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Essays in Legal Philosophy$

Eugenio Bulygin, Carlos Bernal, Carla Huerta, Tecla Mazzarese, José Juan Moreso, Pablo E. Navarro, and Stanley L. Paulson

Print publication date: 2015

Print ISBN-13: 9780198729365

Published to Oxford Scholarship Online: September 2015

DOI: 10.1093/acprof:oso/9780198729365.001.0001

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(p.355) Appendix I My View of the Philosophy of Law (2009)*

(p.355) Appendix I My View of the Philosophy of Law (2009)*

Essays in Legal Philosophy
Oxford University Press

I. My Philosophical Development

Two persons had a decisive influence on my philosophical development: Ambrosio Gioja and Carlos E. Alchourrón. Gioja, who held the chair in the philosophy of law at the University of Buenos Aires, was an exceptional teacher. One day, while I was still a student, I entered by chance a classroom where I encountered a professor explaining Husserl’s phenomenology to a group of students, using the piece of chalk in his hand not to write but as emphasis for his many vivid gestures. His explanation of noesis and noema so fascinated me that I was immediately addicted, not to Husserl’s philosophy, but to Gioja’s way of teaching. Instead of offering solemn expositions larded with citations, here was a professor who philosophized in the classroom. In addition to Kant and Husserl, Gioja taught Hans Kelsen’s Pure Theory of Law, and this turned out to be my gateway to the philosophy of law. While my enthusiasm for Husserl dissipated very quickly, Kelsen’s theory has remained a permanent bedrock for me. Even today I believe that a good Kelsenian education is fundamental for all who want to take up legal philosophy.

Alchourrón, who was my contemporary and became over time a most beloved friend, introduced me to analytic philosophy and to logic. He was the person most responsible for the change in the philosophical climate in the Institute for Legal Philosophy directed by Gioja. Kant and Husserl were replaced by the works of Wittgenstein, Carnap, Quine, and Tarski. The imprint of these authors on those who followed after them—Alf Ross, H. L. A. Hart, and Georg Henrik von Wright—is found in all of my writings. I took from Kelsen his thematics: the structure of the legal order and of the norms that make it up, as well as his legal positivism and his scepticism on the question of values, scepticism strongly reinforced by Ross, Hart, and above all von Wright. Thus, analytic philosophy, logic, and the Pure Theory of Law were the pillars of my philosophical development.

(p.356) 2. Analytic Philosophy and Logic

At the heart of my conception of the philosophy of law, then, are analytic philosophy and logic, owing largely to the influence of two great logicians and philosophers, von Wright and Alchourrón. These two had a profound impact on my philosophical activity and on my life. They were both close friends of mine, whose absence deprives me of many important things. I miss our philosophical discussions, our reciprocal criticism, stimulus, and support. Von Wright’s work was a model of conceptual analysis for me. Alchourrón and I worked together for 40 years, and I should say here that a substantial majority of the ideas contained in the books and articles that we wrote together stemmed from Carlos.

I could ask the question that I have been asked many times: Why logic? Why not focus more on legal reality? The answer to these questions is very simple. Philosophy in general and the philosophy of law in particular are not concerned with reality, which is the concern of other sciences, among them legal science. Philosophy focuses on the necessary aspects of reality, whether these be called ideas, categories, concepts, or a priori syntheses. This implies adherence to the notion that philosophy is, in essence, conceptual analysis. In my opinion, the principal task of legal philosophy is analysing the structure of law and its component parts, primarily legal norms, as well as general legal concepts. This is the understanding of the great philosophers of law, from Plato, St Thomas, and Suárez, to Hobbes, Kant, and Bentham, and on to Kelsen and Hart. It is true that the earlier philosophers did not use the tools of logic in their analyses, but this is because logic in its present form developed very late, toward the end of the nineteenth century and in the twentieth century, with the pioneering efforts of Boole, Russell, and above all Frege. Interest in modern logic on the part of philosophers of law is owing largely to the work of von Wright, who, although not a jurist, exercised a profound influence on the philosophy of law, most especially in the Latin countries, primarily in Argentina, in Spain, and in Italy. The importance of logic for the law consists not simply in using ever so many logical formulae. I am reminded of something the distinguished Argentine-Spanish criminal law scholar and philosopher of law, Sebastian Soler, said to me once: Logic is, like springs in an easy chair, indispensable, but it need not be seen. This is what Alchourrón and I tried to do in Normative Systems, where we confined logical formulae to the appendix, which hardly anyone ever reads but which in this case does contain the whole text of the book in summary form, in a few (or maybe not so few) formulae.

