Abstract
The chapter purports to provide in turn: (1) an account of the basic claims characterizing “realism” and “scepticism” in the philosophy of law; (2) an overview of the contents of the book; (3) an account of a few alternative ways of conceiving conceptual analysis, where a modest and reconstructive variety is put forth as worthwhile pursuing in jurisprudential enquiries.
El hoy fugaz es tenue y es eterno; otro Cielo no esperes, ni otro Infierno
—J. L. Borges (1964)
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Notes
- 1.
- 2.
The literature on legal realism (rule-scepticism, realistic jurisprudence, etc.) is immense. Concerning contemporary reflection on legal realism, the reader may profit, to begin with, from essays by Brian Leiter (2007, 2012, 2013), Schauer (2013, 2018), Torben Spaak (2015), Dagan (2013, 2017, 2018), and the law-and-society jurists rallying under the banner of “New Legal Realism”—see, e.g., the papers collected for the Symposium “Is It Time for a New Legal Realism?” (“Wisconsin Law Review”, 2005), the Symposium “The New Legal Realism” (“Law & Social Inquiry”, 2006), and the two recent volumes edited by Elizabeth Mertz, Stewart Macaulay, and Thomas W. Mitchell: Mertz, Macaulay, Mitchell (2016). As it is well known, Leiter vindicates American Legal Realism against Hart’s criticism and presents it as a prototype of a naturalized jurisprudence purporting to “describe legal phenomena” as they in fact are (Leiter 2007, 2012). On the same path, the New Legal Realists advocate a genuine and thorough interdisciplinary, not imperialistic, and methodologically pluralist approach to legal knowledge, combining traditional legal scholarship’s doctrinal analysis with advanced social theory, the study of the “law in books” with the study of the “law in action” (“theory-driven empirical research about law in action that values qualitative as well quantitative and experimental research”: McCann (2016), p. xiv; Mertz (2016), p. 3: “getting formal law and the “real world” (and in particular, the reality of the law in action as it has been revealed by decades of social science) into conversation with one another”). On the Continent, realism is presently the livery of several legal theorists, some of which belonging to the “Genoa School” (see Chiassoni 1998; Ferrer and Ratti 2010; Guastini 2015, pp. 45–54; Barberis 2016, pp. 1–8).
- 3.
I will come back on this thesis in chapter and Chap. 4 below.
- 4.
- 5.
- 6.
For this distinction, see Kahneman (2011), pp. 20–24. The reflective character of juristic interpretation will be argued for in this chapter, under the headings of juristic textual, meta-textual and conjectural interpretation. The reflective character of judicial interpretation will be argued for in several parts of the book (Chaps. 2–6).
- 7.
See Chap. 6 below.
- 8.
See Chap. 6 below.
- 9.
Kelsen (1960), ch. VIII.
- 10.
Guastini (2015, pp. 45–54) claims that judicial and most of juristic interpretation is never purely cognitive in character (never purely a matter of “knowledge”), but always involves some decision (always a matter of “will”), because legal texts, or rule-formulations (like, e.g., a constitutional provision), are indeterminate, and they are indeterminate both at the level of “abstract interpretation”, due to the ambiguity of rule-formulations, and at the level of “concrete interpretation”, due to the vagueness of the predicate terms used in rule-formulations. In other words, Guastini grounds (what we may call) his “universal decisional character” thesis about the nature of legal interpretation on a “universal indeterminacy thesis”: universal indeterminacy makes decision-making necessary, when interpreting a rule-formulation to any practical purpose. Guastini, however, affirms that rule-formulations are “often ambiguous”; furthermore, as we all know, vagueness is an intermittent phenomenon: any predicate term can be vague, but is never vague all the time, as regards to any individual case whatsoever. Such points, clearly, are to the effect of undermining the universal decisional character thesis. Accordingly, if we want to rescue it, the universal indeterminacy thesis must be rephrased, in terms of a universal methodological indeterminacy, and supplemented with further argument, coping with situations where methodological indeterminacy is reduced (overcome) by an on-going cultural (and ideological) convergence upon “one” reasonable method and result. This is what I am going to do in this book, both in the present anticipation of the basic claims of realism, and in the following chapters.
- 11.
- 12.
- 13.
- 14.
On interpretive codes, see Chap. 3, Sects. 3.4, 3.5, 3.6, and Chap. 6, Sect. 6.3.2, below. In the text, I consider interpretive discretion only. Like conclusions hold for the twin activity of filling up gaps and identifying law’s “implicit” norms. On this issue, see Chap. 2, Sect. 2.2.1.2, and Chap. 7, below.
