LAW, TRUTH, AND REASON

Transcription

1 LAW, TRUTH, AND REASON

2 Law and Philosophy Library VOLUME 97 Series Editors: FRANCISCO J. LAPORTA, Department of Law, Autonomous University of Madrid, Spain FREDERICK SCHAUER, School of Law, University of Virginia, U.S.A. TORBEN SPAAK, Uppsala University, Sweden Former Series Editors: AULIS AARNIO, MICHAEL D. BAYLES, CONRAD D. JOHNSON, ALAN MABE, ALEKSANDER PECZENIK Editorial Advisory Board: AULIS AARNIO, Secretary General of the Tampere Club, Finland HUMBERTO ÁVILA, Federal University of South Brazil, Brazil ZENON BANKOWSKI, Centre for Law and Society, University of Edinburgh, United Kingdom PAOLO COMANDUCCI, University of Genoa, Italy HUGH CORDER, University of Cape Town, South Africa DAVID DYZENHAUS, University of Toronto, Canada ERNESTO GARZÓN VALDÉS, Institut für Politikwissenschaft, Johannes Gutenberg Universitat, Mainz, Germany RICCARDO GUASTINI, University of Genoa, Italy JOHN KLEINIG, Department of Law, Police Science and Criminal Justice Administration, John Jay College of Criminal Justice, City University of New York, U.S.A. PATRICIA MINDUS, Università Degli Studi di Torino, Italy YASUTOMO MORIGIWA, Nagoya University, Japan GIOVANNI BATTISTA RATTI, Juan de la Cierva Fellow in Law, Faculty of Law, University of Girona, Spain WOJCIECH SADURSKI, European University Institute, Department of Law, Florence, Italy HORACIO SPECTOR, Universidad Torcuato Di Tella, Argentina ROBERT S. SUMMERS, School of Law, Cornell University, U.S.A. MICHEL TROPER, Membre de l Institut Universitaire de France, France CARL WELLMAN, Department of Philosophy, Washington University, U.S.A. For further volumes:

3 LAW, TRUTH, AND REASON A Treatise on Legal Argumentation Raimo Siltala University of Turku, Finland 123

4 Raimo Siltala Professor in Jurisprudence Faculty of Law Caloniankuja University of Turku raimo.siltala@utu.fi ISSN ISBN e-isbn DOI / Springer Dordrecht Heidelberg London New York Library of Congress Control Number: Springer Science+Business Media B.V No part of this work may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Publisher, with the exception of any material supplied specifically for the purpose of being entered and executed on a computer system, for exclusive use by the purchaser of the work. Printed on acid-free paper Springer is part of Springer Science+Business Media (

5 Acknowledgments I wish to thank the Faculty of Law at the University of Turku for its open-minded academic atmosphere and for providing me the funding and all the facilities I needed in writing this book. Also, I wish to thank the Faculty of Law at the University of Helsinki for kindly letting me use one of their workrooms during the research process while staying in Helsinki. I wish to thank professor Aulis Aarnio and the late professor Neil MacCormick for initiating me to the path of philosophy and jurisprudence already some years ago. I wish to thank my friends and colleagues at the joint reading circle and researcher seminar that started in 2005 with an analysis of Neil MacCormick s impressive works on jurisprudence. The project has been active ever since. Together, we have read some of the most prominent works on jurisprudence and legal philosophy today, and we even had the privilege of hearing each of the authors in person at the concluding seminar held in Finland: Neil MacCormick (in 2006), Ronald Dworkin (in 2008), and Robert Alexy (in 2010). Now, we are reading John R. Searle s philosophical works, hoping to have him as our guest of honor in Of my many friends in the group, I would like to name the Four Musketeers here, i.e. Mikko Huuskonen, Matti Kunnas, Max Oker-Blom, and Ari Wirén, without forgetting the others. I wish to thank the Series Editors at Springer for approving my manuscript in the esteemed Law and Philosophy Library. I think I am very fortunate in this, since one of my main sources of inspiration here, i.e. Jerzy Wróblewski s The Judicial Application of Law, was published in the very same series in 1992, then hosted by Kluwer Academic Publishers. I wish to thank Neil Olivier and Diana Nijenhuijzen at Springer for their prolific mastering of the legal and administrative issues involved. Moreover, I wish to thank Anandhi Bashyam and her team in India for their very skilful editorial and technical work in the process of transforming the manuscript into a book on legal reasoning. Finally, I wish to thank my companion Tuija for her lasting love and passion for a man who all too often vanishes into the unknown of legal philosophy and jurisprudence; our two daughters Venla and Anna for reminding me that there is life outside the university, as well; and my parents Laura and Tatu for their unconditional love, encouragement, and support in all my life. v

