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JOSE DE SOUSA E BRITO
Universidade Nova de Lisboa
Does Legal Semiotics Cannibalize Jurisprudence?
1
Does Legal Semiotics Cannibalize Jurisprudence?
Some months ago I was talking with a student of my Faculty who is working on a
doctor thesis in Harvard under Duncan Kennedy. He had written a project draft on
skepticism in law and morals. I observed that he made no reference to the contemporary
discussion in analytical philosophy about skepticism in ethics as in the books of Gilbert
Harman and Judith Harvis Thomson on Moral Relativism and Moral Objectivity1 or
Thomas Nagel on The Last Word2 nor to the correspondent discussion in analytical legal
theory about Dworkin’s article “Objectivity and Truth: You You’d Better Believe It”3 or
Nikos Stavropoulos, Objectivity in Law4. He answered me that analytical philosophy is
not studied in the circle of Duncan Kennedy. His professor would say: “we cannibalize
them”. After that I began fearing for my skin and reading Duncan Kennedy. I found that
he expects legal semioticians to cannibalize ideas and history all around. In his own
words: “Anybody can use the theoretical literature [of legal semiotics and of general
semiotics, is to be understood from the context], and somewhat to the amazement of the
old timers [like himself], quite a few people seem to want to use it. They are constantly
reinterpreting the ideas and the history and cannibalizing them and incorporating them
into all kinds of left projects”5. To my delusion he does not try to cannibalize analytical
philosophy, which he largely ignores. But he reiterates attempts to cannibalize almost
1 Oxford, Blackwell, 19962 Oxford University Press, 19973 Philosophy &Public Affairs, 25 (1996), 87. This article prompted a discussion in the internet with Simom Backburn and others: http://www.brown.edu/Departments/Philosophy/bears/symp-dworkin.htm. See Ronald Dworkin, Justice in Robes, Cambridge, Massachusetts, 2006, chapter one, for his last word until now. 4 Oxford, Clarendon, 1996.5 Gerard J. Clark, “A Conversation with Duncan Kennedy”, The Advocate. The Suffolk University Law School Journal, 24-2 (1994), 58.
2
everything in jurisprudence, including analytical jurisprudence. That is why I decided to
take the challenge and choose the title of this paper. Does he succeed?
What does Duncan Kennedy mean by “to cannibalize”? Pretty much the same as
Balkin by “to rhetorize” and Derrida by “to deconstruct”. Balkin says that the work of
the legal semiotician is to rhetorize legal discourse. “The purpose of semiotic study is to
understand the system of signs which creates meaning within a culture. It is to
understand the underlying structures that make meaning possible. The legal semiotician
seeks to identify what might be called the "grammar" of legal discourse—the acceptable
moves available in the language game of legal discourse. These may occur at the level
of permissible argument forms, modes of factual characterization, categories of social
perception, or in many other ways. The semiotician traces the way that the system
produces meaning, and if she has fully assimilated the post- structuralist critique, she
tries to see the gaps or uncertainties within the structure, the many different levels at
which rhetorical tropes can occur, and the many possible ways of redescribing them.
Yet the fact that legal discourse is rhetorizable says nothing about its lack of
authenticity. To the contrary, I would insist that the only type of discourse that is truly
authentic is that which is permissible within our existing language games, and is thus
always rhetorizable.”6 As to Derrida’s deconstruction, Duncan Kennedy invokes him
when he summarizes the particular type of critical theory of law that he theorizes in his
book A Critique of Adjudication7 and whose semiotics he expounds in an article “A
Semiotics of Critique”. I quote the whole text:
“There are four steps to follow as one gets ready to do some critical theory within
law—critical theory, that is, of the particular type semioticized above.
6 “The Promise of Legal Semiotics”, U. Texas L. Rev., 69 (1991), 1831, 1845.7 A Critique of Adjudication (fin de siècle), Cambridge, Massachusetts, Harvard University Press, 1997.
