domingo, 25 de agosto de 2013

Dworkin's conception of rights (as trumps), Rawls's first principle, and Hart's criticism

In the Dworkinian conception of a right (right as a kind of trump), does “A has a right to free speech” means that the political objective of A having free speech ought to prevail over almost every other political objective, except for other rights heavier than A’s right to free speech and for social ends with acutely high urgency or relevance? Wouldn’t that mean that A ought to have as much free speech as morally possible?

I know that Dworkin’s definition is more of an interpretive conception of rights and their status in the general frame of political objectives, and not a semantic analysis of what means to have a right, but I was thinking that, if the translation above is right, then in Dworkin the principle that everyone should have the widest system of freedom would not be a demand of justice about rights (as in Rawls), but would rather be contained in the very concept of rights. It would be conceptually impossible for a legal system to recourse to the idea of rights without intending to grant everyone the widest system of freedom. In a way, Hart’s criticism of Rawls’s formulation and lexical priority of the first principle of justice (stating that both would be chosen only by individuals animated by liberalism as an ideal of life, something that the parties in the original position are not supposed to be) would apply even more properly to Dworkin’s conception of rights.

(But wouldn’t Dworkin defend himself by saying that he never meant to merely describe what is a right, because that is impossible, he meant instead to provide an interpretation of rights, which, according to his ideas, must necessarily commit itself to a normative ideal? So he was not trying to sketch a definition of rights with which rational parties under the veil of ignorance would agree, but rather an interpretation of rights that would both explain and justify our political practices, making them as morally appealing as possible. But even if we accept what he says that “interpreting” implies, wouldn’t a “thinner” conception of rights, one not committed from the start with the principle of the widest system of freedom, be explanatorily more powerful and meta-ethically more pluralistic?)

quarta-feira, 14 de agosto de 2013

Are Wagers Similar to Promises?

Most contemporary philosophers explain the normativity of promises with one of these two strategies: conventionalists say that promises bind because there is a conventional practice (bearing normative meaning) of making promises and every actor whose utterance meets the requirements of that practice is obligated to do what he or she has said; expectationalists say that promises bind because they raise expectations of fulfillment and (at least in most of the cases) it would be wrong for an actor to disappoint expectations that he or she raised. What I want to examine in this post is whether wagers can be considered to bind in the same way that promises can and for the same reasons too. In order to know that, I will compare wagers and promises and see whether they are sufficiently similar to each other. For the sake of this post, I will consider both strategies successful and will establish that, in  defending that some institution is similar to a promise, said similarity can hold either by the conventionalist or the expectationalist conception of promises.

As for wagers, they bear the following intuitive similarity to promises. If I bet with you that, if your team wins the game, I will buy you a beer, that appears to be tantamount to me promising that, if your team wins the game, I will buy you a beer. In this treatment, a wager looks like a case of a conditional promise, a promise whose obligation is conditioned to a hypothetical fact, a promise in the form if–then. (The fact that this kind of wager is usually made with a reciprocity clause, such as “but if mine wins, you buy me a beer”, is not a real problem, because it would just be a case of two promises, each one made by each of the betters and intertwined with each other. For the sake of simplicity, I will consider only the case of unilateral wagers, where the first better is committed to do something for the second one if the condition obtains, but the second better is not committed to do something for the first one if the condition does not obtain.) That intuitive similarity between a wager and a conditional promise is the departing point to our analysis.