6 This is Blank Page Integra vi

7 Contents 1 Introduction The Three Ideologies of Judicial Decision-Making by JerzyWróblewski The Three Situations of Legal Decision-Making by Kaarle Makkonen The Subject Matter of the Treatise: Legal Argumentation, or How to Construct and Read the Law in a Reasoned Manner The Concept of a Frame of Legal Analysis The Theories of Truth and Legal Analysis The Semantics of Law: Rudolf Carnap s Method ofextension and Intension An Isomorphic Theory of Law: A Relation of Structural Similarity Between the Two Fact-Constellations Compared Kaarle Makkonen on Legal Isomorphism The Picture Theory of Language in Ludwig Wittgenstein s Tractatus Logico-Philosophicus, as Read in Light of Erik Stenius Wittgenstein s Tractatus. A Critical Exposition of the Main Lines of Thought The Internal Categorial Structure and the External Configuration Structure of Reality A Legal Fact-Situation as an Analysed Fact-Situation The Two Requirements Placed on Legal Isomorphism The Transition From an Isomorphic Situation to a SituationofSemanticAmbiguity Legal Isomorphism and Institutional Facts The Semantic Theory of Truth by Alfred Tarski A Critical Evaluation of the Isomorphic Theory of Law Coherence Theory of Law: Shared Congruence Among Arguments Drawn from the Institutional and Societal Sources of Law Truth As Coherence Among the Sentences of a Scientific Theory vii

8 viii Contents 3.2 In Search for the Concept of Coherence A Quantitative Approach: The More/Longer/Greater (...), the More Coherent the Theory A Qualitative Approach: That the Law is Structured by a Coherent Set of Principles About Justice and Fairness and Procedural Due Process The Duhem-Quine Thesis: The Inherently Holistic and Underdetermined Character of a Scientific Theory, anditsimplicationsforlegalanalysis Towards Partial Coherence in Law The Concept of Coherence Redefined A Critical Evaluation of the Coherence Theory of Law Between the Evident and the Irrational : The New Rhetoric and Legal Argumentation Theory TheVarietiesofPragmatismandtheLaw The Universal Audience as a Subjective Thought Construct of the Speaker by Chaïm Perelman The Realm of Rhetoric and the Quest for Value-Cognitivism TheNewRhetoricandItsAlternatives Philosophical Pragmatism: Law, Judged in Light of Its Social Effects What, In Short, is the Truth s Cash Value in Experiential Terms? TheLureofPragmatismandtheLaw These Doctrines Form a System for Inducing People to Behave Efficiently Why Efficiency? and Is Wealth a Value? A Critical Evaluation of the Economic Analysis of Law, with Brief Comments on the Marxist Theory of Law Analytical Legal Positivism: Retracing the Original Intentions of the Legislator Under Legal Exegesis Scientific Positivism Defined WhatIsAnalyticalPhilosophy? Legal Positivism Defined The Saga of Modern Legal Positivism AnalyticalLegalPositivism Institutional Legal Positivism ExclusiveandInclusiveLegalPositivism The Unresolvable Dilemma of Kaarlo Tuori s Critical LegalPositivism

9 Contents ix 6.6 One Step (or Two) Back in History: The Exegetical School of Law (École de l Exégèse) in France and Belgium in the Nineteenth Century ACriticalEvaluationofLegalExegesis Legal Realism: The Law in Action, Not the Law in Books, As the Subject Matter of Legal Analysis Philosophical Realism Defined Legal Realism, American and Scandinavian TheLegacyofAmericanLegalRealism The Concept of A Judicial Ideology by Alf Ross, and the Rule of Recognition by H. L. A. Hart TheFormalValidityandEfficientEnforcementofLaw ACriticalEvaluationofAnalyticalLegalRealism Legal Conventionalism: Law as an Expression of Collective Intentionality Brute Facts and Institutional Facts The Definitional Characteristics of Institutional Facts by John R. Searle, with Special Concern for Self-Referentiality Conventions as Mutual Expectations of the Members ofacommunity Nominalism vs. Realism: Are Intentions Attributable to a Collective Agent as a Whole or to Its Individual MembersOnly? The Institutionally Qualified Character of Legal Conventions Shared Legal Convictions as an Expression of the Volksgeist, or the Spirit of the Nation, by Friedrich Carl vonsavigny The Transformations of Customary Law in Modern Society Legal Conventionalism and Legal Argumentation Theory Die Rechtssätze in ihrem systematischen Zusammenhang zu erkennen The Thrust of Legal Formalism A Genealogy of Legal Concepts by Georg Friedrich Puchta A Jurisprudence, Based on Legal Concepts and Their SystemicRelations The Langdellian Orthodoxy A Brief Account of Legal FormalisminAmerica The Constitutive Elements of Legal Formality by Robert S.Summers Der Zweck ist der Schöpfer des ganzen Rechts A Critique of Legal Formalism by Rudolf von Jhering and LonL.Fuller

