Abstract
This essay explores the implications of two well-known metaphors introduced by Ronald Dworkin and Carlos S. Nino: the “chain novel” and the “construction of cathedrals”. They are constructivist and practical metaphors that can be considered emblematic of the post-positivist conception of law. As such, they challenge the nuclear thesis of legal positivism: the value-free neutrality of law. This thesis implies that the legal domain is institutionally separated from morality and politics as a necessary condition for the autonomy of law. What is here defended is that the specific constructivist approach adopted by post-positivist theories offers, on the contrary, a better reconstruction of the idea that law has well-differentiated institutional limits. These limits are not denied by post-positivism, but rather redefined in a more complex and accurate way. Far from being limits merely “given” by rules, they rather result from the connection between these rules and some substantive values, a connection which is produced precisely by the intermediation of legal practice. This is the fundamental idea highlighted by the metaphors in comment and what makes the constructive element that emerges out of them particularly relevant.
This paper has been developed within the framework of the research project Una teoría post-positivista del Derecho (DER2017-86643-P) held by the Spanish Ministry of Economy, Industry and Competitivity.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
Let us just cite two very distant references from one another: the Aristotelian distinction between justice as geometric and arithmetic proportion (Eth. Nic., V) and Kelsen’s Neokantian view on jurisprudence as a “geometry of the legal experience” (Kelsen 1923, p. 93ff).
- 2.
Organic metaphors are ubiquitous and sometimes deceitful. One good example of that can be found in R. von Ihering, who in its first formalist period (The Spirit of Roman Law) referred to the “anatomy” and the “physiology of the legal organism” as well as to the “analysis” and the “synthesis” of the concepts, while in its latter period (The End in Law) when his approach was explicitly teleological and functional—no longer “mechanicist”—he however talked about “social mechanics”. The organic metaphor inspires otherwise the idea of law as a ramification of morality (Dworkin 2011, p. 405ff.: “A tree structure”) and it also underlies other well-known images like the “legal transplants” of legal comparatists (Watson 1993, p. 21; 2001: Ch. 7-8) or the “eye” of the law (Stolleis 2010).
- 3.
The image of law as an “axiomatic system” has been a persistent methodological ideal for legal rationality from the antiquity (when the Euclidian ideal of science was established as a system of propositions deduced from axioms) until contemporary times (when t formal logic is applied to law), including middle (Thomist iusnaturalism) and modern ages (the iusrationalist ideal of codification). See Alchourrón 1996; Alchourrón and Bulygin 2012.
- 4.
Let’s consider in that sense, for instance, a famous mechanic metaphor with enormous importance within the legal field—the scale—which has survived from ancient times as a traditional icon of justice itself (Kissel 1984, p. 92ff) and has been associated with the liberal ideology (checks and balances) that liquidated the mechanicist authoritarianism of the old regime (Mayr 1986, p. 139ff.). Its constructive meaning, however, substantially changes when interpreted under theoretical values (in congruence with its original context as a measuring instrument first for craftsmen and later for physicists) and it is then associated to supposedly objective scales and magnitudes, as it is the case in R. Alexy’s “weight formula” (Alexy 2003).
- 5.
The legislator that “establishes” or “gives” the law (nomothetes) actually produces it as a “craftman” (demiourgos). Just like a weaver or a houses or ships builder, he manufactures certain types of objects: laws (nomoi, including the foundational laws or constitutions) which are the “works” (erga) of politics (Eth. Nic., VI, 8, 1141b24-6; X, 9, 1180a21-3; Pol., II, 12, 1273b32-3; VII, 4,1326a30). These works have an “architectonic” character because they constitute the “order” (taxis) of the political community out of an institutional design or arrangement. The whole activity within the polis must remain governed by constitutional rules (the politeia that establishes the regime structuring public powers) and legislative rules: not only the activity of citizens in general, but also that of the political authorities themselves, the rulers, who are subject in their relations with the citizens to the legal rules “as manual workers [heirotechnai]” to the builder’s design (Eth. Nic., VI, 8, 1141b29).