There is, however, at least two important differences between a wager and a conditional promise. The first one is that, in a wager, the disbelief of the first better in that the condition will obtain is implicit in the wager proposal itself, while a similar disbelief is not necessary in a conditional promise. Betting that I will buy you a beer if your team wins the game suggests that I have a considerable disbelief that your team will in fact win the game. My utterance implies the prediction that your team will not win the game and, to show how confident I am in my prediction, I am even willing to buy you a beer if the future does not confirm it. On the other hand, by saying something like: “Let’s watch the game together in a bar, I promise you that, if your team wins the game, I will buy a beer”, I do not imply that I don’t believe that your team will win the game, but, on the contrary, I believe that it is at least one of the possibilities and commit myself that, if that happens, I will buy a beer. For making the difference still more evident, you can think of a father that knows that his son will apply for a place in a prestigious university. If the father says: “I promise you that, if you get the place, I will give you a car”, that is a kind of incentive, but if he says: “I bet with you that, if you get the place, I will give you a car”, that is a kind of discouragement, or even an offensive challenge.

The second difference between a wager and a conditional promise is that, in a wager, both betters position themselves in a competition picture, in a win-lose situation. If I bet with you that, if your team wins the game, I will buy you a beer, and it turns out that your team does win the game and I do have to buy you a beer, as said in the wager proposal, then I have suffered a kind of loss and you are even expected to feel free to mock me for that. But the same would be strange for a promise. If I promised you that, if your team won the game, I would buy you a bear and it turned out that your team did win the game and I did have to buy you a beer, it is only the fulfillment of a promise, for your team’s winning the game was something that I had expected to possibly happen and my having to buy you a beer was something that I even wanted to do if your team won (which is kind of a win-win situation). There would be no reason to mock me for that; maybe there is even place to thank me in a way for having made that promise and for having complied with it in the end.

In my point of view, those two differences have distinct impacts on the similarity between wagers and promises according to the choice for the conventionalist or the expectationalist strategy to explain promises. From the point of view of the conventionalist strategy, those two differences look like sufficient reasons to infer that, even if wagering is a practice, in the same sense that promising is, it is not the same practice as promising. It would be a different practice, one that would have different rules and requirements and would call for a different justification. But from the point of view of the expectationalist strategy, whatever the differences between wagering and promising, there would be no denying that a wager, similarly to a promise, raise expectations that would be wrong not to fulfill. We could think of wagering and promising as two different cases (one involving a challenge and a win-lose situation, the other involving help or favor and a win-win situation) of the same moral phenomenon, that is, of the expectation-raising behavior. It would be matter for an ulterior investigation to know whether this conclusion shows an advantage of the expectationalist strategy (the range of its classification, going beyond promises and encompassing other behaviors, for example, wagers) that should be taken into account as an epistemic reason to favor it over the conventionalist one. Another matter for an ulterior investigation would be to know whether similar conclusions would result from the comparison of both promises and wagers with other behaviors of the kind, such as threats.

segunda-feira, 29 de julho de 2013

My Presentation in the IVR


This recording is a register of my presentation in July 25th in my Workshop of the IVR Congress 2013. The title of the presentation is "The Tension Between Facticity and Validity in the Judicial Procedure" and it deals with Habermas's theory of law and democracy in Between Facts and Norms, trying to develop his approach to the judicial procedure to the point that it can explain and evaluate critically the major trends of our time concerning procedural law. This presentation pretty much summarizes the main points of my future doctoral thesis and, because of that, any comment or sugestion will be extremely welcome in this step of the way. So that's enough for introduction and let's skip to the real thing.

domingo, 7 de abril de 2013

Performative Contradiction

The concept of performative contradiction belongs to Habermas and Apel’s discourse theory. They maintain that, when two or more speakers debate, they implicitly assume some rules, as those of intelligibility, sincerity, freedom and equality. But, since such rules are implicit, speakers don’t mention them and may even be unaware of them. This raises a problem of proof. If the rule in question is implicit, how can you prove that it exists and is followed? Habermas and Apel offer two ways. The first is by showing how one speaker react when the other disobeys any of such rules. That is the normative proof. The second one is by showing that, when one speaker disobeys any of such rules, she incurs in a special kind of contradiction: not a logic, but a performative one. In a logic contradiction, the speaker makes two or more statements incompatible to each other, so that they all cannot be true at the same time. In a performative contradiction, however, something the speaker implictly says is incompatible with what she is doing ("performance" being the term for "doing", thence "performative contradiction"). Being unclear, the idea of a contradiction between what the speaker says and what she does probably begs for further explanation.

