Download Is the Law Founded on Facts?

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Is the Law Founded on Facts?
A DRAFT
MATTI ILMARI NIEMI
Abstract. The appearance of naturalistic and positivistic philosophy created pressure on
jurisprudence. Legal positivism may be seen as a response to this pressure. Supporters of legal
positivism endeavoured to view legal dogmatics and knowledge as a branch of science. The
doctrine of legal rules as social facts is an application of the scientific interpretation of legal
dogmatics founded on philosophical realism. The aspiration of this article is to criticize this
doctrine. The criticism is founded on three objections. Legal reasoning is seen here, instead, as
creative an uncertain conclusions drawn from formal and substantial reasons.
1. Introduction
It is natural to presume that defined objects of knowledge exist.
In Plato’s Parmenides in the form of a dialogue Sokrates describes ideas
and says ‘each of these ideas may be only a thought, which can exist only in our
minds’. Parmenides asks: ‘is each thought one, but a thought of nothing’. ‘That
is impossible,’ Sokrates replies. ‘But of something?’ Parmenides concludes.
‘Yes,’ Sokrates answers. ‘Of something that is, or that is not,’ Parmenides asks.
‘Of something that is,’ Sokrates concludes.1
In this way, knowledge is presumed to be information about something,
about reality, that is, about our world and facts. If I talk about something I
presume the existence of a thing which I am talking about, and if I know
something, there must be something which I know about. Hence, it seems to be
reasonable, even necessary, to presume defined objects of knowledge or facts.
Accordingly, the existence of the defined facts as the objects of knowledge is
presumed. This is the foundation of philosophical realism as well as
philosophical naturalism.
Both of these approaches are applied in the field of law. A well-known
application of philosophical realism is legal positivism. The supporters of
traditional legal positivism treat legal rules as social facts. A well-known
application of philosophical naturalism is legal realism. A supporter of legal
realism does not, however, accept rules as such as facts. Instead, her or his
aspiration is to reduce rules to discernible reality. For instance, the real and
factual foundation of law and legal rules are seen in the form of human
behaviour or beliefs.
1
Plato, Parmenides, 132 b-c.
2
This paper is, however, a critical survey of the described approach applied
in the field of law. Instead, I promote antirealistic approach. The main focus is
on the existence of legal rules as social facts according to the doctrine of
traditional legal positivism.
2. The Burden of History
The birth and rise of Modern European Science from the 17th century onward
produced a fundamental change in western philosophy. Over the ensuing
centuries, traditional Aristotelian and scholastic philosophy was replaced by a
naturalistic approach in the field of the philosophy of science. Knowledge of
nature and other observable reality with the origin of a priori understanding was
not accepted any more. The naturalistic approach was even introduced into the
field of humanities. There were many requirements for positivistic studies of
ethics, law and other fields concerning human culture during the 18th and 19th
centuries.
David Hume is the most influential positivistic philosopher. Like many of
his colleagues, he endeavoured for an advanced philosophy of science founded
on the achievements of Isaac Newton and other early scientists. As a strict
empiricist Hume repudiated the Aristotelian study of substances.2 According to
him, all real knowledge of the external world is derived from the immediate
experience. All other reasoning is performed by the human mind, and therefore,
is founded merely on human thinking and, basically, on our passions and
emotions.3
In the area of ethics, Hume was constrained to emotive theory due to his
conception of knowledge. He disputed Aristotelian virtue ethics and insisted on
the factual foundation of ethics. However, ethical facts are not the facts of the
external world, but rather the facts of human feelings.4 In other words, the
statements of ethics describe the existing passions and emotions.
Later in the same way, young Ludwig Wittgenstein saw the world as
independent of ‘my’ will. Accordingly, the sense of the world must lie outside
the world. In the world, everything is as it is and happens as it happens but there
is no value in the world.5 In other words, valuation or assessment of the world
(reality) is not a part of the world. Instead, there are qualifications about the
world. In the same way, regulation on how states of affairs should be is not part
of the world. The regulation is a viewpoint from outside the world.
Auguste Comte’s positivistic philosophy reached large influence in the
field of social sciences. His aspiration was to create a universal model of
sciences and humanities. According to Comte, the general form of knowledge is
positive knowledge, and the proper question is not ‘why’, but ‘how’. It is
2
Hume 1978, book I, part I, section VI, p. 15.
