Putting Objectivity in its Place

José Juan Moreso Putting Legal Objectivity in its Place* 1. Many different versions and conceptions of legal objectivity populate contemporary philosophical reflection about the nature of the law. In my view, a suitable conception of legal objectivity should take into account certain platitudes surrounding our use of legal propositions.1 But before I examine these platitudes, I would like to consider briefly the nature of legal propositions. The aim of legal knowledge is to identify the duties and rights of citizens according to the law. In this sense, legal knowledge is obtained from statements like ‘Legally, all F have the obligation to pay tax T’ or ‘Legally, x has the right to recover damages D’. These statements express norm propositions. Norm propositions are the meanings of normative statements, just as chemical propositions are the meanings of chemical statements, or historical propositions are the meanings of historical statements. Normative statements have a descriptive nature; they are statements about the existence of norms (von Wright 1983). On the contrary, norms have a prescriptive nature; they are the meanings of prescriptive statements or norm formulations.2 Norm propositions about the existence of legal norms can be called ‘legal propositions’. In fact, there are many kinds of norm propositions. First of all, norm propositions can be classified according to the kind of norms whose existence they refer to. If, for instance, a norm proposition refers to the existence of a moral norm, we will have a moral norm proposition. Legal norm propositions are only one kind of norm proposition. Moreover, among legal propositions there are also various kinds of norm propositions. Here, I will be interested in two kinds: pure norm propositions and applied norm propositions. This distinction echoes Raz’s distinction between pure and applied normative statements (Raz 1980, 49, 218). Pure norm propositions only assert that there is a norm N that regulates a certain situation S, e. g. ‘In the Spanish Constitution, the death penalty is prohibited’. The truth-conditions of norm propositions allow us to say that a certain pure * I am indebted to Robert Fishman for helpful suggestions on matters of English style. For the place of platitudes in the conceptual analysis, see Smith 1994, 29-32. 2 Here, it is irrelevant whether the prescriptive character has a semantic or a pragmatic nature. See, for this point, the distinction between the hyletic and the expressive conception of norms by Alchourrón and Bulygin 1981. 1 Analisi e diritto 2004, a cura di P. Comanducci e R. Guastini 244 norm proposition is true if there is a norm with certain content, and that it is false if there is no norm with this content. Applied norm propositions have other facts among the conditions sufficient to establish their truth, e.g. given that the Spanish Constitution concedes the right to vote to the citizens over 18, and given that it is a fact that I am over 18, the normative statement ‘José Juan Moreso has the right to vote in the general election’ expresses an applied legal proposition. 2. Now we can return to the platitudes surrounding our use of legal propositions. I think that these platitudes can be summarized in the two following: a) The Social Sources Thesis: the existence and the content of the law in a certain society depend on a set of social facts, i.e., a set of actions by the members of that society. b) The Adjudication Thesis: at least sometimes there is a right answer in legal cases and, in these cases; judges should apply the law created by legislative powers. Therefore, judges can be mistaken when they decide on the legal rights and duties of citizens; or, in other words, ‘singular propositions of law have a truth value prior to a court’s decision in that case’ (Moore 2002, 625). According to the Social Sources Thesis, the law is an institutional phenomenon, a phenomenon whose existence depends on our beliefs and attitudes. The law is not a natural phenomenon, absolutely independent of us. The truth of the proposition that the earth is round does not depend on our beliefs and attitudes, even if all human beings believed the earth to be flat, it would not be true that the earth is flat. The roundness of the earth is a natural phenomenon. However, the truth of the proposition that today is Saturday depends on our conventional calendar; the ‘saturdayness’ of today is a conventional phenomenon. Or we can consider a sentence such as ‘Ms. X is in the bus’ queue’: its truth depends on the existence of an institutional practice, which allows us to see a row of human beings from a certain point of view; i.e., sharing the acceptance of a rule which attaches certain duties and rights to the position in the queue. In this sense, legal propositions are more similar to the last propositions than to propositions such as the earth is round. It is worth noting that the truth-conditions of ‘today is Saturday’ are complex, because the convention which allows us to assert it supposes the adoption of a system, the Gregorian calendar, for dividing up time, which establishes the first year, numbers the years, and arranges the days into months and years.3 Moreover, it is obvious that we could be mistaken about whether today is really Saturday, but we cannot be mistaken about the adoption of the Gregorian 3 However, that today is Saturday is not an institutional fact because no new statusfunction is carried by the label. See Searle 1995, 65. 