Interviews with Legal Philosophers (1): Kenneth E. Himma

(First Part)

Kicking off my series of interviews with some representative thinkers in legal philosophy (yes, many others will come, just wait for it!), this blog brings to your reading the flair, the perspicuity and the brightness of Prof. Kenneth E. Himma. Kenneth is Professor of the University of Washington, one of the prominent legal philosophers of our time and one of the main proponents of inclusive legal positivism. His books, book chapters and articles not only help us to get view and direction amidst the wilderness of much academic production in the field but also advances some of the most clear and precise (and never boring) criticisms and proposals available today. It is a great honor for this blog to be the channel through which the explanations and ideas articulated below come to the general public. What we have now is only the first part of the interview, the first three questions and answers from the total of six ones that we will soon deliver. The questions (in italics) have been conceived taking in consideration the interest and needs particular to the Brazilian context. I hope you all are just as much excited about it as I am.

1 – I would like to depart from a point which is still familiar for most of the students and professors of legal philosophy in Brazil, which is the Hart-Dworkin debate. What is your personal understanding on what the debate was about? And where do you stand in the descriptive/normative spectrum of legal theory?

Both Dworkin and Hart took the debate to be one between an anti-positivist and a positivist. Dworkin’s early works criticized a number of what he took to be positivist doctrines. He attributed to positivism and criticized the following claims: (1) judges have a quasi-lawmaking discretion; (2) the law consists only of rules (not principles); (3) the criteria of validity are exhausted by conventional norms; and (4) there is no conceptual connection between law and morality. Dworkin’s criticisms forced positivists to clarify a number of their positions having to do with the four claims above, and contributed a great deal to the shape that contemporary positivism takes. His later work in conceptual jurisprudence, especially Dworkin’s masterpiece Law’s Empire, articulated what he took to be a third conceptual theory of law – constructive interpretivism.

According to Dworkin’s view, the law includes not only the rules and standards that are promulgated by legislatures and courts but also the principles of justice and fairness that show those rules and standards in the best moral light, which, for Dworkin, would involve providing the best possible moral justification for state use of coercive enforcement mechanisms. He continued to deny that the criteria of validity (or “grounds of law,” as he calls them) are exhausted by conventional (or “social,” as Hart calls them) rules – a conclusion he tries to justify on the strength of the famous (or infamous) semantic sting argument – throughout the later stages of his career. I find so much of what Dworkin has to say about adjudication and judging compelling if not interpreted as expressing conceptual claims about the nature of law.

Construed as a theory of how judges morally should, and characteristically do, decide cases, Dworkin’s views are eminently plausible, as far as my ears are concerned. Judges should decide hard cases, as a moral matter (on my view), by finding the decision that most nearly justifies the use of state coercive enforcement mechanisms. But construed as a conceptual theory of law, Dworkin’s “third” theory seems no more plausible than the strongest forms of natural law theory. Dworkin criticizes, for example, the Supreme Court decisions upholding “Fugitive Slave laws” that required people to return escaped “slaves” to their “owners” as being a judicial mistake from the vantage point of his theory. The problem is – and I might be terribly confused about this – that if the law of a community is, as a conceptual matter, the statutes and judicial declarations that furnish paradigmatic instances of law, taken together with the principles that show these existing rules in its best moral light, the court decisions upholding the law were not grounded in the law, as they should be, and do not count as law. Similarly, if construed as a conceptual theory of law, Dworkin seems committed to claiming that, when judges reverse precedent and announce a conflicting rule, one of the rules is not (or was not) law at the time. Such claims are so difficult to reconcile with ordinary legal practice that they seem inconsistent with the idea that it is our concept of law that is of interest. Our legal concepts, as Raz points out, are shaped by our institutional practices, linguistic and legal; for this reason, Raz holds (and I agree), we cannot be systematically mistaken about the content of our concepts – and Dworkin’s theory seems to suggest that we are.

2 – One of the reasons why many students and professors of legal philosophy in Brazil are oblivious of the recent developments in the analytical tradition is that they have certain misconceptions about legal positivism that make them think that this is an old-fashioned and obsolete legal theory. “Legal positivism” is often used derogatorily, naming a straw man conception that would want to strip the law of moral content, deny the existence of legal principles, defend textualist interpretations of legal sources etc. Can you give us a more accurate account of what legal positivism really stands for?

