The Two Faces of Analytical Legal Philosophy Riccardo

The Two Faces of Analytical Legal Philosophy
Riccardo Guastini
Tarello Institute for Legal Philosophy
University of Genoa
guastini@unige.it
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.
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