!!"!# $ !!"#%   +  ,  $ &   ''((()   )&''*   + & -         &'()***&&*'    !"  #$%  -  +"(( & & (&'()***&&*' , -!+   %#& -  #+!.   #/0!* 10    #! 102 !!   3 4 !52  !6 ##!!  !# -6   +"((000& 6  &#( # (.  6   7. 2 8 ."  .(  /+9: / !60 - !; . *</- )' Jurisprudence, 2015 http://dx.doi.org/10.1080/20403313.2015.1100380 ARTICLE Downloaded by [University of Iowa Libraries] at 12:48 23 November 2015 Legality and Irony Alexander Somek* Modern legal positivism tries to preserve the normativity of law while abstaining from generally viewing positive laws as reasons for action. This effort is epitomised, in particular, in Raz’ idea that the substance of positive law can be imparted from the detached perspective of the ‘legal man’. From that perspective, it is not stated what one ought to do, all things considered, but merely what one ought to do from the legal point of view. The first part of this article shows that the problem that the introduction of the ‘legal man’ is supposed to solve originates from an assimilation of Kelsen’s legal positivism to ‘common sense’. The embrace of ‘common sense’, however, divests modern legal positivism of its critical edge. The second part of the article offers both a reductio ad absurdum of a conventionalist understanding of the ‘legal man’ and an analysis of legal knowledge that abstains from exploring its claim to validity. Legal knowledge of that type embraces bitter irony. Keywords: legality; legal man; legal positivism; detached attitude; legal norm REINING IN THE BAD MAN Modern legal positivism has distinguished itself from its predecessor by complementing the ‘bad man’s perspective’ on the law with the recognition that those who busy themselves with knowing the law rightly attribute normative significance to it. From their point of view, the meaning of the law is adequately captured in statements using the language of obligations and rights.1 * 1 Professor of Legal Philosophy, Institute for Legal Philosophy and Law and Religion, Vienna, Austria. See HLA Hart, The Concept of Law (2d edn, Clarendon Press 1994) 84. © 2015 Taylor & Francis Downloaded by [University of Iowa Libraries] at 12:48 23 November 2015 2 A. Somek The ‘bad man’s perspective’ was most clearly and prominently stated in Holmes’ ‘The Path of the Law’. The first paragraph of this work informs the reader that all that the legal profession is essentially up to is predicting what the courts will do in fact.2 Studying the law amounts, as far as that goes, to the sociology of legal behaviour.3 Similarly, what within the Anglo-American context passes as ‘old’ legal positivism views the law as commands that are effectively enforced by the sovereign.4 The force of the law is thereby reduced to some overpowering factual force. Kelsen’s legal theory became famous for avoiding the reduction of normativity to a matter of facts. The first edition of the Pure Theory of Law asserts boldly that the ‘ought’ of the law cannot be reduced to ‘a regularity of a certain pattern of human behaviour’.5 Kelsen claims, and he will be joined by Hart,6 that doing so would not adequately capture how the law appears to whoever obtains guidance from the legal system.7 What Kelsen did not explicate—and this task was to be left to Hart—is that the legal system, as a social fact that is amenable to ‘external’ description, necessarily involves the effectiveness of an ‘internal attitude’.8 Those adopt it who critically assess, and answer, questions of compliance. Indeed, an external observer might merely observe patterns of behaviour. But such a radical objectification would miss the efficacy of the internal point of view. In the case of ruleguided conduct, patterns of behaviour have to be read as manifestations of a critical reflective attitude on the part of those concerning themselves with following and applying rules.9 As Hart famously put it, for those adopting the internal point of view the violation of a rule is not ‘merely a basis for the prediction that a hostile reaction will follow but a reason for hostility.’10 Consequently, Hart insisted that the legal officials (or legislatures) do not merely obey the law. Mere obedience does not involve ‘any view’ with regard to how one’s See Oliver Wendell Holmes, ‘The Path of the Law’ (1997) 110 Harvard Law Review 991 [reprint]. See, for that matter, Felix S Cohen, ‘Transcendental Nonsense and the Functional Approach’ (1935) 35 Columbia Law Review 809. 4 See Hart (n 1) 83. 5 See Hans Kelsen, Introduction to the Problems of Legal Theory (B Litschewski Paulson and SL Paulson trs, Clarendon Press 1992) 32. 6 See Hart (n 1) 88–90. 7 See Kelsen, Introduction (n 5) 34, where Kelsen equates the ‘normative meaning of the law’ with ‘the law as it represents itself to the organs that make and apply the law and to the law-seeking public’. 8 A reviewer of this contribution reminded the author correctly of Finnis’ criticism of how Hart casually amalgamated a variety of attitudes into one internal point of view. See John Finnis, Natural Law and Natural Justice (2d edn, OUP 2011) 13–14. According to Hart, the internal attitude can range from a moral concern for the observance of legal rules to the mere wish to pass as one law-applying official among others. Finnis explains quite perceptively that Hart’s transition to the legal system from an assemblage of primary rules would not be conceivable if the rule-guided application of primary rules did not involve a serious concern with the integrity of law. Hence, Finnis insists on distinguishing between core and peripheral cases of the internal point of view and views an attitude of moral approbation as a characteristic of the first. 9 According to Marmor, Hart retained the reductivist approach to normativity by claiming that the normative point of view, which is manifest in internal statements, is itself amenable to empirical observation. This is Hart’s more sophisticated version of the external point of view from which normativity is rendered as a social fact that is manifest in certain attitudes and beliefs. See Andrei Marmor, Philosophy of Law (Princeton UP 2011) 53–55. 10 Hart (n 1) 90. 2 3 Jurisprudence 3 Downloaded by [University of Iowa Libraries] at 12:48 23 November 2015 behaviour actually fulfils a standard that is established within a group.11 Whoever merely obeys the law adopts an external point of view, for he or she is conceivably only interested in not triggering negative reactions by the state.12 In other words, the merely obedient comply in a manner that Kant called ‘external’. They behave legally, that is, their conduct can be described as de facto conforming with what is required by rules.13 Of ordinary people the law asks no more than to behave as ‘bad men’. The law does not give them an exclusionary reason to adopt the law as the reason for action.14 Detached Statements We owe an important amendment to this richer picture to Joseph Raz.15 Internal statements are made from the perspective of those accepting legal rules as valid, either directly or indirectly on the basis of accepting a rule of recognition. Stating what the law is, therefore, seems to lend expression to what you ought to do, morally considered. Legal statements state legal rules, which, in turn, purport to be reasons for action.16 But this, Raz reminds us with an eye to Kelsen,17 does not capture the intention with which normative statements are often made in legal discourse.18 Statements using ordinary normative vocabulary, such as ‘duty’ or ‘claim’, are not intended to state reasons for action but only what one would have to regard as such reasons from a certain point of view,19 namely, the viewpoint of the legal system or of ‘the