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Symposium on the internal legal positivism

Internal legal positivism: “Hurrah,” “Boo,” “Ehhh…”?

Pablo A. Rapetti
This article is a translation of:
Positivismo jurídico interno: ¿'hurra', 'buh', 'ehhh…'? [es]

Abstract

This paper offers a focused analysis of Cristina Redondo’s latest book, Positivismo jurídico “interno.” I first point out the lack of a discussion regarding what a participant (of the legal practice) is. I then emphasize that Redondo’s distinctions between the internal and external points of view, which she offers in order to shape her favoured form of positivistic metatheory, are incompatible with an expressivistic rendition of first-order legal language. Since what constitutes the best rendition of first-order legal language is a controversial theoretical matter, a metatheoretical framework would be, in principle, preferable to others since it does not prejudge such a matter. Finally, I suggest an alternative strategy to arrive at a metatheoretical model similar to Redondo’s, but which does not incur that particular problem.

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1 Introduction

1Definitely: hurrah! Positivismo jurídico “interno,” by Cristina Redondo, is a milestone in the analytic legal (meta)theory of this century. It is a highly stimulating book, meticulously argued, yet never tiresome or excessively hard to follow. In it, Redondo manages to address a large part of the most pressing controversies in current legal philosophy, discussing them with dedication and carving a path by connecting them together toward a metatheoretical model, which can seriously claim to be original and novel.

2Given the impossibility of tacking the full breadth and scope of the themes and discussions Redondo analyzes, in the following I concentrate on disputing the central claim of her book. Hopefully, this exercise will also allow me to gauge my own stance regarding internal legal positivism. Aware that if I am not already a full-fledged internal legal positivist that I at least feel very close to it, I believe this could be a good exercise in measuring our proximities.

  • 1 It is of course controversial whether, when it comes to accounting theoretically for the role of th (...)
  • 2 Hence (plus some playful spirit) the title of this paper. As we will see, it is usual to draw a lin (...)

3Now, it may help to hint in advance at I intend to argue in my paper. I will direct two criticisms to Redondo’s central idea, both of which are external in character. On the one hand, I will argue that the book lacks a proper philosophical reconstruction of the features defining the participants of legal practices as such and, in particular, the kind of language we may attribute to them1i.e., first-order legal language. On the other hand, I will argue that careful consideration of this absent element reveals that certain philosophical assumptions contained in the book, for which no argument is put forward, have a much heavier weight than apparent in the proposal of an internal version of legal positivism. More specifically, I think that should semantic expressivism turn out to offer an appropriate way of depicting first-order legal language, then Redondo’s distinctions between two modes of understanding the internal/external binomial would be untenable.2 And so the conceptual space Redondo carves out to locate internal legal positivism in the metatheoretical map would be lost - at least in the specific way she sketches.

2 Internal legal positivism and its distinctions

4Internal legal positivism, as proposed by Redondo, is conceived as an alternative to what she marks as the two preeminent metatheoretical options in contemporary general jurisprudence. On the one hand, we have a version of legal positivism founded upon skepticism about the possibility of knowing normative contents. In Redondo’s words:

  • 3 Redondo 2018: 196. All translations of Redondo’s work are mine.

According to this skeptic position every theoretical discourse about legal institutions is, necessarily, a discourse made from an external point of view, which assumes no commitment whatsoever regarding the beliefs justifying such institutions. The theorist referring to an institutional reality such as the law, for example, is a neutral observer, her language is exclusively descriptive and of an empirical content.3

5On the other hand, we have interpretive antipositivism, according to which every discourse relative to legal institutions in necessarily internal to those institutions and is somehow committed to a justification of them. Thus, the discourse by someone who proposes an interpretive study or understanding of the law operates at the same level as that of legal participants and shares with it a normative and justificatory character.

6Both views assume what Redondo calls “the impossibility thesis,” that is, they both reject the possibility of a purely informative and descriptive approach when the object of inquiry is of a normative character –as is the case, according to Redondo, with the law (i.e., legal rules). That kind of description would be precisely what is impossible. Thus, whereas “skeptical” legal positivism attempts to reduce normative phenomena to empirical matters governed by causal relations apt for description, interpretive antipositivism rejects the possibility of description, submitting that the jurisprudential approach to normative contents must be consequently normative too.

7It may be noticed that the characterization of both views is built upon a distinction between an internal and an external point of view towards the law as an object of inquiry. Positivism intends the adoption of an external perspective towards it, while interpretivism holds that there is no alternative to the internal perspective, which, by the way, implies seeing the legal theorist as also acting qua a legal participant, thereby contributing to the conformation of the law itself: her work has ontological import. While Redondo begins with the internal/external distinction as classically drawn by Herbert Hart, she takes it to be founded upon an ambiguity, which she aims to dispel. Redondo thus posits there are actually two internal/external distinctions that should be borne in mind, and she labels them “semantic” and “pragmatic.”