Positivism is a theory that explains the nature of law. What it says, in essence, is that law is a social product all the way down. The content of the rules both that regulate the behavior of citizens and that regulate the behavior of officials in their capacity as officials is determined by social processes. Law is, as a conceptual matter, manufactured by human beings through certain social processes. This implies nothing with respect to theories of statutory or constitutional interpretation. The rule of recognition defines the things officials must do to create or change law; the rule of recognition could contain principles that require a textualist approach to constitutional interpretation or that require an approach that looks to identify the morally best interpretation. Nor, for that matter, does positivism imply anything with respect to whether judges have or do not have a quasi-lawmaking discretion; one cannot answer that question without deciding whether hard cases involve a gap in the law. If so, then it looks like new law is being created in a hard case – no matter what your theory is. If not, then one can hold that new law is not being created in a hard case. Both options are consistent with positivism because positivism does not, at least, purport to say anything about what distinguishes hard cases from other cases.

There is a sense in which one version of positivism has some implications that look like some the claims you describe above that are offered as criticisms of positivism. The exclusive positivist denies that morality that can be incorporated into the law (well, strictly speaking, the exclusive positivist denies only that morality can be incorporated into the rule of recognition). In one trivial sense, this “strips the law of its moral content” – namely, it precludes that the law can incorporate moral content this way. Moral considerations cannot be part of the law, on this view.

But this does not have anything remotely resembling the practical implications that seem to motivate detractors of positivism. For example, the exclusive positivist does not deny that judges can have a legal duty to decide cases according to the morally best interpretation of the relevant legal materials. The exclusive positivist must say that the relevant moral considerations are not a pre-existing part of the law; that much is surely true. But that doesn’t imply anything that would strip the law of its moral content. As long as judges have a duty to decide cases in a certain way, the law will have some favorable moral qualities. The question of whether the relevant moral principle was already part of the law before it was cited to justify a holding is an interesting one, but not much turns on it; in particular, answering that question will not tell us anything about the morality of the content of the law.

In fact, I don’t think positivism can tell us anything of interest about what judges or legislators should do. Those questions are left to theories of legitimacy to answer. Positivism is a theory of legality (i.e., what counts as law), and not a theory of legitimacy (i.e., what qualities law has to have to be legitimately enforced by coercive means). I take it, following Austin, that the question of what the content of the law is and the question of what the content of the law should be are two distinct questions that require different methodologies to answer.

3 – Many students and professors of legal philosophy in Brazil are not familiar with the exclusive/inclusive dispute in contemporary legal positivism. Can you give us a brief characterization of each position and your personal reasons to believe that inclusive legal positivism is a superior conception of law?

The conceptual foundation of legal positivism consists in three commitments: the Social Fact Thesis, the Conventionality Thesis, and the Separability Thesis. The Social Fact Thesis asserts that the existence of law is made possible by certain kinds of social fact. The Conventionality Thesis claims that the criteria of validity are conventional in character. The Separability Thesis, at the most general level, denies that there is necessary overlap between law and morality.

While the Separability Thesis thus implies that there are no necessary moral criteria of legal validity, it leaves open the question of whether there are possible moral criteria of validity. Inclusive legal positivists (also known as soft positivists and incorporationists) believe there can be such criteria; that is, they believe there are conceptually possible legal systems in which the criteria for legal validity include (or incorporate) moral principles. Prominent inclusive positivists include H.L.A. Hart, Jules Coleman, W.J. Waluchow, and Matthew Kramer. Exclusive legal positivists (also known as hard positivists) deny there can be moral criteria of validity. Exclusive positivists, like Joseph Raz, Scott Shapiro, and Andrei Marmor, claim the existence and content of law can always be determined by reference to social sources.

The inclusive positivist position is a very weak one, and the exclusive positivist position is a very strong one. The inclusivist says no more than that it is possible for a legal system to have moral criteria of legality; in other words, the inclusivist claims that the idea of moral criteria of legality is not incoherent (in the sense that the idea of a married bachelor is incoherent). That is a very weak claim: out of the uncountably infinite number of possible worlds there are, at least one has moral criteria of legality. The exclusivist claim is much stronger: none of the uncountably large number of possible worlds in logical space has moral criteria of legality.

