The Quest for the Description of the Law

The Quest for the Description of the Law

Reidar Edvinsson

The Quest for the Description of the Law

Dr. Reidar Edvinsson Biblioteksgatan 5 83130 Östersund Sweden [email protected]

ISBN: 978-3-540-70501-7

e-ISBN: 978-3-540-70502-4

Library of Congress Control Number: 2008931475 © 2009 Springer-Verlag Berlin Heidelberg This work is subject to copyright. All rights are reserved, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilm or in any other way, and storage in data banks. Duplication of this publication or parts thereof is permitted only under the provisions of the German Copyright Law of September 9, 1965, in its current version, and permission for use must always be obtained from Springer. Violations are liable to prosecution under the German Copyright Law. The use of general descriptive names, registered names, trademarks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. Cover design: WMX Design GmbH, Heidelberg Printed on acid-free paper 9 8 7 6 5 4 3 2 1 springer.com

Preface

My dissertation for LLD (or JSD) Att beskriva rätten (To Describe Law), which was written under my bachelor surname of Andréasson, was presented for public examination on Nov 4, 2004. Since then the text has been developed in two separate directions. On the one hand, three of the chapters have been made more accessible to students of jurisprudence and have been included in the second edition of the textbook Rättsfilosofi, samhälle och moral genom tiderna edited by Joakim Nergelius. On the other hand, the whole dissertation has been revised, translated and published as the present book. In the time that has passed since my dissertation, many things have changed. On the personal level, my friend and tutor, Aleksander Peczenick, was sadly taken away from my circle of colleagues. In contrast to that sad event, I have spent two nine-month periods on paternity leave, raising my two children, Selma and Bernhard. This past year, I have decided to move from theory to practice and have started working in a court of law. During my work on the dissertation, I had the opportunity to spend a rewarding term at Rutgers University in Camden, NJ visiting Professor Dennis Patterson. Since this book is a continuation of that project, it feels appropriate to repeat my thanks to Professor Patterson and STINT (The Swedish Foundation for International Cooperation in Research and Higher Education) for making that visit possible. I thank Daniel Ogden of Uppsala University for his efforts to make the English of this book as proper as possible. At the same time I also want to thank the Emil Heijnes Foundation and The Department of Law at Uppsala University for providing the funds for the linguistic review and printing of the book. I express my gratitude to Bo Wennström, Thomas Bull, and my other colleagues at Uppsala University for the inspiration and support they have given me. I also want to repeat my thanks to those colleagues who provided me with constructive criticism regarding the drafts of the dissertation presented at seminars in Uppsala and Lund. Most of all I want to thank my family and friends for support and inspiration, and my wife, Esther, and my children for their patience, since much of the work done on this book took place at those times that normal people spend with their family. Östersund 2008

Reidar Edvinsson

v

Contents

Part I 1

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

3

2

Legal Positivism and Real Entities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.1 Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.2 The Expositor and the Censor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.3 Facts Underlying Prescription. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4 Law Treated as a Real Entity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4.1 Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4.2 Bentham . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4.3 Austin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.4.4 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.5 Description of the Real Entity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.6 Problems . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.7 Utilitarianism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.8 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

5 5 6 6 7 7 7 8 9 9 10 11 13

3

H.L.A. Hart and the Framework of Legal Thought . . . . . . . . . . . . . . . 3.1 Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2 Hart’s Description . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2.1 Primary Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2.2 The Rule of Recognition. . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2.3 Secondary Rules and the Circular System of Recognition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2.4 The Framework of Legal Thought . . . . . . . . . . . . . . . . . . . . 3.2.5 Validity and Existence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.2.6 Validity Distributed in a System Taken to Be Valid . . . . . . . 3.2.7 Soft Legal Positivism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3 Critical Observations regarding Hart’s Descriptive Project . . . . . . . 3.3.1 Validity of What? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.3.2 Accessibility of the Rule of Recognition . . . . . . . . . . . . . . .

15 15 16 16 16 17 17 18 18 19 19 19 20 vii

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Contents

3.3.3 3.3.4 3.3.5

Preconditions for Description . . . . . . . . . . . . . . . . . . . . . . . . One of Many Versions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Does Hart’s Description Provide Certainty and Predictability? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.4 Justification and Obligation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.4.1 Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.4.2 Hart and the Gunman in Earlier Legal Positivism . . . . . . . . 3.4.3 The Gunman in Hart’s Theory . . . . . . . . . . . . . . . . . . . . . . .

20 21 22 23 23 23 24

4

Joseph Raz – the Social Thesis and the Sources Thesis . . . . . . . . . . . . 4.1 Description . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1.1 Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.1.2 Versions of the Social Thesis . . . . . . . . . . . . . . . . . . . . . . . . 4.1.3 The Conditions of the Social Thesis . . . . . . . . . . . . . . . . . . . 4.1.4 The Sources Thesis and its Support . . . . . . . . . . . . . . . . . . . 4.1.5 The Law and Legal Decisions. . . . . . . . . . . . . . . . . . . . . . . . 4.1.6 Hard Positivism. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.2 Objections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

27 27 27 27 28 29 30 31 31

5

Ronald Dworkin and Restricted Legal Interpretation . . . . . . . . . . . . . 5.1 Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2 Outline of Dworkin’s Theory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2.1 The Propositional Aspect . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.2.2 Law as Integrity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3 Principles and Theoretical Disagreement . . . . . . . . . . . . . . . . . . . . . 5.4 The Separation of Principle and Policy . . . . . . . . . . . . . . . . . . . . . . 5.4.1 Perverse Policies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.4.2 Limited Discretion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.5 Dworkin’s Treatment of His Adversaries . . . . . . . . . . . . . . . . . . . . . 5.5.1 Three Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.5.2 Dworkin’s Argument Against Legal Pragmatism . . . . . . . . . 5.5.3 Kinds of Consensus. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.6 Evaluation of Dworkin’s Argumentation . . . . . . . . . . . . . . . . . . . . . 5.6.1 Between Convention and Pragmatism . . . . . . . . . . . . . . . . . 5.6.2 Consensus of Independent Conviction . . . . . . . . . . . . . . . . . 5.6.3 Dworkin’s Modest Use of Objective. . . . . . . . . . . . . . . . . . . 5.6.4 Dworkin’s Strange Picture of the Sceptic . . . . . . . . . . . . . . . 5.6.5 Justification of What? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.7 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

33 33 34 34 34 35 36 36 38 38 38 39 40 40 40 41 42 43 43 44

Contents

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Part II 6

Common Approaches in Reasoning . . . . . . . . . . . . . . . . . . . . . . . . . . . .

49

7

The Modernist Approach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1 Distinguishing Traits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2 The Distinguishing Ideas and Classical Philosophy . . . . . . . . . . . . . 7.2.1 Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2.2 Metaphysics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2.3 Descartes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2.4 Truth in Sentences. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3 Ideals for Description . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.4 Realism and Anti-Realism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

51 51 52 52 52 53 54 55 55

8

Scepticism, Relativism, Perspectivism . . . . . . . . . . . . . . . . . . . . . . . . . . 8.1 A Postmodernist Alternative to the Modernist Approach?. . . . . . . . 8.2 Historical Vestiges of the Approach . . . . . . . . . . . . . . . . . . . . . . . . . 8.2.1 Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.2.2 Protagoras . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.2.3 Socrates and Plato . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.2.4 Nietzsche. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.3 Meaning and Truth . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.3.1 Recurrent Objections to Criticism of Truth-Objectivism. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.3.2 Dennis Patterson’s Objection to Subjectivism . . . . . . . . . . . 8.3.3 Coherence, the Sum of Conceptions and the Particularity of Linguistic Formulations . . . . . . . . . 8.3.4 Language and Truth . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.3.5 Truth as Correspondence . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.3.6 The Truth about Truth. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.3.7 Simplicity of Description . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.3.8 The Anti-Formalism of Stanley Fish . . . . . . . . . . . . . . . . . . 8.3.9 Postmodernist Truth . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

57 57 57 57 58 59 60 62

Descriptive Theory of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.1 The Descriptive Ambition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.2 The Object Described by Descriptive Theory of Law . . . . . . . . . . . 9.2.1 Adjudication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.2.2 Legal Dogmatism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.2.3 Form Instead of Content and the Idea of Law . . . . . . . . . . . 9.2.4 The Allergy Simile . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.2.5 Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.3 Arguments for Description . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.3.1 Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.3.2 What Law Really is. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

79 79 80 80 80 81 81 82 83 83 83

9

62 66 67 68 69 70 73 74 76

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Contents

9.3.3 Description Concerning Language Use . . . . . . . . . . . . . . . . 9.3.4 The Purpose of Law and Description . . . . . . . . . . . . . . . . . . 9.4 Value Judgements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.5 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

83 84 85 86

10 Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.1 Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.2 Stanley Fish. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.2.1 Anti-Formalism in Law. . . . . . . . . . . . . . . . . . . . . . . . . . 10.2.2 Rules and Actions in a Circular Relation . . . . . . . . . . . . 10.2.3 Restrictions on the Discretion of the Judge . . . . . . . . . . 10.2.4 Problems Concerning Fish’s View of Interpretive Communities . . . . . . . . . . . . . . . . . . . . . . 10.2.5 Fish’s Criticism of Theory . . . . . . . . . . . . . . . . . . . . . . .

87 87 88 88 88 89 90 91

11 The Quest for the Description of the Law . . . . . . . . . . . . . . . . . . . . . . 11.1 Consensus about Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.1.1 Legal Gauges and Limited Consensus . . . . . . . . . . . . . . 11.1.2 Adjudication and Justice . . . . . . . . . . . . . . . . . . . . . . . . . 11.2 The Goal-Theory of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.3 Is and Ought . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.4 Why Question the Quest? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

93 93 93 94 94 95 96

Appendix The Originality and Power of the Throwing Thrown. . . . . . . . . . . . . . . . .

101

Compilation of Law Cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

106

Bibliography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

107

Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

111

Chapter 1

Introduction

Abstract Chapter 1 is an introduction to the first part of the book in which a few famous theories of law are criticized. This book is intended to be a commentary on some well-known theories of law. The argument will concern description, not of the law in a specific area, but of what the law is in a more general sense. The ambition will be to discern and discuss common traits in some of the theories. It can be argued that common traits unite theories as expressions of a common fundamental approach. Special attention will be given to two such discerned approaches. In part one some problems concerning the individual theories will be pointed out. Part two will discuss the approach that the theories appear to have in common. Though important in its own right, the discussion of the theories of law under consideration will provide an example of how fundamental theoretical conceptions are influential and can be questioned.

R. Edvinsson, The Quest for the Description of the Law, © Springer-Verlag Berlin Heidelberg 2009

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Chapter 2

Legal Positivism and Real Entities

Abstract In chapter 2 it is suggested that classical legal positivists (i.e. Jeremy Bentham and John Austin) fail to identify the ‘real entities’ that, supposedly, constitute law. It is suggested that this failure entails a demand for arguments supporting the description of the law given by them. Without such arguments the description is unconvincing. It is also suggested that utilitarian moral theory (and consequentialist moral theory in general) faces similar difficulties.

2.1

Introduction

The first theories to be examined here are the ones presented by Jeremy Bentham and John Austin. They are famous proponents of the legal positivism that evolved in the eighteenth and nineteenth centuries. Of these two theorists, Bentham was the first to express the ideas central to legal positivism. To estimate their relative importance for legal positivism, however, is beyond the scope of this study. The investigation will instead focus on some conceptions they had in common. It is worth noting that Bentham’s theory evolved as he formulated a criticism of William Blackstone’s Commentaries on the Laws of England. One of Bentham’s objections was that Blackstone limited himself to description and thereby counteracted constructive creation (Bentham 1931, p. 101). After a closer look at the description of and approach to law of Bentham and Austin, this objection will be commented on in the conclusion of this chapter. As we turn to Bentham and Austin the aim will not be to make a comprehensive comparison of their opinions. Instead some conceptions of the law will be pointed to in preparation for more general observations regarding the theories presented by Bentham and Austin.

R. Edvinsson, The Quest for the Description of the Law, © Springer-Verlag Berlin Heidelberg 2009

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2 Legal Positivism and Real Entities

2.2

The Expositor and the Censor

Legal positivism in different shapes is connected with conceptions of the law and its dictates as relatively defined objects. It is assumed that these objects can be adequately described and that there is something to be gained from such descriptions. The works of Bentham and Austin show clear signs of such conceptions. It appears, for instance, in the distinction between “the Expositor” and “the Censor”. Bentham calls attention to the importance of distinguishing between description and assessment of the law. According to Bentham, whenever we have something to say on the subject of the law, it is as one of two possible characters. It is either as an expositor or as a censor. The different tasks of these two characters are outlined by Bentham in A Fragment on Government: “To the province of the Expositor it belongs to explain to us what, as he supposes, the Law is: to that of the Censor, to observe to us what he thinks it ought to be. The former, therefore, is principally occupied in stating, or in enquiring after the facts: the latter, in discussing reasons.” (Bentham 1931, pp. 98, emphasis and note omitted). He continues: “To the Expositor it belongs to show what the Legislator and his under workman the Judge have done already: to the Censor it belongs to suggest what the Legislator ought to do in the future.” (Bentham 1931, p. 99, emphasis omitted). It should be noted that these two tasks, (or functions as Bentham puts it), are taken to be completely distinguishable (Bentham 1931, p. 99).

2.3

Facts Underlying Prescription

Though the distinction between the two different functions might have some merits, it is misleading to suggest that description can refrain from dealing with anything but facts. In a note to his presentation of the above mentioned distinction Bentham claims the following: In practice, the question of Law has commonly been spoken of as opposed to that of fact: but this distinction is an accidental one. That a Law commanding or prohibiting such a sort of action, has been established, is as much a fact, as that an individual action of that sort has been committed (Bentham 1931, p. 98 note 1, emphasis omitted).

This needs to be examined in detail. That a certain statute has been passed and that a certain act has been performed might be agreed upon to such an extent that we talk of them as facts. This does not, however, entail that what such a statute prescribes in relation to such acts is clear or certain. Whether or not the act is regulated by the statute remains to be settled. (It is not even clear that it is a fact that an act is or is not of the sort regulated by the statute.) Whether an act should or should not be classified in a way placing it under the concept used in a statute; whether or not the act

2.4 Law Treated as a Real Entity

7

should be described in that way, is not a linguistic question.1 Nor is it self-evident. Bentham seems to have assumed that once it is established what statute is passed, it is also conclusively determined what acts are regulated. Statutes are thus assumed to leave no doubts in this matter.

2.4 2.4.1

Law Treated as a Real Entity Introduction

In the above-examined part of A Fragment, “the law” discussed by Bentham refers to the prescriptions and possibly their form.2 In this work, he focuses on what can be called discerning the content of the law and how it is formulated. The thorough description of the law given in Of Laws in General, on the other hand, deals with law more generally. It concerns what some call the nature of the law. In the following section, it will be investigated what kind of description Bentham makes. It should be noted that the description is alleged to be factual.

2.4.2

Bentham

Bentham’s original plan was to clarify what is meant by “laws” in a section at the end of An Introduction to the Principles of Morals and Legislation (Bentham 1970:1, p. 207 note i and p. 294 note v). As the project evolved, it grew to become a book of its own: Of Laws in General, published after his death. In his introduction to Of Laws in General, H.L.A. Hart shows that it is reasonable to assume that the two completed parts of Chap. XVII in the Introduction were intended to serve as the first two chapters in what eventually became Of Laws in General (Bentham 1970:2, pp. xxxv). In the second of these parts, Bentham begins an exposé regarding jurisprudence. He claims the following: “Jurisprudence is a fictitious entity: nor can any meaning be found for the word, but by placing it in company with some word that shall be significative of a real entity.” (Bentham 1970:1, p. 293).

1 Whether or not something is to be considered to be X in the sense of a specific legal rule is not only a linguistic question. It is also determined by the consequences that would result from treating that something in that way. For examples in Swedish law see the treatment of ‘eller liknande’ (‘or similar’) in NJA 1996 p. 696, ‘innehav’ (‘possession’) NJA 1998 p. 604, or ‘träningsmatch’ (‘practise match’) in NJA 1985 p. 788. The content of a law is thus not settled by any literal meaning of rules. 2 Cf. the previous quotes regarding the ‘expositor’ and the ‘censor’ and types of jurisprudence, and Bentham’s discussion regarding substance and form (Bentham 1970:1, p. 295) or his claims concerning expository matter (ibid. pp. 304, 306).

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2 Legal Positivism and Real Entities

He continues: To be susceptible of an universal application, all that a book of the expository kind can have to treat of, is the import of words: to be, strictly speaking, universal, it must confine itself to terminology. Accordingly the definitions which there has been occasion here and there to intersperse in the course of the present work, and particularly the definition hereafter given of the word law, may be considered as matter belonging to the head of universal jurisprudence (Bentham 1970:1, p. 295, emphasis omitted).

Based on this we can conclude that Bentham considered establishing and describing the nature of the law to be parts of “universal jurisprudence”. It is also apparent that Bentham found this undertaking to be terminological. As interesting as this might be in itself, we now turn to the law’s relation to “real entities”. We can assume that Bentham’s claim that we need to place “jurisprudence” in relation to “real entities”, can be extended to involve the terminological project of defining the law. “Real entities” are then as central to the “law” as they are to “jurisprudence”. Unless the law is a “real entity”, it needs to be defined in relation to such in order to have meaning.3 It is reasonable to request an explanation of how law is a “real entity” or how it is considered to relate to “real entities”. Section 2.5 will convey part of the descriptions of the law given by Bentham and Austin. Based on these descriptions it can be determined if they meet this request.

2.4.3

Austin

In The Province of Jurisprudence Determined Austin sets out to discuss something he separates into four parts. Divine laws, positive laws, positive morality and metaphorical or figurative laws are discerned (Austin 1954, p. 1). The central role assigned to positive laws is evident from the beginning. Austin explains: “The principal purpose or scope of the six ensuing lectures, is to distinguish positive laws (the appropriate matter of jurisprudence) from the objects now enumerated” (Austin 1954, p. 2). In his first lecture, Austin goes on to say: “I begin my projected Course with determining the province of jurisprudence, or with distinguishing the matter of jurisprudence from those various related objects: trying to define the subject of which I intend to treat, before I endeavour to analyse its numerous and complicated parts” (Austin 1954, p. 10) He found it important to keep the different things called laws separate: “It is necessary to define accurately the line of demarcation which separates these species from one another, as much mistiness and intricacy has been infused into the science

3

Cf. “Jurisprudence is a fictitious entity: nor can any meaning be found for the word, but by placing it in company with some word that shall be significative of a real entity.” (Bentham 1970:1, p. 293)

2.5 Description of the Real Entity

9

of jurisprudence by their being confounded or not clearly distinguished.” (Austin 1954, p. 10). This ambition to distinguish the object examined in such jurisprudence involves a need to clarify what law is. In his introductory “Analysis of Lectures” Austin explains what he intends to do: “In the first of the six lectures which immediately follow, I state the essentials of a law or rule… In other words, I determine the essence or nature which is common to all laws that are laws properly so called” (Austin 1954, p. 3). It is thus obvious that also Austin attempted to provide a general description of the law.

2.4.4

Summary

Both Bentham and Austin strove to give general descriptions of the law in order to set it apart from things like morality and evaluations of the law. They attempted to delineate and clarify what law is by description in terms of unassailable concepts. In Bentham’s words, he describes, law in terms of “real entities”. In their works, they both seem to assume that there is no fundamental disagreement regarding what law is.

2.5

Description of the Real Entity

Having made some observations about their approach to the description of the law, it is now time to turn to the descriptions made by Bentham and Austin. Bentham condenses his description in a definition: A law may be defined as an assemblage of signs declarative of a volition conceived or adopted by the sovereign in a state, concerning the conduct to be observed in a certain case by a certain person or class of persons, who in the case in question are or are supposed to be subject to his power: such volition trusting for its accomplishment to the expectation of certain events which it is intended such declaration should upon occasion be a means of bringing to pass, and the prospect of which it is intended should act as a motive upon those whose conduct is in question (Bentham 1970:2, p. 1, emphasis omitted).

In this definition, the three elements deemed to be the core of his description are found. Law is taken to be a declaration of will. It is, furthermore, the will of a sovereign that is declared. This declaration of will is (as a last element) backed by sanctions to ensure compliance. Austin’s description has a lot in common with Bentham’s. The striking difference is that Austin talks about commands instead of declarations of will. In Austin’s view, a law is a kind of command: “Every law or rule (taken with the largest signification which can be given to the term properly) is a command. Or, rather, laws or rules, properly so called, are a species of commands” (Austin 1954, p. 13, emphasis omitted). Commands are in turn considered to be one kind of declaration of will: “A command, then, is a signification of desire. But a command is distinguished from other significations of

10

2 Legal Positivism and Real Entities

desire by this peculiarity: that the party to whom it is directed is liable to evil from the other, in case he comply not with the desire” (Austin 1954, p. 14). Like Bentham, Austin, points out a connection with sanctions: “The evil which will probably be incurred in case a command be disobeyed or (to use an equivalent expression) in case a duty be broken, is frequently called a sanction, or an enforcement of obedience.” (Austin 1954, p. 15, emphasis omitted). Another similarity between the two theories is the role attributed to power and the sovereign. Austin claims: “Laws and other commands are said to proceed from superiors, and to bind or oblige inferiors” (Austin 1954, p. 24, emphasis omitted). He further explains: [T]he essential difference of a positive law (or the difference that severs it from a law which is not a positive law) may be put in the following manner: - Every positive law, or every law simply and strictly so called, is set, directly or circuitously, by a sovereign person or body, to a member or members of the independent political society wherein that person or body is sovereign or supreme. Or (changing the expression) it is set, directly or circuitously, by a monarch or sovereign number, to a person or persons in a state of subjection to its author (Austin 1954, pp. 253).

2.6

Problems

After these observattions regarding the general descriptions of the law given by Bentham and Austin, it is time to return to their ambition to define the law by pointing out relations to concrete, undisputed matters. The sections above show how it is reasonable to conclude that Bentham and Austin, through their descriptions, intended to separate the law that they experienced as concrete from more diffuse things like morality. Such an ambition gives rise to some demands on the description. The sovereign, the declaration of will and the command invoked in the description need to be of a certain kind. If the law is supposed to become concrete by the description, or if the description is supposed to show how the law is concrete, the matters referred to in the description need to be concrete. There have to be “real entities” behind them. At first glance this might not seem problematic. We might claim to have a clear notion of what is meant by the terms “command” and “declaration of will”. On closer inspection, however, we notice their vagueness. It is not clear if “will” always needs to be declared in a certain way. Are only written documents of a certain type accepted as declarations of will? Even if it is contended that this vagueness can be eliminated, it can not reasonably be argued that the terms and the socalled “real entities” were discovered without any influence from the notion that using the terms and picturing the entities in that way leads to a reasonable conception of the law. To make things worse, the problem with vagueness is further intensified since more than one of the terms used in each description is vague. The vagueness of “declaration of will” or “command” is accompanied by the vagueness of “sovereign”. Under these circumstances it is tempting to identify the sovereign with a specific

2.7 Utilitarianism

11

person or group. (This appears to be the position of Bentham and Austin.4) This not only reduces the vagueness of “sovereign”; it can also to some extent help clarify “declaration of will” and “command”. It can, for instance, be suggested that the declarations that count are the written documents signed by the sovereign. This, however, does not seem to give us a concrete law. Firstly, it is difficult to point out the sovereign. Secondly, regardless of how we define the “sovereign”, it declares law only in some of its declarations. It seems to be necessary to specify under what circumstances the declarations are to be considered law. If anything is considered to be law, without being such a declaration, it is also necessary to explain how it can be considered to be law. (Any such explanation seems to make law less concrete.) If the vagueness is accepted and the sovereign is suggested to be something less specific, such as, the general will of the people (cf. Rousseau 1997) the description seems to fit better with our notion of the law. This, however, makes it very difficult to explain how this will is turned into law by being declared in some way. It is even difficult to ever agree upon what exactly this general will dictates on any topic. It might be tempting to sidestep these problems of vagueness by assuming that it is common knowledge what the law dictates. With such an assumption, the process of lawmaking derived from the description of the law can be turned around to help us identify the sovereign and the commands or declarations of will. Discerning what the law dictates is, however, not significantly easier than establishing undisputed definitions of the above-mentioned terms. It seems that the reason for describing the law as a system in the first place, to a large extent, was to help us discern just what the law dictates. For this reason, a description excluding part of the law from the description (by depicting that part as exceptional “hard cases”), grants little satisfaction: It is exactly in the difficult cases that are excluded that we have any need of help discerning what the law dictates. Overall, it must be concluded that Bentham and Austin fail to point out the “real entities” that constitute law. For this reason, they also fail to reach their goal: They cannot give an undisputable description of law as a concrete system.

2.7

Utilitarianism5

Closely related to these classical versions of legal positivism is the utilitarian moral theory. This theory is often associated with Bentham. However, he is not its originator. As F.C. Montague points out in his introduction to Bentham’s A Fragment on Government, Bentham does not even argue for utilitarianism. He rather takes it for granted (Bentham 1931, p. 35).

4 See e.g. Bentham (1970:2), p. 5 and Austin (1954), p. 253. By seeing the sovereign as a specific person or group of persons, the sovereign becomes more ‘real’. 5 I do not claim to be original or profound in my comment on utilitarianism. For a more thorough criticism, see e.g. the contributions by Charles Taylor and Frederic Schick in (Sen and Williams 1982).

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Bentham himself makes no claim to be the originator of the principle of maximizing happiness. He explains: It was from Beccaria’s little treatise on crimes and punishments that I drew, as I well remember, the first hint of this principle, by which the precision and clearness and incontestableness of mathematical calculation are introduced for the first time into the field of morals - a field to which in its own nature they are applicable with a propriety no less incontestable, and when once brought to view, manifest, than that of physics, including its most elevated quarter, the field of mathematics (Bentham 1962, pp. 286).

