Ratio Juris. Vol. 20 No. 1 March 2007 (136–143) THE NOTEBOOK CORNER I am happy to have in this edition of the “Notebook Corner” a review that Prof. Jan Woleński has devoted to the first three volumes of A Treatise of Legal Philosophy and General Jurisprudence. A second review by Jan Woleński, discussing Volumes 4 and 5, will be appearing in a later edition of the “Notebook Corner,” alongside a review of Volume 5 by Jaap Hage. E.P. Apropos of A Treatise of Legal Philosophy and General Jurisprudence: Volumes 1–3 JAN WOLEŃSKI A Treatise of Legal Philosophy and General Jurisprudence is an ambitious project. It is divided into two parts: systematic (or theoretical) and historical; each consists of five volumes. This review concerns volumes 1–31 of the systematic part (the two remaining volumes will be reviewed in the next issue of Ratio Juris; the historical volumes have not yet been published). Thus, the Treatise is intended to cover the whole of legal philosophy and general jurisprudence. It must be stressed that the series does not constitute a handbook (today, it is an open season for handbooks, sometimes consisting of many volumes; for example, The Handbook of Philosophical Logic is planned to have 18 volumes), aimed at students, but an advanced treatment of theoretical jurisprudence and its history. The general strategy adopted by the editors and the advisory board consisted in giving free vein to the authors as to the mode of presentation. They could present their own views, use the standard material, or combine the two approaches. All the authors chose the third option, although the proportion between combining personal opinions and what might be considered as standard material differs. Independently of the forthcoming historical volumes, the theoreti1 That is, respectively, Pattaro 2005, Rottleuthner 2005, and Shiner 2005. © 2007 The Author. Journal compilation © 2007 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden 02148, USA. A Treatise of Legal Philosophy and General Jurisprudence 137 cal part of the Treatise also contains a considerable amount of information about past legal philosophy and its contemporary situation. One should always bear in mind that there are two distinct, although related, sources of thinking about law. One comes from philosophy, but the second from jurisprudence and legal practice. Almost all the great philosophers, such as Socrates, Plato, Aristotle, the Stoics, St. Augustine, Thomas Aquinas, Leibniz, Kant, or Hegel essentially contributed to legal philosophy; among philosophical giants of the past (at least until the nineteenth century), only Descartes and Berkeley were completely indifferent to legal-philosophical matters. On the other hand, many philosophical issues concerning law came from jurisprudence and legal practice. Both gave rise to an enormous number of concepts to be philosophically clarified, such as legal validity, responsibility, penalty, justice, mens rea, obligation, contract, right, duty, bona fide, and so on. Application as well as analysis of such notions inevitably leads to such questions as the mutual relation of law and morality, or the nature of legal thinking and various arguments employed by jurists. In addition, perhaps one more point should be stressed at the beginning of any report on legal philosophy and jurisprudence. Since the seventeenth century, departments of legal philosophy have usually been located in law faculties; Pufendorf was the first professor of legal philosophy (more strictly, of natural and international law) in the history of universities. This tradition is still dominant and we can mention many philosophers who graduated in philosophy first, but then had to complete their legal studies in order to be appointed professors of legal philosophy or general jurisprudence: H. L. A. Hart in the UK or Cz. Znamierowski in Poland belong to this group. The reverse requirement was never applied and many scholars doing and teaching legal philosophy had no professional philosophical education. This is indicative of a feeling, at least among lawyers, that the legal content in legal philosophy is somehow more important than the philosophical. Thus, the reviewer of a massive treatise of legal philosophy and general jurisprudence faces a delicate task. He or she must decide which aspect of the book deserves special attention and which can be treated in a more relaxed manner. Since I do not feel sufficiently competent to treat both sides equally, I will concentrate on more philosophical topics and touch on problems relating to jurisprudence stricto sensu to a lesser extent. Let me also add that some general observations about the Treatise as a whole, mostly concerning how particular parts are related to each other, are postponed to the review of volumes 4 and 5. The first volume (Pattaro 2005) focuses on fundamental ontological and epistemological aspects of law as a phenomenon. The book is divided into four parts: I. The Reality that Ought to Be: Problems and Critical Issues; II. The Reality that Ought to Be: A Monistic Perspective. Norms as Beliefs and as Motives of Behaviour; III. Three-Family Portraits. Law as Interference in the Motives of Behaviour; IV. In Search of Confirming Others. The book Ratio Juris, Vol. 20, No. 1 © 2007 The Author. Journal compilation © 2007 Blackwell Publishing Ltd. 138 Jan Woleński ends with an Appendix on elements of formalization of the theory of norms developed by Pattaro (Artosi, Rotolo, Sartor, and Vida 2005) and an extensive bibliography (compiled by Rotolo; Rotolo 2005a). More specifically, the content of Pattaro’s work is as follows (according to particular chapters). The analysis begins with the reality that ought to be as contrasted with the reality that is. This crucial opposition is further investigated by using another contrast, namely, laws and the right or what is objectively right and what is subjectively right; objective rightness is equated with the content of norms. Thus, the dualism of ought and is becomes the starting point for Pattaro’s further considerations, although he constantly points out how both realities mutually interact. Speaking generally, Pattaro tries to combine the dualism of ought and is with a monistic account of law. Chapter 3 focuses on the sources of law, also in the context of natural-law schools and legal positivism. This circle of problems is continued in the next chapter in which the concept of the matrix of normativeness is undertaken. Roughly speaking, Nature serves as this matrix. In particular, Pattaro reviews various conceptions of Nature: as the will of God, as biological instinct, as divine and human reason, and as the cosmic order. Some interesting remarks about the origin of the term jus positivum conclude chapter 4 and the whole of Part I. As may be expected, norms constitute the reality that ought to be. I guess that Part II is the central body of Pattaro’s book. He tries to reconcile the dualism of ought and is with monism by taking norms as beliefs and as motives of human behaviour. Why is this step so important? The reason is that norms in both roles function as hard psycho-sociological factual phenomena. This approach allows consideration of duty-holders, efficiency of norms, proliferating of norms in human brains and many other things traditionally considered in jurisprudence (more than in legal philosophy). Part III examines the view of three important legal philosophers (or legal theoreticians) of the twentieth century, namely, A. Hägerström, K. Olivecrona, and H. L. A. Hart. This choice is not surprising because these Big Three represent basic theories that Pattaro intends to combine. To some extent, he continues the tradition of Scandinavian realism, but he takes Hart’s weakened normativism very seriously. The titles of two chapters (8 and 9) are perhaps a good summary of Pattaro’s position: “No law without norms,” but “Norms are not enough.” Chapter 10 brings a further development of this combination of realism and normativism by adding the element of force to the reality of law. Part III reflects on various ways of introducing values into “that ought to be” and reviews the main theories proposed to meet this fundamental question of legal philosophy from the antiquity to Kelsen. All extreme views, like ought as fate or Kelsen’s separationism are rejected. This means that a form of compromise between legal positivism and the natural law tradition (or, as Pattaro prefers to put it, between what is right by nature © 2007 The Author. Journal compilation © 2007 Blackwell Publishing Ltd. Ratio Juris, Vol. 20, No. 1 A Treatise of Legal Philosophy and General Jurisprudence 139 and what is right by law) is sought. According to Pattaro, the law/morality problem, the opposition between what is right by nature and what is right by law or the contrast of convention and nature can be subsumed under a more general issue, namely, the relation between nature and culture. What is the proposed solution? Pattaro sees the key in the internalization of norms and follows Savigny’s model of law and its simultaneous grounds in culture and nature. According to the father of orientation in jurisprudence, “at different times, therefore, amongst the same people, law will be natural law (in a different sense from our law of nature), or learned law, as the one or the other principle prevails, between which a precise line of demarcation is obviously impossible” (Pattaro 2005, 411; this is a quotation from Vom Beruf unserer Zeit für Gesetzgebung und Rechtwissenschaft by Savigny). The above survey of the content implicitly discloses the general philosophical scenario