Let S be the speaker and let her statements be referred to by p and a number (p1, p2, p3 etc.). Now suppose S makes three statements as follows: (p1) “I do not exist”, (p2) “I am not here”, and (p3) “I am not speaking”. All three statements incur in performative contradiction. In p1, the speaker’s existence is a condition without which she would not say p1, but, since she is saying p1, she exists and, since p1 states that she does not exist, p1 is false. In p2, the use of “here” refers to the place where the speaker is and, without being in a certain place, the speaker could not speak of that place as “here”, so that, by stating that the speaker is not “here”, p2 is false. In p3, the speaker says p3, which means that she is speaking, but p3 states that she is not speaking, which is incompatible with saying p3, so that p3 is false. In all three cases, what the speaker is saying is contradictory to what she is doing (that is speaking).

Those examples of performative contradiction are irrefutable and few critics would refuse them. But they still haven’t proved the rules of discourse. They rely on obvious assumptions and prove that statements that anyone would acknowledge as false are indeed false. How can this apparently not so helpful form of argument be used to prove Habermas and Apel’s controversial implicit rules of discourse? If S says that she is in Tokyo when she is actually in New York (and knows that), it is clear that S is lying, but it is not clear how S is being contradictory. Apparently S being in Tokyo is not a condition without which she could not say that she is in Tokyo, but only a condition for her saying that she is in Tokyo to be true. As being untrue and being contradictory are not the same, how can you show that any contradiction is in motion here?

Habermas and Apel suggest the following way. Suppose S says: “I am in Tokyo and I am lying about it”. Well, according to the famous liar’s paradox, we know that, if S is lying about it, then S is not in Tokyo, but, if she is in Tokyo, then she is not lying about it. Either way her both statements cannot be true at the same time. But that would entail that when S says that she is Tokyo, she also says, implicitly, that she is not lying about it, that she is saying the truth. Then, “I am in Tokyo” should be read as “I am in Tokyo and I am not lying about it”. Since we know that S is actually in New York, then she is lying about it and, since what she is doing, that is lying, and what she is saying, that is that she is not lying, are indeed contradictory, then S is incurring in contradiction – in that case, a performative contradiction.

If that argument is valid, then we have proved not only that, by saying p while knowing that p is false, S is being contradictory, but also that any S that says any p is also saying that she is not lying about p. This implicit I’m-not-lying clause can be then converted into the implicit rule that the speaker will always say only what she thinks to be true, at the risk of being contradictory by doing otherwise. That would be no other than the very rule of sincerity, that Habermas and Apel maintain that is an implicit rule of discourse. If, by saying p while knowing that p is false, S is being contradictory, then there does exist a rule of sincerity to which every speaker is bonded.

Of course, the mere existence and acknowledgement of such rule of sincerity does not prevent many speakers from lying shamelessly about every subject and aspect of life every day. Self-contradiction is hardly an effective deterrent against bad behavior. But this realization also comes with no surprise, since that is not what the rule was supposed to do. On the contrary, it is more of a standard of judgment. If we say lying is wrong, it happens because we judge the act of lying as incompliant to a rule of non-lying, that is a rule of sincerity, which reinforces the thesis that such rule does exist. It exists not in the sense in which dogs or stones exist, but in the only sense in which a rule can exist, that is, by being taken for mandatory and mostly followed. The difference between a rule of discourse as that of sincerity and some moral or legal rule is that the rules of discourse are presupposed in the very act of speaking, that is you cannot engage in the act of speaking without assuming them – even if you are about to break it. It is not possible to lie without assuming in the very act of lying that a rule of sincerity is in place.

Could this argument for the rule of sincerity be used with equal success for the other rules of intelligibility, freedom, and equality? I think the demonstration of the other rules is possible, although not as easy. You’ll be the judge of that.

