thegoodfellas/blogset-br huggingface dataset:
Whateverthe merits you think Natural Law theories may have, you have to acknowledge atleast two great achievements of the Australian philosopher John Finnis: having returnedphilosophical plausibility and dignity to the Natural Law tradition and having mixedAristotles and Aquinass schemes of thought with some of the best legalphilosophical insights from contemporary thinkers as Hart, Rawls, and Raz.Those are two reasons good enough for you to take a look at Finniss biggestwork, Natural Law and Natural Rights.The main thesisof the book is simple: Since law is functional to protect and realize somebasic goods of human life, the only kind of descriptive theory of law which issatisfactory is one that show how much the existing law manages to reach that versionin which those goods are best protected and realized. So the book is an attemptto proof Finniss thesis to be true and to expose various parts of a NaturalLaw theory as components of the descriptive approach to law best suited tofulfill that task.I wouldlike to do an introductory presentation of some issues in Finniss book and tomake some critical remarks on those issues, which are: (1) Finniss conceptionof description of law; (2) Finniss argument for the basic goods; (3) therelation of Finniss Natural Law theory and democracy; and (4) Finnissconception of the authority of law. My considerations will be put in thefollowing posts of this Blog. (First Part)Kicking off my series of interviews with some representativethinkers in legal philosophy (yes, many others will come, just wait for it!), this blog brings to your reading the flair, the perspicuityand the brightness of Prof. Kenneth E. Himma. Kenneth is Professor of the University of Washington, one of the prominent legal philosophersof our time and one of the main proponents of inclusive legal positivism. Hisbooks, book chapters and articles not only help us to get view and direction amidstthe wilderness of much academic production in the field but also advances someof 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 throughwhich 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 questionsand 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 youall 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. Dworkins 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. Dworkins 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 Dworkins masterpiece Laws Empire, articulated what he took to be a third conceptual theory of law constructive interpretivism.According to Dworkins 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, Dworkins 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, Dworkins 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 Dworkins 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 doesnt 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
and have published a number of papers criticizing the best arguments against inclusive positivism, which include Joseph Razs work on authority and Scott Shapiros somewhat related work on the rule guidance. The papers challenge Razs 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 Shapiros 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)
The conceptof performative contradiction belongs to Habermas and Apels discourse theory. Theymaintain that, when two or more speakers debate, they implicitly assume somerules, as those of intelligibility, sincerity, freedom and equality. But, sincesuch rules are implicit, speakers dont mention them and may even be unaware ofthem. This raises a problem of proof. If the rule in question is implicit, howcan 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 suchrules. That is the normative proof. The second one is by showing that, when onespeaker disobeys any of such rules, she incurs in a special kind ofcontradiction: not a logic, but a performative one. In a logic contradiction,the speaker makes two or more statements incompatible to each other, so thatthey 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 bethe speaker and let her statements be referred to by p and a number (p1, p2, p3etc.). 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 inperformative contradiction. In p1, the speakers existence is a condition withoutwhich she would not say p1, but, since she is saying p1, she exists and, since p1states that she does not exist, p1 is false. In p2, the use of here refers tothe place where the speaker is and, without being in a certain place, thespeaker could not speak of that place as here, so that, by stating that thespeaker is not here, p2 is false. In p3, the speaker says p3, which meansthat she is speaking, but p3 states that she is not speaking, which isincompatible 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 examplesof performative contradiction are irrefutable and few critics would refuse them.But they still havent proved the rules of discourse. They rely on obviousassumptions and prove that statements that anyone would acknowledge as false areindeed false. How can this apparently not so helpful form of argument be used toprove Habermas and Apels controversial implicit rules of discourse? If S saysthat she is in Tokyo when she is actually in New York (and knows that), it isclear that S is lying, but it is not clear how S is being contradictory. ApparentlyS being in Tokyo is not a condition without which she could not say that she isin 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 thatany contradiction is in motion here?Habermasand Apel suggest the following way. Suppose S says: I
am in Tokyo and I amlying about it. Well, according to the famous liars paradox, we know that, ifS is lying about it, then S is not in Tokyo, but, if she is in Tokyo, then she isnot lying about it. Either way her both statements cannot be true at the sametime. 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 inTokyo should be read as I am in Tokyo and I am not lying about it. Since weknow 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 notlying, are indeed contradictory, then S is incurring in contradiction in thatcase, a performative contradiction.If thatargument is valid, then we have proved not only that, by saying p while knowingthat p is false, S is being contradictory, but also that any S that says any pis also saying that she is not lying about p. This implicit Im-not-lying clausecan be then converted into the implicit rule that the speaker will always sayonly what she thinks to be true, at the risk of being contradictory by doingotherwise. That would be no other than the very rule of sincerity, thatHabermas and Apel maintain that is an implicit rule of discourse. If, by sayingp while knowing that p is false, S is being contradictory, then there doesexist a rule of sincerity to which every speaker is bonded.Of course,the mere existence and acknowledgement of such rule of sincerity does notprevent many speakers from lying shamelessly about every subject and aspect oflife every day. Self-contradiction is hardly an effective deterrent against badbehavior. But this realization also comes with no surprise, since that is notwhat the rule was supposed to do. On the contrary, it is more of a standard ofjudgment. If we say lying is wrong, it happens because we judge the act oflying as incompliant to a rule of non-lying, that is a rule of sincerity, whichreinforces the thesis that such rule does exist. It exists not in the sense inwhich 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 differencebetween a rule of discourse as that of sincerity and some moral or legal ruleis 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 inthe very act of lying that a rule of sincerity is in place.Could thisargument for the rule of sincerity be used with equal success for the otherrules of intelligibility, freedom, and equality? I think the demonstration ofthe other rules is possible, although not as easy. Youll be the judge of that.The rule ofintelligibility is a little less intuitive. Suppose S says:
Touching the totemis taboo. Well, the other speaker T may not know that taboo is a Polynesianterm for something that cannot be touched, spoken of, or done. If T doesntknow 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 wont tell you whattaboo means. Well, now apparently S is being childish and annoying, but stillnot contradictory. It does not sound as unacceptable as I am in Tokyo and I amlying about it. In order to catch the contradictory element of that, we have tohelp a little, assume that being understood is an unavoidable end of anystatement and then read Touching the totem is taboo as Im saying Touchingthe totem is taboo and I want you to understand me. Since willing someone tounderstand you (which is, with some imagination, part of what you are implicitlysaying) and refusing to tell them what your words mean (which is what you are explicitlydoing) are contradictory to each other, S is incurring in performative contradiction.Again, that not-being-unintelligible clause can be converted into the rule thatevery speaker must try her best to be understood, which is the exact rule ofintelligibility that Habermas and Apel claim to exist. As with the rule ofsincerity, the rule of intelligibility would belong to the very act ofspeaking, turning it impossible to engage in speaking without assuming the endof being understood even being pretentious and pedantic would depend on that.Finally,freedom and equality will demand even more helping from the readers good willand imagination. In the case of freedom and equality, Habermas and Apel thinkthat 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 havingthe same capacity and responsibility as the speaker. S saying to T that pbecause of q either means that T is a free and equal collocutor or makes nosense as a bona fide argumentation (in opposition to, e.g., issuing an order, makinga supplication, asking for or giving advice, which are both compatible with relationsbetween unequals and more suitable between them). The act of S addressing T andtrying to make her case would be pointless if T had no other choice thanaccepting Ss argument or if T was actually not as capable as S for judging Ssargument. In this sense, we can say that, in the very moment S waives violenceand bargain and addresses T as an collocutor, S is acknowledging both herself andT as free and equal. Speaking to other is installing a community of freedom andequality among the speakers at least in the dimension of speech, notnecessarily likewise in the civil and political dimension. (Although Habermas arguesin his Theory of Communicative Actionthat, the more society relies on discourse, the more it turns into a communityof free and equal pairs. That, however, would be a topic for a different post.)Sincedefending a statement with arguments makes sense only under the assumption thatthe collocutor is a free and
equal speaker, the speaker who denied hercollocutors entitlement to check her arguments, accept or reject them, proposecounter-arguments, and defend a rival position would incur in a contradiction.What S would be saying: Im saying that p because of q and I recognize you asa free and equal speaker to judge that claim and respond to it would becontradictory to what S would be doing, that is denying Ts possibility of assessingSs arguments and speaking back. Since there would exist a contradiction betweenwhat 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 collocutoras a free pair and the rule that every speaker will treat her collocutor as anequal pair, at risk of being contradictory. Those would be the rules of freedomand 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 rulesof discourse in Habermas and Apels theory would be well proved.Inconclusion, performative contradiction is a form of argument in order to provethat a rule is implicitly assumed in discourse. It works by showing that,whenever the speaker breaks one existing rule, she incurs in a contradictionbetween what she is saying and what she is doing while speaking. The procedurerequires taking an implicit assumption and making it an explicit content of thespeech, then displaying that the added content and the act being performed aremutually contradictory. At that point, the assumption is converted into acorresponding rule and taken as existing and mandatory in every piece ofdiscourse. Although being usually employed only by Habermas and Apel and their closer followers, the performative contradiction argument is regarded by many asa useful and promising tool in various fields, specially philosophy of language,informal logics, theory of argumentation, and ethics.
Kelsen establishes three requisites for a legal norm to be said to be valid. The first one is its belonging to an existing legal system, that is its legality. The second one is its containing of a sanction or connection to other norm which contains a sanction, that is its coercion. The third one is its being obeyed, that is its efficacy. Kelsen also states that his pure theory of law is formal, which means that it admits of any content to be law and its requisites are completely void of content.In the case of the third requisite for the validity of legal norms, that is efficacy, we can challenge Kelsens belief that such requisite is indeed formal by reasoning as follows: a) if a requisite is to be formal, it must make no distinction among different possible contents; b) if the requisite of efficacy is to be formal, then efficacy must make no distinction among different possible contents of norms; c) if efficacy is to make no distinction among different possible contents of norms, then norms with every possible content must be able to be efficacious. But c) is not only an empirical statement (therefore, not much of a candidate for being formal), but it is also a glaringly false one. Therefore, efficacy is not a formal requisite.We can go one step further and connect the issue of efficacy with that one of acceptability. It is obviously true that one of the many possible reasons for a norm to be inefficacious is the addressees rejection of its content, that is its lack of acceptability. If at least in some cases of inefficacy, the norm is inefficacious due to its unacceptability, then at least in some cases inefficacy will be an issue that depends on the content of the norm. Well, an issue depending on the content of the norm cannot, by definition, be a formal one. Therefore, efficacy is not a formal requisite.This challenge could be met with the following response: If the efficacy of the norm were in any measure depending on the acceptance of its content, then it would not be a formal requisite. But in Kelsens theory, the efficacy of a norm is obtained by means of the sanction. Kelsen denies that a sanction alone can bring about efficacy for a norm of behavior, but, even when it does not, it creates a second kind of efficacy for a norm, that is the efficacy of its sanction. Then, even when the content of a norm of behavior were so unacceptable as to turn that norm inefficacious in the first sense (people not acting according to the norm commandment), the application of its sanction to the disobeying addressee would still turn it efficacious in that second sense (people who do not act according to the norm commandment being sanctioned).However, it would only postpone the problem. The sanction would only be a solution for the problem of inefficacy if the sanction itself could never be inefficacious. But sanctions also have contents, and their contents can also be unacceptable. If at