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Symposium on the internal legal positivism

Internal legal positivism refined

A reply to the critics
María Cristina Redondo
Translated by Agnès Díaz Castellano
This article is a translation of:
Afinando el positivismo jurídico interno [es]


In this article I will try to answer some of the comments and criticisms raised by authors who participated in the discussion of my book ‘Internal’ legal positivism. I have grouped the criticisms into six points; the first, on the possibility of an internal legal positivism and the plurality of methodological approaches in relation to law. The second, the ambiguity of the “internal” - “external” distinction. The third, on conventionalism in general and interpretive conventions in particular. The fourth, on natural law and (methodological) anti-positivism. The fifth, on participants and acceptants, cognitivists or non-cognitivists, and the last, on the law as a reason for action.

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1In what follows, I will respond to some of the comments and criticisms expressed by the colleagues who participated in a discussion of my book, Positivismo jurídico ‘interno’. Above all, I would like to thank Paula Gaido, who had the idea to organize a seminar at the University of Buenos Aires on the central arguments in my book, as well as the debate here in Revus (this also includes contributions from colleagues who could not be present at the seminar). I was honoured to receive these remarks. Some of the arguments that came up during the discussion helped me strengthen my ideas. Others alerted me to the need to correct my wording to make my assertions more effective. In any case, it has been a pleasure to have the opportunity to retrace the path I took and to rethink various problems in light of meaningful ideas. Both the volume and the subtlety of the comments require a response that a normal journal article cannot provide. For this reason, I can only address some of the many topics covered. I hope, however, that this response can trigger further conversations. I take this opportunity to thank every one of the participants. Their contributions have enrichened my work, and they will undoubtedly encourage me to keep thinking about the various ways of understanding the law.

2I fully concur with many of the ideas expressed by my colleagues. A few of their suggestions, however, are based on misunderstandings or misinterpretations which I think can and should be avoided. I will try to point to at least some of these errors, the warning of which, in my opinion, will also serve as answers to them. Finally, I would like to point out that some of my critics opinions, even if they refer to very specific issues, presuppose genuine disagreements about the general approach to the study of the law. In other words, they presuppose an alternative philosophical view that, by hypothesis, is considered preferable. In this regard, a full response would require carrying out a comparative evaluation of the different views in order to select the one that could prove most appropriate, all things considered, and not to limit the evaluation to the specific idea under discussion. Unfortunately, in the present context it is impossible to provide such a general evaluation.

3For now, I will focus on six of the issues that arose during the discussion.

1 The possibility of an internal legal positivism and the plurality of methodological approaches in relation to law

  • 1 Searle 1995; Searle 2010; Hart 1961.

4One of the main ideas I tried to underline in my text is the importance of marking a clear distinction between ontological and epistemological issues in relation to law. This distinction allows me to take a cognitivist (and objectivist) position with respect to the question of the possibility of knowing norms (legal or moral) without abandoning a non-cognitivist (and subjectivist) thesis when it comes to explaining the way in which norms exist. With respect to the latter ontological question, I subscribed to some of the theses advanced by John Searle in his theory of social reality, which I believe are compatible with Hart's explanations of the existence of legal norms.1 As for the epistemological question, my main aim was not to defended an internal legal positivist approach, but to show its possibility - a possibility that some theories explicitly deny, but which in any case is implicitly rejected by accepting certain theses and concepts, such as those of Guastini's sceptical interpretivism, the cognitivist interpretivism of Dworkin and Atria, or some forms of natural law theories.

  • 2 Rodríguez 2020: online § 6.

5Considering the aim of my work, Jorge Rodríguez is right in pointing out that I do not critically examine the reasons given by both realists and interpretivists to support the thesis of the impossibility of an internal legal positivism.2 Indeed, in my book I do not elaborate the arguments that might be advanced against or in favour of the legal theories I challenge. This is because my interest was not in evaluating these positions, but rather in emphasizing one point: their commitment to what I have called ‘the impossibility thesis.’ In this respect, my only point was to emphasize that these positions are based on presuppositions that make the methodological approach of normative or internal legal positivism conceptually impossible. In other words, they are based on premises according to which any attempt to identify or know a normative content necessarily involves the adoption of a justificatory commitment. For them, it is impossible to explain, analyse, describe, or identify norms from a relatively neutral perspective.

6For this reason, I will not here develop a response to the arguments - to which Rodríguez refers - against Dworkin's interpretivism and his thesis of the impossibility of external skepticism, as I have not done in my book. It is only worth mentioning that, according to the analysis I propose, and assuming the concepts Dworkin proposes, the so-called ‘external skepticism’ is indeed impossible. Such an impossibility is implicit in Dworkin's theses about what interpreting and identifying a normative concept mean, theses that are based on the superposition of different senses in which it is possible to adopt internal and external points of view. Consequently, a (metatheorical) external skeptical position becomes possible only when one takes note of the ambiguity of the internal-external opposition and distinguishes the sense I have called ‘semantic’ from the sense I have called ‘pragmatic’ or ‘practical.’

  • 3 Champeil-Desplats 2022.
  • 4 Champeil-Desplats 2022: online § 26.

