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.