REPLIES TO CRITICS
I would like to thank all the three commentators for their insightful remarks. Let me reply to you in detail.
Replies to Wojtek:
Ad. (1) I believe that Petrażycki’s term ‘essence’ should be interpreted in the Aristotelian sense of the word. There are two arguments that back this interpretation. First, if someone utilizes the classical conception of definition (per genus et differentiam) and treats definitions as real definitions (as opposed to nominal definition) then he is forced to accept that there exist essences in the world. And Petrażycki explicitly states that his aim is to formulate a real definition of law. Second, Petrażycki seeks a science that would be fundamental to law (he claims it is psychology). This is also Aristotelian, although such ideas can be found in other philosophical doctrines, even in the conceptions of the Vienna Circle.
However, I do not claim that Petrażycki embraces Aritotelian metaphysics in toto. He rather (perhaps unconsciously) subscribes to several methodological directives of Aristotle which presuppose certain very general metaphysical theses. The point is that those theses despite being general make the project of providing a naturalistic definition of law untenable.
As to the contemporary incarnation of essentialism, i.e. the notion of natural kinds, I disagree that it has anything to do with science (as Wojtek assumes when telling us that the idea is present “in the philosophical reflection on science”). It i rather an idea that originated in the discussions surrounding such problems as theory of meaning, counterparts, identity, possible worlds etc. It is thus an attempt to explain the working of natural language and some issues in what may be called folk psychology. I belive that contemporary psychology may have something interesting to say about natural kinds. But as for metaphysics, one that is inspired by science, it is unimportant.
Ad. (2) The notion of worldviews is undoubtedly a very general and vague one. I define it as a set of very general theses that form a particular picture of the world. Thus, if I speak of the Aristotelian worldview, I have in mind some fundamental principles Aristotle embraced (like the ideas of logos, the intelligibility of the world, the ideas of substances and accidents, the conception of essences, or teleology), and not the details of the Stagiryte’s doctrines. If those theses may be rejected (like the idea of substances) then the definitions of law formed within such worldviews are likewise to be rejected. Now, as we speak of rejection of certain philosophical conceptions and not their approval, the more general the rejected theses are the better (the stronger our argument is).
Ad (3) If my reading is sound, Petrażycki defines ‘legal phenomenon’ as a complex mental state, one that includes the required representations and emotions they cause. It is therefore a mistake to speak of Petrażyki’s definition as identifying law as a kind of emotions.
Ad (4) First, I believe Wojtek does not distinguish between Hart’s definition of law and his definition of a social rule of behaviour. The definition (or better, the description) which utilizes the notions of the external and internal point of views is Hart’s account of social rules (I believe all social rules, including language rules, morality, rationality etc.; Hart draws here on the work of Wittgenstein). Law, in turn, is defined as a set of social rules among which one can distinguish between primary and secondary rules. This interpretational controversy (between Wojtek and me) is crucial. I claim that rules (any rules) have both aspects, internal and external. Wojtek, as I understand, limits this external/internal criterion to legal rules (both of primitive law and contemporary law). By doing so, he decides not to speak of the ontology of other kinds of rules and loses what I deem the ontological horizon.
Second, Wojtek’s reduction of law’s normativity to morality is lacking for various reasons: (a) he reduces some phenomenon A to a phenomenon B, but he falls short of explaining B. Thus, the reduction is unsuccessful; (b) he claims that treating law’s normaivity as sui generis would lead to the naturalistic fallacy. Why? If one does not reduce legal norms to mental states or social interactions, but instead speaks of them as emergent or supervenient entities (with which I agree), one is safeguarded from the fallacy objection. If in the process of emergence some new features, non-reducible to the features of the subvenient entities, appear, why shouldn’t one count normativity (normative force) among them? Moreover, if treating law as a social fact makes one to reject the idea of sui generis normativity of law, then what is morality if it has some normative force. It follows that morality is not a social fact! Why?
(c) Wojtek says one cannot reduce the normativity of law to the normativity of the rules of rationality, claiming that the only option would be to use Kantian practical rationality which is, effectively, a kind of morality. I do not understand this. Why instrumental rationality wouldn’t do? Or some kind of critical rationalism along the lines of Popper’s conceptions? Moreover, if we deem legal rules normative if they constitute objective reasons for action, one should ask how to understand the term ‘reason’? If one wishes to avoid postulating the existence of some sui generis entities (reasons), one should adopt a view which says that reasons are exactly those rules of behaviour which a theory of rationality dictates us to treat as reasons.
Ad (7) I do not see how the directives 2 and 3 limit the enterprise of naturalizing law. I believe they only say how to naturalize law in a methodologically responsible way. Other naturalization projects (ones that do not fulfill these directives) would simply commit a serious fallacy.
Replies to Aeddan
Ad (1). Petrażycki is wrong, mainly because he utilizes a bad methodology and uses an anachronistic psychology. A different question is, whether one should take emotions into account while defining law. My standpoint is that there may be many different definitions of law. Some of them can take emotions into account, others may disregard emotions. The question is what are the criteria of comparing such definitions. This is a topic for a longer discussion, but I believe that among the criteria there should be the methodological ones. There would also be the criterion of cognitive needs: different definitions may fulfill different cognitive needs. Of course, the presupposition here is that there exists no essence of law.
Ad. (2) An archeological survey is not necessary, but may be helpful for an interesting case study. Basically, what we need is to uncover mechanisms of the emergence of social (including legal) rules. Interesting insights for this are provided by evolutionary theory and neuroscience. However, to paraphrase the famous Kantian dictate, the biological data without philosophy is blind, while philosophy without biological data is empty.
Replies to Łukasz
Ad. (1) Ontological baggage are any philosophical theses which are presupposed either by the method one uses (as in the case of Petrażycki) or by the experimental setting/interpretational scheme one utilizes. I speak of the unrecognized ontological baggage – this is dangerous, as one does not realize that his conclusions are in part determined by the assumptions one unconsciously assumes. This is illustrated by the case of Petrażyki.
Ad. (2) The postulate of nonfoundationism may be trivial, but if so most of the philosophers occupied with defining law missed its triviality (cf. Petrażycki).
Ad. (3) Philosophy is not ‘ontologically’ different than other sciences. However, philosophy is the only science that is capable of adopting a ‘meta-perspective’ (even in its own case). Once this meta-perspective is assumed, one has to do with philosophy (this is an arbitrary definition, but I would defend it). Thus, any reflection that adopts this meta-perspective at least partially, should be considered philosophy. Now, if one wishes to naturalize law one needs to adapt this meta-perspective. Otherwise, if the definition (theory) of law was to follow “logically” from the premises provided by some other science (AI, psychology, neuroscience), one would miss the “ontological baggage” that comes with those premises. This was missed by Petrażycki.
Ad. (4) The problem of the ontological horizon may seem trivial, but I believe that Wojtek’s case shows that if the horizon is not set properly, some solutions appear ‘ex machina’ or seem ad hoc.
I believe moreover that all the four directives ‘result’ from my case studies (as I tried to indicate above).
Ad. (5) To say that legal norms are schemas (frames) or parts thereof would not stand philosophical criticism. This would be a totally unintuitive – or, perhaps better, a fully stipulative – definition of rules. This would not be unprecedented, but of no use anyway.