7In my text, I have defended not only the possibility of studying a normative phenomenon without making a practical commitment to it, but also the possibility of the coexistence of different methodological approaches in the study of legal concepts and institutions. This idea is apparently so obvious and innocuous that hardly anyone can explicitly deny it. In fact, what the criticized theories deny is not the possibility of different methodological approaches tout court, but particularly the possibility of normative or internal legal positivism, i.e., a relatively neutral study of legal norms or concepts. As for the complementarity of different methodological perspectives, I fully agree with Véronique Champeil-Desplats when she focuses on the thesis of methodological pluralism, which we should accept in order to approach the understanding of law.3 But precisely because I accept this thesis, I disagree with her when she says that it leads to a “possible grief which must be directed toward a certain generality, abstraction, and an essentially logical-deductive approach.” 4If we accept this plurality of approaches, there is no reason why abstract studies of a logical-deductive character should be left behind. There is nothing either in the idea of plurality or in the specific methodological approaches that Champeil-Desplats defends (e.g., that of Bobbio or that of the Scandinavian realists) that requires or justifies abandoning abstract studies. In any case, I also agree that this multiplicity of approaches and disciplines used for the study of law calls into question the precise demarcation of what constitutes the theory of law. This is an issue that troubles Champeil-Desplats but that I have not considered in my work.

8In the last chapter of my book, one might get the impression that I take a radically relativistic perspective, in the sense that all of the theories that can emerge from the possibility thesis seem equally good. This, however, was not my intention, since the thesis I present aims only to show that, contrary to the claims of the interpretivist positions, all these methodological options are equally possible but not equally plausible, and that to make this possibility viable it is essential to recognize the ambiguity exploited by those who deny it.

9Thus, in my book I did not intend to highlight the advantages of a certain methodological perspective, but rather to defend its possibility. In the words of Pablo Rapetti, my considerations are from ‘analytical (meta) theory’ and focus on analysing and criticizing a specific group of theoretical considerations. In particular, those that preclude the possibility of a theory of law that seeks to identify, analyse and, in general, understand norms (not empirical data) without necessarily adopting a justifying position in relation to them. This type of approach, the merits of which have been highlighted by authors such as Hans Kelsen and Herbert Hart, makes it essential to distinguish or separate what the criticized positions assimilate when they ambiguously assume that the study of a normative content requires the adoption of an internal point of view. Specifically, on the one hand, it is a matter of distinguishing the assumption of an internal point of view in an epistemological sense (as an essential methodological perspective to discern norms) from the assumption of an internal point of view in a practical sense (a committed stance necessary for the existence and continuance of norms). On the other hand, it is necessary to distinguish the assumption of an external point of view in an epistemological sense (the methodological perspective of someone who knows empirical data) from the assumption of an external point of view in a practical sense (a possible neutral attitude, toward both empirical data and norms). Only if these distinctions are accepted is normative legal positivism possible, since this approach aims to analyse law (a set of norms) without necessarily adopting a practical commitment to it. Consequently, its study requires an internal point of view in an epistemological sense and an external point of view in a practical sense.

2 The ambiguity of the distinction between ‘internal’ and ‘external’

  • 5 Rapetti 2021: online §§ 3, 21 y 22.

10According to the analysis I have offered, the impossibility thesis, which I criticize, is made plausible by the ambiguity of the classical opposition between internal and external point of view. I have therefore attempted to remove this ambiguity by showing that the opposition between the terms ‘internal point of view’ and ‘external point of view’ assimilates two separate questions. In particular, assuming an internal point of view to describe or refer to a normative content (semantic or legal), as Peter Winch suggested, is not equivalent to, nor does it require, assuming the internal point of view of the acceptants to which Herbert Hart referred. Thus, we are not required to make a practical commitment, especially a moral one, for or against the content in question. In the debate we are dealing with here, the only participant who claims that this ambiguity should not be our concern is Pablo Rapetti. He believes that such ambiguity does not deserve attention.5

  • 6 Rapetti 2021: online § 32.

11First, according to Rapetti, a proposal like the one he advocates is capable of explaining the kind of enterprise that normative legal positivism seeks to achieve. Among other merits, it allows us to grasp or refer to the content of legal concepts (it is not clear whether it could also refer to the content of legal norms), and at the same time it is not an example of normative-justificatory discourse, i.e., it does not imply the acceptance of such content. Now, unlike the one I propose, this approach is not an example of descriptive language.6 Rather, it would have a special status: analytical, reconstructive. I will not discuss here this kind of reconstructive enterprise, which I have fully accepted in other contexts. The crucial point concerns whether Rapetti's proposal can bypass the distinction I have introduced or, in other words, whether it can ignore the necessary connection—implicit in the ambiguous idea of the internal point of view—between understanding the content of legal concepts and taking a committed standpoint toward them. Unfortunately, the answer is no. If the ambiguity is ignored, and especially if we do not reject the arguments that necessarily link any attempt to analyse the semantic content (of concepts or legal norms) with an attempt to take a practical, justificatory stance, Rapetti's proposal is as impossible as internal legal positivism. In other words, Rapetti proposes understanding legal theory as an analysis of legal concepts that is not morally committed, but would be no logical space for such an analysis if we do not introduce the distinction I propose. If we ignore the proposed distinction and maintain ambiguity, it is impossible to refer to, analyse, or reconstruct legal concepts without adopting a normative-justificatory approach.

