Abstract
This chapter will be dedicated to the discussion of the notion of reason understood as a premise of an argument. In the analysis of some problems in legal philosophy, this meaning of ‘reason’ is just as relevant as the meanings treated in the previous chapter.
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The possibility of such a ‘translation’ was already mentioned in the context of the analysis of reason as a practical or theoretical faculty. There, I pointed out that a merely formal criterion trivializes the distinction between the theoretical and the practical.
Cf. Edgley, Roy, Reason in Theory and Practice, op. cit.; also Aune, Bruce, Reason and Action, Dordrecht: Reidel 1977.
Cf. Edgley, Roy, Practical Reason, in: Joseph Raz (ed.), Practical Reasoning, op. cit., pp. 18–32.
For Carlos Nino, for instance, there are deontic statements the truth of which is relative to the existence of a contingent empirical fact (for example, a social practice). But such statements are not automatically normative; a genuinely normative statement is relative to a moral fact. Note that according to this conception, while normative statements are not ambiguous, deontic statements are, precisely because they can be normative (based on some moral fact) or empirical (based on contingent empirical facts).
Audi, Robert, Practical Reasoning, op. cit., p. 103.
Ibid.
Ibid., pp. 90 f. Again, it should be noted that the distinction between the theoretical and the practical is drawn on the basis of the formulation of the questions ‘What is the case?’ and ‘What ought to be done?’. On this, see above, sect. 4 of the Presentation.
Edgley, Roy, Reason in Theory and Practice, op. cit., pp. 17–20.
Cf., for instance, Hans Kelsen, What is Justice? Justice, Law and Politics in the Mirror of Science, Berkeley: University of California Press 1971; also von Wright, G. H., On So-Called Practical Inference, op. cit., p. 30.
Raz, Joseph, PRN, p. 29, n.
Cf. Caracciolo, Ricardo, El sistema juridico. Problemas actuates, Madrid: Centro de Estudios Constitucionales 1988, p. 12.
The way in which the notion of a model is used here is common in the social sciences, but different from how it is more often used in physics. For example, when one says ‘The solar system is a model of classical particle mechanics’, the model is the real system, to which the theory can be applied. From this perspective, different models of one and the same theory all have the same structure, as characterized by the theory. Cf. Mosterin, Jesüs, Sobre el concepto de modelo, in: id., Conceptos y teorfas de la ciencia, Madrid: Alianza Universidad 1984, pp. 147–156.
Cf. below, in sect. 4. b) of this chapter, the conceptions attributed to the logic of satisfaction and of satisfactoriness.
Von Wright, Georg Henrik, Explanation and Understanding, op. cit., pp. 95–117. Meanwhile, von Wright has abandoned this position which was a confusion of a logical notion of practical reasoning and a conception of it as a theoretical model for the reconstruction of action. Cf. von Wright, Georg Henrik, On So-Called Practical Inference, op. cit., pp. 18–34.
Richards, David A. J., A Theory of Reasons for Action, op. cit., p. 58.
Raz, Joseph, PRN, op. cit., p. 29, n.
Cohen, Moms R. and Nagel, Ernest, An Introduction to logic and Scientific Method, New York: Harcourt, Brace 1934, pp. 7 f.
Cf. Gauthier, David, Practical Reasoning, Oxford: Clarendon 1963, p. 26; Schueler, G. F., The Idea of Reason for Acting. A Philosophical Argument, op. cit., p. 31; Alchourrôn, Carlos E. and Bulygin, Eugenio, Limits of Logic and Legal Reasoning, in: A. A. Martino (ed.), Preproceedings of the I II International Conference on Logica - Informatica - Diritto, vol. II, Florence 1989.
In Chapter VI, when I come specifically to the topic of reasoning in judicial justifications, I will have to say more about this.