3
First: Identify a distinction that drives you crazy when it is trotted out to justify
things you can’t stand, and that you feel people do not really believe in except when
they need it to justify those things (to take an example at random, the distinction
between adjudication and legislation).
Second: Find in each half of the distinction the things, traits, aspects, qualities,
characteristics, or whatever that were supposed to be located in the other half, and vice
versa. This is the move classically called chiasmus, and practiced most notably and
repetitively by Marx and then by Derrida, theorized in an irrationalist semiotic manner
in Of Grammatology.
Third: Put the question of whether the distinction you have just destabilized
corresponds to a real division in reality on hold, suspend it, or put it in parentheses or in
brackets (Husserl calls this the epoche)—turn your eyes away from it, and instead try to
figure out why the people who use the distinction work so hard to maintain belief in it in
the face of their own doubts, which you can intuit by imagining that they are just as
capable of destabilizing it as you are.
Fourth: Trace the consequences of the distinction by hooking it up to one or many
of the organicist, antinomian, paranoid structuralist, and semiotic moves discussed
above. My own project, subject always to critical unravelling per supra, has been to ask
about the distributive consequences of liberal distinctions, that is, to ask how belief in
them contributes to inequality, domination, alienation, and unhappiness, in different
measures for different people, for some much more than for others.”8
I think that Duncan Kennedy incorporates the rhetoric and topic tradition of
semiotics, as the use of the rhetoric scheme of chiasmus shows, but the phrase “to
rhetorize” would not cover the whole of semiotic schools that he uses alternatively or
conjunctively in its “left-modernist/postmodernist” critical enterprise. In the article he
8 “A Semiotcs of Critique”, Cardozo L. Rev. 22(2001), 1147, 1188.
4
distinguishes organicism (Hegel, Ruskin, Parsons), antinomianism (Kierkegaard,
Nietzsche, Sartre), structuralism (Marx, Freud, Foucault), and semiotics (Saussure,
Levy-Strauss, Derrida), and within each a rationalist and an irrationalist variant. He
considers all these variants “subject always to critical unravelling”, so that there is no
point in choosing one of those or in reconstructing a better one. For him “the project of
reconstruction (as opposed to any particular proposal) looks, from a left/mpm point of
view, like the reification or fetishism of theory, in a mode parallel to the fetishism of
God, the market class, law, and rights. Left/mpm, by contrast, is caught up for better or
worse in the “viral” progress of critique, and in so much as there is a lesson from the
progress of the virus it would seem to be to anticipate loss of faith in theory in general
and general theory in particular.”9
I guess that Duncan Kennedy prefers in informal contexts to speak of
“cannibalizing” instead of “deconstructing” to suggest that he is within critical theory
“self-taught”10, so he does philosophical critique in a non-civilized manner, not as
someone with a formal academic training in the field would be expected to do. Perhaps
he also assumes the frequent fallacy of his critique when it pretends to attack ideas by
attacking people (because of the class they belong to, the interests they consciously or
unconsciously represent, etc.).
Does Duncan Kennedy successfully cannibalize jurisprudence? By jurisprudence I
mean here two different things: adjudication and legal doctrine. Adjudication
determines the rule of the case and applies it to the case. Legal doctrine determines what
the rule of the case is according to the best legal opinion and determines the rules and
principles that she finds in the sources or constructs from them and on which base the
rule of any case should be determined. Being so different they have in common that
9 Ibidem, 221.10 A Semiotics of Critique, 1148.
5
they are both normative, that is, they direct conduct, however from different positions:
from a position of authority in adjudication and from a position of counselling in
doctrine. They have also in common the same logic: it is the same legal argument that
derives the norm of the case from other norms and principles in adjudication and
doctrine. Duncan Kennedy attempts to cannibalize both by demonstrating the
inexistence of rightness in legal argumentation. If there is no right legal argument, there
is no right answer in adjudication, adjudication is not a rational enterprise and legal
doctrine can not be said to be a science. The fate of adjudication and doctrine hang
together in success or failure of his attempt and that is why I take them together in the
discussion.