Ibid, I, I, II, p. 7.
4
Ibid, III, I, I, p. 468.
5
Wittgenstein 1922, 6.373 and 6.41, p. 87.
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possible to know reality only as it appears to us. Positive science is the
manifestation of knowledge at the highest level. One can attain advanced and
real knowledge only by means of the empirical method. On the other hand, real
knowledge merely refers to discernible appearances.6 Comte assimilated social
phenomenon with nature. He used the terms “social physics” and “social
existence”. For him, social behaviour manifested itself in the same way as the
facts of nature and as the objects of knowledge.7
There are striking uniform features of the approaches of Comte and Kelsen
irrespective of the strong connection between Kelsen and Kant.8
3. The Pressure of Naturalistic and Positivistic Philosophy on
Jurisprudence
The challenge of naturalistic philosophy and the positivistic model of science
produced tremendous pressure on European jurisprudence. In short,
conventional legal dogmatics was blamed for unscientific activity (in other
words, metaphysical claptrap) and many legal scholars felt ineligible to be
members of the academic society. The pressure was most intensive in the latter
half of the 19th and in the first half of the 20th century, the heyday of positivistic
philosophy. Accordingly, it was natural to search for a naturalistic philosophy of
law and for a scientific model of legal knowledge. Many legal philosophers have
felt the need to preserve legal dogmatics as a member of ’acceptable sciences’.
There have been many different scientific approaches to jurisprudence. I
interpret here the theories of law introduced through the lens of legal positivism
as well as the legal realism of such projects. Interestingly, most of these theories
within the frames of the common law culture have been influenced by
naturalistic philosophy. In continental Europe, theories founded on philosophical
realism have been more popular.
The idea of law as a part of our social reality or at least founded on social
reality seems to be the essential feature and primary characteristic of traditional
legal positivism. It is the common feature of all forms of legal positivism.9 In
other words, a supporter of positivism comprehends law as a fact based
appearance and institution. This is known as the social thesis of legal positivism.
6
Comte 1883, p. 5, 7, 11 and 17.
Ibid, p. 5, 214, 392, 399 and 445.
8
The adoption of the idea of “social physics” might be one explanation for the connection
between Kelsen’s Pure Theory of Law and Kant’s Critique of Pure Reason but not in relation to
the Critique of Practical Reason including Kant’s theory of law. Instead, Kant’s views on ethics
and law, treated as embodiments of natural law tradition, were the targets of Kelsen’s critique.
See, for instance, Kelsen 1961, p. 437 and 445.
9
Himma 2002, p. 126 and Marmor 2002, p. 105.See also Coleman who abandons separability
thesis and Shapiro who emphasizes the importance of social thesis as the foundation of all forms
of legal positivism. Coleman, 2007, pp. 582 and 586 and Shapiro, 2011, Legality, p. 25, 44, 119,
177, 239, 269, 276, 302 and 382. For long, both theses were treated as the foundation of legal
positivism. See Coleman and Leiter 1999, p. 241.
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The well-known separation between law and morality adopted by legal
positivism seems to be a secondary characteristic and a consequence of the
primary one. The law is necessary or can be separated from the morals because it
bears a different quality. Facts differ from values in a fundamental way in this
respect. This is known as the separability thesis of legal positivism. Accordingly,
here, the focus is on the social thesis.10
As an early legal positivist, John Austin leaned on the ideas of Jeremy
Bentham. He labelled the traditional natural law thinking expressed by William
Blackstone as “sheer nonsense”. Austin introduced “the Science of Law”. His
conception of law was a direct command-theory. According to Austin, the basic
concepts of law are command, duty and sanction. They are the fundamental and
equivalent terms of legal language. The validity and effect of law are primarily
founded on the people’s fear of sanctions. In addition, the adopted habit of
obedience is important, as well.11 This is the habitual and factual foundation of
all legal rules. Following the principles of naturalism, Austin reduces “ought”sentences to existing reality, to “nature”. Legal terms are defined by natural
terms.
