The Two Faces of Analytical Legal Philosophy Riccardo Guastini Tarello Institute for Legal Philosophy University of Genoa [email protected] 1. Introducing Analytical Legal Philosophy Analytical legal philosophy, as I see it, rests on two main grounds: a meta-philosophical thesis and a juridical-ontological one. (1) The meta-philosophical thesis, generally shared within contemporary empiricist philosophy (as initiated by Gottlob Frege and Bertrand Russell), is that philosophy is not a peculiar form of knowledge of the world, equipped with its own special method and/or object, but rather nothing else but the logical analysis of language 1. This view was expressed in the sharpest possible way by Ludwig Wittgenstein in his Tractatus Logico-Philosophicus (1922, 39, 44): 4.0031. All philosophy is “Critique of language” [...] 4.111. Philosophy is not one of the natural sciences. (The word “philosophy” must mean something which stands above or below, but not beside the natural sciences.) 4.112 The object of philosophy is the logical clarification of thoughts. Philosophy is not a theory but an activity. A philosophical work consists essentially of elucidations. The result of philosophy is not a number of “philosophical propositions”, but to make propositions clear. Philosophy should make clear and delimit sharply the thoughts which otherwise are, as it were, opaque and blurred. The same view was expressly applied to legal philosophy by Alf Ross (1958, 25): 1 Pap 1972, 1: «philosophy cannot be plausibly defined in terms of a specific subject-matter. The special sciences are capable of such definition: a science is essentially of something. [...] Philosophy does not have a specific subject-matter in this sense, and hence it cannot be enumerated along with the conventionally recognized sciences – just one more science. If by a “subject-matter” we mean a class of concrete phenomena, than philosophy has no subject-matter. However, the term “subject-matter” might be used in a broader sense of “object of thought” [...]. In that sense [...] the subject-matter of philosophy may be defined as the concepts, methods and presuppositions to be found in any science». 2 Modern philosophy based on an empirical outlook [...] takes the general view that philosophy has no specific subject range either co-ordinated with or distinct from that of the various sciences. Philosophy is not deduction from principles of reason by which another and a higher reality than that of the senses is revealed to us. Nor is philosophy an extension of the sciences designed to discover the uttermost components of reality. It is no theory at all, but a method. This method is logical analysis. (2) The juridical-ontological assumption, in turn, was clearly stated by Norberto Bobbio in a seminal essay, published in 1950, on legal science and linguistic analysis. According to Bobbio, law is (a particular) language, and nothing else, namely the discourse of – the set of normative sentences enacted by – the lawgiving authorities 2. From this point of view, legal rules are nothing else but linguistic entities (Bobbio 2011, 13, 15 ff.) 3: The subject matter of jurisprudence is a set of rules of behaviour. [...] Such rules are expressed by [...] normative sentences. [...] Jurists do not observe phenomena as empirical scientists. [...] Jurisprudence is no empirical science [...] Its subject [...] is the specific content of a given language (the language of the lawgiver, the language of laws). [...] The common critical and necessary part of any science is the so-called analysis of language. Well, now jurisprudence is essentially analysis of language, namely of that peculiar language which consists in the normative sentences fomulated by the lawgiver. [...] Interpreting the law is but anlysing the lawgiver’s language, i.e., the language in which legal rules are expressed. It is worth noting, however, that in legal practice the language of lawgivers stands in a continuous osmotic relationship with the language of jurists – mostly judges and legal scholars (Guastini 2013). The combination of two such theses involves the idea that legal philosophy is nothing else but the analysis of “legal” language, understood as the language of both lawgivers and jurists. 2. The Tool Kit of Analytical Legal Philosophy As far as legal language is concerned, the tool kit of analytical legal philosophy includes at least the following tools. 2 3 See also Scarpelli 2014. The rough translation of the following excerpt is mine. 3 (i) Some elementary notions, distinctions, and rules of logic 4. (ii) An elementary theory of definition, namely the distinction among informative definition, stipulation, and reconstruction. (iii) The connected distinction between empirical and analytical sentences. (iv) The connected notion of meta-language. (v) The distinction between descriptive (true or false) and prescriptive (neither true nor false) sentences. (vi) The distinction between discovery and justification, motives and reasons. (vi) The notion of speech-acts and an elementary classification of such acts. It is a limited tool kit, indeed. Such tools, however, are surely necessary, and perhaps sufficient too, in the analysis of legal language. 