One of the theses of contemporary legal theory is that it is a mistake of positivism not to have seen that the justification of a judicial decision necessarily presupposes the existence of moral norms. As will be shown, this assertion is based on a confusion between a ‘practical argument’ as a mental process and a ‘practical argument’ as a linguistic pattern relating statements to each other. In other words, it rests on a confusion of justification in the subjective sense and in the objective sense. The former is an action, whereas the latter is a relationship between reasons, namely, between premise-reasons in formal justification and substantive reasons in substantive justification. This question will be discussed in Chapter V I.
Aristotle, Nichomachean Ethics, 1112b, 1113a, 1147a.
von Wright, Georg Henrik, Practical Inference, in: Practical Reason, op. cit., p. I.
Anscombe, G. E. M., Intention, op. cit., pp. 63 ff.
Cf., for example, Aune, Bruce, Reason and Action, op. cit., pp. 112 and 113.
Cf. Caracciolo, Ricardo, Entrevista a Eugenio Bulygin, in: Doxa (Alicante) 14 (1993), p. 504.
A derived norm is a norm that is implicitly prescribed because its content follows logically from a set of explicitly enacted norms in some legal system. Cf. Alchourrdn, Carlos E. and Eugenio Bulygin, Sobre el concepto de orden juridico, in: Crftica (Mexico-City) VtlI:23 (1976) p. 396; also by the same authors, Sobre la existencia de las normas jurfdicas, Valencia, Ven.: Universidad de Carabobo, CLIJS 1979, p. 54.
The applicability of the deductive model in the justification of judicial decisions is a very controversial topic. Cf., e. g., Aamio, Aulis, On Legal Reasoning, Turku: University of Turku 1977, pp. 53–70; MacCormick, Neil, Legal Reasoning and Legal Theory, Oxford: Clarendon 1978, pp. 53–71; Wellman, Vincent, Practical Reasoning and Judicial Justification: Towards an Adequate Theory, University of Colorado Law Review 57:1 (1985); Atienza, Manuel, Las razones del Derecho. Teorfa de la argumentaci6n jurfdica, Madrid: Centro de Estudios Constitucionales 1991, pp. 39–48. At this point, however, I do not need to analyse the different positions adopted in the controversy. I only wish to point out that within legal theory, the application of this model as a standard for the reconstruction of judicial sentences is a usual practice. Cf. Bulygin, Eugenio, Sentencia judicial y creaci6n de Derecho, in: La Ley 124 (1966).
Provided norms are not interpreted as true or false statements.
See, for instance, David A. Richards when he justifies the content of normative statements from principles of rational choice and moral principles of action. Cf. Richards, David A., A Theory of Reason for Action, op. cit., pp. 49–52 and 214–226.
According to Genzen’s method; cf., e. g., Lemmon, John, Beginning Logic, London: Thomas Nelson 1965; Garrido, Manuel, L6gica simbôlica, 2nd ed. Madrid: Tecnos 1983.
Cf., e. g., Alchourrbn, C. and Martino, A., Logic without truth, in: Ratio Juris 3:1 (1990), pp. 46–67.
Cf. Ross, Alf, Directives and Norms, New York: Humanities Press 1968, pp. 174 f.
One proposal, for instance, replaces the values ‘true’ and ‘false’ with ‘valid’ and ‘invalid’, where the latter are interpreted psychologically. The validity of a directive, thus, consists in a mental state an individual is in. Cf. Ross, Alf, Imperatives and logic, in: Theoria 7 (1941). Another suggestion has been to take ’satisfaction’ and ’non-satisfaction’ as the logical values of directives. Cf. Hofstadter, A. and J. C. McKinsey, On the logic of imperatives, in: Philosophy of Science 6 (1939); Sosa, E., The logic of imperatives, in: Theoria (1966), pp. 224 ff. Based on a critique of that last approach, the values of ’satisfactoriness’ and ’non-satisfactoriness’ have been proposed as an alternative. Cf. Kenny, A. J., Practical inference, in: Analysis 26 (1965–66), pp. 65 ff. Other conceptions do not claim to identify or define the value of ‘validity’ usually associated with normative language; instead, using specific rules of calculus, they attempt to show its logical properties. Cf. Ross, Alf, Directives and Norms, op. cit., p. 177.