12In his proposal Rapetti does not use the expressions ‘internal point of view’ and ‘external point of view,’ and because he does not do so, it does not seem necessary for him to deal with their ambiguity. But even if we use language that does not explicitly rely on the complex distinction between internal1/internal2 and external1/external2, the problem remains and cannot be solved, unless we emphasize that referring to the content of concepts or norms (i.e. adopting what I have called an ‘internal point of view1’) does not mean or require committing to or adopting a particular justificatory position with respect to them (i.e. adopting what I have called an ‘internal point of view2’). Rapetti wants to open a logical space between a normative-justificatory discourse and a reconstructive (non-descriptive) discourse, but to do so he must reject the thesis of the impossibility, according to which it is neither possible to describe the content of legal or social concepts nor to reconstruct or analyze them without making a practical-normative commitment.

13In short, although Rapetti's proposal is an alternative to internal legal positivism, it falls within the scope of this methodological approach. Therefore, it necessarily presupposes a distinction between two meanings of the expression ‘internal point of view’. If we accept that Rapetti's analytical-reconstructive discourse refers to legal concepts, then it is an internal discourse1. However, he proposes that analytical-reconstructive discourse is a sui generis discourse, which is neither descriptive nor normative. But even under the hypothesis that one accepts this particular type of internal discourse1, one must also accept that it is either committed (for or against) to what it refers to (i.e. it is made from an internal point of view2) or it is relatively neutral (i.e. it is made from an external point of view2). In Rapetti's conception, analytical-reconstructive discourse is clearly a discourse that assumes an external point of view2.

14Second, in my book I have on the one hand, described the contrast between an internal and an external point of view1 as a semantic contrast. On the other hand, I have described the contrast between an internal and an external point of view2 as a pragmatic contrast. I now see that this characterisation was misleading, for it suggests a general distinction which is not implied by my proposal and which I do not want to defend. This distinction I am introducing emphasises the independence between two matters: the object of our discourse (the thing we talk about) and the practical attitude with which we speak on a particular occasion. However, the separation of these two matters does not generally presuppose the independence between semantics and pragmatics.

  • 7 Rapetti 2021: online § 23.
  • 8 Scataglini 2020: online §§ 1 ss.

15I agree with Rapetti that it is convenient to “soften the distinction between semantics and pragmatics.”7 But even if one accepts a connection, and unless a radical subjectivism is adopted, it can be denied that the meaning of a discourse is determined by the individual attitude of the speaker in every occasion of use (unless the speaker is stipulating for a limited context). In other words: according to the perspective I have adopted, meanings do indeed depend on pragmatic attitudes. In the legal field, for example, as Scataglini points out, they depend on the acceptance of certain interpretative conventions.8 This does not mean, however, that in specific occasions of use we cannot distinguish between what the agent talks about and what she says about it from the practical attitude of approval or disapproval with which she does so. In any case, in order not to suggest a separation that the distinction introduced does not imply, it might be better to abandon the labels ‘semantics’ and ‘pragmatics’ when presenting it, as long as we keep in mind that the two aforementioned aspects are independent of each other, which presupposes that (except in cases of stipulation) the meaning of language is not decided by the speaker at every occasion of use.

  • 9 Rodríguez 2020: online §§ 13 y 14.

16Rappeti's comments force me to further specify what I have tried to express. The contrast between internal and external point of view1 refers exclusively to the object of the discourse, to what a statement refers to. Internal discourse1 refers to (conceptual or normative) contents. External discourse1 refers to the empirical world, to data that we can perceive with our senses at a particular place and time. In this respect, as I will explain later, my wording needs to be corrected. As Rodríguez warns, in my text I defend the idea that internal discourse1 is always presented from the third-person perspective and that it is always descriptive.9 I should clarify that this limitation should not be considered a defining element of internal discourse1 in general, but rather of the internal discourse1 proposed by a positivist legal theory, the possibility of which emerges from the distinction between the two senses of the contrast between internal/external point of views. Indeed, as I highlighted frequently, a first-person normative discourse, such as Dworkin advocates in his interpretive theory, is also an example of internal discourse1. It is therefore important to emphasise that this type of discourse, characterised solely by having a semantic or normative content as its object, can have a descriptive as well as a normative status. And if one accepts Rapetti’s suggestion, it could also be an example of a ‘reconstructive’ tertium genus.

17In addition to the distinction between internal and external points of view1, I have also contrasted two types of attitudes toward an object that are mutually exclusive and jointly exhaustive: a normative-justifying attitude that is committed in practical terms (the internal point of view2) and a neutral attitude that is not justifying or committed in practical terms (the external point of view2). As I have just recognized, it might be confusing to present this last opposition as having a ‘pragmatic’ character. Not because it does not have it, but because it suggests something I do not want to defend, namely, that an agent can have only these two pragmatic attitudes. That is not what I intended to claim. An agent can have multiple, and very different, attitudes that vary considerably in intensity. The idea is that any attitude an agent has can either be committed in practical terms, i.e., by taking a normative-justificatory position toward what is being referred to, or it is uncommitted, thus being in a relatively neutral position. Indeed, the terms I use here should be explained in more detail. For example, when I say that a discourse is used with an ‘uncommitted’ attitude, I am referring to the absence of a justificatory stance of an ultimately moral kind. In a different sense of the term, the use of any discourse is always committed. Descriptive discourse is indeed committed to the value of truth.

  • 10 Rapetti 2020: online § 3.
  • 11 Rapetti 2020: online § 14.