The ideas of utilitarianism are decidedly older than Cesare Marchese di Beccaria. They can even be said to be part of (empathic) human nature. In the shape of theories prescribing maximization of pleasure they can be traced at least as far back as Plato’s Protagoras.6 According to the classical version of utilitarianism, it is the resulting happiness that determines the moral value of an action. One obvious problem, of course, is the difficulties encountered when we attempt to measure relevant happiness. It is hard to determine all the consequences of actions, and it is impossible to measure the resulting happiness, especially, when it comes to other, maybe even future, persons. In response to the difficulties involved in determining the amount of relevant happiness, it might be suggested that likeliness should be taken into account. In the comparison of alternative actions it is then a happiness, calculated in a probability equation, that determines how actions are to be ranked. The amount of happiness attributed to a predictable outcome of an action is modified by the likelihood of that outcome. The modified amounts of “happiness” of the various predictable outcomes are then brought together in some manner to be compared to the modified “happiness” of the various outcomes of alternative actions. To calculate happiness in this way is not much easier than to measure it. In addition to this, it is difficult to determine to what extent the distribution of happiness affects the sum of happiness. It can be contended that the amount of happiness, unlike the number of marbles, changes depending on how it is distributed. But calculating the net happiness gained from different levels of satisfaction of some notion of justice or equality seems hopeless. Notions of justice might even be given a more prominent role in the equation. In agreement with John Rawl’s “maximin” rule (Rawls 1973, pp. 152)7 it might be argued that the situation of those who are worst off takes overriding priority. From the point of view of a utilitarian calculation, this would mean that the resulting happiness for those who are better off could be omitted, as long as consideration for the happiness of those who are worst off (however that is determined) in the various alternatives yields singular results. It is, however, far from

6 (Plato 2001 Protagoras, p. 354) The use of the phrase ‘the greatest happiness for the greatest number’ can also be found in works preceding Bentham. Cf. e.g. Hutcheson (1971), p. 164. 7 “The maximin rule tells us to rank alternatives by their worst possible outcomes: we are to adopt the alternative the worst outcome of which is superior to the worst outcomes of the others.”

2.8 Conclusion

13

obvious that the above-mentioned priority should be granted. Such an overriding priority seems inappropriate when it comes to the allocation of happiness. It might make more sense in the distribution of some other good (as in the case of Rawls’ theory of justice). On the whole, utilitarian theories seem to run into problems they cannot solve. Since all notions of justice, including Rawls’, seem riddled with controversy, things are not made any better if it is justice or some other good that is to be maximized in addition to, or instead of, happiness. (A theory suggesting this would, by the way, not be utilitarian.) It is hard to see how any such theory can ever give us any assistance when we find it hard to choose. It seems that morality cannot be turned into a utilitarian calculus because we never find the variables to be plugged into the equation. This leaves us with the question: what is utilitarianism good for?

2.8

Conclusion

Now that the theories of law of Bentham and Austin have been outlined, it is time to make some observations about how they theorise. They both appear to have seen law as a concrete system.8 They both also showed an ambition to separate law from more diffuse things like morality and the evaluation of the law. They tried to describe law in terms of “real entities” because such a description would render a proper picture of the law. It can be assumed that they imagined that the dictates of the law would become more evident once the nature of the law was discerned. Seeing the concrete system would help us recognise the well-defined dictates of the law. As it appears “the sovereign”, “the declarations of will” and “the commands” are not concepts corresponding to real entities in the way they were assumed to be. It thereby becomes hard to argue that law constitutes a concrete system. To be sure, descriptions using these concepts can no longer serve as conclusive arguments. Although possible, it is not desirable to make the above-mentioned concepts more concrete by assuming that the dictates of the law are unambiguously evident. This contention is controversial and needs to be proven rather that assumed. With no other arguments for the concrete nature of the system of law than the arguments that assume its dictates to be unambiguously evident; and with no other arguments for the unambiguously evident dictates than the concrete nature of the system; the two beliefs stand in need of support. Bentham and Austin fail to identify any “real entities” that can be said to constitute law. For this reason their theories provide little help in the identification of the dictates of the law. Since they do not say what other use there would be for their theories, we are left wondering.

8 The utilitarianism discussed in the previous section, in a similar way, treats the good as something concrete.

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As mentioned above, Bentham objected to Blackstone by claiming that it is not reasonable to limit oneself to a description of the law. One also needs to censure. In connection with this, Bentham stresses the importance of separating these activities. As we turn to the description of the law given by Bentham we see how this description, on the one hand, attempts the impossible (to point out real entities) and, on the other, ends up theorizing without giving any obvious purpose. As fate would have it, even Bentham can be accused of focusing too much on description. It can be argued that his mistake is the assumption that law can be described as such a concrete system that the activities of description and censure can be clearly distinguished. The central question is left unanswered. We are never told why law should be treated as a concrete system.

References Austin, J. (1954). The province of jurisprudence determined. London: The Curwen Press. Bentham, J. (1931). A fragment on government. London: Oxford University Press and Humphrey Milford. Bentham, J. (1962). The works of Jeremy Bentham (Vol. III), New York: Russel & Russel. Bentham, J. (1970:1a). An introduction to the principles of morals and legislation. London: Athlone. Bentham, J. (1970:2b). Of laws in general. London: Athlone. Hutcheson, F. (1971). An inquiry into the original of our ideas of beauty and virtue (Part I in: Collected works of Francis Hutcheson). Hildesheim: Olms. Plato (Page references to specific dialogues use Stephanus-pagination.) Plato (2001). Platon: Skrifter bok 2. Stockholm: Atlantis. Rawls, J. (1973). A theory of justice. Oxford: Oxford University Press. Rousseau, J-J. (1997). The social contract and other later political writings. Cambridge: Cambridge University Press. Sen, A. & Williams, B. (Eds.) (1982). Utilitarianism and beyond. Cambridge: Cambridge University Press.

Chapter 3

H.L.A. Hart and the Framework of Legal Thought

Abstract Chapter 3 analyses H.L.A. Hart’s ‘descriptive sociology’. It is shown that his project fails to present more than one description of validity of law among many alternative descriptions, and that he therefore needs to add further arguments to be convincing. (The difficulties encountered in our attempts to specify the rule of recognition makes it difficult to recognize the law that is valid according to Hart’s theory. The importance of such validity is therefore questionable.) The ‘framework of legal thought’ that Hart attempts to elucidate only encloses a limited part of law. Unfortunately this makes Hart’s theory avoid investigating the parts of the law where analysis is most urgent. It is also shown that Hart’s system of rules is inadequate for explaining the obligation associated with the law, as something distinguished from the commands of a gunman.

3.1

Introduction

Despite presenting his theory as an objection to Bentham’s and Austin’s depictions of the law, H.L.A. Hart’s theory displays substantial similarity to their theories. Like Bentham and Austin, Hart was determined to distinguish what the law is from an evaluation of the fact that the law is as it is. It is imagined that law constitutes a system that can be described without controversial evaluative assumptions. Hart himself describes his book, The Concept of Law, as “an essay in descriptive sociology” (Hart 1994, p. vi). While attempting to provide an introductory outline of Hart’s description, the following investigation will ultimately be aimed at Hart’s general approach to law. It will focus on his descriptive ambition. Part two of this book will provide some more general comments regarding this approach.

R. Edvinsson, The Quest for the Description of the Law, © Springer-Verlag Berlin Heidelberg 2009

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3.2 3.2.1

3 H.L.A. Hart and the Framework of Legal Thought

Hart’s Description Primary Rules

According to Hart, a legal system is partly made up of primary rules. By a cursory account, these are rules that distinguish the acts that are allowed from the acts that are forbidden.1 This picture, however, is modified. In addition to rules dictated in written statutes or by established tradition, there are principles that are implicit in the system. According to Hart it is possible that primary rules take the shape of such principles (Hart 1994, pp. 259).2 It is of some interest that the rules (primary or other) are sometimes considered to be insufficient to determine a legal decision. The decision must therefore go beyond the rules. Law is partially indeterminate. It sometimes requires a judge to make use of discretion because law itself provides no answer (Hart 1994, p. 252).

3.2.2

The Rule of Recognition

In addition to primary rules, a legal system contains a3 rule of recognition “used for the identification of primary rules of obligation” (Hart 1994, p. 100). This rule specifies the criteria of legal validity. The rule of recognition is not so defined as to be stated in a statute, instead it is somehow recognized as such by the general group of people called the officials of the legal system (Hart 1994, p. 116). To find this rule we therefore have to look to what criteria of validity are accepted by these officials and then imagine what rule can be taken to generate those criteria. This, however, makes it far from simple to specify what the rule of recognition is in any given legal system. Hart himself persistently abstains from giving any serious example of the complete rule of recognition in a legal system. He states that in a developed legal system both customary practice and relation to judicial decisions may grant validity (Hart 1994, p. 95). This makes it even harder to point out the rule of recognition in a legal system. If the criteria of validity includes such matters, it is obvious that the statement; whatever the Queen in parliament enacts is law, cannot be seen as a complete rule of recognition. This, however, is the closest Hart comes to stating the rule of

1 Hart calls them “rules of obligation or duty” (Hart 1994, p. 92) and “rules of behaviour” (Hart 1994, p. 116). Cf. Hart (1994), p. 94 “primary rules are concerned with the actions that individuals must or must not do”. 2 In this passage of the postscript, Hart replies to some of Ronald Dworkin’s comments in Taking Rights Seriously (Dworkin 1977). 3 In some passages of his The Concept of Law (Hart 1994), Hart speaks of one rule of recognition (e.g. pp. 106 and 108). In other passages he speaks of several rules of recognition (e.g. p. 116). In my subsequent treatment it will be irrelevant if there is one or are many rules of recognition in a legal system. For simplicity I will refer to only one.

3.2 Hart’s Description

17

recognition in a legal system (Hart 1994, p. 102). A complete rule of recognition would need to point out all these criteria of validity and preferably resolve all possible conflict amongst them. If it fails to do so we are left with serious doubts about the validity it grants to a rule of behaviour. In a discussion about the legal system in primitive societies, Hart argues that problems with uncertainty regarding what the rules are and regarding the precise scope of some given rule, could be avoided if a rule of recognition were added to the system (Hart 1994, pp. 92 and 94). But Hart fails to mention that any certainty granted by such a rule of recognition is reserved for those with knowledge of that rule. Considering the difficulty involved in determining what the rule of recognition is, it is hard to identify any gain in certainty brought about by the rule. Finding a legal system’s rule of recognition is beyond the ambition of the present investigation. It is reasonable to leave this task to supporters of Hart or others who want to argue that we should describe the legal system as something containing such a rule. The study at hand will instead try to take the problems involved in descriptions of this kind seriously.

3.2.3

Secondary Rules and the Circular System of Recognition

Amongst the rules that are considered to obtain their validity from the rule of recognition there are, besides primary rules, rules of change and rules of adjudication. The rule of recognition and these rules are the rules that Hart calls secondary. The rules of change specify how valid rules are changed. The validity granted by the rule of recognition can therefore be said to be redirected by these rules of change. For this reason, the rules of change can be seen as a part of the rule of recognition determining which rules are valid at any given time. The rules of adjudication described by Hart have a more distinct role to play. By determining who has the authority to decide the different legal decisions, it points out the relevant legal officials that recognize the rule of recognition. The system described by Hart is thus somewhat circular. The rules of adjudication, receiving validity from the rule of recognition, in turn specify whose recognition is relevant for determining the rule of recognition. According to Hart, these three types of secondary rules bring about remedies and “enough to convert a regime of primary rules into what is indisputably a legal system” (Hart 1994, p. 94).

3.2.4

The Framework of Legal Thought

In the concluding sentence of the section named “A fresh start” beginning chapter V of The Concept of Law, Hart tells us that in order to find the proper use of the word “law”, we first need to grasp some central elements. He leads us to assume that the

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3 H.L.A. Hart and the Framework of Legal Thought

relation between the primary and secondary rules is one of the things or even the thing we need to grasp. Hart’s ambition is stated in the following passage: What we shall attempt to show, in this and the succeeding chapters, is that most of the features of law which have proved most perplexing and have both provoked and eluded the search for definition can best be rendered clear, if these two types of rule and the interplay between them are understood. We accord this union of elements a central place because of their explanatory power in elucidating the concepts that constitute the framework of legal thought (Hart 1994, p. 81).

He does not clearly specify which concepts constitute the above-mentioned framework. For now it is enough to note that Hart assumes the existence of such a framework and assumes it to be composed of concepts. The relationship between primary and secondary rules that supposedly explains these concepts, is described in a later passage where Hart states the conditions that need to be fulfilled in order for something to be a legal system. On the one hand, those rules of behaviour which are valid according to the system’s ultimate criteria of validity must be generally obeyed, and, on the other hand, its rules of recognition specifying the criteria of legal validity and its rules of change and adjudication must be effectively accepted as common public standards of official behaviour by its officials (Hart 1994, p. 116).

These prerequisites appear to be Hart’s final suggestion regarding how the elements are united. This description of a legal system is thus assumed to have the abovementioned explanatory power with respect to the concepts that constitute the “framework of legal thought”.

3.2.5

Validity and Existence

Since the rule of recognition plays such a central role in the system, it is important to note how Hart treats the question of the validity of the rule of recognition. According to Hart, such validity cannot be requested: “No such question can arise as to the validity of the very rule of recognition which provides the criteria; it can neither be valid nor invalid but is simply accepted as appropriate for use in this way.” Hart points out that, the way we assume its validity resembles the way we assume the standard meter bar in Paris to be correct. It is not reasonable to question if the thing defined as one meter really is one meter (Hart 1994, p. 109). The rule of recognition that is the foundation in Hart’s system of validity is thus not itself valid or invalid. One can instead say that the officials’ acceptance of the rule of recognition defines it as the foundation for the distribution of validity.

3.2.6

Validity Distributed in a System Taken to Be Valid

In the end, it is the rule of recognition that is the source of validity in Hart’s system. Hart shows no intention of defending the authority thus granted to this rule. It is the mechanics of deriving validity within the system that interests him. For this

3.3 Critical Observations regarding Hart’s Descriptive Project

19

reason he feels free to assume, as a sociological fact, that there is a rule of recognition accepted by the officials of the system. A justification of the validity thereby assumed, or an explanation of such a justification, is seen as a different task. As seen in the above, Hart imagined that the description of the primary and secondary rules and their relation would clarify the framework of legal thought. As the validity in Hart’s description is a validity within the system described by Hart, the rules and their relations explain no aspect of validity beyond the accepted description. The framework he mentions is a framework that depends on Hart’s description of the legal system. The framework is “laid out” as the description is accepted.

3.2.7

Soft Legal Positivism

The criteria of legal validity specified by Hart’s rule of recognition are allowed to be rather vague. According to Hart, “conformity with moral principles or substantive values” are examples of what can be incorporated as such criteria. For this reason Hart’s legal positivism has been called soft legal positivism (Hart 1994, p. 250). The plausibility of such soft legal positivism has been discussed by Joseph Raz, among others.4 A subsequent chapter on Raz will comment further on this form of legal positivism. For now it is enough to note that it is not altogether clear what moral principles and substantive values dictate. With such softness, the primary rules, therefore, are not necessarily clearly stated in advance of their application. For this reason, calling the primary rules, rules, seems somewhat misleading.

3.3 3.3.1

Critical Observations regarding Hart’s Descriptive Project Validity of What?

In the account given above, it has been noted that Hart’s ambition is to clarify the framework of legal thinking by explaining how validity is distributed by a system combining the two types of rules. The nature of rules, and most of all their relationship to other rules, is the theme of Hart’s description. According to Hart, these rules have “a penumbra” of uncertainty surrounding their area of clear meaning. He explains that this uncertainty is inevitable due to the general terms in which rules are necessarily stated (Hart 1994, pp. 123). This vagueness of rules makes legal judgement depend on more than the legal rules. This explains why it is necessary for Hart to leave the legal judgement out of the picture given by his description. His description simply does not concern either

4

See also Waluchow (1994), p. 4. Like Hart Waluchow assumes it to be reasonable to describe the legal system as something with a rule of recognition.

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3 H.L.A. Hart and the Framework of Legal Thought

legal judgements or predictions of the outcome in legal cases. Instead, he sets out to describe an imagined reality behind legal judgements and decisions.

3.3.2

Accessibility of the Rule of Recognition

For obvious reasons, a formulation of the rule of recognition cannot avoid the vagueness of rules. No matter how we picture this rule, it will sometimes be hard to determine what rules are recognised as valid according to it. Determining which rules are valid in a system is, of course, also a problem of finding the rule of recognition. Even with extensive knowledge of what the officials recognise as valid, it is difficult to find a rule that summarizes their grounds for validity. It is not appealing to avoid this problem by assuming that, while it is not necessary or even possible for us to find out what the rule of recognition is, there still is such a rule. But the lack of serious attempts to state a rule of recognition indicates that Hart is making an assumption of this kind. If so, the imagined reality that Hart attempts to describe is assumed to consist of matters that might transcend our grasp.

3.3.3

Preconditions for Description

Returning to the standard meter bar mentioned by Hart, it can be noted that determining what a meter is, is a precondition for measurement in meters. Another precondition for such a measurement is the assumption that we are situated in a world with spatial dimensions. These preconditions for measurement in meters are compatible with all common views on the world. When it comes to the rule of recognition and law, the situation is somewhat different. There is no universal agreement about the role played by a rule of recognition with respect to legal validity. It is not even agreed that the assumption that law contains a rule of recognition is of any use in attempts to picture law. One might even question the use of a validity inherent in the system. If we had such a disagreement regarding the meter, we would not agree that length should be measured in meters. We would even disagree regarding the use of picturing ourselves in a measurable space. Hart does not hesitate to suggest that legal validity is a feature within the legal system and that a rule of recognition summarizes how this validity is distributed. He appears satisfied to suggest this, as if he were suggesting something as undisputed as the possibility to measure the world in length and meters. He might even think that what he suggests is entirely self-evident. At the same time he appears to find this suggestion to be of some importance, unlike any suggestion that the world can be measured in meters. He is content with discussing legal systems in general terms and refrains from going into the details of any particular system. But at this general level, he greatly underestimates the disagreement concerning his suggestion.

3.3 Critical Observations regarding Hart’s Descriptive Project

3.3.4

21

One of Many Versions

It has been pointed out that Hart suggests that some concepts form a framework for legal thinking. The concepts he seems to have in mind are concepts like “obligation”, “validity”, “legal system”, “primary rules”, “officials of the legal system” and “rule of recognition”. Now that we have seen Hart’s example of a rule of recognition, it has become obvious that he is satisfied to leave some things out if they do not fit the description he gives. He is satisfied if his description describes the matters he finds central. But the credibility of such a description is questionable. We are asked to assume that a better formulation of the rule of recognition is possible. But this leaves serious doubts regarding the adequacy of Hart’s description. Consequently, Hart needs to give some reasons why his description should be preferred to alternative descriptions. If Hart could convince us that the assumption of a rule of recognition explains things that cannot be explained without it, Hart would have a strong case. But it is hard to imagine why we should not be satisfied without assuming that there is a rule of recognition. Why would it be less reasonable to conclude that there are several accepted ways to ascertain, change and combine the dictates of the sources of law? Why should we assume that the accepted ways should not be developed further? It might be contended, in a more or less roundabout way, that Hart only describes the part of the legal system where the accepted ways (of recognition, change and adjudication) are suitably described by Hart’s description. If so, we must ask what that description leaves out; why it is left out; and what use we have for such a partial description. There appears to be a fair amount of consensus regarding the proper legal procedures, amongst what can be called the officials of the legal system. If we try to make sense of Hart by assuming this to be what Hart is trying to explain with his description, we need to clarify in what way his description explains this. What does his description contribute to this general notion? The idea that proper management of the law is determined by the officials of the legal system, can be shaped into a rule of recognition. It would read: The officials of the legal system determine what the sources of law are and how they should be handled.5 With such an attempt, it remains to be shown how this could work as a rule of recognition. Why should it be seen as such, when almost all that needs to be said about how to recognise other rules remains to be said. This brings us back to the request for reasons in favour of Hart’s description. It needs to be shown why law should be described as a system of rules with a rule of recognition.

5 Interestingly enough, this is not much more than a circle of self-validation. It should be noted that there are obvious similarities between such a contention and the central claims of American legal realism. Cf. e.g. Holmes (1897).

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3.3.5

Does Hart’s Description Provide Certainty and Predictability?

According to Hart, a legal system needs a rule of recognition in order to counter the uncertainty of systems without such a rule (Hart 1994, p. 94). In a passage of the postscript where he discusses the criteria that can be given by the rule of recognition, it can be seen that he expects the rule of recognition to bring about some predictability concerning law’s “guides of conduct”: The underlying question here concerns the degree or extent of uncertainty which a legal system can tolerate if it is to make any significant advance from a decentralized regime of custom-type rules in providing generally reliable and determinate guides of conduct identifiable in advance (Hart 1994, p. 252).6

So the rule of recognition supposedly supplies certainty and predictability. Now it must be asked, does Hart’s description of the legal system, in terms of primary and secondary rules, grant any certainty or predictability? Does Hart’s description do anything more than depict how the certainty and predictability we agree upon can be explained? If the description, with its vision of a rule of recognition, does not, it is a reflection, rather than a cause, of predictability. We can agree that only a legal system with substantial predictability can be described as having a rule of recognition. We can also agree that it is only once we have learned how to predict in a legal system, that we can discern a rule of recognition in that system. But this provides no reason for describing a predictable legal system as something containing a rule of recognition. The rule of recognition can be seen as an attempt to formulate the predictability of the system. It remains, however, to be argued that the predictability can, and should, be formulated in a rule. Learning the predictability of a system is not a matter of learning a formulated rule, and it is suspicious to suggest that the amount of predictability increases if we formulate a rule of recognition. The lack of agreement regarding the formulation of the rule of recognition suggests otherwise. Hart attempts to describe regularities regarding something abstract and intangible; something that, in an obscure way, regulates legal decisions. He takes for granted that we can talk of the valid law that is applied. He further assumes that this law should be described in terms of a rule of recognition in the same way that space is assumed to be measurable in terms of length and meters. In the above, it has been argued that there are alternative ways to relate to things. Hart provides no more than one alternative description. The framework of legal thinking that he sets out to outline is therefore only one alternative framework. For this reason, he needs to explain why we need his description and his framework.

6

This predictability does not include the outcome of particular cases. Cf. Hart (1994), p. 258.

3.4 Justification and Obligation

3.4 3.4.1

23

Justification and Obligation Introduction

Is Hart’s description and his attempt to outline the framework of legal thinking intended to explain the relationship between law and obligation? If so, do we need Hart’s description of law in order to explain legal obligation? What is this legal obligation? Why should we distinguish it from other obligations? Does Hart’s description explain it? Are such obligations more defined than other obligations? Is it reasonable to contend that Hart’s description makes them more defined?

3.4.2

Hart and the Gunman in Earlier Legal Positivism

In his objections to Bentham and Austin, Hart points out that they fail to uphold the distinction between “being obliged” and “having an obligation”. In turn he argues that this makes their description of law unacceptable (Hart 1994, p. 82). He calls their kind of theory “imperative” (Hart 1994, p. 17) and explains that it is distinguished by three traits: Such a theory holds law to be (1) a command (2) given by a sovereign and (3) backed by threat. According to Hart, this kind of command only obliges us. It does not give rise to an obligation. He compares such commands to the orders of a gunman robbing somebody. Hart contends that we have a different relation to law than that which is described in such a “gunman situation writ large” (Hart 1994, p. 16, cf. p. 7). He claims that the law creates obligations and that in order to do so it must consist of rules (Hart 1994, p. 85).7 The description of law given in imperative theories does not mention rules and it can therefore not explain legal obligations. Hart examines a diverse group of “social rules” that supposedly create obligations in order to make his point. According to Hart, all rules that create obligations share one thing; and that is the insistence on the social pressure behind the rule (Hart 1994, p. 87). That Swedes used to eat pea-soup every Thursday is one thing, that they used to drive on the left side of the road is another. In Hart’s mind, it is the social pressure behind the rules prescribing the latter behaviour that creates obligations. To explain the obligation and the rule that creates the obligation, we must discern an “internal aspect” of the rule (Hart 1994, p. 56). This so-called aspect includes the opinion of the rule held by some persons involved with the issue at hand. Such an opinion is in a sense internal, while the regularities in behaviour that can be observed are external. Hart stresses that the internal aspect is something different than our feelings. We might have feelings regarding a dictated behaviour, but such feelings are, according 7

In his editorial comments to Austin (1954) Hart explains that he follows Salmond and Kelsen in their criticism of Austin (Austin 1954, pp. xi).

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3 H.L.A. Hart and the Framework of Legal Thought

to Hart, neither sufficient nor necessary for the existence of binding rules. There needs to be a “critical reflective attitude” (Hart 1994, p. 57).8 What is necessary is that there should be a critical reflective attitude to certain patterns of behaviour as a common standard, and that this should display itself in criticism (including self-criticism), demands for conformity, and in acknowledgements that such criticism and demands are justified, all of which find their characteristic expression in the normative terminology of “ought”, “must”, and “should”, “right”, and “wrong” (Hart 1994, p. 57).

A rule only creates an obligation if social pressure is experienced in support of what the rule prescribes. The experience of pressure need not be coupled to personal sentiment in support of the prescription. The pressure gives rise to the obligation by creating a critical reflective attitude that is applied to our behaviour and that of others in relation to the rule. With this view of obligation in mind, we can understand his criticism of Bentham and Austin. It appears evident that command theory, which does not consider social pressure and critical reflective attitude, is unable to account for obligations of this kind. Taking this into account it is appropriate to examine how satisfying Hart’s view of obligation is.

3.4.3

The Gunman in Hart’s Theory

We saw previously that Hart specifies two conditions that are necessary and sufficient for the existence of a legal system: On the one hand, those rules of behaviour which are valid according to the system’s ultimate criteria of validity must be generally obeyed, and, on the other hand, its rules of recognition specifying the criteria of legal validity and its rules of change and adjudication must be effectively accepted as common public standards of official behaviour by its officials (Hart 1994, p. 116).

How does this square with his thoughts on obligation? Does the law in such a legal system display an internal aspect? Who observes the social pressure? Who has adopted the critical reflective attitude? In Hart’s description of a legal system, it is the officials that need to take the pressure seriously. It is also they who need to adopt the critical reflective attitude (Hart 1994, p. 117). Hart does not indicate that any further appearance of a critical reflective attitude is necessary to explain legal obligation. It thus appears as if the only internal aspect that matters for legal obligation is the one imposed by requiring the legal officials to adopt the critical reflective attitude. But if the average citizen is supposed to acknowledge the difference between the law and the dictates of the robber as a difference between having an obligation and being obliged, this citizen needs to accept the critical reflective attitude. If that attitude is not accepted, any citizen being ordered by the law does not feel obligated but rather feels obliged, as if ordered around by a gunman. 8

Hart’s thoughts concerning legal obligation and experience of social pressure are influenced by the Scandinavian legal realism. This can be seen for instance in the endnote regarding p. 88 (Hart 1994, p. 290). In the note Hart makes a reference to Ross (1933), Ross (1953) and Hägerström (1953).