I think that none of the exclusivist arguments against inclusive positivism works – and have published a number of papers criticizing the best arguments against inclusive positivism, which include Joseph Raz’s work on authority and Scott Shapiro’s somewhat related work on the rule guidance. The papers challenge Raz’s views that law necessarily claims legitimate authority (see this one and this one) and that the normal justification thesis states a plausible principle of moral legitimacy (in that one). I have also published a critique of Shapiro’s argument that inclusive positivism is inconsistent with the Hartian view that law makes a practical difference in deliberations about what to do (as you can see here). I have also published a monograph on the inclusivist-exclusivist debate in Spanish that includes a translation of revisions of the original papers. I am expanding the book, which is under contract with Oxford University Press. (See informations about it here).

(To be continued)

Dworkin's conception of rights (as trumps), Rawls's first principle, and Hart's criticism

In the Dworkinian conception of a right (right as a kind of trump), does “A has a right to free speech” means that the political objective of A having free speech ought to prevail over almost every other political objective, except for other rights heavier than A’s right to free speech and for social ends with acutely high urgency or relevance? Wouldn’t that mean that A ought to have as much free speech as morally possible?

I know that Dworkin’s definition is more of an interpretive conception of rights and their status in the general frame of political objectives, and not a semantic analysis of what means to have a right, but I was thinking that, if the translation above is right, then in Dworkin the principle that everyone should have the widest system of freedom would not be a demand of justice about rights (as in Rawls), but would rather be contained in the very concept of rights. It would be conceptually impossible for a legal system to recourse to the idea of rights without intending to grant everyone the widest system of freedom. In a way, Hart’s criticism of Rawls’s formulation and lexical priority of the first principle of justice (stating that both would be chosen only by individuals animated by liberalism as an ideal of life, something that the parties in the original position are not supposed to be) would apply even more properly to Dworkin’s conception of rights.

(But wouldn’t Dworkin defend himself by saying that he never meant to merely describe what is a right, because that is impossible, he meant instead to provide an interpretation of rights, which, according to his ideas, must necessarily commit itself to a normative ideal? So he was not trying to sketch a definition of rights with which rational parties under the veil of ignorance would agree, but rather an interpretation of rights that would both explain and justify our political practices, making them as morally appealing as possible. But even if we accept what he says that “interpreting” implies, wouldn’t a “thinner” conception of rights, one not committed from the start with the principle of the widest system of freedom, be explanatorily more powerful and meta-ethically more pluralistic?)

Are Wagers Similar to Promises?

Most contemporary philosophers explain the normativity of promises with one of these two strategies: conventionalists say that promises bind because there is a conventional practice (bearing normative meaning) of making promises and every actor whose utterance meets the requirements of that practice is obligated to do what he or she has said; expectationalists say that promises bind because they raise expectations of fulfillment and (at least in most of the cases) it would be wrong for an actor to disappoint expectations that he or she raised. What I want to examine in this post is whether wagers can be considered to bind in the same way that promises can and for the same reasons too. In order to know that, I will compare wagers and promises and see whether they are sufficiently similar to each other. For the sake of this post, I will consider both strategies successful and will establish that, in  defending that some institution is similar to a promise, said similarity can hold either by the conventionalist or the expectationalist conception of promises.

As for wagers, they bear the following intuitive similarity to promises. If I bet with you that, if your team wins the game, I will buy you a beer, that appears to be tantamount to me promising that, if your team wins the game, I will buy you a beer. In this treatment, a wager looks like a case of a conditional promise, a promise whose obligation is conditioned to a hypothetical fact, a promise in the form if–then. (The fact that this kind of wager is usually made with a reciprocity clause, such as “but if mine wins, you buy me a beer”, is not a real problem, because it would just be a case of two promises, each one made by each of the betters and intertwined with each other. For the sake of simplicity, I will consider only the case of unilateral wagers, where the first better is committed to do something for the second one if the condition obtains, but the second better is not committed to do something for the first one if the condition does not obtain.) That intuitive similarity between a wager and a conditional promise is the departing point to our analysis.