H.L.A. Hart abandoned Austin’s simpleminded command-theory. He
introduced a more sophisticated legal positivism. Nevertheless, Hart shared a
naturalistic view on law with Austin. Accordingly, jurisprudence is defined as
descriptive sociology.12
The key point of Hart’s theory is the rule of recognition. It can be
interpreted as the theory of the sources of law, that is, the pedigree of law. In
every system of law, there are certain confirmed sources of law, that is, certain
acknowledged forms of law. The rule of recognition has both ontological and
epistemological dimensions. First, it shows the nature and essence of law.
Second, it is the criteria of valid law. The rule of recognition is a special kind of
rule which is different from all other rules. It is possible to show and know all
the valid rules of a legal system by means of the rule of recognition.13
At the same time, the rule of recognition appears as the factual foundation
of law and the separation criteria between law and morality. The rule of
recognition manifests itself in the way in which judges and other officials
identify valid law as discernible factual behaviour. It is a matter of factual
behaviour, not moral evaluations. In this sense, the rule of recognition is both a
10
In a noteworthy way, most positivists distinct clearly the levels of general theory of law
(jurisprudence) from content of different legal systems (as the object of legal dogmatics). The
former refers to the universal and formal features of human law and the latter to the contingent
and changeable valid rules of a legal system. Accordingly, jurisprudence is located on the
universal level and legal dogmatics on the particular level. On the other hand, the formal features
of legal dogmatics and legal knowledge, regardless of the content of the knowledge, appear as a
part of universal jurisprudence as well. Non-positivists recognize the same difference but it is
seen merely as a matter of degree but not quality, See, for instance, Dworkin 1986, p. 90 and
410.
11
Austin 1920, p. Introductory, p. 5, lecture I, p.11 and 18, lecture II, p. 24 lecture V, p. 73,
lecture VI, p. 82 and lecture XI, p. 147
12
Hart 1994, s. vi ja 201.
13
Ibid., p. 50, 104, 109, 116 and 239.
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rule and a fact (an existing rule). Here is the narrow habitual and factual
foundation of law adopted by Hart. It is a matter of official behaviour, not fear of
habits of common people.
This is the naturalistic dimension of Hart’s theory. Within common law
culture, the final criteria of validity are the decisions of judges. On the other
hand, moral criteria are not the necessary criteria of valid law. It is possible but
not necessary that judges refer, as a matter of fact, to principles or values when
they identify valid law. In one system, judges see moral criteria as necessary
presuppositions of legal validity. In another system, judges never treat moral
criteria as presuppositions of legal validity.
Hans Kelsen’s mission was to demonstrate the scientific nature and
acceptability of legal dogmatics. He even saw his approach as an empirical
theory of law.14 According to him, legal dogmatics as a social and cognitive
science contains true knowledge of reality. Legal dogmatics describes the law by
means of objective statements which can be true or false. The statements of legal
dogmatics describe social reality.15 Valid law contains existing rules as social
facts.16 The sphere of these facts is the positive law of a state in the static sense.
Within a state, there are valid rules which correspondence to the true statements,
that is, descriptions of them. From the legal point of view, the essential feature
of these descriptions is the lack of norm-creation.17
Kelsen, however, rejected naturalistic explanations of law or legal
dogmatics. Social sciences differ from natural sciences because they have
different objects: they describe varient and independent dimensions of reality.
Valid norms as facts of social reality cannot be reduced to other forms of reality.
Otherwise these sciences are similar. According to Kelsen, science of law, that
is, legal dogmatics should not be combined with natural sciences, psychology,
sociology, ethics or political theory.18 On the other hand, Kelsen defined legal
14
Kelsen 2013, s. 199. Kelsen’s interpretation of empiricism is, however, loose and vague:
“Provided that the Ought of the norm it describes is not the Ought of some sort of metaphysical
justice, a theory of law remains empirical. The Pure Theory of Law meets these conditions”.
15
Kelsen called his Pure theory of Law “a radical realistic theory of law”. Kelsen 1970, p. 106.
16
Ibid., p. 73 and 79. Actually, Kelsen employed the term “norm” but it means, however, the
same as the term “rule” here. Kelsen did not acknowledge principles as general norms referring,
for instance, to values or people’s rights.
Supporters of naturalism (legal realism) rejected this kind of normativism, that is, belief in
ideal entities or facts. According to their insistence, the only proper objects of scientific
knowledge are pieces of observable reality, behavior or actual beliefs. Supporters both of legal
positivism and legal naturalism treat the law as social phenomenon but the latter define it in the
narrow sense. This is the crucial point of the difference between philosophical realism and
naturalism distinguishing the philosophical foundation on legal realism and legal realism. 17
According to Kelsen, the jobs of a judge and a scholar differ in a significant way. A judge has
the power to issue new rules (individual rules) but a scholar does not have such a competence.