There is an argument against the thesis that there is no right legal argument that
runs as follows: you say that there is no right legal argument; to demonstrate your thesis
you must use a right legal argument; thereby you defeat your thesis.
You cannot avoid self defeat by saying that you do not need a right legal
argument, because you may have a right argument of another kind, an epistemological
argument for instance, and that is enough. For the purpose of our discussion however all
arguments that lead to a legal conclusion are legal. Since we are discussing if there is a
right answer in adjudication only the arguments that lead to the conclusion that there is
a right answer in adjudication or to the conclusion that there is no one are in order.
Similarly, to know whether legal doctrine is a science or not, whether she arrives
rationally to her conclusions or not, only the arguments that lead to one of those
alternatives are in order. Now all these arguments and only these are in order in a
discussion about the existence of rightness in jurisprudence and are properly called
legal. If they are also epistemological is irrelevant.
6
What if you say with Duncan Kennedy that you do not believe in rightness of any
kind? For you there is no right legal argument because there is no right argument at all.
But then you can not demonstrate your thesis. Duncan Kennedy goes so far as to say: “I
don’t think I can demonstrate that reconstruction is impossible”11. However, if he says
so because he does not believe in the rightness of any demonstration, how can he
believe in deconstruction? The answer is: he does not. He says also: “we don’t believe
we can demonstrate the correctness of our choices”12. It goes further. If you do not
believe in rightness of any kind you can not believe that it is right that there is no right
legal argument and that means that you can not believe that there is no right legal
argument. There is no need of an argument to defeat you because you started self
defeated.
Is there an escape route by saying that believing that there is no right legal
argument is one thing; another is believing that such a thesis is right, has the quality of
rightness? If so you could deny that there is such a quality in general and that such a
quality applies to any legal argument in particular and still accept many legal
arguments. But if you accept one sole legal argument you can not hold that there is no
right legal argument. Dworkin and Blackburn – and others – have shown that sentences
like “it is objectively true that slavery is bad” or “what is right to hold is that slavery is
bad” have only an “internal meaning”, repeat emphatically that slavery is bad. They do
not stake out a second order or metaethical position. In the same way the sentence “the
right thesis is that there is no right legal argument” stays at the same level as “there is no
right legal argument”, does not go beyond or above, says the same thing in a repetitive
fashion.
11 “A Critique of Rights …”, 221.12 Ibidem, 222.
7
I think that Duncan Kennedy actually believes in a lot of legal arguments and
therefore he can not hold that there is no right legal argument. His “commitment” to
loss of faith and negation of rightness makes him overstate his own position and brings
him closer to classical skepticism and to nihilism than he is prepared to admit: “That we
don’t believe we can demonstrate the correctness of our choices doesn’t make us
nihilists, at least not in our own eyes. We misunderstand internal critique if we imagine
that it might lead to a situation in which we had lost faith in “everything,” so that we
just wouldn’t know what to believe in or do. Critique changes our attitude toward a
particular theory (whichever we successfully critique) that generated a particular
sentiment of rightness. It leave us, in the way of tools for working out our commitments
and our concrete plans for the future, whatever we had before that theory and its
critique. It seems odd to me to suppose that we could ever, conceivably, be without
resources of this kind, even if each of us was a veritable Hercules of critical
destruction.”13 If so he can avoid at last self defeat. If we want to respect his last stand
and continue to discuss his theses, we have to engage in a charitable reconstruction of
both the theses and the arguments for them, beware of Mill’s caveat: "a doctrine is not
judged at all until it is judged in its best form"14.
What is the best form of the critique of the theory that there is only one right
answer in adjudication? In my opinion it is the form the theory takes in Herbert Hart 15.