3.4 Justification and Obligation

25

A bank clerk being robbed feels forced (or obligated) even if the robber has adopted a critical reflective attitude to his actions and considers himself to be following the rules he finds correct and supported by social pressure. Only if the clerk shares such an attitude with the robber and experiences the same social pressure, does the clerk feel obligated. In my opinion, Hart’s reasoning in his gunman example is confused because he deals with obligation without specifying according to whom. Judgements of obligation are, and should be considered to be, implicitly or explicitly, connected to a person or group making the judgement. In his discussion of obligation, Hart does not specify whose judgement lies behind the obligation mentioned in contrast to the coercion in the gunman situation. He does not say who considers it to be an obligation. By not specifying who thinks so, he leaves the reader thinking that he is discussing judgement based on general agreement. This would make the difference between being obliged and being obligated substantial and crucial. As Hart presents his definition of a legal system, it becomes evident that it is the opinion of the legal officials that matters. As noted above, a legal system in Hart’s definition only requires the officials to adopt a critical reflective attitude. Why would Hart limit the need for critical reflection in this manner? Remembering that Hart is committed to a descriptive sociology, we understand that one reason for limiting the need for a critical reflective attitude is the difficulty that thereby is alleviated. Discerning what the officials agree upon is easier than discerning a more general agreement. This is partly due to the fact that there are documents that can be held to indicate what the officials accept. Focusing on the allegedly discernible opinion of officials is also something that separates his theory from natural law theory concerned with the more general morality of the law. What about the risk of Hart’s theory creating a gunman in legal attire? How can he claim that the citizen feels obligated rather than obliged by law? He could assume that (1) we agree that we have an obligation to accept the view on obligation taken by the officials, and that (2) our obligation thereby is defined by the officials’ opinion of obligation.9 If so, he could claim that by granting authority to the officials, we are part of the system coercing ourselves.10 Giving the officials the power to operate the law is taken to be like setting the alarm clock to operate awakening in the morning. By handing over the operation of justice, we are forcing ourselves to be just. As far as there is agreement on the legal issues, this might seem sensible. However, when officials disagree, and when we think they make mistakes, it becomes harder to accept their authority. In such cases, it is likely that we feel obliged rather than obligated. An assumption of agreement of this kind raises two major questions. We must ask how such an agreement is manifested. There is certainly no explicit expression

9 It should be kept in mind that Hart’s aim is not to help us find out what our legal obligations are. His intention is rather to explain the nature of our legal obligations. 10 In his criticism of imperative theory, it might just be the lack of attention to such matters of authority that is most objectionable to Hart. Cf. Hart (1994), pp. 19–20 and p. 63.

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of it. Instead, it must be assumed to be implied. We must also ask how far the agreement reaches. Even if we sense that there is some agreement to leave the judgement to the officials, it is not obvious that we have agreed to hand over authority without restrictions. These questions will not be addressed in this investigation. It is however worth noting that natural law theory is engaged with questions of this kind, for instance, in theories about the social contract (cf. Rousseau (1997) and Locke (1988). It is also worth noting that neither Bentham and Austin nor Hart feel any need to supply answers. By leaving obligation aside, Bentham and Austin can avoid these questions, but since obligation is central to Hart’s theory, these questions reappear and demand answers. It is my conclusion that Hart’s discussion of obligation amounts to another description without proper arguments to place it above alternative descriptions. Hart fails to convince us that obligation should be described in his way.

References Austin, J. (1954). The province of jurisprudence determined. London: The Curwen Press. Dworkin, R. (1977). Taking rights seriously. London: Duckworth. Hart, H. L. A. (1994). The concept of law. Oxford: Clarendon Press. Holmes, O. W. (1897). The path of the law. Harvard Law Review. 10. Hägerström, A. (1953). Inquiries into the nature of law and morals. Stockholm: Almqvist & Wiksell. Locke, J. (1988). Two treatises on government. Cambridge: Cambridge University Press. Ross, A. (1933). Kritik der sogenannten praktischen Erkenntnis. Copenhagen and Leipzig: Levin & Munksgaard and Felix Meiner. Ross, A. (1953). Om ret og retfaerdighed, Copenhagen: Nyt Fordisk Forlag. Rousseau, J-J. (1997). The social contract and other later political writings. Cambridge: Cambridge University Press. Waluchow, W. (1994). Inclusive legal positivism, Oxford: Clarendon Press.

Chapter 4

Joseph Raz – the Social Thesis and the Sources Thesis

Abstract In chapter 4 a part of the theory of law presented by Joseph Raz is examined. The part examined is the demand that the content and existence of law should be described as questions of facts of human behaviour. (He calls this demand the ‘social thesis’ or the ‘sources thesis’.) It is shown how his arguments for this demand are inadequate.

4.1 4.1.1

Description Introduction

The ambition to describe the law as a general object that we can grasp is evident in the work of Joseph Raz. His conception of the law is expressed in his theses that place demands on legal theory. In the present study, his social thesis, in two versions, and his sources thesis will be discussed. In these theses Raz’s attempts to formulate what he takes to be a defining idea in legal positivism. A presentation of the theses and Raz’s argument for them will be followed by some objections to the arguments and some reflections regarding Raz’s view of the description of the law.

4.1.2

Versions of the Social Thesis

As a first attempt to formulate what he takes to be a defining idea in legal positivism, Raz presents the social thesis: “In the most general terms the positivist social thesis is that what is law and what is not is a matter of social fact” (Raz 1979, p. 37). As a comment on the role played by this thesis he further states: “[T]he social thesis has always been at the foundation of positivist thinking about the law” (Raz 1979, p. 41). He even claims that it is “responsible for the name ‘positivism’ which indicates the view that the law is posited, is made law by the activities of human beings” (Raz 1979, p. 38). R. Edvinsson, The Quest for the Description of the Law, © Springer-Verlag Berlin Heidelberg 2009

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4 Joseph Raz – the Social Thesis and the Sources Thesis

Raz finds it proper to point out that the social thesis is directed towards theories about the law and not towards the law itself. In his words, the social thesis is “best viewed not as a ‘first-order’ thesis but as a constraint on what kind of theory of law is an acceptable theory” (Raz 1979, p. 39). As I understand Raz, stressing that the social thesis is about theories, not about the law itself, is his obscure way of saying that he, in the social thesis, is addressing those who theorize about law.1 With this interpretation of Raz I feel confident to ignore his distinction of different orders. As Raz modifies his social thesis into a second-order thesis, he starts calling it the strong social thesis. It is given the following more specific content: “A jurisprudential theory is acceptable only if its tests for identifying the content of the law and determining its existence depend exclusively on facts of human behaviour capable of being described in value-neutral terms, and applied without resort to moral argument” (Raz 1979, pp. 39). Raz claims that this thesis is “a thesis about some general properties of any acceptable test for the existence and identity of legal systems” (Raz 1979, p. 39). It is worth noting that the theories that Raz is considering are theories providing tests for the existence and the identity of the law. This conception of jurisprudential theory is expressed again in a later passage: “[T]he thesis assumes that any complete theory of law includes tests for the identification of the content and determination of the existence of the law” (Raz 1979, p. 40). The underlying conception of jurisprudential theory and of law will be explored further in a later section. Before that, the theses will be more thoroughly presented.

4.1.3

The Conditions of the Social Thesis

Raz states that there are three conditions that are met by the tests of identification in any proper legal system. The first is efficacy. The law discussed is the one in force. It must be the “actual law of a given society and not a defunct system or an aspiring one” (Raz 1979, p. 43). This condition directs the tests to deal with the law that can be called an actual fact. The second condition concerns the institutional character of the law. If this condition is met, the law identified claims supreme authority. In Raz’s words, “[Law] is a system of guidance and adjudication claiming supreme authority within a certain society and therefore, where efficacious, also enjoying such effective authority” (Raz 1979, p. 43). This so called institutional character of the law is a social dimension of the fact that law is depicted as. The law must be an institution yielding to naught. These two conditions are held to constitute the core of the weak social thesis (Raz 1979, p. 45). I find it strange to compare these conditions to the social thesis

1

I see no further use for this distinction. If a legal theorist argues that theories of law must attribute some traits to law, he or she reasonably also argues that law has these traits. Why else would such a theorist discuss the demands on theories of law?

4.1 Description

29

previously outlined. The conditions deal with other matters. They mention ideas that are often connected to the thesis formulated above. In the strong social thesis a distinguishing third condition has been added. This condition displays a more obvious relation to the social thesis. The third condition treats the relation of law to its sources. According to Raz and the strong social thesis the existence and content of the law is determined by the sources. Raz clarifies what he means by source: “ ‘Source’ as used here includes also ‘interpretative sources’, namely all the relevant interpretative materials. The sources of a law thus understood are never a single act (of legislation, etc.) alone, but a whole range of facts of a variety of kinds” (Raz 1979, p. 48). It should be noted that what these sources have in common is their status as facts. Raz further explains that the important difference between the strong and weak social thesis is that the strong, but not the weak thesis, is incompatible with the notion that some laws are identified by taking morality into consideration (Raz 1979, pp. 46). “A law has a source if its contents and existence can be determined without using moral arguments (but allowing for arguments about people’s moral views and intentions, which are necessary for interpretation, for example)” (Raz 1979, p. 47).2

4.1.4

The Sources Thesis and its Support

As Raz establishes that the relation to what he calls sources is what distinguishes the two versions of the social thesis from each other he renames the strong version. What he now calls the sources thesis (Raz 1979, p. 47) can be summarised as follows: A theory about the law is acceptable only if its tests for the existence and the identity of the law is a matter of deduction from sources. Raz claims to have two arguments that collectively support the sources thesis. Commenting on these arguments he states the following: “The one shows that the thesis reflects and explicates our conception of the law; the second shows that there are sound reasons for adhering to that conception” (Raz 1979, p. 48). The first argument starts out from a notion we are assumed to have regarding legal skill, and from the difference we supposedly experience between the application and the development of the law. Raz lists characteristics we wish to see in judges. These characteristics are divided into two kinds. “[K]nowledge of the law … skills in interpreting laws and arguing in ways showing … legal experience and

2 It is worth noting that this stressed distinguishing trait of the strong social thesis has been formulated as the moral thesis (sometimes called the separation thesis). Raz claims that positivists in general separate the content of the law from the moral value of the content of the law. Its value depends on its content not vice versa (Raz 1979, p. 37). The overlap between these different theses and the possibility of clarification in this area will, however, not be investigated further in the present enquiry.

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4 Joseph Raz – the Social Thesis and the Sources Thesis

expertise” are characteristics of the first kind. Only characteristics of this kind establish legal skill. Characteristics of the second kind like “wisdom and understanding of human nature, … moral sensibility, … enlightened approach, etc” are held to be something else with no immediate connection to legal skill (Raz 1979, p. 48). According to Raz we talk of application of the law when only legal skill is involved. When the second kind of desirable characteristics comes into play we are instead dealing with the development of the law. Raz suggests that this is how we understand legal skill and the application and the development of the law. Judging from his comment on the two arguments, he also thinks that the sources thesis reflects and explicates such an understanding. If the law is something derived from sources, it is reasonable to assume that deriving the law from the sources is the legal skill. It is then also reasonable to suggest that only the application of that skill is to be considered an application of the law. The second argument for the sources thesis attempts to show why we should have the conception of the law expressed in the sources thesis and in our notions of legal skill and the application and the development of the law. Raz claims that the sources thesis “help[s] to identify a basic underlying function of the law”. The law is supposed to provide “publicly ascertainable standards by which members of the society are held to be bound so that they cannot excuse non-conformity by challenging the justification of the standard” (Raz 1979, p. 52). The core of his second argument can be expressed as follows: Demanding that a theory of law must present the law as determined by its sources, makes us see that the function of the law is to enable the public to identify the standards by which their behaviour is judged by the state.3

4.1.5

The Law and Legal Decisions

As it appears, Raz thinks that the law derived from sources determines the particular legal decisions. This is evident when he talks of identifying the content of the law. It is also supported by his discussion of legal skill in settled areas of law: Binding sources are held to provide the solution to legal questions (unless they are unsettled). “It is when deciding cases where the law is settled that the judges are thought of as using their legal skills in applying the law.” (Raz 1979, p. 49). It can also be noted that the predictability that is held to be desirable in his second argument must be the predictability of legal decisions. Predictability regarding some basis for legal decisions, which in an obscure way determines the decisions, would not interest us in the same way.

3 Note here the similarity with Hart’s talk of uncertainty, and of what a rule of recognition provides!

4.2 Objections

4.1.6

31

Hard Positivism

Raz accepts the possibility of social morality constituting a source of the law. This is assumed to be possible since such morality is settled. In a note he claims that “Social morality is based on sources: the customs, habits, and common views of a community” (Raz 1979, p. 46 note 7). He considers but rejects the possibility of other kinds of morality being part of the law. While admitting that law can hand decisions over to morality (in unsettled matters), he rejects the thought that this would make morality part of the law (Raz 1979, pp. 45). For this reason, Raz is an opponent of the soft positivism attributed to Hart.4

4.2

Objections

Turning back to the arguments in support of the sources thesis, I would like to argue that what Raz presents as support for his position can be turned against him. Our notions of the application and the development of the law are alleged to provide part of the support. It is however not clear that we must use these terms in a way baring anything from being both development and application. That law can be held to be under development as soon as a legal decision is based on more than an obvious deduction from sources, does not rule out the possibility of considering that treatment to be a kind of application of the law. It is not unreasonable to consider cases of interpretation resulting in precedent to be both an application and a development of the law. It appears as if Raz needs to say that such an interpretation is never an application of the law. Even if he would say this, he would have serious difficulties concerning delineation. He must specify when we only deduce and when we also adjust what was settled. The difficulties involved should also be obvious to Raz. He recognizes the complexity of the task of legal courts: “The courts carry with them both their functions of applying pre-existing law and of making new ones into almost all cases” (Raz 1979, p. 182). He further adds that “the courts have both a law-applying and a law-creating role in regulated and unregulated disputes alike” (Raz 1979, p. 183). In my opinion, the complexity and indistinctness of application and development makes an argument relying on separation into these categories questionable. In the end, this line of argument lends little support to Raz’s position. If the sources thesis is further supposed to reflect and explicate our conception of legal skill, it appears as if Raz also needs to argue that an interpretation that adjusts the law always involves more than legal skill. Is this the conception we have? Do we think that legal skill only involves deduction from sources? What about conflicts within the law: Deduction from one source may lead to a clear

4

For a more thorough treatment of hard and soft legal positivism see Waluchow (1994).

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4 Joseph Raz – the Social Thesis and the Sources Thesis

prescription of a decision differing from what is clearly prescribed based on deduction from a different source. It remains to be argued why we must say that something more than legal skill is needed in all the cases where such a conflict has not been settled in advance. Leaving other objections aside, this must at least amount to a strange use of the term “legal skill”. In opposition to Raz, I would therefore say that we do not have the conceptions of law and legal skill that he imagines. At the very least he would need to give some further arguments supporting his assumptions in this area. Rather than supporting the sources thesis, my conception of legal skill opposes it. As we turn to the second argument, that is, the reasons for adhering to the conception of the law described by Raz, I would like to question his focusing on one function of the law. What about the more general function of providing reasonable solutions to questions and disputes? With Raz’s conception of the law, the law provides solutions only in simple cases, but what if we use a different conception of the law? It is not settled what conception of the law we have and should have. If the function mentioned by Raz stands out only because the suggested conception of the law has been adopted, the resulting prominence of that function cannot be given as the reason for adhering to the conception. In my opinion there is another flaw in Raz’s second argument. Accepting that we seek predictability in the law does not mean that the sources thesis or the conception of the law mentioned by Raz must be accepted as reasonable. Such acceptance does not support the thesis. Restricting the law to being the part of legal affairs where reliable predictions are possible does not grant any further predictability to legal affairs. It only makes what is called “the law” more predictable by excluding things we might otherwise call law because they are unpredictable. We gain no predictability in legal issues by such definitions. The arguments provided in support of the sources thesis thus appear hollow and totally unsatisfying. Since Raz’s description is no more than one version, the lack of convincing arguments is crucial. He seems preoccupied with the simple cases, but gives no reason why difficult cases should be considered less central in legal affairs. This elicits the question, why we should try to delimit the law by the boundary set by a general description. The lack of answer and reasoning regarding this question suggests that Raz merely assumes it to be reasonable to attempt such a description. Part two of the present book will attempt to show that a general approach to the world we find ourselves in might be responsible for descriptions of this kind. The use of such descriptions and the approach will be assessed there.

References Raz, J. (1979). The authority of law, essays on law and morality. Oxford: Clarendon Press. Waluchow, W. (1994). Inclusive legal positivism. Oxford: Clarendon Press.

Chapter 5

Ronald Dworkin and Restricted Legal Interpretation

Abstract Chapter 5 analyses an important part of Ronald Dworkin’s theory of ‘law as integrity’. Dworkin aims at showing that principles and rights restrict legal interpretation and that this should be the case. In this chapter it is shown that his arguments regarding the existence and utility of these restrictions depend on some highly questionable assumptions. Like descriptions of law they need to be supported by arguments. The absence of convincing arguments for the assumptions makes Dworkin’s view on rights as trumps seem more like an assumption than a conclusion.

5.1

Introduction

Ronald Dworkin differs from the previously mentioned theorists in stressing the coherence of the system. To discern what the law dictates we are, according to him, required to do much more than read the rules. These dictates (the content of the law) are, in his opinion, not so easily described. A criticism resembling the one raised against the previously mentioned theorist, however, is applicable to Dworkin as well. In part two, I will discuss the approach that I take to be their shared main mistake. For now we shall focus on Dworkin. It should be noted, right from the start, that Dworkin sets out to deal with only a part of what can be called law or legal practice. He explains that his project centers on formal adjudication.1 He explains that a “more complete study of legal practice would attend to legislators, policemen … a great variety of other officials, and to people … who are not called public officials but whose decisions also affect the legal rights of their fellow citizens” (Dworkin 1986, p. 12). This should be kept in mind as we now turn to a more detailed examination of his theory.

1 Here we see a striking similarity with the special attention paid to the legal officials in H.L.A. Hart’s theory. Cf. Hart (1994).

R. Edvinsson, The Quest for the Description of the Law, © Springer-Verlag Berlin Heidelberg 2009

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5 Ronald Dworkin and Restricted Legal Interpretation

5.2 5.2.1

Outline of Dworkin’s Theory The Propositional Aspect

Since Dworkin makes clear that his investigation will focus on adjudication and the role played by the judge, he points out what he considers to be the important aspect of legal practice. “We will study formal legal argument from the judge’s viewpoint … because judicial argument about claims of law is a useful paradigm for exploring the central, propositional aspect of legal practice” (Dworkin 1986, p. 14). What he has in mind is more evident if we take into account some of his statements about the law. In the preface of Law’s Empire he states: “[W]e argue about what [the law] has decreed, even when the books that are supposed to record its commands and directions are silent; we act then as if law had muttered its doom, too low to be heard distinctly.” He further declares that his goal is to elaborate his answer to a central question: “How can the law command when the law books are silent or unclear or ambiguous?” (Dworkin 1986, p. vii). Dworkin answers this central question by suggesting that “legal reasoning is an exercise in constructive interpretation” (Dworkin 1986, p. vii). It should also be noted that Dworkin describes the law as relatively distinct. He claims that: “It means something to say that judges should enforce rather than ignore the law, that citizens should obey it except in rare cases, that officials are bound by its rule” (Dworkin 1986, p. 44). Dworkin suggests that this law is defined by the goal of integrity and even calls it “law as integrity”. It can be assumed that his description of “law as integrity” is Dworkin’s attempt to develop his claim that “legal reasoning is an exercise in constructive interpretation”. It can further be assumed that the same description helps explain “the central, propositional aspect of legal practice”.

5.2.2

Law as Integrity

According to Dworkin, a conception of integrity is, and should be, the goal of adjudication. This goal determines the work of the judge. The adjudicative principle of integrity instructs judges to identify legal rights and duties, so far as possible, on the assumption that they were all created by a single author - the community personified - expressing a coherent conception of justice and fairness. … According to law as integrity, propositions of law are true if they figure in or follow from the principles of justice, fairness, and procedural due process that provide the best constructive interpretation of the community’s legal practice (Dworkin 1986, p. 225).

A suggested unity is central to this conception of the law: “Law as integrity supposes that people are entitled to a coherent and principled extension of past political decisions even when judges profoundly disagree about what this means” (Dworkin 1986, p. 134). The judge is required to “test his interpretation of any part of the great

5.3 Principles and Theoretical Disagreement

35

network of political structures and decisions of his community by asking whether it could form part of a coherent theory justifying the network as a whole.” (Dworkin 1986, p. 245). This constructive interpretation supposedly has three stages. The first is the “preinterpretive stage”2, where it is settled what should be interpreted: “[T]he rules and standards taken to provide the tentative content of the practice are identified. (The equivalent stage in literary interpretation is the stage at which discrete novels, plays, and so forth are identified textually, that is, the stage at which the text of Moby-Dick is identified and distinguished from the text of other novels)” (Dworkin 1986, pp. 65–6). At the second, or interpretive stage, “the interpreter settles on some general justification for the main elements of the practice identified at the preinterpretive stage” (Dworkin 1986, p. 66). This is, thus, not a linguistic interpretation. It is, instead, a process of specifying a justification for the thing interpreted. The third and final, postinterpretive, stage is also called a reforming stage. Here the judge modifies the object identified at the preinterpretive stage in order to fit with the justification given at the interpretive stage. In this way the demands of law are adjusted to fit the justification of the system (Dworkin 1986, p. 66). Discerning what the law dictates, thus involves finding the best justification for some defining elements of the whole legal practice. Dworkin suggests that a judge deciding a case should be compared with an author writing a chapter in a chain novel. In this “artificial genre of literature” a group of authors take turns writing a chapter each. Their own chapter, however, is not independent of the other chapters: “Each has the job of writing his chapter so as to make the novel being constructed the best it can be”. In Dworkin’s opinion, “the complexity of this task models the complexity of deciding a hard case under law as integrity” (Dworkin 1986, p. 229).

5.3

Principles and Theoretical Disagreement

Dworkin’s theory about law as integrity in Law’s Empire, to some extent, is a continuation of an ongoing attack on legal positivism. The proponents of legal positivism are accused of neglecting the important role played by principles in the practise of law.3 This accusation was more conspicuous in Dworkin’s earlier book Taking Rights Seriously: My strategy will be organized around the fact that when lawyers reason or dispute about legal rights and obligation, particularly in those hard cases when our problems with these concepts seem most acute, they make use of standards that do not function as rules, but operate differently as principles, policies, and other sorts of standards. Positivism, I shall 2 Dworkin explains that he uses preinterpretive enclosed in quotes in order to indicate that some kind of interpretation is needed also at this stage (Dworkin 1986, p. 66). 3 This line of argument appears already in Dworkin’s article ‘Judicial Discretion’ (Dworkin 1963, pp. 624–5).

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5 Ronald Dworkin and Restricted Legal Interpretation argue, is a model of and for a system of rules, and its central notion of a single fundamental test for law forces us to miss the important role of these standards that are not rules (Dworkin 1977, p. 22).

The deficiency attributed to legal positivism is argued to involve an improper simplification of the law. This simplified conception of the law amounts to what he calls a “plain-fact view of law” (Dworkin 1986, p. 33). Such a view assumes that lawyers and judges “agree about the grounds of law”. The main claim of this view is that: “The law is only a matter of what legal institutions, like legislatures and city councils and courts, have decided in the past” (Dworkin 1986, p. 7). Dworkin criticizes legal positivism for having such a “plain-fact view of law” (Dworkin 1986, p. 33). To develop his criticism, Dworkin introduces the concept of theoretical disagreement: Lawyers and judges …. might agree, in the empirical way, about what the statute books and past judicial decisions have to say about compensation for fellow-servant injuries, but disagree about what the law of compensation actually is because they disagree about whether statute books and judicial decisions exhaust the pertinent grounds of law. We might call this “theoretical” disagreement about the law (Dworkin 1986, pp. 4–5).4

Dworkin claims that Law’s Empire is about “theoretical disagreement” in the law (Dworkin 1986, p. 11). Already in the first chapter, Dworkin shows that there is such a disagreement (Dworkin 1986, pp. 15–30). In the remainder of the book, the existence of this disagreement is taken for granted. He attempts to explain this disagreement, and what law is, given such a disagreement. Legal positivism is treated as if it had been refuted, along with the “plain-fact view of law”. It is with the knowledge of the importance of this theoretical disagreement that I will proceed with my analysis of Dworkin’s theory.

5.4 5.4.1

The Separation of Principle and Policy Perverse Policies

That there are other standards than rules, is only part of Dworkin’s position. He emphasises the distinction between principles and policies. This distinction is taken to be important in the formulation of our legal rights. On the one hand Dworkin claims that law as integrity, “holds that people have as legal rights whatever rights are sponsored by the principles that provide the best justification of legal practice as a whole” (Dworkin 1986, p. 152, emphasis added). On the other hand he states that integrity, “does not recommend what would be perverse, that we should all be governed by the same goals and strategies of policy on every occasion. It does not

4 The choice of words in this passage indicates that Dworkin finds it reasonable to treat law as an object. That there are opinions of what the law ‘actually is’ is not questioned in any fundamental way. Sections 5.6.5 and 5.7 will address this matter more thoroughly.

5.4 The Separation of Principle and Policy

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insist that a legislature that enacts one set of rules… in order to make the community richer on the whole, is in any way committed to serve that same goal of policy tomorrow” (Dworkin 1986, p. 243, emphasis added). Dworkin pictures rights as being immune to arguments based on goals of society stated in policies. He speaks of “rights as trumps over these decisions of policy, rights that government is required to respect case by case, decision by decision” (Dworkin 1986, p. 223). These policies are somehow irrelevant to the system of principles and rights: Integrity fixes its gaze on these matters of principle: government must speak with one voice about what these rights are and so not deny them to anyone at any time. Integrity’s effect on decisions of policy is more diffuse. It requires, as I said, that government pursue some coherent conception of what treating people as equals means, but this is mainly a question of general strategies and rough statistical tests. It does not otherwise require narrow consistency within policies: it does not require that particular programs treat everyone the same way (Dworkin 1986, p. 223).

But what is the reason for treating principles and policies so differently? Why are principles, but not policies, part of the unified system providing the grounds for legal decisions? Dworkin needs to explain why policies have no room in that system. He claims that it would be perverse to demand that we should always be guided by the same goal. Such a claim is not an explanation. Besides being just a claim, it does not address the matter of policies being part of the system. Instead, it comments the idea of a policy replacing the system. The claim only concerns the case when a policy, by itself, is the sole guide to a decision. This would be to grant a policy unlimited power in relation to principles and other policies. When he discusses principles he does not suppose any principle to have more than some relative weight. What Dworkin should provide, is an explanation why no policy ever has such relative weight. Since principles and policies are treated so differently, the grounds for classification into these categories are highly relevant. Unfortunately, Dworkin is not explicit on this point. One apparent fundamental difference is that policy is taken to declare a thing to be valuable (good) while a principle supposedly makes a more specific statement about right and wrong.5 This would present Dworkin with the difficult task of explaining why right should be separated from good. This task seems to include explaining why the resulting distribution of good is not important when it comes to principles.