behind Pattaro’s book. His conception of law is decisively monistic (see Pattaro 2005, xxv) and non-reductivist (see Pattaro’s criticism of Quine, and related views: ibid., 389–405). This second qualification means in its most general perspective that culture is not reducible to nature. This thesis implies more specific irreducibilities, namely, that law is not reducible to facts, and norms are not reducible to non-normative phenomena. Pattaro rejects the linguistic theory of norms (norms are propositions or other linguistic entities; however, he fully accepts Hume’s thesis that normative propositions or sentences are logically separated from non-normative ones—see Artosi, Rotolo, Sartor, and Vida 2005, 414) and maintains that it is a standard view of analytic legal philosophy, independently of whether it follows logical empiricism or ordinary language philosophy. Incidentally, I do not agree with this strong claim, because the non-linguistic account of norms also appeared inside the analytic camp in jurisprudence (for example, such a version of this view was proposed by K. Opałek and myself). Pattaro’s monism considers norms as human beliefs and as motives of human behaviour. This view entails that norms exist in the psychological realm. One might say that Pattaro’s treatment of norms is burdened by psychologism. Although the situation of psychologism at present looks better than directly after its criticism by Frege and Husserl, nevertheless, saying “you are a psychologist” still constitutes a serious accusation. On the other hand, I think that Pattaro is right, because a psychological account of norms seems inevitable, provided that one wants to avoid a normativistic reductionism of law to pure Sollen, or radical realism involving norms of conduct as mere regularities of behaviour. Yet I consider Pattaro’s monistic perspective as not quite satisfactory. First of all, stressing the nature/ culture opposition does not settle the controversy between naturalism and anti-naturalism. In fact, I cannot qualify Pattaro’s moderate normativism as naturalistic or anti-naturalistic. My own position favors the former view, but that is another issue. Perhaps one additional remark is in order. Pattaro Ratio Juris, Vol. 20, No. 1 © 2007 The Author. Journal compilation © 2007 Blackwell Publishing Ltd. 140 Jan Woleński mentions various accounts of Nature, but he omits its understanding as typicality (normality). This is quite surprising, because Pattaro links the rise of norms with observing typicality in how people behave. In my opinion, natural as typical helps to see how law is related to morality. Returning to Pattaro’s views, norms as beliefs explain the normative character of law. I have doubts as to whether this explanation is successful, because nothing is explicitly normative in the general concept of belief. In fact, normative terms are taken as primitive concepts in the Appendix and, as a result, they require an additional explanation. Clearly, people must believe in duties, rights, obligations, and so on, but such beliefs do not create normative reality. I admit that I have no ready answer to this crucial question. Perhaps we should consider norms as decisions, perhaps we should accept sui generis normative acts as subjective generators of duties, and so on, but it is clear that Pattaro’s treatment must be supplemented in some way. I will not go into more detailed problems, although I feel some points in Pattaro’s book deserve further discussion, for example, the concept of validity as explicated by the concept of congruence. Looking generally at this massive volume, it makes a very good impression. Its content is rich, it discusses questions that are fairly fundamental for legal philosophy, approaching them in an original way and, last but not least, most proposed solutions are inspiring and not trivial. To this list of obvious virtues, one can add that the book contains many important historical remarks as well as fairly interesting observations about terminological matters, for example, concerning meanings of “right” or subjective Recht. A multivolume treatise ought to begin with just such a volume. The second volume of the Treatise (Rottleuthner 2005) consists of seven chapters. Chapter 1 is devoted to what foundations mean. The preliminary division introduces foundations (I would say “the foundations”) as basic or fundamental concepts and foundations as basic research. The next analytic step consists in distinguishing logical and epistemological foundations, moral or legitimacy foundations, historical (genetic) foundations of law, extra-legal foundations of law; the last section of this chapter concerns preconditions for the efficacy of law. Chapter 2 (Explanandum: What is Law?) takes law as explanandum (what is to be explained) and considers various