8The distinction in semantic terms would be relative to

  • 4 Redondo 2018: 203. Italics in the original.

two methodological and discoursive approaches with which it is possible to face a social institution. In this case, the external point of view approach is that which, from the perspective of a third person, attempts to describe and explicate the exclusively empirical and behavioural aspects of an institution; whereas the internal point of view approach is that which, still from the perspective of a third person, attempts to capture and explicate the concepts with which the participants of an institution refer to it, or the meaning the institution has for those who accept it from the first-person stance. That is, for those who –via their behaviours, beliefs or attitudes– constitute it and keep it alive.4

  • 5 Redondo 2018: 205.

9Crucially, this distinction offers, according to Redondo, a basis for identifying different kinds of discourses and statements: “considering the content of a statement suffices to establish whether it provides information from an internal or an external point of view.”5

10With the distinction thus drawn, Redondo respectively calls these points of view “internal1” and “external1.”

11On the other hand, we find what she calls the “internal2” and “external2” points of view. According to this second distinction, drawn in a pragmatic fashion, the contrast

  • 6 Redondo 2018: 208.

is used to indicate either the presence or absence of a practical attitude of acceptance or approval that an agent may or may not have towards the normative content of certain social institutions. That is to say, towards the rules composing an institution. Specifically, she who assumes an internal point of view in this sense does not only understand and use the normative concepts in force in a social group, but she is also committed to, and justifies, the rules followed by the group.6

  • 7 Redondo 2018: 210-211.

12In contrast with “internal1” and “external1”, this second distinction does not allow for a further distinction between two different kinds of statements: “the same kind of discourse referring to a normative object or content can be formulated or proposed with the attitude making for either the external2 point of view or the internal2 point of view.”7

13The conceptual space for an internal version of legal positivism that transcends the two established options cracks open with this twofold internal/external distinction. For, once the distinction is drawn, it allows us to see the possibility of a theoretical perspective given by the adoption of the external2 point of view, which nonetheless formulates statements belonging to the internal1 point of view. In Redondo’s opinion, this will be necessary in turn if one acknowledges that the legal objects of theoretical inquiry are concepts and meanings, whose ontological category is basically abstract and therefore irreducible to bare empirical facts.

3 Participants and theorists

  • 8 Redondo 2018: 212.
  • 9 Redondo 2018: 228-229. Throughout these pages Redondo actually talks about two kinds of discourses (...)
  • 10 And which constitutes a potential criterion for the elusive distinction I am speaking of.
  • 11 See, e.g., Redondo 2018: 167.

14Despite the complexity introduced by Redondo’s twofold distinction, it is not clear to me that it contributes much to the demarcation between the roles of the participant and the theorist in the context of her book. The fact is that, unfortunately, Redondo offers very little with which to characterize the notion or role of participant, particularly regarding the kind of discourse (if any) that would be distinctive of it. She certainly tells us that the actions, beliefs, and attitudes of each participant of the legal practice contribute to making the law, and we may surely include here the statements they formulate.8 She also tells us (better put: she insinuates) that in some sense it can be acknowledged that the statements belonging to an internal-positivistic theoretical approach are on the same level as those of participants, although they have a different subject-matter: basically, legal concepts for the theorist and the content of the specific legal institutions for the participant.9 This, however, prompts the question of whether the role of the internal-positivist theorist also contributes to making its very object of inquiry –something Redondo apparently rejects.10 The question arises in this context because she also insists that the legal-theoretical endeavour aims at knowing and explicating the law, and that legal-theoretical statements have a mind(word)-to-world direction of fit.11 Furthermore, we may ask: what is, then, that which constitutes and characterizes as such the first-order legal language and the participant’s role? It seems to me that the lack of answers to these questions can best be found by looking at Redondo’s drawing of her second internal/external distinction.

15As we have seen, that second distinction has to do with the presence or absence of the attitude of acceptance. Here, Redondo refers specifically to the Hartian conception of acceptance and designates it as an attitude of “commitment” regarding rules or institutions that

  • 12 Redondo 2018: 208. Footnotes omitted.

can be described in non-cognitive terms as an attitude of adherence or acceptance with respect to the rules in question. Or else, in cognitive terms, directly as a set of beliefs which justify such rules.12

16Perhaps Redondo would like to distinguish between participants and theorists precisely by means of the fact of the adoption (or not) of the attitude of acceptance. Thus, the one adopting it will count as a participant. But this would be problematic because she characterizes the interpretive theorist as one who adopts the internal point of view, who is thereby someone adopting the attitude of acceptance. Instead, it seems to me that, from the framework of internal legal positivism, the interpretivist is simply precluded to be considered a “theorist” proper.