Take, for example, the norm ‘You should do military service’. Introducing disjunction, from this norm we can infer ‘You should do military service or blow up the army base’; or, introducing the conditional, one can conclude: ‘If you are terminally ill, then you should do military service’. In order to avoid such paradoxical consequences, several methods have been proposed, among them, e. g., the development of interpretative theories which constrain the premises in such a way as to permit only desirable conclusions. Another proposal has been the total replacement of standard logic by a another logic which avoids,such conclusions, or the correction of classical logic using criteria of relevance. On this, cf. Moreso, José Juan, On Relevance and Justification of Legal Decisions, in: Erkenntnis 44 (1996) pp. 73–100; also id., Legal Indeterminacy and Constitutional Interpretation, Dordrecht: Kluwer 1998, esp. Chapter I, Appendix B.
This notion corresponds to the so-called ‘hyletic’ conception of norms. Cf. Alchourr6n, Carlos and Bulygin, Eugenio, The expressive conception of norms, in: R. Hilpinen (ed.), New Studies in Deontic Logic, Dordrecht: Reidel 1981, pp. 95–124. In the next chapter, I will elucidate other meanings of the term ‘norm’.
Note that, strictly speaking, what a general norm justifies is not an action, but a solution, i. e. the deontic qualification of an action. Cf. Alchourrbn, Carlos and Bulygin, Eugenio, Normative Systems, op. cit., pp. 153 ff.
As explained in the previous chapter, this depends on whether or not it has been proposed and justified within some normative theory.
That means that legal norms may or may not be substantive reasons for action according to some normative theory. For example, from the standpoint of an ethical theory only legal norms with a democratic origin may be considered substantive reasons for action. From this point of view, then, agents who accept as substantive reasons norms that do not fulfil this condition can be criticized.
Hart states that the adoption of the internal point of view towards primary rules is manifested most clearly in the use of these rules as a basis for the criticism of deviant behaviour or for requests of compliance. This suggests that acceptance in Hart must be understood as acceptance of a reason in the substantive (although specifically legal) sense. However, Hart says that the characterization of the internal point of view towards a developed and complex legal system is broader and more diversified. He suggests that all acts presupposing the use of secondary rules can be regarded as manifestations of the internal point of view — for instance, legislative activities, the application of norms by a court, the exercise of private and public powers, etc. Cf. Hart, H. L. A., The Concept of Law, op. cit., p. 117. This raises doubts about whether the adoption of the internal point of view necessarily implies the acceptance of the norms as substantive masons for action. In fact, all those acts could be performed without adopting such an attitude.
Cf. Raz, Joseph, The Authority of Law. Essays on Law and Morality, op. cit., ch. VIII; MacCormick makes a similar distinction when he speaks of statements made from the internal, the external and the hermeneutical point of view. Cf. MacCormick, Neil, Legal Reasoning and Legal Theory, op. cit., pp. 287 and 291; also MacCormick, Neil, H. L. A. Hart, London: Eduard Arnold 1981, ch. Ill.
Cf. Bay6n Mohino, Juan Carlos, The Normativity of Law: Legal Duty and Reasons for Action, Dordrecht: Kluwer (forthcoming), ch. I [Spanish original: La normatividad del Derecho: deber jurfdico y razones para la acci6n, Madrid: Centro de Estudios Constitucionales 1991, pp. 27–34 ).
Hart, H. L. A., Legal Duty and Obligation, in: id., Essays on Bentham, Oxford: Clarendon 1982, pp. 154 f. For a different interpretation of this kind of statements, cf. Eugenio Bulygin, Norms, normative propositions, and legal statements, in: G. Fl0istad (ed.) Contemporary Philosophy. A New Survey, Vol. 3: Philosophy of Action, The Hague: Martinus Nijhoff 1982, and id., Enunciados juridicos y positivismo jurfdico: Respuesta a Raz, in: Andlisis Filosdfico 1:2 (1981).
As we will see later, Joseph Raz’s proposal, linking norms to reasons for action, has a subjectivist and an objectivist interpretation. What I say here is compatible with the subjectivist interpretation.