The latter describes the law as it is, that is, as a given matter. A scholar cannot change or modify
the law with the help of interpretation. Kelsen ended up in the conclusion according to which
even elimination of legal contradictions is outside the power of a scholar. As a result, there is left
very little room for legal interpretation and merely a technical role in this activity performed by
legal scholars. See Kelsen 1970, pp. 236 and 355 and 1991, p.126 and Chiassoni, 2013, p. 140
and 155. 18
Kelsen 1970, p. 1 and 75.
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norms in the same way as Austin. Legal norms as expressions of “ought” are
orders of a sovereign.19
Kelsen’s legal positivism is a manifestation of philosophical realism. In
place of naturalism, Kelsen saw philosophical realism as a sufficient foundation
for the acceptable scientific nature of legal dogmatics.20 The defined objects of
legal dogmatics exist independently as such and as parts of social reality. No
reduction to other parts of reality is needed or possible. In this sense, legal
dogmatics is “pure”. Law appears here as a special kind of social facts, and there
is a necessary separation between law and morality.21
Kelsen thought that the independent branch of reality as the object of
knowledge guarantees the independence of legal dogmatics and preserves the
scientific nature of it. Otherwise, he rejected the demands of positivistic
philosophy.
For the sake of comparison, the supporters of legal realism adopted and
accepted all the demands of philosophical naturalism and positivism. This
applies to both the American and Scandinavian orientations which can be called
variations of legal naturalism.22
On the one hand, legal realists deemed it necessary to define law as a part
of reality. On the other hand, legal rules or concepts as such were not acceptable
objects of knowledge. Legal realists are not realists in the philosophical sense
because they deny the existence of rules and concepts, that is, the topics of the
legal language. Nevertheless, they presume that objects of knowledge exist in
reality. Acceptable objects are situated in the discernible reality. The legal
realists’ naturalistic solution was to reduce rules and concepts to some kind of
discernible reality. The defined objects of legal knowledge are presumed to exist
but American legal realists explained that the real essence of law, that is, law in
action, will be found in the behaviour of judges and courts.23 In turn,
Scandinavian legal realists defined law as a psychological phenomenon, either of
citizens or judges.24 The Scandinavian interpretation is parallel to the Humean
ethics.25
19
Ibid pp. 4. For Kelsen a realistic theory of law is concerned with positive law, that is, posited
by human beings. See Bindreiter, 2013, p. 129. 20
Chiassoni proposes the concept “realistic normativism” as Kelsen’s middle-way between
naive realism (naturalism by my interpretation) and naive normativism. Chiassoni, p. 161.
21
Kelsen 1970, p. 65, 67 and
22
See Leiter 1998, p. 92.
23
See, for instance, Holmes 1953, p. 279, Moore 1923, p. 609, Cohen 1935, p. 824 and Frank
1970, p. 3, 38, 65, 110, 122, 127 and 138.
24
Alf Ross is the best spokesman for the Scandinavian legal realists. His early theory is founded
on the beliefs and motives of citizens and his later theory is founded on the beliefs of judges. See
Ross 1934, p. 17, 92, 103, 126 and 161 and Ross 1953, p. 3, 25, 41 and 52.
25
Unfortunately and confusingly, the basic concepts employed in philosophy and jurisprudence
are not uniform. Instead, the same terms tend to be used, but with different senses. Philosophical
positivism and legal positivism as well as philosophical realism and legal realism have to be
assorted. For this reason, for instance, Kelsenian legal positivism is treated here as a
representative of philosophical realism. As for legal realism, it is seen here as a form of
philosophical naturalism.
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4. The Foundation of Critique
The understanding of law as based on social facts is treated as the main axiom of
legal positivism. Here, it is here the target of critique. If the following critique is
successful legal positivism fails to be an adequate theory of law.
The doctrine of legal rules as social facts often appears as an aspect of the
adopted conception of a legal system. From this viewpoint, legal systems have
two dimensions or “faces”. On the one hand, they are abstract and normative;
and, on the other hand, they are treated as parts of social reality.26 Within the
latter dimension, the function of legal dogmatics is to provide information about
social reality, or what takes place in a society.