  • 13 Should it be so, I would maintain that we are still missing something more about the notion of a pa (...)
  • 14 Or, perhaps, that there is no single “genuine” reason, should that presuppose a concept of reason c (...)
  • 15 As Redondo occasionally seems to suggest; see e.g., Redondo 2018: 219-220.
  • 16 Hart, 2012: 114-116; Hart 1982: 146. Strictly speaking, the distortion would take place if, in addi (...)

17In any event, Redondo may claim she has not sought to distinguish between participants and theorists, but between theorists and accepters.13 Hence, the interpretivist is an accepter, whereas the internal legal positivist is not. However, I think Redondo’s characterization of the idea of acceptance has some shortcomings. As we have just seen, on the non-cognitive reading, the accepter is such because of her commitment defined as adherence to or acceptance of rules. But this is viciously circular. On the opposite side, for the cognitive reading, the accepter has a set of beliefs in virtue of which she deems the (accepted) rules as justified. But how to understand “justification” in this context is not quite clear. If the idea was that accepting a legal rule amounts to deeming whatever the rule establishes as legally justified, then that would certainly suit the way Hart himself expounded the concept of acceptance. But this says very little in connection to Redondo’s aims: being someone who thus “accepts” a rule is not very different from being someone who holds that, if such rule commands to do X, then X is what should be legally done –no matter if, at the same time, one holds that there is no other reason14 to do X and, perhaps even more still, that maybe there are multiple reasons of other kinds to refrain from doing X. If the idea was, instead, that the accepter deems the rule justified simpliciter,15 then Redondo would be distorting Hart’s proposal, since he explicitly made clear that the acceptance of legal rules does not require other kinds of endorsement –in particular, moral approval.16

18I do not intend to dwell on any of these issues, but just to show a lack of precision in the way Redondo conceives of accepters, in the same way I found her work on participants left wanting. Accordingly, I would like to highlight something mentioned a few lines above, namely, the question concern which of the readings identified by Redondo –the cognitive or the non-cognitive– we should prefer and for what (theoretical, conceptual, explicative) reasons. Redondo does not offer arguments in any direction. In connection to the present point, she submits the following, right after the last passage I quoted:

  • 17 Redondo 2018: 208-209. Footnote omitted.

In what follows, and just not to shy away from the terms a large part of contemporary literature employs, I will adopt a cognitivist language and assume that someone who adopts the internal point of view towards an institution, i.e., who accepts it, is one who explicitly proposes, or implicitly presupposes, the truth of some set of beliefs which justify it. In any case, on this reading we can notice that both the internal and the external point of view are adopted towards the same type of object: the content of normative concepts or statements. That is to say: they are adopted towards internal1 statements.17

  • 18 This is consubstantial to the basic understanding of the law as a social phenomenon (or socially co (...)
  • 19 Yet this consequence is, I am afraid, nothing but common-sensical. A definition stipulating that th (...)
  • 20 Diego Dei Vecchi has lucidly pointed out to me that in Redondo’s book there seems to be a further, (...)

19This passage, it seems to me, shows two things. First, it reinforces what I have said about the absence of a more elaborate characterization of the concept of participant. This is in part because the point of view is adopted towards the content of normative concepts or statements is asserted –that is, internal1 statements. Should it be so, then what kind of statements do participants formulate? I surmise that more internal1 statements is the answer to expect, but then (1) the problem rises that such statements are supposed to be formulated, according to Redondo’s definition, from a third-person perspective, yet it could be argued that statements, let us say, “of law”, stem characteristically from a first-person perspective.18 And thus, (2) we again face the lack of a further distinction between the statements made by participants and those made by theorists. The idea that participants formulate other internal1 statements fits well with something we have already seen –that, according to Redondo, there is some sense in which the language of the participant and that of the internal-positivist theorist operate at the same level. Yet, alongside that, we have also seen that they are to be differentiated by their corresponding subject-matter: the contents of particular legal institutions, and legal concepts, respectively. And now it looks like accepters (participants?) do indeed formulate statements relative to both (concepts and institutional contents).19 Moreover, the question of the kind of reading we shall make of acceptance, which is the attitude distinctive of the internal point of view (internal2 here), seems to amount to an important aspect of the characterization of what a participant is (an aspect closely linked to the characterization of the kind of language we are to ascribe to participants).20

20Second, the passage seems to show that, in Redondo’s opinion, the choice between a cognitive or a non-cognitive language is of no major significance for her specific aims. I suspect, on the contrary, that it is a matter of the utmost relevance. That is what I will try to show in the next section, where I identify a problem in Redondo’s proposal, which I believe finds a cause, again, in the scarce analysis of the concept of participant.

4 The internal/external distinctions vis à vis a non-cognitive semantics

21The internal legal positivism proposed by Cristina Redondo depends on the drawing of the two internal/external distinctions we have seen. Hence, it is placed in an intermediate space between “skeptical” positivism, which adopts the external2 point of view –but at the cost of being restricted to assuming the external1 point of view– and interpretive antipositivism, which affords itself the adoption of the internal1 point of view, but only because it also adopts the internal2 point of view. The version of legal positivism Redondo offers is meant to be internal1, yet external2.