legal man’.20 Such statements are not ‘committed’ for they do no commit the speaker to the view that he or she expresses.21 Rather, they are ‘detached’. They state what one has reason to do assuming, hypothetically, that the law has authority. Statements of this type are neither uninformative nor pointless if the content of the 11 12 13 14 15 16 17 18 19 20 21 See ibid 115. See ibid 89. Both the ‘bad man’ and an unaffected external observer are interested in the internal point of view only inasmuch as its existence makes the legal system predictable. A purely external observer, however, is not necessarily interested in observing predictability. See Immanuel Kant, Die Metaphysik der Sitten, Werkausgabe (W Weischedel ed, Frankfurt aM 1969) vol 8, 324 (A 15). See Joseph Raz, Between Authority and Interpretation: On the Theory of Law and Practical Reason (OUP 2008) 144. On the following, see Joseph Raz, The Concept of a Legal System: An Introduction to the Theory of a Legal System (2d edn, Clarendon Press 1980) 236; Practical Reason and Norms (2d edn, Princeton UP, 1990) 170–77. See Raz, Practical Reason and Norms (n 15) 171. On the Raz-Kelsen relation, see Stanley L Paulson, ‘A “Justified Normativity” Thesis in Hans Kelsen’s Pure Theory of Law? Rejoinders to Robert Alexy and Joseph Raz’ in M Klatt (ed) Institutionalized Reason (OUP 2011) 61–110, 67–68. For a very helpful elaboration of Raz’s view, see Luís Duarte d’Almeida, ‘Legal Statements and Normative Language’ (2011) 30 Law and Philosophy 167. Raz, Practical Reason and Norms (n 15) 175. Joseph Raz, The Authority of Law: Essays in Law and Morality (Clarendon Press 1979) 142. See also Practical Reason and Norms (n 15) 171: ‘The legal point of view (of system S), we could say, consists of the norms of S and any other reasons on which the subjects of S are required by the norms of S to act. The ideal law-abiding citizen is the man who acts from the legal point of view. He does not merely conform to law. He follows legal norms and legally recognizes norms as norms and accepts them also as exclusionary reasons for disregarding those conflicting reasons which they exclude.’ See Duarte d’Almeida (n 18) 182. Downloaded by [University of Iowa Libraries] at 12:48 23 November 2015 4 A. Somek assumption is part of what makes the statement true.22 The content of the assumption is that the law provides reasons for action.23 The statements do not report the views that some might harbour about what the law is on a certain question.24 Instead of describing other people’s normative beliefs they articulate what the law is from the perspective of the law itself,25 while leaving its authority open. They say, for example, ‘legally speaking, you have committed a crime’, without thereby suggesting that you have indeed engaged in blameworthy conduct and do deserve punishment. They simply say that the law views what you have done in that way. Modern legal positivists go to great pains to triangulate the illocutionary role of legal statements because it is the defining mark of their position to retain the normativity of law without conflating it with morality. Detached statements are ‘morally uncommitted’. They merely assume that the law is valid.26 They are tantamount to saying, ‘assuming that the Ptolemaic view of the world is correct it is true that the sun is about to set momentarily’; and if a group of people actually share this assumption they don’t state it and simply say that the sun is about to set. What is assumed, however, by the theory of normative statements, is an ‘isomorphic’ mapping of moral beliefs onto legal norms.27 The core idea is that the normative nature of law, as revealed from the internal perspective, is the same as that of morality and thus gives rise to the same type of reasons for action.28 Hypothetically, at any rate, the law says: ‘You ought to’ and if you don’t do as you ought to, the law will regard you as having ‘failed’ or as having behaved ‘badly’. It is submitted, with all due respect, that the basic isomorphism is mistaken. It is implausible for at least three reasons. The first is that Raz’ isomorphism rests on a remarkable disregard of how Kelsen presented the normativity of legal norms.29 The second concerns the fact that the elaboration of detached statements remains pragmatically stale. It ignores the essential performative element inherent in detaching oneself from ‘the legal man’. Enacting the legal man without identifying with what he believes in is tantamount to engaging in playacting in front of an 22 23 24 25 26 27 28 29 See ibid 185. According to Shapiro, committed statements have normative truth conditions. They are true if there is indeed a moral duty or a right. Whether this is the case depends on some moral justification. Detached statements, by contrast, have ‘exclusively’ descriptive truth conditions for they are true if there is someone from whose point of view something is required or prohibited. See Scott J Shapiro, Legality (Harvard UP 2011) 415. This, however suggests that detached statements report what someone believes to have reason to do. But this is not the case. They are about what appears to be right or wrong from a certain point of view. Duarte d’Alemeida (n 18) 186 contends that statements reporting what someone has reason to do on the basis of some doctrine or persuasion do not require adopting any point of view. I did not understand why and how d’Almeida reaches this conclusion, but I take due note of it in spite of my puzzlement. This is stressed in particular by Julie Dickinson, ‘Interpreting Normativity’ in T Endicott, J Getzler and E Peel (eds), Properties of Law: Essays in Honour of Jim Harris (OUP 2006) 22–42, 37–38. See Raz, The Concept of a Legal System (n 15) 236. See Joseph Raz, ‘The Purity of the Pure Theory’ in SL Paulson and BL Paulson (eds), Normativity and Norms: Critical Perspectives on Kelsenian Themes (Clarendon Press 1998) 237–52, 247–8. See Paulson (n 17) 68. See Raz, ‘The Purity of the Pure Theory’ (n 26) 245: ‘Legal statements are normative statements in the same sense and in the same way that moral statements are normative.’ This point has been already made by Paulson (n 17) 102. Jurisprudence 5 Downloaded by [University of Iowa Libraries] at 12:48 23 November 2015 audience that is composed of other players (and clients). Detached legal knowers are mutually engaged in behaving like lawyers. The third reason concerns, finally, the legality of law, not in the sense recently suggested by Shapiro,30 but in the sense that the law does not give us an exclusionary reason to regard the law as a reason for action. While the last two issues cannot be explored at greater depth here, it is important to note that if the law merely requires legality of behaviour then this will be manifest also in how the law is publicly known. The following sections will explore how Kelsen’s conception of the normativity of legal norms eluded contemporary analytical jurisprudence. Kelsen’s Objective Rendering of the Detached Attitude In the first edition of the Pure Theory of Law Kelsen famously introduces the Rechtssatz or the ‘reconstructed legal norm’.31 Contrary to Kelsen’s later usage,32 the Rechtssatz is not the sentence reporting what the law requires but the type of object that legal knowledge is prepared to accept as its proper object, namely, as a legal norm. This is consistent with the task of pure legal science. The object needs to be presented in a manner that preserves normativity while holding it distinct from morality. Oddly enough, Kelsen presents the pragmatic dimension of morality in imperative form:33 The Pure Theory of Law … completely sever[s] the concept