245 calendar. This is a conventional, and in this sense, stipulative decision. Similarly, we could be mistaken about whether Ms. X really has the right to vote in the general election (because, for instance, she is not over 18), but we cannot be mistaken about the decision to concede the right to vote to the citizens over 18. According to the Adjudication Thesis, the law is not absolutely indeterminate. An analysis of this thesis requires dealing with many controversial questions of legal interpretation, but I believe that we can accept that certain pure legal propositions are indisputably true, like the proposition that the death penalty is forbidden in the Spanish Constitution, and certain applied legal statements, like ‘X has the right to vote in the general election’, express also true propositions. Their truth does not depend on any court’s decisions. Actually, courts themselves seem to accept this thesis, e.g. in a recent case, Lawrence v. Texas,4 the U.S. Supreme Court decides to overrule Bowers v. Hardwick,5 and reverses the judgment of the Court of Appeals for the Texas Fourteenth District, considering that criminal convictions for adult consensual sexual intimacy in the home violate vital interests in liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment. The Court asserts: ‘Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled’.6 If you allow me this frivolity, I could say that Julia Roberts was right, because at the beginning of the movie The Pelican Brief, the character played by Julia Roberts, a Law School student, discusses with her Professor of Constitutional Law about Bowers, arguing that the Georgia statute making it a criminal offense to engage in sodomy was unconstitutional. The Professor replies: ‘Well, the Supreme Court disagree with you, miss Shaw. They found that the state did not violate the right of privacy. Now, why is that? ‘, and the student answers: ‘Because, they are wrong’. The moral may be: we should distinguish between finality and infallibility of judicial decisions (Hart 1961, 138-141), and we could name this distinction Julia Robert’s doctrine. It should be clear, however, that I am not arguing that Lawrence is an uncontroversial case, indeed it is not; I am only trying to show that courts themselves consider that they can be wrong. 3. The Social Sources Thesis and the Adjudication Thesis can be conceived to be supported by our account of the distinction between the objective and the subjective. According to Searle (1995, 8-12), whose ideas I will follow here, the contrast between the objective and the subjective has at least two senses. ‘In the ontological sense, ‘objective’ and ‘subjective’ are predicates of entities and types of entities, and they ascribe modes of existence’ (Searle 1995, 8). In the onto4 539 U.S. __ (2003). 478 U.S. 186 (1986). 6 Supra note 4. 5 246 logical sense, queues are subjective entities, because their mode of existence depends on certain beliefs and attitudes of the persons: something is not a queue if we do not consider it as a queue. On the contrary, mountains are objective entities, because their existence is independent of our mental beliefs and attitudes. The Social Sources Thesis presupposes that the law, and the legal entities (marriages, property rights, tax obligations, citizenship, etc.) are, in Searle’s sense, ontologically subjective, e.g. there are no tax obligations without tax legislation, and there is no legislation without parliament, and there is no parliament without our shared acceptance that certain persons, members of parliament, with certain procedure can make tax regulations). Nonetheless, there is not only an ontological sense of ‘objective’ and ‘subjective’, but also an epistemic sense. As Searle (1995, 8) asserts: ‘Epistemically speaking, ‘objective’ and ‘subjective’ are primary predicates of judgments’. In this epistemic sense, a judgment is subjective when its truth is relative to a certain perspective of the maker of the judgment; e.g., the truth of the sentence ‘Paella is tasty’ depends on your taste and mine and it can be that, as it were, it is false for you and true for me. In contrast, other judgments such as ‘this paella is made with rice and seafood’ are objective judgments; their truth is independent of our attitudes or feelings about them. As Searle (1995, 8) notes: ‘It should be obvious from these examples that the contrast between epistemic objectivity and epistemic subjectivity is a matter of degree’. In this sense, the truth of (most of) the legal propositions is epistemically objective, because even though the existence of the legal fact that the death penalty is forbidden in the Spanish Constitution is not independent of our beliefs and attitudes (i.e. if we did not acknowledge the constitutional text of 1978 as our constitution, we could not say that the death penalty is forbidden), the truth of ‘In the Spanish Constitution the death penalty is forbidden’ does not depend on the points of view of the makers of this judgment. The Adjudication Thesis presupposes this epistemic objectivity: we can have right legal answers prior to courts’ decisions because we can objectively know and publicly show the legal rights and duties of citizens. Therefore, there can be epistemically objective judgments about entities that are ontologically subjective. This is, in my view, the place of legal objectivity (see also Marmor 2001, 135-143). Legal objectivity does not display a platonic world of legal entities, absolutely independent of us. Legal objectivity is an epistemic property of our legal propositions; in this fashion we ought to be able to grasp the truth-conditions of many legal statements. This knowledge presupposes an understanding of the institutional nature of the law. Legal knowledge is, as it were, practice-dependent. 