Abstract
In contemporary legal theory, a common starting point for the analysis of the existence of a legal system is that proposed by H. L. A. Hart who asserts:
“There are therefore two minimum conditions necessary and sufficient for the existence of a legal system. On the one hand, those rules of behaviour which are valid according to the system’s ultimate criteria of validity must be generally obeyed, and, on the other hand, its rules of recognition specifying the criteria of legal validity and its rules of change and adjudication must be effectively accepted as common public standards of official behaviour by its officials. The first condition is the only one which private citizens need satisfy: they may obey each ‘for his part only’ and from any motive ...”1)
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The rule of recognition can be understood in different ways, depending on the point of view one adopts. On this, cf., for example, the controversy between Juan Ruiz Manero and Eugenio Bulygin, published in Doxa 9 (1991). This is not the place for going into the different interpretations of that rule. From the perspective taken in the present study, the interesting concept is that of a social rule as a practice which presupposes the acceptance of a standard of behaviour. According to Hart, all existing legal systems are based on such acceptance. When Hart speaks of the ‘existence’ of a legal system, he does so in the same sense as when he speaks of the existence of a social rule. That means that to assert that a system exists is to assert a fact that can be apprehended from an external point of view. Cf. Hart, H. L. A., The Concept of Law, op. cit., p. 110. In this context, the analysis presented in the previous chapter should be kept in mind. The development of a practice conforming to some standard is a contingent property of the concept of norm in the hyletic sense, but it is a defining property of social rules.
Cohen, L. Jonathan, Acceptance and Belief, op. cit. (hereafter, ‘AB’). According to Cohen, the notion of acceptance does not entail that of belief. Against this interpretation, cf. Klarke, D. S., Does Acceptance Entail Belief?, in: American Philosophical Quarterly 31:2 (1994).
Cohen, L. Jonathan, AB, p. 367. Note that Cohen’s presentation is not an analysis of the different uses of the term ‘believing that’. He does not deny that there is a way of speaking in which the expression `believing that’ is used as a synonym for what in his contribution he calls ‘accepting that’. But that is not a counterexample to his thesis. On the different uses of the expression `believing that’, cf. Mosterfn, Jestls, Racionalidad y acci6n humana, Madrid: Alianza Universidad 1978, pp. 108–115. Mosterfn distinguishes several linguistic usages and, based on them, different kinds of beliefs. In his terminology, conscious and assertive beliefs imply acceptance.
Although Edgley acknowledges that believing is not a voluntary act, in a very broad sense, he includes it among the things an agent can do — though, of course, not for pragmatic reasons. On this point, it is interesting to consider Bernard Williams’s ideas when he analyses the possibility that one may wish to believe or have motives for believing. He distinguishes between „truth-centered motives“ and „non-truth-centered motives”. One of the defining characteristics of beliefs is their claim of truth. Therefore, it seems incoherent to say that one wishes to believe or has a motive for believing something one knows to be false. Assertions apparently expressing the wish to believe something that is false, as, for instance, ‘I wish I could believe that my child is not dead’, actually do not express the wish for a certain belief, but the wish that reality were not as it is. Since beliefs cannot be acquired by decision, the only thing a person can do is put herself under the causal conditions that may bring about a certain belief or make her forget another one. If one could say that beliefs can have „non-truth-centered motives“, there would be no problem in saying that a person may take drugs, let herself be hynotized, or use any other means that will lead her to believe what she thinks is convenient (though false), or to forget what she doesn’t like (although it is true). But here Williams indicates an asymmetry between implementing the means for believing something one knows to be false and forgetting something one knows to be true. In his view, beliefs carry a claim of truth, but not of completeness. That means that the elimination of true beliefs does not have the same relevance as the incorporation of false beliefs. Considering the number of beliefs one would have to change in order to believe something that is false, succeeding in such an undertaking would amount to paranoia. Cf. Williams, Bernard, DtB, pp. 149–151.
Bernard Williams thinks that empirical beliefs can be based on evidence: If one receives new information (evidence for or against something) that will causally provoke the corresponding beliefs. Thus, one can expect that a person with sufficient evidence for the truth of some content will come to believe it, although she cannot decide to do so. The assertion that someone believes that p because he believes that q — or, directly, because q — can only be understood in this causal (not in the teleological or intentional) sense; i. e., `because’ must be understood as causal here. Cf. Williams, Bernard, DtB, pp. 141–144.
According to the concepts adopted here, beliefs cannot be rational in the sense that they cannot be the products of actions carried out for some reason. This marks an important difference between the meaning of ‘rationality’ when applied to beliefs and when applied to intentional action, as for example, to acceptance. An action is commonly judged to be rational on the condition of being an appropriate means for reaching some given end. Such ends are said to be the reasons that explain why the agent acted as he did. In contrast, by definition, the rationality of beliefs cannot consist in their being appropriate means for some given end. What is usually called a reason in favour of a belief is not an end of the agent, but a fact regarded as evidence of the truth of the believed proposition. Although one cannot directly require someone to believe or not to believe something, one can require that all available evidence for and against a proposition is taken into account and assessed. And just as there is a theory of knowledge stipulating under what conditions it is rational to accept a proposition, one can propose an ethical theory stipulating under what conditions it is rational to accept a norm. If the content of his beliefs does not fit to what an agent has sufficient evidence of, the beliefs can be said to be irrational. But even then, one could not require the agent to abandon or modify his mental state concerning these beliefs. In short, one should not confuse the fact that beliefs are excluded from the realm of internal attitudes that are voluntary — and, therefore, rational, in a teleological sense — with the fact that the content of beliefs can be qualified as rational or irrational, depending on the evidence for their truth. Against this interpretation, see the critique of Cohen’s position presented by Colin Radford. According to Radford, beliefs are not beyond the reach of a rationality requirement, since they can be causally produced, but they can also be justified by good reasons. Cf. Radford, Colin, Belief, Acceptance and Knowledge, in: Mind 99 (October 1990 ), p. 610.
McBride, William L., The Acceptance of a Legal System, in: The Monist 49 (1965) pp. 382 f.
Garvin Valdés, Ernesto, Algo mas acerca de la relaciôn entre Derecho y moral, in: Doxa (Alicante) 8 (1990) p. 114. Cf. also the slightly different wording in the English version: More on the Relation Between Law and Morality, in: A. Aarnio, K. Pietilä, J. Uusitalo (eds.), Interests, Morality and the Law, University of Tampere, Research Institute for Social Sciences 1996 ). For Garzôn Valdés, those supreme principles are of a moral nature.
Cf. Caracciolo, Ricardo, L’argomento della credenza morale, in: Paolo Comanducci and Riccardo Guastini (eds.), Analisi e Diritto 1994. Ricerche di Giurisprudenza Analitica, Torino: Giappichelli 1994, pp. 97–1 10.
Raz, Joseph, Hart on Moral Rights and Legal Duties, in: Oxford Journal of Legal Studies 4:1 (1984) p. 130.
o Cf. Macintyre, Alasdair, The Claims of After Virtue,in: Analyse and Kritik 6 (1984), pp. 3–7.
Both attitudes can be distinguished from that of someone whose conduct conforms to the norm, but who neither accepts it nor regards it as a reason that should enter the balance. This may be the case when an agent does not know that the norm exists or when, knowing that it exists, he does not admit it as a reason for action. Cf. Navarro, Pablo E. and Redondo, Cristina, Aceptacicin y funcionamiento del Derecho, in: Doxa 9 (1991).
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Redondo, C. (1999). The Acceptance of Norms and Reasons for Action. 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_6
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