  • 21 I believe my argument also applies to other forms of non-cognitivism. Thus, my analysis may be take (...)

22To my mind, drawing such distinctions is only possible if one embraces a cognitivist reading of the attitude of acceptance distinctive of legal participants, by ascribing a cognitive character to the semantics of the language they employ. Conversely, the drawing of said distinctions is not conceptually tenable if one ascribes a non-cognitive semantics to the participants’ language –at least in some version of such non-cognitive semantics. That is the case, at the very least, with an expressivist semantics.21

  • 22 Schroeder 2008: 3.
  • 23 The link is usually mentioned, but argumentation specifically attempting to show it is harder to fi (...)
  • 24 See, e.g., Toh 2005 and 2015.
  • 25 See, e.g., Price 2013.

23According to expressivist semantics, the meaning of our statements is a function of our mental states.22 The mental state we are in when we proffer a statement makes for its meaning, inasmuch as our saying is an expression of our feelings. Hence, semantic expressivism notoriously requires at least a relaxation of the distinction between semantics and pragmatics; what we say is not thoroughly distinguishable from what we do or intend to do with our saying, since, on this conception, what we intend to do with our saying determines (the meaning of) what we actually say. As is well-known, expressivism –usually taken to be the heir of metaethical emotivism–23 was originally proposed as a way of understanding and depicting first-order moral language, but in time grew to encompass the normative domain more broadly (including legal language24). Moreover, there are also proposals of global expressivist semantics, conceived as appropriate for understanding and depicting language in general.25

  • 26 This is a reason, among others, to construe Hart’s analysis of internal legal statements as express (...)

24Hart thought that his distinction between internal and external points of view runs alongside his distinction between internal and external statements: an internal legal statement is a manifestation of the speaker’s internal point of view, whereas an external legal statement is a manifestation of the speaker’s external point of view.26 If the internal point of view is that of an accepter of a legal rule and if someone formulates an internal legal statement if, and only if, she linguistically expresses her acceptance of a legal rule, then it is such acceptance that determines and explains the statement in question qua internal. Conversely, when one admits a statement as an internal legal statement, one thereby admits that the agent who formulated it accepts some legal rule. Consequently, Redondo’s idea according to which we may only discriminate among kinds of statements in connection to the internal1/external1 divide, but not to the internal2/external2 divide, no longer holds. Therefore, the twofold internal/external distinction itself falls apart. By the lights of expressivist semantics, what Redondo calls the “internal2 point of view” determines corresponding internal statements, and what she calls the “external2 point of view” determines corresponding external statements. Precisely what she denies.

  • 27 Redondo 2018: 204, n. 207.
  • 28 Hart 2012: 291.
  • 29 Of course, Redondo is neither the first nor the only one to point out this ambiguity. As I said abo (...)

25In addition, I believe the foregoing explains another issue she mentions but does not discuss sufficiently. Redondo alludes to the Hartian concept of acceptance when she introduces her internal2/external2 distinction, yet when she introduces the internal1/external1 distinction she says27 that the internal point of view may be considered as the one MacCormick took to be a sort of “moderate” external point of view. As I see it, however, on this matter MacCormick was basically following Hart’s steps, without adding much substance. As might be recalled, Hart held than an observer external to a legal practice (i.e., a non-accepter) could, from her external point of view, formulate –external– statements of different types, among which are those not just limited to registering behavioural regularities and social reactions to them, but that also account for the community members’ acceptance of certain rules as standards and guides for conduct, and that account for their considering said conduct and observable reactions as required or justified by those very rules.28 I think this can be taken not as showing an ambiguity in Hart’s internal/external distinction,29 but as showing instead that such a distinction is built upon the presupposition that, in fact, the presence or absence of the attitude of acceptance in the agent makes for the kind of statement that the agent consequently formulates qua agent. In other words: Hart’s original distinction already contains an implicit rejection of the further twofold distinction Redondo proposes, and such rejection is founded upon the adoption of an expressivist semantics for the analysis of first-order legal language.

26I gather that an intuitive way of addressing the problem just raised might consist in holding that when Redondo claims to assume “a cognitivist reading of acceptance,” she is doing so regarding the characterization of the role (and language) of the legal theorist and not that of the legal participant. This way, she would not really be prejudging the philosophically controversial issue of how to best construe the semantics of the legal practice, but only fulfilling her explicit metatheoretical goal of offering a model with which to approach said practice theoretically. Thus, language in a cognitive vein would only belong to the theoretical model and endeavour, but that would not necessarily exclude beforehand the possibility of construing first-order legal language, in turn, on an expressivistic key.