There is, however, at least two important differences between a wager and a conditional promise. The first one is that, in a wager, the disbelief of the first better in that the condition will obtain is implicit in the wager proposal itself, while a similar disbelief is not necessary in a conditional promise. Betting that I will buy you a beer if your team wins the game suggests that I have a considerable disbelief that your team will in fact win the game. My utterance implies the prediction that your team will not win the game and, to show how confident I am in my prediction, I am even willing to buy you a beer if the future does not confirm it. On the other hand, by saying something like: “Let’s watch the game together in a bar, I promise you that, if your team wins the game, I will buy a beer”, I do not imply that I don’t believe that your team will win the game, but, on the contrary, I believe that it is at least one of the possibilities and commit myself that, if that happens, I will buy a beer. For making the difference still more evident, you can think of a father that knows that his son will apply for a place in a prestigious university. If the father says: “I promise you that, if you get the place, I will give you a car”, that is a kind of incentive, but if he says: “I bet with you that, if you get the place, I will give you a car”, that is a kind of discouragement, or even an offensive challenge.

The second difference between a wager and a conditional promise is that, in a wager, both betters position themselves in a competition picture, in a win-lose situation. If I bet with you that, if your team wins the game, I will buy you a beer, and it turns out that your team does win the game and I do have to buy you a beer, as said in the wager proposal, then I have suffered a kind of loss and you are even expected to feel free to mock me for that. But the same would be strange for a promise. If I promised you that, if your team won the game, I would buy you a bear and it turned out that your team did win the game and I did have to buy you a beer, it is only the fulfillment of a promise, for your team’s winning the game was something that I had expected to possibly happen and my having to buy you a beer was something that I even wanted to do if your team won (which is kind of a win-win situation). There would be no reason to mock me for that; maybe there is even place to thank me in a way for having made that promise and for having complied with it in the end.

In my point of view, those two differences have distinct impacts on the similarity between wagers and promises according to the choice for the conventionalist or the expectationalist strategy to explain promises. From the point of view of the conventionalist strategy, those two differences look like sufficient reasons to infer that, even if wagering is a practice, in the same sense that promising is, it is not the same practice as promising. It would be a different practice, one that would have different rules and requirements and would call for a different justification. But from the point of view of the expectationalist strategy, whatever the differences between wagering and promising, there would be no denying that a wager, similarly to a promise, raise expectations that would be wrong not to fulfill. We could think of wagering and promising as two different cases (one involving a challenge and a win-lose situation, the other involving help or favor and a win-win situation) of the same moral phenomenon, that is, of the expectation-raising behavior. It would be matter for an ulterior investigation to know whether this conclusion shows an advantage of the expectationalist strategy (the range of its classification, going beyond promises and encompassing other behaviors, for example, wagers) that should be taken into account as an epistemic reason to favor it over the conventionalist one. Another matter for an ulterior investigation would be to know whether similar conclusions would result from the comparison of both promises and wagers with other behaviors of the kind, such as threats.

My Presentation in the IVR

This recording is a register of my presentation in July 25th in my Workshop of the IVR Congress 2013. The title of the presentation is "The Tension Between Facticity and Validity in the Judicial Procedure" and it deals with Habermas's theory of law and democracy in Between Facts and Norms, trying to develop his approach to the judicial procedure to the point that it can explain and evaluate critically the major trends of our time concerning procedural law. This presentation pretty much summarizes the main points of my future doctoral thesis and, because of that, any comment or sugestion will be extremely welcome in this step of the way. So that's enough for introduction and let's skip to the real thing.

Performative Contradiction

The concept of performative contradiction belongs to Habermas and Apel’s discourse theory. They maintain that, when two or more speakers debate, they implicitly assume some rules, as those of intelligibility, sincerity, freedom and equality. But, since such rules are implicit, speakers don’t mention them and may even be unaware of them. This raises a problem of proof. If the rule in question is implicit, how can you prove that it exists and is followed? Habermas and Apel offer two ways. The first is by showing how one speaker react when the other disobeys any of such rules. That is the normative proof. The second one is by showing that, when one speaker disobeys any of such rules, she incurs in a special kind of contradiction: not a logic, but a performative one. In a logic contradiction, the speaker makes two or more statements incompatible to each other, so that they all cannot be true at the same time. In a performative contradiction, however, something the speaker implictly says is incompatible with what she is doing ("performance" being the term for "doing", thence "performative contradiction"). Being unclear, the idea of a contradiction between what the speaker says and what she does probably begs for further explanation.

