Rodriguez-Blanco Veronica (2018)Authority of Law, In: Bongiovanni G., Postema G., Rotolo A., Sartor G., Walton D., Valentini C. (eds.), Handbook of Legal Reasoning and Argumentationpp. 219-240
Law transforms our lives in the most important way: it changes how we act and because of this it gives rise to fundamental questions. One such question concerns legal authority and individual autonomy and asks; if we are autonomous agents how do legislators, judges and officials have legitimate authority to change our actions and indirectly change how we conduct our lives? We conceive ourselves as active agents who determine how and when to act, and we conceive ourselves as the planners of our own lives and the creators of change. Law asks us, however, to perform actions that range from the trivial to the complex. But how is it possible for me to do, in full awareness, as the law asks and, at the same time, be in control of my own destiny? How is my free will affected by the law?
There are many key distinctions that play an important role in mapping out plausible ways of thinking about law construed as a social practice. Among the varied dichotomies the one that has probably been most infl uential is the distinction between a description of an action and the normative characterisation of an action. The former aims to explain the action without resorting to the values or principles of the agent; the latter aims to show how actions are part of the normative landscape where values, principles and other normative standards play a key role. The focus might be on the values, principles and standards of the agent or on values, principles and standards that are objective. 1 In previous work 2 I have defended the view that the primary conception of intentional action is normative all the way through. There is no ‘ brute fact ’ or ‘ pure facts ’ about actions and therefore actions cannot primarily be grasped by descriptors of the world either mental, physical or of a similar sort. I have argued that in order to make intentional actions intelligible we need to resort to the values or principles or goodmaking characteristics that the agent aims to bring about in the world and we need to understand that the values, principles or good-making characteristics of the action provide a unity and intelligibility to the various bodily movements of the agent. This is a complex and occasionally diffi cult understanding of agency but it is one that, in my view, is sound. The core elements of this account of agency are that (a) there is a parallel between practical reason or deliberative reasoning and intentional action; (b) practical reasoning involves practical knowledge which is non-observational; (c) the error of an action stems not from what the world looks like but from the performance of the agent; and (d) intentional action is primarily from the fi rst person or deliberative point of view and therefore it is forward-looking. I will not provide a full defence of features (a), (b) or (c) in this chapter; rather I will focus only on (d) and will argue that this feature provides the key premise for the conclusion that a characterisation of actions in social practices, including law, cannot be carried out on the basis of descriptions. I will fi rst show that (d) is true and I will then advance the best account of actions in terms of descriptions provided by legal philosophers in recent years, which is the idea that actions and the resulting social practices can correctly be grasped as ‘ deep conventions ’ . Finally, I will show that conventions sensu stricto and deep conventions require (d) to be intelligible.
Dworkin advances the view that judges decide legal cases according to the methodology of constructive interpretation and, hence, in their answer to a legal question judges focus on providing the best possible interpretation of the law in light of the two criteria of fitness with past legal materials and moral soundness. The aim of this constructive interpretative exercise is to justify the coercion of the State. This is key to understanding Dworkin’s criticism of the rule-based account of legal decision-making processes by judges. A trivial implication of this view is that officials and citizens comply with the law because of the justification advanced by judges in their exercise of constructive interpretation. Consequently, neither officials nor citizens comply with the law because they have been coerced or because they have been simply told to do so. It must be questioned, however, whether constructive interpretation really can provide any guidance since officials and citizens have been asked to accept the interpretation of the law put forward by the judges and, arguably, this interpretation is the best possible interpretation of what the law is in a particular case. Moreover, why should officials and citizens accept the indicated interpretation? Do officials/citizens simply accept the justification provided by judges or do they, rather, simply believe that the indicated interpretation is the sound and desirable interpretation of legal practice, and this belief causes the appropriate action? Is this a plausible conception to explain our compliance with legal decisions?