- 6.
The positive law is produced “in the same way the constructor (artifex) has to determine the common design of a house in the figure of this or that house” (Sum. Theol., I-II, q. 95, a. 2; see Finnis 1989, p. 284ff., 294ff., 380). For Aristotle (1995), positive law or “legal justice” (nomikon dikaion) is “that which is originally indeterminate, but when it has been laid down is not indeterminate anymore” (Eth. Nic., V, 7, 1134b20). The “determination” of law is then a kind of practical production of an object that does not exist before such a production, remaining in strict dependence on the specific actions of legislators, magistrates and judges.
- 7.
- 8.
See Atienza 2017: chap. 1. The mature writing of von Ihering (1970) Der Zweck im Recht (1877), published in the United States in 1913 under the title Law as a Means to An End (Boston: Boston Book Co) had, via Pound, a significant influence on the realist movement, that turned the expression into an slogan (see Llewellyn 1931, p. 1223). Tamanaha 2006, p. 60ff.
- 9.
- 10.
It is revealing that an architectonic metaphor is here again at stake. This case it is yet a rather mechanicist or static one, as it differentiates between a “superstructure” (Überbau) and a “infrastructure” (Aufbau) supporting and “overdetermining” the former. This model tends to preclude virtually any autonomy of legal praxis due to its rigidly external, socioeconomic determinism: the jurist (specially the judge) is more of an “activist” than a “technician” or “social engineer”, which accordingly takes strategic decisions that are “political”, not institutional, on behalf of “ideologies”, not of values. See Kennedy 1997: chaps. 6–8; Santos 2009, p. 551ff.
- 11.
See., e.g., Pound’s (1960) distinction between “natural” and “positive” natural law; Llewellyn 2008 [1930]: xxix, (“legal machinery and justice”), 39ff., 86ff. (“legal justice”]), 174ff.; 461 (“common good”). Twining attributes to Llewellyn, of whom he was a student, the following phrase: “Technique without ideals may be a menace, but ideals without technique are a mess”] (Llewellyn 2008 [1930]: 67n.).
- 12.
Hart and Sacks (1994). Fuller (1969, p. 96) compared the “procedural” requirements of the “inner morality of law” to “those laws respected by a carpenter who wants the house be bullets to remain standing and serve the purpose of those who live in it.” For Summers (1971, 2006) law’s “technique element” and “formality” always fulfill a moral function.
- 13.
For instance: the “dynamic system” of law necessarily contains—Kelsen admits—”value judgements”, but these are only “relative” or “subjective”, not “objective” judgments, and thus law might actually incorporate “whatever content” (Kelsen 1960, p. 65ff., 204ff.); the moral-political functions of law as a system of rules allows require a “minimum content of natural law”, Hart concedes, but the validity of that system can be conceptually separated from any correction contents (Hart 1983; 1996, p. 185ff); law morally claims authority, but can be identified regardless of any evaluative consideration (Raz 1995, p. 210ff); the “axiomatic basis” of a legal system depends on the system of values that constitutes the legislator’s “relevance thesis” (Alchourrón-Bulygin 2002, p. 149ff.), and the formulation of the factual and normative predicates of any single rule can only be designed on the basis of value judgments relative to its rationale or “underlying reasons” (Schauer 1991, p. 23ff), but this evaluative dimension can be set aside and the attention focused just on the formal-propositional relations of logical consequence.
- 14.
Schauer (1991); Raz (1990), p. 58ff; Hart (1982), p. 243ff. It is worth noting that this approach to rules tends to survive in the post-positivist legal theories when they highlight rules all-or-nothing, subsumptive way of application (Dworkin 1978, p. 24ff.; Alexy 2003) or its “closed” structure (Atienza and Ruiz Manero 1998: Chap. I). The hallmark of post-positivism, as we will see right away, lies however in the distinction between rules and principles and their mutual interplay. This distinction entails a priority of the axiological over the deontological dimension of law, since an internal “duality” is introduced both at the level of rules (which result from balancing operations and require evaluations in order to be correctly applied) and at the level of principles (that have values as content and can only be applied by means of rules).