He says that in any legal order will always be certain legal unregulated cases, gaps in
the law. To reach a decision in these cases the law provides some criteria, such as
analogy and general legal principles. From the application of such criteria it will
eventually result that one certain rule should be applied to the case, being then the only
13 Ibidem, 222.14 "Sedgwick’s Discourse" (1835), Collected Works, X, p.52.15 See “Postscript”to H. L. A. Hart, The Concept of Law, 2d. ed., Oxford, Clarendon, 1994, 272-273 and H. L.A. Hart, “El nuevo desafio al positivismo juridico”, Sistema 36, Mayo de 1980, 8-11.
8
right answer to the case. In some of the gaps however it will result a space of
indeterminacy where more than one ruling of the case is compatible with the criteria. In
such a hypothesis the judge still has the duty to decide the case, and therefore he must
exercise his discretion and make new law within the limits of the discretionary power
that the law gives him for that. These limits are so described by Hart: “he must not do
this arbitrarily: that is he must always have some general reasons justifying his decision
and he must act as a conscientious legislator would by deciding according to his own
beliefs and values. But if he satisfies these conditions he is entitled to follow standards
or reasons for decision which are not dictated by the law and may differ from those
followed by other judges faced with similar cases.”16 Against Hart can be said that it is
true that different answers to the same question by different judges or by the same judge
in different cases may turn out to be legally valid as long as they cannot be revised,
since they may become res judicatae. But as long as any such answer can be revised by
another judge it may be sustained or reversed in consequence of being right or wrong
and not in consequence of being within or outside the discretionary power of the judge a
quo. Even if the answer became binding as a precedent for future cases it may be as
such overruled later in consequence of being considered wrong. So it seems more
natural to say that the judges do not have discretionary power to decide either way, but
have the duty to give the one right answer. In the cases where the fulfilment of that duty
can not be controlled, this is due to the principles of res judicata or of stare decisis and
not to a discretionary power they have. If so the judge must not decide according to his
own beliefs and values, but according to beliefs and values that best fit to system as a
whole, as Dworkin would say. But this does not imply that there is no place for the
traditional distinction between interpretation and integration of the gaps of the law, that
Hart maintains and Dworkin seems to deny. Interpretation and integration of gaps are
16 The Concept of Law, 273.
9
not separated by the methods they use to arrive at their result but by the relation of that
result to the meaning of words. As long as the result is within the possible meaning of
the words of a given law there is interpretation, outside it we have integration. The
judges have indeed “interstitial” legislative powers when they decide gaps in the law,
when they create new precedents or overrule old ones in the common law, when they
are allowed by the constitution to fix general binding jurisprudence. The extent of these
powers depends on each constitution, but some points are generally accepted: in
criminal law, for example, there are no gaps, therefore interpretation is allowed but not
integration of gaps. All this is no offence against the principle of division of powers in a
democracy, on contrary: powers are checked not only by division of different powers
through different power holders, but also by division of the same power through
different power holders.
If we compare Hart’s and Duncan Kennedy’s critique of the right answer theory
both escape the self defeating argument because both accept that there are cases where
the system admits only one answer and other cases where more than one answer is
compatible with the system. But they set the divide between the two groups differently.
The second group embraces for Duncan Kennedy almost all cases of adjudication,
because whenever there is litigation the judge must decide between competing reasons
after balancing them and such an activity effaces the distinction between adjudication
and legislation. He composes lists of pairs of “argument-bites” that are typically used
against each other by competent legal arguers17. The balancing judge has to choose
between maxim and countermaxim, e. g. that pacta sunt servanda (promises should be
kept, period) vs. rebus sic stantibus (only as long as the circumstances remain the
same), that the role of the courts is to apply law, not make it vs. the common law
17 “A Semiotics of Legal Argument”, Collected Courses of the Academy of European Law, III-2 (1994), 309 ff.