4. I realize that this account of legal objectivity is very thin. It ecumenically embraces many competing conceptions of the nature of law. It only excludes two rather extreme accounts of the philosophical nature of legal propositions: pla- 247 tonic metaphysical realism and radical legal skepticism. It is not clear that the very weak version of the Social Sources Thesis presented here would encounter thoroughgoing opposition, even though certain traditional Natural Law doctrines can be viewed as the basis for such a critique. But, e.g. Hurd (1990) has argued that legal norms should not be understood, as would be the case in a communicative model of law, as directives that guide our behavior, but as descriptive statements about what she calls ‘optimal legal arrangements’. In this view, there is a world of optimal legal arrangements independent of what legal norms stipulate. Legal norms are true or false, depending on whether they describe this world. In this sense, the truth of legal propositions does not depend on institutional practice and the Social Sources Thesis is false. It is more controversial whether other recent theories defending the causal theory of reference can be considered as denying the Social Sources Thesis (Brink 1988, Moore 1985, 2002, and clearly not Stavropoulos 1996). The other excluded account is that of radical legal skepticism, as in some versions of Legal Realism (e.g. Frank 1930) or in some developments of Critical Legal Studies (see two general overviews: one critical, Altman 1990, another more congenial, Kelman 1987). They defend the radical indeterminacy, according to which it is never possible to give meaning to general rules and standards and, therefore, there are no clear legal cases: the idea that law normatively determines behavior is, in this account, an illusion. They reject the Adjudication Thesis. I will not argue in favor of this exclusion. In my view, it is obvious that my right to vote in the next general election in Spain depends on the relevant clauses of the Spanish Constitution and it is also obvious that the truth of that proposition is prior to any decision by the courts. For this reason, platonic metaphysical realism and radical legal skepticism are implausible conceptions; they cannot take the Social Sources Thesis and the Adjudication Thesis into account. However, I insist, within the frameworks delimited by the Social Sources Thesis and the Adjudication Thesis there is room for most contemporary legal conceptions. Actually, these conceptions have different and competing approaches to the theory of the nature of law that enable us to identify the set of authoritative rules and standards that belong to the law, to the theory of legal interpretation, to the theory of legal reasoning, to the place of legal indeterminacy, etc. 5. In a recent account of legal objectivity, Leiter (2002, 978) stresses: If the class of legal reasons, however, includes moral reasons, then the law can be objective only if morality (and moral reasoning) is objective. The class of legal reasons can come to include moral reasons in two ways. First, and most obviously, the familiar sources of law –like statutes and constitutional provisions- may include moral concepts or considerations. 248 […] Secondly, moral reasons might be part of the class of legal reasons because they are part of the very criteria of legal validity. If we assume that, as is sometimes argued, moral principles are inherently controversial, moral principles cannot configure the set of standards identified by a social practice, e.g. a rule of recognition. Therefore, the argument continues, the inclusion of moral principles undermines the objectivity of law. My reply of this argument has two parts (see Moreso 2001, 45-50). In the first part, I will try to show that there is a kind of moral objectivity which is compatible both with many different metaethical theories and with many substantive ethical theories; and, moreover, that it is a plausible theory. In the second part of my reply, I will deal with the kind of moral concepts included in statutes and constitutional provisions in order to show how we can preserve objectivity in these cases. Let’s begin with the first part of my reply. Moral objectivity is basically related to the problem of whether it is possible to provide objective answers to such questions as whether a certain treatment is degrading or not (the Spanish Constitution forbids, in art. 15, inhuman and degrading treatment, resorting in this way, by the use of moral terms, to morality). Usually the problem of moral objectivity has been associated with the problem of moral realism, i.e., the problem of the existence of moral facts and properties independent from human acts (out there, as it were), capable to make our moral judgements true. Moreover, a negative answer to this question – as is sometimes argued- entails a noncognitivist outlook about the moral realm, that is to say, the idea that moral judgements lack truth aptness. These premises lead some people to the following conclusion: there is no place for objectivity in the moral realm; there is no place for rational agreement in moral matters. This was the account, e.g., of moral emotivism within the logical positivism outlook. I believe that there are some unsound steps in this line of reasoning. Moral antirealism need not entail moral non-cognitivism, and neither of these two positions necessarily implies the rejection of moral objectivism. On the other hand, however, moral realism requires both moral cognitivism and moral objectivism. It is possible to reject moral realism, by denying the existence of moral properties in the world. In this way, if moral judgements are descriptions of moral properties, it would be sound to entertain about them an error theory, like the one proposed by John Mackie’s (1977), stating that, if moral judgments are descriptive, they are false. It seems plausible to believe that moral facts have no independent explanatory power (Harman 1977), that they do not constitute what Bernard Williams (1985, 138-140) called ‘the absolute conception of the world’. However, the rejection of realism, by itself, does not lead to non-cognitivism. Colours do not constitute the absolute conception of the world but, nonetheless, statements about colours can be either true or false. Thus, there is some conceptual room for