- 15.
Think, for a telling instance, at the French Exegetical School (Chiassoni 2016a, ch. IV).
- 16.
On these phenomena, see e.g. Celano (2016), pp. 2–16.
- 17.
- 18.
When I talk of explicit norms being created by enrichment, I have in mind the situations where a given legal provision, say LP1, which is usually taken to express a certain norm, N1, is made to express also a further norm, N2 (LP1 = N1 & N2, where “=" stands for "means” or “expresses”). On the phenomenon of “complexity” in the meaning of legal provisions, see Guastini (2011a), pp. 41–42. According to Eugenio Bulygin, judges make law whenever the general norm they apply to an individual case at hand is neither identical to any already existing norm, nor a logical derivation from already existing norms (Bulygin 1966, pp. 75–87). This is a normativist approach, deliberately opaque to interpretation. Contrariwise, the five notions of judicial lawmaking I consider in the text are interpretation-transparent. These two theoretical standpoints will be considered with more detail in Chap. 7.
- 19.
On this point, see Chap. 2 below.
- 20.
- 21.
On judicial fiction, see Chap. 8 below.
- 22.
- 23.
On this distinction I will come back in Chap. 7 below.
- 24.
According to P. F. Strawson, who coined the expression, “revisionary metaphysics” is to be contrasted with “descriptive metaphysics”. The latter “is content to describe the actual structure of our thought about the world”, it aims “to lay bare the most general features of our conceptual structure”; the former, contrariwise, “is concerned to produce a better structure” (Strawson 1959, p. 9).
- 25.
Quine (1960), pp. 271–276.
- 26.
- 27.
Leiter (2007), pp. 1–2: “the method of conceptual analysis via appeal to folk intuitions (as manifest, for example, in ordinary language), a method that was itself at risk of becoming an item of antiquarian interest in the context of the naturalistic revolution of late 20th century philosophy”; Leiter (2012), § 2: “The question that plagues conceptual analysis, post-Quine, is what kind of knowledge such a procedure actually yields? Why should ordinary intuitions about the extension of a concept be deemed reliable or informative? Why think the “folk” are right?”.
- 28.
Leiter (2007), pp. 177–178, 196–197, where, discussing Ian P. Farrell’s defence of the Hartian search for “the concept of law” as a worthwhile piece of “modest conceptual analysis”, retorts: “But on Farrell’s (more plausible) rendering of conceptual analysis, we do not illuminate the reality, i.e., the nature of law, we illuminate, rather, the nature of our “talk” about law […] Modest conceptual analysis illuminates our concepts – our talk, as it were – not the referent we might have intended to understand” (italics in the text, ndr). See also Leiter (2012), § 2. Leiter’s criticism is in order, when, by “modest conceptual analysis”, necessary truths about aspects of reality are looked for. It does not do, contrariwise, when, following J. L. Austin’s suggestion (Austin 1956–1957, pp. 129–130), such an ambitious, and mysterious, task is put down, and a “sharpened awareness of words” is looked for in order to “sharpen our perception of the phenomena”, though “not as the final arbiter of” (italics added; the passage, without this last, quite relevant, qualification, is quoted by Hart in the opening page of the “Preface” to The Concept of Law: Hart 1961, vii). For a defence of “traditional conceptual analysis” in jurisprudence, like the one performed by Hart (1961), against Leiter’s naturalistic attack, see Himma (2007), pp. 1–23; Himma (2015), pp. 65–92. Himma’s defence, however, looks troublesome. It sets forth an apparently inconsistent view of “traditional conceptual analysis”: on the one hand, it would be just about “our” concept of law, and hence would be tied, and limited, to a contingent, changeable, local, experience. On the other hand, it would lead, mysteriously, to making metaphysical claims about the nature or essence of law in general, telling us metaphysical, necessary, truths “about not just all existing legal systems, but all conceptually possible legal systems. Thus conceived, a conceptual analysis of law consists in a set of conceptually (or metaphysically) necessary truths and thus constitutes a piece of metaphysical theorizing – just as an analysis of the concept of free will is a piece of metaphysics” (Himma 2015, § 5). In the same passage, Himma also presents Hart as a torchbearer of such a metaphysical conceptual analysis. This view, nowadays common among jurisprudents, is nonetheless disputable. See, for instance, Marmor (2012), who advocates that the basic thrust of Hart’s jurisprudence was not conceptual analysis, but reductionism. I have argued against the “essentialist” reading of Hart’s conception of conceptual analysis in Chiassoni (2012), § 2.2, and Chiassoni (2016b), pp. 61–71.
- 29.