10
evolves to meet new social conditions. But he has eventually to choose also between
assertion and denial of a factual premise, e. g, pacta sunt servanda vs. there was no
promise. Here Duncan Kennedy could have invoked Bentham, who was the first to note
that the power of legislation is but a part of the whole power of imperation in any given
case, in so far as it disposes about classes; it must be completed by the power of
aggregation, that is the power to decide that an individual (act or person or thing) is a
member of that class18. But Duncan Kennedy is not interested in distinguishing different
types of power and even less in separating legislation and adjudication, quite the
contrary: he wants to cannibalize the later distinction. In broad lines his overall
argument runs as follows. Excepting some crystal-clear almost mechanical cases of
adjudication, where there is no doubt about the outcome, the judge must decide after
balancing opposite reasons relative to the rule of the case or to the qualification of the
case. Judicial balancing shows that “judges decide questions of policy without any
methodology that distinguishes them from legislators”19. The decision of judges and
legislators however is not determined by rational procedures of deduction and
evaluation but by partially unconscious interests and sentiments. The existence of pairs
of argument-bytes that give “rational” justifications to contrary choices at every stage of
adjudication demonstrates typically that more than one answer is possible. “Legal
argument, understood as the deployment of stereotyped pro and con argument
fragments, seems a particularly good example of bricolage masquerading as hyper-
rationality”20. This should be sufficient to provoke loss of faith in the distinction
between legislation and adjudication.
It is just not so, that judges decide questions of policy without any methodology
that distinguishes them from legislators. Judicial reasoning is subject to constraints that
18 Jeremy Bentham, Of Laws in General, ed.H. L. A. Hart, London, Athlone, 1970, 81-83.19 “The Critique of Rights …”, 20220 “A Semiotics of Legal Argument”, 352.
11
do not affect legislators. It must be based on the sources of law and demonstrate the
compatibility of its conclusions with the sources of law. It is limited by rules of
procedure, that determine in part what are the questions to be answered and how. None
of these constraints affect legislators.
If decisions were never taken rationally, that is, after deliberation about reasons,
but would always be a necessary consequence of antecedent events according to causal
laws, as determinism pretends, there would be no difference in the way how judge and
legislator reach conclusions. Then there would make no sense to speak of a right
answer, only causally determined answers in each individual case would exist. Duncan
Kennedy is too much a post modern theorist to accept such an ultra-confident unproved
theory. He does not pretend more than undermine the pretension of rational deliberation
and decision in certain types of cases. Does he succeed? This can only be decided by
pondering the arguments in each case. The job, as Duncan Kennedy knows, is not
already done by epitomizing argument-bytes used in technical legal reasoning in such
cases. Here I can only refer to an example in the literature. Duncan Kennedy says21 that
the idea of argument-bytes was for him a way to radicalize Llewellyn’s famous article
“Remarks on the Theory of Appellate Decision and the Rules or Canons about how
Statutes Are To Be Construed” of 195022. Llewellyn identifies there twenty eight pairs
of opposing canons about interpretation of statutes, all of them retired from actual cases
of American state law and when he reprints the canons in his later book The Common
Law Tradition. Deciding Appeals23 he adds another nineteen groupings of canons,
mostly with two, sometimes with three or four alternative canons, retired from federal
law cases. For example the pair 12: “If language is plain and unambiguous it must be
21 “A Semiotics of Legal Argument”, 352.22 Karl N. Llewellyn, “Remarks on the Theory of Appellate Decision and the Rules or Canons about how Statutes are to be Construed”, Vand. L. Rev., 3 (1950), 395. 23 Karl N. Llewellyn, The Common Law Tradition. Deciding Appeals, Boston, Little, Brown, 1960, 521 ss.