The attacks against using logic in the law usually come from jurists whose knowledge of logic is sketchy at best. This does not worry me. Lately, however, questions have been raised by some logicians, and this does seem to me more worrisome. I am confident, nevertheless, that we are dealing more with misunderstanding than with a true discrepancy of views.

(p.357) 3. Legal Positivism

I continue to be a strong partisan of legal positivism, which consists basically of the distinction between describing the positive law and evaluating it as just or unjust. This has several implications. In the first place, the sharp distinction between description and evaluation implies, in turn, recognizing that the word ‘law’ should not be used as a term of praise (which many authors do), since the law, as the product of human activity, can be good or bad, just or unjust. In the second place, there is the implication that something like natural law does not exist. As Mario Bunge once said, the expression itself seems very much to be a contradiction in terms, since the law is fundamentally artificial and has nothing natural about it. If one considers that an unjust norm cannot be a legal norm (according to Gustav Radbruch’s well-known formula), then all of law is just and therefore impossible to criticize as unjust. Criticizing the law, however, is an extremely important part of the business of jurists. In order to be able to evaluate and to criticize the law, one must know the law, since knowledge of an object is logically prior to its evaluation. All of the most eminent legal positivists have understood this, from Bentham and Austin to Kelsen and Hart. Arguing that an unjust law is not law is tantamount in the end to nothing more than a change in name. Rather than calling unjust norms ‘law’, we give them another label, but the change in name neither changes anything else nor eliminates the injustice.

It is true that, at present, legal positivism appears to be on the defensive. Not only its adversaries think so, but many positivists do, too. Ricardo Guibourg, for example, argued just recently that ‘positivism lost the game when the legislator, who is its prominent spokesman, sided with natural law’. Riccardo Guastini says that ‘natural law advances throughout the whole world, and positivism is in total retreat’. Not long ago, Manuel Atienza and Juan Ruiz Manero published an article with the suggestive title, ‘Abandon Positivism’.

These are all significant thinkers whose work I admire and who are, moreover, dear friends of mine. Nevertheless, I do not share their pessimism. Even though it may be true that the number of philosophers of law who declare themselves to be positivists has recently diminished and that the number who claim diverse orientations to natural law has increased, this does not seem alarming to me. What has happened is that the term ‘positivist’ has taken on a certain pejorative tint that is new. Philosophers of law like Kelsen, Hart, and Bobbio had no trouble proclaiming themselves to be positivists and doing so with pride. Today, things have changed. Many positivists prefer the use of attenuating qualifiers, speaking, say, of ‘exclusive’ or ‘inclusive’ positivism, and the like.

That the ideas of legislators and their constituents reflect natural law does not seem to me to be anything new. Previously, God was invoked to support the divine right of kings or as the source of all reason and justice. Today, the appeal (p.358) is to liberty and human rights. I fail to see, however, just how these more or less respectable ideas can influence the philosophy of law. Consequently, despite the exhortations of my friends Manolo and Juan, I am not thinking of abandoning positivism.

4. Legal Science

Following Aristotle, I understand science to be a set of true and systematically ordered statements that transmit knowledge to us about a determinate portion of the universe. Legal science is no exception. It is a set of true statements about this complex phenomenon we call ‘law’, that is, its function is fundamentally descriptive. I agree with Max Weber, Kelsen, and Hart on this. Without a doubt, the law is based on values, but it seems to me possible to describe these without evaluating them. Indeed, I am inclined to think that ‘non-evaluative science’ is a pleonasm and ‘evaluative science’ comes very close to being a contradiction in terms.

