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The paper for the next discussion can be found here.
Posted on 05/03/2010 at 19:27 in Entries and Papers in English, Evolution, Law, Methodology of science, Texts | RSS feed
Some remarks on Bartosz Brożek’s paper ‘Some Remarks on the Naturalization of Law’
(1) Petrażycki writes that he looks for the classical definition of law and thereby for the essence of law (though I am not sure if Petrażycki really uses the term ‘essence’ – no such term appears in the quotations). Bartosz interprets this declaration as attesting at the fact that Petrażycki assumes at least one important component of Aristotelian picture of the world – the thesis that the world consists of essences. This interpretaton may be criticized on two grounds. First, Petrazycki’s talk about ‘essences’ may be seen as just his facon de parler: Petrażycki’s ‘the essence of’ may be simply his (perhaps awkward) term for ‘the nature of”. Second, even if the term ‘essence’ is not just his facon de parler it does not seem justifiable to maintain that Petrażycki’s method presupposes “a very strong metaphysical view”. It is true that this term is absent in the practice of contemporary science; however, it is present (quite visibly) in the philosophical reflection on science (which teems with the analyses of the notion of natural kinds – the notion which seems to be a counterpart of the notion of essence).
(2) I think that Aristotle would be also interested in ‘causal connections’ (as understood by Petrażycki)
But (1) and (2) are petty objections, I admit. Though they may point at something more important: that we should be cautious in using the notion of ‘the picture of world’, e.g., in contrasting the Aristotelian picture – as purportedly teleological and foundational, with the contemporary picture (whatever it means) – as purportedly non-teleological and non-foundational.
(3) To put it bluntly: Petrażycki’s analysis of ‘the forms of inner experience’ seems to me (in the light of contemporary discussions about the nature of emotions) completely anachronistic. Likewise, his distinction between moral and legal emotions seems to me more than vague (e.g. gratitude seems to be an imperative-attributive emotion; does it therefore mean that gratitude is a legal emotion?). More generally, Petrażycki’s ontology of law is hard to grasp: is the law a set of mental states of concrete people, or a set of propositions which capture the content of these states, or a set of emotions? I fully share Bartosz’s critical remarks on Petrażycki’s philosophy of law. The difference between us is that Bartosz seems to understand Petrażycki’s view.
(4) I agree with Bartosz’s objection that I fail to explain satisfactorily why law is to be regarded as a supervenient entity, though I would not push my self-critique so far as to say that this view of law appears in my considerations deus ex machina. I try to argue that this category fits in neatly with Hart’s distinction between external and internal aspects of law (which I treat as a necessary starting point for tackling the ontological question about the law). My argumentation for this claim follows more or less like this: (a) According to Hart law has to aspects: internal and external, but is not reducible to either of them; in other words: law is some social entity X which manifests itself in internal and external aspect (or, as Hart would fain to say: internal and external aspects are the criteria for the existence of X); (b) What can be this X (Hart shows little interest in asnwering this question)?; (c) My answer is that this is a supervenient entity. Why? Because this category preserves two important distinctions made by Hart: that the law is a social phenomenon; that the law has the two aspects. What is missing in my considerations is the presentation of alternative ontologies and showing why they fail to preserve these distinctions or preserve them in a less elegant way than the category of a supervenient entity (but this is obvious, isn’t it?)
(4) Bartosz asks why I do not consider other ways of explaining the normativity of law than the way which consists in embedding it in morality. Bartosz mentions two such alternative ways: (a) law’s normativity is sui generis; (b) law’s normativity derives from rationality. The way (a) seems to lead to the naturalistic fallacy: if we assume that the law is a social fact (Bartosz, I think, would accept this assumption), and if we want to explain the law’s normativity, so to say, “from within” (this is the way in which I understand the term ‘law’s normativity is sui generis’), then we are bound to commit the naturalistic fallacy, that is, to try to infer ‘ought’ (an objective reason for action) from ‘is’ (law as a social fact). The way (b) seems to me a blind alley: any understanding of rationality which might be useful in explaining the normativity of law (for instance, Kantian rationality) is indistinguishable from morality.
(5) In the chapter devoted to political-philosophical conceptions (which are in fact some moral systems) I do not attempt to explain their normativity, or at least I do not attempt to do it in the first place. Above all, I reflect on whether these conceptions harmonise with the evolutionary view of human nature, or, put in another way, whether they are feasible given this view. Though, perhaps, this is also some way of explaining their normativity. I did not think deeply enough about it.
(6) I cannot but agree with Bartosz in that my considerations would gain much in clarity if they were put in the context of a broader analysis of other kinds of rules.
(7) I fully, agree with Bartosz’s directives 1 and 4 for the naturalization of law. As for the directives 2 and 3, I have an impression that they remain in some tension with the very enterprise of the naturalization of law (or, perhaps, they are meant by Bartosz to point at the limits of this naturalization?; if this the case, then these limits are set very strictly, though perhaps they should be set in this way; a broad topic to be discussd during the seminar).
A provocative and engaging paper from Bartosz which poses a number of interesting questions but, understandably given its length, leaves a number unanswered. I would like to add my humble comments in the form of questions for both Bartosz and Wojciech, starting with the author.