3. Law, Jurisprudence, and Legal Philosophy In my view, there are two basic ways of practicing analytical legal philosophy. A good and simple device for depicting them is pointing out the relations of analytical legal philosophy with: (a) on the one hand, the law itself and its sources, that is, the discourse of lawmaking authorities (statutes, constitutions, by-laws, etc.); (b) on the other hand, jurisprudence, understood in this context, according to the original meaning of the word, as “prudentia juris”, that is, the discourse of both legal scholars and judges (academic works, judicial decisions). The question about the relations among law, jurisprudence, and analytical legal philosophy allows for two interesting answers which correspond to two different – complementary, not at all incompatible – ways of conceiving and pursuing analytical legal philosophy. (i) In the first place, analytical legal philosophy can be conceived as a conceptual workshop, that is, as concept construction. 4 Such as, for example: the distinction between sense and reference, the meaning and logical behaviour of connectives and quantifiers, some basic laws (non-contradiction, excluded middle, strengthening of the antecedent, etc.) and rules of inference (modus ponens, modus tollens, etc.). 4 (ii) In the second place, borrowing a term from Bobbio, it can be conceived as “meta-jurisprudence” (Bobbio 2012), that is, as the logical analysis of jurisprudential discourse. 4. Analytical Legal Philosophy as a Conceptual Workshop The first suitable answer to the question about the relations among law, jurisprudence, and analytical legal philosophy looks like this: (i) Jurisprudence is an interpretive (and “constructive”) job which answers “questions of law” – what does the law establish? what is the normative content of the legal system? (ii) Analytical legal philosophy, in turn, is a mainly and purely conceptual enterprise, which does not answer questions of law at all, but aims at solving problems of formulation and organization of knowledge. I assume that some further clarification is on order. By saying that analytical legal philosophy is a purely conceptual enterprise, I mean that it consists in moulding not the law itself – as jurists tipically do by means of interpretation and construction – but the concepts suitable to describing the law in contexts of “expository jurisprudence” (Bentham 1996, 293 f.). Any different solution to a jurisprudential (judicial or dogmatic) problem affects the content of the legal system, since a jurisprudential problem consists precisely in identifying the valid rules of the system and/or their scope. In such a way, choosing a determinate jurisprudential thesis brings about a certain picture of the system whereas choosing a different competing thesis yields a different picture. I take a simple example from Italian constitutional law. Article 94 of the Italian Constitution states that either of the two Chambers can vote to censure the Government. According to a jurisprudential view (by the way embraced by the Constitutional Court too 5) such a rule entails the further rule according to which either of the two Chambers is entitled to censure also a single Minister. But a different view exists, according to which only the Government as a whole is subject to parliamentary censure. In other words, according to a certain doctrine the legal system includes just the rule R1 5 Corte costituzionale, decision 7/1996. 5 (parliamentary censure may strike only the Cabinet), while according to a competing doctrine the system includes the rule R2 as well (parliamentary censure may affect any single Minister). Summing up, offering different solutions to a legal-philosophical problem has no bearing on the identification of the normative content of the legal system, which ex hypothesi is not at issue where legal philosophy is concerned. Legal-philosophical theses only affect our way of describing the law. Another example can help clarifying the point. Since (at least) John Austin’s Province of Jurisprudence (Austin 1954), legal scholars ask whether the so-called “international law” is a genuine “legal” system or some sort of positive morality (as Austin claimed). The question is merely classificatory: should we include the international order in the class of legal systems, side by side with national states systems (notwithstanding the evident differences), or in the class of moral systems? It seems clear that neither of the two possible answers calls into question the normative content of the international order 6. None of the competing theses says anything on this subject. It is not the content of the international order, but the concept of law, under discussion (Williams 1956). But let me offer one addditional example. Italian jurists disagree as to the very nature of the decisions of the Constitutional Court declaring the unconstitutionality of statutory rules: are they genuine “sources of law” or not? Some say “no”, since the Court does not create new law – supposedly it simply applies pre-existing constitutional law. Some say “yes”, arguing the such decisions remove rules from the legal system, and