Let S be the speaker and let her statements be referred to by p and a number (p1, p2, p3 etc.). Now suppose S makes three statements as follows: (p1) “I do not exist”, (p2) “I am not here”, and (p3) “I am not speaking”. All three statements incur in performative contradiction. In p1, the speaker’s existence is a condition without which she would not say p1, but, since she is saying p1, she exists and, since p1 states that she does not exist, p1 is false. In p2, the use of “here” refers to the place where the speaker is and, without being in a certain place, the speaker could not speak of that place as “here”, so that, by stating that the speaker is not “here”, p2 is false. In p3, the speaker says p3, which means that she is speaking, but p3 states that she is not speaking, which is incompatible with saying p3, so that p3 is false. In all three cases, what the speaker is saying is contradictory to what she is doing (that is speaking).

Those examples of performative contradiction are irrefutable and few critics would refuse them. But they still haven’t proved the rules of discourse. They rely on obvious assumptions and prove that statements that anyone would acknowledge as false are indeed false. How can this apparently not so helpful form of argument be used to prove Habermas and Apel’s controversial implicit rules of discourse? If S says that she is in Tokyo when she is actually in New York (and knows that), it is clear that S is lying, but it is not clear how S is being contradictory. Apparently S being in Tokyo is not a condition without which she could not say that she is in Tokyo, but only a condition for her saying that she is in Tokyo to be true. As being untrue and being contradictory are not the same, how can you show that any contradiction is in motion here?

Habermas and Apel suggest the following way. Suppose S says: “I am in Tokyo and I am lying about it”. Well, according to the famous liar’s paradox, we know that, if S is lying about it, then S is not in Tokyo, but, if she is in Tokyo, then she is not lying about it. Either way her both statements cannot be true at the same time. But that would entail that when S says that she is Tokyo, she also says, implicitly, that she is not lying about it, that she is saying the truth. Then, “I am in Tokyo” should be read as “I am in Tokyo and I am not lying about it”. Since we know that S is actually in New York, then she is lying about it and, since what she is doing, that is lying, and what she is saying, that is that she is not lying, are indeed contradictory, then S is incurring in contradiction – in that case, a performative contradiction.

If that argument is valid, then we have proved not only that, by saying p while knowing that p is false, S is being contradictory, but also that any S that says any p is also saying that she is not lying about p. This implicit I’m-not-lying clause can be then converted into the implicit rule that the speaker will always say only what she thinks to be true, at the risk of being contradictory by doing otherwise. That would be no other than the very rule of sincerity, that Habermas and Apel maintain that is an implicit rule of discourse. If, by saying p while knowing that p is false, S is being contradictory, then there does exist a rule of sincerity to which every speaker is bonded.

Of course, the mere existence and acknowledgement of such rule of sincerity does not prevent many speakers from lying shamelessly about every subject and aspect of life every day. Self-contradiction is hardly an effective deterrent against bad behavior. But this realization also comes with no surprise, since that is not what the rule was supposed to do. On the contrary, it is more of a standard of judgment. If we say lying is wrong, it happens because we judge the act of lying as incompliant to a rule of non-lying, that is a rule of sincerity, which reinforces the thesis that such rule does exist. It exists not in the sense in which dogs or stones exist, but in the only sense in which a rule can exist, that is, by being taken for mandatory and mostly followed. The difference between a rule of discourse as that of sincerity and some moral or legal rule is that the rules of discourse are presupposed in the very act of speaking, that is you cannot engage in the act of speaking without assuming them – even if you are about to break it. It is not possible to lie without assuming in the very act of lying that a rule of sincerity is in place.

Could this argument for the rule of sincerity be used with equal success for the other rules of intelligibility, freedom, and equality? I think the demonstration of the other rules is possible, although not as easy. You’ll be the judge of that.