18Still maintaining the ambiguity, i.e., without using the distinction between internal1/internal2 and external1/external2, Rapetti highlighted the necessity of an ulterior distinction between first- and second-order statements.10 Unfortunately, it is not clear how we should understand this distinction. Moreover, it is interesting to note that the lack of precision exploits once more the ambiguity of the idea of internal point of view. On one side, the distinction between first- and second-order discourses seems to point into a division within the type of practically committed statements; the ones referring directly to the world are first-order (such as the legislator or the acceptant discourses), while the ones that refer to the (conceptual or normative) contents are second-order (such as the dogmatic discourse or that of the theory of law). This is the distinction Rapetti seems to point at when he says that internal first-order statements are the ones emitted by participants who constitute the practice, while law scholars use internal second-order statements.11 However, it is also possible to say that the first-order statements are those referring to the contents of the norms or specific legal institutions, existing in a particular time and place (for instance, the statements of the acceptant, judges, or legal scholars), and that the second-order statements are those regarding general theory (that is, statements made by legal philosophers who analyse concepts). Hence, the contrast between first- and second-order statements carries the same ambiguity the importance of which Rapetti denies. In my opinion, we gain in precision when we distinguish the different types of statements that emerge once the ambiguity has been eliminated: statements referring to the empirical world and those referring to normative or conceptual contents. Within the latter group, we can surely distinguish among the statements referring to the content of specific regulative norms, the content of different theories, or the content of particular concepts or semantic norms. However, we must keep in mind that each and every one of these types of statements can be uttered from an internal point of view2, this is, with a practically committed attitude of a participant (whether this is a citizen, judge, legal scholar or legal theorist is not important at this point) or from an external point of view2, this is, with the attitude of a neutral observer (again, it is irrelevant whether this is a citizen, judge, legal scholar or legal theorist).

  • 12 Rodríguez 2020: online §§ 17 ss; Scataglini 2020.
  • 13  Rodríguez 2020: online § 18: “However, when referring to an institution or a social practise, whet (...)

19The works of Rodríguez and Scataglini are of great use in relation to the type of distinctions emerging from the disambiguation I have advocated for. They have both identified the impreciseness I highlighted.12 Rodríguez’s work additionally suggests an important amplification of the proposed distinctions.13

  • 14 Rodríguez 2020: online § 18. Italics are mine.

20First, when introducing the distinction between discourses and studies emitted from an internal or external point of view, I was mainly guided by an interest in capturing the different types of possible theories of law. In particular, I was guided by the possibility of a descriptive and relatively neutral theory of institutional concepts and legal norms. This interest explains (but does not justify) some of my affirmations. It is true that the statements proposed by the theory, the possibility of which I would like to highlight, refer to normative concepts or contents (they are statements made from an internal point of view1) and they are neutral: formulated exclusively from a third-person perspective (emitted from an external point of view2). As I have previously mentioned, this is a defining element of this position. However, and as Rodríguez rightly points out, this does not imply that every statement referring to normative concepts or contents is neutral (i.e. released from an external point of view2). In this sense, he rightly claims that “it seems incorrect to sustain that every use of an institutional concept or every reference to normative contents is just a formulation of purely descriptive statements”.14 In line with Rodríguez’s claims, in my work I have said, for example, that interpretivist theories analyse legal concepts by formulating internal statements1 and that they do so from a morally committed point of view, i.e., from an internal point of view2. In general, justificatory theories such as Dworkin’s, critical theories such as Ferrajoli’s or Atria’s, or analytical theories such as Rapetti’s do not formulate purely descriptive statements, they use and make reference to normative contents. In other words, they formulate internal statements1. To sum up, this is a necessary correction to my work: internal statements1 are not always and not necessarily descriptive or neutral.

21Second, the distinctions I have suggested can be extended. As Rodríguez claims, there is no problem in defending that, from internal2 or external2 points of view, it is only possible to formulate statements referring to normative contents. Nonetheless, it is also perfectly plausible to admit that predicates directly referring to ‘the world’ or empirical states of things (i.e., external statements1) can be emitted with either a committed or a neutral attitude. In my terms, they can be formulated from an internal point of view2 or an external point of view2. It is true that in this context, the main interest of solving the ambiguity of expressions such as ‘internal point of view’ or ‘external point of view’ has to do with highlighting the possibility of two types of theories of legal concepts and contents: neutral theories, such as the one proposed by legal positivists, and committed theories, such as the one suggested by interpretivists. At the same time, by deleting the ambiguity we open the door to the differentiation between different types of discourse and speech in general. In other words, the presented considerations endorse a wide classification that takes into consideration, on the one side, the different types of objects that can be described by a statement (the empirical world, or abstract representations of it, i.e., intentional contents) and, on the other side, the different types of attitudes from which a statement can be emitted (neutral or committed). In this sense, we can identify four types or situations:

(1) The situation in which, with a committed attitude (from an internal point of view2), statements referring directly to the empirical world are emitted (form an external point of view1). For example, a legislator establishing killing as a forbidden action.

(2) The situation in which, with a committed attitude (from an internal point of view2), statements referring, not to the empirical world but to normative concepts or contents are emitted (from an internal point of view1). For example, the interpretivists legal theorist who studies courtesy or any other legal institution.

(3) The situation in which, from a neutral point of view (from an external point of view2), statements regarding the empirical world are emitted (form an external point of view2). For example, the speaker who describes a landscape or the physical movements of a type of practice. Or, the legal theorist according to the methodology of legal realism.

(4) The situation in which, from a neutral point of view (from an external point of view2), statements regarding normative concepts or contents are emitted (from an internal point of view1). This last situation is the one I have dedicated most attention to in my paper. It is the one considered impossible by interpretivists and that, as we have seen, would include a descriptive enterprise, but also an analytical-recontsructivist one.

