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Symposium on the internal legal positivism

On the possibility of an internal legal positivism

Jorge L. Rodríguez
This article is a translation of:
Sobre la posibilidad de un positivismo jurídico interno [es]

Abstracts

In her latest book Cristina Redondo provides an excellent defense of the position she qualifies as Internal Legal Positivism, according to which it is possible to formulate statements referring to the content of the law, conceived as a normative entity, that are purely descriptive and expressed from a point of view that does not presuppose their acceptance. In this paper I will restrict myself to three rather marginal observations, raising some doubts, first, about the strategy of contesting the so-called impossibility thesis; second, on a point related to the two senses of the distinction between the internal and external points of view that Redondo proposes to differentiate and, third, regarding a consequence that derives from it for the critical evaluation of interpretivist theories such as Ronald Dworkin’s. I then formulate some conclusions of that analysis.

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1 Introduction: The Impossibility Thesis

  • 1 Redondo 2018.

1Reading Cristina Redondo's works has always been a very enlightening and rewarding experience, and her latest book, Positivismo jurídico "interno",1 has not been the exception but rather the confirmation of that rule.

2I will focus here on an analysis of the final chapter of the book, where she exposes and defends the position that she qualifies as Internal Legal Positivism. I will not summarize all the ideas that Redondo discusses in this chapter but will instead focus fundamentally on her observations on the thesis of the impossibility of a descriptive analysis of a normative reality, and the two senses of the distinction between the internal and external points of view that she proposes.

3In Chapter V of her book, Redondo argues that in contemporary legal philosophy there is a deep disagreement between two positions regarding the method of approaching the knowledge of law. On the one hand, from a non-cognitivist conception associated with Legal Positivism –which she exemplifies with the realism of authors such as Guastini– all theoretical discourse referring to the law is necessarily formulated from an external point of view, is neutral and uncommitted to the beliefs that justify it. Its language is purely descriptive and refer exclusively to empirical facts, corresponding to a level of discourse different from that of the law itself. From this approach, a theoretical discourse concerning genuine normative contents and not empirical facts, formulated from the internal point of view of those who accept the norms to which they refer, would be impossible. On the other hand, from a cognitivist position associated with Antipositivism –which Redondo exemplifies with the interpretivism of authors such as Dworkin– all theoretical discourse referring to the law is necessarily formulated from an internal point of view, committed to the beliefs that justify it. The legal theorist is an acceptant of the law; his language has a justifying and normative character and, although more abstract, is on the same level as the discourse of law itself. From this point of view, an exclusively descriptive theory, formulated from the external point of view of someone who does not accept or assume as justified a normative object of study, would be impossible.

4In Redondo’s opinion, despite the notorious discrepancy between these two positions, both agree in maintaining that using a purely descriptive method to study a normative object is impossible. In law specifically, this would mean that the identification of normative contents necessarily constitutes a practical, justifying or normative discourse, and presupposes a point of view committed to the beliefs and values ​​that justify them, an idea Redondo calls the Impossibility Thesis (or the Necessity Thesis, depending on the point of view). For authors such as Guastini, this impossibility would result from the fact that, due to the ambiguity of normative formulations, any statement that identifies norms from them would be ascriptive, formulated from the internal point of view of the interpreter or acceptant, a point of view that would be incompatible with a theoretical study since the latter should be purely descriptive. For authors such as Dworkin, on the contrary, this impossibility would result from assuming that all theoretical discourse on normative contents would share the same normative character as its object, being necessarily interpretive and thus presupposing a substantive judgment committed to the values ​​that justify it.

5Redondo does not concentrate on an analysis of the reasons why the impossibility thesis should be rejected. What she does point out is that these reasons would not be empirical or deontic but conceptual, so it could not be argued against them that the Impossibility Thesis is incoherent with conceptual presuppositions assumed from an alternative conception that rejects it. It could, however, be argued that such reasons contradict the very starting points of the conception that seeks to justify it, or that they fail to resolve the problems that alternative theoretical schemes do resolve, or that they assume theses that are incompatible with scientific conclusions and attempt to show the reasons why it would be better to adopt an alternative point of view, the one defended by the so-called Internal Legal Positivism.

  • 2 As will be seen below and in Section 4, in Guastini’s case this is so because his reasons cannot be (...)
  • 3 See Redondo 2018: 198-199. In Chapter I of her book, Redondo criticizes Genoese realism, but not di (...)

6I find the identification of this common aspect in theories as dissimilar as those of Guastini and Dworkin very attractive, and I agree with Redondo in rejecting the Impossibility Thesis. However, I think it is important to point out two observations on these preliminary reflections. First, it is controversial, to say the least, that the arguments in support of the Impossibility Thesis are of a purely conceptual nature.2 Second, as stated, Redondo does not examine the reasons offered, both from realism and from interpretivism, in support of the Impossibility Thesis, although she notes authors that have objected to them.3 However, this seems to concede too much to such positions. In my opinion, to justify the alternative conception offered by Internal Legal Positivism, it is not enough to show that there are good reasons to adopt such a position, and that from this point of view it is possible to draw conceptual distinctions that the defenders of the Impossibility Thesis are incapable of recognizing. It is necessary, and in fact it is possible, to challenge the arguments in support of this latter thesis, showing that they are inconsistent or that are unable to justify it, since, as its name indicates, this thesis disqualifies the very possibility of Internal Legal Positivism. I develop these two claims in the next section.