  • 30 Perhaps sub-social, i.e., a product of the actions by relatively small groups (e.g., a particular s (...)

27This line of defense does not seem very promising, however. To begin with, note that it stems from acknowledging that, from an expressivist perspective, the twofold distinction Redondo offers is untenable. Consider the scenario that this defense claims to be possible –the scenario composed of a non-cognitive first-order legal language running parallel to a cognitive second-order theoretical language, based on Redondo’s twofold distinction between points of view. In such a scenario it is impossible from the point of view of participants to recognize the space for a theoretical, external stance, founded on that very distinction. Should it turn out to be right to understand participants as those who distinctively formulate statements expressive of rule-acceptances, one would also have to assume that a participant, qua participant, is unable to recognize a possible theoretical stance such as that modelled by Redondo. This seems clearly problematic. Theorizing social practices is valuable because it helps us to understand ourselves, inasmuch as such practices are created and developed by ourselves –agents, human beings. Law is a social practice30 because it is constituted by the actions, attitudes, and beliefs of human beings, which (somehow) add up altogether. Redondo makes this very point. And the law also has the peculiarity of being nearly ubiquitous: nowadays almost every human being is subject –more or less consciously– to legal practices. It would be strange if in order to be able to recognize the possibility of an external, non-accepting, non-committed legal theorizing, one should be somehow required to “forget” one’s character as a legal subject with legal responsibilities, capacities, and obligations. Should it be insisted that this is truly necessary, then what legal theory can add to our understanding of ourselves would become unclear. Note further that something quite analogous to this is claimed by interpretivists and that Redondo explicitly opposes them.

  • 31 See also Dei Vecchi 2019.

28I certainly believe that the prospects for a theoretical understanding of social practices (which, as such, are normative) are of a limited scope. Little can be theoretically discovered, made clear, and understood about the law when compared to what can be discovered, made clear, and understood about the law as participants of its practice (to begin with, because we thereby contribute to making it).31 But those like me who, contrary to interpretivists, believe that there is a conceptual space for this kind of theoretical, external approach –as modest as it may be– cannot at the same time deem or presuppose said approach to be inscrutable, inaccessible for those comprising the object of inquiry. The response I am here discussing has that implicit self-frustrating consequence and it is therefore not an appealing response.

29Finally, someone may perhaps try to claim that the foregoing discussion yields, more simply and directly, the lesson that there is good reason against construing first-order legal language in expressivistic terms. But I think that would be going too far, too hastily. This may be seen through an alternative to Redondo’s, that is yet capable of reaching similar conclusions. In the following section I offer a brief and preliminary sketch in that direction.

5 A new (old) alternative

  • 32 This does not exclude the possibility that they may be somehow founded in facts. A large part of th (...)

30Redondo’s strategy to delineate her internal legal positivism by means of the twofold internal/external distinction, may be fruitfully understood as an inquiry into the nature of conceptual investigations. After all, Redondo is interested in claiming (i) that there is some difference between legal participants and legal theorists, (ii) that the theorist is primarily concerned with the analysis of certain specific concepts created within the legal practice, (iii) that such analysis need not be committed to the political and moral values that the practice –and its concepts, in particular– embodies, and (iv) that such an analysis does not consist in surveying and classifying empirically verifiable data. Indeed, the main dispute between her position and what she calls “skeptic legal positivism” seems to be ontological in character. The latter endorses a stance that is reductionist-to-the-empirical of the concepts and meaning-contents that make for jurisprudence’s subject-matter, whereas Redondo assumes that such entities are abstract, irreducible to fact.32 The issue then amounts to establishing the prospects for a theoretical approach concerned with such kinds of objects. And here enter Redondo’s proposed definitions and distinctions, meant to show that a –let us say– “genuine” theory (i.e., adopting the external2 point of view) can be developed via the formulation of statements that are not empirical but –precisely– conceptual (internal1) in nature.

31I have tried to show what I take to be some shortcomings of this strategy. It seems to stipulate that legal concepts are exclusively the subject-matter of the theoretical endeavor in a way seemingly implausible from an intuitive perspective; it involves some gaps concerning other aspects of the distinction between the theorist and the participant (lacking a further characterization of the latter); and, above all, it is inconsistent, beforehand, with a potential construal of first-order legal language in terms of an expressivist semantics.

  • 33 Particularly, I believe, in other parts of chapter 5 and in chapter 1.
  • 34 Redondo pointed out to me that she does not introduce the distinction, but only makes it explicit, (...)