The rule of intelligibility is a little less intuitive. Suppose S says: “Touching the totem is taboo”. Well, the other speaker T may not know that taboo is a Polynesian term for something that cannot be touched, spoken of, or done. If T doesn’t know that, she is probably not ready to understand what S has said. But again, it means that S is being unintelligible, not that she is being contradictory. Now suppose S says: “Touching the totem is taboo and I won’t tell you what taboo means”. Well, now apparently S is being childish and annoying, but still not contradictory. It does not sound as unacceptable as “I am in Tokyo and I am lying about it”. In order to catch the contradictory element of that, we have to help a little, assume that being understood is an unavoidable end of any statement and then read “Touching the totem is taboo” as “I’m saying ‘Touching the totem is taboo’ and I want you to understand me”. Since willing someone to understand you (which is, with some imagination, part of what you are implicitly saying) and refusing to tell them what your words mean (which is what you are explicitly doing) are contradictory to each other, S is incurring in performative contradiction. Again, that not-being-unintelligible clause can be converted into the rule that every speaker must try her best to be understood, which is the exact rule of intelligibility that Habermas and Apel claim to exist. As with the rule of sincerity, the rule of intelligibility would belong to the very act of speaking, turning it impossible to engage in speaking without assuming the end of being understood – even being pretentious and pedantic would depend on that.

Finally, freedom and equality will demand even more helping from the reader’s good will and imagination. In the case of freedom and equality, Habermas and Apel think that defending a statement with arguments can only make sense as long as you recognize the other as free to accept or reject the arguments and as having the same capacity and responsibility as the speaker. S saying to T that p because of q either means that T is a free and equal collocutor or makes no sense as a bona fide argumentation (in opposition to, e.g., issuing an order, making a supplication, asking for or giving advice, which are both compatible with relations between unequals and more suitable between them). The act of S addressing T and trying to make her case would be pointless if T had no other choice than accepting S’s argument or if T was actually not as capable as S for judging S’s argument. In this sense, we can say that, in the very moment S waives violence and bargain and addresses T as an collocutor, S is acknowledging both herself and T as free and equal. Speaking to other is installing a community of freedom and equality among the speakers – at least in the dimension of speech, not necessarily likewise in the civil and political dimension. (Although Habermas argues in his Theory of Communicative Action that, the more society relies on discourse, the more it turns into a community of free and equal pairs. That, however, would be a topic for a different post.)

Since defending a statement with arguments makes sense only under the assumption that the collocutor is a free and equal speaker, the speaker who denied her collocutor’s entitlement to check her arguments, accept or reject them, propose counter-arguments, and defend a rival position would incur in a contradiction. What S would be saying: “I’m saying that p because of q and I recognize you as a free and equal speaker to judge that claim and respond to it” would be contradictory to what S would be doing, that is denying T’s possibility of assessing S’s arguments and speaking back. Since there would exist a contradiction between what S is saying and what S is doing, that would also be a performative contradiction. From that we could obtain the rule that every speaker will treat her collocutor as a free pair and the rule that every speaker will treat her collocutor as an equal pair, at risk of being contradictory. Those would be the rules of freedom and equality, which Habermas and Apel sustain. If you take that somewhat sinuous (some may say even tricky) argument to be valid, then the four implicit rules of discourse in Habermas and Apel’s theory would be well proved.