5 To separate right from good and favour right over good is familiar from Immanuel Kant’s discussion of the kingdom of ends (Kant 1964, pp. 100 pp. 74–5). Here, Kant argues that we must never treat anyone as merely a means to an end. In my opinion, that line of thought needs additional support. It is not convincing to just take it for granted with or without mentioning Kant. It is also possible to define good in terms of right or vice versa. I will, for the sake of argument, assume that this does not pose a problem for Dworkin’s line of thought.

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5.4.2

Limited Discretion

Another possible basis for distinguishing between principle and policy can be traced in Dworkin’s claim concerning the limited discretion of a legal judge. Dworkin assumes that the principles decide what the right answer to a legal question is. He, however, takes this to furnish the judge with a limited range of freedom in making the judgement, concerning the estimation of which alternative set of principles that best justifies the system.6 Considerations of policy are taken to be independent of principles and other policies. Such considerations, thus, leave the judge with unlimited freedom. In this, there is an idea that judgements of principle have limits given by others, while judgements of policy pay no such heed. This difference could in turn serve to discern what must be taken into account at a later stage: It could be argued that since a judgement based on policy paid no respect to previous judgements, it deserves no respect in the future. This argument, however, seems to need support. Dworkin’s discussion of limited discretion does not seem to provide the requested reasons for treating principles, but not policies, as part of the system. The discussion is rather part of Dworkin’s line of thought that takes the distinction and the propriety of different treatment for granted (Dworkin 1986, pp. 242–3, and Dworkin 1977, p. 24).

5.5 5.5.1

Dworkin’s Treatment of His Adversaries Three Questions

In Law’s Empire, Dworkin takes the liberty to define the two typical opponents to his theory. He names them legal pragmatism and conventionalism (Dworkin 1986, p. 94). To describe these alternatives to his theory of law as integrity he focuses on three questions. The questions are presented in the third chapter of his book: First, is the supposed link between law and coercion justified at all? Is there any point to requiring public force to be used only in ways conforming to rights and responsibilities that “flow from” past political decisions? Second, if there is such a point, what is it? Third, what reading of “flow from” - what notion of consistency with past decisions - best serves it? (Dworkin 1986, p. 94).

The remaining chapters of Law’s Empire are said to be a study of the three conceptions of law that are constructed as answers to these questions. One of the

6 It makes little sense to describe the judge’s discretion as limited in this way, and to argue that it is both an application of convention and a free judgement. Why would this be reasonable when it appears impossible to determine the limits set by the convention? That the principles that are to be taken into account are hard to distinguish from the policies that are to be ignored, makes it even harder to identify any limits.

5.5 Dworkin’s Treatment of His Adversaries

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three is his own conception of law as integrity. The other two conceptions are not supposed to necessarily correspond to any schools of jurisprudence. They are instead constructed in order to focus his discussion on matters he deems to be of interest and importance (Dworkin 1986, p. 94).

5.5.2

Dworkin’s Argument Against Legal Pragmatism

One of the constructed conceptions is called legal pragmatism. What distinguishes it from law as integrity is the answer given to the second version of the first question.7 This pragmatism “denies that past political decisions in themselves provide any justification for either using or withholding the state’s coercive power.” (Dworkin 1986, p. 151). This general rejection of limits to the freedom in adjudication attributed to pragmatists is later transformed into a rejection of the immunity of principles to policy judgements. “Pragmatism … denies that people ever have legal rights; it takes the bracing view that they are never entitled to what would otherwise be worse for the community just because some legislature said so or a long string of judges decided other people were” (Dworkin 1986, p. 152). The transformation is reversed in a later passage: It [pragmatism] rejects what other conceptions of law accept: that people can have distinctly legal rights as trumps over what would otherwise be the best future properly understood. According to pragmatism what we call legal rights are only the servants of the best future: they are instruments we construct for that purpose and have no independent force or ground (Dworkin 1986, p. 160).

According to Dworkin, this pragmatism does not provide a reasonable account of how judges actually reason. Beyond this deficiency regarding “fit”, he also argues that his theory gives a better “justification of our legal practice as a whole” (Dworkin 1986, p. 411). But claiming that rights lack trump status is one thing. Contending that rights have no independent weight in relation to considerations of what would otherwise be best for the community, is another matter. Since Dworkin wants to argue for the trump status of rights, he needs to argue against both these versions of legal pragmatism. It is not enough to convince us that the second version neither fits nor justifies the actions of the judiciary. He needs to treat the versions separately and convince us that also the first version is inferior to his conception of the law.

7

It should be noted that the first version of the first question (“[I]s the supposed link between law and coercion justified at all?”) uses the concept of law in a way that, most likely, is totally strange to anyone supporting legal pragmatism.

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5.5.3

5 Ronald Dworkin and Restricted Legal Interpretation

Kinds of Consensus

The second constructed conception of law is called conventionalism. Dworkin claims to agree with the conventionalists concerning the first question: They both think that legal sanctions only are, and should be, used in ways that flow from earlier political decisions. What they disagree about is related to the third question. They have different opinions about how “flow from” should be understood. What Dworkin finds interesting about conventionalism, “lies in its negative claim that convention exhausts the intrinsic normative power of past decisions” (Dworkin 1986, p. 135). Dworkin holds convention to be one kind of consensus. What is held to distinguish convention from other kinds of consensus is that an explicit agreement is made the sole reason behind any truth claim based on convention.8 The convention itself is a truth-defining agreement. Against this, Dworkin claims that convention alone can not explain the normative power of previous political decisions. According to Dworkin, there is also a demand for consistency in principle. This demand goes beyond the demand to follow our conventions. Law as integrity, on the other hand, accounts for this demand (cf. Sect. 5.2.2). Dworkin also has a second objection to conventionalism. He claims that convention is not necessary in an explanation of the normative power of previous decisions. Nothing in the legal system needs to be settled through convention. The system can work fine without convention. A consensus of independent conviction is enough (Dworkin 1986, pp. 138–9). The important thing about this consensus is that it is not identified by reference to an expressed agreement, but is a consensus independent of such explicit agreements or conventions. Dworkin even argues that judges’ treatment of norms can be better understood in terms of this consensus than in terms of conventions (Dworkin 1986, pp. 136–9).

5.6 5.6.1

Evaluation of Dworkin’s Argumentation Between Convention and Pragmatism

It appears to be Dworkin’s opinion that law as integrity avoids the faults of conventionalism and pragmatism, while at the same time bringing forward their merits. Let us see where his criticism leads him. In his treatment of legal pragmatism it becomes evident that Dworkin, in contrast to legal pragmatism, argues that there are trumps in law. It has been noted that what he has in mind is the immunity of principles to influence from policy considerations.

8 Dworkin says: “true by convention, which means true just because everyone else accepts it” (Dworkin 1986, p. 136).

5.6 Evaluation of Dworkin’s Argumentation

41

His view, somewhat simplified, is that the answer to the question of what rights we have, does not depend on any policies, but is determined by legal principles. In his first objection to conventionalism, Dworkin claims that there is a demand for consistency that goes beyond the demand to adhere to convention. Taken together with his discussion regarding principle and policy, it becomes apparent that the demand for consistency requires legal decisions to flow from the system of principles beyond convention without yielding to any policy. In order to substantiate his argument against conventionalism, Dworkin needs to explain just how consistency with principle is not a matter of adhering to convention. He needs to explain how consistency with principle is not only a matter of letting previous agreements be decisive. But what is invoked when consistency with principle is demanded? Can the system of principles be seen as something other than previous agreements? In his description of conventions, Dworkin mentions that a distinguishing trait is that the force of a convention is not lost in cases where its application is not found desirable. Such a “substantive attack” has no effect if convention is decisive (Dworkin 1986, p. 136). This so-called distinguishing trait, however, also belongs to demands for consistency with principle. Whether or not something is consistent with a principle is not influenced by the objections that Dworkin calls substantive. So, in this respect, there is no difference between conventionalism and the demand for consistency with principle. Finding out the principles in “law as integrity” appears to be only a way of ascertaining what can be seen as an underlying implicit convention. For this reason, Dworkin’s law as integrity appears to be only a kind of conventionalism that does not demand the convention to be explicit. Like the other kind of conventionalism, it has difficulty ever finally discerning the convention. In both kinds of conventionalism, it is also difficult to explain convincingly why the convention should be discerned in the suggested way, and why we should even try to discern such a convention. If anything, these difficulties are even worse for Dworkin, than for conventionalists of the other kind.

5.6.2

Consensus of Independent Conviction

Dworkin’s second objection to conventionalism can be argued to indicate a way of distinguishing Dworkin’s demand for consistency from conventionalism. He claims that when it comes to explaining the legal culture and the role of norms in law, an explanation in terms of a consensus of independent conviction is better than an explanation in terms of convention. It is, however, difficult to see how this claim would provide any grounds for the distinction. That something is needed, in addition to conventions, to explain the law is one thing. That this something involves the kind of limitation to the discretion of the judge, urged by Dworkin (cf. Sects. 5.4.2 and 5.5.2), is something else.

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It is obvious that, in Dworkin’s opinion, it is the principles and the rights that curb the discretion of the judge. Can we explain how they do this without describing them as conventions? Let us assume that I am the best fencer in Sweden. I, if anyone, would then have the right to be assigned a place in the Swedish, male Olympic fencing team. The discretion of the SOK in their choice of male fencers would be limited. What delimits their discretion are the guidelines given to SOK. They are directed to appoint the fencer that, according to some standard, is the best. However, the guidelines defining the standards constitute a kind of convention. Is the notion of consensus of independent conviction able to explain such a limitation? Can such a consensus explain a trump in law? An attempt to attain conformity with some received opinion is to treat such an opinion as a convention. If, instead, some continuous agreement with the past and future sentiment is requested, an additional limitation is outlined. It is, however, not clear how to make sense of this request. The extent of the limitation is, therefore, obscure. Discerning what rights that flow from this kind of consensus is difficult and calling such rights trumps is therefore questionable. It appears that the only actual limitation to the discretion that Dworkin can invoke as trumps is based on convention. Consequently, he appears to fail in his attempt to distinguish himself from conventionalism.

5.6.3

Dworkin’s Modest Use of Objective

Dworkin mentions that there are those who say that there are, “no right answers but only different answers to hard questions of law, that insight is finally subjective, that it is only what seems right, for better or worse, to the particular judge on the day” (Dworkin 1986, p. 10). Dworkin lets a reader conclude that he, conversely, defends the existence of an objectivity concerning such matters. Dworkin argues that subjectivity leads to a contradiction, because judges, as they present their judgements, find their arguments better than, and not only other than, arguments supporting an opposite judgement (Dworkin 1986, p. 10). It is difficult to see how denials of objectivity would be threatened by this argument. Like the judge’s judgement, the judge’s opinion of his arguments for the judgement, is somewhat subjective. In a later passage in Law’s Empire, Dworkin develops his conception of objectivity: We use the language of objectivity, not to give our ordinary moral or interpretive claims a bizarre metaphysical base, but to repeat them, perhaps in a more precise way, to emphasize or qualify their content. We use that language, for example, to distinguish genuine moral (or interpretive or aesthetic) claims from mere reports of taste. … We also use the language of objectivity to distinguish between claims meant to hold only for persons with particular beliefs or connections or needs or interests (perhaps only for the speaker) and those meant to hold impersonally for everyone (Dworkin 1986, p. 81).9

9

It should be noted that Dworkin’s discussion of ‘objective’ displays obvious similarities with the semantic claims that he criticises in another context (e.g. Dworkin 1986, pp. 31–33).

5.6 Evaluation of Dworkin’s Argumentation

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The length of the standard meter bar can in this way be claimed to be both independent of taste and the same for all. But claiming that the standard meter bar objectively is a certain length is often taken to involve something more. What Dworkin is suggesting is a somewhat reduced notion of objectivity. The problem is that such a modest objectivity appears to be compatible with legal decision-making based on moral judgements i.e. a version of the legal pragmatism he opposes.

5.6.4

Dworkin’s Strange Picture of the Sceptic

According to Dworkin, decisions in law are results of constructive interpretation (cf. Sect. 5.2.1). He admits that it is possible to be sceptical with regards to such interpretation. In Law’s Empire Dworkin distinguishes two types of scepticism. He talks about “skepticism within the enterprise of interpretation, as a substantive position about the best interpretation of some practice or work of art, and skepticism outside and about that enterprise” (Dworkin 1986, p. 78). The first kind, called internal in his subsequent argument, is the kind of scepticism he finds reasonable. The other kind of scepticism, called external, is argued to be confused (Dworkin 1986, p. 85). In his article ‘Objectivity and Truth’, Dworkin makes an important addition to his discussion of scepticism: “ ‘Skepticism’ is used in different ways. I use it in the sense not of agnosticism but of rejection” (Dworkin 1996, note 1, p. 88). If it can be assumed that this choice is not limited to this passage, such a view of the sceptic, as a rejecter, can explain why he considers the external sceptic to be confused. If the sceptic about a constructive interpretation is taken to reject the interpretation, and the external sceptic bases the rejection on general arguments, general arguments about the interpretive enterprise are used to reject specific interpretations. But the general arguments are taken to be applicable only if they also deal with the specific interpretations. In Dworkin’s opinion, the general side of the arguments is therefore redundant. In my opinion, it is Dworkin that makes the external scepticism confusing by assuming it to be a rejection. If it is instead allowed to be agnostic regarding the suggested interpretation, the problem would disappear. The sceptic might very well lack the conviction that the right thing is interpreted. It might even be doubted that the discussed activity can properly be called an interpretation.

5.6.5

Justification of What?

Section 5.3 above recounted Dworkin’s criticism of theories that ignore disagreement regarding the grounds of law. Dworkin called such a disagreement theoretical. Ignoring it was argued to lead to a “plain-fact view of law”. What then, is Dworkin’s opinion about how far this disagreement reaches?

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If there is a disagreement within the adjudicative practice about the grounds of law, it is reasonable to demand that a theory of law takes this disagreement into account. But in my opinion, the disagreement goes beyond this. There appears to be a disagreement regarding what the interpretation is. Law as integrity claims that interpretation is, and suggests that it should be, part of a justification of the legal practice as a whole (Dworkin 1986, p. 245). This legal practice is something we are assumed to have access to. Legal interpretations are depicted as attempts to justify this accessible whole. This focus on a justificatory ambition regarding the law can be compared to the ambition to describe what the law, or legal practice, is. Instead of assuming that legal practice can be described as the workings of a system of rules, or something similar, Dworkin suggests legal decisions are part of a continuous justification of legal practice.10 What then, is this legal practice that must be justified? Dworkin, tells us that it is “the network of political structures and decisions” that need such justification (Dworkin 1986, p. 245). But what is that? Building on Dworkin’s discussion, we can describe it as the thing we make ourselves a picture of at the preinterpretive stage. This thing is in turn a result of previous justifications (Dworkin 1986, pp. 65–6 and 229). But such a relation to previous justifications tells us little of what it is. That we need to consider a certain statute to be part of a system and interpret the statute with regard to the arguments that can be given in support of the system, tells us nothing about why that particular statute needed to be considered. The discussion concerning the stages of interpretation and the justificatory ambition both seem to assume that we know what the legal practice or the network of political structures and decisions is. This tells us something about Dworkin’s approach to the law. He mentions a theoretical disagreement that he accuses the supporters of the “plain fact view of law” of disregarding. At the same time, Dworkin does not consider the possibility that we might disagree about what it is we need to justify11 or about how appropriate it is to see adjudication as an attempt to justify something given. It therefore seems that Dworkin ignores a kind of disagreement and that he only propounds a more sophisticated version of a “plain-fact view of law”.

5.7

Conclusion

As has been shown, Dworkin’s constructive interpretation in his vision of law as integrity is assumed to explain how the law can command, even “when the law books are silent” (Dworkin 1986, p. vii). Dworkin imagines that the discretion involved in the process of reaching an interpretation is severely limited.

10

It is likely that a supporter of the ‘plain fact view’ aims to explain and describe the things that Dworkin takes for granted and calls ‘preinterpretive’. It is, therefore, uncertain to what extent such a supporter and Dworkin disagree. 11 Cf. the special status given to principles in contrast to policies.

References

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But the alleged limits to discretion are dependent on some controversial assumptions. The judicial task is assumed to be justificatory. The matter to be interpreted and justified is assumed to be given. It is assumed that the justification is a matter of providing a set of principles that can be discerned within the network of political structures and decisions. Finally, it is assumed that the treatment of law dictated by adherence to these principles is a matter of a consensus of independent conviction as opposed to a consensus of convention. These assumptions constitute an advanced conception of law. It can, however, not reasonably be held to be self-evident, or the only alternative. It is not more convincing than the assumptions behind it. Without substantial support for the assumptions, we must continue to ask if the law does command, and if so, how it does so. The lack of sufficient support for his assumptions puts Dworkin’s whole project in doubt. It might be questioned whether his overall agenda should be redefined. Judging from his discussion of policies, we might suspect that, rather than attempting to explain how the law can command, he is trying to disbar utilitarian considerations from legal practice. His whole project then comes across as a rhetorical manoeuvre. Instead of a straight-forward discussion of utilitarianism, he presents a conception of law that is supposed to support his view of utilitarian considerations in the law. But the elusive conception of law that he presents has unclear implications for considerations of morality and justice.

References Dworkin, R. (1963). Judicial discretion. The Journal of Philosophy, 60. Dworkin, R. (1986). Law’s empire. Cambridge Mass.: Belknap Press. Dworkin, R. (1996). Objectivity and truth. Philosophy and Public Affairs 25:2. Dworkin, R. (1977). Taking rights seriously. London: Duckworth. Hart, H. L. A. (1994). The concept of law. Oxford: Clarendon Press. Kant, I. (1964). Groundwork of the metaphysic of morals. New York: Harper & Row (with extra page reference to the 2nd German edition.)

Chapter 6

Common Approaches in Reasoning

Abstract Chapter 6 introduces the more general questions of the second part of the book. In preparation for a distinction between two alternative approaches in reasoning, some comments regarding conceptions and reality are made. The chapters of part one commented on and criticised theories of law. It will now be suggested that common approaches in reasoning can be discerned. The previous criticism will be generalized as a common approach in the theories discussed is pointed out and questioned. In preparation for the discussion to come, some comments about conceptions will first be made. Without any further ambition to determine what a conception is, two alternative ways to relate to our conceptions can be presented. With the first alternative, the relation between a conception and an alleged reality is considered important. With the second alternative, reality in itself is not imagined to be something we can relate to. That we consider the earth to circle around the sun and not vice versa does not have to imply that this celestial relation is taken to be part of an objective reality. With the second alternative it is reasonable to stress the reasons for conceiving the earth to circle around the sun. These reasons can be held to be decisive when we try to agree. With the second alternative, claims about objective truth (conceived as correspondence with reality) can be deemed neither necessary nor productive. These two alternative ways to view conceptions, and some ideas related to them, will be investigated in the following two chapters in order to distinguish two approaches in reasoning.

R. Edvinsson, The Quest for the Description of the Law, © Springer-Verlag Berlin Heidelberg 2009

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Chapter 7

The Modernist Approach

Abstract Chapter 7 treats the first of the two mentioned approaches. For lack of better names it is called modernist. This approach is defined by four suggested distinguishing traits. (1) The idea of truth as an important relation to reality. (2) The idea of reality as something perceptible. (3) The assumption that we should further our insight into reality by the analysis of certainties. (4) The idea of sentences as owners of meaning and truth. Signs of this approach are then traced in history.

7.1

Distinguishing Traits

For lack of a better term, I will call the first approach modernist.1 In order to explicate what is meant by this, some common ideas that are taken to be the distinguishing traits of such an approach will be stated. Reality and the relation between our conceptions and reality play a central role in this undertaking. The modernist approach comprises the ambition to describe reality correctly. It is considered reasonable to talk about reality, about our conception of reality and about the relationship between the two. Conceptions of reality are taken to be true when they correspond to reality. Such truth is furthermore held to be important. In this the idea of truth as an important relation to reality can be discerned. This idea will be offered as a first distinguishing trait.

1 There is no substantial agreement regarding the literal meaning of the terms modernist and postmodernist. If my conclusions in the following are reasonable, this will not matter much, because an overconfidence in the importance of literal meaning is one of the things I want to question in the approach I call modernist. I considered replacing ‘modernist’ and ‘post-modernist’ with ‘analytic’ and ‘post-analytic’. But ‘analytic’ seemed even more obligating. In my use of ‘modernist’ and ‘post-modernist’ I exercise the possibility to use terms in a modified way, more suited to communicate my line of thought. This shows how language is modified and thereby becomes differentiated and somewhat personal and at least temporarily slightly private. Such modification does not necessarily make understanding more difficult.

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7 The Modernist Approach

The suggestion that we should strive to ascertain to what extent conceptions correspond to reality seems reasonable only if we can perceive reality.2 This idea of reality as something perceptible is the second distinguishing trait. With these ideas, something beyond agreement is requested. A reality independent of conceptions is the prize of the pursuit. It is often assumed that we should further our insight into reality by the analysis of certainties. This idea is the third trait held to distinguish the modernist approach. (The certainties are the part of an imagined reality assumed to already be grasped.) One of the things treated as certain, or by some method (or by assumption), amenable, so as to become certain, is the meaning of words or sentences. In combination with the third trait, this results in a search for further certainty through the application of rules of logic and language use. These rules are tools used to capture what is certain and reduce what is uncertain. Central in this search is the fourth distinguishing trait: the idea of sentences as owners of meaning and truth.

7.2 7.2.1

The Distinguishing Ideas and Classical Philosophy Introduction

To expound what is meant by these traits, they will be compared to some ideas attributed to well-known thinkers. The ambition is not to present a fair picture of what they wanted to say, or even of the prominent aspects of what they wanted to say. The aim is not to ascertain what conceptions these thinkers really had. The goal is to develop the argument concerning the alternative approaches by pointing out some ideas that can be traced to the thinkers who are mentioned.

7.2.2

Metaphysics

The philosophy that wants to answer questions about what exists, what is real, and what it is to exist, is called metaphysics. This philosophy got its name from the ancient Greek philosophers and it is hardly startling to make Aristotle a representative for it. In his Metaphysics, Aristotle seeks the truth concerning things and conditions. He suggests that we have a desire to know (Aristotle 1933, Book I, Chapter I, p. 3

2 It is possible to imagine the pursuit of truth to be valuable even without any prospect attaining truth or a proper conception of reality. But it is not obvious what else would make the pursuit valuable. This line of thought leads away from the modernist approach.

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(980a21–7)). This desire to know is what Aristotle wants to analyse. In the present study only a few of his thoughts in this area will be commented on. Having spent one book of the Metaphysics cataloguing the problems concerning the basic elements of reality, book four of the work mentioned analyses investigations about reality more directly. He reckons that there is a science that studies existence itself (Aristotle 1933, Book IV, Chapter I, p. 147 (1003a21)). This science is called the first philosophy (Aristotle 1933, Book IV, Chapter II, p. 151 (1004a2– 4)). He suggests that knowledge of such matters is not supposed to have a purpose (Aristotle 1933, Book I, Chapter I, pp. 7 (981b13–25 and 982b20–4)). It appears to be his intention to settle such matters independent of any advantage gained from reaching certainty in such matters. He appears to struggle with something assumed to be independent of him or anyone else engaging with it. Following Jonathan Lear, a process of abstraction can be summarized in Aristotle’s thought: It is the ability to turn from observations of triangles to an analysis of triangularity, leaving aside, e.g. the material in which the triangle was made, which leads to the investigation of reality (Lear 1988, p. 247). Lear characterizes Aristotle’s thinking by highlighting two ‘permeating’ thoughts: “The first is that the world is ultimately intelligible. The second is that reality forms a hierarchy: at the base is substance, which is ontologically independent, and upon which the reality of everything else depends. Aristotle’s task in Metaphysics VII is to find a candidate for substance which will satisfy both these beliefs” (Lear 1988, p. 273).3 The first of the ideas mentioned here matches the idea of reality as something perceptible. The second, paired with the task mentioned, seems to imply that we should further our insight into reality by an analysis of certainties. From the approach to substance, it can also be assumed that correspondence between the ‘substance’ of reality and our conception of that substance is deemed desirable and important.

7.2.3

Descartes

The idea that we should further our insight into reality by an analysis of certainties is even more evident in the thought of René Descartes. He chose to underline the importance of method in our thinking. The idea mentioned and the expectations imposed on our study of method can both be seen in his Rules for the Direction of the Mind. Three of the rules are of special relevance for the present study:

3 Lear explains that in Aristotle’s view, we can know that a substance is the basic foundation without knowing what that substance is. The reality of everything else depends on that substance (Lear 1988, p. 265).

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7 The Modernist Approach Rule IV “There is need of a method for finding out the truth” (Descartes 1952, p. 5).

In connection with this rule, he explains what he means by method: “[B]y a method I mean certain and simple rules, such that, if a man observe them accurately, he shall never assume what is false as true, and will never spend his mental efforts to no purpose, but will always gradually increase his knowledge and so arrive at a true understanding of all that does not surpass his powers” (Descartes 1952, p. 5). Rule III: “In the subjects we propose to investigate, our inquiries should be directed … to what we can clearly and perspicuously behold and with certainty deduce” (Descartes 1952, p. 3). Rule IX: “We ought to give the whole of our attention to the most insignificant and most easily mastered facts, and remain a long time in contemplation of them until we are accustomed to behold the truth clearly and distinctly” (Descartes 1952, p. 14).

It is thus suggested that truth is attained by doubting the uncertain and noticing what is certain and what follows from the certain. This is how we should reason. That this method leads to truth is explained for example in his Meditations on First Philosophy. The explanation runs as follows: Since reason is given to us by a god that does not want to deceive us, we are sure to reach the truth as long as we use this reason in the way dictated by the method (Descartes 1979, p. 35). The method and the conclusions about truth express an extreme optimism regarding what can be achieved based on the things of which we are certain.4 If we assume to know what 2, 4 and addition are, it can hardly be denied that 2 plus 2 equals 4. We must conclude that we also know this. How could we doubt such a conclusion? The method might thus help us spell out bring out what we know. But it can be questioned whether our knowledge has been increased as we conclude that the sum is 4. We can question how far the method can take us. Ascertaining what cannot be doubted is not necessarily the only way to develop our understanding. Finding it reasonable to support the conceptions we have by argument does not commit us to the notion that we need to prove them true in the way suggested by Descartes’ method. In fact, Descartes’ entire method seems to be in jeopardy since it is questionable if his reference to a benevolent God is proof in support of the method. If it is contended that no proof is needed, the point against Descartes and the sanctity of his method has been made.