of the legal norm from its source, the concept of the moral norm … The Pure Theory does this not by understanding the legal norm, like the moral norm, as an imperative—the usual approach of traditional theory—but by understanding the norm as a hypothetical judgment that expresses the specific linking of a conditioning material fact with a conditioning consequence. The presentation of ‘full-blooded’ moral normativity in ‘imperative’ form is no obstacle to understanding the contrast that Kelsen intends to draw. Actually, one merely needs to view the ‘imperative’ as a specification of a broader view of normative directives that are all about what people ‘ought to do’, ‘should do’ or ‘have reason to do’. If maternal practical authority provides backing for an imperative that she directs at her child then the imperative actually establishes what the child has reason to do. Morality, thus understood, is always about reasons for action. Kelsen submits that the normativity constructed by the Pure Theory for legal norms is radically different from morality. A legal norm links a legal condition and a consequence in a manner analogous to how laws of nature link cause and effect. The requisite link, however, is not causation but, ‘peripheral imputation’. Shapiro uses the concept of ‘legality’ in order to designate the ‘property of law being law’. This is a quite eccentric use of the term. See Shapiro (n 22) 7. 31 This is the translation chosen by Paulson and Paulson following Eugenio Bulygin: see Kelsen, Introduction (n 5) 23 fn 20. 32 See, for example, Hans Kelsen, Pure Theory of Law (M Knight tr, U of California Press 1967) 71. This is, however, the usage that has become widespread in the literature. On this, see Duarte D’Almeida (n 18) 175–6. 33 Kelsen, Introduction (n 5) 23. 30 Downloaded by [University of Iowa Libraries] at 12:48 23 November 2015 6 A. Somek If the legal condition is met, the legal consequence ought to—or may—follow. The normative consequence follows with the same relentless necessity with which happens what happens according to the laws of nature. In Kelsen’s view, such a ‘nomological’34 understanding is all there is to the normativity of law. Or, put differently, the nomological construction of legal norms renders the detached view in objective form, that is, in a manner that can be read off the legal norms themselves. The legal scientist detaches him or herself from morality by avoiding the language of duty and blame. This can be observed, indeed, for how those talk about the law whom Raz believes to adopt the detached perspective, namely ‘a solicitor advising a client or a writer discussing a point of law’.35 They elaborate on the law by exploring the normative significance and consequences of certain acts without adding expressions of moral approbation or disapprobation. Indeed, doing so might be regarded as unprofessional. For example, when I revealed to my accountant my plan to import a German sports car into Austria via St Petersburg in an effort to avoid Austrian taxes, he replied dryly that if I did that I would bring criminal responsibility upon myself. He did not speak about how the officials of the tax authorities would view the matter. He simply stated what the legal consequence of my conduct would be. A statement of legal consequences, even if not a prediction of what the courts will do in fact, is detached from passing moral judgment on the matter. The detachment is possible in virtue of casting the legal materials in the form of Kelsen’s reconstructed legal norm. As is well known, stating reasons for action is, according to Kelsen, the preserve of the ‘secondary legal norm’. It is formulated from the perspective of addressees.36 It is for this same reason of drawing the line vis-à-vis morality that Kelsen observes that the law ‘cannot be broken’. All talk of a ‘breach’ of law moralises its normativity. It suggests that doing what triggers legal sanctions is somehow ‘bad’. Against such an overdetermination of legal with moral meaning Kelsen contends:37 The unlawful act does not represent an interruption in the existence of the law (as the traditional view would have one believe), but exactly the opposite: it is by way of the unlawful act that the existence of the law proves itself, for this existence consists in the validity of the law, that is, in the ‘ought’ of the coercive act as the consequence of the unlawful act. From this follows that the more deviant behaviour one observes, the more law springs up from legal norms requiring the imposition of sanctions (a point to which we shall return below).38 See Paulson (n 17) 106–109. Raz, The Concept of a Legal System (n 15) 236. 36 See Kelsen, Introduction (n 5) 29–30. 37 ibid 28. 38 Kelsen’s ‘objectivistic’ view may be difficult to fathom for those unfamiliar with certain peculiarities of the civil law tradition. In the civil law tradition, it is quite common to assimilate the generation and transformation of legal claims to natural events. For example, it is assumed that within ‘the logical second’ that a chattle is damaged the claim to compensation comes into existence. 34 35 Jurisprudence 7 Admittedly, Kelsen’s nomothetical reading of the normativity of law presents the latter as a rather mechanical and lifeless contrivance. Without being driven by any reasonable purpose and without paying heed to whether what it reacts to is a social ill or not, the law responds to the condition of the legal norm by saying that a legal consequence ought to follow. Downloaded by [University of Iowa Libraries] at 12:48 23 November 2015 The Great Undoing Arguably, this view of the law offends common sense,39 not least because we take it for granted that the law is a purpose-driven endeavour and capable of being used as an instrument of rational social control. If this is indeed common sense, it proves that common sense does not as radically distinguish between law and morality as Kelsen suggested. Not by accident, Kelsen used to be highly suspicious of common sense, in particular if it translates into some purportedly ‘sociological’ perspective on the law.40 Kelsen’s project was about stripping the law of its moralistic or ideological veneer. Somewhat tragically, this achievement of modern positivism was undone in the course of its appropriation by analytical jurisprudence. Quite remarkably, this precipitated the assimilation of Kelsen’s legal positivism to exactly the mindset that Kelsen was up against in his Pure Theory. Hart took the first step and Raz was to follow suit. Without anything further, Hart reintroduced the action-guiding significance of legal norms by suggesting that this was what was ‘ordinarily thought of as the content of law’.41 Are the laws not designed to guide the conduct of ordinary citizens?42 The law speaks. Folk understand and comply. They know what it means to ‘breach’ the law.43 The ‘puzzled man’ looks into the law in order to find out what he ought to do.44 As a view of the legal world, it can hardly get more straightforward and nicer. This is the lure of the great undoing. The problem that it creates at its tail end is, of course, that it has to wrestle with reintroducing the distinction between moral and legal normativity. This explains why from the fog of the analytical appropriation of modern legal positivism must emerge the ‘legal man’, who is no other than the avatar of Kelsen’s Rechtssatz. What is sacrificed here is modern legal positivism’s anti-ideological stance. Hart gives us a morally idealised perspective on the law. The law is designed to guide the conduct of ordinary citizens.45 Isn’t that what the law is supposed to do? In the case of criminal law, Hart