Accordingly, information about law, especially in the form of statements of
legal dogmatics, seemingly describes a legal system. The describer’s viewpoint
is that of an external observer. This viewpoint presupposes a separate object of
the description. Objective knowledge presupposes a separate object independent
of the observer. This view manifests a narrow conception of knowledge and a
strong conception of objectivity. Legal knowledge as legal reasoning is merely
describing the given law, and objectivity means uniformity between knowledge
and its given object.
Knowledge does not, however, presuppose any presumed, defined and
separate object. Especially in the field of law, it is unnatural to define an object
whose existence means legal validity. Here, we face the separation between ‘is’
and ‘ought’, essentially, the separation between the alethic and deontic
modalities. I take this separation seriously, and I reject the possibilities of logical
deductions from ‘is’ to ‘ought’ or vice versa.
Accordingly, there are good reasons to call into doubt both the doctrine of
legal rules as social facts and the principles of legal positivism. Here, my
aspiration is to show the needlessness and harmfulness of the doctrine. It is often
noticed that the statements of legal dogmatics, that is, legal reasoning, does not
contain descriptions in the proper sense. Why is this so and what are the
consequences of this recognition? Answers to these questions have seldom been
provided. Here, I try to do so.
Why have so many distinguished scholars adopted the doctrine of legal
rules as social facts? The historical explanation may be found in the pressure of
naturalistic and positivistic philosophy exerted since the 19th century. I find the
variations of legal positivism to be manifestations of the aspiration to explain
legal dogmatics as an acceptable science.
26
The words ofOtaWeinberger are illustrative: `Institutional facts – like, for example, the legal
system – are in a peculiar way complex facts: they are meaningful normative constructs and at
the same time they exist as elements of social reality.` MacCormick and Weinberger 1986, p.
113. 8
Here, the focus is laid on the nature and preconditions of legal knowledge,
especially in the form of legal dogmatics. Knowledge of law is considered as a
crucial subject of jurisprudence, and legal dogmatics is treated as the heart of
legal studies.
5. Criticism
5.1 The Problem of Substantial Reasons
If one allows for exceptions to legal rules and recognizes principles and other
substantial reasons as valid legal arguments, then the positivistic model faces
two different, albeit not mutually exclusive forms of law. Rules as institutional
facts come into existence by means of certain rule-establishing procedures. They
exist or they do not exist, and the statements describing them are true or untrue,
but there are no other options available. The logic of facts and truthfulness is
binary, and hence, the logic of validity is binary.27
On the other hand, there are substantial reasons which are not necessarily
connected to any formal procedure or observable realization procedure. Most
often, they are embodiments of principles of justice and values. Application of
formally valid legal rules is evaluated or application situations or cases are
evaluated straight with the help of them. The effect of justice or values on facts
renders questionable the status of legal rules as social facts.
Accordingly, law emerges in the form of existing facts and legal
arguments founded on evaluations. In addition, these facts and arguments are
most often intertwined. For instance, a certain interpretation or application of a
section of a statute is based on both the wording of the section and the values
justifying the choice between possible interpretations. That is, there are two
kinds of law with two different ontological qualities. This is a problematic
ontology.
How can principles or other substantial reasons affect and modify the
content of law if the law is defined as a social fact? If a rule is an existing social
fact, then as a part of existing reality, how is it possible to shake up its existence
and modify it on the grounds of values? Valuing an existing fact cannot change
it. Evaluation is a human mental outlook occurring outside of the facts and
outside of the ‘world’. The facts can be treated as good or bad but they remain as
they are. Legal rules cannot be seen as social or institutional facts or be seen as
parts of existing reality in a durable way if they can be modified, bypassed or
ignored in the form of exceptions. These exceptions are justified by principles or
other substantial reasons, and they cannot be subjected to the binary logic of
facts. Their influence more or less depends on the case at hand and the
circumstances thereof.
27
See Marmor 2002, p. 106.
