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)
(1) and (2) are petty objections, I admit. Though they may point at something more important: that we should be cautious while using the notion of ‘the picture of world’ and 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 remarks 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?)
(5) 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.
(6) 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.
(7) 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.
(8) 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; this is a broad topic to be discussd during the seminar).