Abstract
This chapter lays the philosophical foundations for the theory about reasoning with (legal) rules and its logical elaboration which takes up the remainder of this book. In my opinion, the notion of a reason (rather than that of an argument) is the most fundamental one for a theory of reasoning.
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References
Most of the following discussion of the work of Raz is based on Raz 1975, pp. 15–84.
Actually the definition is more complex, but I have left the complications away because they only relate to technicalities and do not change the essence of the definition. It should be noticed that Raz is only concerned with reasons for behaviour. He recognises that there are also other reasons, such as reasons to believe something, but he does not deal with them. This explains why Raz analyses the notion of a reason to f, rather than the notion of a reason in general.
In Practical Reasons and Norms, Raz writes about rules where I would prefer to write about principles. In the discussion of the work of Raz, I will use the words ‘rule’ and ‘principle’ intermittently, without assigning much importance to their difference in meaning. The distinction between the two will become important in chapter III.
I do not think that the addition of the rule would really lead to entailment of the conclusion, because in my opinion the rule has no truth value and traditional logic cannot be applied to it. Moreover, as we have seen in chapter I, reasoning with rules is defeasible. This means that even the addition of the rule would not lead to an entailment relation between the reason and the rule on the one hand, and their conclusion on the other hand.
The existence of a reason is an institutional fact in the sense of MacCormick 1974. It is brought about by institutive facts, and terminated by cancelling conditions. Cf. section 4.3.
The possibility that somebody is tempted to act on ‘reasons’ which he does no acknowledge as reasons anymore is discussed in section 11.2.
Cf. also the discussion of the relation between rules and principles in section III. 9.
It might be objected that the existence of the rule is a reason why one should pay for the damages if one has committed a tort that caused these damages, and that therefore the existence of the rule is the reason. This objection misses the point. The existence, or — better -the validity, of the rule may be a potential ‘reason’ to behave according to this rule. (Although even then it would be better to say that the validity of the rule generates the potential reason to behave according to the rule.) This potential ‘reason’ does, however, not entail that one has an actual reason to pay for the damages in a concrete case. To obtain this latter conclusion, one needs to apply the rule, which in its turn makes the facts that one committed a tort that caused damages into an actual reason why one ought to pay for the damages. In other words, the potential ‘reason’ which is based directly on the rule does not entail the actual reason to fulfil the rule’s conclusion in case the rule conditions are satisfied. Therefore, the mere existence of the rule is no reason to pay for damages.
A similar insight can be found in Peczenik 1989, which stresses on the one hand the need to weigh reasons, and on the other hand the importance of transformation rules which are the basis for defeasible arguments (‘jumps’).
I have based my discussion on the Dutch translation of this book Naess 1978. Because of the different editions of the book that will be accessible to different readers, I have refrained from referring to page numbers.
A related type of scheme is presented in Aarnio 1987, p. 117.
In section VI.5.2 I distinguish between the relevance and the probability of reasons, and the degree to which the facts which are the reasons obtain.
The is replace quotation marks in the original. Notice the recognition of defeasibility in connection with institutional facts.
Cf. Searle 1964 and 1969. The following discussion is based on Searle 1969. Recently, Searle has published an entire book about institutional facts: Searle 1995. A discussion of this book is outside the scope of this work.
An extensive analysis of acts-in-the-law in the light of speech act theory and an institutional theory of the law can be found in Ruiter 1993.
In this connection, Hare speaks of the supervenience of some facts on other facts (1952, pp. 80f.).
Readers who object against a non-physical use of the notion of causation are free to substitute a neologism of their own choice.
The background can also exist of principles, goals, values, etc. Cf. section HI.6.
Cf. the introduction to part D of this chapter.
The theory of internal realism is most extensively exposed in Putnam 1981, pp. 49f The following discussion is therefore based on that book.
The present distinction between reality and the world is mine, not Putnam’s.
But cf. section 17.3 where all kinds of reasons are, amongst others, treated as reasons for some kind of mental behaviour.
I assume that even teleological explanations are (indirectly) causal explanations. For instance, my buying an ice-cream is explained teleologically by my wanting to eat an icecream, and causally by my psychological state of wanting to have an ice-cream. These two explanations coincide in my view. This does not mean that there are not other kinds of explanations, also called teleological, which cannot so easily be ‘reduced’ to causal explanations. Cf. Hull 1974, pp. 115f. These explanations have little to do with the explanatory reasons with which I am concerned here, however.
However, I often wonder why causal connections are often deemed to be more understandable than normative connections. In fact, in my opinion both are (the result of) significance relations imposed by the human mind on the world as structured by that mind, and as such equally easy or difficult to understand. Cf. also the introduction to part B of this chapter.
The brain state that interrupts a connection cannot be made conscious as such. No brain state can be made conscious as such, but a brain state will sometimes realise beliefs, which can be brought to the level of consciousness.
In this connection it is interesting to notice that Hofstadter proposes the hypothesis that high level mental phenomena involve self-reference. Cf. Hofstadter 1980, p. 709.
It need not be the case that the other belief actually occurs. It suffices for the application of the principle and the corresponding generation of a reason, that the person is motivated to have the second belief. Normally this motivation leads to the belief, but it is possible that there is also a reason to disbelieve which outweighs the reason to believe. In that case the application of the principle and the generation of the reason do not lead to the corresponding belief. Cf. the discussion of this case in section 10.1.
