Abstract
The topic of legal objectivity rotates around the determination of the status of the norms that constitute the major premise of the practical syllogism representing the formal scheme of judicial decisions' justification. Those who deny the objectivity of law believe that the existence and meaning of legal norms depend on the opinion of judges and jurists considered individually. The different versions of the objectivity of law reject this sceptical conclusion. The strongest versions of objectivity accepted by the different doctrines of natural law presuppose metaphysical realism and rule out the idea that what seems correct to someone can determine what is effectively correct; the weakest versions, upheld by legal positivism, believe—at least in relation to the existence of legal social practice—that what seems correct to most members of a community determines what is effectively correct. Does a space exist between these two versions of objectivity? In this essay arguments are put forward in support of a negative answer.
In 1977, John Leslie Mackie published an essay on Ronald Dworkin, entitled “The Third Theory of Law”. In this essay, Mackie presents Dworkin’s theory of law's thought as an unsuccessful attempt to indicate a theory of law that was alternative both to legal positivism and to natural law theories. The criticisms that I make here of a conception of aspiring to occupy an intermediary space between strong conceptions and “conventionalist” legal objectivity ones are in line with Mackie’s arguments, and this explains the title of this paper.
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Notes
- 1.
The term ‘descriptivism’ refers to the epistemological conception according to which the task of the language of knowledge is to represent the world “as it is.” To use a well-known metaphor by Richard Rorty (1980, 12–13), the descriptivists believe that the human mind works like a mirror able “to mirror reality.” See also Villa (2004, 141–156).
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In this connection, Andrei Marmor (1992, 79) observes that “holism, however, does not necessarily lead to a coherence theory. It is a negative view in the sense that it provides no answer to the question of a substitute for foundationalism, for which status a coherence theory of knowledge is only one candidate.”
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Rawls, for instance, mentions both Nelson Goodman, who uses an argumentative scheme similar to his own to explain inductive and deductive inference, and Joel Feinberg, who compares the argumentative method of philosophical discussion to discussions in courts of justice, where principles and legal precedents are continually adjusted to one another. See Goodman (1973, 64), Feinberg (1973, 34).
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After introducing the role that reflective equilibrium plays in moral philosophy, Rawls (1971, 49) writes: “but there is a contrast, say, with physics. To take an extreme case, if we have an accurate account of the motions of the heavenly bodies that we do not find appealing, we cannot alter these motions to conform to a more attractive theory. It is simply good fortune that the principles of celestial mechanics have their intellectual beauty (Hanen 1983).”
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I here follow Pino (1998, 187–228).
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Peczenik (1990, 178) clarifies his statement as follows: “If the norm- or value-system in question is more coherent than any competing system, then it is prima facie better justified and more rational than any competing system. If the norm- or value-system in question is more coherent than any competing system, then there exists a prima facie reason that it is correct.”
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The fundamental thesis of metaphysical realism is that every utterance is made true or untrue by an objective reality whose existence is independent of our knowledge. See, Dummett (1981, 434). Hirst (1967, 77) defines realism as “the view that material objects exist externally to us and independently of our sense experience. Realism is thus opposed to idealism, which holds that no such material objects or external realities exist apart from our knowledge or consciousness of them, the whole universe thus being dependent on the mind or in some sense mental”.
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This option is accepted by MacCormick (2005, 277) among others: “The kind of reasoning which goes forward in legal decision-making, legal argumentation, and indeed in legal thought in all its forms and levels is, as this book in common with other contemporary authors maintains, a form of practical reasoning. All practical reasoning works on the presuppositions that there may be some matters upon which opinion can be right or wrong. It proceeds under a pretension to correctness, an implicit claim to being correct, not just to being boldly or confidential asserted”.
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Dworkin in some writings develops a “deflationist” attitude to objectivity. He maintains that it is not appropriate to talk of objectivity in relation to interpretation, since the correctness or otherwise of affirmations in this sphere of discourse entirely depends on questions that are internal to the practice in question and not on questions that are in some way to be connected to a reality external to the practice. In other words, in the specific case of interpretative practices he considers ‘objectivity’ and ‘truth’ as redundant words. Dworkin uses this argument to criticize that form of scepticism that he defines as external or Archimedean. The external sceptic, for instance, thinks that it cannot be affirmed that the utterance ‘slavery is unjust’ is true since in the universe something like the injustice of the slavery does not exist. According to Dworkin, the mistake of external scepticism is not understanding that “the game being played” does not have among its rules that of correspondence with the reality; it consists, rather, in presenting the best possible arguments in support of one’s opinions or beliefs. Therefore, when external scepticism maintains that our convictions are not “real”, it affirms a true thing but also an obvious one without any utility. These observations by Dworkin are nevertheless hardly compatible with his criticism of conventionalism and his “one right answer” thesis. See Dworkin (1983, 287–313), Id. (1996, 87–139), Coleman (1995, in particular 48–61), Stavropoulos (1996, in particular 160–162).
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A convincing in-depth analysis of this theme can be found for example in Foster Wallace (2006, 66–127).
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MacCormick (1994, 287–288) for example observes: “That there can be common patterns of criticism of conduct or states of affairs depends upon our conceiving that some patterns are willed as common patterns for all people in given circumstances. We can conceive of that independently of our own will in the matter, but not independently of our beliefs about the will of other members of our social group…”. Cf. Duff (1980, 68–73), Id. (1986, 74–98).
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“…to the extent that the law is determinate (as it is, for example, in easy cases), the correct answers must be objectively correct”. (Coleman and Leiter 1995, 246. Authors’ italics).
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Schiavello, A. (2013). The Third Theory of Legal Objectivity. In: Araszkiewicz, M., Šavelka, J. (eds) Coherence: Insights from Philosophy, Jurisprudence and Artificial Intelligence. Law and Philosophy Library, vol 107. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-6110-0_7
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