Of course, not everything that jurists, judges, and lawyers do can be qualified as science. To the extent, however, that they describe the law and refrain from evaluating it, their activity is scientific. Lawyers and above all judges also perform political functions. For judges, this is usually when the law does not contain a univocal answer to a legal problem. There may be more than one answer and these are incompatible (antinomies or normative contradictions), or the law may contain no answer at all (normative gaps). It may be, too, that the solution offered by the law is vaguely formulated, leaving in doubt whether the individual case before the judge is or is not within the ambit of the application of a general norm (penumbral cases or gaps in recognition).

The most interesting situation arises when the law gives a clear and univocal solution that the judge considers to be extremely unjust or mistaken. This happens when the judge’s values do not coincide with those of the legislator, either because some circumstance that the judge considers relevant has not been taken into account by the general norm (axiological gaps), or because there is a direct conflict between the values of the judge and those reflected in the legislator’s norm. In such cases, judges commonly resort to various strategies to avoid applying the general norm that is in principle applicable and to apply instead another norm, perhaps one created by the very judge applying it. Because judges are obligated to justify their decisions by appeal to prevailing law, they try to obscure the fact that it is on the basis of values that they are departing from the law. Sometimes they try to justify their decision by appeal to the constitution, declaring a law unconstitutional. Sometimes they declare a case unresolved because a normative gap exists, when in reality there is indeed a solution, but it is, in their opinion, unjust. At other times, judges resort to the theory of defeasibility.

In all of these cases, judges participate in creating law, understood as general norms, whose creation is in principle incumbent on the legislator. This phenomenon is called judicial discretion by Hart. Discretion, however, does not mean (p.359) arbitrariness; the judge applies his values (moral or otherwise) and normally takes great care in justifying his departure from the law.

Some important authors distinguish between two perspectives, that of the observer and that of the participant. Consequently, they speak of two concepts of law. I do not agree with this overly sharp distinction. I believe that both the legal dogmatist who describes the law (the typical observer) and the judge (the participant par excellence in the ‘game’ of law) employ the same concept of law. A judge, whose function is to resolve a case by applying prevailing law, must determine what solution is provided by legal norms, and this activity is comparable to that of the legal scientist. If the judge finds a clear and univocal solution, he ought to make use of it. If he does not find such a solution, however, he must still resolve the case, and here the path of descriptive legal science parts company with the function of the judge. The judge must offer a solution, and if this is not found in the prevailing legal norms, or if the solution provided is, by the judge’s criteria, extremely unjust, then he must modify the law. Herein lies the political activity of the judge. What the judge modifies in such cases is not the concept of law but the norms he applies, using the unchanged concept of law.

5. Axiological Scepticism

One could say that my conception of the philosophy of law and my adherence to legal positivism rest on my axiological scepticism. This in turn is based on the idea that moral, political, and aesthetic judgments depend largely on emotions, feelings, and tastes, and therefore they are not subject to rational control. To the extent that such judgments depend on emotional factors, they are not susceptible to being true or false. This in no way implies that they are unimportant. There are people who sacrifice their lives for their political, moral, or religious ideals, but the importance of these ideals is one thing, their truth, quite another. Despite my axiological scepticism, I do hold firm political, moral, aesthetic, and culinary convictions. I do not, however, believe in the truth of such judgments. This does not stop me from considering Mozart more valuable than a tango or from preferring the Chartres cathedral to the Victor Emmanuel monument, the moral stature of Gandhi to that of George W. Bush, a democracy (even if defective) to a dictatorship, and a good red wine to Coca Cola. Still, I do not believe that these are true.

Consequently, I shall continue to indulge in my heresies, to go on appreciating art, criticizing political evils, respecting human rights, and relishing culinary delicacies.


(*) [Editorsnote: Eugenio Bulygin’s paper, first published as ‘Mi visión de la filosofía del derecho’, in DOXA, 32 (2009), 85–90, was translated for the present volume by Bonnie Litschewski Paulson and Michael Sherberg.]