22As we can see, this classification makes no distinction between statements that refer to the content of particular legal institutions and statements that refer to the content of general legal concepts. And it is important that this remains so, not because the distinction is of little importance, but because the classification aims to show that they are internal statements1 in both cases. In general, and without abandoning the distinction that I have thoroughly highlighted in my work, we can assert that in both cases the speaker refers to norms: in the first case to rules and principles of a particular legal order, in the second case to rules or principles of a semantic nature that determine the meaning of some expressions.

3 On conventionalism in general, and interpretative conventions in particular

  • 15 Scataglini 2020: online § 9.

23I fully agree with Scataglini that it is incorrect to equate conventionalism as an ontological theory of law and conventionalism as a theory for identifying the content of a legal system.15 Indeed, I have accepted that the content of a law depends (among other things) on the conventional rules regarding the use of language, but I have denied that the ontology of law is adequately explained by conventionalism. The reason is that this view reduces the existence of norms to a set of behaviours, beliefs, and attitudes of a group of actors. In contrast, I have defended a non-reductivist and ‘realist’ view regarding the existence of an ‘institutional reality’: facts and entities whose existence depends on, but is not reducible to, the beliefs, attitudes, and behaviours of a social group.

  • 16 Scataglini 2020: online §§ 8 y 12.

24In relation to the epistemic question about the content of a particular legal system, in the third chapter of my book, which discusses Eugenio Bulygin’s theory, I expressed some doubts regarding the possibility of maintaining, in specific circumstances, the distinction proposed on his book Normative Systems between a (descriptive) relevance thesis and a (prescriptive) relevance hypothesis. Particular doubts arise when claiming that the determination of the content of a legal right is dependent on a variety of interpretative practices or conventions that make it controversial. In this regard, Gabriela Scataglini points out that this question does not arise if we correctly distinguish between superficial and deep conventions. Specifically, the point is that even if interpretive conventions are superficially controversial, deep conventions (a set of background criteria that can be ‘identified and described’) eliminate indeterminacy or instability in the identification of the descriptive relevance thesis.16 In a sense, I completely agree with this claim. If there are conventions (regardless of whether they are deep or superficial) that can be ‘identified and described’, the problem does not arise. Scataglini, however, does not seem to recognize that the existence of uncontroversial deep conventions is not an answer to my concerns, but rather a situation in which the hypothesis that explains my concerns does not arise. Indeed, if there are deep interpretive conventions about which there is no controversy (as opposed to what happens on the surface), then the problematic situation does not exist. The question is: what happens in a hypothetical case of a controversy, for example, in situations where there is no deep convention, or where there are multiple coexisting superficial and deep conventions that guide the identification in incompatible ways? Given this hypothesis, which does not deny that conventions can have a superficial and a deep level, it becomes clear that Scataglini's true argument against the possible indeterminacy or instability of the relevance thesis is not based on the distinction between superficial and deep conventions, but in the belief – not argued for and highly problematic - that it is always possible to identify and describe the correct option, i.e., that the controversy is always and only superficial because at a deeper level we can always find a determinate answer. Of course, I am not denying that it is always possible to describe the terms of a controversy or to report what the various interpretive alternatives are. Under the hypothesis of controversy, however, identifying the content of law seems to require an act of choice between such alternatives, a choice that goes beyond the description of said alternatives. Scataglini does not develop this point, she merely denies that this choice is necessary, and assumes that behind every controversy there is a content (essential? deep?) that is not controversial and that - and on this we would all agree - since it is not controversial, it can always be identified by a mere description. If we accept that there can be multiple existing interpretative conventions, even assuming, as Scataglini does, that the hypotheses identifying their content are descriptive, we will consequently necessarily have a multiplicity of hypotheses, and we will have to decide which is the best. In other words, the identification of what is to be considered the system’s descriptive thesis of relevance is not the result of a mere description, but of a choice between different descriptive hypotheses.

25As you can see, I am not arguing here against the distinction between superficial and deep conventions, nor am I claiming that deep conventions do not exist. What I am saying is in line with legal realism which teaches us that the coexistence of multiple interpretive conventions not only does not eliminate discretionary decisions, but constitutes a source of indeterminacy and leads to them. To accept this point is not to accept the realist thesis that the identification of the law and the thesis of the relevance of a system would always be indeterminate. For the same reasons stated here, it is moreover doubtful that, as Scataglini claims, exclusive legal positivism can accept, without limitations, that the law depends on deep interpretive conventions. Because the existence of deep interpretative conventions does not exclude the possibility of controversy about the content of the law, exclusive positivism cannot admit that the law depends on them, without restrictions. And this, as Scataglini notes, is not because such conventions can lead to morality or because in such a case the law would cease to be ontologically a conventional object; the reason is that if the law depends on unrestricted interpretive conventions, its identification may be indeterminate and may depend on discretionary acts. For this reason, I understand that a position such as Bulygin's, which seeks to defend a clear distinction between descriptive and prescriptive theses about the content of a law, could be supported by a conceptual thesis such as that of exclusive legal positivism—a thesis that holds that the law is the result of the intention of an authority and, therefore, only the interpretive conventions that aim to capture this data count for the descriptive determination of its content. In short, law is not the result of sans phrase interpretive conventions. A limitation is introduced: the relevant conventions when it comes to descriptively identifying the content of a legal institution are those that allow us to know what the authority intended to say.