2 Legal realism and the Impossibility Thesis

  • 4 See, for instance, Bouvier 2012: 271; Chiassoni 2013; Ferrer Beltrán and Ratti 2011.
  • 5 Perhaps some/all of these theses should be refined or specified to fully account for the richness o (...)

7In order to examine the two points raised above, I am going to dwell for now only on a position like Guastini’s. To justify his idea that a theoretical/descriptive discourse formulated from the external point of view is only possible regarding empirical facts and not normative contents, Guastini relies on the following theses, which could be taken as the central theses of Genoese realism:4 (1) a clear distinction must be made between normative provisions or formulations (texts) and norms (their meanings), which would be the result of interpretation; (2) normative provisions or formulations admit more than one interpretation, since there is no one-to-one correspondence between normative formulations and norms; (3) interpretive statements formulated by judges and jurists, whose typical structure would be "Normative formulation NF means N", allow norms to be obtained from provisions or normative formulations, so that legislators would not actually produce norms but only normative formulations, and (4) interpretive statements are ascriptive and, therefore, similar to stipulative definitions, and thus interpretation is not a cognitive but a decisional activity.5

  • 6 The distinction between norms and normative formulations is, however, difficult to harmonize with t (...)

8From this reconstruction, it should first be noted that although it is very important to distinguish, as thesis 1 does, between norms and normative formulations,6 thesis 2, according to which provisions or normative formulations would admit of more than one interpretation, is not, as Redondo seems to consider, a purely conceptual thesis. If there are arguments to justify the claim that any normative formulation is ambiguous, those arguments should refer to what the existing interpretive conventions in the law in fact determine, and to the characteristics of its language and its methods of interpretation, which cannot be but empirical considerations. And, thus interpreted, this thesis actually seems to be the result of a fallacy of inadequate generalization: in many cases normative formulations admit of more than one interpretation, but this is not unrestrictedly valid for all of them. There could be some normative formulations that correspond to only one single norm. I can see no conceptual argument to exclude the possibility that, faced with a certain text, the various available methods of interpretation converge on the same alternative. Regarding some normative formulations, the legal community could agree on the identification of a certain meaning. That convergence could of course be challenged, and the challenge could even be successful and the interpretation changed, but that a convention can change does not authorize denying the existence of conventions. Consequently, when there is a linguistic convention assumed by the legal community at stake, one can speak of interpretive correctness relative to that convention.

  • 7 Redondo argues that if the knowledge of explicit or implicit interpretive criteria does not determi (...)
  • 8 See, for instance, Chiassoni 1998: 37-38, 49-55.

9In any case, even if every normative formulation admitted of more than one interpretation, this still would not justify the thesis of the impossibility of a theoretical discourse with respect to normative contents, since if a normative formulation NF is ambiguous, nothing prevents the legal theorist, speaking from an external point of view, to maintain that in such a case the law is composed either by interpretation N1 or by interpretation N2.7 Furthermore, the fact that different methods of interpretation produce different results does not imply that there cannot be clear or easy cases that receive exactly the same solution for all admissible interpretations. Against this it could be argued that the fact that judges adhere to the clear meaning of legal texts in easy cases does not necessarily mean that interpretation is a purely cognitive operation, since a decision would also be required there: to conform to the prevalent interpretation or to use the standard interpretive arguments in that context instead of departing from them and choosing a different meaning.8 This is undoubtedly true, but exclusively because the function of judges is to make decisions. The relevant question is not whether deciding according to the clear meaning is an act of knowledge or of decision, since by definition it is a decision; what is relevant is whether legal norms provide, at least in certain cases, guidelines for evaluating the correctness or incorrectness of judicial decisions.

10As for thesis 3, there is no doubt that legislators and other lawmaking organs enact certain texts or normative formulations, but they do not enact mere signs devoid of any meaning. The goal pursued through the production of such texts is not simply to stain papers but to regulate behavior through norms. The fact that the normative formulations enacted by legal authorities may have problematic cases of application or sometimes give rise to more than one interpretation, should not make us lose sight of the fact that in the vast majority of cases they are understood by their addressees, and thus they can follow them and regulate their conduct through them without the mediation of judges or legal interpreters. On this account, the claim that norms are only obtained from normative formulations through the interpretive statements of judges and jurists cannot be accepted without qualification.

11This is connected with the scope of thesis 4, according to which interpretive statements would be ascriptive and not purely cognitive. It should be noted here that discussing conceptions of interpretation exclusively in terms of the truth conditions of interpretive statements ("Normative formulation NF means N") can be misleading. Faced with clear cases, interpretive statements are not usually formulated: we simply understand that these cases are within the scope of the norm in question. When an interpretative statement is made, it is usually because there is some doubt or dispute as to what the provision means. This is what gives thesis 4 its appearance of plausibility. If we use a restrictive sense of interpretation, according to which in clear cases interpretation is not required since we simply grasp the meaning of legal norms, and we use “interpretation ” only to refer to the attribution of meaning to a normative text when there are doubts or controversy about it, then the truth of thesis 4 could be preserved. This is because in the face of problematic cases the law would be indeterminate, and interpretation would always imply a choice on the part of the interpreter. If this were the correct way to read thesis 4, however, both thesis 1 and thesis 3 would have to be abandoned or reformulated because it could no longer be held that norms are the result of interpretation, nor that they are obtained from normative formulations through interpretive statements, nor that legislators only produce normative formulations and not norms.