cognitivist antirealism. It is also possible to argue that the analogy between secondary qualities, such as colours, and moral properties does not make sense, while at the same time defending moral objectivism. We can accept 249 that moral judgements are reducible to prescriptions and still leave plenty of space for objectivity – in the sense of rational agreement – in moral matters. An obvious case is represented by Kantian moral theory. According to Kant, basic moral judgements are prescriptions and the fundamental principle of morality is, literally, an imperative. More recently, R.M. Hare has defended a prescriptivist account compatible with moral objectivism (see, e.g., Hare 1999). By the preceding metaethical detour, I am trying to show that moral objectivity may be consistent with a very wide spectrum of substantive philosophical perspectives and, therefore, that the possibility of objectivity in moral matters, in the sense of rational agreements, is perfectly compatible with legal objectivity. I realize that much more should be explained about moral objectivism, in order to make sense of this claim. However, this is a topic for another occasion (see, however, Moreso 2003). The second part of my reply deals with moral concepts included in legal standards. Non-cognitivist theories usually concern moral judgments containing so-called thin moral concepts that, perhaps, possess only a prescriptive dimension, such as good, right or ought. But moral discourse also contains thick moral concepts, like honest, coward or degrading treatment and the moral concepts included in our constitutions are usually thick concepts. It seems odd to reject the possibility of knowledge in the use of thick moral concepts (Williams 1985, ch. 8, Raz 1996, ch.6). We possess these concepts and we know often their referents when we use them. An explanation of the aptness to the truth – and, therefore, to the objectivity of moral judgments containing thick concepts, in the line of Harean prescriptivism – requires distinguishing sharply between two dimensions of these concepts, namely, a descriptive and a prescriptive dimension. Their descriptive content has truth-conditions. Their prescriptive content fits their evaluative dimension. The descriptive content allows the concept to be guided by the world; its prescriptive dimension enables it to be a guide for action, to provide reasons for action. Other authors think that the evaluative dimension cannot be separated sharply from the descriptive content, perhaps, because they think that evaluating is not totally reducible to prescribing, i.e. evaluating is not only a function of desiring and, probably, this is so because they reject so-called centralism in moral thought, a theory which presupposes that thin concepts are the most basic ones, while at the same time they affirm that our use of thin moral concepts actually supervenes on our use of thick moral concepts (Hurley 1990, ch.2). Fortunately, it is not necessary to elucidate this question in order to accept that statements, which predicate thick moral concepts of certain actions, are truth-apt. The members of the community where the Spanish Constitution is in force possess the concept of degrading treatment and we are able to apply it truthfully to certain cases. In this way, our constitutional statements referring to degrading treatments have aptness to truth and objectivity. Moreover, it is possible for a legal rule to impose a cruel punishment, precisely in virtue of its cru- 250 elty: in Roman law there was capital punishment, the poena cullei, for parricide. The culprit was drowned in a leather sack together with a cock, a dog, a serpent, and a monkey; obviously Roman people thought that this punishment was cruel, but they (mistakenly, I think) considered that this was the deserved punishment for such an atrocious crime. It is precisely its cruelty, which makes it a suitable punishment for Romans, and it is this feature that would make it an unconstitutional punishment in accordance with present constitutions that exclude cruel punishments. It can be argued that the use of statements which contain thick concepts by legal interpreters or by courts (as Constitutional Courts) is a quotation use, a use rooted in an understanding of degrading treatment in Spanish social morality, a use without an evaluative dimension (Alchourrón and Bulygin 1991, 315-316). The fortune of this argument depends on the possibility of sharply separating the descriptive dimension from the evaluative dimension of thick concepts. However, even if this possibility is argued, the legal interpreters or the judges need to fashion the concept, to put it together with other related concepts, and, inevitably, fashioning moral concepts requires a moral background. That is to say, it requires a conceptual network where moral concepts have their place and this conceptual network must be checked, in a kind of reflective equilibrium, by appealing to our intuitions, and this in turn requires undertaking a moral reflection. This conclusion allows us to submit that the application of constitutional provisions, which contain moral predicates, is not always discretional. There are clear cases of application of the concept degrading treatments. Moreover, a concept without clear cases of its application is not even a concept. It is obvious, however, that thick moral concepts are essentially contested concepts (Gallie 1955-6). It can be said that a concept is essentially contested if and only if: 1) it is evaluative, that is, it attributes to the cases it applies something of value or disvalue, 2) the structure of the concept is internally complex and covers different criteria which reconstruct its meaning and compete among themselves and 3) there are some cases, real or hypothetical, which are paradigms of the application of the concept. 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