In conclusion, performative contradiction is a form of argument in order to prove that a rule is implicitly assumed in discourse. It works by showing that, whenever the speaker breaks one existing rule, she incurs in a contradiction between what she is saying and what she is doing while speaking. The procedure requires taking an implicit assumption and making it an explicit content of the speech, then displaying that the added content and the act being performed are mutually contradictory. At that point, the assumption is converted into a corresponding rule and taken as existing and mandatory in every piece of discourse. Although being usually employed only by Habermas and Apel and their closer followers, the performative contradiction argument is regarded by many as a useful and promising tool in various fields, specially philosophy of language, informal logics, theory of argumentation, and ethics.

domingo, 20 de janeiro de 2013

Criticisms to Finnis: (1) His conception of description of law

One main argument with which legal positivists as Bentham, Austin, and Kelsen thought to have dismissed Natural Law theories is that a legal theory must be descriptive, that is, it must show the law as it really is, instead of judging it as good or bad or speaking of a law that ought to be. This argument was supposed to dismiss in one fell swoop all Natural Law theories, because these theories were believed to present a just law as a model of reference and to state that the existing law would be valid only to the extent it would correspond to that just law. They would, therefore, be prescriptive, instead of descriptive. Finnis takes the requisite of descriptiveness as correct, but not dismissive of Natural Law in any way. He tries to show that Natural Law theories can meet that requisite as well as positivist theories do – or even better than they do. According to Finnis, Natural Law theories are not actually prescriptive, but descriptive. They do not speak of a law that ought to be, but of a law that is. The difference is that they describe the law that is with respect to the law that it intends to be – and that would not be a theoretical artifice to disguise a prescriptive theory as a descriptive one, but a necessary feature of any theory dedicated to social institutions.

Finnis’s defense of the descriptiveness of Natural Law theories depends on an allegedly necessary shift in our everyday concept of “description”. We are used to think of describing as the activity of reporting how something is without adding or omitting anything and without judging if it is good or bad, beautiful or ugly, useful or harmful. However, things made by men with some purpose (purposeful things) can be described only with respect to the purpose they intend to reach. The Victory of Samothrace can be described as an incomplete statue, that lacks head and arms, only because we consider it to represent the Goddess Victory and, in order to represent Her properly, it would have to have head and arms. Describing it as the representation of a headless and armless Goddess would not be true, but we know that only because we compare what we see to what we suppose that it intended to be.

The same would hold for social institutions. They are also purposeful things, because a marriage or a contract are not merely things that we do, but also things that we do in order to get something else. Two people marry each other to cherish their love, to have a life and estate together and to protect their children. Two people contract to each other to pursue their common interest and protect their relation from ulterior and external interference. It would be impossible to describe a particular marriage or a particular contract without considering what that particular institution intended to be. That, of course, makes a lot of sense. But Finnis is prepared to make the same kind of statement about law in general. Law, as the social institution it is, would be a purposeful thing too. Its purpose would be to protect and realize the basic goods of human life. Once we had a list of these goods, we could describe law properly, with respect to what it intends to be, that is, with respect to the version of law that best protects and realizes those goods. This version is nothing else than what thinkers as Aristotle, Aquinas, and Finnis himself call the Natural Law.

In short: Purposeful things have to be described with respect to what they intend to be; as law is a purposeful thing and it intends to be the best protection and realization of the basic goods of human life, it has to be described with respect to that version of law that best protects and realizes those basic goods, which happens to be Natural Law. I would like to propose a criticism of that argument. Here it follows.

One reason Finnis offers to justify his thesis of purpose-sensitive descriptions for purposeful things is that no description is a report of all features of the described, but only of some of its features, therefore, always involving selection. As every selection has to follow a certain criterion, Finnis sustains that, in the description of purposeful things, the purpose of the described is the necessary criterion for selection of features suited for describing it. Well, my criticism will tackle exactly that “necessary criterion” argument. I accept that every description involves selection and every selection needs a criterion, but I deny that there is any “necessary criterion” for the selection of features aimed at describing something. On the contrary, I defend that the criterion for selection is not necessarily the purpose of the described, but the purpose of the description – or, if you prefer so, the purpose of the describer.