  • 9 See Guastini 2012; Guastini 2017: 33 ss.
  • 10 See Guastini 2012.
  • 11 In this he follows Kelsen 1960: 351 ss.
  • 12 Guastini has also clarified that “interpretation” can be understood as resulting from two different (...)

12Guastini himself has proposed distinguishing between a radical and a moderate interpretive skepticism, and considers the former untenable.9 In his view, claiming that normative formulations are ambiguous is different from claiming that they are devoid of any meaning whatsoever. Skepticism, in its most radical version, would hold that there is no meaning before interpretation, and would lead, according to Guastini, to unacceptable consequences such as the non-existence of rules or linguistic conventions.10 Unlike the radical version, moderate skepticism would maintain that interpreting does not consist in attributing just any given meaning to a text, but only one of those included within the framework of legally admissible meanings.11 The admissibility of meanings would be determined by common usage, interpretive methods, and dogmatic theories. Moderate skepticism would thus restrict the scope of the ascriptive nature of interpretive statements to decisions made within that framework. However, this idea would be tantamount to admitting that there is a set of interpretations validated by the legal community and others that are disqualified by it, which is equivalent to accepting the existence of certain criteria to delimit one from the other.12 Thus, if a norm determines a framework of legally admissible decisions, though it could be argued that the selection of one among the admissible alternatives is a decision that cannot be classified as correct or incorrect, those decisions that exceed the framework of admissible interpretations will be unquestionably incorrect, and thus, at least in certain cases, evaluation guidelines would be available for determining the correctness or incorrectness of judicial decisions based on legal norms. Hence, the thesis of the impossibility of a theoretical/descriptive discourse formulated from the external point of view regarding normative contents could no longer be maintained.

3 An ambiguity in the distinction between internal and external point of view

  • 13 Although contextually it is clear why Redondo qualifies one of them as semantic and the other as pr (...)
  • 14 See Winch 1958: 111-120.

13Redondo’s central argument against the Impossibility Thesis and in defense of Internal Legal Positivism consists in pointing out an ambiguity in the expressions "internal point of view" and "external point of view", and suggesting that a semantic and a pragmatic version of this distinction should be differentiated.13 In a first sense, the distinction between these two points of view would differentiate, á la Winch,14 two methodological and discourse approaches with which the study of an institution or social practice can be attempted. Here the external point of view would be assumed from the perspective of a third party who intends to describe and explain only the empirical or behavioral aspects of an institution, whilst the internal point of view would be that of someone who, also from the perspective of a third party, tries to capture and explain the concepts with which the participants or acceptants refer to an institution, the meanings that they attribute to it. In a second sense, the distinction between these two points of view would be used to indicate the presence or absence of a practical attitude of acceptance or approval towards the normative contents of an institution. Here, the external point of view would be that of someone who is not committed to the justification of a social institution, does not adhere to or accept its rules or presuppose the truth of a set of beliefs that justify it. The internal point of view, in its turn, would be that of someone who is committed to its justification, adheres to or accepts its rules, or implicitly presupposes the truth of a set of beliefs that justify it. To differentiate these two ways of understanding the distinction between the internal and the external points of view, Redondo proposes calling the first the external1 and internal1 points of view, and the second the external2 and internal2 points of view.

14Redondo claims that the distinction between the external1 and internal1 points of view would offer a basis for identifying different types of discourse and theories and, consequently, of types of statements about social institutions, because though both the statements formulated from the external1 and from the internal1 points of view would be descriptive, the former would refer to empirical data or causal correlations while the latter would refer to normative concepts or contents. From this perspective, the need to assume the internal point of view in order to account for institutional concepts or normative contents would mean rejecting a causal/empiricist perspective and assuming that the only way to grasp or understand a social institution would be to adopt the internal1 point of view, a thesis to which Internal Legal Positivism is committed.

  • 15 Redondo 2018: 211.
  • 16 Redondo 2018: 211.

15By contrast, the distinction between the external2 and internal2 points of view would not allow the identification of two types of discourse or semantic contents, nor would it refer to different types of objects, but rather "... the same type of discourse referred to a normative object or content can be formulated or proposed with the attitude of the external2 point of view or that of the internal2 point of view”.15 In other words, this distinction would not involve a distinction between two different types of statements: “The ideas of internal2 and external2 points of view refer to the pragmatic attitude with which any internal1 statement is formulated, i.e., a statement about the meaning or content of an institution”.16

16Based on these two ways of understanding the distinction between the internal and external points of view, Redondo maintains that the notion of the internal2 point of view is essential to account for the existence of a social institution, since that attitude plays a constitutive role for a social institution to come into existence or to remain in time. Thus, the internal2 point of view would undoubtedly have ontological relevance. Now, the defenders of the Impossibility Thesis, by not differentiating the two meanings of the distinction between the internal and external points of view, assign to the former both an ontological or constitutive role, in the sense that a social institution exists if a group adopts the internal point of view, and a methodological or epistemic role, according to which a social institution can only be identified and explained by adopting the internal point of view. However, Redondo argues that in the first case the reference would be to the internal2 point of view, while in the second case the reference would be to the internal1 point of view. The fact that the internal2 point of view has ontological relevance because it constitutes a necessary condition for the existence and subsistence of a social institution would offer no reason to justify its also being a necessary condition to identify and know it as such. And to admit that the internal1 point of view has methodological relevance because it constitutes a necessary condition for the identification of the content of an institution, would offer no reason to justify its being a necessary condition for the existence or subsistence of a social institution. Thus, by not differentiating these two senses of the distinction, the defenders of the Impossibility Thesis become unable to identify the sense in which the thesis would be correct, and in which sense it would be incorrect.