32Nevertheless, I think there is a path leading to a metatheoretical model very close to Redondo’s, but which does not necessarily suffer from the shortcomings just mentioned. I cannot offer the alternative in detail here, discussing the ways in which it would deal with such shortcomings and the further differences that would rise in connection to the many particular questions Redondo deals with in her book.33 So I must confine myself to noting that it is possible to conceive of the nature of conceptual investigations as a tertium genus amidst empirical and normative investigations, which nonetheless shares elements with both. And the twofold internal/external distinction is no requisite for it.34 I quote von Wright:

Reflexion on the grounds for calling things by words is a type of conceptual investigation. How is such investigation conducted? Here a warning is in place. The aim of the type of investigation of which I am speaking is not to ‘uncover’ the existing meaning (or aspect of meaning) of some word or expression veiled as it were behind the bewildering complexities of common usage. The idea of the philosopher as a searcher of meanings should not be coupled with an idea or postulate that the searched entities actually are there—awaiting the vision of the philosopher. If this picture of the philosopher's pursuit were accurate then a conceptual investigation would for all I can see be an empirical inquiry into the actual use of language or the meaning of expressions.

Philosophic reflexion on the grounds for calling a thing ‘x’ is challenged in situations when the grounds have not been fixed when there is no settled opinion as to what the grounds are. The concept still remains to be moulded and therewith its logical connexions with other concepts to be established. The words and expressions the use of which bewilder the philosopher are so to speak in search of a meaning.

  • 35 von Wright 1958-1960: sec. 3. Italics in the original. See also Strawson 1992: 7; Stevenson 1944: 8 (...)

I would not wish to maintain that the only fruitful way of dealing with the problems here is to mould the unmoulded meanings to make fixed and sharp that which ordinary usage leaves loose and undetermined. It has seemed to me however that conceptual inquiries which take the form of a moulding or shaping of concepts are particularly suited for the treatment of problems in ethics and some related branches of philosophy...35

33These are the general brushstrokes of a conception of conceptual analysis, which I dare to label as “classic.” It is important to remark that it is a conception of the endeavor itself, and not of a certain point of view from which to embark on it. Nuances aside, I think it is the same conception upheld by Hart with his only internal/external distinction. And it is, therefore, not incompatible with an expressivist rendering of first-order legal language. Thus, I would dispense with the twofold distinction Redondo offers and say that there is a logical space for a theoretical jurisprudence which is external, as it does not commit itself evaluatively with its subject-matter (since it neither presupposes nor expresses acceptance), and which consequently unfolds by means of the formulation of (“moderately”) external legal statements, which are conceptual in nature –and not strictly or merely empirical. Why not? Because they are not reports of statistically collected beliefs, but statements built upon the two-layered operation of perhaps the most fundamental philosophical input – that is, intuitions. I claim it is a “two-layered” operation –we might also say, “in two layers”– since the theorist, on this conception, works with her own intuitions about (which are) the intuitions the participants of the legal practice have about the concepts they actually employ. This is what marks the proposed perspective as external. Additionally, I think this conception helps to account for a distinction that is widely presupposed in jurisprudential work, yet rarely scrutinized: the distinction between description and (conceptual) reconstruction. In any event, it seems clear to me that, should we be pressed to begin with a sharp twofold divide between the descriptive and the prescriptive (evaluative) functions of language, identifying the normative domain with the prescriptive, then the typical formulation of the statements belonging to conceptual investigations, would fall on the side of the descriptive function. Bearing this in mind, recall that Redondo, when characterizing the “skeptical” positivism she confronts, claimed that according to such version, theoretical language is “descriptive and of an empirical content.” Well, we may now say that for the classic conception of conceptual analysis that I briefly reviewed here, theoretical language is descriptive and of a content which is –not empirical but, precisely– conceptual.

6 Conclusion

  • 36 May the hyperbole be excused.
  • 37 Making Hart an “internal” legal positivist (or, rather, something close to it).

34I believe there is space to endorse internal legal positivism or, rather, something quite similar to it. I find this label a bit infelicitous, since I prefer to say –having rejected the twofold internal/external distinction– that a theory that fits the classic framework I have outlined is thereby “external” and formulates “external” statements as well. This difference with Redondo’s characterization is merely linguistic and, therefore, irrelevant. However, more relevant is the other difference here examined, namely, that to show the logical space available for this version of legal positivism, it does not seem convenient to resort to a distinction between two senses of the internal/external binomial, which –as drawn by Redondo– turns out to be incompatible with an expressivist rendering of first-order legal language. Instead, we may come to an analogous “model”36 simply by taking hold of a conception of the nature of conceptual investigations defended by classic authors such as von Wright, Strawson, and Hart.37 While such model is analogous to Redondo’s, it is in some sense of a wider scope or, if you will, “ecumenism”: it does not prejudge the central and philosophically difficult question of what the most appropriate semantic reconstruction of first-order legal language is. Surely other differences in detail between both models will arise, but an inquiry into those will have to be left for another occasion.

Acknowledgments.— I thank Diego Dei Vecchi, Paula Gaido, and Cristina Redondo for their comments on a previous version of this paper, as well as the anonymous referees provided by Revus. I also thank Guilherme Vasconcelos for very helpful suggestions regarding the English translation of the original from Spanish.