- 15.
- 16.
See how Raz (1995, p. 33) refers metaphorically in this regard to an “infection”.
- 17.
Raz (1979), p. 225. See, however, Raz (1995), pp. 334–335, where he seems to retract from this “analogy between legal reasoning and reasoning about practical engineering problems, or more generally between legal reasoning and reasoning about matters which Kant identified as the realm of the useful and the Greeks called techne”.
- 18.
The rationality criteria of the “legislative technique” (linguistic, pragmatic-intentional, systematic, etc.) are in fact subordinated to an “axiological reasonableness” that is transversal to all them (Atienza 2013, p. 715). According to Fuller, the “internal morality of law” is not a “substantive” but rather a “procedural natural law”, for it has to do “not with the substantive aims of legal rules, but with the ways in which a system of rules for governing human conduct must be constructed and administered if it is to be efficacious and at the same time remain what it purports to be”. Hence it remains “indifferent toward the substantive aims of the law and is ready to serve a variety of such aims with equal efficiency” (Fuller 1969, pp. 96–97, 153).
- 19.
It is worth noting that the “gothic enterprise” has been spoken of as an holistic “idea” or amalgamation of technical, moral, religious and philosophical ingredients (Scott 2003). Erwin Panofsky has studied along these lines the influence of the scholastic philosophy on the gothic style: “Like the High Scholastic Summa, the High Gothic cathedral aimed at ‘totality’ and therefore tended to approximate, by synthesis as well as elimination, one perfect and final solution” (Panofsky 1976, p. 44). Just like the scholastic dialectics, the construction progresses on the basis of a postulate of concordantia or reconciliation of styles and artistic and technical solutions in competition. In this synthesis work, sometimes constructive paths have to be projected that might apparently look erratic and deviant: “In retrospect, it is easy to see that what seems to be an arbitrary deviation from the direct road is in reality an indispensable prerequisite of the ‘final’ solution” (Panofsky 1976, pp. 63–64).
- 20.
References
Alchourrón CE (1996) On law and logic. Ratio Juris 9:331–348
Alchourrón CE, Bulygin E (2012) Sistemas normativos. Introducción a la metodología de las ciencias jurídicas, 2nd edn. [1971; 1975]. Astrea, Buenos Aires
Alexy R (1999) A Defence of Radbruch’s Formula. In: Dyzenhaus D (ed) Recrafting the rule of law. The limits of legal order. Hart Publishing, Oxford, pp 1–39
Alexy R (2002) A theory of constitutional rights [1985]. Oxford University Press, Oxford
Alexy R (2003) On balancing and subsumption. A structural comparison. Ratio Juris 16:433–449
Alexy R (2014) Formal principles: some replies to critics. Int J Const Law 12:511–524
Aristotle (1995) The complete works of Aristotle: the Revised Oxford Translation. Barnes J (ed). Princeton University Press, Princeton
Atienza M (2013) Curso de argumentación jurídica. Trotta, Madrid