  • 17 Redondo 2018: 239.

17Again, I fully agree here with the core of Redondo’s argument, and I think it is very illuminating to clear up this ambiguity in the distinction between the internal and the external point of view in order to appreciate the argumentative fallacy committed by the defenders of the Impossibility Thesis. My only doubt regards the character of the distinction between the two senses of internal and external points of view. As indicated, Redondo claims that only the distinction between internal1 and external1 points of view involves two different types of statements, not the one between assuming an internal2 or external2 points of view. This seems a bit dark to me. If what Redondo means by this is that adopting the internal2 or external2 point of view does not necessarily imply formulating statements of different types, the thesis is correct in the sense that, as Redondo explains, the same internal1 statement could be formulated presupposing or not the truth of certain beliefs that justify it, or the acceptance of the rules in question, i.e., it could be formulated assuming the internal2 or external2 point of view. However, Redondo seems to hold something stronger, namely, that assuming the internal2 or external2 point of view would allude to the pragmatic attitude with which internal1 statements are formulated, which seems to indicate that from the internal2 or external2 point of view only internal1 statements can be formulated. This still would not be a problem if it meant that from the internal2 or external2 point of view it only makes sense to formulate statements about normative contents, not about empirical facts. But Redondo also claims that "...every statement in which institutional concepts are used is an internal statement1 that is uttered, inevitably, either from an internal2 point of view, or from an external2 point of view."17

  • 18 When saying that from the internal2 point of view purely normative or evaluative statements can be (...)

18My doubt here is that internal1 statements, though referring to normative contents and not to empirical facts, are still purely descriptive just like external1 statements. However, when referring to an institution or social practice, whether exclusively in terms of empirical facts or in terms of normative contents, it is possible to formulate either purely descriptive statements or normative or evaluative statements about it, but only the former would be included in Redondo’s classification of external1 and internal1 statements. Therefore, it does not seem correct to maintain that whenever institutional concepts are used, purely descriptive statements are formulated. On the other hand, although it is possible to formulate internal1 statements either committing or not committing to their acceptance, i.e., from the internal2 or external2 point of view, from the internal2 point of view it is also possible to formulate purely normative or evaluative statements to justify normative contents, which cannot be done from the external2 point of view.18 To make this clear perhaps it would have been preferable to draw the distinction between the external1 and internal1 points of view more broadly, only as a distinction between those that refer to an institution exclusively in terms of its empirical or behavioral aspects and those that refer to an institution in terms of normative contents, but without also assuming that in both cases descriptive statements are formulated from the perspective of a third party.

  • 19 See Hart 1961: 110-111. In his own way, Hart not only distinguishes between the internal point of v (...)
  • 20 See Redondo 2018: 224.

19Although, as Redondo rightly points out, Hart formulated somewhat ambiguous reflections when referring to the distinction between the internal and the external points of view, one issue that Hart highlights is that whoever adopts the internal point of view in the face of a set of rules accepts them and uses them as guides for their own behavior and as a guideline for the critical evaluation of the behavior of others.19 But whoever uses rules to evaluate her own actions or those of others, in doing so she does not formulate descriptive statements but rather normative or justificatory statements. Moreover, whoever adopts the internal2 point of view, although she could formulate internal1 statements, she ordinarily uses the norms in the manner indicated above, thereby formulating non-descriptive statements. In fact, Redondo herself speaks later of internal2 concepts.20 Now, if there is not only an internal2 point of view from which internal1 statements can be formulated, but also internal2 concepts, then the statements referring to the latter could not be purely descriptive statements like internal1 statements: they would have to be normative themselves. That being so, there are statements that refer to institutional or normative concepts that are not internal1 statements, but purely normative or justificatory statements formulated from the internal2 point of view.

4 Interpretivism and skepticism

  • 21 Dworkin claims that a sociological concept of law would be used when referring to it as a particula (...)
  • 22 See Ferrajoli 1989.

20This brings me to my last observation. Commenting on Ronald Dworkin’s interpretive theory, Redondo maintains that from this point of view, to identify the concept of law, i.e., what the law is, is to propose a theory about what the law should be, and not just any theory whatsoever but one that shows the beliefs of the participants in their best light and the way in which they develop over time. It follows that the language of a theory identifying the concept of law would not be of a different kind than the language of law. Dworkin, as is known, distinguishes four different types of concepts of law: a sociological concept, a taxonomic concept, a doctrinal concept, and an ideal (aspirational) concept, of which the first two would be determined exclusively by their criteria of use (criterial concepts), and the last two would be interpretive concepts.21 But whereas by identifying a doctrinal concept of law, the theorist would commit herself to the truth of some theory that justifies an effectively existing type of institution, by identifying an ideal concept, the theorist would commit herself to the truth of a theory that should justify that kind of institution, even though she may not endorse some of its specific aspects. The task of identifying an ideal concept of law would have a fundamentally critical or utopian objective, which Redondo exemplifies with the work carried out by Luigi Ferrajoli in Diritto e Raggione22 by proposing a concept of minimal criminal law.