reproves Kelsen for obscuring the ‘specific character of law as a 39 40 41 42 43 44 45 This was famously conceded by James W Harris, ‘Kelsen’s Pallid Normativity’ (1996) 9 Ratio Iuris 95. See Hans Kelsen, Der soziologische und der juristische Staatsbegriff: Kritische Untersuchung des Verhältnisses von Staat und Recht (2d edn, JCB Mohr 1928). Hart (n 1) 36. See ibid 36. It does not come as a surprise that this form of legal positivism always has a hard time answering the question why it distinguishes between law and morality and that the distinction is notoriously difficult to draw. See ibid 39. See ibid 40. See ibid 36. Downloaded by [University of Iowa Libraries] at 12:48 23 November 2015 8 A. Somek means of social control’. He claims that Kelsen is mistaken in viewing substantive criminal law as directed not at citizens but at officials only.46 He appeals to common sense in order to expose as misguided Kelsen’s views because were Kelsen correct the intensional difference between fines and taxes could not be sustained.47 But all that Hart’s critical observations demonstrate is that Hart is not faithful to the spirit of modern legal positivism.48 First, it does not occur to him that he reintroduces a view of legal norms according to which these are, at any rate, from the internal perspective and as applied to cases, full-blown reasons for action. Second, the critique does not consider whether the Verfremdung inherent in Kelsen’s Rechtssatz is not of great heuristic value. Kelsen’s Rechtssatz allows us to drop various fictions dear to those believing in the value of law and to open our eyes to the widespread social fact that, traffic regulations aside, ordinary people do not take direct guidance from legal rules. Their legal knowledge is mostly indirect and gathered second-hand. It is obtained by following the mass media and seeking advice from legal experts. Ordinary people are indeed guided by what Kelsen calls ‘secondary norms’. What Hart presents us with, by contrast, are fairly idyllic idealisations of the legal system. It is quite audacious, in fact, to suggest that criminal codes are not indirectly absorbed by ordinary people on the basis of news concerning how the law is applied in fact. It amounts to a sugar-coating of social realities if a legal theory deflects attention from the fact that criminal norms confer powers to impose sanctions and that someone actually chooses to impose these. Kelsen’s normative take on criminal law invites attention to the fact that the criminal justice system would not work if it were not for people who do not at all mind being in the business of punishing and controlling others. Some get a kick out of kicking others around.49 If that were not the case the law would lack efficacy. That taxes are punitive and penalties excise taxes on behaviour strongly suggests that the valuable purpose of a legal norm lies in the eye of the beholder. Libertarians and some conservatives do indeed believe that taxes penalise individual initiative. At the very least, Kelsen’s theory of norms invites attention to these phenomena, whereas Hart is attuned to hiding them behind a curtain of commonsensical naïveté. Admittedly, the Hartian persuasion would press Kelsen hard on the point of what the Rechtssatz’s conditional ought is about if it is not, at the end of the day, about reasons for action. What else might there be normative? An answer to this question can be found in how Kelsen may have replied to Hart’s characterisation of his view that the legal norm is ‘directed’50 at the legal official. From the point of view of the Pure Theory ‘directed’ can only mean ‘p → Oq’. The normative See ibid 39. See ibid; see also ibid 720. HLA Hart, ‘Kelsen Visited’ (1963) 10 UCLA Law Review 709, 720. 48 For a first elaboration of this point, see Alexander Somek, ‘The Spirit of Legal Positivism’ (2011) 12 German Law Journal 729. 49 The point here is not to suggest that the legal force is either equivalent or superior to non-legal force. This question is of relevance to a different debate. See Hamish Stewart, ‘Incentives and the Rule of Law: An Intervention in the Kramer/Simmonds Debate’ (2006) 51 American Journal of Jurisprudence 149. 50 See Hart (n 1) 36. 46 47 Downloaded by [University of Iowa Libraries] at 12:48 23 November 2015 Jurisprudence 9 significance of the obligation to impose a sanction is spelled out in an obligation to impose a sanction if the sanction is not imposed (‘p → Oq & –q → Or’). Backup sanctions come to an end within finite legal systems. What remains is a legal power to impose a sanction. This reveals that when legal norms—Rechtssätze— arrive at their end any sanction is legally based upon a lack of immunity. This introduces, as Kelsen must have realised later,51 a gestalt switch. From the perspective of the ultimate power to impose sanctions (and a permission to enforce them) all other obligations to impose sanctions can also be rendered as powers to impose sanctions that are backed up by powers of the same type. One feels obliged to exercise the power if one has to reckon that one’s superior will likely exercise the requisite power of control. At the end of the day, behaving legally means occupying the space where one is immune from sanctions because no one has a legal power to impose them. This is a view of normativity that reflects quite accurately how ‘subjects’ approach the legal system. It is, more importantly, also a view that does not involve reasons for action. Legal powers create opportunities for the exercise of power and control,52 but they do not tell anyone what to do. If the Hartian persuasion were to find this resolution of the normativity riddle unconvincing one could still offer a reserve explanation. Kelsen’s Rechtssatz is a person-neutral and incomplete reason for action. It is person-neutral in that it does not depend on who the person is who has it; it is incomplete because it has to be combined with an extra-legal reason in order to give rise to a complete reason for action. If dispensing legal expertise is paying my bills and if I happen to be a judge, I have reason to impose the sanction. At any rate, in this vein modern legal positivism develops a perspective of the legal system by avoiding all unnecessary idealisations. Alas, this commitment to sobriety did not become part of analytical jurisprudence. The Revenant of the Moral Man We have spent much time on how analytical jurisprudence sidelined one of Kelsen’s most important insights. Most remarkably, it thereby ended up endorsing rather idyllic views concerning the social functions of law. What we now have to turn to is the abstractness inherent in the idea of detached legal statements. Once more, it will be seen that doubtful sociological intuitions translate into a rather doubtful understanding of law’s normativity. Prefacing one’s statements with ‘legally speaking’ is a social act.53 It determines the statement’s illocutionary force (‘I do not mean to say that you are a crook, but … ’). See Kelsen (n 31) 118. On Kelsen’s turn to empowerment, see Paulson (n 17) 83–85. See Shapiro (n 22) 64. 53 We have to discuss this point because Hartian legal positivists may well grant that nomothetical normativity renders the detached attitude in objective form. They may, however, still insist that, in order to be used consistently, it also has to be used subjectively, that is, with an attitude of detachment. Instead of saying to the defendant ‘you can now be sanctioned’ the detached statement needs to say ‘legally, you can now be sanctioned’. It is open to debate, of course, whether such a duplication of detachment is really necessary. But why should we not concede this point. 