Skip to main content

The Real Ratio Legis and Where to Find It

A Few Pragmatic Considerations

Abstract

The term ratio legis is an important term of legal practice. Thus, reflection over the general conceptual content of ratio legis may be a window through which practitioners could see the relevance of philosophizing about terms and arguments applied generally in legal practice. However, the primary question with regard to ratio legis is not conceptual but existential: is there any real ratio legis that can be discovered and described? The positive answer opens the door for further investigation over the term’s real conceptual content. I will argue, however, that the answer to this question cannot be positive and every qualification of something as the “law’s reason” is a creative activity. If it is so, then every instance of such a labeling (in which one says, “The ratio legis of this legislative act is X”) is in need of further justification. The example of ratio legis shows that legal theorizing is profoundly a normative study of how we should, rather than of how we do, use legal terms (concepts).

Keywords

  • Ratio Legis
  • Legal Practice
  • Recalcitrant Experience
  • Ratio Iuris
  • Ratio Juris

These keywords were added by machine and not by the authors. This process is experimental and the keywords may be updated as the learning algorithm improves.

This chapter was written as a result of a research project No. 2016/21/D/HS5/03839, financed by the Polish National Science Centre.

This is a preview of subscription content, access via your institution.

Buying options

Chapter
USD   29.95
Price excludes VAT (USA)
  • DOI: 10.1007/978-3-319-74271-7_1
  • Chapter length: 15 pages
  • Instant PDF download
  • Readable on all devices
  • Own it forever
  • Exclusive offer for individuals only
  • Tax calculation will be finalised during checkout
eBook
USD   89.00
Price excludes VAT (USA)
  • ISBN: 978-3-319-74271-7
  • Instant PDF download
  • Readable on all devices
  • Own it forever
  • Exclusive offer for individuals only
  • Tax calculation will be finalised during checkout
Softcover Book
USD   119.99
Price excludes VAT (USA)
Hardcover Book
USD   169.99
Price excludes VAT (USA)

Notes

  1. 1.

    See Wróblewski (1966).

  2. 2.

    See Dworkin (1986), p. 90.

  3. 3.

    See Sunstein (1995).

  4. 4.

    Cf. Scheppele (1990) and Leiter (2007).

  5. 5.

    See Johnston and Leslie (2012).

  6. 6.

    “Hume’s predicament” is an idea of D. Hume that the stock of our instinctive beliefs about the world is in fact rationally indefensible, because every scientific reconstruction (system) that we try to present cannot be rationally defended, simply because the construction of the system by the human mind relies not on the observation and experiment, but rather—to a great extent—on different types of inferences (mainly “causal” in character). In consequence, we can never be sure whether the “systematic” knowledge about a certain supposed object is any knowledge at all (because, inter alia, even the existence of such an object cannot be rationally acceptable). In our case, we ask whether certain concepts exist and what their contents are. But how can we rationally do so? (For a further discussion of Hume’s predicament, see for example Aune 1991, p. 177).

  7. 7.

    See White (2002), p. 3.

  8. 8.

    See White (1963), pp. 279–280.

  9. 9.

    See James (1907), p. 192; cf. White (1963), pp. 277–278.

  10. 10.

    T. Gizbert-Studnicki describes the whole enterprise in the following way: “The subject matter of legal philosophy is not law as a part of mind-independent reality but rather the folk theory of law: how law is comprehended and perceived by members of society. Such folk theory is not explicitly formulated anywhere. Rather, it is indirectly manifested in certain popular beliefs and convictions in which responses to possible cases are based. Such popular beliefs (…) constitute the point of departure for legal theory.” (Gizbert-Studnicki 2016, p. 142).

  11. 11.

    See for example Johnston and Leslie (2012) (and literature indicated there).

  12. 12.

    See White (1965), p. 66.

  13. 13.

    See Berger (1991), p. 667.

  14. 14.

    Davidson’s description of “intentional action” is as follows: “A φs for a reason→(for some property F, (i) A has some pro-attitude toward actions which are F, (ii) A believes that her φing is F, and (iii) this belief and desire caused A ‘in the right way’ to φ).” It follows that the idea of causation is fundamental to understand the idea of reasonable action. It does not mean, of course, that the idea of reason can be reduced to the idea of a cause, but for Davidson the first idea is much more obscure (for further details, see Davidson 1971, pp. 43–61).

  15. 15.

    Note that speaking about causes is inevitable if we want to present a descriptive use of ARL. Even if an agent (legislator) acts on reasons, a historian (here, lawyer) who tries to describe the action does it in a causal mode. The lawyer’s descriptive reasoning is causal even if the agent’s own reasoning is not. This point was illustrated by White (1965), pp. 186–194.

  16. 16.

    For a more detailed discussion on casual interpretation, see White (1965), pp. 105–181.

References

  • Aune B (1991) Knowledge of the external world. Routledge, London

    CrossRef  Google Scholar 

  • Berger A (1991) [1953] Encyclopedic dictionary of Roman law. Transactions of the American Philosophical Society; New Series. 43:2. The American Philosophical Society, Philadelphia

    Google Scholar 

  • Davidson D (1971) Agency. In: Essays on actions and events, chapter 3. Oxford University Press, Oxford, pp 43–61

    Google Scholar 

  • Dworkin R (1986) Law’s empire. Harvard University Press, Cambridge

    Google Scholar 

  • Gizbert-Studnicki T (2016) Social sources thesis and metaphilosophy. In: Banaś P, Dyrda A, Gizbert-Studnicki T (eds) Metaphilosophy of law. Hart, Oxford, pp 121–146

    Google Scholar 

  • James W (1907) Pragmatism. Longmans, Green, New York

    Google Scholar 

  • Johnston M, Leslie S-J (2012) Concepts, analysis, generics and the Canberra plan. Philos Perspect 26:113–171

    CrossRef  Google Scholar 

  • Leiter B (2007) Explaining theoretical disagreement. Univ Chic Law Rev 76:1215–1250

    Google Scholar 

  • Scheppele KL (1990) Facing facts in legal interpretation. Representations 30:49–54

    CrossRef  Google Scholar 

  • Sunstein CR (1995) Incompletely theorized agreements. Harv Law Rev 108(7):1733–1772

    CrossRef  Google Scholar 

  • White M (1963) Towards the reunion in philosophy. Atheneum, New York

    Google Scholar 

  • White M (1965) Foundations of historical knowledge. Harper & Row, New York

    Google Scholar 

  • White M (2002) A philosophy of culture: the scope of holistic pragmatism. Princeton University Press, Princeton

    Google Scholar 

  • Wróblewski J (1966) Postawa filozoficzna i afilozoficzna we współczesnej teorii prawa. Studia Prawnicze 13:60–89

    Google Scholar 

Download references

Author information

Authors and Affiliations

Authors

Corresponding author

Correspondence to Adam Dyrda .

Editor information

Editors and Affiliations

Rights and permissions

Reprints and Permissions

Copyright information

© 2018 Springer International Publishing AG, part of Springer Nature

About this chapter

Verify currency and authenticity via CrossMark

Cite this chapter

Dyrda, A. (2018). The Real Ratio Legis and Where to Find It. In: Klappstein, V., Dybowski, M. (eds) Ratio Legis. Springer, Cham. https://doi.org/10.1007/978-3-319-74271-7_1

Download citation

  • DOI: https://doi.org/10.1007/978-3-319-74271-7_1

  • Published:

  • Publisher Name: Springer, Cham

  • Print ISBN: 978-3-319-74270-0

  • Online ISBN: 978-3-319-74271-7

  • eBook Packages: Law and CriminologyLaw and Criminology (R0)