The rule of intelligibility is a little less intuitive. Suppose S says: “Touching the totem is taboo”. Well, the other speaker T may not know that taboo is a Polynesian term for something that cannot be touched, spoken of, or done. If T doesn’t know that, she is probably not ready to understand what S has said. But again, it means that S is being unintelligible, not that she is being contradictory. Now suppose S says: “Touching the totem is taboo and I won’t tell you what taboo means”. Well, now apparently S is being childish and annoying, but still not contradictory. It does not sound as unacceptable as “I am in Tokyo and I am lying about it”. In order to catch the contradictory element of that, we have to help a little, assume that being understood is an unavoidable end of any statement and then read “Touching the totem is taboo” as “I’m saying ‘Touching the totem is taboo’ and I want you to understand me”. Since willing someone to understand you (which is, with some imagination, part of what you are implicitly saying) and refusing to tell them what your words mean (which is what you are explicitly doing) are contradictory to each other, S is incurring in performative contradiction. Again, that not-being-unintelligible clause can be converted into the rule that every speaker must try her best to be understood, which is the exact rule of intelligibility that Habermas and Apel claim to exist. As with the rule of sincerity, the rule of intelligibility would belong to the very act of speaking, turning it impossible to engage in speaking without assuming the end of being understood – even being pretentious and pedantic would depend on that.

Finally, freedom and equality will demand even more helping from the reader’s good will and imagination. In the case of freedom and equality, Habermas and Apel think that defending a statement with arguments can only make sense as long as you recognize the other as free to accept or reject the arguments and as having the same capacity and responsibility as the speaker. S saying to T that p because of q either means that T is a free and equal collocutor or makes no sense as a bona fide argumentation (in opposition to, e.g., issuing an order, making a supplication, asking for or giving advice, which are both compatible with relations between unequals and more suitable between them). The act of S addressing T and trying to make her case would be pointless if T had no other choice than accepting S’s argument or if T was actually not as capable as S for judging S’s argument. In this sense, we can say that, in the very moment S waives violence and bargain and addresses T as an collocutor, S is acknowledging both herself and T as free and equal. Speaking to other is installing a community of freedom and equality among the speakers – at least in the dimension of speech, not necessarily likewise in the civil and political dimension. (Although Habermas argues in his Theory of Communicative Action that, the more society relies on discourse, the more it turns into a community of free and equal pairs. That, however, would be a topic for a different post.)

Since defending a statement with arguments makes sense only under the assumption that the collocutor is a free and equal speaker, the speaker who denied her collocutor’s entitlement to check her arguments, accept or reject them, propose counter-arguments, and defend a rival position would incur in a contradiction. What S would be saying: “I’m saying that p because of q and I recognize you as a free and equal speaker to judge that claim and respond to it” would be contradictory to what S would be doing, that is denying T’s possibility of assessing S’s arguments and speaking back. Since there would exist a contradiction between what S is saying and what S is doing, that would also be a performative contradiction. From that we could obtain the rule that every speaker will treat her collocutor as a free pair and the rule that every speaker will treat her collocutor as an equal pair, at risk of being contradictory. Those would be the rules of freedom and equality, which Habermas and Apel sustain. If you take that somewhat sinuous (some may say even tricky) argument to be valid, then the four implicit rules of discourse in Habermas and Apel’s theory would be well proved.

In conclusion, performative contradiction is a form of argument in order to prove that a rule is implicitly assumed in discourse. It works by showing that, whenever the speaker breaks one existing rule, she incurs in a contradiction between what she is saying and what she is doing while speaking. The procedure requires taking an implicit assumption and making it an explicit content of the speech, then displaying that the added content and the act being performed are mutually contradictory. At that point, the assumption is converted into a corresponding rule and taken as existing and mandatory in every piece of discourse. Although being usually employed only by Habermas and Apel and their closer followers, the performative contradiction argument is regarded by many as a useful and promising tool in various fields, specially philosophy of language, informal logics, theory of argumentation, and ethics.