51 52 Downloaded by [University of Iowa Libraries] at 12:48 23 November 2015 10 A. Somek Yet, its social significance is even greater. Shared knowledge of the law is necessary for legal systems to come into existence. This is one of Hart’s most important insights. Legal systems are possible if valid laws are de facto generally identified. Detached statements suffice to sustain the normative quality of law. Even if everyone prefaces statements with ‘legally speaking’ the existence of the legal system is possible. The rule of recognition can be used as though it were accepted as a common standard as long as everyone tacitly argued from the perspective of this rule.54 Even if nobody participating in the legal system has a view, but only adopts a view, with regard to the validity of rules, the legal system does not suffer any harm.55 Legal systems can exist as long as most are concurrently playing at being the legal man. As George Herbert Mead memorably put it, playing is ‘the simplest form of being another to one’s self’.56 The question must be, however, how one can know how to play the game without being assured of who of the participants actually is a detached embodiment of the legal man. Raz’s idea suggests that the legal man follows the law with moral fervour.57 The legal man is the revenant of the moral man. But this poses two problems. The first is that the legal man is supposedly a legal positivist and, consequently, is drawing a sharp line between law and morality.58 Would such a line-drawing exercise make much sense if the law guided him morally? There is an inner resolve underpinning moral belief that may not be appropriately reflected in a more detached cognizance of legal rules. This blends into the second problem. Apparently, for the purpose of impersonating the legal man one would have to know what it means to be guided by rules morally. There is conceivably more than one answer to this question. Is the conclusion to be drawn that a man of the type of the legal man observes with moral zeal how legal rules are observed by others? But how is the moral zeal to play out? Does it have to manifest itself in legalistic pedantry?59 This is far from obvious. More plausibly, the legal man would behave more like Dworkin’s Hercules. He would perceive the law as embedded in positive community morality of which he has to provide the best account that he can possibly give.60 Consequently, the line between law and morality would no longer be clear. This is the major problem posed by viewing the legal man as the moral man. Assuming his point of view does not solve the problem of what it takes to approach a set of standards with a 54 55 56 57 58 59 60 It may be objected that the observations in the previous paragraphs read too much into acceptance. Acceptance merely means ‘acceptance as the relevant standard’ and not ‘acceptance as good’. But the point is precisely that ‘acceptance as a standard’ is what is simulated by participants in the system. They behave as though they accepted the rule of recognition as a standard for the identification of valid laws. Never mind that Raz stated that legal systems necessarily claim to have authority. Raz believed that to be the case because the law confronts us with normative language. But if this legal language is drawn out in detached statements, the law actually does not necessarily claim to have authority over us. George Herbert Mead, Mind, Self, & Society from the Standpoint of a Social Behaviorist (Chicago UP 1934) 151. See Raz, ‘The Purity of the Pure Theory’ (n 26) 246. See Harris (n 39) 112–13. See Judith Shklar, Legalism: Law, Morals, and Political Trials (Harvard UP 1986). See Ronald Dworkin, Taking Rights Seriously (Harvard UP 1978) 127. Downloaded by [University of Iowa Libraries] at 12:48 23 November 2015 Jurisprudence 11 moral attitude, even if only for the sake of making a legal argument. Rather, this is very much open to interpretive debate. The major problem is, however, that the legal man as the moral man undermines the distinction between law and morality. It requires turning knowing the law into a moral matter. At the very least it revokes the distinction between legal and moral obligation and leads to a performative contradiction within the counterfactual point of view (‘assuming that the law is valid … ’). If the task is to take the perspective of the legal man as the moral man, one cannot do so by detaching oneself from it. It would be immoral to simulate belief in law that ought to be believed in morally. For this reason, construing detachment qua emulation of morally serious engagement with the law turns out to be untenable. Detachment has to be accounted for in a different way. Apparently, legal statements have to embrace two forms of detachment. The first concerns the authority of law. The law is known only as if it provided reasons for action. The second concerns elaborate views of what it takes to know in a morally committed way. The statements also have to detach themselves from drawing out what that morally committed way of knowing the law really amounts to which they purport to emulate. Rather, the statements have to be based on an idea that is congenial to the reductionist thrust of legal positivism. It suggests that there has to be, as a social fact, something like the viewpoint of the law without which the legal system could have never come into existence. This viewpoint must be built into the law as a social phenomenon and, hence, conventionally given. Simply put, the legal man is a social construct that is of no one’s making in particular. Playacting Prefacing remarks with ‘legally speaking’ has a signalling function. It says, ‘Let it be known that I am now speaking from the perspective of the legal man’. In virtue of this signalling function, knowing the law is a variety of playacting. The participants in legal discourse do not carry out the real act—knowing the law—but demonstrate the performance of an action—the action of knowing the law.61 Arguably, this is what is going on within the detached perspective. Knowing is put on a stage. The enactments of knowing or recognising the law cannot take their cue from some real legal man providing a script. As we have seen, interpretative elaborations of morality are not only likely to be divisive, but also irrelevant as they are giving rise to a performative contradiction in their counterfactual use. Consequently, all that participants in the legal system can do is to ‘play along’ from the detached perspective. The legal man is normatively real only if enacted. It seems, therefore, that we can find out and know how to perform acts of legal knowing by attending to the conventions of saying and claiming ‘legally speaking, it is the case that … ’62 On playacting as the representation of an action, see Christoph Menke, Die Gegenwart der Tragödie: Versuch über Urteil und Spiel (Frankfurt aM 2005) 123. 