken as a veridical starting point from which other beliefs are to be inferred . There are no self-evident first principles, analytic truths, phenomenal reports, or veridical read-offs of reality as postulated by rationalist and traditionally empiricist epistemologies . The view is nonetheless empiricist in a non-traditional sense, because it holds our ontological beliefs hostage to there being some connection, no matter how indirect, between what we think to exist and what we experience .”238

229 Ibid ., 2433 . 230 Verónica Rodríguez-Blanco, Meta-Ethics, Moral Objectivity and Law (Padeborn: Mentis, 2004), 166 . 231 Michael Moore, ‘Moral Reality Revisited’ (n . 197), 2441 . 232 Ibid ., 2447 . 233 Ibid ., 2474 . According to Moore, “[a] sharpening of what an explanationist demands in order to justify an ontological belief more directly bears on our use of explanationism to defend moral realism . We have so far said that, to justify our belief that x exist, x must have a necessary place in our best explanation of something else, y, that we are more certain exists; and, further, that the items best explained by x must include our experience (observational beliefs) that x exists . This latter, empiricist criterion demands that the best explanation of why we believe (or experience, or observe) that x exists include the fact that x does exist . Crucial to our latter discussion will be two different readings of this empiricist requirement for justified ontological belief . The first, causal reading requires that x cause our apparent experiences of x . Only then is x a part of the best explanation of our experiences, y . The second, explanatory reading requires that the fact that x exists explains the fact that we have certain apparent experiences of x .” (Ibid ., 2498) . 234 Ibid ., 2493 . 235 Ibid ., 2493 . 236 Ibid ., 2493 . 237 Ibid ., 2493 . 238 Ibid ., 2494 .

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Notwithstanding, Bix has argued that Moore’s epistemic position is not compatible with his ontological theory .239 Indeed, according to Bix, “[o]nce one rejects the claim that we have some direct cognition of the ‘real’ the advantage of metaphysical realism – in explaining how we actually behave or in prescribing how we should approach problems of meaning – seems to disappear . If what we are to seek are beliefs that fit in well with our other beliefs and observations, and our sole criterion for accepting a belief is its fit with our other beliefs and observations, then the Platonist notions about truth and meaning are empty concepts that do not work .”240 Bix’s criticism raised against the Moorean coherentist account can be interpreted as a version of the isolation objection .241 According to this objection, “non-foundationalists never ‘hook onto’ reality, because each belief is justified only by its fit with other beliefs .”242 In this way, although Moore agrees that “Bix is certainly right that without direct peeks at that reality the non-foundationist realist is limited to his own theory-laden beliefs about it,” Bix’s objection ignores the content of our beliefs that constitute a coherent system .243 In fact, according to Moore, “[t]he beliefs that we justify on a coherentist basis are not about creatures of fiction or fairy tale . We believe things like: feet hitting stones cause us to experience pain; the fact that we have the word pain is caused by human beings’ in fact having such a mental sensation and baptizing that experience with this symbol; and visual perception accurately portrays the world in certain standard lighting conditions .”244 In this vein, the causal theory of reference is the cornerstone which allows Moore to respond to standard criticisms raised against coherentism . Notwithstanding, his account does not demand any communicative structure which allows one to assess not only the coherent structure on which rests his epistemological account, but also the intersubjective access to the independent moral reality posited by his ontological programme . Thus, not only from the subjective, but also from the intersubjective perspective, the epistemic access to the moral reality posited by Moore’s theory remains uncertain . On a different note, although Brink posits like Moore that “moral realism claims that there are moral facts and true moral propositions whose existence and nature are independent of our beliefs about what is right and wrong”,245 Brink also claims an exhaustive thesis about the constitution of moral facts, according to which “moral facts and properties are constituted by, but not identical with, natural and social scientific facts and properties .”246 Indeed, Brink rejects the identity thesis,247 according to which “naturalism implies that moral properties and natural (i . e ., natural and social scientific) properties 239 240 241 242 243 244 245

Verónica Rodríguez-Blanco, Meta-Ethics, Moral Objectivity and Law (n . 230), 183 . Brian Bix, Language, Law, and Legal Determinacy (Oxford: Clarendon Press, 1996), 150 . On this criticism raised against coherentism see the first part . Michael Moore, ‘Moral Reality Revisited’ (n . 197), 2495 . Ibid ., 2496 . Ibid ., 2496 . David O . Brink, ‘Externalist Moral Realism’, The Southern Journal of Philosophy, XXIV, 5, Supplement, 1986, 24 . 246 David O . Brink, Moral Realism and the Foundations of Ethics (n . 42), 156 . See also David O . Brink, ‘Externalist Moral Realism’ (n . 245), 154 . 247 David O . Brink, Moral Realism and the Foundations of Ethics (n . 42), 156–163 .