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5.2 The Problem of Truth
The doctrine of legal rules as social facts brings with it the question of truth. We
have already observed that it is not possible to define the laws by means of
formal criteria alone, that is, with the help of certain establishing procedures in
which legal rules come into being as institutional facts. The formal pedigree is
not a sufficient source of law. Principles and other substantial reasons can
modify or displace formally valid rules. Accordingly, it is not the case that valid
law exists if and only if these procedures take place. Valid law or even the
sphere of law cannot be defined by the procedures alone. There are no exact or
unambiguous borderlines of law or legal reasons compared with morality or
moral reasons or other substantial reasons.
One can try to solve this problem and preserve the definition of law as
social facts by means of a more extensive definition. According to this
definition, valid law is a large set of an existing state of affairs shown and
described by all possible legal arguments, containing principles and other
substantial reasons. Here, the reality of law consists of rules and principles, and
perhaps even concepts, described by the arguments. The expanded definition,
however, releases the law from the physical realizations. It is no longer possible
to base the law as legal facts on events producing facts in a sufficient way. In
many cases, there are no physicals events corresponding to the statements about
valid law. The law cannot be defined as facts if facts are not sufficient
constituents of law.
According to the correspondence theory of truth, a statement is true if and
only if a corresponding state of affairs takes place. The main points here are,
first, that the truthfulness of the statement is determined by the state of affairs;
and second, that the existence of the state of affairs can be verified. It must be
possible to verify the veracity of the statement with the help of the physical
realization of the state of affairs.
Within the expanded definition of law, it is often not possible to verify the
truthfulness of the statements describing the presumed states of affairs. Both
establishing procedures and evaluations are included in the field of law. We have
already observed that we are driven to acknowledge these two kinds of law. In
many cases, the truthfulness of the legal statements cannot be verified, so the
truthfulness of the statements is not determined by the states of affairs. On the
contrary, the state of affairs is presumed to exist by means of the statements.
Here, the statements determine the presumed existence of the states of affairs.
In the case of legal dogmatics, as a matter of fact, the resulting statements
are conclusions arrived at by means of justifications.28 In addition, it is presumed
that the corresponding and existing states of affairs, that is, legal facts do exist.
28
See Aarnio 1987, p. 25.
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This means, however, that the presumed legal facts are not needed anymore.
Moreover, we cannot verify them. Accordingly, they are redundant.
In sum, we do not describe anything using the statements of legal
dogmatics. Descriptions of facts or something else existing is not the sense of
statements of legal dogmatics. Instead, the conclusions themselves are
statements derived and corroborated by means of the employed justifications.
Apart from these, there are no other means of verification available. In other
words, there are no additional possibilities for checking the veracity of the
statements. We can see whether the snow is white but we cannot see or check in
another way whether the presumed corresponding fact exists when we present a
statement of legal dogmatics. On a general level, we can abandon the ideas of
legal facts and legal reality and avoid all the problems associated with these. In
most respects, the ontological issues disappear, and so they can be bypassed.
I agree with young Wittgenstein: the quality of the world lies outside the
world. In the same way, regulations lie outside the world, that is, outside the
object of the regulation.29 A regulation is not a matter of facts. That is, deontic
modality, the world of ‘ought’, differs from alethic modality, the world of ‘is’,
and they should not be mixed.
Even the references to procedures establishing law, that is, to enacting of
statutes or issuing of precedents, can be viewed as justifications rather than
descriptions. They can be called formal justification separated from substantial
justification. These references are formal: they refer to the forms of law, that is,
to statutes and precedents. Basically, they cannot be treated as descriptions of
facts because there can be overruling substantial arguments. Exceptions are
always possible.
My proposal is to treat all types of legal arguments in the same way. It is
better to acknowledge the same ontological status for all legal arguments. There
are formal reasons, especially references to statutes and precedents, and
substantial reasons, for instance reasoning founded on justice or public policy, as
well as formal and substantial justifications creating the content of the
knowledge of law. Instead of verification, the correctness of the conclusions is
checked and proved right by means of different legal premises. They contain
both formal and substantial reasons. They have the same quality and way of
effect but they have different force of effect. The uniform ontological status
makes it possible to master the whole field of legal arguments and the relations
between the arguments in a uniform way. Substantial reasons most often
reinforce formal reasons, they can restrict the application of formal reasons and
they can even displace formal reasons. I claim that this is the way legal
dogmatics is really and actually performed.
Even the formal reasons are supporting justifications with different force,
that is, different weight. In western legal systems, as a rule, the content of valid
law and best justified interpretations and applications are shown by means of
29
See footnote 6.