Imagine that, for very unaccountable reasons, the Victory of Samothrace were transferred from the Louvre Museum towards the Emilio Goeldi Museum (a museum in my birth town, unfortunately not as famous as Louvre concerning Art works), and that the latter, for very accountable reasons, was suspicious of being mocked and afraid that the transferred statue were not the real one. For preventing public shame, Goeldi’s curator would hire an assessor, someone with expertise in classic art, in order to determine whether the delivered statue were the famous Victory of Samothrace. That expert, together with his entourage, would inspect the statue in every possible way, measuring its dimensions, scrutinizing its details with magnifiers, examining its shapes and colors against dark light, and making many other weird procedures that I and you could not even imagine of. In the end, the expert would hand over a final report, which would consist in a description of the statue, followed by an assessment of it being or not the original one. Once the description would serve as basis for the assessment, it would be expected that the selection of features would not concentrate in what the statue were sculpted to be, but in how much the delivered statue is similar to the original one. In that approach, the delivered statue’s lacking of head and arms would be taken as a sign of its being complete, and not incomplete – or, if you prefer so, of its being as incomplete as it was supposed to be. On the contrary, if it were provided with head and arms, that would be a sign of its having been altered or, worse than that, a sign for turn on the red light of international art mockery.

That unnecessarily long example leads to two conclusions: one, Belenenses are very suspicious and afraid of ridicule, and two – the one that is really relevant for my criticism – descriptions are dependent not on the purpose of the described, but on the purpose of the describer. The same would hold for law. A legal practitioner, a legal sociologist, a legal psychologist and a legal economist would describe law in different ways, and still their descriptions could all be true, with respect to different purposes. All of them would also describe law in a way very different from how a legal philosopher would do it, and still none of their descriptions would have epistemic precedence over each other. Among legal philosophers it would not be different. A legal positivist and a Natural Law theorist would be concerned with very different features of the existing law, not because one of them is right and the other wrong, but because they have very different purposes with their descriptions. There is no “necessary criterion” for the selection of features in order to describe something – or else there wouldn’t be but one kind and one purpose of description –, there are only pragmatic or instrumental criteria, used according to the descriptive purposes of the time. The descriptive report of an Art historian and that of an Art assessor about the same Art work would hardly coincide, then why should be different with the descriptive reports of a legal positivist and a Natural Law theorist about the same existing law?

If, as I defend, the purposes relevant for the selection of features in a description are the describer’s, then that purpose of protecting and realizing the basic goods of the human life is not necessary for legal theory in general, but only relevant for Finnis (and his fellow Aquinasian companions) in particular. And it is relevant for him (them) for its potential to evaluate and criticize the existing law and to propose amendments and changes to it. If Finnis explicitly refers to the importance of point of view selection concerning the addresses of law, he does not give the same attention to the point of view selection concerning the legal theorist. For the legal positivist, assuming the point of view of the legal practitioner, is mostly concerned with what the existing law presently says and the Natural Law theorist, assuming the point of view of the legislator, or of his knowledgeable advisor, is chiefly occupied with in which aspects the existing law can be improved for the best.

So, I would criticize not only Finnis’s insistence that there is a necessary criterion for description of social institutions, but also Finnis’s failure to distinguish between different purposes and point of views of description. Having made that kind of distinction would have allowed for Finnis to perceive that, when Bentham, Austin, and Kelsen rejected non-descriptive approaches to law, their reasons of rejection could be extended to descriptive approaches from the point of view of the legislator. In their opinion, the point of view of those who obey and apply the existing law, without having any power to create or change it, is the only relevant perspective for a theory of law. Attacking the monopoly of this point of view would have been a much better strategy for Finnis than defending a particular kind of description as right and necessary.

John Finnis’s “Natural Law and Natural Rights”: Presentation and Critical Remarks


Whatever the merits you think Natural Law theories may have, you have to acknowledge at least two great achievements of the Australian philosopher John Finnis: having returned philosophical plausibility and dignity to the Natural Law tradition and having mixed Aristotle’s and Aquinas’s schemes of thought with some of the best legal philosophical insights from contemporary thinkers as Hart, Rawls, and Raz. Those are two reasons good enough for you to take a look at Finnis’s biggest work, “Natural Law and Natural Rights”.