Atienza M (2017) Filosofía del Derecho y transformación social. Trotta, Madrid
Atienza M, Ruiz Manero J (1998) A theory of legal sentences. Kluwer, Dordrecht
Atienza M, Ruiz Manero J (2001) La dimension institucional del Derecho y la justificación jurídica. Doxa 24:115–130
Barak A (2005) Purposive interpretation in law. Princeton University Press, Princeton
Black M (1962) Models and metaphors. Studies in language and philosophy. Cornell University Press, Ithaca
Black M (1993) More about metaphor. In: Ortony A (ed) Metaphor and thought. Cambridge University Press, pp 19–41
Cardozo BN (1921) The nature of the judicial process. Yale University Press, New Haven
Dworkin R (1977) Taking rights seriously. Harvard University Press, Cambridge
Dworkin R (1982a) ‘Natural’ law revisited. Univ Florida Law Rev XXXIV(2):165–188
Dworkin R (1982b) Law as interpretation. Tex Law Rev 60:527–550
Dworkin R (1985) A matter of principle. Harvard University Press, Cambridge
Dworkin R (1986) Law’s empire. Harvard University Press, Cambridge
Dworkin R (2011) Justice for Hedgehogs. Harvard University Press, Cambridge
Ekins R (2012) The nature of legislative intent. Oxford University Press, Oxford
Finnis J (1989) Natural law and natural rights. Clarendon Press, Oxford
Finnis J (1990) Natural law and legal reasoning. Cleveland State Law Rev 38:1–13
Frank J (1963) Law and the modern mind [1930]. Doubleday & Co. Inc., New York
Fuller LL (1969) The morality of law [1964]. rev edn. Yale University Press, New Haven
Hart HLA (1982) Essays on Bentham. Studies in Jurisprudence and political theory. Clarendon Press, Oxford
Hart HLA (1983) Positivism and the separation of law and morals [1958]. In: Essays in jurisprudence and philosophy. Clarendon Press, Oxford, pp 49–87
Hart HLA (1994) The concept of law [1961]. Clarendon Press, Oxford
Hart HM, Sacks AM (1994) In: Eskridge WN Jr, Frickey PP (eds) The legal process: basic problems in the making and application of law. The Foundation Press, Westbury, New York
Holmes OW (1952) The Path of the Law [1897]. Collected legal papers. P. Smith, New York, pp 167–202
Kelsen H (1923) Hauptprobleme der Staatsrechtslehre, entwickelt aus der Lehre vom Rechtssatze [1911], 2nd edn. Mohr, Tübingen
Kelsen H (1946) Society and nature. A sociological inquiry. K. Paul, Trench, Trubner & Co., London
Kelsen H (1960) Reine Rechtslehre. Mit einem Anhang: Das Problem der Gerechtigkeit, 2nd edn. F. Deuticke, Wien
Kennedy D (1997) A critique of adjudication (fin de siècle). Harvard University Press, Cambridge
Kissel OR (1984) Die Justitia. Reflexionen über ein Symbol und seine Darstellung in der bildenden Kunst. C. H. Beck, München
Llewellyn KN (1931) Some realism about realism - responding to dean pound. Harv Law Rev XLIV(8):1222–1264
Llewellyn KN (1960) The common law tradition: deciding appeals. Little, Brown & Co., Boston
Llewellyn KN (2008) The Bramble Bush [1930, 1951, 1960]. Oxford University Press, New York
Llewellyn KN (2011) The theory of rules. F. Schauer (ed). University of Chicago Press.