Criticisms to Finnis: (1) His conception of description of law

One main argument with which legal positivists as Bentham, Austin, and Kelsen thought to have dismissed Natural Law theories is that a legal theory must be descriptive, that is, it must show the law as it really is, instead of judging it as good or bad or speaking of a law that ought to be. This argument was supposed to dismiss in one fell swoop all Natural Law theories, because these theories were believed to present a just law as a model of reference and to state that the existing law would be valid only to the extent it would correspond to that just law. They would, therefore, be prescriptive, instead of descriptive. Finnis takes the requisite of descriptiveness as correct, but not dismissive of Natural Law in any way. He tries to show that Natural Law theories can meet that requisite as well as positivist theories do – or even better than they do. According to Finnis, Natural Law theories are not actually prescriptive, but descriptive. They do not speak of a law that ought to be, but of a law that is. The difference is that they describe the law that is with respect to the law that it intends to be – and that would not be a theoretical artifice to disguise a prescriptive theory as a descriptive one, but a necessary feature of any theory dedicated to social institutions.

Finnis’s defense of the descriptiveness of Natural Law theories depends on an allegedly necessary shift in our everyday concept of “description”. We are used to think of describing as the activity of reporting how something is without adding or omitting anything and without judging if it is good or bad, beautiful or ugly, useful or harmful. However, things made by men with some purpose (purposeful things) can be described only with respect to the purpose they intend to reach. The Victory of Samothrace can be described as an incomplete statue, that lacks head and arms, only because we consider it to represent the Goddess Victory and, in order to represent Her properly, it would have to have head and arms. Describing it as the representation of a headless and armless Goddess would not be true, but we know that only because we compare what we see to what we suppose that it intended to be.

The same would hold for social institutions. They are also purposeful things, because a marriage or a contract are not merely things that we do, but also things that we do in order to get something else. Two people marry each other to cherish their love, to have a life and estate together and to protect their children. Two people contract to each other to pursue their common interest and protect their relation from ulterior and external interference. It would be impossible to describe a particular marriage or a particular contract without considering what that particular institution intended to be. That, of course, makes a lot of sense. But Finnis is prepared to make the same kind of statement about law in general. Law, as the social institution it is, would be a purposeful thing too. Its purpose would be to protect and realize the basic goods of human life. Once we had a list of these goods, we could describe law properly, with respect to what it intends to be, that is, with respect to the version of law that best protects and realizes those goods. This version is nothing else than what thinkers as Aristotle, Aquinas, and Finnis himself call the Natural Law.

In short: Purposeful things have to be described with respect to what they intend to be; as law is a purposeful thing and it intends to be the best protection and realization of the basic goods of human life, it has to be described with respect to that version of law that best protects and realizes those basic goods, which happens to be Natural Law. I would like to propose a criticism of that argument. Here it follows.

One reason Finnis offers to justify his thesis of purpose-sensitive descriptions for purposeful things is that no description is a report of all features of the described, but only of some of its features, therefore, always involving selection. As every selection has to follow a certain criterion, Finnis sustains that, in the description of purposeful things, the purpose of the described is the necessary criterion for selection of features suited for describing it. Well, my criticism will tackle exactly that “necessary criterion” argument. I accept that every description involves selection and every selection needs a criterion, but I deny that there is any “necessary criterion” for the selection of features aimed at describing something. On the contrary, I defend that the criterion for selection is not necessarily the purpose of the described, but the purpose of the description – or, if you prefer so, the purpose of the describer.

Imagine that, for very unaccountable reasons, the Victory of Samothrace were transferred from the Louvre Museum towards the Emilio Goeldi Museum (a museum in my birth town, unfortunately not as famous as Louvre concerning Art works), and that the latter, for very accountable reasons, was suspicious of being mocked and afraid that the transferred statue were not the real one. For preventing public shame, Goeldi’s curator would hire an assessor, someone with expertise in classic art, in order to determine whether the delivered statue were the famous Victory of Samothrace. That expert, together with his entourage, would inspect the statue in every possible way, measuring its dimensions, scrutinizing its details with magnifiers, examining its shapes and colors against dark light, and making many other weird procedures that I and you could not even imagine of. In the end, the expert would hand over a final report, which would consist in a description of the statue, followed by an assessment of it being or not the original one. Once the description would serve as basis for the assessment, it would be expected that the selection of features would not concentrate in what the statue were sculpted to be, but in how much the delivered statue is similar to the original one. In that approach, the delivered statue’s lacking of head and arms would be taken as a sign of its being complete, and not incomplete – or, if you prefer so, of its being as incomplete as it was supposed to be. On the contrary, if it were provided with head and arms, that would be a sign of its having been altered or, worse than that, a sign for turn on the red light of international art mockery.