4 On (methodological) iusnaturalism and antipositivism

  • 17 Legarre 2020: online § 4; Sánchez Brígido 2020: online §§ 2 y 23.
  • 18 Legarre 2020: online §§ 19-22; Alchourrón y Bulygin 1971: online §§ 54-61.

26As Legarre and Sánchez Brígido correctly note, in my work I have not dealt in depth with the analysis of natural law in general, and even less with its different versions.17 Only on a few occasions have I alluded to this perspective, for example, to point out that, as a theory of law, it would be fully compatible with an approach also shared by a positivist theory that understands law as a system of norms. As Legarre recalls, I emphasized that Alchourrón and Bulygin’s notion of system suggested in Normative Systems is applicable to law regardless of which natural law or positivist conception one uses to approach it.18 Another point that Legarre does not explicitly discuss is whether the adoption of a natural law theory necessarily implies the adoption of an anti-positivist method. An obvious corollary of my proposal - also implicit in Alchourrón and Bulygin's perspective by virtue of what I have just said - is that it does not. In other words, it is possible to claim that law is necessarily linked to moral norms without thereby rejecting the possibility of a neutral, descriptive, or analytical approach to its study. This is what the possibility thesis defends: a normative object—such as law in a natural law perspective—can be described and analysed from a relatively neutral position. With this I am not claiming that natural law theories actually adopt a neutral method or attitude. I am only saying that this is possible if we reject the notion that the study of a normative object necessarily requires a normatively committed method of inquiry (for or against) with respect to its object.

  • 19 Legarre 2020: online § 2.
  • 20 Sánchez Brígido 2002: online § 40.

27My biggest disagreement with Legarre and Sánchez Brígido relates to an idea that both take for granted: that there is only one correct answer to the metatheoretical question of which method to use to approach the study of law. In this regard, Legarre does not doubt that there is one correct approach among the various natural law approaches (that would be Finnis's).19 In the same line, Sánchez Brígido suggests that there is only one correct way to understand legal concepts (the functional conception), and, as he tries to show, if the concept is functional, its method of analysis is not a matter of choice because there is only one appropriate method for that (the non-neutral approach proposed by moral philosophy).20

  • 21 Sánchez Brígido 2020: online §§ 3 y 40.
  • 22  Redondo 2020: online §§ 37-38.
  • 23 Sánchez Brígido 2020: online § 34.

28But Sánchez Brígido's position wavers. At first, he seems to not accept the thesis of the impossibility of approaching a normative object, endowed with moral value, from a descriptive and neutral point of view. Without discussing this thesis, he seems to advocate for a weaker idea: the methodological option of internal positivism would be incomplete and superficial because it does not take a stand on the moral value of law.21 In this context, I understand that legal positivism can easily accept the criticism of incompleteness: its analysis is not, and does not claim to be, complete. On the other hand, it would be easy to refute the superficiality thesis. The results obtained by applying the method of normative positivism are anything but superficial. However, I will not dwell on this point.22 It is more important to highlight the argument that supports the claim of incompleteness and superficiality, which ultimately leads to a conceptual impossibility. The reason why a neutral approach is incomplete and superficial is that the concept of law is in fact a functional concept, and the analysis of a concept of this kind requires a moral, committed approach.23 I will now offer my reply to this argument.

29First, I do not think that there is only one concept of law (nor democracy, constitution, family, etc.). At the same time, it seems even more difficult to accept that the study of law should always be guided by only one kind of interest, and that the’ theory of law in this sense is necessarily only of one nature. In my opinion, depending on the interest guiding a study, it would be appropriate to focus on a particular concept, which - using the categories considered in this context - may be structural, functional, or mixed. From this perspective, it would be misleading to ask whether the concept of law is structural, functional, or mixed, since the question is based on a false assumption.

30Sánchez Brígido focuses on the attempt to show that the concept of law is functional. Without endorsing such a thesis, we can accept that in certain contexts we share a single concept (‘our concept’, the one actually used at a certain time and place) and that we are interested in analysing it. In such a case, a reasonable conclusion is that such a concept is functional. The question is: could the method of normative legal positivism analyse this kind of concept? Sánchez Brígido's answer is clear: strictly speaking, this is impossible because the only correct way to analyse a concept is to assume the interest that guides natural law theories. As mentioned, the analysis of the concept of law implies or requires an evaluation of moral nature. I must admit that, if the latter were true, I would fully agree with Sánchez Brígido. That is, if we assume – which I think is absurd – that because something satisfies normative standards and has moral relevance, it only admits one type of analysis that is also moral, then the necessity/impossibility thesis follows. But that assumption is one of the points at issue.

31In my book I have tried to show that it is possible to reject the idea that the study of a normative or evaluative object necessarily requires a morally committed method. Sánchez Brígido's work does not take into account the considerations I have offered to refute this necessity, in particular, the idea that it is based on, and exploits, an ambiguity that leads to the conclusion that understanding and analysing a normative content (i.e., adopting an internal point of view1) necessarily requires adopting a non-neutral method (i.e., adopting an internal point of view2). In other words, the arguments that can be made against the central idea of the proposed natural law examples are not evaluated or considered. These are examples that overlap and conceptually link the attempt to understand and explain evaluative data with the need to evaluate them (i.e. to accept or criticize them) by adopting a committed position.