10 x Contents 10 Natural Law Philosophy: Law as Subordinate to Social Justice and Political Morality in Society TheEvolvementofNaturalLawPhilosophy eine wertfreie Beschreibung ihres Gegenstandes The Challenge of Hans Kelsen s Pure Theory of Law for NaturalLawPhilosophy The Internal Morality of Law by Lon L. Fuller The Core of Good Sense in the Doctrine of Natural Law The Minimum Content of Natural Law byh.l.a.hart TheSevenBasicValuesbyJohnFinnis A Critical Evaluation of Natural Law Theory Radical Decisionism: Social Justice on a Strictly Contextualist Basis The Significance of the Institutional Meta-Theory of Law Denial of All Feasible Meta-Theories of Law: Kadi-Justice, the German Free Law Movement, and Carl Schmitt on the Law Decisionism in Jurisprudence, I: Thomas Wilhelmsson on the Small-Scale, Good Narratives on Legal Responsibility Decisionism in Jurisprudence, II: Martti Koskenniemi on the International Lawyer s Radically Situational Ethics ACriticalCommentofRadicalDecisionism Intermission The Ten Frames of Legal Analysis, as Contrasted with Jerzy Wróblewski s Three Ideologies of Judicial Decision-Making and Kaarle Makkonen s Three SituationsofLegalDecision-Making Jerzy Wróblewski s Ideology of Legal and Rational Judicial Decision-Making Law as a Compound of the Legislative Ideology, Judicial Ideology, and a Societal Conception of Law and Justice From a Synchronic to a Diachronic Approach: Two Sequential Models of Legal Reasoning Neil MacCormick s Theory of the Three C s in Legal Reasoning: From Consistency and Coherence to the Consequences of Law The Bielefelder Kreis: A Sequential Order of the Linguistic, Systemic, Teleological- Axiological, and Transcategorical Arguments inlegalreasoning Law and Metaphysics The Truth of a Legal Sentence As Determined by the Frame of Analysis Adopted

11 Contents xi 13.2 The Logico-Conceptual Constitution, Normative Ontology,andStructuralAxiologyofLaw A Systemic Order of Things Among the Rules andprinciplesoflaw Textual Coherence, Institutional Authorities, and the LegalCommunity (Is There) A Future for Analytical Jurisprudence? References Name Index Subject Index

12 This is Blank Page Integra xii

13 List of Diagrams 2.1 The relation between language and the world: the logical constitution of reality and the analytics of finitude, with reference to the internal categorial structure and the external configuration structure of the world The objects and predicates of a family and a military unit as twoarticulatefields The order of inheritance of the children of a deceased person according to the Finnish Act of inheritance and as then realized in the world, as analysed in terms of an isomorphic relation The syntagmatic and paradigmatic dimensions of language The syntagmatic and paradigmatic dimensions of language in the two narrative patterns A and B, with reference to two different schemes of interpretation, i.e. the legitimate expectations (= Scheme A) or original intentions (= Scheme B) of the parties to a contract Mutually interlocking relation of the formal validity of law under legal positivism and the effectiveness of the law in action under legal realism The frames of legal analysis vis-à-vis Jerzy Wróblewski s three ideologies of judicial decision-making and Kaarle Makkonen s three situations of legal decision-making The institutional and societal sources of law, the three constitutive elements of the legal and rational ideology of judicial decision-making, and the five frames of legal analysis entailed The ideologies of bound, legal and rational, and free judicial decision-making, along with the logico-linguistic constitution, normative ontology, and structural axiology of law, and with coverage of the legal concepts, legal rules and legal principles, and societal values and collective goals entailed xiii

14 This is Blank Page Integra xiv

15 List of Tables 1.1 Types of linguistic expression, and the extension and intension of each xv