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Goodman, N. (1983). Fact, Fiction, and Forecast (4th ed.). Harvard University Press. (First edition published in 1955.)

Hart, H. L. A. (1982). Essays on Bentham. Oxford University Press.

Hart, H. L. A. (2012). The Concept of Law (3rd ed.). Oxford University Press. (First edition published in 1961.)

Price, H. (2013). Expressivism, Pragmatism and Representationalism. Cambridge University Press.

Rapetti, P. A. (2019). Carrió y el enfoque emotivista sobre los desacuerdos jurídicos. In Sierra Sorockinas, D. (ed.), Notas (al margen) sobre derecho y lenguaje. Universidad del Externado de Colombia.

Rapetti, P. A. (2021). Ontología social y práctica jurídica: la actualización de un debate. Discusiones, 26, 255-287.

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Redondo, M. C. (2018). Positivismo jurídico “interno”. Klub Revus.

Schroeder, M. (2008). Being For. Evaluating the Semantic Program of Expressivism. Oxford Clarendon Press.

Stevenson, C. (1944). Ethics and Language. Yale University Press.

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Toh, K. (2005). Hart’s Expressivism and His Benthamite Project. Legal Theory, 11(2), 75-123.

Toh, K. (2015). [Erratum to] Four Neglected Prescriptions of Hartian Legal Philosophy. Law and Philosophy, 34(3), 233-268.

von Wright, G. (1958-1960). The Varieties of Goodness. The Glifford Lectures. URL: https://www.giffordlectures.org/books/varieties-goodness/i-varieties-goodness. Published also as The Varieties of Goodness, Routledge & Kegan Paul (1963).

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Notes

1 It is of course controversial whether, when it comes to accounting theoretically for the role of the legal participant, one “discovers” the kind of language distinctive of such role or rather “attributes” a kind of language to it. Furthermore, it is controversial whether there is only one kind of language characteristic of the role (perhaps the present paper could be taken as a hint to this being the case). Regarding the first issue, I would like to make clear that in this article I use the word “ascribe” in a neutral fashion, without taking sides on any of the views on offer.

2 Hence (plus some playful spirit) the title of this paper. As we will see, it is usual to draw a link between current expressivism and the metaethical emotivism most fashionable during the mid-20th century. As is known, emotivism represents normative statements favourable to X as “Hurrah: X” and those unfavourable to X as “Boo: X”. Along these lines, “Ehhh: X” could be taken as representing an expression of doubt or wondering.

3 Redondo 2018: 196. All translations of Redondo’s work are mine.

4 Redondo 2018: 203. Italics in the original.

5 Redondo 2018: 205.

6 Redondo 2018: 208.

7 Redondo 2018: 210-211.

8 Redondo 2018: 212.

9 Redondo 2018: 228-229. Throughout these pages Redondo actually talks about two kinds of discourses she designates as “theoretical.” However, she does so when debating with Dworkinian antipositivism, characterized as equating theoretical discourse and participative discourse. Thus, she opposes it to the possibility of a “theoretical” discourse relative to the analysis of institutional concepts, but does not dispute the possibility of the other “theoretical” discourse referred to by Dworkin, relative to the content of particular institutions. Even if Redondo challenges details of the interpretive understanding on this issue, she does not seem to reject the equivalence of this latter kind of “theoretical” discourse with that of the participants. Hence my claim in the main text.

10 And which constitutes a potential criterion for the elusive distinction I am speaking of.

11 See, e.g., Redondo 2018: 167.

12 Redondo 2018: 208. Footnotes omitted.

13 Should it be so, I would maintain that we are still missing something more about the notion of a participant, or at least an argument showing why the notion is otherwise theoretically irrelevant. After all, the strategy I am articulating implies that the participant does not equate to the accepter, nor to the theorist, nor to the agent who formulates first-order legal statements, nor to the agent who formulates statements of a certain (unitary) subject-matter.

14 Or, perhaps, that there is no single “genuine” reason, should that presuppose a concept of reason construed in a somewhat more substantialist way, that is, including minimum material restrictions and contents.

15 As Redondo occasionally seems to suggest; see e.g., Redondo 2018: 219-220.

16 Hart, 2012: 114-116; Hart 1982: 146. Strictly speaking, the distortion would take place if, in addition, one assumes (and attributes to Hart) the thesis of the unity of practical reasoning, giving moral considerations the paramount position or seeing them as the only genuine reasons. All of this is rejected in Redondo, 1999. The distortion would not take place, however, if one assumes instead the thesis of practical reasoning’s fragmentation, but in this case the option collapses into the relatively trivial and insufficient first option.