12
given effect” vs. “Not when literal interpretation would lead to absurd and mischievous
consequences or thwart manifest purpose”. In the book he discusses sixty four canons
used in common law as “available impeccable precedent techniques” and does not
group them in opposing pairs24. From the start he considers them “argument tools”, “a
technical framework” and stresses that “plainly, to make any canon take hold in a
particular instance, the construction intended must be sold, essentially, by means other
than the use of the canon”25. As Duncan Kennedy recognizes, Llewellyn is interested in
reconstruction, in “the proper way of work in jurisprudence”, whose “whole unity and
beauty” he compares with Gothic art26. For Duncan Kennedy instead, “the extension of
the 'bites' analysis from statutory interpretation to policy discourse meant rejecting the
‘reconstructive’ impulse among the realists”27. However, if the argument-bites are going
to bite it must be shown in the analysis of any case where one of bites is used, that the
judge could ad libitum have chosen the alternative bite of the pair. Michael Sinclair has
devoted two recent papers to discuss the first twelve pairs of “Llewellyn duelling
canons”28, including the one I quoted above, intending to demonstrate that such a liberty
of choice does not exist. I do not agree with everything Sinclair says and particularly in
the pair 12 quoted above he defends the sole validity of the first canon of the pair and I
would argue for contrary conclusion. Duncan Kennedy would charge Sinclair – and me
of doing reconstruction. May be. But then he must do minute deconstruction if he wants
to convince us. He does not.
Let us finally come to the skeptic thesis about jurisprudence in the sense of legal
doctrine. It says that it is impossible to demonstrate that the arguments of legal doctrine
24 Ibidem, 77-91.25 “Remarks…”, 401.26 The Common Law Tradition, 7.27 “A Semiotics of Legal Argument”, 352.28 Michael B. W. Sinclair, “Llewellyn’s “Duelling Canons, One to Seven: A Critique”, at http://ssrn.com/abstract= 780424, and ““Only a Sith Thinks Like That”: Llewellyn’s “Duelling Canons,” Eight to Twelve”, at http://ssrn.com/abstract= 902853.
13
are true. Therefore legal doctrine is not a kind of science but a kind of rhetoric. What is
the best form of this theory? In my opinion it is to be found in the Humean tradition and
is best represented in philosophy of law by Alf Ross.
The Humean argument runs as follows. Legal doctrine is developed through legal
arguments. Legal arguments are normative in the sense that their include premises and
conclusions whose meaning can only be explained through ought-sentences. Ought-
sentences are not true or false. But science is a set of true sentences. Therefore legal
doctrine is not a science. This is confirmed by an epistemology according to which there
are only two ways of demonstrating the truth of a sentence: by deduction or by
induction. Legal reasoning is not reducible to deduction and induction. It entails ought-
sentences. But neither ought can be derived from is nor is from ought. Therefore legal
reasoning is neither accepted by the logic of deduction nor by the logic of induction.
This again is confirmed by a theory of will and deliberation according to which
deliberation as a rational procedure respects only the theoretical premises that relate
means to ends as necessary or sufficient conditions of such ends. But the desire
(Hume’s passion) of an end is not subject to reason (Hume: passion is the master of
reason) and the same applies to the relations between desires. Alf Ross29 tried to confirm
this again by demonstrating that if we try to relate imperatives through the logic
relations of negation, conjunction, disjunction and implication we obtain paradoxes,
rendering imperative logic impossible. For him legal doctrine as legal politics may only
be described as a kind of rhetoric, as developed by Stevenson and Perelman30.
I think that Duncan Kennedy with his fondness for post modern French
philosophy will not like the company of these modernist neo-positivists that march in
Hume’s path. He does not believe in their theories. Otherwise he would not say: “I don’t
29 “Imperatives and Logic”, “Theoria”, 1941, 53.30 Alf Ross, On Law and Justice, London, Stevens, 1958, 326.
14
think I can demonstrate that reconstruction is impossible”31. The Humeans think they
can demonstrate it. The Humean version of skepticism certainly did not contribute to his
personal loss of faith and he does not expect it to cause the same loss in others. He sees
critique as a project that “negates a particular emotion in favour of another experience”
that he describes as “loss of faith and characteristic associated emotions”, namely
“irony, despair, ecstasy, and so on”32. Here we have fundamental moral options for
values interpreted as inducement of emotions. I find it strikingly Humean, even if it is
based on a bad interpretation of Hume33. But he has nothing better to offer about
science.