62 Knowing the law, thus understood, is essentially theatrical. It puts action on the stage that does not happen off stage. The counterfactual nature of knowing the law is thereby doubled. Not only is it counterfactually assumed that the law reveals authority from the perspective of the legal man, it is 61 Downloaded by [University of Iowa Libraries] at 12:48 23 November 2015 12 A. Somek Playing along is, however, intellectually enslaving, in particular when conventions substantively claim to be based upon something that is itself not conventional.63 For example, it may be widely assumed that from the perspective of the legal man the constitution means what the framers of the constitution intended it to mean. There are grave doubts over whether this idea makes any sense.64 If, however, the legal knowers, whose knowledge accounts for the efficacious internal perspective of a constitutional system, collectively practice this false belief, it will give rise to a set of conventions for claiming what the constitution means (eg, study the common law of the eighteenth century). Consequently, whoever wants to speak legally has to enact common nonsense as if it were true. Indeed, since the conventional standards for elaborating the constitution are merely conventions if they falsely purport to be substantively right, no player can rely on his or her own judgment about what the standards really require,65 for this would disable her from playing the game. All players have to look to the left and to the right and try to do as all others do. This is an arduous task. Conventions are notoriously elusive. If you are supposed to follow conventions that are not clearly stated you need to tell yourself: ‘I’ll do as all others do.’ Once you have risen to the top of the pack you may more self-confidently claim: ‘This is what we do.’ These two statements exhaust the pragmatics of conventions. You are on top of a convention if you are playing along. Therefore, even after you have become a champion among those playing the legal man and are considered to be one of the boys, your boyhood would take serious damage if you repeatedly did not garner the support of your fellow boys. Lack of convergent behaviour is embarrassing (‘What? You looked into the private diaries of members of the constitutional convention? You are crazy!’). Not by accident, ducking is most in request among those playing by conventional rules. also counterfactually assumed that there are standards practiced that give each and every participant clues as to what it takes to impersonate that man. For the purpose of knowing the law we assume that ‘this’ is how you present a legal argument because all that matters from the internal perspective is to signal that you are assuming the perspective of the legal man. Both counterfactuals increase the distance from ‘distance towards the authority of law’ to ‘distance towards what is supposedly conventionally given’. 63 One may wonder how that can be the case. Conventions are arbitrary in the sense that any other could do the same job of providing a common standard for the sake of coordination or of providing a rule for a game. Nonetheless, rules can function as conventions in the sense of establishing a common standard even if people falsely believe the standard to be substantively correct. A rule that claims to have not merely a conventional foundation is nonetheless practised as a convention if people disregard the alleged foundation and follow the rule for the reason of having some common standard. On the related distinction between agreements by convention and agreements in conviction, see Roland Dworkin, Law’s Empire (Harvard UP 1986) 136, 145. 64 See Ronald Dworkin, A Matter of Principle (Harvard UP 1985) 34–57. The today widely established alternative—public meaning originalism—is indefensible, too, for it rests upon a single-mindedly conventional understanding of language. For an elementary exposition, see Lawrence B Solum, ‘We are All Originalists Now’ in Robert W Bennett and Lawrence B Solum, Constitutional Originalism: A Debate (Cornell UP 2011) 1–64, 43. Against the view that all linguistic meaning is conventional, see Donald Davidson, Inquiries into Truth and Interpretation (OUP 1982) 265–80. 65 An elaboration of a standard involves what Dworkin called the ‘interpretive attitude’. This attitude attributes to the standard a certain point and supposes that the practice of the standard is sensitive to how that point is best drawn out. See Dworkin, Law's Empire (n 63) 47. Downloaded by [University of Iowa Libraries] at 12:48 23 November 2015 Jurisprudence 13 Therefore, all ‘internal’ statements are infused with an external component. As a newbie you want to make sure that you do as all others do in order to pass as a member of the in-group. Even once you have advanced to being one of the boys you still have to be wary of being dismissed as a senile old fart. Hence, even if you speak legally from the internal perspective and say, artfully, ‘It is the law that … ’, you cannot but do so with a certain anxiety that your fellow boys may disagree because in their view you are not speaking from the viewpoint of the legal man. And since the business of dispensing detached statements is likely in one way or another essential to driving your Jaguar, what must matter most to you is your reputation as a legal expert. If a large part of the measure of recognition consists of your proven ability to predict or to influence court decisions you have to be able to design ‘passing theories’66 and to divine what courts will take to be the view of the legal man. The internal perspective invariably becomes invaded by the external. Instead of stating what the law is from the law’s very own perspective, the detached statements have to be guesses of the beliefs that others harbour on legal issues. At any rate, those who have to be successful before or within a court (as a member of a panel or a bench) have to be concerned about inviting ‘convergent’ behaviour on the part of those who have the power to say what this law is. This invasion of the internal perspective by the external must never amount to a total takeover. Otherwise the legal man would be replaced with the bad man. But it explains why legal statements are strangely undecided with regard to their illocutionary role. ‘If you import your German sports car to Austria via St Petersburg you’ll go to jail.’ Would this happen? Should it happen? The statement does not clarify whether it means either or both. Actually, in not saying what it does not say it steps outside of itself67 and tells you, with a cunning smile, ‘This is what we do.’ In spite of saying what the law is from the viewpoint of the legal man, the legal statement blinks. It celebrates a symbolic victory over both the intellectual embarrassment inherent in following conventional standards for speaking like the legal man and the reduction of the normativity of such standards to making out patterns of behaviour. Symbolic Victories Elusiveness of its own meaning is a consistent feature of the concept of irony.68 What irony denotes cannot be pinned down. Nevertheless, for the limited purpose of Such ‘theories’ are developed by speakers from situation to situation in order to account for the meaning of the utterances of others. See Donald Davidson, ‘A Nice Derangement of Epitaphs’ in E LePore (ed), Truth and Interpretation (Blackwell 1986) 433–46, 442. 67 The formulation alludes to Friedrich Schlegel’s famous characterisation of irony as ‘parabasis’. The latter designates an interception of the flow of events on a stage that is followed by mocking commentary. See Friedrich Schlegel, Philosophische Lehrjahre I (1796–1806), Kritische Werkausgabe (E Behler ed, Verlag Ferdinand Schöningh, 1963) vol 18, II 668, 85. On Schlegel, see Ernst Behler, Klassische Ironie–– Romantische Ironie––Tragische Ironie: Zum Ursprung dieser Begriffe (Wissenschaftliche Buchgesellschaft 1972) 80. 68 See Paul de Man, Aesthetic Ideology (A Warminski ed, U of Minnesota Press 1996) 164–5. 