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1 Hart’s Meta-Theory Takes a Radically Anti-essentialist Stance

1 Hart’s Meta-Theory Takes a Radically Anti-essentialist Stance

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64



P. Chiassoni



knows very well (Schauer 2013, 237–246)—Hart’s meta-theory of law can very

reasonably be characterized as containing an outright rejection of essentialism: as

claiming that looking for necessary or essential properties, at least so far as the law

is concerned, is wrong; it is a pointless waste of time capable, furthermore, of

bringing about misleading and dangerous outputs.

In order to show how far Hart seems to be from endorsing the idea of a

jurisprudence of essences, it is sufficient to consider briefly three principles that, in

my view, characterize his meta-philosophy of law. These are the Clarification

Principle, the Principle of Philosophical Analysis, and the Mystery-Avoidance

Principle (Chiassoni 2013, 248–257).

The Clarification Principle claims that the proper purpose of legal theory should

be the clarification or elucidation («explanatory elucidation») of the structure of

legal phenomena and the general framework of legal thought (Hart 1961, vi). By

pursuing such a purpose, Hart expects two basic, interconnected, advantages: first,

the promotion of «clear thought» in the province of law (Hart 1983, 12); second, the

«furthering» of our «understanding» of the social phenomenon of law, in its relations to rules, coercion, and morality. Now we must pause to notice that nowhere—

while stating the purpose and considering the advantages of legal theory, as he sees

it—Hart presents legal theory as having to do with casting light upon the necessary,

essential properties of the law in any possible world. On the contrary, Hart seems to

cherish the pursuit of a more down-to-earth ambition. Following Kelsen, he thinks

that we should aim at understanding what is (“our”) law, and, in order to do so, we

must understand, to begin with, «the distinctive structure of municipal legal systems» and, in the light thereof, the structure of international law.

The Principle of Philosophical Analysis claims that clarification of the general

framework of legal thought is to be carried out by proper philosophical analysis of

legal language and legal concepts. To what seems to be a fair reconstruction, Hart

endorses the view according to which the philosophical analysis of legal language

and legal concepts, in order to be theoretically fruitful, must be performed by

employing tools of three different sorts: (1) linguistic tools, that include an ordinary

language philosophy theory of natural languages, a theory of definition (geared on

definitional pluralism, the notion of explanatory definition, and the reject of the

definitional fallacy), and a theory of concepts; (2) hermeneutic tools, that include

the well-known distinctions between the internal and external point of view, participant and observer, and the technique of “putting oneself in somebody else’s

shoes”; (3) a set of proper principles of philosophical inquiry, that include the

principle of methodical distrust, the principle of prudent reductionism, and the

(Strawsonian) principles of descriptive and constructive metaphysics, which require

therapeutic analysis (aiming at puzzle-solving), systematic analysis (aiming at the

building up of clearer and more precise conceptual apparatuses), and mental

experiments (or experiments in “philosophical imagination”) (Chiassoni 2013, §II).

In my view, an anti-essentialist stance is ubiquitously at work in the several sets

of tools that characterize Hart’s philosophical analysis. Hart’s theory of concepts,

however, seems to provide direct evidence to the point. Such a conclusion seems in

fact to be supported by the six backbone ideas that, in my view, make it up.



Supporting The Force of Law …



65



One, concepts are a matter either of convention, or of stipulation. Conventional

concepts depend on, and mirror, linguistic usages. Contrariwise, stipulated concepts

are speculative entities: they are always the outputs of speculation and conscious

endorsement and commitment.

Two, outside of the realm of the common uses of words (whether by ordinary

speakers or by experts), there are no true concepts. Indeed, against the jurists of

Begriffsjurisprudenz (the ‘Jurisprudence of Concepts’), Hart claims that (legal)

concepts are not to be found in some rarefied dimension of «real essences» (Hart

1970, 265–277).