17 Redondo 2018: 208-209. Footnote omitted.

18 This is consubstantial to the basic understanding of the law as a social phenomenon (or socially constructed or grounded), which every positivistic approach, including the internal, shares. In this sense, even a rule created by an individual agent invested with authority, and directed to a specific sub-group of the community of which she may not even be a member (e.g., a tax rule directed to autonomous labourers of a particular sector), can be understood as something we (the members of the community) do for/to ourselves. Nevertheless, I do not mean by this that every statement of law can be construed this way, let alone that it ought to be, nor that doing it would be necessarily more illuminating. More modestly, I would just like to emphasize that the third-person perspective may in no way be regarded as exclusive.

19 Yet this consequence is, I am afraid, nothing but common-sensical. A definition stipulating that the language of legal participants does not cover matters relative to the content of legal concepts, whether more or less fundamental, would be just that - a stipulation. If that were instead claimed with a reconstructive, explicative, “more direct” aim (“more direct” meaning that no use of stipulations is made as a tool for the explication), then many intuitions clearly militating in the opposite direction should be dealt with. I conjecture that in the last quoted passage, Redondo is trying to offer a more direct thesis, reconstructive in nature, thus leaving aside her initial stipulation.

20 Diego Dei Vecchi has lucidly pointed out to me that in Redondo’s book there seems to be a further, implicit, distinction between two senses of acceptance, a distinction running correlative to those already surveyed. Thus, accepting1 would amount to understanding and adopting a conceptual framework, whilst accepting2 would amount to endorsing a particular justificatory theory. Additionally, one may say that a not-yet-formulated internal1 statement can be accepted anyway and be formulated afterwards from a first-person perspective. Still, this would not clear away the problem in Redondo’s characterization generated by her definition of internal1 statements as formulated from the third-person perspective.

21 I believe my argument also applies to other forms of non-cognitivism. Thus, my analysis may be taken as a sort of “false-target.” However, it is also true that a serious discussion of the incompatibility between Redondo’s proposal and non-cognitivism in general would require an examination of the details of the different versions of the latter, and here I lack the space to do so.

22 Schroeder 2008: 3.

23 The link is usually mentioned, but argumentation specifically attempting to show it is harder to find. I tried to offer a broad sketch of such argumentation in Rapetti 2019. It is also usual to conceive of metaethical emotivism as relative not to the semantics, but to the pragmatics of moral language. This may be true even of some versions of contemporary expressivism, but at the same time it is undeniable that a genuine expressivist semantics (and metasemantics) is already developed and on offer. See Bar-On & Chrisman 2009; Blackburn 1993 and 1998; Brandom 1994; Copp 2009; Gibbard 1990, 2003 and 2012.

24 See, e.g., Toh 2005 and 2015.

25 See, e.g., Price 2013.

26 This is a reason, among others, to construe Hart’s analysis of internal legal statements as expressivist. Note that the upcoming discussion of the internal/external twofold distinction Redondo proposes, reinforces such a reading. It is not, indeed, the traditional or most popular reading, but I do not find it unattractive.

27 Redondo 2018: 204, n. 207.

28 Hart 2012: 291.

29 Of course, Redondo is neither the first nor the only one to point out this ambiguity. As I said above, the expressivist reading of Hart’s is not very popular. As I also said, my discussion here may perhaps obliquely help strengthening such a reading.

30 Perhaps sub-social, i.e., a product of the actions by relatively small groups (e.g., a particular set of officials) within social communities of a wider range. The difference is inconsequential here.

31 See also Dei Vecchi 2019.

32 This does not exclude the possibility that they may be somehow founded in facts. A large part of the contemporary literature in metaphysics concerning notions such as grounding or anchoring is set out to explicate the difference I am referring to. I review part of this literature, relating it to legal ontology, in Rapetti 2021.

33 Particularly, I believe, in other parts of chapter 5 and in chapter 1.

34 Redondo pointed out to me that she does not introduce the distinction, but only makes it explicit, since it is already implicit in legal discourse. Should that be the case, then the alternative I propose here is directed to multiple addressees.

35 von Wright 1958-1960: sec. 3. Italics in the original. See also Strawson 1992: 7; Stevenson 1944: 86-87, 160-161 and 222-223. For some qualifications, see also Goodman 1983: 47 and 65, n. 2.

36 May the hyperbole be excused.

37 Making Hart an “internal” legal positivist (or, rather, something close to it).

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References

Electronic reference

Pablo A. Rapetti, Internal legal positivism: “Hurrah,” “Boo,” “Ehhh…”?Revus [Online], 48 | 2022, Online since 31 August 2022, connection on 29 September 2022. URL: http://journals.openedition.org/revus/7803; DOI: https://doi.org/10.4000/revus.7803

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About the author

Pablo A. Rapetti

PhD in Law (Girona). Professor of Law at the Instituto Tecnológico Autónomo de México (Mexico).

Address: Río Hondo 1 – Altavista – Álvaro Obregón – 01080 Ciudad de México, CDMX – México.

E-mail: pablo.rapetti@itam.mx

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