Petrażycki’s conception and science is surely more than a little dated but I do find some of his conclusions and findings appealing. Take, for example, the idea that “the legislator becomes a “super-human”. While “ordinary” people are led by emotions, the legislator applies the rules of pure instrumental rationality”. Findings in contemporary neuroscience would seem to suggest that this is in fact a fair depiction of what happens in the legal system: people are found ‘guilty’ of transgressions against norms which are formed according to instrumental rationality. Thus my question to Bartosz is twofold:
1/ If Petrazycki is right, does this mean we should seek to base our legal norms in a setting which takes emotions into account? If so, what is to be the source of this information?
2/ Norms are, ultimately, set and decided upon by groups of people. They may obviously have a supervenient nature but contained within their very conception are traces of their creators: human beings. As such, do legal philosophy and jurisprudence in particular require an archaeological survey to uncover where these normative remnants stem from?
My only real comment on your commentary concerns your particular conception of human nature according to evolutionary theory: especially the understanding that we are narrowly altruistic and imperfectly rational. My twofold question for you is thus:
1/ on what basis are we (albeit statistically)narrowly altruistic? Whilst considerable research has been conducted in primatology and ethology in determining altruistic behaviour in primates, relatively little has been done with humans – it seems, to me at least, that even evolutionary psychology is not in a position to make such claims.
2/I find your ontological conception fascinating and appealing but share Bartosz’s misgivings that you may underplay the normative character of norms – if they are reducible to moral norms, the question is which ones and, as with the question for Bartosz, does this require some kind of archaeological work to uncover them?
I look forward with relish to what promises to be a very engaging and fruitful discussion!
Aeddan: Thank you for your comments. Just short answers to your questions.
(1) The claim that we are narrowly altruistic can be substantiated in two main ways:
(a) Two sub-theories of evolutionary theory (the theory of inclusive fitness and the theory of reciprocal altruism) assert that we have been endowed by natural selection with tendencies to manifest kin altruism and reciprocal altruism. These theories are, according to most evolutionary biologists, ‘deductions’ from the theory of natural selection (which is a strong point in their favour).
(b) Kin altruism is well documented in many species of animals, and reciprocal altruism is well documented in our closest animal relatives (and in some other species). In other words: the aforementioned subtheories are supported by quite good empirical evidence.
(a) and (b) buttress the view that we are (only?)narrowly altruistic – we are not fully or genuinely altruistic because there are no plausible evolutionary models showing that natural selection may have built into our brains the tendency to ‘pure’ altruism.
(2) I think exactly the opposite: to underplay the normativity of legal norms is to look for it within the law itself. My argument is very simple: (Premise 1)Law’s normativity (defined in terms of objective reasons for action) lies in the sphere of ‘ought’; (Premise 2) Law is a social fact, i.e. lies in the sphere of ‘is’ (Bartosz agrees with it if I understand his stance well); (Conclusion)Law’s normativity must stem from ‘outside’ law (from morality) or there is no normativity of law. Of course, this reasoning leads to the question whence comes the normativity of morality (assuming that the normativity of morality is not fiction).
Hereby I give some comments to Bartosz’s paper.
The structure of the paper is promising. The author takes two naturalized approaches to fundamental questions of philosophy of law and points their weak points aiming at coming to a conclusions on naturalization of law.
I will not discuss Bartosz’s comments on Petrazycki and Wojciech’s conceptions in detail here. I will only mention that I share more of Bartosz’s objections, especially towards Wojciech’s perspective. However it does not mean I do not find it very attractive, in reverse, I find it very well directed.
However when I went to the most important part of the paper where Bartosz tries to come to conclusions I feel much more disappointed.
First of all, in my opinion, the directives are relatively weakly connected with the analysis carried in advance. This is serious objection because main axes of reasoning collapses.
As regards the content of the directives:
(Directive 1 ontological baggage) – sounds good, but it is tricky. What do you mean by ontological baggage of the assumptions underlying the scientific theory we use? If you really mean some recognized ideas somehow nested in the theory the directive is trivial. If you mean part of the theory that one arbitrary do not recognize the directive it is just false.
(Directive 2 Antifoudationism) – it is trivial. Until when we do not have a really good and undoubted answers we always shall be open minded (trivial, however worth to be reminded from time to time
(Directive 3 Jurisprudence is philosophy) – this is absolutely false. If you really believe that philosophy is something “ontologically” different then other sciences – are approach to the philosophy is totally different. Philosophy is a science but the difference is quality of assumptions (objects) we use reasoning. The philosophical “macro” assumptions (objects) are weaker because of their complexity is much higher. So the relation between science and philosophy is rather general – specific. When we have solid scientific facts which are more and more general they can directly solve many philosophical questions. In fact that is happening.
(Directive 3 – ontological horizon) – once again this is trivial idea. It is difficult for me to imagine that one may think different – when we recognize that oldest legal norms (legal norm that are pillars of any normativity) they are moral facts in fact. Whether they are legal or moral that is totally technical question.
The additional and classical objection from my perspective is also the following: the concept of Petrazycki representations as law are similar to Hobbes ideas, or Kantian concepts. All of these ideas are anachronic, however they are the base for modern cognitive concept of schemas (or frames). The earlier ideas are ideas only, the concept of schemas is computable developed and is a good frame for further computer implementation (human behavior simulation). This visible link between the Pertazycki concept and modern cognitive psychology is not visible in this paper and this is a reason why I suffer. However this idea I will try to develop in the next paper – normative schemas = norms, rules.
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