The main thesis of the book is simple: Since law is functional to protect and realize some basic goods of human life, the only kind of descriptive theory of law which is satisfactory is one that show how much the existing law manages to reach that version in which those goods are best protected and realized. So the book is an attempt to proof Finnis’s thesis to be true and to expose various parts of a Natural Law theory as components of the descriptive approach to law best suited to fulfill that task.

I would like to do an introductory presentation of some issues in Finnis’s book and to make some critical remarks on those issues, which are: (1) Finnis’s conception of “description” of law; (2) Finnis’s argument for the basic goods; (3) the relation of Finnis’s Natural Law theory and democracy; and (4) Finnis’s conception of the authority of law. My considerations will be put in the following posts of this Blog.

Kelsen: Formalism, Efficacy, and Acceptability II

In the last post I developed an argument for the idea that Kelsen’s third requisite for the validity of norms, that is efficacy, would not conciliate with the intention to keep his pure theory of law completely formal, capable of admitting any content as valid law. My argument was that efficacy is a selective requisite, and since efficacy is a requisite for validity and since it is not the case that norms with every content can be efficacious, it is also not the case that norms with every content can be valid law. In this new post I would like to challenge my own argument. My strategy will be to distinguish between two senses of “formal”, only one of which is missing in the efficacy-requisite, and then distinguish the formality of the legal science and the formality of law, showing that the requisite of efficacy is incompatible with the latter, but not with the former.

First, I would define formality as “independence from content”. There are two senses for this “independence”: in a strong sense (as universal attainability), a requisite R is “formal” if R can be met by any content; in a weak sense (as lack of content-selection), R is “formal” if R admits of any content that can meet it in the first place. Compare a requisite with a door: a door would be formal in the first sense if everyone can reach it and pass through it (as with a door in the street), but it would be formal in the second sense if, although not everyone can reach it, everyone who can reach it can pass through it (as with a door in the top of a mountain). Well, efficacy, as criticized by my last post, would fail to be formal in the first sense, but would still be formal in the latter one. If a norm is to be efficacious, not every content can be valid law (efficacy is not universally attainable), but every content that can be efficacious can be valid law (efficacy is not content-selective). The post would have to show either that efficacy is not formal in the latter sense too or that the first sense is the only relevant one in Kelsen.

Second, I would distinguish between the formality of the legal science and the formality of law. Kelsen never said that law was formal. Law is not only full of content but also those who make the law are specially concerned with turning certain contents legally required instead of others. They are occupied with legal politics, not with legal science, which is why they do not have to refrain themselves from considerations about content, being actually those officially responsible for those considerations. The same is true about those who obey the law. If their obedience is not universal and unconditional, but selective and conditional, sometimes because of the content of the norms, it means that the point of view of the addressees, which is what makes law efficacious or not, is not formal. But it doesn't mean that the point of view of the legal scientist, who only finds that certain norm is efficacious or not, without being the one who turns it efficacious or not, is not formal either. Maybe the addressee is not prepared to obey to norms with any content (and that’s why not every norm can be efficacious), but the legal scientist is prepared to recognize as valid law norms with any content, as long as they are efficacious. Therefore, in the end of the day, his point of view would remain formal. By recognizing as valid law only norms that are efficacious, the legal scientist is not making a content-sensitive judgment himself, but only verifying a requisite which results from a content-sensitive judgment from the addressee. And that would maintain the core of Kelsen’s formalistic approach: to study descriptively a normative object, that is to study an object that is value-laden with a method which is value-free.

Kelsen: Formalism, Efficacy, and Acceptability

Kelsen establishes three requisites for a legal norm to be said to be valid. The first one is its belonging to an existing legal system, that is its legality. The second one is its containing of a sanction or connection to other norm which contains a sanction, that is its coercion. The third one is its being obeyed, that is its efficacy. Kelsen also states that his pure theory of law is formal, which means that it admits of any content to be law and its requisites are completely void of content.

