Abstract
Some key issues of a legal metaphysics are finally addressed. The semantic qualities of a legal assertion on how to construct and read the law, i.e. its truth-value (reference/Frege; extension/Carnap) and specific meaning-content (sense/Frege; intension/Carnap), is defined as conditional upon, and determined by, the particular frame of legal analysis adopted. The ontological edifice of law, to the effect of “what there is” in the legal universe, consists of three elements: the logical constitution, normative ontology, and structural axiology of law. They provide for the constitutive elements of the domain of law, with reference to (a) legal concepts and their systemic relations, (b) legal rules and legal principles, and (c) societal values and collective goals under Jerzy Wróblewski’s three ideologies of judicial decision-making. A systemic order of things is thought to prevail among the rules and principles of law of a given legal system, as judged in light of Carlos Alchourrón’s and Eugenio Bulygin’s notion of (the process of) legal systematization and (the outcome of) legal systematics. According to those two Argentinian scholars, legal systematization signifies a reformulation of the basic normative system that was initially laid down by the legislator: “The reformulation of a system consists in the replacement of the basis by a new one, that is less extensive, more general and normatively equivalent.” The requirement of normative equivalence between the two normative systems boils down to the requirement that the same normative consequences be attached to the same facts under both normative systems. Alchourrón’s and Bulygin’s notion of legal systematization is elaborated with Rudolf Carnap’s semantics: two normative systems are equivalent, if and only if they are equivalent in extension and equivalent in intension. They are equivalent in extension, if and only if they obtain the same truth-value on the same values of variables; and they are equivalent in intension, if and only if they produce the same set of meaning-contents on the same values of variables. The requirement of normative equivalence, though valid from the point of view of logic, will not fully satisfy or exhaust the epistemic needs and expectations held by the legal profession vis-à-vis legal systematics. Therefore, a substantive notion of (the process of) legal systematization and (the outcome of) legal systematics is given by locking up a complex priority order among the rule/rule, principle/principle, and rule/principle combinations in a legal system. Textual coherence, institutional authorities, and legal community are identified as the three constituents of legal deliberation under Wróblewski’s ideology of legal and rational judicial decision-making, as effected in various configurations under the six frames of legal analysis discerned under it. Finally, the future of analytical jurisprudence is viewed in light of the recent changes in society and the inherent potential of the analytical approach to encompass different theories, models, or approaches of law for a value-free, ideologically neutral judgment.
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Notes
- 1.
The same goes for any feasible definition of post-modern law with at least as good a reason, no matter what specific reading is attached to the fuzzy, problematic attribute post-modern.
- 2.
In the text, the sub-index “L” refers to the legal elements in the sense of the institutional (and partly societal) tenets, the sub-index “F” to the formal elements, and the sub-index “S” to the substantive or axiological-teleological elements involved.
- 3.
Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning, p. 35 et seq., and summarizingly p. 36.
- 4.
Wilhelmsson, Social civilrätt.
- 5.
Foucault, Les mots et les choses.
- 6.
Carnap, The Logical Syntax of Language.
- 7.
The phrase is commonly attributed to Thomas Erskine Holland. Cf. Holland, Essays on the Form of the Law (London, 1870), as cited in Reimann, “Holmes’s Common Law and German Legal Science”, p. 114.
- 8.
On the two notions of theoretical and practical legal doctrine (or legal dogmatics), cf. Aarnio, The Rational as Reasonable, pp. 14–15, and the reference entailed.
- 9.