This collection of new essays explores in depth how and why we act when we follow practical standards, particularly in connection with the authority of legal texts and lawmakers. The essays focus on the interplay of intentions and practical reasons, engaging incisive arguments to demonstrate both the close connection between them, and the inadequacy of accounts that downplay this important link. Their wide-ranging discussion includes topics such as legal interpretation, the paradox of intention, the relation between moral and legal obligation, and legal realism. The volume will appeal to scholars and students of legal philosophy, moral philosophy, law, social science, cognitive psychology, and philosophy of action.
In her recently published book Judging Positivism, Margaret Martin engages with the entire corpus of Joseph Raz’s legal philosophy and closely scrutinizes the development of Raz’s ideas on the nature of law and legal authority, from his early book Practical Reason and Norms to his later work Ethics in the Public Domain . Martin’s book has much to offer those interested in understanding Raz’s ideas in legal philosophy and the possible interconnections among his very prolific writings in legal philosophy.
In his book The Concept of Law, Hart advances an arresting idea: the internal point of view. The idea immediately captured the imagination of legal theorists and was envisaged as a step forward in understanding both the nature of law and its practices. There is, however, lack of clarity and ambiguity on understanding Hart’s important notion and its role in different key jurisprudential problems such as the normativity of law and the methodology of legal theory. This article reconstructs the intellectual roots of the internal point of view and argues that although the seeds of Hart’s idea can be found in Winch’s seminal book The Idea of a Social Science, there are striking differences between Hart’s and Winch’s notions of the internal point of view. Winch endeavors to explain the participant’s viewpoint in terms of what the participants are doing. On the other hand, Hart aims to provide an explanation of how the law enables judges and law-abiding citizens to determine what they ought to do. This difference has been often overlooked by legal scholars; however, it provides the key to understanding Hart’s connection between the internal viewpoint and the normativity of law, i.e., the idea that legal rules provide reasons for action and, in some circumstances, create and impose duties and obligations. The distinction also illuminates the demarcation in the methodology of legal theory between an explanation from a detached perspective, namely the second or third-person standpoint of the practical point of view and, on the other hand, either a theoretical or hermeneutical explanation of the participant’s point of view. I argue that the non-recognition of the practical/participant distinction has been pervasive in two ways. First, there has been an overemphasis on the distinction between the internal and the external point of view. Second, a more fundamental distinction between an ‘engaged’ and ‘detached’ viewpoint which is a predominant feature of the practical point of view has been under-researched.
Rodriguez-Blanco examines Enrico Pattaro’s effort to explain the normativeness or binding force of the law. Pattaro defends the controversial claim that norms are motives of behaviour and provides a rich explanation of how these motives, i.e., beliefs in the human brain, move human agency. In her review, Rodriguez-Blanco challenges Pattaro’s empirical conception of human agency.
This paper analyses and criticizes Joseph Raz's attacks on coherentist theories. It is argued that Raz's characterisation of epistemic coherence theories is too narrow and that his criticism of constitutive coherence theories is based on a conceptual mistake in his own description. The study is an indirect argument to rethink coherence theories of law and adjudication within a more powerful framework than that propounded by Raz.
The book shows the relevance of meta-ethical and metaphysical considerations to determine the nature of law and the connection between objective moral and legal judgements.
Two methodological claims in Hart's The Concept of Law have produced perplexity: that it is a book on “analytic jurisprudence”H.L.A Hart, THE CONCEPT OF LAW (1994). and that it may also be regarded as an essay in “descriptive sociology.”Id. Are these two ideas reconcilable? We know that mere analysis of our legal concepts cannot tell us much about their properties, that is, about the empirical aspect of law. We have learned this from philosophical criticisms of conceptual analysis; yet Hart informs us that analytic jurisprudence can be reconciled with descriptive sociology. The answer to this puzzle lies in the notion of nonambitious conceptual analysis. The theorist analyzes concepts but accepts the limitations of conceptual analysis and therefore uses empirical knowledge and substantive arguments to explain, refine, or perhaps refute initial insights provided by intuitions. This is the conclusion that this paper arrives at as an argumentative strategy to defend Hart's legal theory from the criticisms of Stavropoulos and Dworkin. The latter argues that Hart's legal theory cannot explain theoretical disagreements in law because he relies on a shared criterial semantics. Stavropoulos aims to show that Hart's semantics is committed to ambitious conceptual analysis and relies on the usage of our words as a standard of correctness. Both attacks aim to show that the semantic sting stings Hart's legal theory. This essay refines both challenges and concludes that not even in the light of the most charitable interpretation of these criticisms is Hart's legal theory stung by the semantic sting. This study defends the view that Hart's methodological claims were modest and that he was aware of the limits of conceptual analysis as a philosophical method. He was, this study claims, far ahead of his time.