7.2.4

Truth in Sentences

In the discussion above, the idea of sentences as owners of meaning and truth was connected to ideas about the rules of logic and language use. Such a connection can be seen for instance in Grundgesetze der Arithmetik by Gottlob Frege (Frege 1962) and in Der logische Aufbau der Welt by Rudolf Carnap (Carnap 1928). Without tracing the history of this idea further, the discussion of it and its merits is left to the next chapter. 4 To some extent Hume’s critique of the deduction of ought-claims from is-claims is an expression of an opinion opposed to Descartes in this matter. Cf. Hume (1969), p. 521.

7.4 Realism and Anti-Realism

7.3

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Ideals for Description

Adherents of different versions of the modernist approach can hardly deny that it is sometimes difficult to describe reality. It is sometimes argued that the choice between alternative descriptions should be settled by reference to some list of criteria that makes one description better that another. In this way ideals for description are specified. Specifying such criteria can be seen as an attempt to extract general truths from the things we take to be certain in order to use these general truths to draw conclusions about more uncertain matters. The similarity with Descartes’ method and to some extent Aristotles’ metaphysics is obvious. It is, however, not obvious that the ideals apply equally to all descriptions. They might be suitable only for some descriptions, regarding some matters. It then remains to be specified when the ideals are applicable. It should also be noted that there is no general agreement about what the ideals are and how they should be used. Not even when it comes to a limited area such as descriptions of the external world is there such agreement. If we, as an example, take Willard van Orman Quine’s list of ideals (cf. Quine 1970), it is seen that there is no general agreement about how the ideals should be interpreted and weighed against each other. For this reason, his ideals do not provide definite guidance in choices between alternative descriptions.

7.4

Realism and Anti-Realism

The modernist approach outlined here has a close relation to ontological realism. In short, such realism claims that there are real objects and that that their existence does not depend on our experience and knowledge of them. These objects have characteristics and are related to each other in a manner that does not depend on the concepts we use to capture them, or the language we use to describe them. Such realists often assume that their task is to make our descriptions correspond to reality.5 In the following, the merits of such realism will not be considered independently of the modernist approach. At this stage it is, however, reasonable to point out that criticism of realism does not necessarily entail adherence to what has been called anti-realism. Anti-realism is taken to be defined by the idea that reality cannot lie beyond our ability to conceive reality. This seems to be a strange metaphysical

5 This can be contrasted with Richard Rorty’s prescribed goal: “[T]he end of human activity is not rest” (Rorty here talks about the rest that follows when we have reached the truth) “but rather richer and better human activity” (Rorty 1991, p. 39). See also Rorty 1979, p. 359–60. There he develops a version of Hans-Georg Gadamer’s distinction between ‘Bildung’ and possession of truth.

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claim. That our ability to conceive limits how we conceive our world, does not need to be claimed. It is not equally obvious that anything can be said about what we cannot conceive. To claim that reality, can or cannot lie beyond what we can conceive, is however to do just that.

References Aristotle (Additional page references in parenthesis to Immanuel Bekkers compilation. Aristotelis Opera. Berlin 1831.) Aristotle (1933). Metaphysics: books I - IX. London: Heinemann. Carnap, R. (1928). Der logische Aufbau der Welt. Berlin: Weltkreis. Descartes, R. (1952). Rules for the direction of the mind. Chicago, Ill.: Encyclopaedia Britannica. Descartes (1979). Meditations on first philosophy. Indianapolis Ind.: Hackett. Frege, G. (1962). Grundgesetze der Arithmetik. Hildesheim: Olm. Hume, D. (1969). A treatise of human nature. London: Penguin Books. Lear, J. (1988). Aristotle: The desire to understand. Cambridge: Cambridge University Press. Quine, W.V.O. (1970). Web of belief. New York: Random House. Rorty, R. (1979). Philosophy and the mirror of nature. Princeton N.J.: Princeton University Press. Rorty, R. (1991). Philosophical papers I: Objectivity relativism and truth. Cambridge: Cambridge University Press.

Chapter 8

Scepticism, Relativism, Perspectivism …

Abstract In chapter 8 an alternative to the modernist approach is presented. For lack of better names, it is called a postmodernist approach. To explain this approach further, similarities between it and various philosophical thoughts in history are mentioned. In harmony with the conceptions of a postmodernist approach, a criticism of the belief that there is objective truth (called truth-objectivism) is developed. This criticism is thereafter supported by a scepticism concerning the need to define the meaning of truth.

8.1

A Postmodernist Alternative to the Modernist Approach?

As an alternative to the approach that thus far has been called modernist, I would like to present and argue for what I call a postmodernist approach. What characterizes this approach is the dissociation from all the ideas offered as distinguishing traits of the modernist approach. The choice of labels should not be attributed too great importance. I have chosen to use the words modernist and postmodernist in the hope that it leaves me room to sketch a possible rejection of and liberation from some captivating conceptions.

8.2 8.2.1

Historical Vestiges of the Approach Introduction

The criticism of the modernist approach and the ideas behind the postmodernist alternative are far from new. They can be spotted throughout philosophical history. The following versions of some philosophers’ thoughts can perhaps be disputed. They can, however, prove the point that the ideas and criticism mentioned can be traced in history. Hopefully the following review of some philosophers’ thoughts will also clarify what I mean by a postmodernist approach.

R. Edvinsson, The Quest for the Description of the Law, © Springer-Verlag Berlin Heidelberg 2009

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8 Scepticism, Relativism, Perspectivism …

Protagoras

With a charitable interpretation, a central point in philosophy with a postmodernist approach is propounded by Protagoras. Since none of his writings have been salvaged, his ideas have to be based on the works of others. Plato’s Teaitetos will serve the present purpose. In it we find the most famous claim attributed to Protagoras: “Humans are the measure of all things – of things that are, that they are, of things that are not, that they are not” (Plato 1997, p. 169).1 In Teaitetos Plato interprets Protagoras as saying that our sensory perceptions are the only things we can trust.2 This would amount to a kind of empiricism. Protagoras, however, can be taken to be more sceptical and opposed to empirical data as a foundation for reality. We can imagine that Protagoras would say that what is observed, what we perceive, is also determined by us humans. We are the creators of our categories of perception. We thus structure whatever we encounter into our empirical data. Even that some things are empirical and some are not, is in this case a judgement of which we are the ‘measure’. With this view, Protagoras would be some kind of relativist rather than an empiricist. Granted that we base our conceptions on observations, and that we make different observations; we inevitably form different conceptions. To call them equally true would, however, be incompatible with Plato’s assertions of truth and reality.3 They cannot be equally true because only one of the possible conceptions can correspond to reality. As an alternative to Plato’s notion of reality and the relevance of correspondence to it, Protagoras could propose that it is agreement that is pertinent. An extensive agreement is required for communication to be possible. Our aspiration to such an agreement is what makes us place restrictions on the conceptions of ourselves and others.4 1 Theaetetus p. 152 This so called ‘homo-mensura-proposition’ is claimed to have been the opening words in a famous book by Protagoras (Cooper suggests that the name of the book was Truth) (Plato 1997, p. 169). It has also been referred to as Aletheia, kataballontes logoi, which has been suggested to mean Truth or Toppling Arguments, cf. e.g. Jan Stolpe note 4 to Protagoras in (Plato (2001), p. 470. Cf. Audi (1999), p. 863. 2 Plato points out the personal aspect of these sensory perceptions. This can be seen for instance on page 160 of the Theaetetus where Socrates suggests that, following Protagoras, “my perception is true for me - because it is always a perception of that being which is peculiarly mine; and I am judge, as Protagoras said, of things that are, that they are, for me; and of things that are not that they are not” (Plato 1997, p. 178). 3 Cf. Theaetetus pp. 161 and 186 (Plato 1997, p. 179 and 205). Also in the Phaedo on page 65d there is said to be such a thing as the just itself and the good itself (Plato 1997, p. 57). Further on in the same dialogue Socrates plainly states: “I assume the existence of a Beautiful, itself by itself, of a Good and a Great and all the rest” Phaedo 100b (Plato 1997, p. 86). 4 If Protagoras espoused such relativism or if it even can be combined with what he embraced must be left out of the present investigation. It is, however, worth noting that another conspicuous claim by Protagoras seems to support an interpretation of him as a kind of relativist regarding the truth used in common parlance (and sceptic regarding claims of absolute truth). On page 167 of the Theaetetus, Protagoras is presented as claiming that some conceptions can be better than other but in no way truer (Plato 1997, p. 186). Such a view seems to be compatible with a more recent perspectivism (Nietzsche) or pragmatism (from James to Rorty).

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With this interpretation, the famous claim should be seen as an objection to the idea that some things can be experienced as they really are. It is suggested that we ourselves are always, to some extent, responsible for what it is we experience.

8.2.3

Socrates and Plato

Despite the notions mentioned in contrast to Protagoras, some of the ideas presented by Plato concerning conceptions, truth and knowledge, appear to be the core of what I call here a postmodernist approach in reasoning. Socrates is depicted as repeatedly denying that he has knowledge. This can be seen, for instance, in the Apology.5 It is reasonable to assume that the knowledge he wants to reach and which he holds to be the only interesting kind, requires a dialogue. It can be further assumed that the only truth he considers worthy of our pursuit is a truth established in discussion with others (in an imagined or real conversation). These assumptions are supported by the way Socrates explains how he engages in an art much like midwifery.6 It is also supported by the way in which the Apology continues after Socrates has denied that he knows anything. As in other dialogues, things agreed upon and what follows thereof are settled, step by step. In this passage, Socrates appears to have given up a search for a reality that is independent of our attempts to conceive it in favour of an ongoing search for agreement and understanding of each other. The presented picture of truth and discussion can be developed into a kind of relativity and context dependence concerning all the things we conceive and in some cases call true. Truths of this kind are temporary constructions of agreement. Since we can only express ourselves (e.g. when writing a dialog) by relating a fraction of all our conceptions at a time (cf. Sect. 8.3.3), what is conveyed to the readers is not the whole train of thought or the actual agreement among thinkers, but merely an attempted representation of parts considered to be pertinent. It should be noted that if we consider philosophy and science to be ongoing searches for agreement and understanding of each other, the relationship to the other or to the addressee is crucial not only for Socrates but for anyone engaging in

5 “[I]t is likely that neither of us knows anything worthwhile, but he thinks he knows something when he does not, whereas when I do not know, neither do I think I know; so I am likely to be wiser than he to this small extent, that I do not think I know what I do not know” (Plato 1997, p. 21, (Apology, p. 21d). Cf. e.g. page 337e of The Republic “How can someone give an answer, I said, when he doesn’t know it and doesn’t claim to know it …” (Plato 1997, p. 982). 6 Theaetetus p. 150c “I myself am barren of wisdom. The common reproach against me is that I am always asking questions of other people but never express my own views about anything, because there is no wisdom in me; and that is true enough. And the reason of it is this, that God compels me to attend the travail of others, but has forbidden me to procreate. So that I am not in any sense a wise man; I cannot claim as the child of my own soul any discovery worth the name of wisdom. But with those who associate with me it is different. At first some of them may give the impression of being ignorant and stupid; but as time goes on and our association continues, all whom God permits are seen to make progress…” (Plato 1997, p. 150).

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these disciplines. Furthermore, with the outlined idea of truth as something we can only hope to temporarily establish in dialogue with the other, truth can not be written down in any satisfying way. It remains unwritten or even esoteric.7 For the moment, what I would like to suggest is that from Socrates’ (and possibly Plato’s) views on philosophical discussions as midwifery, we can deliver; firstly a conception of reality as elusive; and secondly the suggestion that the search for a final statement of such reality can be dismissed as irrational.8

8.2.4

Nietzsche

The postmodernist approach can also be seen in more recent thought. In the works of Friedrich Nietzsche it is evident. His treatment of what he calls the ‘ascetic ideal’ in On the Genealogy of Morality is a good example. When it comes to faith in this ideal he remarks that: “it is the faith in a metaphysical value, a value as such of truth as vouched for and confirmed by that ideal alone (it stands and falls by that ideal)” (Nietzsche 1968a, p. 119). Furthermore, this ideal seems to be responsible for the belief in ‘immediate certainty’, ‘absolute knowledge’ and ‘the thing in itself’.9 This ideal is not easy to question or discard. Nietzsche’s comment to some of the so called ‘free spirits’ of his time accentuates how deeply rooted he finds this ideal. “These are very far from being free spirits: because they still believe in truth” (Nietzsche 1968a, p. 118).10 The ideal is presented as “the real catastrophe in the history of the health of the European man” (Nietzsche 1968a, p. 113)11 and

7 The interpretation of Socrates presented thus seems to be related to an esoteric reading of Plato. With a different emphasis it has sometimes been suggested that some of Plato’s teaching was not written down. In agreement with Thomas Szlezák (who refers to Hans Krämer and Karl Albert), I would say that Plato saw his dialectical method as the path to a rather stable truth (Szlezák 1999, p. 116) even if it might have remained partly unwritten in Plato’s own work. Focusing more on Socrates than on Plato, I would suggest here that with Socrates’ views on truth, the task to establish truth continues indefinitely and truth can therefore not be written down. It therefore also makes sense that Socrates himself did not attempt to write down his thoughts. For a resent esoteric interpretation of Plato, Szlezák directs the reader to Leon Robin, Paul Wilport, Hans Krämer and Konrad Gaiser (Szlezák 1999, p. 30). 8 To strengthen the case for such an interpretation, we could ask if Socrates considers truth to consist of partaking of the True and not a matter of having some other traits (cf. his reasoning that the beautiful is not beautiful because of a striking colour or a specific shape) Plato (1997), p. 86 (Phaedo p. 100). Such a view of truth is at least compatible with the suggested treatment of ‘reality’. 9 These conceptions are more clearly criticized in Nietzsche (2002) (e.g. entry 16, p. 16). 10 There is a related passage in Nietzsche (2002) (entry 34, p. 35) where Nietzsche states: “It is no more than a moral prejudice that the truth is worth more than appearance; in fact it is the world’s most poorly proven assumption.” 11 It should be noted that some Nietzsche scholars present Nietzsche as an adherent of the ascetic ideal. Cf. Maudemarie Clark’s reading of Walter Kaufman’s interpretation Clark (1990), p. 159. She relates the interpretation presented by Kaufman in Kaufman (1974) and in Kaufman’s translation and notes to On the Genealogy of Morality (Nietzsche 1968:1).

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Nietzsche suggests that “science today” is the “most recent and noble manifestation” of this ideal (Nietzsche 1968a, p. 116). As an alternative to such a belief in truth, Nietzsche advocates a conception of the world without facts where everything is the result of interpretation (Nietzsche 1968b, entry 481, p. 267). This sounds compatible with a postmodernist approach. He suggests that the world that is relevant to us is a fiction (Nietzsche 2002, entry 34, p. 34). He also suggests that even physics is only an interpretation and arrangement of the world (Nietzsche 2002, entry 14, p. 15). The need to interpret is ever present. This is made clear for instance in On the Genealogy of Morality: The whole history of a ‘thing’, an organ, a tradition can to this extent be a continuous chain of signs, continually revealing new interpretations and adaptations, the causes of which need not be connected even amongst themselves, but rather sometimes just follow and replace one another at random (Nietzsche 1968a, p. 55).

Opposed to the modernist approach where definitions are used as a means to create clarity in our representation of the world, Nietzsche’s claims that “only something which has no history can be defined” (Nietzsche 1968a, p. 57). Science threatens to keep us in a “simplified, utterly artificial, well-invented and well-falsified world” (Nietzsche 2002, entry 24, p. 25). According to Nietzsche it is our needs, our drives and their For and Against, that interpret the world (Nietzsche 1968b, entry 481, p. 267).12 The concept “contemplation without interest” is to Nietzsche a “nonconcept or absurdity”, he adds that it is an “old conceptional fairy-tale which has set up a ‘pure, will-less, painless, timeless, subject of knowledge’ ”(Nietzsche 1968a, p. 92).13 He further claims: There is only a perspective seeing, only a perspective ‘knowing’; the more affects we allow to speak about a thing, the more eyes, various eyes we are able to use for the same thing, the more complete will be our ‘concept’ of the thing, our ‘objectivity’. But to eliminate the will completely and turn off all the emotions without exception, assuming we could: well? Would that not mean to castrate the intellect? (Nietzsche 1968a, p. 92)

In The Gay Science Nietzsche suggests that our existence has a perspectivistic character. He argues that we cannot even determine how far that character extends because our mind cannot analyse itself without depending on its perspective (Nietzsche 1973, entry 374, p. 308). This acknowledgement of the importance of

12

To emphasize the use we can have of things in our environment brings Heidegger’s thoughts on the hammer to mind. Charles B. Guignon gives us the following summary: “The hammer is encountered in terms of its place in this holistic context of functionality- the ‘ready-to-hand’. In other words the being of the equipment – its ‘ontological definition’ – consists of its relations to other equipment and its actual use within the entire practical context. Seen from this standpoint, the brute, meaningless objects assumed to be basic by the metaphysical tradition – the ‘presentat-hand’ – can show up only when there is a breakdown in our ordinary dealings with things, e.g., when the hammer breaks or is missing. In this sense, the ready-to-hand is said to be more primordial than the material objects treated as basic by the natural sciences” (Audi 1999, p. 372). 13 A contrary opinion worth noting is the one presented by John Rawls: “The self is prior to the ends which are affirmed by it” (Rawls 1973, p. 560). His position has possibly changed since then cf. Rawls (1985), pp. 223–251.

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variations in perspective makes it reasonable to call Nietzsche’s position perspectivism. It concurs with the postmodernist approach in its disapproval of the ascetic ideal that is still predominant.

8.3 8.3.1

Meaning and Truth Recurrent Objections to Criticism of Truth-Objectivism

The postmodernist approach outlined above questions claims regarding an objective reality and suggests a kind of scepticism. Objective truth as a matter of how it really is, is considered a fiction or at least something out of reach. Any claim to such objectivity is therefore considered vacuous. However, most of us find good use for the distinction between what we know and what we do not know. How then should we understand claims to knowledge? What support can we offer for such claims and how can we explain what it means to know something? The ‘standard analysis’ defines knowledge as justified true belief. It is however not obvious what purpose truth serves in this context. It is hard to see how the demand for truth is reasonable. If the use of the term ‘true’ is supposed to add anything to the rest of the definition, ‘true’ needs to be a reference to something beyond justification. It needs to refer to some kind of universal or objective truth. It appears reasonable to question why we should imagine that there is such a thing. What is gained by assuming that there is such a truth? What would it mean to abstain from such a conception? If we do imagine such a thing, can we ever conclude that we have reached it? Do we not have to be sceptical about all proclamations of such a truth? Strangely enough, these questions are usually dismissed with the suggestion that any sceptical proposition is self-refuting or otherwise unreasonable. So instead of discussing the belief in the existence of objective truths and in the relevance of their objectivity, we discuss the imagined alternative. In this way, the questioning of, or the objection to, objective truth is ignored after an alternative to objective truth has been criticized. This mode of reasoning places severe demands on how the offered alternative to objective truth is conceived. If ‘scepticism’ is the name for this alternative, we must pay close attention to how we describe the sceptic. A common way to attack the sceptical alternative revolves around what the sceptic is assumed to claim regarding truth (cf. e.g. Plato 1997, p.179, Theaetetus, p.161). The attack takes the following shape: First the sceptic is asked if there is such a thing as objective truth. Then, if the answer is ‘no’, the sceptic is asked whether the answer is objectively true or not. It is argued that there is no adequate way for the sceptic to answer these questions. If the answer to the first question is ‘yes’, then she or he is not a sceptic. If the answer is ‘no’ followed by a ‘yes’, the sceptic is considered to be contradicting herself or himself. If, finally, the answers are ‘no’ and ‘no’, the answer to the first question is judged to be of no importance.

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Far from dismissing our doubts concerning objectivity, this treatment does not appear to take the so-called sceptic seriously. It seems as if no effort has been made to understand what she or he might have to say. To ask if it is objectively true that there is no objective truth, does not make sense if there is no objective truth. The proponent of objective truth, for simplicity called the truth-objectivist, ignores that the sceptic can question this question. Furthermore the sceptic can emphasise that it is the relevance of such objectivity, with regard to our deliberations on the matter, that must be questioned. So the sceptic might want to say that it is not reasonable to make any claim to objectivity itself. The truth-objectivist’s position is not improved by the suggestion that it is reasonable to accept that which is justifiable as objectively true. If we do so, it is the justification that is doing all the work; objectivity then becomes superfluous. To someone who questions the relevance of the above-mentioned objectivity it does not matter if a denial of such relevance has no claim to objective truth, or indeed can make no such claim. To admit that it would be unreasonable to claim that it is objectively true that such objectivity lacks relevance, is in no way proof of objectivity or its relevance. It should also be pointed out that there is no support for the habit (truth-objectivist or not) of dismissing any claim if it is concluded that its objective truth value cannot be established. (E.g. dismissing a denial of the relevance of objectivity because we conclude that we cannot establish the objective truth regarding the relevance of objectivity.) This habit makes sense only if we have already set out to establish what is objectively true and nothing else. The truthobjectivist would thus first need to convince us that only the search for objective truth is reasonable. This appears to be almost where we started. This might very well be just the contention that the sceptic wants to question. It must, therefore, be concluded that the so-called attack does not accomplish much. The existence and relevance of objective truth is already presumed in the questions posed to the sceptic. It is not reasonable to demand ‘yes’ or ‘no’ as the answer when the sceptic has suggested that the relevance of objectivity is uncertain. There is, in the end, no reason for the sceptic to insist that she or he speaks objective truth. How then are we to relate to the sceptic’s statements regarding truth and objectivity? Can a sceptic call them true? With an alternative use of ‘true’ there need not be a problem. The sceptic can ponder suggested truths and determine what she or he thinks of them. To judge that a proposition is true can then be intelligible as a way to indicate that one finds the proposition justified and therefore agrees with it. The use of the label ‘true’ does not have to be construed to entail anything more than a suggestion of such an agreement. Another way to attack the sceptic is to assert that with the sceptic’s alternative there is no sense in ever claiming someone or some view to be wrong. But, in the way just explained, there is a reasonable use of ‘true’ apart from declaring an alleged objective truth. In a similar way it is sensible to use ‘right’ and ‘wrong’. Like the sceptic’s assertions of truth, her or his judgement regarding right and wrong does not have to involve objective truth. In a third objection to the sceptic, it is suggested that without objective truth there is nothing to restrain what we chose to conceive. Without it we would

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supposedly be free to deem the world to be the way we like it to be. It is argued that objective truth is necessary for maintaining our distinction between the way we want things to be and the way it is reasonable to consider things to be. This third objection rests on the dubious belief that the reasonable evaluation of conceptions is possible only by comparison with objective reality. It then appears unreasonable to question the existence or the relevance of objective truth. There seems to be no place for the contention that we ourselves, to some extent, determine how we experience the world. Such a position is interpreted as saying that the world is whatever we want it to be. This is a strange deformation of the doubt presented by the sceptic. Only an extreme straw man version of scepticism would be touched by this attack. The sceptic’s point might very well be that we should stop talking about what is objective and instead see that what we strive for is the justification of our beliefs. In this endeavour it is our arguments for our beliefs that matter, not their relation to an objective reality. To abstain from invocations of reality is not to abandon having any restrictions at all on conceptions (including conceptions of conceptions). The sceptic can argue that the undeniable problem of objective reality never unveiling itself in an undisputable way makes claims concerning such reality dubious, and leaves them in need of argument. The sceptic can then conclude that it is our attempts to justify that determine the restrictions on what it is reasonable to believe. (It should be obvious that the faith that is blind to arguments of justification is unreasonable also when it appears as a faith in something claimed to be objectively true.) Mocking versions of this third objection might recommend the sceptic to jump from a fourth floor balcony and find out just how objective gravity and the ground are. The ignorance shown in such suggestions proves them to be ridiculous rather than offensive. A similar misconception holds that we could not trust our conceptions without support from objective reality. But what kind of support is given by objective reality itself? Here, as in the third objection, objective reality is assumed to be discernible. Arguments aimed at justification are held to be important only as a means to revealing the fantastic objective truth. Another objection that can be encountered holds that all investigation and discussion would make no sense and would be pointless without the existence of objective truth. This seems to be a doppelganger of the third objection. Here we find the same dubious belief that reasonable evaluation of conceptions is possible only by comparison with objective reality. Only an investigation concerning objective reality is considered to be a reasonable investigation. If the sceptic can show how conceptions can be evaluated in a different way, the sceptic has also shown how investigation and discussion make sense for her or him. In a similar way, the third objection is sometimes reformulated in terms of value. It is thus sometimes claimed that without objective truths about values, it no longer makes sense to argue about them. It is assumed that we would be without any restrictions regarding what we claim to be a value. But here again we find a strange reliance on objective truth. Why would the appraisal of values be possible only by comparison to objective truths about values? Against this reincarnation of the third objection we can also rejoin that in situations where we ponder and discuss values, it seems unreasonable to invoke the objectivity of any value. We seem to have no

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access to the objectivity mentioned by the truth-objectivist. What is really valuable seems always to be questionable. To be sure, we mould our conceptions about values (and other things) by comparisons with other conceptions. It is also clear that what we agree upon can support things connected to this agreement. But the claim itself that a certain value is objective has no support to add to any argument concerning value. Scepticism does not make our judgements on values trivial. On the contrary, it gives us a better understanding of how such judgements must be viewed to make sense. We need to see their dependence on context and their directedness: They are stated by someone to someone. When the critic of scepticism has picked up momentum, more direct accusations are sometimes presented. Based on something like the last two objections, the sceptic is said to be irresponsible, since her view leads us away from the true and the valuable. But for this accusation to make sense the previous objections need to be reasonable. In the response given to the objections to scepticism, the possibility to evaluate different conceptions is crucial. It was assumed above that we have reasons for choosing some conceptions over alternative ones. To make this version of scepticism more clear, this needs to be explained. As a first step, it can be pointed out that it does not seem controversial to claim that we seek coherence. If we are at all interested in any kind of understanding, it seems necessary to strive for some kind of coherence among our beliefs. It can even be argued that a belief is only intelligible as an attempt to make sense of a system of conceptions. If we furthermore wish to communicate, we need shared conceptions. Trying to establish coherence and such mutual conceptions entails placing restrictions on what we chose to conceive. A relativist or subjectivist who denies any such ambition would perhaps be refuted by the previous objections. However, the ambition appears obvious, and it is reasonable to suggest that we take it for granted. We are interested in understanding each other and in reaching agreement. Having this ambition, we are not satisfied to conclude that we are of one opinion and others are of other opinions. We try to reach agreement by formulating arguments for and against, and by then making the choice of conceptions we want to defend and recommend to others. (This harmonizes with Hans-Georg Gadamer’s description of understanding: “to understand means to come to an understanding with each other” (Gadamer 2003, p. 180)) Indeed it seems reasonable to deny that we can reach for anything more than such an agreement. To quote Richard Rorty: “What we cannot do is to rise above all human communities, actual and possible. We cannot find a skyhook which lifts us out of mere coherence – mere agreement – to something like ‘correspondence with reality as it is in itself’” (Rorty 1991, p. 38). With this outlook, objective truth appears to be a strange and even misleading conception. The reality to which it refers is not within our reach, or at least beyond the reach of certainty. The claim to such objective truth therefore seems preposterous. (This also includes claims to objective truth regarding objective truth.) It appears reasonable to question how the objective truth regarding some matter is relevant to our deliberations concerning the matter. We have seen that such questioning need not be absurd. Even a sceptic can demand that we must be prepared to

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reassess, argue for and modify our conceptions. There is, in other words, a moderate social kind of scepticism. To ignore this version of scepticism is unreasonable and to do so without considering what it puts in question seems unfair.