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formal reasons but different kind of deviations are possible as well. Deviations
are justified by substantial reasons.
On the other hand, even the use and application of formal reasons call for
substantial reasons. The use and application of formal reasons has to be justified
from the point of substantial reasons, that is, there are no powerful reasons to
deviate. This is an important implication of my approach.
According to my proposal, the only important issues of legal dogmatics
bear firstly on the relation between different legal reasons and conclusions, and
secondly, on the different ways of creating the conclusions. In short, the point of
legal dogmatics is justification, not description. This is an entailment of
antirealism as the philosophical foundation of the approach.
It is worth noticing that my approach does not contain logical deductions
as means of legal dogmatics. Rather, it contains stronger or weaker support
provided by the reasons as premises of concluding.30 Even solutions in the easy
cases and as routine concluding are not logical deductions. The conclusion, that
is, justification, is always more or less substantial, and for that reason,
defeasible. There is always a creative dimension involved in legal reasoning, and
it can always be doubted. Accordingly, uncertainty is an essential feature of
legal dogmatics as well as conclusions of the courts.
These distinctive features of legal knowledge, creativity and uncertainty are
naturally inconsistent with the discourse on facts and states of affairs. Discovery
of facts and descriptions of them do not contain this kind of creativity or
uncertainty. Instead of being matters of truth, legal reasons are matters of
justifying and convincing. Statements of law are more or less credible, that is,
better or worse reasoned, which differs from the binary logic of truthfulness or
existence in a significant way.
Moreover, rather than being unambiguous statements, the sentences of
legal dogmatics are often open-minded interpretations including considerations
founded on pro and contra arguments with varying weights. There is no way to
check the correctness of the conclusions because there is no legal reality
available and; hence, we cannot compare the conclusions with states of affairs of
this reality.
I view my approach as realistic because it fits the conventional and
established practice of legal dogmatics very well. It is reasonable to analyze and
reflect upon the principles and presuppositions of successful legal dogmatics,
that is, legal knowledge within jurisprudence.
The statements of legal dogmatics do not describe anything per se. Instead,
they advance interpretative conclusions justified by means of formal and
substantial reasons. In addition, there are no verification means available. For
these reasons, I view the doctrine of legal rules as social facts as misleading and
harmful.
30
See Peczenik 1989, p. 126
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5.3 The Problem of Is and Ought
The third problem of the doctrine of legal rules as social facts is created by the
crossing of the line between ‘is’ and ‘ought’. This is the is-ought problem known
as Hume’s law and Hume’s guillotine as well. I recognize this problem in the
basic concepts and definitions of Austin, Kelsen and Hart,
I view all the logical deductions from existing states of affairs to norms,
and vice versa, as harmful. In other words, I respect Hume’s law. In this case,
logical deductions take place when a concept, according to its definition,
contains elements or dimensions of both ‘is’ and ‘ought’. The definition creates
the necessary relation between the dimensions of ‘is’ and ‘ought’. The oughtelement is entailed by the is-element, and vice versa. This kind of concept
contains a rule or other norm defined and, at the same time, as an existing state
of affairs.
We have already observed that all the authors mentioned above are
engaged in the idea of existing rules, that is, legal rules as institutional or social
facts. Treating a rule as a fact, that is, an ‘ought’ as an ‘is’, is, naturally, the basic
reason for the problem.
As a naturalist, Austin equates abstract law with discernible facts; legal
realists do this as well. Kelsen on the one hand, insists the strict separation
between ‘is’ and ‘ought’ and rejects deductions from ‘is’ to ‘ought’ or from
‘ought’ to ‘is’. On the other hand, he defines a legal rule as an existing matter.31
In the case of Kelsen, the relation between a rule-issuing fact and the oughtprescription as the meaning of the rule-issuing fact creates the necessary relation
between ‘is’ and ‘ought’.
Hart defines the crucial point of every legal system, the rule of recognition,
as a fact, from an external point of view, and as a criterion of validity, from an
internal point of view.32
In brief, they all adopt a form of necessary relationship between ‘is’ and
‘ought’. Why do these authors adopt a definition of rule or norm which includes
both dimensions of ‘is’ and ‘ought’? The obvious answer is the social thesis of
legal positivism. In line with being legal positivists, they found it necessary to
show and explain the factual foundation of legal systems. That is, they viewed
legal systems as parts of social reality.