The received view on the nature of legal authority contains the idea that a sound account of legitimate authority will explain how a legal authority has a right to command and the addressee a duty to obey. The received view fails to explain, however, how legal authority truly operates upon human beings as rational creatures with specific psychological makeups. This book takes a bottom-up approach, beginning at the microscopic level of agency and practical reason and leading to the justificatory framework of authority. The book argues that an understanding of the nature of legal normativity involves an understanding of the nature and structure of practical reason in the context of the law, and advances the idea that legal authority and normativity are intertwined. This point can be summarised thus: if we are able to understand both how the agent exercises his or her practical reason under legal directives and commands and how the agent engages his or her practical reason by following legal rules grounded on reasons for actions as good-making characteristics, then we can fully grasp the nature of legal authority and legal normativity. Using the philosophies of action enshrined in the works of Elisabeth Anscombe, Aristotle and Thomas Aquinas, the study explains practical reason as diachronic future-directed intention in action and argues that this conception illuminates the structure of practical reason of the legal rules' addressees. The account is comprehensive and enables us to distinguish authoritative and normative legal rules in just and good legal systems from 'apparent' authoritative and normative legal rules of evil legal systems. At the heart of the book is the methodological view of a 'practical turn' to elucidate the nature of legal normativity and authority.
Legal philosophers share the same phenomenology of legal practice. Yet, they differ in its explanation. For normativists, descriptivists got it wrong and vice versa. This controversy between normativists and descriptivists will be called “the methodological problem” in legal theory. Normativists such as Dworkin and Perry argue that descriptivists need evaluation. By contrast, descriptivists such as Coleman argue that normativists need the methods of descriptivism such as conceptual analysis and therefore might be committed to descriptivism. The paper shows that the responses of Perry and Coleman to the methodological problem are not free from difficulties. The article also advances a reinterpretation of normativism in terms of two tenets: 1. the semantic sting argument, and 2. the ametaphysical thesis argument. If the latter argument is sound, normativism is unavoidable, because if there cannot be an external point of view or Archimedean perspective, then we can only resort to our moral convictions or substantive claims. The first tenet has been criticized in previous work and the paper focuses on a criticism of the second tenet.
This review article examines David Enoch’s recent book Taking Morality Seriously and focuses on ‘the deliberative indispensability of irreducibly normative truths’ which is a central argument of the book. I will show that this important and original argument as it stands fails. I will also argue that if Enoch had embraced all the consequences of his argument, then he would have opened up a more promising line of argument via which to defend the robust realism of normative truths. I will, therefore, attempt to defend a modified version of robust realism of normative truths and, in so doing, I will show how all the implications of Enoch’s insight can fully be embraced. I will finally demonstrate how this modified version illuminates some Dworkinian insights on the nature of law, but also undermines Dworkin’s theory of constructive interpretation.