it amounts to a change in the existing law (Pizzorusso 1977). Anyway, it is clear that the issue under discussion is not whether the decisions of unconstitutionality have, or do not have, such and such legal effects – everybody agrees (more or less) as to their effects (e.g., restrospective erga omnes effects, etc.). The question, strictly conceptual, is only whether such decisions should be classified under the concept of legal source, or not. 6 However, with a view to maintining the genuine legal nature of international law, Kelsen (1945 328 ff.) argues precisely from its content. According to him, international rules are genuinely legal rules since they too connect sanctions (viz. war and reprisals) to delicts, just like state legal systems do. 6 The conceptual job of analytical legal philosophy is to develop what is usually called “general theory of law” 7. 5. An Exercise in Conceptual Construction In order to better illustrate the kind of conceptual job I have in mind, I submit the following exercise. A recurrent problem in juristic literature is whether there can be legal limits to the “sovereign”, namely whether such limits are logically (conceptually) possible 8. On the one hand, the answer should be “no”, since the sovereign is, by definition, legibus solutus, that is, not subject to any legal limit whatsoever. On the other hand, the answer should be “yes”, since, although each state is a sovereign within the international community, states are supposed to be bound by international law, and hence subject to legal limits. This ostensible contradiction depends, however, on a bad construction of the concept of sovereignty. This word is used both in constitutional and international jurisprudence. But the point is that such a word has not the same meaning – does not express the same concept – in the two contexts. In other words, the concept of sovereignty found in international law is not the same concept that we meet in constitutional law 9. (i) In constitutional law contexts, “sovereignty” means summa potestas, the highest power within the state, and it is the quality of a normative authority, that is, a subject (a state organ) empowered to enact rules. The “sovereign” is the supreme legal authority. In each constitutional order, one and only one authority is the holder of the sovereign power (von Wright, 1963, 191 f.). This amounts to saying that “sovereignty” denotes the constituent power – a necessarily unlimited power, since, by definition, it is an extra ordinem power, neither bestowed nor regulated by any previous legal rule. The constituent power is precisely the power to enact the “first constitution” of a legal system (Kelsen 1945, 115) – a set of 7 “General jurisprudence” in Austin’s language (Austin 1954). See, e.g., Garzón Valdés 1993. 9 The confusion between the two concepts is quite evident in Austin 1954. 8 7 independent supreme rules 10, whose source of legitimacy cannot be found in any pre-existing rule. (ii) In international law contexts, on the contrary, “sovereignty” is the property of certain legal systems, viz. those systems which are (a) legally independent 11, (b) dynamically centralized 12, (c) provided with a territorial range as to the applicability of their rules, and (d) by and large effective. Such legal systems are called “states” (Kelsen 1945, 181 ff.). In this sense, “sovereignty” is a quality not of a normative authority (as it is in constitutional law), but of states. In fact it denotes nothing else than “statehood” or “stateness”. Note that within a constitutional order only one sovereign can exist, whereas the international order is crowded with a plurality of sovereigns. In fact, this simple remark is sufficient to show that there are two different concepts of sovereignty, in constitutional and international law respectively. Thus, it turns out that the question as to the legal limits of sovereignty is quite easy to answer. (i) In constitutional law, the sovereign properly understood – that is, the constituent power – cannot be subject to any legal limits for trivially conceptual reasons. Were it subject to legal limits, it would not be “constituent”, but “constituted”, that is, attributed and regulated by pre-existing legal rules. Therefore, it would be no sovereign at all. This is why it makes no sense to wonder about the validity or invalidity of the constituent power’s acts: constitutions 13 are neither valid nor invalid, since validity is the relation of a rule with other “superior” rules (Guastini 1994). (ii) In international law, the question of the limits to sovereignty simply does not exist. Customary international law is a set of rules which ascribe rights, powers, and obligations precisely to states, that is, to the 10 Caraccciolo 1988, 31 ff. I.e., provided with a constitution of their own. 12 I.e., provided with organs empowered to enact legal norms. 13 At least “first” constitutions. 