32Many legal positivists claim that there are good reasons to focus on a structural concept of law (democracy, jurisprudence, the state, etc.), but this does not mean that they deny the possibility of identifying functional concepts of law (democracy, jurisprudence, the state, etc.). This triviality allows us to highlight one of the central points of the disagreement: the assumption that there is only one true way to understand legal concepts, and only one way to study what those concepts refer to. This does not deny the possibility of correct answers in general. It does, however, presuppose that there is not just one useful method of investigation, and that different perspectives do not merely coexist but complement each other and contribute to the understanding of a subject matter. It is also for this reason, and contrary to what interpretivism proposes, that it is important to maintain the distinction between theoretical and metatheoretical or conceptual questions (which are not theses about the use of words). On the basis of this distinction, it can be said that in my book I have admitted that, in theoretical disputes, referring directly to the object of study, we presuppose the existence of correct answers. However, this does not mean admitting that there is only one correct answer in metatheoretical disagreements about how to understand the terms and/or the method with which to delimit the object. In this sense, these latter disagreements are different from ‘theoretical’ disagreements.

5 Participants and acceptants, cognitivists or non-cognitivists

  • 24 Redondo 1999: ch. 5.

33As Rapetti notes, my use of the terms ‘participant’ and ‘acceptant’ needs clarification. I extensively covered the notion of acceptance in a previous book and it is not my intention to return to the subject on this occasion.24 In that book I distinguished the concept of belief from acceptance. Besides what I explained on that occasion, and following Hart’s doctrine, I have always taken a broad conception of acceptance. Someone accepts a content (a type of behaviour, a semantic rule, or a legal norm) when she adopts a favourable practical attitude toward it that manifests itself in a disposition to act. And this is independent of the reasons, if any, why the agent accepts. This means that the notion of ‘acceptant’ describes someone who has simply internalized a pattern of behaviour and tends to act almost automatically, without his favourable disposition having been adopted in a rationally grounded way. It also describes someone who consciously adopts a policy in favour of a particular course of behaviour, and the true believer who holds to its intrinsic rightness. For the current discussion, however, it is more appropriate to focus on the notion of participant, which in a sense is even broader. Indeed, it refers to anyone who takes a committed attitude, either for or against, with respect to the content of a behavioural practice. In particular, I have tried to distinguish two types of mutually exclusive and jointly exhaustive attitudes in my work: that of the participant who adopts a committed practical attitude and, in this sense, accepts a favourable or unfavourable normative ‘theory’ with respect to certain behaviours, and that of the one who abstains from this evaluation and, consequently, adopts a neutral attitude, i.e., is not committed to any type of normative theory, either favourable or unfavourable, always with respect to certain contents or behaviours.

  • 25 However, as I said at the beginning, following Rodríguez, there would be no problem in extending th (...)
  • 26 Rapetti 2020: online §§ 20 y 22 mainly.

34My interest was primarily in trying to understand the position in which a scholar finds himself in front of a normative object (semantic rules or legal institutions).25 With respect to this kind of object, which is part of what is called ‘social reality,’ I have emphasized that the position of the participant—as opposed to that of the neutral observer—has ontological relevance. It depends on the participants whether institutional facts and entities come into existence and, above all, whether they are maintained or extinguished. Rapetti's challenge to this point, however, is that a cognitivist perspective is not adequate to account for the attitude of the participants.26 I cannot present his arguments here, but I think it is useful to clarify my position. At the risk of being reiterative, I understand that the difficulty Rapetti points out arises when the ontological questions about the existence and the type of existence of a particular kind of object are not distinguished from the epistemic questions about the possibility and appropriate way of understanding or studying it. As for the epistemic question, following Searle, I have adopted a cognitivist position and language. I have admitted the possibility of (more or less objective) knowledge of entities that are ontologically subjective. In other words, entities and facts that are explained in non-cognitivist terms, and whose existence depends entirely on the attitudes, feelings, emotions, preferences, and beliefs of the participants. In this sense, I want to clarify that whether participants see themselves as cognitivists or non-cognitivists, my thesis is that the normative entities that a scholar claims to know and can know (i.e., in relation to which we can be cognitivists) depend entirely on the subjective attitudes of the participants that constitute and keep them alive. Participants are defined by the fact that they adopt practical attitudes in favour of or against certain contents, not by the fact that they believe in their truth or falsity. This is certainly not a cognitivist explanation of participants' attitudes.

35I do not think it is useful to resort to Hart's categories, the ambiguity of which I have tried to remove. If, like Rapetti, one advocates a non-cognitivist reading of “Hart's internal statements”, it remains unclear whether these “internal” statements are those made by participants for a practical purpose and that have ontological relevance for the existence of rules, or whether they are made with the purpose of identifying, knowing, understanding, or explaining existing rules (semantic or legal), and can be uttered with a neutral attitude. In my text, I have not engaged in the debate between cognitivist and non-cognitivist readings of “internal statements” precisely because this debate overlooks the distinction between ontological and epistemic issues that I insisted on in the previous paragraph and, at the same time, ignores the fact that there are two different things to be explained that Hart did not distinguish precisely when speaking of “internal statements”: (i) the statements that are committed from a practical point of view – statements uttered either by citizens, legal scholars, judges, theorists, or philosophers, and that have ontological relevance (statements committed from an internal point of view2), and (ii) the statements that aim to identify, understand, describe, or analyse a normative content (which I have called internal statements1) and that can also be uttered by citizens, legal scholars, judges, theorists, or philosophers, whatever their practical standpoint. Strictly speaking, I believe that the best theory to explain statements (i) expressing a practical attitude of commitment is a non-cognitivist theory. However, I have deliberately chosen to use cognitivist language. In this context, it is irrelevant whether these statements made from the internal point of view2 are analysed as expressions of preferences or emotions (i.e., in non-cognitivist terms) or of agents’ beliefs (i.e., in cognitivist terms). The reason is that the issue under debate is not the best explanation for these kinds of statements made from a committed internal point of view, but the fact that they should not be confused or equated with statements called “internal” in another sense: statements that refer to the content of concepts or norms.