In Chapter V, I will present a characterization of these kinds of attitudes.
Cf. Chapter II, sect. 5, and Chapter 1, sect. 3.
Klimovsky, Gregorio, El método hipotético deductivo y la Idgica, op. cit., pp. 75–90.
On this, cf. Richards, David A., A Theory of Reasons for Action, op. cit., pp. 214–323.
Cf. Raz, Joseph, PRN, pp. 33–35.
As has been pointed out before, any act whatsoever can be regarded as a (justificatory) reason only in the secondary sense. This should not be confused with the concept of reason in the auxiliary sense suggested by Raz. A fact is a reason in the secondary or subsidiary sense if it is a condition for the applicability of certain norms. And a fact is a reason in the auxiliary sense if belief in its existence does not generate a critical practical attitude in favour of an action. Incidentally, in the example given the facts that can be called reasons in the secondary sense coincide with those Raz would call auxiliary reasons. But there are cases where this is not the case. For instance, according to the point of view adopted in this investigation, the fact that a norm exists can only be a justificatory reason in the secondary sense. However, for Raz it is not an auxiliary, but an operative reason. Note that the possibility that facts can be considered reasons for action in the justificatory sense has been treated in the previous chapter.
Aristotle, Nicomachean Ethics, Book III, 1112b, I l 13a.
Raz, Joseph, Introduction, in: id. (ed.), Practical Reasoning, op. cit., p. 9–11.
Kenny, A. J., Practical Inference, op. cit., pp. 65 ff.
Raz, Joseph, Introduction, in: id. (ed.), Practical Reasoning, op. cit., p. 11.
According to von Wright, there are at least two completely different senses in which one can speak of a deliberation about means. One thing is deliberation about what the means to some end are, and another thing is deliberation about which of these means should be chosen for reaching the end. Cf. von Wright, G. H., Practical Inference, op. cit., pp. 7–9 and 10.
Cf. von Wright, G. H., Explanation and Understanding, op. cit., ch. Ill.
Ibid., pp. 96 f.
In the first sense of the word ‘motive’, that is. Cf. Chapter I, sect. 6.
This is what has been called the second meaning of the term ‘motive’. Cf. ibid.
Most writers agree that it is a causal relation. In this respect, they follow Donald Davidson’s proposal from his classical, already cited essay ‘Actions, Reasons, and Causes’ (in: id., Essays on Actions and Events, op. cit., pp. 3–19). In contrast, if one accepts von Wright’s conception, then the relation between explanatory reasons and action cannot be understood as causal. For him, an action is not an event that could be explained in that way.
Cf. von Wright, G. H., Practical Inference, op. cit.; Carlos Alchourrbn and Eugenio Bulygin too use a teleological schema to ground what they call the Principle of Obligatoriness: „It is obligatory, according to x’s commands, to perform all actions that are logically necessary in order to satisfy all obligations established by x’s commands.“ Cf. Alchourrdn, C. E. and Bulyin, E., Pragmatic Foundations for a Logic of Norms, in: Rechtstheorie 15 (1984) pp. 453–464, p. 456. This proposal can be described, I think, as the application of a teleological argument in the reconstruction of the concept of obligation.
Von Wright, G. H., Practical Inference, op. cit., pp. 6–11.
Cf. ibid., p. 14.
For a similar idea, cf. Mackie, John L., Ethics. Inventing Right and Wrong, op. cit.
This classification of reasons as considerations for or against an action can be applied to all three kinds of reasons analysed in the last chapter (explanatory and justificatory reasons as well as reasons in the secondary or subsidiary sense). Previously, I have pointed out that a reason is always a reason with respect to an action. Every reason is a reason in favour of the action it refers to and, in turn, a reason against all actions that are incompatible with the former. Cf. Gans, Chaim, Mandatory Rules and Exclusionary Reasons, in: Philosophia 15 (1486), p. 387.
Joseph Raz holds that besides this model of rationality there is another one in which the agent does not consider the weight of certain reasons, since they are discarded from the start because of the presence of second-order exclusionary reasons. Cf. Raz, Joseph, PRN, pp. 35–48.