8.3.2

Dennis Patterson’s Objection to Subjectivism

According to my colleague Dennis Patterson (Patterson 2001, pp. 339–340), the notion that it is reasonable to treat understanding as something that always depends on interpretation, is refuted by an argument from Wittgenstein’s Philosophical Investigations: ‘But how can a rule shew me what I have to do at this point? Whatever I do is, on some interpretation, in accord with the rule.’ – That is not what we ought to say, but rather: any interpretation, still hangs in the air along with what it interprets, and cannot give it any support. Interpretations by themselves do not determine meaning (Wittgenstein 2001, p. 68e).14

If I understand him correctly, Patterson takes Wittgenstein to say: If understanding of a statement or sign was a matter of suggesting an interpretation, the interpretation would itself be in need of interpretation. This is assumed to result in infinite regress (Patterson 2001, p. 339). But this problem seems to emerge only if interpretation is aimed at ascertaining some objective meaning, and we thus believe that we can understand statements and signs in more than an intersubjective sense; only if understanding of a sign is seen as a question regarding what the sign ‘really’ means in itself, or to its user. We are then asking for the sign’s relation to the real world or to the real meaning of the users. If, instead, understanding is treated as a matter of limited mutual understanding reached together with somebody, we do not have to be bothered by the ever present possibility to reach for further understanding. That possibility is only natural. Why, then, would a sceptical subjectivist claim that the interpretations themselves determine some kind of objective meaning? It is more reasonable for such subjectivists to denounce all attempts to ascertain what something means regardless of what we assume to be its context. Interpretation certainly does not have to be the investigation of literal meaning free from contextual influence. The arguments supporting a particular interpretation makes sure that the chosen interpretation does not hang in the air. It is only in relation to an envisioned objective reality (here suggested to be fruitless) that it hangs in the air. 14

This is G.E.M Anscombe’s translation of § 198: ‘Aber wie kann mich eine Regel lehren, was ich an dieser Stelle zu tun habe? Was immer ich tue, ist doch durch irgendeine Deutung mit der Regel zu vereinbaren.’ – Nein, so sollte es nicht heiβen. Sondern so: Jede Deutung hängt, mitsamt dem Gedeuteten, in der Luft; sie kann ihm nicht als Stütze dienen. Die Deutungen allein bestimmen die Bedeutung nicht (Wittgenstein 2001, p. 68).

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In this discussion of subjectivism Patterson also finds it appropriate to mention what Robert Brandom says about understanding language: “Linguistic understanding depends on interpretation … only in extraordinary situations – where different languages are involved, or where ordinary communication has broken down” (Brandom 1994, pp. 508–509). It is thus suggested that this understanding rests on interpretation only in special cases. This is far from self-evident. On the contrary, it seems to be in dire need of explanation. It appears to rest on ideas concerning what interpretation and understanding are. To be sure, it is only in extraordinary situations that it is obvious that interpretation is needed. But this does not entail that no interpretation is needed in more common cases of understanding. That we hold words and expressions to carry meaning, is in a similar way only obvious in the exceptional cases where we are forced to wonder and immediate communication has broken down. It does however seem strange to suppose that words and expressions therefore only carry meaning in these cases.

8.3.3

Coherence, the Sum of Conceptions and the Particularity of Linguistic Formulations

One matter that appears to be always relevant in our choices of conceptions, a matter that repeatedly is used as the basis for arguments in our attempts to reach agreement, is coherence. We want our ideas to harmonize. Guided by this ideal we need not build our knowledge from the bottom up starting with foundations determined to be indisputable. Each conception can be seen as an inseparable part of a system of conceptions. The assessment of a conception can be seen as an assessment of the whole system of conceptions connected to it.15 Such a system of conceptions constitutes what we could call a sum of conceptions.16 How then are we to understand an expressed sentence? What does it mean? How do we determine what it means? Here again coherence is important. If a repudiation of foundationalism is extended to include linguistic meaning, it no longer appears reasonable to try to establish the literal meaning of words or sentences once and for all. Instead they must be seen as not having any meaning in themselves. They only serve as conveyors of meaning in a given system of conceptions. What a word or a sentence can be suggested to mean is determined by the system of words and conceptions in which it is placed.17

15 Cf. the coherentism of W.V.O. Quine presented, for instance, in ‘Two Dogmas of Empiricism’ (Quine 1951). 16 Such a sum of conception resembles the ‘Weltanschauung’ that G.W.F. Hegel discusses in his Phänomenologie des Geistes (Hegel 1952, pp. 424–426). 17 Cf. Douglas Litowitz who suggests that: “[T]he word itself can be seen as the situs of a power struggle, a contested terrain” (Litowitz 1997, p. 18).

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Why, then, does it seem reasonable to say that some word or sentence has a certain meaning in itself? It could be argued that this is a result of some far-reaching agreement. When the bulk of our conceptions can be taken for granted we seem able to determine the meaning of smaller parts of the sum of conceptions. But what would this smaller part be? We cannot determine its meaning in isolation from the meaning of our other conceptions. Therefore it also seems absurd to claim that it has meaning in itself. Words and sentences have meaning only as parts of a sum of conceptions. The context dependent parts of this conception cannot be lifted out of their context without loosing their meaning. In this case it is somewhat misleading to speak of a literal meaning. (That our extensive agreement sometimes makes such discussions of the ‘literal’ meaning of words useful is a different matter.) It is, however, not possible to express a sum of conceptions in anything like a sentence. We can only express a small part at a time. So while what somebody means is some sum of her conceptions and aspirations, such a meaning is only faintly attainable by discerning its apparent parts. We formulate one part at a time. We work with such parts in a flow of formulations. In this work, we are required to deal with the parts of the sum of conceptions as if they were independent conceptions or goals. In our attempt to grasp the vast whole, we use a method that is inevitably crude, since only a small part at a time can be treated. The sum of conceptions is elusive and it seems as if our attempts to grasp the whole must be adjusted indefinitely. The difficulties we face, however, should not be exaggerated. As was mentioned earlier, there is an extensive agreement, and it often enables us to work together on smaller parts of our sum of conceptions.

8.3.4

Language and Truth

One might wonder what conception of truth is available to someone with the postmodernist approach. Before addressing this question some remarks regarding language and truth need to be made. It seems difficult, superfluous and even misleading to have a general theory, or to give a definition of language and truth. Following Richard Rorty it can be claimed that truth “is not the sort of thing that one should expect to have a philosophically interesting theory about” (Rorty 1982, pp. xiii–xiv).18 Like Gadamer, we can suggest that we should see language as “the universal medium in which understanding occurs” (Gadamer 2003, p. 389). It can be further suggested that it is through the use of language that we understand each other through the “fusion of horizons” (Gadamer 2003, pp. 306–308, 378). Gadamer tells us: “Every conversation presupposes a common language, or better, creates a common language” (Gadamer 2003, p. 378) 18

Gadamer expresses similar thoughts regarding language cf. e.g. Gadamer (2003), p. 378.

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This common language can be described as the interface between the sums of conceptions of the participants in the communication. It is a tool for its users. They can use it to formulate a conception that they suggest should be held to be true in the sense that it can be taken for granted in further reasoning. Truth, in this way, becomes a matter of agreement, collectively created and collectively available. It is through an ongoing discussion that we establish our agreement and make further agreement possible. This can be suggested to be a reasonable way to use ‘truth’. To say that this is what truth truly is, however, would be strange.

8.3.5

Truth as Correspondence

It is a common idea that reality determines truth. This idea comes in different versions and some are even consistent with the criticism of the modernist approach and its idea of truth as an important relation to reality. The pragmatist, William James, agrees that truth in a sense can be seen as a question of agreeing with reality: “Truth, as any dictionary will tell you, is a property of certain of our ideas. It means their ‘agreement’… with reality” (James 1975, p. 96). To explain the necessary form of agreement with reality he further says: To copy a reality is, indeed, one very important way of agreeing with it, but it is far from being essential. The essential thing is the process of being guided. Any idea that helps us to deal, whether practically or intellectually, with either the reality or its belongings, that doesn’t entangle our progress in frustrations, that fits, in fact, and adapts our life to the reality’s whole setting, will agree sufficiently to meet the requirement (James 1975, p. 102).

We discern in this how emphasis is placed on practical aspects, like the way truth helps us deal with reality. This is offered as the essential aspect, not the extent to which reality is copied. It is thus not a conception’s relation to reality that is crucial but its practical implications; how it helps us. The relation between truth and reality in the correspondence theory of truth presented by Hilary Putnam in the following passage is more closely related to the modernist approach. However puzzling the nature of the ‘correspondence’ may be, the naturalness of the idea is undeniable. There is a world out there; and what we say or think is ‘true’ when it gets it the way it is and ‘false’ when it doesn’t correspond to the way it is (Putnam 1978, p. 1).

Richard Rorty sees a strong objection to such notions of truth as correspondence in James’ thinking. James is held to agree with Donald Davidson that truth is not a relation between something linguistic and something non-linguistic (Rorty 1991, p. 126) (cf. Davidson 2001). Such an interpretation of James is supported by his short description of truth in the following statement: “ ‘The true’, to put it very briefly, is only the expedient in the way of our thinking” (James 1975, p. 106). In a comment to Thomas Nagel, Rorty presents a so-called anti-representational alternative to the correspondence theory of truth:

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8.3.6

The Truth about Truth

What then, can be said about the definition of what it is to be true? Is it reasonable to define truth? A resent attempt to grasp the matter of truth is presented by W.V.O. Quine in his book Pursuit of Truth. Interestingly enough, towards the end he arrives at a junction where he sees fit to chose between alternative ways to understand truth. Quine chooses between what he sees as the only two alternatives. It is either the meaning we express in a sentence that can be true or not, or the sentences themselves can have this property. It is understandable that Quine does not assume that the matter is decided by any existing literal meaning of ‘truth’. There seems to be no self-evident definition of truth and it can hardly be observed what truth means. Nor can it be deduced from other truths. But how is the matter to be decided? What entities can be true? Quine tries to establish what reasons can be given for the different alternatives. He finds that the meanings of sentences are disqualified as vehicles of truth due to the indeterminacy of translations. He suggests instead that it is the sentences themselves that can be true. Quine’s choice is not entirely unreasonable. The meaning of a sentence is hard to ascertain and communicate, while sentences themselves as sequences of alphabetical letters are more concrete. It appears as if Quine therefore has decided that it should be something definite and accessible that has truth value. It can be assumed that he thereby attempts to make truth as unambiguous and accessible as possible. This decision is clearly crucial for Quine’s view of truth. For this reason, it is unfortunate that Quine does not explain why he makes this decision. It is also reasonable to request that Quine explain what is gained by assuming that ‘truth’ has or should have one meaning. It appears as if his choice of view of truth is meant to settle what truth means or should mean literally. He seems to assume that there is no alternative to treating truth this way, or at least that no such alternative needs to be considered. How can such an assumption be defended? The strongest argument for such an assumption is probably the added importance that his treatment of and view of truth gives to formal logic. In an attempt to make the most of truth and logic, it is rational that Quine makes the above-mentioned decision that truths should be seen as a property of something definite and accessible. In the name of the usefulness of such logic, it is also possible to leave out alternative approaches to truth as, presumably, less useful.

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To evaluate this position it is necessary to examine what can be seen as the use of Quine’s choice to attribute truth to sentences themselves. What are the consequences of calling a sentence itself true? Does such truth concern us? Can the truth of one sentence have any influence on the truth of other sentences? If Quine wants to suggest that it is possible to construct different systems of varying coherence out of the collection of sentences that can be true, he needs to explain how sentences are related to each other. If we have no means of telling how the sentences that are held to be true are related to each other, we cannot speak of coherence. So by attributing truth value to the sentences, but not their meaning, makes truth a property of something that is well defined but in need of interpretation if it is supposed to be useful, since only some kind of interpreted meaning of sentences can be combined in coherent systems. To be useful in the sense described above it appears that Quine has to look to sentences that are interpreted in some manner. His alternative is thereby no longer altogether different from the alternative he rejects. This can be seen in his discussion regarding correspondence theory and the disquotation of ‘X’ in ‘ “X” is true if and only if X’. Towards the end of § 33 he suggests that a sentence is true if there is a correspondence between what is expressed by the sentence and reality. By a ‘semantic ascent’ the truth of a sentence is thus depicted as a correspondence between the content or meaning of a sentence (what the sentence expresses) and reality. Discerning the truth of a sentence, then, is a matter of discerning both what the sentence expresses and that this corresponds to reality. To avoid the above-mentioned difficulties regarding the indeterminacy of translations, Quine must assume that there is no such indeterminacy involved in discerning what sentences express. It appears as if he assumes the existence of a kind of limited literal meaning that decides what is said and relates the sentences to each other. (We can guess that this is done by means of grammatical and syntactical rules. For the sake of argument, the difficulties of interpretation and translation within such a system are disregarded.) If we assume the existence of such a limited literal meaning, we can create a system of the sentences in our language and see how the truth of some of them affects others. With ‘truth’ having one meaning, and sentences being the things that can be true, formal logic is the instrument for modifying old or reaching new truths. It is assumed that we accept some sentences to be true. It is further assumed that we are constrained by some rules of literal meaning, sentence construction and logic. (It is assumed that we accept these rules as well.) Given such truths, rules and assumptions, we have a method that enables us to deduce further truths. It is supposed that what follows from such rules and the sentences held to be true are equally true sentences, and that they outweigh what we on other grounds would suggest to be true. This weight and such use of ‘truth’ can however be questioned. This method described is not necessarily the only way to arrive at what should be held to be true. Furthermore, this way is unreliable since what is deduced in this manner is not always accepted. With the help of rules of logic and language a suggested ‘further truth’ of the kind mentioned can be formulated into a sentence (that we supposedly understand). There is, however, no guarantee that this suggested

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truth is justified. The literal and logical relationship to our previous, accepted truth strongly suggests this ‘further truth’ but it does not make it necessary. It is also possible that the previous truths need to be modified by new distinctions. In this way the ongoing evolution of our concepts makes our previous truth malleable and the method mentioned unreliable. Regarding the meaning of some words, our agreement is so strong that it seems final. Talk of a literal meaning then seems reasonable. But in such cases it is not clear that any further truth is reached by logical deduction. We can be assumed to agree on what ‘2’, ‘4’ and ‘addition’ mean. It is, however, not clear that any further truth is reached when we conclude that 2 plus 2 is 4. Furthermore, when it comes to the main part of our living language, such agreement is often hard to find. If it is necessary to stop and resolve what agreement there is regarding a word’s meaning, then we are doing something more than assuming literal meaning. While there are times when we have sufficient agreement to apply logic without a discussion regarding the meaning of words or sentences, it is, however, not appropriate to make this the exclusive model for how to develop our conceptions. That we sometimes seem able to discern meaning from the very words and sentences by themselves, does not necessarily indicate more than that these words and sentences give clues to the meaning and that these clues are sometimes sufficient. In the absence of convincing arguments for Quine’s choice and assumptions, we do not have to assume that it is sentences themselves that are true or not. Nor do we have to assume that we only have the alternatives pondered by Quine. Since a definition of truth does not necessarily help efforts to ascertain further truths, we can refrain from defining truth in any final way. It can be suggested that the meaning of ‘truth’ depends on context. As indicated, Quine’s alternative enables us to see truth as something that is deduced from the sentences we hold to be true. With literal meaning and logic, we have a method to develop what we should hold to be true. With this approach, we only have to decide what truths we should start with. This can be recognized as the philosophical question that captivated philosophers such as Rene Descartes. If we, like Descartes, look for the answer in human reason, we are called rationalists. If we, instead, depend on our sensory perceptions we are called empiricists. There is something appealing about both these positions. But this appeal does not support the above-mentioned method of applying logic and literal meaning to the sentences held to be true. To question this method does not entail questioning our intellect or our senses. Furthermore, questioning the sanctity of the method does not preclude striving to extend what we can take for granted. What we need to question is the certainty of the method and its position as the only worthy way to ascertain truth. To outline an alternative approach to truth, it can be noted that holding something to be true can be seen as a way to express our position on the matter. We can thereby indicate that we understand what we hold to be true, and we can be seen as expressing our support of it. We do not necessarily have any further claims. When we look for what our fellow thinkers mean (instead of looking for some literal meaning), understanding must be seen as an understanding of each other (a consensus).

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The meaning of the words and sentences is decided in our attempts to understand each other. Logic, grammar books and dictionaries are only some of the tools in this endeavour. They are not railroad tracks to a developed understanding of ‘reality’. The difficulty in grasping such meaning can be seen within our own thinking. If we acknowledge that words and sentences do not infallibly capture what we mean, there is no logic that can work as an independent apparatus for deciding the full extent of what we mean. In these cases, where we cannot properly formulate what we mean in the language we try to use, we see the provisional nature of our statements. What we mean and what we and others must be taken to mean, therefore remains beyond the grasp of logical systems. With our sights set on literal meaning and logic, we are not listening or reading charitably. It becomes hard to understand, think or formulate anything new, since all attempts to modify the system of logic and literal meaning are in conflict with and will be rejected by the system. It can be suggested that only actual utterances of words and sentences have meaning. This is as reasonable for ‘truth’ as for other words and sentences. They have meaning in a communicative context where somebody uses language to communicate thoughts and opinions. With this approach, calling something true can be a way to express that we understand and support the thing in question. For some people in some situations, understanding is a matter of seeing the logical and literal content. They are likely to hold that support should only be given to contentions that prove to be logically and literally true. But what about other situations with other people? If we think that there are cases when logic and literal content get us nowhere or even lead us astray, we must acknowledge ways to support claims to truth other than the above-mentioned method. This insight suggests a generous approach to the meaning of truth. It must be questioned why settling any literal meaning of truth should be a reasonable step in our investigations. Instead of setting out to describe the truth about truth, we must ask why we would want to define truth. Why should there be such a truth about truth?

8.3.7

Simplicity of Description

Simplicity of description is a trait that often is presented as desirable (cf. Quine 1970 where it is presented as an explicit ideal). This appears natural, and to the theorist with a modernist approach it might even seem fundamental. For somebody who looks for the factual matter that supposedly makes a statement true, it is desirable to state this matter as clearly and simply as possible. It is imagined that different descriptions of the factual matter compete about being the most reasonable to adopt and to accept to be true. To determine which description is more reasonable, however, is made severely more difficult by the existence of further ideals in addition to simplicity. What really complicates things for the theorist with a modernist approach, however, is the possibility to consider description inappropriate for some of the things that he attempts to describe. It can for instance be argued that focusing on the

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description of the things we conceive makes it difficult or impossible to conceive things differently.

8.3.8

The Anti-Formalism of Stanley Fish

The postmodernist position outlined above resembles a contention presented by Stanley Fish. The present section will try to point out similarities between the two by recapturing the position he presents as an alternative to formalism. In chapter ten below there will be reason to consider his discussion of law. In connection with an analysis of his thoughts on that topic, some of his thoughts on interpretation and meaning will then be related. For some time, Fish has been trying to explain the interpretation, meaning and understanding of a text. His position has been modified over time but he has consistently objected to the idea that the meaning of the text is a formal matter based on the meaning of the words. This can be seen for instance in the introductory chapter of Doing What Comes Naturally, where he asserts that “[T]he meaning of a sentence is not a function of the meaning of its constituent parts” (Fish 1989, p. 4, emphasis omitted). His position, or rather the position he criticizes, is expounded when he lists beliefs that supposedly follow from, or are taken for granted by the formalism he rejects: A formalist believes that words have clear meanings, and in order to believe that (or because he believes that) he must also believe (1) that minds see those clear meanings clearly; (2) that clarity is a condition that persists through changes in context; (3) that nothing in the self interferes with the perception of clarity, or, that if it does, it can be controlled by something else in the mind; (4) that meanings are a property of language; (5) that language is an abstract system that is prior to any occasion of use; (6) that occasions of use are underwritten by that system; (7) that the meanings words have in that system (as opposed to meanings they acquire in situations) are or should be the basis of ‘general’ discourses like the law; (8) that because they are general rather than local, such discourses can serve (in the form of rules or statutes) as constraints on interpretive desires; (9) that interpretive desires must (and can) be set aside when there is serious public business afoot (Fish 1989, p. 6).

Fish rejects all this. The central repudiation of literal meaning is evident and it is also clarified in the same discussion: “[T]here is no such thing as literal meaning, if by literal meaning one means a meaning that is perspicuous no matter what the context and no matter what is in the speaker’s or hearer’s mind” (Fish 1989, p. 4). Fish also emphasizes the importance of context: “[S]entences emerge only in situations, and within those situations, the normative meaning of an utterance will always be obvious or at least accessible” (Fish 1980, p. 307). He states that “it is impossible even to think of a sentence independently of a context, and when we are asked to consider a sentence for which no context has been specified, we will automatically hear it in the context in which it has been most often encountered” (Fish 1980, p. 310).

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The context in which we state or encounter a sentence matters in virtue of ‘interpretive assumptions’ regarding, for instance, purpose and goal. As we encounter an utterance such assumptions precede the hearing of what is heard. [C]ommunication occurs within situations and … to be in a situation is already to be in possession of (or to be possessed by) a structure of assumptions, of practises understood to be relevant in relation to purposes and goals that are already in place; and it is within the assumption of these purposes and goals that any utterance is immediately heard (Fish 1980, p. 318, emphasis omitted).

As a reader encounters a text, there is no formal pattern of the text independent of the reader’s experience (Fish 1980, p. 12). The reader is never without interpretive assumptions. Fish focuses on meaning and intention: [T]he act of reading itself is at once the asking and the answering of the question, ‘What is it that is meant by these words?,’ a question asked not in a vacuum, but in the context of an already in place understanding of the various things someone writing a novel or a decision (or anything else) might mean (i.e., intend) (Fish 1982, p. 563).

Also, as we state a sentence, words are, in the same way as common tools, instruments for a purpose. For this reason there can be no literal meaning. “One cannot understand an utterance without at the same time hearing or reading it as the utterance of someone with more or less specific concerns, interests and desires, someone with an intention.” (Fish 1982, p. 564 emphasis omitted).19 According to Fish, there is no first stage for hearing (or reading) followed by a second stage of interpretation (Fish 1980, p. 310). The assumptions are at work from the beginning of the encounter. In his view “the identification of context and the making of sense occur simultaneously” (Fish 1980, p. 313, parentheses omitted). The influence of context is thus fundamental. In Fish’s own words: “To be, as I have put it, ‘deeply inside’ a context is to be already and always thinking (and perceiving) with and within the norms, standards, definitions, routines, and understood goals that both define and are defined by that context” (Fish 1984, p. 1332). As a consequence of this view, context is considered to decide if a statement is ambiguous or not. Such a ‘condition’ is therefore not linguistic or semantic (Fish 1984, p. 1335). Fish explains: [A] sentence does not ask to be read in a particular way because it is a particular kind of sentence; rather, it is only in particular sets of circumstances that sentences are encountered at all, and the properties that sentences display are always a function of those circumstances. Since those circumstances (the conditions within which hearing and reading occur) can change, the properties that sentences display can also change; and it follows that when there is a disagreement about the shape or meaning of a sentence, it is a disagreement between persons who are reading or hearing (and therefore constituting) it according to the assumptions of different circumstances (Fish 1984, p. 1335).

So we understand that, according to Fish, there is only contextual meaning. He further imagines that this meaning unites interpreters in groups. Persons that have 19

Fish’s claims here display much similarity to Nietzsche’s previously mentioned thoughts. Cf. Sect. 8.2.4!

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some relevant interpretive assumptions in common are considered to belong to the same ‘Interpretive community’20: [M]eanings are the property neither of fixed and stable texts nor of free and independent readers but of interpretive communities that are responsible both for the shape of a reader’s activities and for the texts those activities produce (Fish 1980, p. 322).21

Oddly enough, Fish seems to say that meaning in some communities can be pinpointed by our knowledge of the interpretive assumptions in that community. Against this it might be argued that such assumptions, common to the community, are not accessible in a way that enables us to ascertain meaning in such a way. Inversely we can only delineate communities to the extent that we understand (are familiar with the meaning of) the members of the community. Chapter ten will address more thoroughly this oddity in Fish’s reasoning.

8.3.9

Postmodernist Truth

The alternative to considering truth to be a matter of correspondence with an accessible reality (see Sects. 7.2.2 and 8.3.7) is not necessarily the peculiar view, sometimes called relativism,22 defining truth in terms of the conception of some group. There is no reason to define truth as that which some allegedly relevant group agrees upon. Apart from making truth depend upon a complicated delimitation of the relevant group, truth is construed as a strange relation to the conception of this group. To be sure, if my aim is to agree with a certain group we must hold the same things to be true. But truth does not have to be held to be a question of correspondence (not even with group relative conceptions). As I mentioned earlier, it is reasonable not to define what makes truth, truth. We do not have to conceive truth to be something objective that can be ascertained by the proper method. What we strive for need not be more than an understanding of and agreement with others in a continual adjustment of our, somewhat personal, sum of conceptions. When we state that something is true we can reasonably be understood as expressing that we understand and support the assessed matter. A reference to correspondence to reality, to the shared opinion, or to the

20 The similarities with the thought of Thomas Kuhn are striking. A discovery or new achievement that separates a new interpretive community from previous ones is what Kuhn calls a paradigm (Kuhn 1970, p. 10). 21 Fish also talks of interpretive communities on page 14 of that work and in his Doing What Comes Naturally (Fish 1989, p. 26). 22 Cf. Rorty (1991), pp. 23–24. Cf. also Louis Pojman’s discussion of relativism (Audi 1999, p. 790). He uses the term in a different way to include Rorty’s position that only maintains a ‘negative point’. Such relativism is critical to the distinction between knowledge and opinion. For a similar view of relativism and truth as correspondence see also Davidson (1989), p. 165–166.