Kelsen advanced a sophisticated naturalist conception of intention and adumbrated a methodological strategy that would enable the transformation of the sophisticated naturalist conception of ‘intention’ into a cognizable object of legal science while simultaneously providing an explanation of the legal ‘ought’. The methodological strategy is the ‘inversion thesis’ which establishes that legal norms enable us to objectively identify and determine the ‘will’ or the intention of legal authority. Contrary to nineteenth century psychologism, Kelsen argues that it is not the case that the will or the intention of the sovereign determines what the norm is, rather it is the legal ought that ‘objectifies’ the will. However, it is argued that in spite of the fact that Kelsen advanced a sophisticated account of intentional action, he fails to understand the complexities of the notion of the ‘will’, intentional action and practical reason. What does he miss in his understanding of the notion of the practical? I will advance the view that the notion of the practical or deliberative involves, both in Kant and Aristotle, the transparency condition which establishes that the agent or deliberator intentionally acts for reasons that are self-evident or transparent to him or her. It is a recalcitrant feature of the deliberative standpoint that cannot be theorised. For Aristotle, Aquinas and Anscombe the deliberative standpoint can be known through the end or goal of the intentional action as this provides the form of the action. The end is presented as a good-making characteristic. As problematic as that might be, this means that the end needs to be presented as a good-making characteristic and therefore it involves evaluation. For Kelsen, the soundness of this conception is an insurmountable obstacle to theorise the ‘ought’ and therefore the ‘will’. Yet, surprisingly and contrary to Kelsen’s own notions, I will show that Kelsen’s ‘inversion thesis’ is parasitic on Aristotle–Anscombe’s ‘ought’.
Raymond Geuss asserts that there are fragmented views on what human rights are and that there is no unifying principle underlying such notion. I think that this view has its merits. It conveys the particularity of our perspectives, attitudes, desires and self-understandings. It rejects abstractness and is committed to a thick, perspectivist, historical understanding of personhood. To understand who we are, is to understand how we arrive at being who we are. By contrast, the notion of human rights deploys abstractness, unification of agency, necessity and a thin view of personhood. In this paper, I attempt to bring into focus these two aspects of the notion of human rights. I will first analyse the genealogical method advocated by Geuss and argue that it has the merit of elucidating our historical contingencies; however, it is argued that any view in favour of the genealogical method relies on the idea that evaluative or normative concepts cannot be defined in terms of a common denominator. We reconstruct the Aristotelian idea of 'focal meaning' as core-resemblance and show that there is a unifying concept of human rights. We conclude that the perspectivist spirit of genealogy is not far from the Aristotelian tradition. Aristotle's inquiry into a concept that could grasp different perspectives and contingencies as opposed to a Platonic understanding of abstract and universal forms shows that genealogical worries are germane to the tradition.
This article contends that Dworkin's notion of ‘genuine’ theoretical disagreements, which is a fundamental pillar in his criticism of legal positivism and semantic disagreements, requires a realist reinterpretation. This view is defended according to two core arguments. First, a realist reinterpretation of ‘genuine’ theoretical disagreements enables Dworkin to avoid semantic criticisms such as the one advanced by Joseph Raz, who propounds a sophisticated model of criterial semantics to explain theoretical disagreements. Second, to make intelligible the distinction between theoretical and semantic disagreements in law, we need to resort to realist elements. The conclusion is striking and in clear contradiction with Dworkin's ametaphysical and epistemic abstinence. The article shows that there is a problematic tension within Dworkin's constructivist project and that he should revise either its ametaphysical view and epistemic abstinence, or notions such as ‘genuine’ theoretical disagreements.
My aims in this paper are twofold. First, to demonstrate that, contrary to appearances, the ‘coercion question’ does in fact arise in transnational legal contexts once we properly understand the different features of coercion. Second, to defend a sound conception of the Rule of Law which will lead us to the heart of the correct question concerning the Rule of Law, i.e. what is the grounding that enables us to understand how participants of a legal practice comply with regulations, rules, directives, and principles (RRDPs)? Legal philosophers tend to defend one model of the Rule of Law over another assuming the truth of a certain view on human action and without much defence of this assumption. The method that I propose in this paper is the opposite. I propose to put the horse before the cart, i.e. to explain how human beings comply with RRDPs. This explanation will pave the way to understanding coercion at the transnational level. I will also argue in favour of a thick conception of the Transnational Rule of Law. The methodology that I defend establishes that a sound understanding of the Rule of Law entails posing the correct question about the Rule of Law, i.e. how participants comply with the RRDPs of transnational law, and how law created by human beings is able to bind other human beings and guide them in their conduct.The thought is that if we understand this basic question, then we can understand how the Transnational Rule of Law operates and why it is necessary. Finally, I discuss some possible objections to this view.