66 Downloaded by [University of Iowa Libraries] at 12:48 23 November 2015 14 A. Somek exploring the significance of detached legal statements it is possible to make some progress with a few elementary ideas. According to the classical understanding, an ironic statement insinuates the opposite of what it appears to say.69 More accurately stated, the statement is ironic by means of suggesting this reversal. Irony is performed, it is not denoted by some symbol. Only sentences trying to capture irony attempt to denote it. Whether irony is performatively successful depends on the context. The statement, ‘Tony Blair was a great social democrat’, is likely to be considered ironic if it is uttered by an old lefty among fellow old-fashioned lefties. The statement suggests, in such a context, that Blair was a disguised defector. Conceivably, if the same statement were made among Tories, the greatness of Blair would insinuate ‘not great for them, but great for us’. Of course, irony does not always work in this way. Proclaiming in front of Tories that David Cameron is a man who cares may be understood as praise or as mockery. In this case, the irony lies in leaving open whether the statement is ironic or not. Nonetheless, there is one thing that is accomplished by the speaker. The irony of irony allows her to rise, symbolically, above a slightly bewildered crowd. In both examples, irony involves a gesture of rising above someone or something else.70 By stating that Tony Blair was a great social democrat one attempts to expose elite consensus as a sham. One chooses irony in order to reveal the pervasiveness and oppressiveness of this consensus. Actually, the literalness of the statement indicates that critique can be safely voiced only in the guise of conformity. The perception of oppressiveness becomes thereby enhanced. Conformity is used as a signal of distance. Through affirmation irony disaffirms the affirming. It performs the disaffirmation in the act of affirming, thereby divesting any affirmation of its most straightforward means of symbolic expression. Irony makes it henceforth impossible to state simply that Blair was a great social democrat. Everyone would have a good laugh about this. ‘How are you?’ ‘I am great!’ That it does not rest on arguments is irony’s strength. It allows one to rise above falsehood while showing that one also needs to take cover. This is also true of saying that Cameron is a caring man. Ironising the irony one remains at a safe distance from one’s symbolic victory over a befuddled crowd. One does not directly invite retribution. The disaffirmation of the affirming becomes disaffirmed without restoring a determinate meaning. What could have ever been serious is transcended into play. It is no longer clear whether one has said anything at all. The meaning shifts back and forth like waves of water lightly gusted by wind.71 Nevertheless, the lack See, eg, on Quintillian, Claire Colebrook, Irony (Routledge 2004) 1–3. Rising above from below explains why irony is symbolically empowering only if it is intended. Involuntary irony is an embarrassment. This is true in particular, of tragic irony or the irony of fate. If what you have planned is undone by forces that are beyond your control then fate has put you into your place. 71 See, on this image, Hans-Georg Gadamer, Die Aktualität des Schönen: Kunst als Spiel, Symbol und Fest (Philipp Reclam Jun. 1979) 29. 69 70 Jurisprudence 15 Downloaded by [University of Iowa Libraries] at 12:48 23 November 2015 of voice—the inability to say something in the face of potential repercussions—is successfully put on a stage in conjunction with delivering the message that purportedly cannot be delivered. Both instances show that irony is, at least in certain cases, part of the deportment of the weak. Not by accident, irony is deeply woven into the cultures of societies with lingering authoritarian or totalitarian legacies. Irony is what the weak understand by strength. It is all they have at their disposal. Taming the Internal Perspective Detached legal statements are made with the implicit awareness that it must be left open whether there exists even a conventional normative standard for speaking from the perspective of the legal man. But this must not be said, for this would establish the impossibility of legal statements. Consequently, no participant can escape the predicament of having to look to the left and the right in order to obtain cues as to what it takes to speak legally. The only means available for rising above this form of practice is irony. It allows for symbolic victories in spite of pervasive disempowerment. In contrast to irony qua figure of speech, legal knowledge is ironic in virtue of various outlets for real parabasis,72 that is, the disparagement of front stage behaviour through backstage commentary73 that exposes the conventional existence of the viewpoint of the legal man as a counterfactual myth. Disaffirming commentary of this type concedes the relevance of the internal point of view while seeing it permanently displaced (‘Your argument is entirely correct, but I do not think that anyone will buy it’) and ranges from voicing frustration from below (‘These judges are all bonkers’) to the almost cynical juridical elaboration of law from above in spite of a patent lack of good reasons.74 Everywhere what might be the viewpoint of the legal man becomes invaded by the external perspective on what it takes to know the law successfully. ‘Speaking legally’ always requires speaking as others would (courts, boys, peers, professors). But this must not be said because of the pervasive expectation to sustain the (detached) normative mood and integrity of legal statements. Even the abstention from clarifying the merely predictive or normative import of legal statements is an ironic rebellion against the noble lie that conventions govern the outlook of the legal man. ‘May I import my car via St Petersburg?’ ‘You’ll end up in jail’. See above note 67. On the distinction of the formal and the informal precinct of legal knowledge, see Pierre Schlag, ‘Normativity and the Politics of Form’ (1991) 139 University of Pennsylvania Law Review 801, 882. On the distinction between the ‘front’ and the ‘back’ of public role performance, see Erving Goffman, The Presentation of Self in Everyday Life (Anchor Books 1959) 22–23. 74 The ‘heroic’ European Court of Justice is an example for that. See Alexander Somek, ‘The Emancipation of Legal Dissonance’ in H Koch et al (ed), Europe: The New Legal Realism (DJØF, 2010) 670–713. 72 73 Downloaded by [University of Iowa Libraries] at 12:48 23 November 2015 16 A. Somek This is how legal statements achieve a symbolic victory over the contextual constraints on their production. This is how they disaffirm the doubtful affirmation of the conventional viewpoint of the legal man. Such a disaffirmation is amazingly consistent with viewing the law legally (and not morally). Legality means that conformity to law does not require adopting the law as an exclusionary reason for action.75 The law permits what Hart would call mere obedience.76 Surprisingly, this attitude of mere obedience is carried over into how the law is known. If the normative standards for knowing the law remain unexplored their normative force is reshuffled with irony, for the latter sustains normativity in a form in which it no longer guides. The critical aspect of rules that transcends actual practice and allows for the identification of mistakes is then manifest in an ironic revocation of the authority of practice. But a mere ironic revocation does not change anything. It does not guide practice. It merely signals detachment and thereby, ironically, delivers what the detached attitude is supposed to accomplish. This divestment of normativity’s edge can be properly understood by examining what its proper investment is supposed to accomplish. Supposedly, the normative claims of law are revealed from the internal perspective of the legal man. The normative nature of