Note that on the utilitarian conception, the teleological pattern would still be applicable. Because according to that moral theory, although all pertinent reasons must be considered, they must be assessed on their instrumental capacity to reach the end which is supposed to be good.
Cf., e. g., MacCormick, Neil, The Limits of Rationality in Legal Reasoning, in: id. and Weinberger, Ota, An Institutional Theory of Law, op. cit., pp. 189–206.
Cf. Kelsen, Hans, What is Justice?, op. cit.
Harman, Gilbert, The Nature of Morality. An Introduction to Ethics, op. cit., p. 128.
Ibid., p.129.
On this, cf. Atienza, Manuel, Las razones del Derecho. Teorias de la argumentaci6n juridica, op. cit. Several possible structures suggested by theories of reasoning are presented there.
Rai s theory, for instance, proposes a normative conception of a practical argument. It stipulates the obligation to reason according to the weight of reasons, provided they are not affected by a valid exclusionary reason. But it does not prescribe what weight to give to each reason, nor what a valid exclusionary reason is. So far, his proposal must be considered procedural. It can be seen as becoming a substantive ethical theory, however, when it stipulates the conditions under which a legal norm constitutes a valid exclusionary reason.
Raz, Joseph, PRN, op. cit., pp. 27 f.
Cf. ibid., Introduction.
This is one kind of what is usually called ‘hard’ cases, that is, cases where the difficulty is to determine the normative premises of an argument. Another difficulty can arise with respect to the factual premises. Cf. Atienza, Manuel, Para una teorfa de la argumentaciOn juridica, in: Doxa 8 (1990) p. 52; MacCormick, Neil, Legal Reasoning and Legal Theory, op. cit., pp. 65 ff.; Aarnio, Aulis, The Rational as Reasonable. A Treatise on Legal Justification, Dordrecht: Kluwer 1987, p. 2.
For the time being, it will be assumed that the external justification of a judicial decision consists in the justification of a choice between premises. But that definition is questionable. The discussion of this topic, however, will be postponed to Chapter VI where it will be treated in detail.
In some cases, this position is a corollary to the restriction of the concept of argument to the strict sense of logical inference. Writers like Eugenio Bulygin and Carlos Alchourrbn, for instance, allow only arguments in the logical sense to serve as a model for the justification of a sentence. This model permits the reconstruction of the internal justification of judicial decisions, and it can also be used for the individual justification of the premises. But if only this model of a ‘practical argument’ is accepted, then one must admit that it is unable to say anything about which norm is preferable to others.
Cf. MacCormick, Neil, The Limits of Rationality in Legal Reasoning, op. cit., pp. 189–206. MacCormick maintains that the rational control of external justification is only partial. He admits that in the last instance the determination of the premises is based on emotional aspects. — We can also say that Hart accepts the application of a teleological model of practical arguments when he holds, against Dworkin, that utilitarian considerations may be appropriate when it comes to the interpretation of premises. Cf. Hart, H. L. A., American Jurisprudence Through English Eyes: The Nightmare and the Noble Dream, in: id., Essays on Jurisprudence and Philosophy, Oxford: Oxford University Press 1983, pp. 123–144.
Dworkin, Ronald, Taking Rights Seriously, London: Duckworth 1977, pp. 32 f.
I will have to say more about this in Chapter VI, sect. 5.
For example, Richards, David A., A Theory of Reasons for Action, op. cit.; Nino, Carlos S., The Ethics of Human Rights, op. cit.; Raz, Joseph, PRN; id., The Morality of Freedom, op. cit.
Cf. Alexy, Robert, Theorie der juristischen Argumentation. Die Theorie des rationalen Diskurses als Theorie der juristischen Begründung, Frankfurt/M.: Suhrkamp 1978.
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Redondo, C. (1999). Practical Arguments. Reasons as Premises. In: Reasons for Action and the Law. Law and Philosophy Library, vol 43. Springer, Dordrecht. https://doi.org/10.1007/978-94-015-9141-6_4
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