We should evaluate differently Hume’s law and Hume’s conception of science.
According to Hume’s law, no ought can be derived from an is and no is can be derived
from an ought. Hume’s law is unassailable and it certainly implies that the normative
conclusions of legal doctrine can only be derived from arguments that have normative
premises. Hume’s conception of science however is highly disputable and in my
opinion finally wrong. Hume adopts the modern conception of science that had earlier
its best representative in Galileo. According to it there is only theoretical reason, no
practical reason. The concept of reason is essential for the theory of science because
science is constituted by sentences that are grounded on reason. Aristotle would say that
“we think that we have the science of something whenever we think that we know the
cause why it is, that such cause is the cause of such a thing and that it is not possible for
this to be otherwise”34. It is the cause or reason of a statement - why something is as it is
– that makes a scientific statement out of it. The difference between Galileo and Hume
on one side and Aristotle on the other side is that Galileo and Hume do not admit the 31 “The Critique of Rights”, 221.32 Ibidem, see 221combined with 219. 33 See José de Sousa e Brito, "Hume's Law and Legal Positivism", Filosofia del Derecho y Filosofia de la Cultura, Memoria del X Congreso Mundial ordinario de Filosofia del Derecho y Filosofia Social, VIII, Mexico, Universidad Nacional Autonoma de Mexico, 1982, pp. 245-265. 34 Posterior Analytics, I, 2, 71b 9-12.
15
final cause. For Aristotle and in ordinary language one way of explaining or saying the
cause or reason of something is to say that it is a means for a certain end. Thereby you
express a practical reasoning or syllogism. Galileo would say that if it is true that being
spherical and polished are means to reflect light it does not follow that some planet, that
is supposed to reflect light, is spherical and polished. This would indeed be a derivation
from ought to is and violate Hume’s law. But if teleological reasoning is of no use for
science in astronomy, it does not follow that it is also inappropriate for science in ethics
or in law. This is however Galileo’s and Hume’s conclusion. In the words of Galileo:
“in whatever point of law and of other human studies is neither truth nor falsity”35. They
restrict reason to theoretical reason.
Bentham and Kant reacted to Hume by demonstrating the possibility of practical
reason. We owe to Bentham in particular the restoration of practical syllogism in
philosophy and in jurisprudence. Methodically utilitarianism can be equated to
teleology and was indeed so named by John Start Mill36. Neither Mill nor Bentham nor
Aristoteles before them reduced the object of reason in ethics to the causal relation
between end and means. The choice of ends is also a matter of reason. Aristoteles says
that “the work of practical thought is the truth in accordance with right desire”.37 The
quest of the right desire is the Aristotelian counterpart of the theory of rational choice,
encompassing individual and social choice. A specific approach to the theory of social
choice is given by the general discipline of cost-benefit analysis38, which constitutes the
methodological backbone of the economic analysis of law. Balkin and Levinson are
legal semioticians who consider “economics, and all forms of rational actor theory generally”
to be the discipline best “suited to producing rhetorical authority in debates about law
35 Dialogo dei massimi sistemi (1630), Le Opere (ed.Nazionale), Firenze, VII; reimp. 1933, p. 78.36 A System of Logic, VI, XII, 6 (ed. Robson, Collected Works, London, Routledge, 1974, 949-950). 37 Nicomachean Ethics, VI, 1139ª 29-30.38 On rational choice, social choice and cost benefit analysis see Amarttya Sen, Rationality and Freedom, Cambridge, Massachusetts, Harvard University Press, 2002.
16
and public policy”.39 I would say that it is suited to producing legal theory proper, albeit
only part of it..