- 30.
According to Jackson, (intuitionist) “conceptual analysis” is needed, if we want to “have much of an audience”, and do not want turning “interesting philosophical debates into easy exercises in deduction from stipulative definitions together with accepted facts”. If, for instance, our problem is about free action and determinism, the only fruitful way to proceed is by asking “whether free action according to our ordinary conception, or something suitably close to our ordinary conception, exists and is compatible with determinism” (Jackson 1998, pp. 30–31, italics in the text). The ascertainment of our (or folk’s) conception of free action, in turn, requires appealing to ordinary, shared, intuitions, which reveal “our shared theory” (Jackson 1998, pp. 31–32, 46 ff.). This can be carried out by means of introspection and, above all, socio-psychological enquiries. It is worthwhile stressing that, according to Jackson, “in practice”, “the role” he is “recommending for conceptual analysis will often be very like the role Quine gives to the [Benthamite] notion of paraphrase” (Jackson 1998, p. 46). In the light of such remark, the case against “conceptual analysis” à la Jackson from Quinean perspectives seems, at least partly, the fruit of an uncharitable exaggeration.
- 31.
These words, by which I characterize what I call “grand conceptual analysis”, are from Smith Churchland (2013), pp. xi–xii.
- 32.
Such a conception of “linguistic frameworks” is defended, for instance, by Rudolf Carnap. In his view, many questions which are presented as “theoretical questions” (like, e.g., the question “are there natural numbers?”), should be interpreted as “practical questions, i.e., as questions about the decision whether or not to accept a language containing expressions for the particular kind of entities” at stake (italics added, ndr). In his view, “whether or not” a “linguistic framework” should be introduced depends on the purposes one is aiming at, and “is a practical question of language engineering, to be decided on the basis of convenience, fruitfulness, simplicity, and the like” (Carnap 1963, p. 66; see also Carnap 1950, pp. 205–221).
- 33.
Smith Churchland (2013), pp. xi–xiv; “So what is a philosopher to do, if not troll his mind for conceptual truths? The Quinean answer is this: many things, including synthesizing across various subfields and theorizing while immersed in and constrained by available facts. Despite much hand-wringing by overwrought philosophers, Quine did not aim to put an end to philosophy, but to remind us of what the older philosophical tradition had always been: broad, encompassing, knowledgeable of everything relevant, and imaginative” (xiv, italics in the text). For a condensed account by Quine himself, see e.g. Quine (1960), pp. 275–276.
- 34.
See Quine (1992), pp. 56–57.
- 35.
Ian P. Farrell apparently advocates the third variety. Leiter criticizes both forms of (what I call) descriptive conceptual analysis, i.e., the grand and the modest one, while recognizing, following Larry Laudan, the usefulness of something like the modest and reconstructive variety I stand for here (see Leiter 2007, p. 183 footnote 3; see also Leiter (2007), p. 133 footnote 45, 168 ff., 179–181, where, in line with a central, though apparently overlooked, tenet of Logical Positivism, he regards philosophy as “the abstract branch of successful scientific theory […] the abstract and reflective part of empirical science”; Leiter 2008).
- 36.
Austin (1956–1957), p. 130.
- 37.
A more encompassing view of reconstructive conceptual analysis is propounded by Strawson (1962), pp. 112–118, who identifies five intertwining ways (“strands”) of philosophical analysis: (1) conceptual therapy, to be used for solving paradoxes and perplexities; (2) descriptive analysis, which is about the actual working of “our” conceptual and logical apparatus; (3) explanatory analysis, which puts to work philosophical imagination in order to bring to the fore the “natural foundations” of our conceptual and logical apparatus; (4) reformist metaphysics, which puts to work philosophical imagination in view of providing a new and different conceptual framework for “our” same old world; and, finally, (5) descriptive metaphysics, which purports to clarify the “general structure” of “our” conceptual apparatus. My view of conceptual analysis may look a piece of eclecticism, where suggestions from Bentham, Russell, Carnap, Quine and Strawson, among others, are put together in a sort of mental patchwork. It is indeed. In fact, I do not care for strict philosophical allegiance. I care for (hopefully) smoothly working tools for (hopefully) fruitful jurisprudential investigations.
- 38.
- 39.
- 40.
Quine (1975), p. 72, italics added.
- 41.
For an archetype of such a view, see Ross (1958), ch. 1.
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Chiassoni, P. (2019). Introduction: The Path of Analytical Realism. In: Interpretation without Truth. Law and Philosophy Library, vol 128. Springer, Cham. https://doi.org/10.1007/978-3-030-15590-2_1
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