That unnecessarily long example leads to two conclusions: one, Belenenses are very suspicious and afraid of ridicule, and two – the one that is really relevant for my criticism – descriptions are dependent not on the purpose of the described, but on the purpose of the describer. The same would hold for law. A legal practitioner, a legal sociologist, a legal psychologist and a legal economist would describe law in different ways, and still their descriptions could all be true, with respect to different purposes. All of them would also describe law in a way very different from how a legal philosopher would do it, and still none of their descriptions would have epistemic precedence over each other. Among legal philosophers it would not be different. A legal positivist and a Natural Law theorist would be concerned with very different features of the existing law, not because one of them is right and the other wrong, but because they have very different purposes with their descriptions. There is no “necessary criterion” for the selection of features in order to describe something – or else there wouldn’t be but one kind and one purpose of description –, there are only pragmatic or instrumental criteria, used according to the descriptive purposes of the time. The descriptive report of an Art historian and that of an Art assessor about the same Art work would hardly coincide, then why should be different with the descriptive reports of a legal positivist and a Natural Law theorist about the same existing law?

If, as I defend, the purposes relevant for the selection of features in a description are the describer’s, then that purpose of protecting and realizing the basic goods of the human life is not necessary for legal theory in general, but only relevant for Finnis (and his fellow Aquinasian companions) in particular. And it is relevant for him (them) for its potential to evaluate and criticize the existing law and to propose amendments and changes to it. If Finnis explicitly refers to the importance of point of view selection concerning the addresses of law, he does not give the same attention to the point of view selection concerning the legal theorist. For the legal positivist, assuming the point of view of the legal practitioner, is mostly concerned with what the existing law presently says and the Natural Law theorist, assuming the point of view of the legislator, or of his knowledgeable advisor, is chiefly occupied with in which aspects the existing law can be improved for the best.

So, I would criticize not only Finnis’s insistence that there is a necessary criterion for description of social institutions, but also Finnis’s failure to distinguish between different purposes and point of views of description. Having made that kind of distinction would have allowed for Finnis to perceive that, when Bentham, Austin, and Kelsen rejected non-descriptive approaches to law, their reasons of rejection could be extended to descriptive approaches from the point of view of the legislator. In their opinion, the point of view of those who obey and apply the existing law, without having any power to create or change it, is the only relevant perspective for a theory of law. Attacking the monopoly of this point of view would have been a much better strategy for Finnis than defending a particular kind of description as right and necessary.

John Finnis’s “Natural Law and Natural Rights”: Presentation and Critical Remarks

Whatever the merits you think Natural Law theories may have, you have to acknowledge at least two great achievements of the Australian philosopher John Finnis: having returned philosophical plausibility and dignity to the Natural Law tradition and having mixed Aristotle’s and Aquinas’s schemes of thought with some of the best legal philosophical insights from contemporary thinkers as Hart, Rawls, and Raz. Those are two reasons good enough for you to take a look at Finnis’s biggest work, “Natural Law and Natural Rights”.

The main thesis of the book is simple: Since law is functional to protect and realize some basic goods of human life, the only kind of descriptive theory of law which is satisfactory is one that show how much the existing law manages to reach that version in which those goods are best protected and realized. So the book is an attempt to proof Finnis’s thesis to be true and to expose various parts of a Natural Law theory as components of the descriptive approach to law best suited to fulfill that task.

I would like to do an introductory presentation of some issues in Finnis’s book and to make some critical remarks on those issues, which are: (1) Finnis’s conception of “description” of law; (2) Finnis’s argument for the basic goods; (3) the relation of Finnis’s Natural Law theory and democracy; and (4) Finnis’s conception of the authority of law. My considerations will be put in the following posts of this Blog.