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are necessarily identical .”248 According to Brink, “[n]aturalistic identity claims should be construed on the model of other common identity claims, such as water = H2O, temperature = mean kinetic molecular energy, light = electromagnetic radiation, pain = C-fiber firing .”249 Notwithstanding, the fact that the moral properties could have been realized by a variety of somewhat different configurations – i . e . “by an indefinite and perhaps infinite number of sets of natural properties” 250 – provides Brink with a main reason “for resisting the identification of moral and natural properties .”251 In this way, Brink construes ethical naturalism “as a claim about the constitution rather than the identity of moral facts and properties .”252 According to Brink, “[m]oral facts and properties, so construed, are constituted, composed, or realized by organized combination of natural and social scientific facts and properties . The former are, then in a certain sense nothing over and above the latter . This naturalist claim should be understood on the model of other common constitution claims: for instance, tables are constituted by certain combinations of microphysical particles, large scale social events such as wars and elections are constituted by enormously complex combinations of smaller scale social events and processes, biological processes such as photosynthesis are composed of physical events causally and temporally related in certain ways .”253 For Brink, our moral experience is characteristically psychological in the sense that “the motivational force and rationality of moral considerations depend upon factors which are external to the moral considerations themselves .”254 In this way, according to Brink, certain psychological experiences show the existence of moral properties of people, actions, and institutions . For this reason, our inquiry about morality must be committed to recognizing, discovering, and perceiving moral properties as a central tenet of our moral experiences .255 Given that moral properties are described by moral claims, moral realism asks one to take these claims literally – i . e . common sense morality .256 Thus, the starting point of Brink’s approach is phenomenological in nature, in the sense that our moral experiences reflect its commitment to objectivity .257 Indeed, for Brink “[m]oral judgements are typically expressed in language employing the declarative mood; we engage in moral argument and deliberation; we regard people as capable both of making moral mistakes and of correcting their moral views; we often feel constrained by what we take to be moral requirements that are in some sense imposed from without and independent of us . These phenomena are held to demonstrate the realist or cognitivist character of commonsense morality; morality seems to concern matters of fact that people can and sometimes do recognize and debate about .”258 248 249 250 251 252 253 254 255 256 257 258

Ibid ., 157 . Ibid ., 157 . Ibid ., 158 . Ibid ., 159 . Ibid ., 159 . Ibid ., 159 . David O . Brink, ‘Externalist Moral Realism’ (n . 245), 28 . David O . Brink, Moral Realism and the Foundations of Ethics (n . 42), 7–8 . Ibid ., 7 . Ibid ., 24 . Ibid ., 24 .

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Brink’s moral realist approach purports to “describe more or less accurately a world whose existence and nature are independent of our theorizing about it .”259 Since for Brink our moral language warrants the cognitive content of our moral judgements, the descriptive aim that Brink envisages regarding the metaethical task can be much more easily carried out on realist than on antirealist assumptions .260 Indeed, according to Brink “[r]ealism, and realism alone, provides a natural explanation or justification of the way in which we do and can conduct ourselves in moral thought and inquiry .”261 This descriptive aim involves, nonetheless, the Cartesian principle . Indeed, according to Brink “like its scientific counterpart, moral theorizing cannot guarantee against systematic error among our considered moral beliefs . This possibility of systematic error among our moral beliefs could be realized in different ways . As in the non-moral case, the cause could be a Cartesian demon who induces in us considered moral beliefs that, when conjoined with non-moral beliefs, form a coherent system . Or it could be some more familiar source of distortion such as excessive self-concern or gross imaginative limitations; but, of course, in order to be the source of uncorrectable error, these more familiar sources of distortion would have to be much more widespread and more opaque to us than we believe they are .”262 Furthermore, for Brink, the acceptance of the independence and the Cartesian principles involves the rejection to foundationalism . Indeed, according to Brink, foundationalism involves an account of justification that provides an answer to epistemological skepticism – that is, against the Cartesian principle – by positing that justification must ensure or guarantee truth .263 According to Brink, this position – which is called objectivism about justification – “overstates the connection between justification and truth .”264 For, “only an account of justification that includes non-inferential justification can possibly guarantee that our justified beliefs accurately describe a world whose existence and nature are independent of our beliefs about it” .265 Accordingly, Brink concludes that “[o]bjectivism about justification seems to imply the dependence of realism on foundationalism and, hence, of moral realism on intuitionism .”266 In contrast to foundationalism – and more exactly to objectivism about justification – according to Brink, the acceptance of the independence and the Cartesian principles implies the distinction between justification and truth . In fact, in consonance with the realist theses, “[k]nowledge implies truth, but justification does not . It is possible to be completely justified in holding beliefs that turn out to be false . […] [E]ven a suitably idealized or diachronic account of justification should not be taken to guarantee truth . Familiar skeptical possibilities apply to ideally justified