In the case of the third requisite for the validity of legal norms, that is efficacy, we can challenge Kelsen’s belief that such requisite is indeed formal by reasoning as follows: a) if a requisite is to be formal, it must make no distinction among different possible contents; b) if the requisite of efficacy is to be formal, then efficacy must make no distinction among different possible contents of norms; c) if efficacy is to make no distinction among different possible contents of norms, then norms with every possible content must be able to be efficacious. But c) is not only an empirical statement (therefore, not much of a candidate for being formal), but it is also a glaringly false one. Therefore, efficacy is not a formal requisite.

We can go one step further and connect the issue of efficacy with that one of acceptability. It is obviously true that one of the many possible reasons for a norm to be inefficacious is the addressees’ rejection of its content, that is its lack of acceptability. If at least in some cases of inefficacy, the norm is inefficacious due to its unacceptability, then at least in some cases inefficacy will be an issue that depends on the content of the norm. Well, an issue depending on the content of the norm cannot, by definition, be a formal one. Therefore, efficacy is not a formal requisite.

This challenge could be met with the following response: If the efficacy of the norm were in any measure depending on the acceptance of its content, then it would not be a formal requisite. But in Kelsen’s theory, the efficacy of a norm is obtained by means of the sanction. Kelsen denies that a sanction alone can bring about efficacy for a norm of behavior, but, even when it does not, it creates a second kind of efficacy for a norm, that is the efficacy of its sanction. Then, even when the content of a norm of behavior were so unacceptable as to turn that norm inefficacious in the first sense (people not acting according to the norm commandment), the application of its sanction to the disobeying addressee would still turn it efficacious in that second sense (people who do not act according to the norm commandment being sanctioned).

However, it would only postpone the problem. The sanction would only be a solution for the problem of inefficacy if the sanction itself could never be inefficacious. But sanctions also have contents, and their contents can also be unacceptable. If at least in some cases the unacceptability of a norm entails its inefficacy, then at least in some cases sanctions that are unacceptable would also be inefficacious. It would happen not only in cases where sanctions are inhumane or disproportional, but also in cases where the sanction punishes the disobedience to an unacceptable norm of behavior. If the behavior commanded by the norm is unacceptable, then a sanction punishing the disobedience to such norm would also be unacceptable. If in some cases unacceptable norms of behavior can become inefficacious, then the unacceptable sanctions punishing those who disobey such norms cannot wait for a better fate. Otherwise we would be counting on totally cold-hearted sanction enforcers, capable of applying any sanction no matter how unacceptable it is, but, if we could appeal to fictional beings like that, we would have no reason not to appeal instead to perfectly obedient addressees, capable of obeying norms of behavior no matter how unacceptable they are. Fictions could have solved our problems many steps earlier. If, however, we are not fictionalizing, then the assumption that all sanction enforcers are totally cold-hearted is, to say the least, very unlikely to be true. Thus, sanctions would also depend on their efficacy, which would also in at least some cases depend on their content; therefore, efficacy, with or without sanction, would keep not being a formal requisite.

If that is right, we can not only come to the conclusion that efficacy cannot be a formal requisite, but we can invert that conclusion against Kelsen’s purposes and say that, introducing efficacy as a requisite for validity, Kelsen sheltered a material wolf covert with sheep’s formal clothing. For saying that every content can be valid law, but, in order to be valid law, that content must be efficacious is tantamount to saying that, as not every content can be efficacious, not every content can be valid law. And any theory that recognizes that is not a formalistic theory anymore.

First Message

This Blog is quite experimental. I've got another Blog, named "Filósofo Grego", written in Portuguese and dedicated to contemporary philosophy. The Blog is relatively well known, but in recent times I have been writing some material in English that, put in the context of the former Blog, was a little too different. So the idea of a Blog in English would be nothing but natural. Let's see if this attempt will succeed.