21I believe that what was indicated in the previous section turns out to be important here. Ferrajoli’s theory on a minimal criminal law is normative or justificatory; it does not intend to describe how contemporary criminal systems in fact are, but how they should be, so that their statements are not internal1 statements. Those statements refer to normative contents and not to empirical facts, but they are not internal1 statements because they are not descriptive. They also suppose a commitment to the justification of the practice to which they refer, and thus they involve the assumption of the internal2 point of view. And the same must be observed with respect to the doctrinal concept of law in Dworkin’s classification. Redondo correctly observes that both the doctrinal concept and the ideal would need to be situated in the internal2 point of view. They would be, as she says, internal2 concepts of an interpretive or justificatory nature, but based on what was stated in the preceding section, Redondo seems committed to maintaining that the statements that refer to them would be internal1 statements and, therefore, descriptive rather than normative or justificatory statements themselves.

22On the other hand, Redondo holds that in Dworkin’s interpretivist vision, even someone who tried to defend a skeptical thesis according to which a certain type of institution totally lacks justification, would assume an internal2 point of view since her analysis would assume some kind of substantive moral argument. On this Redondo clarifies that if the external2 point of view is conceived as an Archimedean position, not committed in absolute terms, the radical skeptic would effectively be located in the internal2 point of view. But if the external2 point of view is conceived as an uncommitted position in relation to a certain institution, the radical skeptic would find himself in an external2 point of view with respect to it, since she would not be committed to a theory that justifies that institution but to one that holds that no theory justifies it.

  • 23 See Redondo 2018: 214.

23From this analysis Redondo concludes that once it is accepted that institutional concepts are interpretive, it would be conceptually impossible to propose a concept applicable to an institution without adopting the internal2 point of view. Moreover, she asserts that proponents of the Impossibility Thesis, such as Dworkin, would explicitly reject the distinction between the two senses of the internal and external points of view, and adds that if the way such views understand concepts is accepted, their conclusion "would be impeccable."23

  • 24 See Redondo 2018: 214.

24Here again, as was observed at the beginning when examining a position like Guastini’s, Redondo’s considerations seem too weak as a response to interpretivism, since it would suffice to reject the distinction between the two senses of the internal and external points of view for a position like Dworkin’s to be admissible. A plausible defense of Internal Legal Positivism should show that it is necessary to accept this distinction and that the Impossibility Thesis is wrong, disqualifying the arguments offered to support it. Instead, Redondo limits herself to claiming that Dworkin’s arguments in support of the impossibility of an Archimedean or neutral position in absolute terms would not affect the possibility of referring to normative contents from an external2 point of view, because adopting the external2 point of view with respect to an institution would be incompatible with presupposing a theory or set of beliefs that justify that practice, but compatible with assuming, in general, moral commitments.24

  • 25 See Redondo 2018: 226.
  • 26 See Dworkin 1986: 78-85; Dworkin 1996; Dworkin 2004: 141-143 and Dworkin 2011: 40-68.

25However, from what has been indicated above, Redondo seems to be here thinking of Dworkin’s criticism of a skeptic who commits herself to a normative position that holds that none of the possible justificatory theories is valid or correct with respect to a certain institution.25 This is what Dworkin qualifies as internal skepticism, which defends a substantive or first-order moral thesis according to which the truth of any moral judgment on a certain issue should be rejected. External skepticism, on the other hand, pretends to formulate second-order statements, outside from the realm of morality, maintaining that moral judgments are not true, either because they are all false or because they lack truth values. In other words, external skepticism would be skepticism at the metaethical level and, therefore, Dworkin’s criticism of this position amounts to a criticism of the possibility of metaethics, of "talking about morality from outside of morality", so to speak.26 This criticism may not affect the possibility of assuming an external2 point of view, as Redondo characterizes it, but it does affect Internal Legal Positivism. This is so because Internal Legal Positivism maintains that it is possible to formulate statements referring to normative contents that are purely descriptive and from a point of view that does not presuppose their acceptance, when Dworkin’s arguments against external skepticism are aimed at showing precisely that such a formulation is impossible.

26Dworkin’s critique consists in holding that external skepticism is self-contradictory, since its conclusion that no moral judgment is true would be a first-order moral judgment, and a first-order moral judgment can only be justified by appealing to moral premises, since it would otherwise commit Hume’s fallacy, i.e., the derivation of a normative conclusion from non-normative premises. Dworkin argues as follows: suppose someone asserts a certain moral judgment, such as "Slavery is unjust." Suppose now she adds "It is true that slavery is unjust", or "It is an objective fact that slavery is unjust". What would have been added with these new expressions? For Dworkin, holding that a moral judgment is true or objective does not imply that there are strange facts or moral particles in the universe that make it true. The only difference between asserting "Slavery is unjust" and "It is an objective fact that slavery is unjust" would be a greater emphasis of the second expression, so that it would also be a first order moral judgment. And since "It is an objective fact that slavery is unjust" would simply be a more emphatic way of saying "Slavery is unjust," rejecting the objectivity of the injustice of slavery, as the external skeptic claims, could only consist in developing a moral argument against the injustice of slavery.

  • 27 In line with this idea, Dworkin has attempted to show that a positivist theory of law like Hart’s w (...)