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good23 is superfluous. That we concede to the ‘truth’ of somebody else’s statement, need not mean more than that we agree enough to stop discussing that matter further.24 It is not obvious that anything can be gained from attempts to ascertain what conceptions we are committed to by the concession to the truth of the statement. The point of a postmodernist concession to suggested truths might be just to avoid considerations regarding those conceptions in order to develop our understanding of each other by other considerations. Following Thomas Kuhn, we can ask if we gain anything by imagining that “there is some one full, objective, true account of nature and that the proper measure of scientific achievement is the extent to which it brings us closer to that ultimate goal” (Kuhn 1970, p. 171). Since the goal is beyond our present reach, and since we cannot even measure the distance to that goal; it is difficult to assess either our position or the future journey. As Rorty reminds us; it is only the previous that can be presented as a journey towards the goal: “To say that we think we are heading in the right direction is just to say, with Kuhn, that we can, by hindsight, tell the story of the past as a story of progress” (Rorty 1991, p. 39). Such conceptions about history and the goal are caught in the sum of conceptions we are in at that moment when we are making an assessment. They can not claim to be true beyond that sum of conceptions.

References ***Audi, R. (1999). The Cambridge dictionary of philosophy. Cambridge: Cambridge University Press. Brandom, R. (1994). Making it explicit. Cambridge, Mass.: Harvard University Press. Clark, M. (1990). Nietzsche on truth and philosophy. Cambridge: Cambridge University Press. Davidson, D. (2001). Inquiries into truth and interpretation. Oxford: Clarendon Press. ***(1989). The myth of the subjective. In M. Krausz (Ed.). Relativism: Interpretation and confrontation. Notre Dame Ind.: University of Notre Dame Press. Fish, S. (1980). Is there a text in this class? The authority of interpretive communities. Cambridge, Mass.: Harvard University Press. Fish, S. (1982). Working on the chain gang: Interpretation in law and literature. Texas Law Review, 60, 551–567. Fish, S. (1984). Fish v. Fiss. Stanford Law Review, 36, 1325–1347. Fish, S. (1989). Doing what comes naturally. Oxford: Clarendon Press. Gadamer, H-G. (2003). Truth and method. New York: Continuum. ***Hegel, G.W.F. (1952). Phänomenologie des Geistes. Hamburg: Felix Meiner. James, W. (1975). Pragmatism. Cambridge, Mass.: Harvard University Press.

23

Cf. the thoughts on truth expressed by William James’: “The true is the name of whatever proves itself to be good in the way of belief, and good, too, for definite, assignable reasons” (James 1975, p. 42). 24 Again we see similarities with Gadamer’s discussion of understanding (Gadamer 2003, p. 180).

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***Kaufmann, W. (1974). Nietzsche: Philosopher, psychologist, antichrist. Princeton, N.J.: Princeton University Press. Kuhn, T. S. (1970). The Structure of scientific revolutions. Chicago, Ill.: University of Chicago Press. Litowitz, D. (1997). Postmodern philosophy and law. Lawrence, Kan.: University Press of Kansas. Nagel, T. (1986). The view from nowhere. New York: Oxford University Press. Nietzsche, F. (1968a). On the genealogy of morality. New York: Random House. Nietzsche, F. (1968b). The will to power. New York: Vintage Books. Nietzsche, F. (1973). Die fröhliche Wissenschaft. Berlin: de Gruyter. Nietzsche, F. (2002). Beyond good and evil. Cambridge: Cambridge University Press. Patterson, D. (2001). Normativity and objectivity in law. William and Mary Law Review, 43:1 (October) Plato (page references to specific dialogues use Stephanus-pagination.) Plato (1997). Plato: Complete works, Indianapolis, Ind.: Hackett Publishing Company. ***(2001). Platon: Skrifter bok 2. Stockholm: Atlantis. Putnam, H. (1978). Meaning and the moral sciences. London: Routledge and Kegan Paul. Quine W. V. O. (1951). Two Dogmas of Empiricism. The Philosophical Review, 60, 20–43. Quine W. V. O. (1970). Web of belief. New York N.Y.: Random House. ***Rawls, J. (1973). A theory of justice, Oxford: Oxford University Press. ***Rawls, J. (1985). Justice as fairness: Political not metaphysical. Philosophy and Public Affairs, 14. Rorty, R. (1982). Introduction: Pragmatism and philosophy. In R. Rorty (Ed.) Consequenses of pragmatism, Minneapolis, Minn.: University of Minnesota Press. Rorty, R. (1991). Philosophical papers I: Objectivity relativism and truth. Cambridge: Cambridge University Press. ***Szlezák, T. (1999). Reading Plato. London: Routledge. Wittgenstein, L. (2001). Philosophical investigations. Oxford: Blackwell.

Chapter 9

Descriptive Theory of Law

Abstract In Chapter 9 it is suggested that the descriptions of law encountered in part one is connected with the modernist approach by an ambition to describe law without sufficient arguments for the suggested description. Based on this connection the mistakes attributed to the theories in part one can be seen as a result of a misguiding modernist approach. It is suggested that conclusive support for the descriptive ambition cannot be derived from faith in the modernist approach in reasoning since that approach can be questioned. It is argued that we need other support for the ambition to describe. It is furthermore investigated what reasons can be given in support of the ambition to describe law.

9.1

The Descriptive Ambition

In part one, some theories of law were presented and some problems of those theories were pointed out. It will now be suggested that these theories have a descriptive ambition in common. The theories that share such an ambition will be called descriptive theories. If we imagine reality to be accessible, and if we think our conception of reality can be improved to better fit with reality by ascertaining what is sure about reality; it is natural to attempt to describe what is certain about reality. If it is assumed that we agree about, or can fairly easily prove, what we consider to be certain about reality, there is no need for arguments regarding this description. It can just be described as facts about reality, and we can direct our efforts towards discerning what follows from the described facts. This ambition to describe facts in order to develop our conception of reality will from now on be called the descriptive ambition. With the modernist approach, it is reasonable to have the descriptive ambition. It might even be impossible to question the descriptive ambition if we are not able to question the modernist approach. If, however, we are able to question the descriptive ambition, we can demand reasons for the ambition before we accept it. If we are also able to imagine an alternative to the modernist approach, the characteristic ideas of that approach can not by themselves be conclusive arguments for the descriptive R. Edvinsson, The Quest for the Description of the Law, © Springer-Verlag Berlin Heidelberg 2009

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ambition. It becomes obvious that those ideas, in their turn, would first need to be supported.

9.2 9.2.1

The Object Described by Descriptive Theory of Law Adjudication

In an attempt to explain how the descriptive ambition is problematic, the argument will venture a descriptive line of reasoning. A general description of what it is most kinds of descriptive theory of law want to describe will be presented. This description aims to be so general that it accords with all the previously mentioned theories of law. These versions of descriptive theory of law will be assumed to take some commonly held conception of society for a fact. Life in our modern democracies is taken to be ruled by a legal order that settles disputes and judges subjects in accordance with norms or principles given in advance. The order is taken to be determined by a kind of convention (or a kind of consensus in Dworkin’s theory). There is even assumed to be a fact concerning how the convention is related to the order. The descriptive theories try to describe this convention, order and relation. When it comes to the influence of the convention on adjudication, there are two arguments: in some of the theories the convention is taken to dictate the judgement, in others it is taken to provide some kind of frame enclosing the judgement.

9.2.2

Legal Dogmatism

The utopian idea that the proper judgement is given by a convention is part of the position called legal dogmatism or formalism. According to such a position the convention constitutes or provides sources of law that are potent enough to dictate distinct judgements. To identify any such convention, however, has proven to be difficult, to say the least. There seems to be no agreement on a general description of a convention behind the law. Listing all the various judgements of a legal order is not the same as identifying a convention behind the law. In the end, any attempt to capture adjudication in a general convention leaves us with either a convention that covers only a part of adjudication or with a convention that is too vague to provide unambiguous directions. If it is suggested that we should be satisfied with a convention that does not cover all adjudication, we must ask what parts have been considered enough, and why. The description of the convention is not itself a satisfying answer to these questions.

9.2 The Object Described by Descriptive Theory of Law

9.2.3

81

Form Instead of Content and the Idea of Law

The convention described above, however, can be taken to play a different role. It might be assumed that there are conditions that an order needs to meet in order to be legal and that the convention specifies these conditions. If it is imagined that the convention that is described only specifies such conditions, the convention might instead be taken to provide some kind of frame enclosing all legal judgements. One might say that the convention is understood to concern the form but not the content of law. By attempting to specify facts about the conditions that need to be met, it can be said that the descriptions are aimed at a system above or behind legal application. The description is directed at an imagined idea of the law. It might, for example, be contended that there are sources of law in the system, and that the sources restrict adjudication. This still leaves open the question of how those sources will, or should, be interpreted and applied. It might be assumed that it is easier to agree upon such conditions and upon a convention that summarises them, than it is to agree upon a convention that specifies legal judgements. It appears, however, that there are various accounts of conditions and various descriptions of the form and idea of the law. These accounts and descriptions stand in need of supporting arguments. Without convincing arguments for the different accounts, one might ask if it is reasonable to say that there are facts regarding what conditions there are. One might also ask if it is reasonable to contend that there is a right way to picture the idea of a legal order or law.

9.2.4

The Allergy Simile

There are also examples of descriptive theory of law that refrain from depicting a legal order determined by convention. Some of my colleagues argue that there are important similarities between being part of valid law and being allergic.1 Their line of thought appears to run as follows: Just like someone’s allergy to pollen or fish depends on that person’s allergic reaction to pollen and fish, a judgement’s belonging to valid law depends on judges making the same judgement of the circumstances being judged.2 It is not obvious what is gained by this comparison. When it comes to allergy, it is the reactions that are undesirable. Methods of identifying substances as causes of these reactions help us avoid the reactions. In law, it is the circumstances causing

1 In fairness, it must be pointed out that the following is my attempt to make sense of their position. 2 Such accounts of the law have previously been presented by theorists like O.W. Holmes in ‘The Path of the Law’ (Holmes 1897) and by Alf Ross in Om ret og retfaerdighed (Ross 1953).

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certain judgements that are disagreeable, but the comparison with allergy gives no clue as to how the occurrence of these circumstances can be avoided. It can be argued that we have another goal in law. We want circumstances to receive the same judgement if they are considered the same in all important aspects. But the conception of valid law created in the comparison with allergy does not help us reach this goal. All that is said about valid law is that it consists of the judgements judges would make. Nothing is said about what judgements the judges will or should make. That it is problematic to test what judgements are part of valid law causes further problems for the definition of valid law resting on the judgement of judges. The conception of an allergy becomes helpful because there are tests for determining when somebody is allergic. These tests do not involve a full-scale test of the person, but are limited to a blood sample, or a small part of the skin. There is no equivalent small-scale test of valid law, and the number of circumstances to be tested is infinitely greater. Besides this, allergy tests are accessible to us as persons or medical doctors, and they are something beyond the claim that an allergy is what medical doctors judge to be an allergy. There appears to be no agreement regarding such tests for valid law. The theories of what law is that have been mentioned in the previous chapters can be argued to be aimed, at least partly, at conceiving such tests. But any attempt to conceive of tests based on these theories is at least as questionable as the theories. Without the tests for determining valid law, the conception of valid law as the sum of the judgements that the judges would make, fails to be of any apparent use. That conception of the law does not support the descriptive ambition. It is instead a result of assuming that ambition to be reasonable.

9.2.5

Summary

It can thus be questioned what is gained by picturing the legal order to be ruled by convention or by picturing law to be similar to allergy. It can be questioned why law should be described in these ways. On a more basic level it can be questioned why something like an idea of law should be described at all. It is not obvious that there is an objective truth about what law is. Nor is it obvious why we should try to give a correct definition. Borrowing from reasoning that would be modernist by the present account, a demand can be raised against a descriptive ambition in this area: It can be demanded that we should not assume the existence of any entity without reasons for doing so. This can be said not only about physical objects, but also about abstract entities such as law and a relation between the legal order and an alleged convention. It is one thing to suggest that there is some agreement regarding proper adjudication. Claiming that there is agreement about a convention that dictates proper adjudication or summarizes the distinguishing traits of such adjudication is a different

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matter. It can also be questioned whether it is reasonable to say that a convention of the kind mentioned is ever a finished construction instead of an object of continuous reconstruction. It can be questioned if it is ever finished enough for description to be reasonable.

9.3 9.3.1

Arguments for Description Introduction

How, then, can the choice to describe what law is be defended? A description addressed only to those who share the assumptions and conceptions of the sender does not have to explain or defend the choice to describe. It might be aimed at furthering the ‘science’ based on those conceptions. A description intended to do more than this needs some kind of support. Ignoring the purposes that description might serve in personal or political agendas, there appear to be three main alternative ways to give the description general support. It can either be argued that the description describes what law really is; it can be argued that the description explains how the words are, and should be, used; or it can be argued that the description furthers the purpose of the law.

9.3.2

What Law Really is

The claim to describe what law really is only makes sense if it can be assumed that we can discern what law really is. By assuming that there are reliable empirical data, some observations are used as a foundation for the description. Like all descriptions aspiring to clarify or develop that which is observed, this description depends on a somewhat arbitrary categorisation of observational data. Apart from this general problem this kind of description involves difficult tasks such as observing what the legal officials agree upon, or observing what legal skill really is. Furthermore, the persistent disagreement about what can be observed about the law must be seen as an argument against attempts to describe law based on observations.

9.3.3

Description Concerning Language Use

Instead of attempting to describe what law really is, the description can be a statement about language use. The description can be used to express opinions about how words such as ‘law’ are used. Alternatively the description can be used to specify what is taken to be the correct use of such words.

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When it comes to actual use, there are texts using the words. However, discerning the meaning of the text does not always require knowledge of how the author would define the individual words used. Such a definition is usually something beyond the ambition expressed in the text. Any definition of the words used, which is created based on the text, is therefore largely a result of the assumptions of the reader. This is a problem for any description that attempts to discern the language use of others. That we encounter several different ways to use words like ‘law’ might also be seen as a problem. In addition to these problems, it can be noted that a description of actual use does not seem to be of much concern, unless a judgement regarding that usage is supplemented. For this reason the contentions about correct use are more influential. In matters concerning descriptions of correct use, one must ask what makes the described usage correct. There is little agreement on this point. Only with the accessibility mentioned regarding what law really is or regarding the purpose of law, does a correct usage present itself. It is also possible that the description gives a suggestion about what should be considered correct use. The ambition might be to make language use more unified. It is, however, not likely that legal theorists discuss the use of words like law with only this ambition. If, instead, the ambition extends to the aim of facilitating our understanding of each other, it is reasonable to assume that unified language use is of subsidiary importance.3 With this more extensive ambition, the arguments for or against alternative usage become crucial.4

9.3.4

The Purpose of Law and Description

Considering the possibility that the description is contended to promote the purpose of law, one must ask what that purpose might be. Some alternatives can be imagined. The purpose of the law might be to insure that the adjudication flows from decisions reached before the time of adjudication. It may or may not be demanded that these decisions must be democratic. The purpose might also be to provide help in the work of the judiciary. Either way, it is not obvious that the description promotes these purposes. Nor is it obvious that the possibility of other conflicting purposes can be ignored. Such other purposes can very likely be countermanded by the description.

3 To prescribe a certain usage in a situation where there is a language and several users of that language, is not likely to facilitate understanding. 4 A certain conception of the meaning of a word free from the context and the intentions of the user threatens to become an obstacle to discussion and the understanding of the other.

9.4 Value Judgements

9.4

85

Value Judgements

If description of the law aims to honour all our conceptions about what law is, it must be asked if we have other conceptions besides thinking that law is something that can be described and that this something is connected to adjudication and the legal order. It must, for instance, be considered if law is conceived to have other purposes than the previously mentioned ones. It cannot be denied that there are strong sentiments concerning adjudication. For this reason it must be asked what the connection between adjudication and value judgements is. That there are value judgements that do not concern what law is, like the judgement that my children are wonderful and that Fredrik is a clever innovator, does not imply that no value judgement needs to be considered as we determine what law is. The citizens demand that adjudication must not contradict their own value judgements. Only if it meets this demand will the individual citizens find it important that the law, which is created to determine adjudication, is obeyed. In addition to this, the citizens want adjudication to comply with the value judgements we agree upon. A legal order can be seen as an attempt to ensure this. Judging from the arguments given as support for particular legislation, the legislator attempts to meet this demand and this request. With the idea that adjudication is controlled by the state comes the notion that a decision of the judiciary is an expression of the value judgements of the state. Some contend that this idea enables us to discern value judgements of the state based on law and adjudication. Others add that it also supports the notion that we must sometimes understand the value judgements of the state if we want to discern law and proper adjudication.5 Understanding the value judgements of the state, however, is not always easy. It is not obvious that the value judgement of the state can be treated as a fact. This is true even if it is assumed that the value judgement of the state is expressed by an identifiable body of the legal order (e.g. the legislator). It is hard to identify the actual value judgement even with such a concession. We can only speculate about the details of the value judgement. It remains an open question whether any suggested specific value judgement is the actual value judgement of the relevant body. That we sometimes dislike something might be considered a fact, but it is not so obvious what implicit assumptions about exceptions and mitigating circumstances we make. Such details about such an aversion are often developed as the matter is given further consideration. It appears impossible to specify any value judgement in a value-neutral way. Any value judgement we conceive makes sense only within a sum of conceptions. An expressed value judgement only makes sense as a judgement made by a sender with a sum of conceptions in mind and directed to an

5 Cf. also Rudolph von Jehring who claims that ‘der Zweck der Schöpfer des gesamten Rechts ist’ (Jehring 1904, p. v.).

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addressee. Like the sentences themselves, value judgements formulated in sentences only make sense within a context. If we accept that we need to understand the value judgements of the state before we can discern law and proper adjudication, it must be questioned in what sense we can say that there is a fact about what law is. It must equally be questioned if any attempt to describe what law is can be considered value neutral.

9.5

Conclusion

It makes some sense to distinguish a law that is, or would be, applied in a correct judgement from other matters. Hart does it by demanding that only the rules that are commonly obeyed are ‘recognized’. Austin displays a similar ambition by separating positive law from other kinds of law. What we obey and the content of positive law, however, are not always easy to discern. Adjudication is often a matter of interpretation and a matter of presenting convincing arguments. For this reason the adjudication we can be said to obey is not clearly connected to a law being interpreted. It cannot be assumed that description of such law produces a fair picture. Such law cannot be merely assumed to be a thing that we should describe. It must be noted that there is no general agreement about how the judiciary’s interpretation is regulated. Given this disagreement it is not always reasonable to claim to describe a law that supposedly regulates adjudication. It must also be noted that there are various suggested purposes behind law and various suggested purposes behind descriptions of what law is. It furthermore can not be merely assumed that some conception about what law is can serve as a starting point in an attempt to fulfil or make a balanced judgement between the suggested purposes. It is therefore not obvious why we should try to produce a conception that captures what law supposedly is. The pursued line of thought does not lead us to the notion that there are several, equally correct, perspectives from which we can describe law, using one perspective at a time. By questioning why we should try to produce a description or even a conception that captures what law is, arguments in support of any suggested description are demanded.

References Holmes, O. W. (1897). The path of the law. Harvard Law Review, 10. Jehring, R. v. (1904). Der Zweck im Recht. Leipzig: Breitkopf und Härtel. Ross, A. (1953). Om ret og retfaerdighed. Copenhagen: Nyt Nordisk Forlag.

Chapter 10

Interpretation

Abstract Chapter 10 reproduces some views presented by Stanley Fish. These views seem to constitute a criticism similar to the one presented in the previous chapters. By showing how some of his further claims are mistaken, it is suggested that his alternative to descriptive theory of law is unsatisfying.

10.1

Introduction

Most legal theorists agree that interpretation to some extent is necessary to reach legal decisions. Some theorists have found it reasonable to focus their theory on the object that supposedly is interpreted. Theorists, like the legal positivists, try to describe an imagined general object behind adjudication. A rejection of attempts to find and describe such an object does not have to entail the contention that all discussion of such description is without importance. In order to explain this, it is necessary to elaborate on the matter of law and interpretation. That is the goal of this chapter. The theorist, Stanley Fish, has set out to investigate interpretation concerned in legal thought and legal theory. His claims in this area are combined with the idea that there is no literal meaning.1 This chapter will try to relate some major flaws in Fish’s reasoning, without the intention of reinstating literal meaning or diminishing the need to acknowledge interpretation in law.

1 Stanley Fish, for a long time, has discussed meaning and the interpretation of texts. More recently he has combined this discussion with thoughts about the interpretation of law. Cf. Fish (1972), Fish (1980), Fish (1984) and Fish (1989).

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10.2 10.2.1

Stanley Fish Anti-Formalism in Law

In Sect. 8.3.10 above, it has been mentioned that Stanley Fish stresses the importance of context and interpretive assumptions in the interpretation of a text and in attempts to ascertain meaning. Since the discussion in this chapter concerns conceptions of and approaches to law, we shall consider Fish’s claims about legal texts and the interpretation of such texts. His following statement about a constitution is illuminating also with regard to other rules in a legal system: “[I]t is always an already interpreted object, even though the interpretations it has received and the forms it has taken are in conflict with one another” (Fish 1984, p. 1336). It is obvious how Fish stresses the need for interpretation in law: “[R]ules are texts. They are in need of interpretation and cannot themselves serve as constraints on interpretation” (Fish 1984, p. 1326, emphasis omitted). Fish also claims that the conflicts that emerge between alternative interpretations cannot be solved by the application of some existing independent method: “How are these conflicts to be settled? The answer to this question is that they are always in the process of being settled, and that no transcendent or algorithmic method of interpretation is required to settle them. The means of settling them are political, social, and institutional, in a mix that is itself subject to modification and change” (Fish 1984, p. 1336). It is sometimes claimed that the interpretation of legal and other rules is regulated by rules.2 Since any such set of rules would itself need to be interpreted, the need to interpret remains. The workings of the law can therefore not be explained by rules alone. The choices that need to be made in an interpretation cannot be regulated in any applicable rule.

10.2.2

Rules and Actions in a Circular Relation

The need to interpret can partly be explained by the relation between the rules and the actions regulated. According to Fish, these stand in a circular relation to each other: [R]ules, in law or anywhere else, do not stand in an independent relationship to a field of action on which they can simply be imposed; rather rules have a circular or mutually interdependent relationship to the field of action in that they make sense only in reference to the very regularities they are thought to bring about (Fish 1984, p. 1328).

2 Fish has for instance commented on the theory by Owen Fiss that uses what Fiss calls ‘disciplining rules’. These appear to be examples of such other rules. See Fish (1984), p. 1325 cf. with Fiss (1982).

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In a comment about how the judge interprets the law Fish further claims the following: “[T]he interpretive ‘moves’ that occur to a judge … occur to him in a shape already informed by a general sense of what the law is for, of what its operations are intended to promote and protect” (Fish 1984, p. 1342, emphasis omitted). He sums up his conclusions regarding rules and interpretation in the following passage: The moral of the story, then, is not that you could never learn enough to know what to do in every circumstance, but that what you learn cannot finally be reduced to a set of rules. Or, to put the case another way … insofar as the requisite knowledge can be reduced to a set of rules … it will be to rules whose very intelligibility depends on the practices they supposedly govern (Fish 1984, p. 1331).

According to Fish in law and literature alike, “it is ways of reading, inseparable from the fact of the institution itself, and not rules or special kinds of texts that validate and justify the process of rational interpretation” (Fish 1984, p. 1345).

10.2.3

Restrictions on the Discretion of the Judge

According to Fish, the restrictions on discretion in adjudication are not imposed by the texts or the rules. The restrictions are instead held to be part of the circumstances in which the judge is destined to find him- or herself. In a discussion of a court case, Fish states the following about the judge: At no time is he free to go his ‘own way’, for he is always going in a way marked out by the practice or set of practices of whose defining principles (goals, purposes, intentions) he is a moving extension, and therefore it would be superfluous of him to submit his behaviour to principles other than the ones that already, and necessarily, constrain him (Fish 1989, p. 13).3

Fish’s position is developed in his discussion with Owen Fiss: Just as rules can be read only in the context of the practice they supposedly order, so are those who have learned to read them constrained by the assumptions and categories of understanding embodied in that same practice. It is these assumptions and categories that have been internalized in the course of training, a process at the end of which the trainee is not only possessed of but possessed by a knowledge of the ropes, by a tacit knowledge that tells him not so much what to do, but already has him doing it as a condition of perception and even of thought (Fish 1984, p. 1333, cf. Fiss 1982).

A more general claim about any individual appears in Is There a Text in This Class?: [S]ince the thoughts an individual can think and the mental operations he can perform have their source in some or other interpretive community, he is as much a product of that community (acting as an extension of it) as the meanings it enables him to produce (Fish 1980, p. 14).

3

Commenting on the situation of Judge Parker in Mills v. Wyman.

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10.2.4

10 Interpretation

Problems Concerning Fish’s View of Interpretive Communities

In Doing What Comes Naturally Fish suggests that we belong to a multitude of communities: “[E]ach of us is a member of not one but innumerable interpretive communities in relation to which different kinds of belief are operating with different weight and force” (Fish 1989, p. 30). But the communities he talks about are distinct communities such as the one among men, teachers, fathers or citizens. These examples indicate that the communities have clear boundaries and are familiar to us. In addition to the modest claim that we have several assumptions in common with many others in a group that can be imagined as a community, Fish appears to argue that the communities to which we belong are fairly distinct. But if it is our assumptions that determine which communities we belong to, our personal variations in assumptions cast serious doubt on any claims that there are distinct communities. This brings us to Fish’s problematic denial of freedom in judgement. In Fish’s mind, a judge (or reader) has no freedom to interpret. Only the interpretive communities to which the judge belongs determine the interpretation.4 This position is problematic because it appears to rest on the implausible contention that submission to such communities is of an all or nothing type with no room for partial dissent. It further appears to be based on the assumption that the order that a judge has submitted to, cannot be modified by that judge. It appears reasonable to oppose Fish in this area and instead suggest that the assumptions of the members of a community are neither completely identical nor beyond the influence of the individual members. Fish notes that we do not choose our interpretive constructs (Fish 1989, p. 394). But even if we do not choose our assumptions, and even if we are unable to give an account of the assumptions we have, it is reasonable to assume that they are influenced by discussions within and across communities. As we reason, we can change our conceptions and thereby develop our interpretive assumptions. When it comes to judges and the way they acquire their interpretive assumptions, it must be noted that they are free to object and might be welcome into the community of judges despite such objections. Objections leading to reasonable modifications of the commonly shared assumptions might even be appreciated. For this reason it is misleading to depict a judge as constrained by the community of judges. The urge to belong to that group and to agree with its members imposes different restraints on different judges, depending on what the judge chooses to object to. Conceiving a community as a sum of interpretive assumptions that constrain the judge (or some other individual) exaggerates the homogeneity of the community and masks the personal differences. 4 The argument resembles Foucault’s questionable line of thought that leads to the conclusion that there is no author. This is considered in more detail in the appendix.