259 260 261 262 263 264 265 266

Ibid ., 7 . Ibid ., 24 . Ibid ., 24 . Ibid ., 34 . Ibid ., 106 . Ibid ., 126 . Ibid ., 106 . Ibid ., 107 .

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beliefs too . So long as ideal justification includes non-deductive inference patterns, even ideal, diachronic justification cannot guarantee truth .”267 Thus, the rejection to foundationalism leads Brink to the conclusion that what is required is a coherence theory of justification which does not imply truth, but that provides evidence of it .268 Although Brink maintains that such a theory is essentially John Rawls’ method of wide reflective equilibrium,269 his own model incorporates realist elements by means of second-order beliefs .270 According to Brink, whilst “first-order beliefs are about features of the world external to us; second-order beliefs, by contrast, are about our first-order beliefs, typically about the relationship between first-order beliefs and the word .”271 On the one hand, Brink maintains that second-order beliefs are a necessary condition for the coherence and the explanatory nature of our belief system .272 On the other hand, Brink posits the realist nature of this kind of beliefs . In fact, Brink claims that “[t]hey are realist beliefs because they are beliefs about our relation to a world that though causally dependent on us in some ways, is metaphysically or conceptually independent of our evidence about it .”273 According to Brink’s account, “second-order beliefs include beliefs about our psychological makeup, our cognitive and perceptual equipment, and their hookup to the world . We combine these second-order beliefs about the nature and reliability of various belief-formation mechanisms that we possess . The result is a theory of the world and our place in it that identifies certain features of the world that we reliably detect and explains why this should be so .”274 According to Brink, the distinction between moral beliefs and second-order beliefs about morality is “just a special case of the distinction between first- and second-order beliefs .”275 Thus, whilst “[m]oral beliefs are beliefs about moral properties and their instances,”276 second-order beliefs are “non-moral beliefs about the relation between our moral beliefs and the world .”277 These latter beliefs are of various levels of generality .278 A more reliable class of moral beliefs are the considered moral beliefs, i . e . beliefs which rest on available (non-moral) evidence and thus are well informed, “that results from good inference patterns, that is not distorted by obvious forms of prejudice or self-interest, that is held with some confidence, and that is relatively stable over time [and are] formed under conditions conducive to truth .”279 As we have seen above, by explaining the supervenience relation, Brink has defended an exhaustive thesis about the constitution of moral facts based on ontolog267 268 269 270 271 272 273 274 275 276 277 278 279

Ibid ., 126 . Ibid ., 127 . Ibid ., 104 . On reflective equilibrium see first part . Verónica Rodríguez-Blanco, Meta-Ethics, Moral Objectivity and Law (n . 230), 53 . David O . Brink, Moral Realism and the Foundations of Ethics (n . 42), 127 . Ibid ., 127 . Ibid ., 127 . Ibid ., 127 . Ibid ., 131 . Ibid ., 131 . Ibid ., 131 . Ibid ., 131 . Ibid ., 132 .