27Though Dworkin’s entire argument is too sophisticated to answer adequately here, that there is a strong air of paradox in all of his reasoning cannot be ignored. In the first place, external skepticism would be unintelligible for Dworkin because it would pretend to reject something that would make no sense to maintain, i.e., that there are moral facts that determine the truth or falsity of our moral judgments. But this is exactly what the external skeptic holds: that there are no moral facts or that moral judgments lack truth values. With this, Dworkin has granted the skeptic everything that she claims to defend, and the rest of Dworkin’s argument would be nothing but speculation about the allegedly normative consequences that would derive from that meta-ethical thesis.27

28But, second, suppose Dworkin is right and external skepticism is impossible. This could be so, according to Dworkin, because pretending to refer to morality “from outside” is something that could not be done. But then it should be deemed equally impossible to examine external skepticism “from the outside” and claim that it is an indefensible position. The point of view from which Dworkin is speaking to us is somewhat mysterious. If in his opinion the external skeptic cannot formulate propositions about morality, as would be needed to affirm that moral judgments are not objective, then how is it possible that to justify such an assertion Dworkin himself does so, as when he maintains that affirming “It is an objective fact that slavery is unjust” is simply an emphatic way of saying “Slavery is unjust”? This does not seem to make sense, but the only alternative interpretation would be that when Dworkin calls the external skeptic’s position impossible or unintelligible, what he is really doing is offering a moral criticism of his position. In short, if with his claim that predicating objectivity of a moral judgment is simply a way of emphasizing it, Dworkin formulates a thesis about the semantics of moral discourse, then he cannot deny the external skeptic that he can equally hold certain semantic or philosophical theses about moral discourse. If, on the other hand, Dworkin does not pretend to be formulating a thesis about the meaning of moral discourse but a moral thesis, he would be saying something similar to "It is morally reprehensible to maintain that predicating objectivity of our moral judgments is something different from affirming those moral judgments with greater emphasis”. But then the skeptic’s answer seems even easier: the moral objections that can be directed against a certain philosophical thesis do not prevent its truth. In either of the two alternatives considered, the external skeptic’s position may or may not be considered justified, but there is nothing unintelligible or impossible about it.

29Dworkin is undoubtedly right in holding that, since moral discourse is an argumentative practice consisting of offering substantive reasons in support of a certain position, whoever formulates judgments from the internal point of view of a certain moral conception (from the internal2 point of view using Redondo’s terminology), could not justify his position by appealing to metaethical propositions about whether moral judgments are susceptible to truth values and, in that case, on what determines their truth or falsity. But from the fact that one cannot appeal to arguments "outside morality" to justify a substantive moral position, it does not follow that, apart from having an opinion on a substantive moral issue and arguing in its defense, a certain metaethical position can be defended as well. The external skeptic as such confines himself to arguing at this latter level of analysis, arguing that there is no objectivity in moral discourse, but in the domain of substantive moral argumentation he need not reject every possible position. In other words, a moral judgment such as “Slavery is unjust” is expressed from the internal2 point of view of a certain moral conception, and within it there may or may not be good reasons to support it. If there are, it is possible to affirm, as a normative proposition, that from the moral conception of those who defend it, it is true that slavery is unjust. In this way, it could be argued that if it is possible to speak of the truth of such judgments, their truth is relative to a certain moral conception. An external skeptic need not deny this way of presenting things. What she would reject is that there is such a thing as a moral conception that is privileged or "correct" and that allows any moral judgment to be objectively evaluated.

  • 28 See Caracciolo 2003.

30Dworkin has only two alternatives here. On the first, he can accept this latter view, in which case he would not only have to admit the possibility of skepticism in metaethics but would himself to be a skeptic in metaethics. If he instead rejects it, he would be assuming that there is only one moral conception or that one of them is, for some reason, privileged, true, or correct. Now, as Caracciolo argued many years ago, the criterion for establishing that a certain moral conception is true or correct compared to others cannot be formulated from within itself but only from outside, since from the internal2 point of view of each moral conception, such moral conception is understood as the correct domain.28 Consequently, Dworkin cannot reject the possibility of skepticism in metaethics because he either accepts that there is a plurality of moral conceptions without any of them being privileged, in which case his own position collapses into skepticism, or to be able to maintain that only one is correct, he must admit the possibility of speaking of morality from outside of it, which is precisely what he criticizes of skepticism in metaethics. Developing this line of criticism, I believe that an argument can be constructed to show that from a point of view like Dworkin’s, it is not possible to justify the thesis of the impossibility of a purely descriptive method of approximation when the object to be known is normative.

5 Conclusions

31In these pages, I have tried to highlight the merits of Redondo’s defense of Internal Legal Positivism, and of the possibility of developing a purely descriptive theory of a genuinely normative object of study like the law. Beyond some minor clarifications, my only contribution in this regard has been to stress the following basic idea.

  • 29 See Nino 1984/1989: 53.

32Commenting on Kelsen’s ethical skepticism, Carlos Nino argued that the Austro-Hungarian philosopher derives from this position, without additional premises, a demand for tolerance regarding alternative moral conceptions.29 Nino is correct in objecting to this derivation as unfounded: a principle of substantive morality, such as the requirement of tolerance, cannot be derived from a metaethical thesis that does not have such a character. However, the basis for that objection also implies that a supporter of skepticism in metaethics would not be in any way undermined by his skepticism in formulating substantive moral principles himself, so long as he adopts the internal point of view of a certain moral conception, something that Nino does not seem willing to recognize.