Three, conventional concepts are typically riddled with vagueness. Furthermore,

as the theory of natural languages suggests, they may be puzzling, obscure, confused, and «many-sided» (Hart 1958, 79). In order to overcome such inconveniencies, stipulated concepts must be worked out to any rational purpose and

pursuit.

Four, stipulated concepts are neither true nor false. Stipulations are to be

assessed, instead, in terms of whether they are, or not, pragmatically justified. Their

value, if any, depends on two factors: (i) on the goal(s) they are meant to serve, and,

accordingly, (ii) on whether, and to what extent, they are suitable to those goals.

Five, concepts in legal theory should be stipulated concepts informed by an

overall explanatory goal; they should, accordingly, be weak stipulations. They

should not to depart altogether from ordinary usages of words and phrases, but

provide improved, puzzle-solving, elucidations of conventional usages and concepts (by «making explicit», «examining», and inspecting the «credentials» of the

criteria or «principles that have in fact guided the existing usage»1). For instance,

the concept of law, to be in line with the foregoing tenets of Hartian conceptual

analysis, must be something, at the same time, «consistent with usage», and useful

to «advance or clarify either theoretical inquiries or moral deliberation» (Hart 1961,

214, 207 ff.).

Six, if the concept of law is a stipulated concept, one that draws its justification

from its adequacy to some previously stipulated purpose, any talk of necessary or

essential properties of the law must reflect the theorist’s own evaluation about

which properties of the social phenomenon of law are to be considered necessary,

or essential, and why. Necessity, essentiality, is, so to speak, in the eye of the

beholder.2



See Hart (1961, 213f, 215, 1967, 90–91), where ‘stipulative’, ‘pragmatic’ or ‘constructive’ are

contrasted to definitions of ‘law’ and ‘legal system’ aiming at «the characterization or elucidation

of […] actual usage»; Hart (1970, 269–271).

2

Hart (1983, 6): «The methods of linguistic philosophy […] are […] silent about different points of

view which might endow one feature rather than another of legal phenomena with significance»;

later on, Hart claims that, in order to cope properly with jurisprudential controversies, it is necessary «first, the identification of the latent conflicting points of view which led to the choice or

formation of divergent concepts, and secondly, reasoned argument directed to establishing the

merits of conflicting theories, divergent concepts or rules, or to showing how these could be made

compatible by some suitable restriction of their scope» (italics added, ndr).

1



66



P. Chiassoni



Notice that Hart’s theory of concepts, as I have recounted it now, has a double

edge. On the one hand, it is evidence of Hart’s anti-essentialist stance. On the other

hand, it has a direct anti-essentialist import. In the light of it, essentialist

jurisprudence’s talk in terms of necessary or essential properties, of necessary truth

about law, appear to rest on an altogether mistaken and misleading theory of

concepts. The theory is mistaken for it overlooks the stipulated nature of theoretical

concepts; the theory is misleading, for it suggests legal theory to be an enterprise

that can discover what, in fact, cannot be the simple output of a discovery.

The third principle of Hart’s meta-philosophy of law to be considered for the

present purpose is, as I said, the Mystery-Avoiding Principle. According to it, while

doing jurisprudence, one should be careful in avoiding any resort to mysterious,

metaphysically suspect, expressions. This principle provides direct evidence of

Hart’s rejection of essentialist jurisprudence. Indeed Hart makes the following points:

1. Due mostly to the influence of natural law theory, jurisprudence is sometimes

thought of as an investigation about the «nature», or the «essence», of law. This

assumes that the law does in fact have one true «nature», one true «essence»,

which adequate inquiries will succeed in unveiling.

2. These essentialist conceptions of jurisprudence, however, are metaphysically

suspect. They misleadingly surround law with a needless halo of mystery, which

shows up in the very way in which such driving questions as ‘What is the nature

of law?’ or ‘What is the essence of law?’ are phrased. However, Hart claims,

there is no such thing as the one true nature, or the one true essence, of law. All

we have is a general social phenomenon that we call “law” (‘derecho’, ‘diritto’,

‘droit’, ‘Recht’).