Losano MG (2002) Sistema e struttura nel diritto. Vol. I: Dalle origini alla Scuola storica, Vol. II: Il Novecento. Giuffrè, Milano
MacCormick N (1995) Defeasibility in law and logic. In: Bankowski Z et al (eds) Informatics, and the foundations of legal reasoning. Kluwer, Dordrecht, pp 99–117
Marmor A (2005) Interpretation and legal theory [1992], 2nd edn. Hart, Portland
Mayr O (1986) Authority, liberty, and automatic machinery in early modern Europe. The Johns Hopkins University Press, Baltimore
Nino CS (1989) El constructivismo ético. Centro de Estudios Constitucionales, Madrid
Nino CS (1994) Derecho, moral y política. Ariel, Barcelona
Nino CS (1996) The constitution of deliberative democracy. Yale University Press, New Haven
Nino CS (2013) Fundamentos de Derecho constitucional [1992]. Astrea, Buenos Aires
Oliver-Lalana A (2005) Legitimacy through rationality: parliamentary argumentation as rational justification of laws. In: Wintgens L (ed) The theory and practice of legislation: essays in Legisprudence. Ashgate, Aldershot, pp 239–258
Ortony A (ed) (1993) Metaphor and Thought [1979]. Cambridge University Press, Cambridge
Panofsky E (1976) Gothic Arquitecture and Scholasticism [1951]. New American Library, New York
Pérez Lledó JA (2008) El instrumentalismo jurídico en Estados Unidos. Palestra, Lima
Postema G (1998) Jurisprudence as practical philosophy. Legal Theory 4(1998):329–357
Pound R (1923) Interpretations of legal history. Harvard University Press, Cambridge
Pound R (1940-1)What is law? West Virginia Law Q LXVII(1):1–12
Pound R (1960) Natural natural law and positive natural law. Nat Law Forum 49:70–82
Pound R (2002) The ideal element in law [1958]. Liberty Fund, Inc., Indianapolis
Rawls J (1987) The idea of overlapping consensus. Oxford J Legal Stud 7:1–25
Rawls J (1993) Political liberalism. Columbia University Press, New York
Rawls J (1999) A theory of justice [1971]. Harvard University Press, Cambridge
Raz J (1979) The authority of law. Clarendon Press, Oxford
Raz J (1995) Ethics in the Public Domain. Essays in the morality of law and politics [1994]. Clarendon Press, Oxford
Raz J (2009) Between authority and interpretation. On the theory of law and practical reason. Oxford University Press, New York
Rundle K (2009) The impossibility of an exterminatory legality: law and the Holocaust. Univ Toronto Law J 59(1):65–125
Santos BS (2009) Sociología jurídica crítica. Ilsa-Trotta, Madrid
Schauer F (1991) Playing by the rules. Oxford University Press, Oxford
Schauer F (2004) The limited domain of the law. Virginia Law Rev 90:1909–1956
Scott RA (2003) The gothic enterprise. A guide to understanding the medieval Cathedral. University of California Press, Berkeley and Los Angeles
Stolleis M (2010) El ojo de la ley. Historia de una metáfora [2004]. Marcial Pons, Madrid
Summers RS (1971) The technique element in law. California Law Rev 59(3):733–751
Summers RS (1978) Two types of substantive reasons: the core of a theory of common-law justification. Cornell Law Rev 63(5):707–788
Summers RS (1982) Instrumentalism and American legal theory. Cornell University Press, Ithaca
Summers RS (2006) Form and function in a legal system. Cambridge University Press, New York
Tamanaha BZ (2006) Law as a means to an end. Threat to the rule of law. Cambridge University Press, New York
Thomas Aquinas (1956) Summa Theologiae. BAC, Madrid
von Ihering R (1970) Der Zweck im Recht [1877, 1883]. In: Helfer C (ed) Hildesheim. Olms, New York
Watson A (1993) Legal transplants. An approach to comparative law [1974], 2nd edn. The University of Georgia Press, Athens Georgia
Watson A (2001) The evolution of Western private law [1985], expanded edn. The Johns Hopkins University Press, Baltimore
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2022 The Author(s), under exclusive license to Springer Nature Switzerland AG
About this chapter
Cite this chapter
Vega, J. (2022). Constructivist Metaphors and Law’s Autonomy in Legal Post-Positivism. In: Aroso Linhares, J.M., Atienza, M. (eds) Human Dignity and the Autonomy of Law. Law and Visual Jurisprudence, vol 7. Springer, Cham. https://doi.org/10.1007/978-3-031-14824-8_6
Download citation
DOI: https://doi.org/10.1007/978-3-031-14824-8_6
Published:
Publisher Name: Springer, Cham
Print ISBN: 978-3-031-14823-1
Online ISBN: 978-3-031-14824-8
eBook Packages: Law and CriminologyLaw and Criminology (R0)