  • 30 See Redondo 2018: 244 ss.
  • 31 Although I will not try to justify it here, I do not believe that a similar claim can be formulated (...)

33Analogous considerations can be formulated, I believe, regarding the general methodological perspective that Redondo assumes in her book, according to which there would not be a single adequate method to approach the study of law and social institutions in general.30 This healthy pluralist assumption does not entail a correlative requirement to be tolerant regarding those who, as Dworkin does explicitly,31 disqualify as impossible or incoherent a descriptive analysis of a normative reality as postulated by Internal Legal Positivism. From the internal point of view of Internal Legal Positivism, so to speak, it is possible and necessary, as I have tried to argue, to offer an answer to the arguments that try to justify the thesis of the impossibility of this perspective of analysis of the legal phenomenon.

—Acknowledgment.— I want to thank the organizers and participants of the discussion workshop on the book Positivismo jurídico "interno", held at the Law School of the University of Buenos Aires on September 10th, 2019, and Eugenio Camadro Jáuregui, Claudina Orunesu, Pablo Perot, Tobías Schleider and two anonymous referees for their valuable criticisms and suggestions on a previous version of this work.

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Bibliography

Bouvier, H. (2012). Particularismo y derecho. Un abordaje postpositivista en el ámbito práctico. Marcial Pons.

Caracciolo, R. (2003). Conocimiento moral. Talk presented at the XII Seminario de Filosofía y Teoría del Derecho, Vaquerías, Córdoba.

Chiassoni, P. (1998) L’ineluttabile scetticismo della ‘scuola genovese’. Analisi e diritto 1998, 21-75.

Chiassoni, P. (2013). Normativismo ingenuo v. normativismo crítico. Analisi e diritto 2013, 33-44.

Dworkin, R. (1986). Law’s Empire. Harvard University Press.

Dworkin, R. (1996). Objectivity and Truth: You'd Better Believe it. Philosophy and Public Affairs, 25(2), 87-139.

Dworkin, R. (2004). Hart´s Postscript and the Point of Political Philosophy. Oxford Journal of Legal Studies, 24(2), 1-37.

Dworkin, R. (2006). Justice in Robes. Harvard University Press.

Dworkin, R. (2011). Justice for Hedgehogs. Harvard University Press.

Endicott, T. (2007). Adjudication in the Law. Oxford Journal of Legal Studies, 27(2), 311-326.

Ferrajoli, L. (1989). Diritto e ragionne. Teoria del garantismo penale. Laterza.

Ferrer Beltrán, J. & Ratti G.B. (2011). Introducción. In J. Ferrer Beltrán & G.B. Ratti (eds.), El realismo jurídico genovés (pp. 11-14). Marcial Pons.

Guastini, R. (2012): El escepticismo ante las reglas replanteado. Discusiones, 11, 27-57.

Guastini, R. (2015). Un enfoque realista acerca del derecho y el conocimiento jurídico. Revus. Journal for Constitutional Theory and Philosophy of Law, 27, 55-65.

Guastini, R. (2017). Saggi scettici sull’interpretazione. Giappichelli.

Hart, H.L.A. (1961). The Concept of Law. Oxford University Press.

Kelsen, H. (1960). Reine Rechtslehre. Frans Deuticke.

Nino, C.S. (1989). Ética y derechos humanos (2nd ed.). Astrea. (Original work published 1984).

Perot, P.M. & Rodríguez, J.L. (2010). Desacuerdos acerca del derecho. Isonomía, 32, 119-147.

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

Winch, P. (1958). The Idea of a Social Science and its Relation to Philosophy. Routledge.

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Notes

1 Redondo 2018.

2 As will be seen below and in Section 4, in Guastini’s case this is so because his reasons cannot be exclusively conceptual but rather empirical. In Dworkin’s case, if they are taken as conceptual they are inconsistent and to preserve their consistency they must be interpreted as normative.

3 See Redondo 2018: 198-199. In Chapter I of her book, Redondo criticizes Genoese realism, but not directly regarding the Impossibility Thesis.

4 See, for instance, Bouvier 2012: 271; Chiassoni 2013; Ferrer Beltrán and Ratti 2011.

5 Perhaps some/all of these theses should be refined or specified to fully account for the richness of Genoese realist thought in general, and of Guastini’s thoughts in particular. In any case, the point here is not focused on developing a global critical evaluation of Genoese realism –which, on the other hand, would be impossible within the limited framework of this paper–, but on determining whether the Impossibility Thesis can be justified on these bases.

6 The distinction between norms and normative formulations is, however, difficult to harmonize with the idea that norms are the result of interpretation, and that this result is expressed in statements of the form “Normative formulation NF means N”. By distinguishing norms from their formulations, it is assumed that while the latter would be purely syntactic entities (uninterpreted texts), norms would be either purely semantic entities (meanings) or texts with an interpretation (syntactical-semantic entities). But if it is additionally assumed that norms are obtained through interpretation, and that interpretation produces statements of the form "Normative formulation NF means N", in the latter, N can only be another expression of language, although while NF is being mentioned, N is being used. For this reason, interpretive statements would be equivalent to the translation of a linguistic expression into another linguistic expression, which, though more understandable than the first, would also require interpretation. Consequently, either interpretation, although it can be revealed through interpretive statements, does not require them, or it would never be possible to obtain norms through interpretive statements.