speaking internally is manifest in the critical reflexive attitude with which norms are used in order to assess or to criticise behaviour. Since the internal perspective is, as we have seen, practised, the adequate standards for speaking legally must emerge for participants on the basis of ‘forming an explanatory hypothesis’ about the rules governing practice.77 Once such a hypothesis has been formulated, instances of legal arguments can be understood to be cases of professional conventions. For if anything is ‘internal’ about the internal perspective—in this case, applied to itself—then it is this synthesising of what one takes to be instances of rule-following into more explicit rules. Owing to such a synthesis, instances of behaviour can be recast as cases of rules. In Dworkinian parlance, such a synthesis requires an ‘interpretation’ of the requisite practice.78 One needs to suppose that the practice has a point and is responsive to its elaboration. Plainly speaking, the critical reflexive attitude is manifest in this interpretive attitude.79 Any interpretive elaboration of normative standards requires moving beyond viewing them as concatenations of convergent behaviour. Viewing x as a case of y (‘This is the type of originalist argument that is accepted here’) presupposes some explanation of the point of a convention.80 A rule is only properly conceived by viewing it from the point of that purpose which explains why it has to be a 75 76 77 78 79 80 Or, as Raz, Between Authority and Interpretation (n 14) 144, puts it: ‘The exclusionary reasons do not, of course, exclude relying on reasons for behaving in the same way as the directive requires.’ See Hart (n 1) 89. Charles S Peirce, Lectures on Pragmatism (E Walther ed, Meiner 1973) 226. In this case, one would arrive at an ‘abstract interpretation of legal practice as a whole’: Dworkin, Law’s Empire (n 63) 139. ibid 47. In Dworkinian parlance, this means that the meaning of conventionalism needs to be drawn out in terms of a ‘soft’ conventionalism that transcends the purview of conventionalism altogether. See ibid 124, 127. Downloaded by [University of Iowa Libraries] at 12:48 23 November 2015 Jurisprudence 17 normative standard. Following a rule from an internal perspective—even if this affects the conventions of the internal perspective itself—is possible only by moving beyond viewing the rule as a sequence of applications on which folks converge. If only convergence itself counted it would never become clear what it is that the folks converge on. The critical standard for the identification of cases of a rule lies beyond observations or convergent behaviour since the construction of rules from a standpoint that is above and beyond convergence is a creative process. Irony, by contrast, involves symbolic detachment from practice tout court. It does not infuse practice with a view of its point in order to identify mistakes. It is thoroughly negativistic. Since this negativism does not identify a point it merely seeks to expose what is non-conventional at the bottom of allegedly conventional conduct. CONCLUSION Legal positivists have claimed that statements of law retain normative import while detaching themselves from the law’s claim to authority. Such statements are made by assuming that the law provides reason for action. This view of detached legal statements is oblivious to how Kelsen attempted to construe the normativity of law without assimilating it to the reason-giving force of morality. The key elements of this project were the ‘reconstructed legal norm’ and the recalibration of legal systems from the vantage point of legal powers. Kelsen himself, however, ignored the fact that legal systems are de facto constituted and sustained from a normative point of view. In this context, the theory of detached legal statements retains great heuristic value, for it is entirely plausible to assume that legal systems can exist even if everyone participating in their reproduction is making statements of this type. All that is required are conventions governing their use. Raz’s view is difficult to reconcile with this fact and generally scarcely compatible with legal positivism. If detached legal statements indeed rested upon the emulation of morality they would explode the conventionalist picture, for everyone who intends to speak legally would have to arrive at some convincing conception of what it takes to observe the law, even if only hypothetically, from a moral point of view. Knowing the law would have to embrace a theory of morality, properly understood. It is questionable if it remains possible, under these auspices, to sustain the distinction between law and morality. Hence, detached legal statements have to detach themselves not only from the authority of law but also from any interpretive account of what it takes to know the law in a committed way (for example, in a manner that makes it look particularly appealing in light of the principle of treating like cases alike). Rather, the standards governing the knowledge of the legal man have to be conventional. They have to be inferred from the common practice of enacting the legal man. Yet, if one follows through with conventionalism one arrives at an invasion of the internal standpoint with an external perspective. The latter is attentive and Downloaded by [University of Iowa Libraries] at 12:48 23 November 2015 18 A. Somek deferential to what it takes to pass in the eyes of concrete others as a capable legal expert. Consequently, detached legal statements vacillate between a normative and a descriptive mode. They claim to know what the law is by suggesting what relevant concrete others would agree on de facto. Such wavering could only be avoided if participants arrived at normative conceptions of the legal man and invoked them in order to guide practice. The relevant interpretations would conceivably draw out the normativity inherent in speaking as a legal man. But interpretative accounts of what it takes to speak legally in the proper way are risky. They invite debate and dissent, which can be harmful to one’s standing. It must appear to be safer to muddle through by developing educated guesses as to how relevant members of the peer group might react to one’s own legal statements. Since convergence is then all that matters the critical and interpretive element of normativity can be sustained only in a form in which it no longer feeds back into practice. The manner of rising above instances of convergent behaviour shifts from confronting the practice with its ideal point to disaffirming the affirmation of its correctness through irony. In contrast to confronting the soundness of originalist arguments in constitutional interpretation head on one succumbs to using them front stage and belabour their idiocy backstage. The practice-transcending element of normativity is preserved in gestures that symbolically disaffirm that which socially affirms itself owing to each individual participant’s lack of power to change it. Thus understood, detached statements not only abstain from communicating the bindingness of law, they also do not communicate that they are genuine knowledge of the law. They speak about law while leaving open whether there is valid law and whether it is actually known. If these attitudes are actually manifested in the viewpoint of the legal system, socially understood, then the law exists by thoroughly detaching itself from itself. It becomes the embodiment of irony, that is, of the symbolic disaffirmation of its own existence. Owing to its commitment to moral sobriety, modern legal positivism should have every reason to embrace this conclusion.