Can Hart's non-cognitivism be reconciled with his rejection of the predictive and sanction-based explanations of law? This paper analyses Hart's notion of the internal point of view and focuses on the notion of acceptance of a rule along the lines of a non-cognitivist understanding of intentional actions. It is argued that a non-cognitivist analysis of acceptance of rules is incomplete and parasitic on a more basic or primary model of acceptance that does not involve mental states. This basic or primary model of acceptance explains actions in terms of other actions and in terms of reasons for actions that are both presented as good-making characteristics and transparent to the agent. If Hart's internal point of view is able to work as the key argument to reject predictive and sanction-based explanations of law, it needs to make the outward approach of intentional action basic or primary rather than rely on an inward approach such as the one advanced by non-cognitivism.
Viola has advanced a model, inspired by Gadamer, that I will call «hermeneutic practical interpretation» and has endeavoured to reconcile it with pragmatic interpretative theories in order to explain «other-directed actions and intentions». The key argument is that intention is about meaning and therefore also about interpretation. I will challenge the view that the understanding of «other-directed actions and intentions» should be conceived as an «interpretative» or «hermeneutic» exercise. My argument is that it is via practical reason (all the way through) that we can satisfactorily explain and provide a solution to the «guidance» problem and «other-directed actions».
In the first part of this paper, I discuss the different kinds of objectivity; general and legal objectivity more specifically. In the second part, I endeavour to explain the two main views that have been advanced to answer four core questions on legal objectivity. The first is whether moral and legal values are objective. Second, what is the nature of the relationship between legal and moral values? The third is whether, due to the specific nature of law, we should consider a domainspecific conception of objectivity for legal values. The fourth concerns whether there is a correspondence between legal values and legal facts. What is the explanation of the platitudes about the nature of law such as that law is reasongiving, normative or authoritative in character? In other words, do legal facts have a place in our ‘disenchanted’ or naturalistic (in the scientific sense) understanding of the world. In the final section of this paper, I evaluate naturalism and nonnaturalism in law and consider the future of the debate and its relevance for understanding the connection between law, morality and legal normativity.
It is often claimed that John Finnis's natural law theory is detachable from the ultimate theistic explanation that he offers in the final chapter of Natural Law and Natural Rights. My aim in this paper is to think through the question of the detachability of Finnis's theistic explanation of the natural law from the remainder of his natural law view, both in Natural Law and Natural Rights and beyond. I argue that Finnis's theistic explanation of the natural law as actually presented can be, without too much strain, treated as largely detachable in the way that his readers have by and large supposed it to be; indeed, Finnis's account as actually presented really amounts to no explanation of the natural law at all, theistic or otherwise, and that fact accounts in part for the ease with which Finnis's natural law view can be detached from theism of that final chapter. Nevertheless, the considerations raised in that chapter militate in favor of a much more thoroughgoing, largely nondetachable theistic account. And it is just such an account that we find Finnis affirming in the development of his views after Natural Law and Natural Rights.
I will argue that Dworkin’s limiting condition of dignity, whose defining pillars are self-respect and authenticity, cannot establish the required boundaries to guarantee a place for morality in the ethical domain. As a result the ‘constructive model’does not offer a genuine integration between morality and ethics. On the contrary, morality is pushed aside and the remaining space is for ethical responsibilities alone. In Dworkinean language what is left is ‘living well’, i.e. striving to have a good life without limiting conditions. I show that under Dworkin’s constructive model, the ‘source’of the performance and activities in our striving to live well is not necessarilyour rational nature.
In§2 I discuss Dworkin’s idea of dignity and his constructive model with the aim of overcoming the separation between morality and ethics. In §3 I contrast Dworkin’s notion of dignity with the Kantian notion of dignity and show that my reading of the Kantian conception of dignity provides opportunity for the integration of ethics and morality. I also discuss a possible objection to my proposal.