3. As a consequence, any serious philosophical inquiry into the social phenomenon

of law is to be conceived simply as purporting to answer plainer (and metaphysically safer) questions like ‘What is law?’ or ‘What is the concept of law?’

(These questions, of course, are in turn to be understood against the background

of Hart’s clarification and philosophical analysis principles, discussed above). If

we do nonetheless go on using such traditional phrases as “the nature of law” or

“the essence of law”, we should at least be sure to surround them with a cordon

sanitaire of scare quotes (see Hart 1961, 155, 1967, 89–91).



2.2



Hart’s Legal Theory Does not Belittle the Role

of Coercion in the Social Phenomenon of Law



Coming to the second strand of my argument against the pedigree claim of

essentialist jurisprudence, it may be argued that Hart’s theory of law—as soon as

one looks at it without the distorting glasses of essentialism—is a sample of a

theory that pretends to explain law also in terms of a structure of primary and

secondary rule, without, at the same time, explaining away the element of coercion.

Hart was not fond of theoretical exaggerations: indeed, his criticism to Austin and



Supporting The Force of Law …



67



Kelsen looks inspired by the goal of neutralizing theories of law that provide a

misleading picture of law because of their unjustified, dogmatic, irrational, pretence

of reducing the complex social phenomenon of law, where rules, coercion and

morality combine in multifarious ways, just to one basic ingredient. Accordingly,

The Concept of Law can be safely read as meaning to redress the unbalance in

favour of coercion, without replacing it with another unbalance, this time in favour

of secondary rules. Fred, to be sure, is well aware of that. I think, however, that it is

worthwhile adding a further line of argument. This line has to do with Hart’s theory

about what he calls the “minimum content of natural law” in positive law.3

As it is well-known, this part of Hart’s legal theory has its starting point in the

following problem: “Can positive law have any content whatsoever?”

Natural lawyers understand that question as a moral, normative question: “As a

matter of morality, is it permissible for positive legal orders to have any content

whatsoever?” They ask, accordingly, whether positive law is allowed to, can legitimately, by way of moral correctness, have any content whatsoever. And, as it is

well-known, they provide a negative answer: positive law is not allowed, morally

speaking, to have any content whatsoever. On the contrary, if a given positive legal

order happens to have certain morally vicious contents, that legal order is not a legal

order in a proper, central, sense, or, to take a more radical view, it is no legal order at all.

Contrariwise, Hans Kelsen—the champion of legal positivism—understands that

question as an empirical question: “As a matter of fact, is it possible for positive

legal orders to have any content whatsoever?” Pointing to what has happened in the

course of human history, he provides a positive answer. As a matter of fact—Kelsen

claims—positive legal orders can, and do, have whatever content. As a matter of

fact, positive legal orders can settle the unavoidable, fatal, un-relentless conflicts of

interests among the several components of a society in any way that the ruling side,

from time to time, may consider proper. In fact, Kelsen remarks, positive legal

orders can settle such conflicts in ways that, so to speak, try to strike a balance,

make some sort of compromise, between the interests of the several parties

involved; this is a typical feature of democratic legal orders. But they can also settle

conflicts of interests in ways that, uncompromisingly, sanction the full victory of

one side over the others, as it often happens under autocratic governments. In the

latter case, Kelsen suggests, the arrangement can be, as a matter of fact, less stable

than a compromising arrangement: more liable to social unrest and upheaval.

Overlooking this real-politik side of Kelsen’s view, Hart, as we all know, purports to provide a different answer from both the natural lawyers, on one side, and

Kelsen, on the other side. On the one hand, Hart refuses to understand the question

“Can positive law have any content whatsoever?” as natural lawyers do, that is to

say, as a moral question belonging to normative ethics. On the other hand, Hart

wants to resist to Kelsen’s plain “yes” to that question, if understood as an empirical

question (which by the way, as we have seen, is not “plain” at all—but this is



3



Another line of argument can be drawn from Hart’s theory of international law (Hart 1961, ch.

X); I will not consider it here.



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