Alchourrón and Bulygin, Normative Systems, p. 79. (Italics added.) – Cf.: “Reformulation of the system: consisting in the substitution for the original basis of another one. This usually occurs when the number of sentences in the basis is very large. The replacement of a very extensive basis by another that is more restricted but deontically equivalent is considered by jurists to be an advantage, since applying the system thereby becomes simpler. On the other hand, this operation does not modify the system itself but only its representation. Frequently when jurists speak about the systematization of the law, they mean precisely what we call reformulation of the basis.” Alchourrón and Bulygin, Normative Systems, p. 71 (italics in the original). – Cf.: “We have characterized a legal system as a normative system whose basis is composed of legal sentences. The fact that jurists reformulate the basis of a system, substituting some sentences for others, does not affect the identity of the system, provided that the new basis is normatively equivalent to the original. There is no change in that system, in the sense that its normative consequences remain the same.” (Italics added.) – A solid account of Alchourrón’s and Bulygin’s conception of a normative system is in Aarnio, Reason and Authority, pp. 237–240.
- 10.
Alchourrón and Bulygin, Normative Systems, p. 80: “The requirement of normative equivalence is most important: only if the new basis has the same normative consequences as the original can we regard the result as the same system reformulated. If the new basis lacks some of the normative consequences of the original, or has new consequences, we are confronted not by the same system, but by a different one.” (Italics in original.)
- 11.
The terms Sorig and Srefor of course refer to the original and the reformulated normative system, respectively.
- 12.
Alchourrón and Bulygin, Normative Systems, p. 79. Cf. Aarnio, Reason and Authority, pp. 243–244.
- 13.
Hart’s poetic depiction of Dworkin as the “noblest dreamer” of them all, i.e. the prime idealist among the legal philosophers, is of course an allusion to Shakespeare’s play Julius Caesar. Hart, “American Jurisprudence through English Eyes: The Nightmare and the Noble Dream”, p. 137. Hart refers to the sarcastic speech given by Marc Anthony, a friend of Caesar’s, after Caesar’s cruel murder by the conspirators, with Brutus among them: “This was the noblest Roman of them all:/All the conspirators, save only he,/Did that they did in envy of great Caesar;/He, only in a general honest thought/And common good to all, made one of them.” (William Shakespeare: Julius Caesar, Act 5, scene 5, 68–72.)
- 14.
Hart own depiction of his methodology as descriptive sociology in the preface of The Concept of Law in specific has invited criticism from the scholars acquainted with the social sciences and the sociological approach to law in general. Hart, The Concept of Law (1961), p. V.
- 15.
For instance, a recent anthology on the methodology of legal theory focuses solely on Hart’s influence on jurisprudence and the responses to it by other scholars. Cf. Giudice, Waluchow, and Del Mar, The Methodology of Legal Theory, Vol. 1.
- 16.
On the two notions of legal formalism and social consequentialism, Tamanaha, Beyond the Formalist-Realist Debate: The Role of Politics in Judging; on instrumentalist and non-instrumentalist conceptions of law, Tamanaha, Law as a Means to an End: Threat to the Rule of Law. – Interestingly, Brian Z. Tamanaha seeks to combine traditional analytical legal positivism (à la Hart) with the social and realistic tenets of modern law under “a socio-legal positivist approach to the law” or “realistic socio-legal theory”. Tamanaha, A General Jurisprudence of Law and Society, p. 133 et seq; Tamanaha, Realistic Socio-Legal Theory: Pragmatism and a Social Theory of Law, p. 129 et seq.
- 17.
Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument.
- 18.
Aarnio, The Rational as Reasonable, p. 221 et seq.
- 19.
On the notion of rational acceptability in legal argumentation, Aarnio, The Rational as Reasonable, passim; on the unpredictable element in the EU law, Wilhelmsson, “Jack-in-the-Box Theory of European Community Law”.
- 20.
The Marxist ideology of law and society was not considered above, except briefly in Section 5.4. “‘Why Efficiency?’ – A Critical Evaluation of the Economic Analysis of Law, with Brief Comments on the Marxist Theory of Law”, since the Marxist approach does not entail a consistent theory of legal argumentation.
- 21.
Kelsen, Reine Rechtslehre (1960), p. V; Kelsen, Reine Rechtslehre (1934), pp. XII–XIII.
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Siltala, R. (2011). Law and Metaphysics. In: Law, Truth, and Reason. Law and Philosophy Library, vol 97. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-1872-2_13
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