It is somewhat strange to speak of the application of a personal principle, since the use of a personal principle is a mental disposition which works ‘automatically’. The existence of social and institutional rules is not purely a matter of individual mental dispositions, however, and in those cases it makes sense to speak of their being applied. It is again conformity of terminology that makes me write about application in the case of personal principles too.
Clearly this account of social rules is inspired by Hart’s account of social rules. Cf. Hart 1961, pp. 50f.
Following Taylor 1961, I distinguish a point of view from a set of rules which define the point of view. For instance, both in the Netherlands and in China it is possible to evaluate behaviour from the legal point of view. Nevertheless, different rule sets will be involved in the evaluation. This is in agreement with the circumscription of a point of view given in Raz 1993, as ‘any such perspective which we can assume and reason from, or turn away from and shun’.
Cf. also the example discussed in section 1.5 about Jeremy who had to obey an order in the army.
In my opinion, the notion of validity as used in connection with institutional rules, has nothing to do with ‘binding force’ or something of the kind. Almost on the contrary, I would say. Binding force is more typically connected with personal principles, because personal reasons for behaviour by definition tend to generate the correct motivations. Institutional rules, which generate institutional reasons (for behaviour) provide the least guarantee (in comparison to personal and social rules) that the obligations which stem from them are experienced as binding.
There is a subtlety involved here in the case of points of view, such as the law, that contain social rules next to institutional rules. It is possible that a social rule that is part of the law (a legal principle) excludes the application of an institutional legal rule. In other words, it is sometimes possible (at least in the Netherlands) to review a legal rule against a legal principle. This is an exception to the principle that exclusionary reasons are always of the same type (personal, social, or institutional) as the rule the application of which they exclude.
If something is a personal reason for acting, this means that this reason probably motivates the person for whom the reason exists. It may, however, be the case that the concerning person is not the appropriate person to perform the action for which the reason exists. (This person is not the addressee of the norm.) In that case, the concerning person should not be motivated to perform the action himself, although he will tend to approve of the concerning action if performed by the appropriate person.
This distinction cuts across the distinction between causal and justifying reasons. Cf. section 8. I return to this distinction in the sections VI.6 and 7.
The use of the term ‘anankastic’ follows a suggestion of Von Wright 1963, p. 10.
It is not impossible that a category has more than one prototype. I will leave this complication out of consideration here.
It seems to me that classificatory rules only apply to non-prototypical instances of a category, and that the reasons why something belongs to a category refer to the characteristics of prototypical instances, or are based on relations between categories. A typical apple, for instance, is an apple just because this kind of thing is an apple (no particular reason at all). That the apple is also a fruit is because apples are fruits (a classificatory rule).
In fact, the phenomenon that both purely factual and value judgements are based on the same kind of reasons places the whole fact/value dichotomy in a dubious light. Cf. Hage 1986 and 1987.
Von Wright 1963, p. 106 uses the term ‘normative statement’ for what seems to me the same thing. Alchourrón and Bulygin 1981 write about normative propositions in distinction to norms.
Extensive analyses of the different deontic notions and their interrelations can be found in White 1984.
Cf. for instance the implicit adoption of the term ‘norm’ for both normative rules and normative propositions in the introduction of Hilpinen 1971. The use of one term for both deontic facts and deontic rules will often reflect an unwillingness to distinguish for logical purposes between statements and rules. An elaborate discussion of the terminology concerning norms is given in Von Wright 1963.
I prefer not to use the word ‘alethic’ as the opposite of ‘deontic’, because alethic means ‘concerning truth or falsehood’, and because sentences that describe modal facts are also true or false. The distinction alethic/deontic rests precisely on the confusion between the distinctions rule/fact and deontic/non-deontic that I try to avoid here.
Cf. the identification by Dworkin 1978, p 22/3 of principles and policies, which works in a similar fashion. Cf. also the sections IV.6 and 7, where goals are translated into corresponding principles to simplify Reason-Based Logic.
In this connection, the phrase ‘for Geoffrey’ means that Geoffrey is the addressee of the reason, and not that the reason is a personal reason, although it might be one.
The notion of a state of affairs is a technical one. This notion and its relations to those of a sentence and of a fact will be discussed in section IV.1.
Cf. Von Wright 1963, p. 10. The alternative, alethic modalities, has the disadvantage of suggesting that the other modalities, the deontic and the epistemic ones, would not be alethic. Cf. also note 43.
Since anankastic reasons are used in making explanations, the category of anankastic reasons coincides with the category of explanatory reasons. Cf. the sections 1.1 and 8 of this chapter. Justifying reasons are either deontic, epistemic, or classificatory.
Having a power comes, at least in one sense of the word, down to being capable of doing what one has the power to do. Cf. Hohfeld 1913.
Kelsen 1960, p. 83 explicitly discusses the phenomenon of legal causality, although Kelsen prefers to speak about a normative rather than a causal connection between the conditions and the conclusion of a rule of law. Cf. also Kelsen 1945, p. 46. Kelsen analyses a rule as ‘If A, then it ought to be that B’. This means that the normative element is part of the copula. I prefer another analysis, where the normative element is part of the conclusion: ‘If A, then B ought to be’. In this analysis, the parallel between laws of nature and legal rules becomes much stronger.
Cf. White 1975, pp. 5f. for an account of the two different senses of ‘possible’.
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Hage, J.C. (1997). Of Reasons. In: Reasoning with Rules. Law and Philosophy Library, vol 27. Springer, Dordrecht. https://doi.org/10.1007/978-94-015-8873-7_2
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