related explananses (giving explanations). Rottleuthner begins classically with normativism and realism (the latter view is also considered in section 2.5). Then, he addresses two distinctions in Weber’s writings, namely that of the concept of law and the theory of law, and that of the concept of law and the idea (ideal) of law; Rottleuthner criticises many theories of law for ignoring or misunderstanding Weber’s methodological insights. The internal (the actor position) and external point of view (the observer position) in looking at law are the subject of the next section. Dimensions of the legal order and functions of law complete this chapter. © 2007 The Author. Journal compilation © 2007 Blackwell Publishing Ltd. Ratio Juris, Vol. 20, No. 1 A Treatise of Legal Philosophy and General Jurisprudence 141 The third chapter (the longest in the whole book, running to 130 pp.) considers extra-legal foundations of law. Rottleuthner distinguishes: (a) transcendent foundations of law, further divided into mythological (instantiated by Aeschylus’s Oresteia and Sophocles’ Antigone) and religious (instantiated by Jewish, Christian and Islamic legal systems); (b) natural foundations of law, further divided into immanent but legally external foundations of law (natural, extra-human—Montesquieu, natural, human—applications of biology and anthropology to law), the cognitive foundations of law: the mentalist theory of ethics and law—this section by Mahlmann—, the human rights culture, natural law theories; (c) economic foundations of law (Marx, Engels); (d) moral foundations of law (Durkheim); (e) societal foundations of law (E. Ehrlich); (f) political foundations of law; (g) historical foundations of law. Chapter 4 briefly reviews internal foundations of law, represented by Kelsen’s Grundnorm, Luhmann’s autopoietic theory and Fuller’s idea of internal morality. The fifth chapter presents anti-foundationalism (instantiated by sociobiology or ethnomethodology), that is, the view that law does not need any foundations. Chapter 6 points to some general contemporary tendencies such as secularization, chapter 7 returns to the problem of explanation, and the last chapter provides a summary. In fact, it is difficult to consider chapters 5–8 as real units, because they each have 2 or 3 pages; generally speaking, all chapters in this volume, except the second (24 pages) and the third (see above) are rather brief (chapter 1, 6 pages; chapter 4, 11 pages). I mention this feature of Rottleuthner’s book, because it has the serious and rather unfortunate consequence of overly condensed presentations of many crucial points and ideas. As a philosopher I must complain, for example, that the expression “logical and epistemological foundations” is not explained, that there is no mention of the opposition intentionalism/consequentialism in the discussion of moral foundations of law, that the symbolism used in (Rottleuthner 2005, 181) is pretentious and has no substantial importance, that cognitivism is restricted only to mentalism or that the terms “anti-foundationalism,” “transcendent foundations” and “immanent foundations” can lead to serious misunderstandings due to their various philosophical connotations. In order to demonstrate the last point, consider that the religious foundations of legal systems are more transcendental than transcendent. The combination “immanent but legally external foundations of law” appears as not quite coherent, because it suggests that the foundations in question are in law as well as outside of it. In general, it is not sufficiently clear how the external/internal distinction is related in the context of the is/ought problem. For example, Kelsen’s internalism is necessitated in his system by the strong separation of the factual and normative realm, but Fuller’s theory has nothing to do with the view of how both spheres are related. I also have some reservations concerning Ratio Juris, Vol. 20, No. 1 © 2007 The Author. Journal compilation © 2007 Blackwell Publishing Ltd. 142 Jan Woleński historical accuracy, for example, the author does not mention Duguit or Petrazhycki; the latter offered a fairly interesting realistic proposal on how to overcome the tension between realism and normativism. Although Rottleuthner rightly notes that secularization constitutes a tendency, at least in some regions of the world, he overlooks globalization and related processes illustrated, for example, by the development of the EU. These defects are regretful, because the book defends a reasonable general position, that is, a pluralistic account of the foundations of law. It also has some very good sections, for example, on the analysis of legal philosophy in Greek tragedies. The third volume (Shiner 2005) is devoted to various legal institutions and sources of law. After