Bentham contributed further to the methodological foundations of law and other
practical disciplines by developing a logic of the will40 and so rediscovered deontic logic
after Leibniz. He developed also a theory of the paraphrase of concepts that anticipates
Russell’s definition in use41. Paraphrase and logic of the will enabled him to an analysis
of rights in terms of subjective legal positions42. Bentham remains the main alternative
to Hohfeld’s theory of legal conceptions, but Hohfeld had a greater success in the legal
doctrine as it is generally recognized in private law. Modern deontic logic after 1951
developed a lot through von Wright, Lindahl and others43, benefiting again legal theory.
Kanger44, Lindahl45 and Pörn46, for example, applied a revised version of Hohfeld to
parliamentary and human rights. The difficulties of Alf Ross have been solved by what
Richard Hare said on practical inferences47 and by what Anthony Kenny wrote on the
logic of satisfactoriness48.
Bentham and Hohfeld worked on commands and permissions. Other types of rules
have been investigated since. Wittgenstein, Rawls and Searle, among others, focused on
39 Jack M. Balkin and Sanford Levinson, “Law and the Humanities: An Uneasy Relationship”, Yale Journal of Law & the Humanities, 18, 2006, 155, 183.40 See José de Sousa e Brito, “Relire Bentham. A propos de l’édition de “Of Laws in General” de Bentham par Hart”, Archives de Philosophie du Droit, 17, 1972, 451, 458-468.41 See José de Sousa e Brito, “La methodologie juridique de Bentham”, Philippe Gérard ed al.(eds.), Actualité de la pensée jurique de Jeremy Bentham, Bruxelles, Saint-Louis, 1987, 279.42 See appendix B of Of Laws in General, ed. H. L. A. Hart (Collected Works), London, Athlone, 1970, 251-288 and José de Sousa e Brito, “Droits et utilité chez Bentham”, Archives de Philosophie du Droit, 26, 1981, 93, 99-105.43 See the short overview of G. H. von Wright, “Logik, deontische” in Historisches Wörterbuch der Philosophie, eds. J. Ritter, K. Gründer, Basel, Schwabe, 5, 1980 for the main references until 1980 and Paul McNamara “Deontic Logic” (2006), Stanford Encyclopedia of Philosophy, for more recent ones.
44 Stig Kanger, “Rights and Parliamentarism” (1966) and other essays under the heading “Applied Logic: Obligations, Rights and Action” in Collected Papers of Stig Kanger with Essays on Hi sLife and Work, ed.by Ghitta Holmström-Hintikka et al., Dordrecht, Kluwer, 2001, I, 99-196.45 Lars Lindahl, Position and Change. A Study in Law and Logic, Dordrecht, Reidel, 1977.46 Ingmar Pörn, The Logic of Power, Oxford, Blackwell, 1970.47 R. M.Hare, “Practical Inferences” (1969), Practical Inferences, 1971, 59.48 Antony Kenny, “Paractical Reasoning and Rational Appetite”, Will, Freedom and Power, Oxford, Blackwell, 1975, 70
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constitutive rules. Dworkin opposed principles to rules and originate an enormous
discussion on the meaning and the logic of principles and how they relate with the
different types of rules in a legal system. This again contributed to further development
of the theory of the legal system, due to Kelsen and to Santi Romano, through Hart and
Raz. These developments presupposed the advancement of philosophical semantics due
to Wittgenstein and to the Oxford analytical school (Austin, Grice, Strawson). The work
of Judith Harvis Thomson on the meaning of rights and the constructive semiotics of
law of Roberta Kevelson and of Bernard Jackson are other examples of the
indispensable contribution of philosophy to the reconstruction of jurisprudence as a
science.
These references indicate no more than inspirations for the only work that can
convincingly refute the skeptic argument against legal science: the reconstruction of
jurisprudence as a scientific enterprise. Such work is beyond the scope of any single
paper. I can not convince Dunkan Kennedy. I just tried to explain why he did not
succeed in cannibalizing jurisprudence.
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