Macklem argues in his book Law and Life in Common that law and legal systems arise from the interplay between reason, will and imagination. He aims to show that critical theories of law, which construe law as will or power, have an element of truth since their focus on the idea of will or power sheds light on the contingent, open and plural features of the law. He aims to unify a) Raz’s Service Conception of Authority, which is grounded on reason; b) critical theories of law, which focus on will (or power), and c) Dworkin’s constructive theory of law which is built around the idea of imagination. Macklem tells us that unification is possible if we admit that each of these theories is incomplete and if we subsequently use this incompleteness to consider the respective notions each theory is grounded in, i.e. reason, will and imagination, to show how a complete and satisfactory picture of law as social practice can emerge.
In this paper, I argue in favour of a model of intention as diachronically directed to an end. Thus, intention is conceived as an activity, process or bringing about of an object or state of affairs. This model explains how we effectively produce artefacts and specific kinds of artefacts which are institutional facts, including law. Furthermore, I reject the model of intention as a mental state since it cannot explain how mental states are effectively connected to its intended effects. The alternative solution advanced by the classical tradition and some contemporary authors, such as Anscombe, provides the idea of intention as a process of bringing about something. Intentions run parallel to our capacities for reasoning and this process creates an order to reasons that makes intelligible the product of the process. This sheds a new light on the idea that law is an artefact and therefore something that we bring about in the world.
Much controversy has emerged on the demarcation between legal positivism and non-legal positivism with some authors calling for a ban on the -as they see it- nonsensical labelling of legal philosophical debates. We agree with these critics; simplistic labelling cannot replace the work of sophisticated and sound argumentation. In this paper we do not use the term ‘legal positivism’ as a simplistic label but identify a specific position which we consider to be the most appealing and plausible view on legal positivism. This is the view advocated by Gardner in his paper 'Legal Positivism: 5½ Myths’ (Gardner 2001, 199), where he carefully scrutinises the most convincing and unifying postulates of legal positivism, which he calls “the thin view”. The study shows that this thin view presupposes an empirical conception of action that is untenable and implausible since it makes acts of engagement with the law unintelligible to an observer of such acts. The paper is divided into six sections. §1 aims to give an accurate and charitable explanation of Gardner’s thin view of legal positivism, which includes the possibility of recognising actions of engagement with the law that are inert. Section 2 sets the stage for the critical discussion using the example of a fictional country called DYSTOPIA where King Positus promulgates law with the aim of causing chaos in the activities of the citizens. The question we ask is, ‘What enables an imaginary observer to recognise what Gardner calls ‘acts of engagement’ with the law? In order to provide a plausible answer to this question we argue in sections 3 and 4 both that Gardner’s thin conception of legal positivism presupposes an empirical view of human action and that the sound conception of human action cannot be an empirical one. We use what we call Anscombe’s ‘institutional transparency thesis’ defended in ‘On Brute Facts’ (Anscombe 1958, 69) to show that the intelligibility of human action presupposes an institutional context but does not entail a description of that context. In §4 we stay with the example of DYSTOPIA to show that an imaginary observer cannot know whether or not there is a legal system in DYSTOPIA unless he/she understands the purpose of an institution that has already been learned within an institutional context. This conception of action is purposeful as opposed to empirical. §5 argues that the paradigm or central-case methodology, as opposed to the necessary and/or sufficient conditions methodology, used to understand social practices, including law, has at its centre the non-empirical view that human action and its purpose is given rather than discovered. Through this indirect argumentative strategy one myth of classical natural law is therefore dispelled. We argue that classical natural law does not aim to discover through moral facts or moral ideals the suitable ends to the kind of creatures we are, because this is not how ends participate in our practical reasoning and actions. On the contrary, ends are already given and our laws, games, ways of loving, thinking, enjoying and living our lives all aim at better understanding these given ends.