References

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Fish’s Criticism of Theory

For Fish, theory is distinct from activity and practice. He explains: “[T]heory, as I define it, is a name for a set of principles or rules or procedures that is attached to (in the sense of being derived from) no particular field of activity, but is of sufficient generality to be thought of as a constraint on (and an explanation of) all fields of activity.” He continues: “Since there are no such principles – no constraints that are more than the content of a practice from which they are indistinguishable – there can be no such thing as theory, and something that does not exist cannot have consequences” (Fish 1989, p. 14) Fish also adds that the claim that theory has no consequences is an example of what Fish calls “theory talk” and as such can have no consequence (Fish 1989, pp. 23, 27). Having noted that discussion and reason can change our conceptions and assumptions, Fish’s talk about theory talk appears misleading. The problem, again, is Fish’s conception of practice and interpretive community. In addition to the argument presented in the previous section, it can be noted here that practices overlap and that it is hard to discern our constraining conceptions, let alone attribute them to theory or any particular practice.

References Fish, S. (1972). Self-consuming artifacts: The experience of seventeenth-century literature. Berkeley Cal.: University of California Press. Fish, S. (1980). Is there a text in this class? The authority of interpretive communities. Cambridge, Mass.: Harvard University Press. Fish, S. (1984). Fish v. Fiss. Stanford Law Review, 36, 1325–1347. Fish, S. (1989). Doing what comes naturally. Oxford: Clarendon Press. Fiss, O. (1982). Objectivity and interpretation. Stanford Law Review, 34.

Chapter 11

The Quest for the Description of the Law

Abstract In the final eleventh chapter the implications of the postmodernist approach for theory of law are examined. It is argued that this alternative approach acknowledges the difficulties in interpretation of law. It is also argued that it helps us refrain from undue simplification of law. By doing this the alternative approach is suggested to better serve the multiple purposes we have in law. In conclusion it is argued that the modernist approach should not be taken for granted, at least not when dealing with law and adjudication.

11.1 11.1.1

Consensus about Law Legal Gauges and Limited Consensus

Chapters 2, 3, 4, 5 and 9 have tried to show how different descriptive theories of law are doomed to be inadequate because of difficulties that they cannot avoid. As we have seen, one major problem is the lack of consensus. In natural science methods of observations, making use of gauges and experiments, direct our conceptions. In theory of law, it is difficult to discern any such method and there are no gauges or agreement regarding experiments directing conceptions. Another important difference between theory of law and natural science is the substantial agreement regarding the use of natural science. The above-mentioned method of observation is a tool for reaching goals like finding a cure for malaria or life in space. It is perfectly acceptable that the methods used in one project are adapted to suit the goal of that project. In theory of law there appears to be no agreement regarding such a goal. It remains to be argued in what way attempts to state facts regarding what law is can explain or justify adjudication, make adjudication better or easier or serve some other purpose.

R. Edvinsson, The Quest for the Description of the Law, © Springer-Verlag Berlin Heidelberg 2009

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11 The Quest for the Description of the Law

Adjudication and Justice

Adjudication is often connected to strong feelings and opinions. To the extent that a legal judgement is expected to be considered just, it needs to elicit a kind of agreement. Only those who agree with a judgement will find it just. (Liking or disliking the judgement is of course a different matter.) If law is conceived as a formulation of just adjudication, it must express the adjudication that can be agreed upon.1 Since there is no all-embracing agreement about adjudication and no agreement regarding a general method for determining what adjudication we agree upon, suggesting what adjudication we can agree upon is not an easy task. General descriptions of the law as an object, do not necessarily help fulfil this task. The organization of legal institutions and the behaviour of legal officials indicate that adjudication follows elaborate procedures. Legal rules play a central role in these procedures. The use of legal rules can be seen as an attempt to regulate adjudication; an attempt to make adjudication predictable and based on non-personal considerations. At the same time, the formulation of legal rules can be seen as an attempt to state what judgements we can agree upon; an attempt to state justice. The interpretation of legal rules thereby becomes partly a task of determining what judgement it is reasonable to agree upon.2 To fulfil this task a judge needs to imagine what we intend to achieve in adjudication.

11.2

The Goal-Theory of Law

If we accept both of the goals mentioned, we, thus, accept two goals behind legal rules and adjudication that sometimes conflict. Without addressing the question of how to balance these goals, it can be suggested that we repeatedly make such a judgement of balance of judicial goals. In some cases we might be able to agree on how to resolve the conflict. Such resolution can be seen as an important part of adjudication in hard cases.3 Modernist

1 It can be argued that we also agree that there might be cases where we cannot agree on a judgement. It might furthermore be argued that we need to agree on some method of adjudication that can be applied in these cases. But since there is no given method for this, and since it would always need to be interpreted, the need to find agreement remains. 2 In the estimation of what it is reasonable to agree upon, we take the liberty of guessing what others might think. This does not necessarily commit us to Hilary Putnam’s vision of an end to the search. According to him truth is what we agree upon at an imagined end after a number of paradigm shaking developments of our conception of the matter. Putnam uses this construction to resuscitate the notion of objective truth (Putnam 1981, p. 216–7, and Putnam 1990, p. 41). Such truth is noticeably inaccessible and I leave it to its adherents to show that we have any use whatsoever of that constructed notion of truth. 3 The need to solve cases where we do not agree, can be seen as an additional factor that needs to be considered.

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conceptions impel us further by enticing theoretical attempts to explain away the need to make a judgement of balance of judicial goals. Such modernist theory might suggest that the judgement of balance is dictated by what already has been settled. In defence of this kind of theory, it can be argued that it attempts to decide the judgement of balance by the use of some neutral procedure. Given the need to make such judgements, the theory might be seen as an aid for finding or justifying a judgement. It must, however, be asked how much aid the descriptive theories can give. It remains to be argued why conclusions from simple cases, where the judgement of balance is settled, should be taken to dictate the judgement in hard cases. In a descriptive theory of law, difficulties raised by the suggested conflict between judicial goals are either assumed to be irrelevant to a description of the law or assumed to be addressed by the descriptions of what law is. As an alternative to such a theory, a goal-theory of law can be presented. A goal-theory of law describes law as a construction that attempts to serve multiple purposes that are sometimes at odds with each other. According to such a theory, the need to make a judgement of balance of judicial goals is an irreducible part of the law. To explain why this is not an example of a descriptive theory of law, and to explain why the description of law given by a goal-theory of law does not face the same problems as a descriptive theory of law, an important feature of the description will need to be stressed: The suggested description and conception of the law is not assumed to provide much assistance to a judge who has to decide a matter when the two goals give opposing directions and their conflict has not been settled. This description can without difficulty be combined with a questioning of the use of any such description. By acknowledging the multiple goals, the goal-theory of law explains some apparent difficulties in adjudication and can thereby be argued to give a more correct description of law. In addition to this, the inadequacy of the idea that the difficulties can be ignored or solved by description are part of an explanation why some descriptions fail to convince and repeatedly conflict with alternative descriptions. With a goal theory of law, law is not treated as an agreement that has already been reached that can be gathered from legal sources. Law is seen, instead, as an agreement that we must reach for in every judgement.

11.3

Is and Ought

It is natural to describe the reality we conceive. When we feel confident, we do not question the conception and we find no reason to supply arguments in addition to the description. But when it comes to conceptions of law, such confidence can be challenged. This thesis aims to acknowledge the importance of goals behind given descriptions. Consequently it is suggested that law should not be conceived as a matter of

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facts. It is instead suggested that law to some extent should be seen as an ought-statement resting on supporting arguments.4 There is no necessary connection between these suggestions and the notion that considerations of what ought to be override considerations of what is. This is obvious to anyone who sees that the distinction between what is and what ought to be can be questioned. It will not be denied that there is a semantic difference between is and ought. Is-considerations focus on one conception stated as a matter of fact, while ought-considerations ponder matters conceived to be connected to a conceived choice between alternatives. But making this distinction (or a distinction similar to it) does not necessarily help us deal with matters we find more difficult than the making and application of the distinction. For instance, it is difficult to draw any conclusions about adjudication based on a distinction of what law is and what it ought to be. If nothing else, the difficulties involved in finding an agreement about what law is make this obvious. Conceptions strengthen, weaken and modify each other. If we want to convince someone of the soundness of an is-conception we need to argue and invoke oughtconceptions. Conversely ought-conceptions depend on is-conceptions giving rise to the perceived alternatives. In any discussion, a number of is- and ought-conceptions are seen as relevant to an attempt to reach some agreement.

11.4

Why Question the Quest?

This thesis aims to direct the focus of legal theory away from alternative descriptions of what law is, to the reasons for describing what law is. It wants to argue that we need to consider and be ready to revise our concepts of truth and reality. It questions the approach of modernist theories that describe what law is. Theories that give a general description of an object called the law repeatedly emerge and will most likely continue to do so in the future. What all the various theories aim to achieve cannot be envisaged in the present investigation. It will only be suggested here that any such theory that lacks a goal which is found to be reasonable, will itself appear unreasonable. The thesis suggests that it is counterproductive to seek facts about what law is as a means to solve difficulties of adjudication. Similarity to and agreement with previous judgements and legislative decisions along the lines of Hart’s rules and Dworkin’s principles is only one of at least two goals of the law. The goal of adjudication is to reach agreement.5 This desired agreement can be conceived of as law.

4 This conception of law is also to some extent a suggestion and an ought-statement that rests on supporting arguments. 5 Cf. Aleksander Peczenik’s claim that justification in legal doctrine is a matter of reaching reflective equilibrium where the interpretation of value judgements is one of the components to be considered (Peczenik 2005, Chapter 7).

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Reaching that agreement is not only a matter of discerning what follows from the matters we can be taken to already agree upon. The argument in this thesis is that a judgement of balance of judicial goals must be made in adjudication. It is argued that this judgement cannot be captured and dictated by conceptions of what law is. The need for a judgement of balance of judicial goals forces legal science to include more than research of the given content of a system of law that is assumed to be valid. Adjudication cannot be relieved of difficult judgements of law by means of a description of law. Adjudication can be seen as a craft that requires a trained skill and familiarity with legal culture. This idea might grant legal science the high regard it has tried to gain by imitating physics. It is not reasonable to generate a theory of what law is that aspires to replace the judgement of those who have been given the task of finding agreement regarding adjudication. The description of law given in the goal theory of law has no such ambition. It tries instead to indicate how some things must be considered in an ongoing attempt to reach understanding and agreement. We cannot expect to avoid difficulties in adjudication by means of theories of law. Even so, theories of law can be useful and important. For instance, it is a theoretical argument that is used to prove descriptive theory of law to be questionable. So while preserving part of theory of law as useful, this thesis hopes to cast serious doubt on a somewhat unconscious approach that exaggerates the expected use of theory.

References Peczenik, A. (2005). Scientia juris: Legal doctrine as knowledge of law and as a source of law. In E. Pattaro (Ed.), A treatise of legal philosophy and general jurisprudence. New York: Springer. Putnam, H. (1981). Reason, truth, and history, Cambridge: Cambridge University Press. Putnam, H. (1990). Realism with a human face, Cambridge, Mass.: Harvard University Press.

Appendix

The Originality and Power of the Throwing Thrown

Abstract It has been argued that the context into which we are thrown is beyond the criticism we can produce, since there is no way for us to stand outside such a context. This appendix argues that context is untouchable in this sense only if we maintain strange notions of the kind of criticism that is necessary and of what it takes to distinguish oneself from the context. It is suggested that language is never finally settled and that this enables us to be powerful and original even though we are thrown into our context with inherited conceptions. The suggested notion of language is briefly explained in a discussion of how we try to understand a text.

Without eliciting much controversy, we can assume that an individual cannot leave her body. It has been argued that in a similar way the mind is bound to the context within which it constitutes itself. Such a context is often considered to be forced upon us. Heidegger suggests that we are ‘thrown’ into the world in which we exist. Building on such notions it is sometimes argued that the only ways we can criticise the context we find ourselves in, are the ways made possible by that context. Our context is taken to govern what criticism we can deliver and what distancing steps we can take. This might in turn be taken to make all attempts to criticise our own context inadequate. The criticism cannot be independent of the context it attempts to criticise and if we raise such criticism we cannot claim to be original and clearly distinguished from our context. It would thus seem impossible for us to genuinely distance ourselves from our context. This context would thus appear to be an inescapable prison. That we hold ourselves to be able to, or even obliged to, sometimes criticize and view our context from a distance, does under these circumstances seem to entail a paradox. On the surface this paradox might be disturbing. However, a paradox only emerges if we uphold a strange notion of what it takes to distance oneself from one’s context and of what this criticism must be like. The criticism we can put forward should not be automatically disqualified because it is shaped by inherited conceptions. If we are forced to give it up on such grounds, we might as well give up all reasoning. No other kind of criticism or reasoning seems to be possible. Furthermore, a conception is not even dubious just because it is inherited. It would be truly strange to try to break free of preconceptions in order to expose and question them by comparison with some standard free from preconceptions. Such an ambition 101

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would be sensible only if there were other conceptions independent of our preconceptions and if they were more reliable than the preconceptions. It is hard to see why we should make such a conjecture. Any dream to evaluate and justify our conceptions in a neutral and final way independent of any preconceptions seems preposterous. What would such a justification look like? That a critic of a context is part of the context does thus not necessarily lead to a paradox. It does, however, make us understand how the criticism must content itself to work within a system. It is an ambition to go further that generates the paradox. It should also be noted that limiting ourselves to criticism within a system in no way prevents us from changing the system. It is certainly interesting that we seem to inherit most of our ideas as we inherit our language. But this does not mean that any idea is immune to criticism. The system is not totally rigid. The above mentioned internal criticism is just the thing that is likely to modify it. To be sure, it is hard to discern what our defining conceptions are, but once we sense something to be wrong we have an incentive to suggest what our conceptions are and how they can be improved. We can modify our ideas and concepts and make new distinctions. In this way we can change our language and the context we find ourselves in. Instead of seeing internal criticism with its preconceptions as powerless, it can even be argued that criticism needs to be internal to be intelligible and influential. So if criticising our context does not have to lead to a paradox, can it be said to be personal and original? Can my criticism be said to be truly mine? If we cannot claim such originality, but at the same time take it for granted, there seems to be a paradox in this after all. At this stage one might wonder what is demanded to make the criticism ‘truly’ mine. It appears reasonable to assume that it is by means of a shared language that my words are made intelligible to others. Our ambition to communicate convinces us to use such a language in our speech, writing and thinking. For this reason the shared language can be considered to end up setting the limits of what can be thought or said. It is however far from self-evident that such a language should be taken to be something settled. If we assume that such a language exists in some tangible sense, we cannot deny that this language is sometimes modified through our use of it.1 Communication between parties can sometimes change the language they share. What we choose to say makes a difference. (Even though such a choice seems insufficient for a linguistic upheaval, it can bring about slow change.) For this reason what is said in a situation sometimes has meaning beyond the language that has existed up until that moment. Even if any modification of language is made possible by the language that precedes the modification (i.e. the language being modified), the modification brings a change to language. An available change is actualised and new modifications are thereby made available. To say that we cannot be original because we always posses a 1 It is not obvious that it is reasonable to assume that a shared language exists even in this limited sense. It is certainly hard to tell exactly which concepts and conceptions are shared. In our attempts to establish this we encounter difficulties similar to the troubles of 20th century particle physics: As we try to ascertain what our concepts and conceptions are we keep changing what they are. One alternative could be to say that what we possess are evolving sets of conceptions and concepts that are somewhat compatible.

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language that limits what we can say, even in the statements modifying that language, is like saying that all that is speakable has already been spoken. So there is not a paradox in this after all, at least not in any of the versions presented above. As indicated, it can be suggested that we encounter such a paradox only if we entertain strange notions of what criticism must be like and of what it takes to be original. How is it then, that such a paradox has been haunting some of us? The focus on language and meaning that became common in philosophy during the last century can be part of the explanation. Such investigation of our language invites us to imagine language to be some given thing to be examined. But if we try to develop conceptions of thinking, communication or understanding by comparison to language it is far from evident that language should be treated as something given.2 At times Jacques Derrida appears to be struggling with a similar paradox while treating language in just this way (Derrida 1998).3 Though the structure he examines often includes other interpretive practises besides language, and though he stresses how this structure can be deconstructed, he seems preoccupied with a structure found to be something given. This seems odd considering his rejection of any certainty of meaning. The possible contradiction in this will not be explored at this moment. For now it is sufficient to note that versions of the paradox that seek support from Derrida’s reasoning might overestimate the extent to which language is something given and might interpret Derrida in a dubious way. So far it has been argued that we will see how criticism can change our context and can be original compared to our context, if we see how language and meaning are unsettled. By examination of the way we try to understand a text, this conception of meaning and language can be developed. To be brief I would like to suggest the following description: 1. The text we are trying to understand is considered to be expressed in a language compatible with our own. 2. We try to make sense of the text with this language. 3. We also imagine the text to be an attempt by someone to communicate. This someone can be called the Sender. 4. The Sender is imagined to be in a certain situation, in possession of some specific conception, and directing the attempt to communicate to a certain addressee.

2

On this point I agree with Donald Davidsson’s conclusion in ‘A Nice Derangement of Epitaphs’: “We must give up the idea of a clearly defined shared structure which language-users acquire and then apply to cases” (Davidson 2005, p. 107) 3 “I only have one language; it is not mine” (Derrida 1998, p. 1). A statement that is gradually turned into Derrida’s as the book progresses (cf. ibid, pp. 5, 25). Here and throughout the book, Derrida appears to be fusing two different conceptions of language into one. In the claim that the language is not his he appears to be speaking of a language shared by others. In his case it is French (ibid, pp. 2, 46, 51). When he stresses his monolingualism he appears to be speaking of a more private language:“I would not be myself outside it” (ibid, p. 1); “the only [language] I am thus destined to speak” (ibid, p. 2). See also Derrida (1978), p. 280, where he touches upon a paradox of this kind.

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5. What the Sender is trying to communicate is assumed to make sense in that situation. 6. This sometimes makes us change our language and our opinion of what is compatible with it. In this way we accommodate new meaning and abandon old. It is thus my contention that we need to acknowledge a subject (or Sender) when we try to understand a text. Beyond asking for the meaning of the combinations of words that are used, which are interpreted by means of a language we assume to exist, we must ask for the meaning of the user. Here the relevant user is not some ideal user, but our instrumental account of an actual user. To be sure, we must have substantial agreement regarding the meaning of words to be able to communicate, but that does not mean that the only way to understand each other is to discern the meaning of the words or even the sentences by comparison to a pre-existing language or structure. We must also take a kind of subjectivity in the communication into account. We develop the language and structure in order to make sense of the subject. The above mentioned Sender is closely akin to the author-function that Foucault attempts to define in ‘What Is an Author?’ When he explains the third characteristic of this function, he talks of the necessary creation of a rational being that we call the author. Foucault asserts that we try to make this being realistic, by seeing a creative power, a force, an original source of the text, in the individual. However, Foucault does not grant such an author-function any far reaching role. He calls it “only a projection, in more or less psychologizing terms, of the operations that we force texts to undergo” (Foucault 1979, p 150). He further explains: “All these operations vary according to periods and types of discourse” (ibid. p. 150). In a subsequent conclusion it becomes evident that Foucault considers the formulation of a “typology of discourse” (ibid. p. 157) to be of importance. He also suggests that the subject should be seen as a “variable and complex function of discourse” (ibid. p. 158). Foucault seems to imply that we can identify these discourses and thereafter, as we read a text, first determine which discourse it belongs to and finally thereby discern its meaning. Identifying the discourse to which a text belongs is then seen as a basis for discerning the meaning of a text. His response to qualms regarding originality and authenticity is simply: “What difference does it make who is speaking?” (ibid. p. 160) In my opinion he does not see the close connection between the author-function and an understanding of the text. The rational being is constructed together with the interpretation of the text in a process of interaction. The Sender and the meaning of the text are mutually dependent. In Foucault’s opinion the influence of the authorfunction can be reduced to be merely a consequence of the discourse. The discourse supposedly determines how the author-function helps us interpret a text. In my opinion he makes strange assumptions regarding the superseding role of the discourse. Neither the allocation of a text to a discourse nor the determination of the consequences of this allocation for the interpretation of the text precedes our interpretation of the text. They all evolve alongside each other. What has been said regarding meaning in a text is not intended to be a definition of the term. It is instead intended to improve on a primitive and misleading conception of our search for meaning in a text. Meaning in a text can no longer be seen as

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something unambiguously determined by its words, language, structure, or the discourse to which it is alleged to belong. Though instrumental to an understanding of the meaning, they need to be accompanied by an image of a Sender capable of thinking something that is new to us; a Sender that is capable of communicating something by modifying the language we use. If we are willing to look for such a Sender and admit that it sometimes plays a decisive role as indicated above, our language is not settled. How then do we imagine the Sender? In what way are we doing anything more than what is dictated by language? If language limits the process of imagining the ‘situation’ of the Sender, is not the Sender trapped in our language? Does this not preclude the possibility for us to see any original Sender and for us ever to be an original Sender to anyone else? Why would it matter if we do or do not isolate the Sender in our encounter with a text (or an utterance)? Again it must be pointed out that our choices among the possibilities furnished by language can change language. From time to time we chose to modify our ideas and concepts and make new distinctions. Even though every change is one of a limited number of possible changes dictated by language, there need not be any limit to the possible change or evolution in language brought about by the consecutive use and change of language. For this reason, any Sender we encounter can change the language (our language) that limits our conception of her. The more we communicate the greater the possible change. Extended attention to the words of one Sender (though a Sender that is transformed as we go along), makes us see how, after the first change, the constraints upon our conception of the Sender and her thoughts are no longer to be found within our old language. Maintaining attention to this Sender we see the limits of the limits set up by our language. In every encounter with a text, we must be ready to change our language in order to make sense of what is said. This is necessary if we really want to understand each other. Furthermore, conceiving language in this way we can see how we can be original and powerful in our evolving context.

References Derrida, J. (1978). Writing and difference. Chicago, Ill.: University of Chicago Press. Derrida, J. (1998). Monolingualism of the other; or, the prosthesis of origin. Stanford, Cal.: Stanford University Press. Davidson, D. (2005). Truth, language, and history. Oxford: Clarendon Press. Foucault, M. (1979).What is an author?. In J. Hariri (Ed.), Textual strategies; Perspectives in poststructuralist criticism. Ithaca, N.Y.: Cornell University Press.

Compilation of Law Cases NJA mentioned in the text refers to Nytt Juridiskt Arkiv, Avdelning 1, founded by G.B.A. Holm, a compilation of cases decided by the highest court in Sweden.

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Ross, A. (1933). Kritik der sogenannten praktischen Erkenntnis. Copenhagen and Leipzig: Levin & Munksgaard and Felix Meiner. Ross, A. (1953). Om ret og retfaerdighed. Copenhagen: Nyt Fordisk Forlag. Rousseau, J-J. (1997). The social contract and other later political writings. Cambridge: Cambridge University Press. Sen, A. & Williams, B. (Eds.) (1982). Utilitarianism and beyond. Cambridge: Cambridge University Press. Szlezák, T. (1999). Reading Plato. London: Routledge. Waluchow, W. (1994). Inclusive legal positivism. Oxford: Clarendon Press. Wittgenstein, L. (2001). Philosophical investigations. Oxford: Blackwell.

Index

A Achievement scientific 77 Agreement continuous 42 Ambition descriptive 15, 79 Application of the law 29, 31 Aristotle 52 Aspect internal 23 propositional 34 Assumptions commonly shared, modification of 90 interpretive 75 Attitude critical reflective 24

C Cases hard 11, 32 Communication and shared conceptions 65 Community interpretive 76 Conceptions coherence of 65 evaluation of 64 of law 95 ought-conceptions 96 sum of 67 sum of, and value judgements 85 Consensus of independent conviction 40

Content of the law 28 Context as a prison 101 legal rules and practice 89 Convention substantive attack against 41 D Descartes 53 Description ideals for 55 of law, general support of 83 Directedness of value judgements 65 Disagreement theoretical 36 Discretion limited 38 Dogmatism legal 80 E Entity real 7, 13 F Framework of legal thought 17 Function of the law 32 G Gunman 23

111

112 H Horizons fusion of 68

I Integrity law as 34 Interpretation 61 constructive 34 in law 87

J Judgement of balance of judicial goals 86, 94, 97 Judgements Value, and Adjudication 85 Justice 12, 94 Justification of legal practice 35, 44

L Language modification of 102, 105 shared 102 Law continuous reconstruction 83 form of 81 goal-theory of 95 purpose of 84 valid 81

M Meaning literal 87

N Nietzsche 60

O Objectivity modest 43 Obligation legal 23 subjective judgements of 25

Index P Patterson 66 Perspectives alternative 86 Perspectivism 62 Plain-fact view of law 36, 44 Plato 12, 58, 59 Positivism hard 31 legal 5, 27 soft legal 19 Predictability 22, 30 Protagoras 58

R Realism ontological 55 Reality 51, 79 Reasoning approaches in 49 Relations celestial 49 Relativism 58, 59, 76 Rights legal 36 Rule of recognition, validity of 18 Rules vagueness of 19

S Scepticism 62 agnosticism or rejection 43 social kind of 66 within or outside 43 Skill legal 29 Socrates 59 Sovereign 9 Subjectivism sceptical 66 System legal 18

T Terms vagueness of 10

Index Text understanding of 103 Theory descriptive 79, 93, 97 natural law 25 of law, modernist 95 Thesis social 27 sources 27 Trumps in law 39 Truth a matter of agreement 69 alternative use of 63, 72, 76

113 correspondence theory 69 literal meaning of 70 way to ascertain 72 Truth-objectivism 62 U Use language 83 Utilitarianism 12 V Validity legal 16, 20