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ical naturalist tenets .280 This thesis entails in its turn the non-identity thesis referring to the indetermination of the moral facts when they supervene upon constitutive natural facts . This gap justifies the need for a method through which we can evidence moral facts, but it is not constitutive of them .281 In this vein, Brink’s theory provides us only with a method of evidence, whose upshot can be assessed by means of the coherence constraints of the reflective equilibrium and the second-order moral beliefs . Notwithstanding, second-order moral beliefs cannot overcome the gap referring to the indetermination of the moral facts when they supervene upon constitutive natural facts .282 In this sense they cannot be strong enough to guarantee our access to moral facts . In this way, Brink’s theory not only posits an uncertain subjective access to moral facts restricted to their evidence, but neither it does offer any account of the intersubjective access to the independent moral reality posited by his ontological programme . Unlike Brink, Daniels has considered wide reflective equilibrium as a method to gain convergence, or better said, intersubjective agreement . According to him, reflective equilibrium “may lead us to understand better the sources of moral agreement and disagreement and the constraints on what we count as relevant and important to the revision of moral judgments . It may allow us to reduce moral disagreements (about principles or judgments) to more resoluble disagreements in the relevant background theories . None of these possibilities guarantees increased agreement .”283 However, as stated by Timmons, even if such intersubjective agreement is possible, the reliability of considered moral judgements, on which the reflective equilibrium method rests, is not strong enough to overcome the isolation objection .284 ConCludIng reMarks From the ontological point of view and in relation to the practical thought, two different extreme moral positions must be considered . First, according to an extreme subjectivist moral position, what is right depends on an individual’s judgement . According to the criticisms raised against semantic realism, this moral conception is nonsense, given that the meaning of a particular rule cannot be determined by a single individual . Second, in accordance with strong moral objectivism, what is right cannot be determined by us as humans, even if we are under ideal epistemic conditions . Strong moral objectivism is based in the main on the assumption that either moral facts and properties are sui generis, or on the contrary, that they are identical to, or are constituted by natural, and social facts and properties . 280 David O . Brink, Moral Realism and the Foundations of Ethics (n . 42), 156 . See also David O . Brink, ‘Externalist Moral Realism’ (n . 245), 154 . 281 David O . Brink, Moral Realism and the Foundations of Ethics (n . 42), 127 . 282 If they could overcome the gap, they would be an exception of the independence principle . However, this possibilty would imply abandoning the realist tenets, since it would also entail abandoning the Cartesian principle . 283 Norman Daniels, ‘Wide Reflective Equilibrium and Theory Acceptance in Ethics’ (n . 105), 274 . 284 Mark Timmons, ‘On the Epistemic Status of Considered Moral Judgments’, The Southern Journal of Philosophy, 29, 1, 1990, 97–129, at 107 .

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As we have seen, intuitionism and reflective equilibrium have been the more usual strategies used by contemporary strong moral objectivist positions in order to explain our epistemic access to moral facts and properties . Regarding the non-naturalist approach, in the case of G . E . Moore’s account, the epistemic access to moral goodness remains itself a mysterious matter . This account does not offer any criterion of certainty that allows one to assess the subjective infallibility of intuition . Moreover, it does not offer any explanation about the intersubjective access to moral properties . That is why, in the case of G . E . Moore’s theory, moral properties remain intersubjectively uncertain, ethical disagreements, and conflicting moral beliefs are unexplained . But even more importantly, in the case of G . E . Moore’s account, the way we access moral properties remains obscure . Shafer-Landau has developed a sophisticated argument aimed at reconciling the ontological tenet of non-naturalism with the position according to which moral properties are constituted by natural properties . Notwithstanding, even assuming that Shafer-Landau’s solution is correct and in consequence, that his account can explain the subjective way of access to non-natural facts and properties, his theory does not offer any criterion of certainty that allows one to assess the subjective access to these facts and properties . Indeed, although Shafer-Landau assumes the independence principle in order to explain the difference between the mental state of believing and the non-natural objects towards which this mental state is directed, since his account does not offer any description of convergence, the definition of these two components depends upon the decision of the subject who experiences the self-evidence . Moreover, given that Shafer-Landau’s account – like Moore’s theory – does not offer any explanation about the intersubjective access to moral properties, moral properties remain intersubjectively uncertain, and ethical disagreements are unexplained . Based on these thoughts, we can conclude that when intuitionism is defended by non-naturalist positions, intuitionism brings these positions nearer to an extreme internalist position, i . e . subjectivism . Regarding the non-naturalist approach, Moore has used the causal theory of reference as a cornerstone which allows him to respond to standard criticisms raised against coherentism . Notwithstanding, his account does not demand any communicative structure which allows one to assess not only the coherent structure on which his epistemological account rests, but also the intersubjective access to the independent moral reality posited by his ontological programme . Thus, not only from the subjective, but also from the intersubjective perspective, the epistemic access to the moral reality posited by Moore’s theory remains uncertain . Brink has defended an exhaustive thesis about the constitution of moral facts based on ontological naturalist tenets . This thesis entails in its turn the non-identity thesis referring to the indetermination of the moral facts when they supervene upon constitutive natural facts . This gap justifies the need for a method through which we can evidence moral facts, but it is not constitutive of them . In this vein, Brink’s theory provides us only with a method of evidence, whose upshot can be assessed by means of the coherence constraints of the reflective equilibrium and the second-order moral beliefs . Notwithstanding, second-order moral beliefs cannot overcome the gap referring to the indetermination of the moral facts when they supervene upon constitutive natural facts . In this sense they cannot be strong enough to guarantee our access to moral facts . In this way, Brink’s theory not only posits an