a brief introduction (chapter 1), an account of legislation (e. g., legislation as a source of law, legislation v. sovereignty) is given (chapter 2). The next chapter has precedent as its subject and is divided into the following sections: (3.1) a characterization of precedent, (3.2) the functioning of precedent in law, (3.3) precedent and legislation, (3.4) the modalities of binding precedent, (3.5) precedent, bindingness and ruleness, (3.6) the justification of precedent. Chapter 4 analyzes custom (in particular, typical historical matters and puzzles concerning custom as a source of law). Delegation (labour arbitration and mediation) is the topic of chapter 5. The next chapter reviews various problems associated with constitution. Chapter 7 focuses on sources of law in the civil law (understood rather as the internal law of a given state than as private law; Rotolo 2005b). A classical problem of international law and its sources is the topic of chapter 8. Finally, chapter 9 deals with the problem of authority in law. This volume is the most judicial in the sense that it is directed at typical problems of general jurisprudence dictated by legal practice. In fact, the problem of sources of law, as Shiner himself stresses, “is a traditional one in jurisprudence.” Yet he complains that “[. . .] very little attention has been paid to the topic in recent analytical jurisprudence. Much contemporary analytical theory does not consider the notion of a ‘source of law’ at all” (Shiner 2005, 1). For documentation, Shiner quotes several books of leading contemporary authors, like Alexy, Beyleveld and Brownsword, Dworkin, Finnis, MacCormick, and Raz. However, I think that this diagnosis is based on a misunderstanding. All the books mentioned here are sophisticated monographs, whereas the topic of sources of law constitutes a typical question suitable for a textbook for students of law. I do not know any serious textbook of general jurisprudence, introductory or advanced, written from an analytic or any other point of view, that would ignore the concept of sources of law or their classification. In fact, Shiner’s volume can serve not only as an advanced monograph, but also as a textbook or as supplementary reading. I do not consider this observation a criticism. On the contrary, the problem of sources of law is so closely associated with the real life of law that it is difficult to rectify the rudimentary information on © 2007 The Author. Journal compilation © 2007 Blackwell Publishing Ltd. Ratio Juris, Vol. 20, No. 1 A Treatise of Legal Philosophy and General Jurisprudence 143 it from any treatment of this area of jurisprudence. Philosophizing about sources of law is also considerably limited. Consequently, according to the principles of the present review as stated above, I will not comment further on the content of this volume, although it is worth mentioning an interesting application of Wittgenstein’s idea of rule-following to an analysis of precedent. For the benefit of potential readers of this book, I should point out that it is written mainly from the point of view of common law rather than from that of continental systems. Hence, it is more useful for readers considering legislation as the principal source of law than for experts in common law. The former can learn a great deal about precedents and related topics, but the latter cannot expect Shiner’s treatment of legislation to be complete, as shown, for example, by the fact that the hierarchy of legal acts created by legislation is almost absent from this volume of the Treatise. Jagiellonian University Institute of Philosophy Kraków Poland E-mail: wolenski@theta.uoks.uj.edu.pl References Artosi, A., A. Rotolo, G. Sartor, and S. Vida. 2005. Elements for a Formalisation of the Theory of Norms Developed in this Volume. In E. Pattaro, The Law and the Right: A Reappraisal of the Reality That Ought to Be, 413–23. Dordrecht: Springer. Pattaro, E. 2005. The Law and the Right: A Reappraisal of the Reality that Ought to Be. In A Treatise in Legal Philosophy and General Jurisprudence. Ed. E. Pattaro, vol. 1. Dordrecht: Springer. Rotolo, A. 2005a. Bibliography. In E. Pattaro, The Law and the Right: A Reappraisal of the Reality that Ought to Be, 425–38. Dordrecht: Springer. Rotolo, A. 2005b. Sources of Law in the Civil Law. In R. Shiner, Legal Institutions and the Sources of Law, 143–94. Dordrecht: Springer. Rottleuthner, H. 2005. Foundations of Law. In A Treatise in Legal Philosophy and General Jurisprudence. Ed. E. Pattaro, vol. 2. Dordrecht: Springer. Shiner, R. 2005. Legal Institutions and the Sources of Law. In A Treatise in Legal Philosophy and General Jurisprudence. Ed. E. Pattaro, vol. 3. Dordrecht: Springer. Ratio Juris, Vol. 20, No. 1 © 2007 The Author. Journal compilation © 2007 Blackwell Publishing Ltd.