7 Redondo argues that if the knowledge of explicit or implicit interpretive criteria does not determine a single correct answer, this does not undermine a cognitive thesis on interpretation. This is so because if, for example, it is true that the constitution incorporates a concept of freedom with various admissible and incompatible interpretations, the only thing that would follow from this is that the constitution incorporates contradictory precepts (see Redondo 2018: 27). But in fact, if there is more than one admissible interpretation, this does not imply that all of them are part of the law. The theorist in such a case may describe the law as being composed of N1 or N2, but it would be incorrect for her to say that it is composed of N1 and N2. If I came home and said “Honey, I bought a radio”, it would not make sense for my wife, due to the ambiguity of the word “radio”, to criticize me for having bought many different things, but it would be perfectly sensible for her to ask me to clarify what I bought. And if a judge is faced with a normative formulation susceptible to more than one admissible interpretation, it is not enough to justify her decision simply by appealing to one because she considers all of them to be equally part of the law. Rather, she must justify her choice of one of them as the one that, at least in her opinion, more adequately captures the meaning of the text.

8 See, for instance, Chiassoni 1998: 37-38, 49-55.

9 See Guastini 2012; Guastini 2017: 33 ss.

10 See Guastini 2012.

11 In this he follows Kelsen 1960: 351 ss.

12 Guastini has also clarified that “interpretation” can be understood as resulting from two different activities: “cognitive” interpretation is the analysis of a text with the aim of clarifying its possible admissible meanings, and “decision-making” interpretation attributes a certain meaning to a text. He also claims that realism would be limited to sustaining a skeptical theory about decision-making interpretation (see, for example, Guastini 2015). But in such a case, a theoretical/cognitive discourse regarding normative contents as admissible meanings of legal provisions would be possible, so that the defense of the Impossibility Thesis could not be attributed to realism thus understood.

13 Although contextually it is clear why Redondo qualifies one of them as semantic and the other as pragmatic, I think it would have been more charitable for the reader if, instead of appearing only in the titles, at least a brief explicit reference would have been dedicated to the reason why each one has such a character.

14 See Winch 1958: 111-120.

15 Redondo 2018: 211.

16 Redondo 2018: 211.

17 Redondo 2018: 239.

18 When saying that from the internal2 point of view purely normative or evaluative statements can be formulated, I am not reflecting my own opinion in this regard, but what follows from the characterization that Redondo offers of that point of view. On the other hand, as will be seen in the following Section, from the external2 point of view it is also possible to formulate normative or evaluative statements, such as one considering that a certain normative content should be rejected. But in order to justify a social practice or normative content it is necessary to adopt the internal2 point of view.

19 See Hart 1961: 110-111. In his own way, Hart not only distinguishes between the internal point of view of someone who is committed to the acceptance of certain norms and the external point of view of someone who is not committed to the norms to which he refers, which would correspond to Redondo's internal2 and external2 points of view, but also between statements that refer to a social or normative practice exclusively in terms of empirical facts and those in which the meaning that the practice has for the acceptants is taken into account, which would correspond with Redondo’s external1 and internal1 point of view, although Hart qualifies these last two types of statements as external (see Hart 1961: 309).

20 See Redondo 2018: 224.

21 Dworkin claims that a sociological concept of law would be used when referring to it as a particular type of social structure, institution, or pattern of conduct; a taxonomic concept of law would be used when a rule or principle is classified as legal and not as another class; a doctrinal concept of law would be used when legal propositions are expressed, i.e., statements about what the law requires, allows or prohibits and, finally, an ideal (aspirational) concept of law would be used when referring to the ideal of legality or the rule of law (see Dworkin 2006: 1-5).

22 See Ferrajoli 1989.

23 See Redondo 2018: 214.

24 See Redondo 2018: 214.

25 See Redondo 2018: 226.

26 See Dworkin 1986: 78-85; Dworkin 1996; Dworkin 2004: 141-143 and Dworkin 2011: 40-68.

27 In line with this idea, Dworkin has attempted to show that a positivist theory of law like Hart’s would have normative consequences, would necessarily be compromised with valuations, and thus that an evaluatively neutral theory of law would not be possible (see Dworkin 2006: 143-145; in criticism, see, among others, Endicott 2007 and Perot and Rodríguez 2010). What is surprising is that Dworkin’s own theory, which proclaims itself as committed to certain moral values and not evaluatively neutral, does not allow for normative consequences as strong as those that Dworkin attributes to Hart (Dworkin 2006: 13-14).

28 See Caracciolo 2003.

29 See Nino 1984/1989: 53.

30 See Redondo 2018: 244 ss.

31 Although I will not try to justify it here, I do not believe that a similar claim can be formulated regarding Genoese realism.

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References

Electronic reference

Jorge L. Rodríguez, “On the possibility of an internal legal positivism”Revus [Online], 48 | 2022, Online since 09 June 2022, connection on 22 February 2024. URL: http://journals.openedition.org/revus/8388; DOI: https://doi.org/10.4000/revus.8388

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About the author

Jorge L. Rodríguez

Professor of Legal Theory at National University of Mar del Plata (Argentina).

Address: Facultad de Derecho – Universidad Nacional de Mar del Plata – 25 de Mayo 2855 – B7600GWG Mar del Plata – Buenos Aires – Argentina

E-mail: jorgerodriguez64 [at] yahoo.com

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The text only may be used under licence CC BY-SA 4.0. All other elements (illustrations, imported files) are “All rights reserved”, unless otherwise stated.

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