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uncertain subjective access to moral facts restricted to their evidence, but neither it does offer any account about the intersubjective access to the independent moral reality posited by his ontological programme . Although Daniels has considered wide reflective equilibrium as a method to gain convergence, the reliability of considered moral judgements, on which the reflective equilibrium method rests, is not strong enough to overcome the isolation objection . Hence, we can conclude that even assuming the ontological condition that moral facts and properties either exist independently of natural kinds or supervene somehow upon them, it is possible to maintain that our inability to have epistemic access to them makes their existence – not only from the theoretical, but also from the practical point of view – irrelevant to us . Given that extreme externalist positions owe us an account of how it is that we can have epistemic access to the moral facts and properties posited by themselves, we can conclude that these positions are not a suitable account of the objectivity of our practical matters .

abouT

The auThors

Bruce Anderson Professor of Business Law at Saint Mary’s University, Halifax, Nova Scotia (Canada) . Bruce Anderson’s published work has focused on the discovery process in legal decision-making, economic theory, and connections between law and visual art . Currently, he is working on a book on methodology in law and legal theory . Giusy Conza PhD student in Philosophy of Law at the University of Naples (Italy), Department of Law . Flora Di Donato SNSF researcher at the University of Neuchatel (CH), Faculty of Law (Italy) . She obtained the habilitation as associate professor in philosophy of law at the Italian University . Fernando Armando Ribeiro Professor of Law at PUC-Minas (Pontificia Universidade Católica de Minas Gerais) . Juris Science Doctor by UFMG (2002) . Judge in the state of Minas Gerais (Brazil) . Alejandro Sahui Professor at Universidad Autónoma de Campeche (México) . PhD by the Universidad Carlos III de Madrid . He specializes in Political Philosophy . He is the autor of Razón y espacio público. Arendt, Habermas y Rawls (México, Ed . Coyoacán, 2002) . His recent research focuses on equality and democracy . Andrés Santacoloma Santacoloma PhD student at the Goethe University, Frankfurt am Main (Germany) . Bachelor of Laws (LL .B .) by the Universidad Católica de Colombia . Master Program Global Rule of Law and Constitutional Democracy by the Università di Genova (Italy) . Master degree in Legal Argumentation by the Universidad de Alicante (Spain) and and LL .M . by the Goethe University, Frankfurt am Main (Germany) . Francesca Scamardella Researcher in Philosophy of Law at the University of Naples, Department of Law (Italy) . Michael Shute Professor at Regis College (Canada) . Doctor of Sacred Theology (Systematic Theology) at Regis College, Toronto . Doctor of Theology (Philosophical Theology), Regis College and the University of Toronto . Licentiate in Sacred Theology (Systematic Theology), Regis College, Toronto . Master of Theological Studies (Systematic Theology), Atlantic School of Theology . Bachelor of Arts (Philosophy), Acadia University .