11 8 “sovereigns”. Moreover, international law assumes the quality of being a sovereign precisely as the necessary and sufficient condition to be subject to its own rules. Thus, in international law sovereignty is not legal omnipotence, the lack of any limits whatsoever. On the contrary, it is the condition sine qua non for being subject to international obligations, as well as the bearer of rights and powers. Hence, sovereignty is not the negation of any international obligation, but its necessary prerequisite: only sovereign states are subject to international obligations. Besides, such obligations restrict not the sovereignty of states, but their political de facto liberty 14. Thus, we started with a blurred concept and, by splitting it, we produced two more precise concepts that are apt for a better description of positive law. 6. Analytical Legal Philosophy as Meta-Jurisprudential Analysis The second suitable answer to the question about the relations among law, jurisprudence, and analytical legal philosophy runs like this: law, jurisprudence, and analytical legal philosophy are placed on three different levels of language. (a) Law is nothing else but the language of lawgiving authorities, that is, a set of normative texts (rule-expressing sentences). (b) Jurisprudence consists in the analysis of the language of the law, that is, it is a discourse in a second-order language whose object-language is the law. (c) Analytical legal philosophy, in turn, consists in the analysis of jurisprudence, that is, it a discourse in a third-order language whose object-language is jurisprudential discourse. In other words, the jurisprudential task consists in interpreting and construing the discourse of lawgivers, while analytical legal philosophy consists in analysing jurisprudential discourse. In this sense, analytical legal philosophy is nothing but meta-jurisprudence – a survey of the reasoning and practical operations accomplished by legal scholars and judges. 14 Combacau 1993. 9 Understood this way, analytical legal philosophy is a branch of the philosophy of science (although jurisprudence is a very peculiar “science”). Quoting Ross (1958, 25 f.) 15: Philosophy is the logic of science, and its subject the language of science. And so it follows that [legal philosophy] has no specific subject co-ordinated with and distinct from the “science of law” – the study of law – in its various ramifications. The relation of [legal philosophy] to the study of law is reflex, turning towards its logical apparatus, in particular the apparatus of concepts, with a view to making it the object of a mmore detailed logical analysis than is given to it in the various specialised studies of law themselves. The legal philosopher [...] pursues his reasearches into what often constitute premises taken for granted by the jurist. [...] The subject of [legal philosophy] is not law, nor any part or aspect of it, but the study of law. [Legal philosophy] dwells, so to speak, one storey higher than the study of law and “looks down” upon it. The main output of analytical legal philosophy, thus uderstood, is the theory of legal interpretation and reasoning. 7. An Exercise in Meta-Jurisprudence Let me propose the following exercise in meta-jurisprudence. In common juristic parlance the term “interpretation” usually applies to the bulk of the intellectual operations taken up by interpreters (judges, lawyers, legal scholars, etc.). Consider however the following examples of interpretive discourse. (i) To article 40 of the Italian Constitution – «The right to strike will be exercised in compliance with the statutes which regulate it» – three different meanings can be ascribed: (a) the right to strike may not be exercised until some statute regulates its exercise; (b) lacking any statutory regulation, the right to strike may be exercised with no limits at all; (c) even in the absence of any statute regulating the issue, the right to strike may be exercised although within limits, namely, its “natural” limits deriving from the balance of it with other fundamental rights and constitutional values. 15 Ross calls “jurisprudence” what in the present paper I call “legal philosophy”. In the following quotation, I have replaced “jurisprudence” with “legal philosophy”. 10 (ii) Article 2 of the Italian Constitution solemnly proclaims the «inviolable rights of man». The word “inviolable” is neither a piece of ordinary “constitutional rhetoric”, which would not express any rule at all, nor a simple reiteration of the “rigid” character of the constitution (constitutional rights may not be llimited or derogated by ordinary legislation) – it means that such rights are not even subject to constitutional revision, cannot be altered even by means of constitutional amendment 16. (iii) Article 11 of the French Constitution (adopted in 1958) states: «The President of the Republic may [...] submit to a referendum any government bill which deals with the organization of the public authorities». According to the widespread view, it seems a matter of course that the object of such a referendum may not be a constitutional amendment, since article 89 of the Constitution states that any «bill to amend the Constitution must [...] be passed by the two Houses in identical terms. The amendment takes effect after approval by referendum». Nevertheless, in 1962 General De Gaulle interpreted article 11 as authorizing him to submit to a referendum precisely a constitutional amendment (according to which the President would be elected by direct universal suffrage). (iv) According to Justice Marshall (Marbury 1803) 17: a legislative act contrary to the constitution is not law [...]. Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and, consequently, the theory of such government must be that an act of the legislature, repugnant to the constitution, is void. [...] So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. [...] If, then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such an ordinary act, must govern the case to which they both apply. The differences among these four examples of interpretive practice are striking. 16 This is the opinion of the Italian Constitutional Court: Corte costituzionale, decision 1086/1988. 17 Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60. 11 Interpretation (i) simply identifies the various possible meanings of a given legal provision without choosing any of them. The logical form of the thesis is: “Text T may be understood in the senses S1, or S2, or S3”. It is a piece of merely “cognitive”, “scientific”, interpretation (Kelsen 1950, Preface). Interpretation (ii), on the contrary, just settles one definite meaning of a given text, chosen among the meanings identified (or identifiable) by means of cognitive interpretation, discarding the others. The logical form of the thesis is: “Text T (definitely) means S”. It is a piece of “adjudicative” interpretation. Interpretation (iii) ascribes to the text at hand a meaning – a quite unlikely, unpredictable, meaning in fact – which could not be previously identified by way of cognitive interpretation. Once more, the logical form of the thesis is: “Text T (definitely) means S”. The sense S, however, is brand new with respect to the plausible meanings of the interpreted text. Thus, we have here a good example of “creative” interpretation. Interpretation (iv) in turn is, strictly speaking, no interpretation at all. It does not ascribe meaning to any definite text – in fact, it does not make any reference to any legal text whatsoever. Rather, it amounts to the formulation of (at least) two non-pre-existing rules. It is a piece of “juristic construction”, as one may call it. In other words, Justice Marshall is plainly creating new (constitutional) law – first, unconstitutional statutes are null and void; second, the Supreme Court is entitled to declare them null and void. Thus, as the result of a simple meta-jurisprudential analysis, the usual all-inclusive concept of interpretation is split up into a number of more precise concepts: (a) cognitive interpretation, (b) adjudicative interpretation, (c) creative interpretation, and (d) juristic construction. Such concepts are suitable for further and better analysis of jurisprudential discourse. References Austin, J. (1954), The Province of Jurisprudence Determined, 1832, ed. by H.L.A. Hart, London, Weidenfeld & Nicolson 12 Bentham, J. (1996), An Introduction to the Principles of Morals and Legislation, ed. by J.H. Burns and H.L.A. Hart, Clarendon Press, Oxford Bobbio, N. (2011), “Scienza del diritto e analisi del linguaggio”, 1950, reprinted in N. Bobbio, Saggi sulla scienza giuridica, with an Introduction by R. Guastini, Giappichelli, Torino Bobbio, N. (2012), “Essere e dover essere nella scienza giuridica”, 1967, reprinted in N. Bobbio, Studi per una teoria generale del diritto, with an Introduction by R. Guastini, Giappichelli, Torino Caracciolo, R. (1988), El sistema jurídico. Problemas actuales, Centro de estudios constitucionales, Madrid Combacau, J. (1993), “Pas une puissance, une liberté: la souveraineté internationale de l’Etat”, in Pouvoirs, 67 Garzón Valdés, E. (1993), “Las limitaciones jurídicas del soberano”, in E. Garzón Valdés, Derecho, ética y política, Centro de estudios constitucionales, Madrid Guastini, R. (1994), “Sur la validité de la constitution du point de vue du positivisme juridique”, in M. Troper, L. Jaume (eds.), 1789 et l’invention de la constitution, Bruylant-L.G.D.J., Bruxelles-Paris Guastini, R. (2013), “Juristenrecht. Inventing Rights, Obligations, and Powers”, in J. Ferrer Beltrán, J.J. Moreso, D.M. Papayannis (eds.), Neutrality and Theory of Law, Springer, Dordrecht Kelsen, H. (1950), The Law of the United Nations, Stevens & Sons, London Kelsen, H. (1945), General Theory of Law and State, Cambridge (Mass.), Harvard U.P. Pap, A. (1972), Elements of Analytic Philosophy, 1949, reprinted Hafner Publishing Co., New York Pizzorusso, A. (1977), Delle fonti del diritto, Zanichelli, Bologna 13 Ross, A. (1958), On Law and Justice, Stevens & Sons, London Scarpelli, U. (2014), Filosofia analitica e giurisprudenza, 1953, reprinted in U. Scarpelli, Filosofia analitica del diritto, ed. by A. Pintore, ETS, Pisa Williams, G. L. (1956), “International Law and the Controversy Concerning the Word Law”, 1945, reprinted in P. Laslett (ed.), Philosophy, Politics and Society, Blackwell, Oxford Wittgenstein, L. (1922), Tractatus Logico-Philosophicus, with an Introduction by B. Russell, Kegan Paul: London, Harcourt: New York Wright, G. H. von (1963), Norm and Action. A Logical Enquiry, Routledge & Kegan Paul, London
© Copyright 2024