I interpret this need as a defence of legal dogmatics and knowledge. More
precisely, they found it necessary to indicate the scientific nature and quality of
legal dogmatics and knowledge, either as applications of philosophical
naturalism or realism. Legal rules which are simultaneously social facts connect
the law to existing reality and constitutes the factual, that is, the ‘scientific’
foundation of the law. On the other hand, disqualification of the social thesis
means abandonment of legal positivism. Here, I do both.
31
Kelsen 1970, p. 10, pp. 71 and p. 193.
Hart 1994, p.
32
13
6. Conclusions
The historical explanation of the doctrine of legal rules as social facts is the
strong positivistic atmosphere of philosophy and the pressure on jurisprudence
exerted by positivism before and after the beginning of 20th century. There is,
however, no reason to feel this pressure anymore; let us emancipate ourselves
from it! Accordingly, it is not necessary to adapt or subject jurisprudence to
naturalistic or positivistic philosophy. Instead, it is reasonable to create
jurisprudence founded on conventional and successful legal dogmatics and
practices.
The doctrine of legal rules as social facts was formulated as a response to
the demands of naturalistic and positivistic philosophy. It is a way of explaining
legal dogmatics as an acceptable branch of science. It would be, nevertheless,
possible to adopt it if it was a sound explanation or analysis of legal knowledge.
This is, however, not the case. The doctrine contributes only a misleading
picture and understanding to legal dogmatics which is the heart of jurisprudence.
Nevertheless, it does not create a fruitful foundation for legal knowledge,
especially in the form of legal dogmatics.
Statements of valid law do not contain descriptions of any facts. The
sentences of legal dogmatics may appear as and resemble descriptions but their
real sense is to act as conclusions based on justification. Justification means that
one draws conclusions with the help of formal and substantial reasons. The
function or sense of a statement about valid law is not to describe any kind of
facts or reality but to express justified statements, often of rights and duties.
Moreover, they are specifications of justice. Accordingly, the proper question
word of legal knowledge is ‘why’. In addition, I claim that knowledge of law is a
priori understanding. It cannot be produced by means of a posteriori methods,
for instance, with the help of empirical method. The steps of this understanding
contain creative and evaluative reasoning and, therefore, the conclusions are
uncertain. Moreover, there is no way of verifying these conclusions. Instead, the
concluding is more or less convincing. The better certainty is not available.
I understand legal dogmatics as a study on legal reasons for action.
Accordingly, these reasons are an important subject on the level of
jurisprudence, as well. On the other hand, the attribute ‘legal’ should not be
understood in a restrictive sense. There is no serviceable way to separate legal
from no-legal reasons on the general level. All relevant reasons are legal
reasons.
The conception of legal knowledge adopted here does not disallow the
influence of philosophy on jurisprudence. The understanding of legal knowledge
and legal dogmatics as a branch of jurisprudence must take place, however, on
the conditions of established legal practices. In this respect, jurisprudence cannot
be an application of philosophical doctrines adopted as given things. Rather, it
14
should be an analysis and reflection of successful legal dogmatics with the help
of philosophical means.33
The approach adopted here nevertheless separates jurisprudence from the
philosophy of science. There is instead a natural connection between legal
dogmatics and practical reasoning and philosophy. Legal reasoning is an aspect
of practical wisdom, and not descriptions of facts.
____________
Professor
Matti Ilmari Niemi
Law School
University of Eastern Finland
Finland
e-mail: [email protected]
www.uef.fi
33
I disagree with Kelsen in a large scale but I share his way to make the jurisprudential
approach. Kelsen took the conventional legal dogmatics (Rechtswissenschaft) as a given thing
and as an object of philosophical research. His transcendental analysis as explications producing,
for instance, the concept of basic norm is an analysis of conventional legal dogmatics and
perhaps, extended as conventional juristic understanding. Later, even the approach of Dworkin
seems to be similar. This kind of naturalism is well-founded. Unlike Kelsen presupposed, his
analysis is not necessary or the only possible one. Moreover, it is possible to show a more
justified analysis. See Paulson 2013, pp. 53 and Dworkin 1986, p. 90 and 410.
15
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