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About the authors

Luiz Fernando Castilhos Silveira PhD candidate at the University of Edinburgh (United Kingdom) . Lecturer at the University of Caxias do Sul, Brazil (currently on leave) . Previous degrees include an LLB, a Graduate Diploma (in Philosophy and Teaching) and an M . Phil . (in Law), all obtained from Universities in the south of Brazil . His current research topic is in Jurisprudence, more specifically legal decision-making and the objectivity of law, with publications and conference presentations also in the areas of constitutional law and legal education .” Gonzalo Villa Rosas PhD candidate by Christian-Albrechts-Universität zu Kiel (Germany) . Bachelor of Laws (LL .B .) by the Universidad Externado de Colombia . M .e . Ph . Universidad Nacional de Colombia and LL .M . (S . C . L .) by Christian-Albrechts-Universität zu Kiel (Germany) . Hajime Yoshino Professor of Law Emeritus at Meiji Gakuin University Graduate Law School (Japan) . Currently visiting professor at the University of Kiel Hermann Kantorowicz Institute (Germany) and visiting scholar at Northeastern University School of Law (United States) . Master of Laws (LL .M .) by the Keio University (Japan) . Specialized in the following areas: Legal Philosophy, Legal Logic, Law and Artificial Intelligence and Law, and Contracts .

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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beihefte

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

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126. Kristian Kühl (Hg.) Zur Kompetenz der Rechtsphilosophie in Rechtsfragen Tagung der Deutschen Sektion der Internationalen Vereinigung für Rechts- und Sozialphilosophie vom 24.–26. September 2008 in Tübingen 2011. 140 S., kt. ISBN 978-3-515-09816-8 127. Stephan Kirste / Anne van Aaken / Michael Anderheiden / Pasquale Policastro (Hg.) Interdisciplinary Research in Jurisprudence and Constitutionalism 2012. 267 S. mit 2 Abb. und 2 Tab., kt. ISBN 978-3-515-09941-7 128. Stephan Ast / Julia Hänni / Klaus Mathis / Benno Zabel (Hg.) Gleichheit und Universalität Tagungen des Jungen Forums Rechtsphilosophie (JFR) in der Internationalen Vereinigung für Rechts- und Sozialphilosophie (IVR) im September 2010 in Halle (Saale) und im Februar 2011 in Luzern 2012. 315 S., kt. ISBN 978-3-515-10067-0 129. Bénédict Winiger / Matthias Mahlmann / Philippe Avramov / Peter Gailhofer (Hg.) Recht und Verantwortung / Droit et responsabilité Kongress der Schweizerischen Vereinigung für Rechts- und Sozialphilosophie, 11.–12. Juni 2010, Universität Zürich / Congrès de l’Association Suisse de Philosophie du Droit et de Philosophie Sociale, 11–12 juin 2010, Université de Zurich 2012. 206 S. mit 6 Abb., kt. ISBN 978-3-515-10066-3 130. 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

131. 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 978-3-515-10082-3 132. 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 978-3-515-10136-3 133. Thomas Bustamante / Carlos Bernal Pulido (Hg.) On the Philosophy of Precedent Proceedings of the 24th World Congress of the International Association for Philosophy of Law and Social Philosophy, Beijing, 2009 Volume 3 2012. 144 S., kt. ISBN 978-3-515-10150-9 134. Matthias Kaufmann / Joachim Renzikowski (Hg.) Zurechnung und Verantwortung Tagung der Deutschen Sektion der Internationalen Vereinigung für Rechts- und Sozialphilosophie vom 22.–24. September 2010 in Halle (Saale) 2012. 184 S., kt. ISBN 978-3-515-10180-6 135. Carsten Bäcker / Sascha Ziemann (Hg.) Junge Rechtsphilosophie 2012. 214 S., kt. ISBN 978-3-515-10268-1 136. Ulfrid Neumann / Klaus Günther / Lorenz Schulz (Hg.) Law, Science, Technology Plenary lectures presented at the 25th World Congress of the International Association for Philosophy of Law and Social Philosophy, Frankfurt am Main, 2011

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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 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 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 Daniela Demko / Kurt Seelmann / Paolo Becchi (Hg.) Würde und Autonomie

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

This volume contains a selection of papers presented at the special workshop “Truth and Objectivity in Law and Morals,” held at the 26th World Congress of the IVR. The papers deal with diverse but correlated issues such as 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 hermeneutic 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 problem about truth of normative propositions and legal statements; the incompatibility of non factualism with the traditional account of validity and legality; as well as the possibility of objectivity in morals.

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ISBN 978-3-515-11260-4

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