  • 27 In this sense, although it would require further analysis, Hart would disagree with Rapetti in asse (...)

36As for the non-cognitivist position Rapetti advocates, an important clarification is required. Although he claims to adopt Hart's position, his semantic expressivism resembles a skeptical view and, in my opinion, would have been firmly rejected by Hart. From Hart's perspective, the content of norms depends on conventions and paradigmatic agreements that can be the subject of knowledge in clear cases.27 And in this case, the statements that identify such content are not necessarily expressions of acceptance. Applying the distinction introduced above, Hart could be said to take a non-cognitivist position with respect to statements made from an internal point of view2. They express an agent’s positive attitude and have ontological relevance. At the same time, however, Hart generally holds an intermediate, partially cognitivist theory with respect to internal statements1, i.e., with respect to discourse, which he claims captures the content of linguistic rules and legal norms. According to Hart, in clear cases it is possible to issue internal statements1 that only express knowledge, i.e., it is possible to be mistaken about the clear content of a convention or paradigmatic agreement. In difficult cases that the rules leave indeterminate, any statement that identifies their content certainly expresses an act of decision and not an act of knowledge: it is necessarily an internal statement1 issued from an internal point of view2.

6 On law as a reason for action

  • 28 Redondo 2018: online § 93.

37In the second chapter of my book, I have tried to establish in what sense a positivist position can account for legal normativity. My analysis is based on two assumptions that not all positivists accept. First, that every law is a normative phenomenon, that is, that while not all of its provisions are normative, some of them genuinely are. Second, that genuine rules are defined in terms of reasons for action.28 With this objective in mind, I have explored the various senses in which the reasons that genuine rules establish can be understood, distinguishing two substantive senses and one formal sense. Applying these concepts, genuine norms can be understood as: (i) substantive reasons in a subjective sense (considerations that we believe or accept as relevant to our motivation), (ii) substantive reasons in an objective sense (considerations endowed with justificatory weight, independent of our beliefs and attitudes), (iii) reasons in a formal sense (considerations that function as justificatory premises for a conclusion, independent of their objective substantive weight and motivational force). Monti critically evaluates each of my proposals, drawing on a set of considerations that I mostly share, although I do not believe they support the conclusions he reaches. I could not address each of his sophisticated arguments in this context, so I will instead focus exclusively on the central theses I intended to defend in the relevant chapter of my book.

38First, considering the notion of reason in a psychological, subjective sense, I have asked myself whether genuine norms that law intends, and sometimes achieves to establish, can be reasons in this sense? I have argued that this is not the case, that it would not be appropriate to understand law’s typical normativity as reasons in the motivational sense. Literally, I have argued:

  • 29 Redondo 2018: online § 126. Italics are added.

[I]f the concept of reason is understood in subjective terms, the status of a ‘genuine’ rule that generalization would acquire by virtue of its function as reason in the reasoning of individuals would be very difficult to control. A minimally liberal position should restrict the thesis that the law proposes ‘genuine’ rules only to the law-applying organs, and not to citizens. Otherwise, one would have to admit that the law, through its rules, seeks to control not only the behaviour of citizens but also their reasonings.29

  • 30 Monti 2020: online §§ 7, 22 ss.
  • 31 Monti 2020: online § 26.
  • 32 Monti 2020: online § 25.
  • 33 Monti 2020: online § 30. Italics are mine.

39In other words, the thesis that law claims to constitute reasons in a subjective sense should be confronted with an empirical difficulty and a normative difficulty: It is indeed problematic to know and therefore control the psychological states of individuals, but moreover it would be unjustified to do so from a liberal point of view. In this respect, Monti exaggerates my thesis and thus distorts my objection. On his reading, I would argue that knowing mental states is impossible.30 And consequently, he reminds us of something I have not tried to deny: “It is simply false that it is epistemically impossible to determine whether someone accepts a rule as a reason or not”.31 On this basis, Monti sees no difficulty for positivism to uphold the thesis that law aims for its rules to be in fact constitutive of motivations that guide action. At the same time, however, his argument admits both the empirical and the normative difficulty concerning the control that law should exercise. In his words: "the law (say judges) could not control that actors act as it intends them to act"32 (i.e., it could not control whether norms have actually operated as motivational reasons). At the same time, Monti argues that it is neither problematic nor specifically anti-liberal “that the law merely requires us to act for certain reasons, insofar as it does not intend to control whether or not we actually do so”.33 Indeed, I agree it is not at all anti-liberal to admit that the law intends something we do not admit it controls, but it is quite absurd. It is not easy to understand the ratio by which one can argue that it is plausible for the law to intends X (in this case, the motivation of addressees) if we simultaneously admit that it is implausible for it to control whether X is in fact verified. In sum, although Monti tries to offer a consideration against my proposal, he actually offers an even stronger reason to endorse it. His thesis—which I share—about the anti-liberal character of the control by the law (or the judges?) of whether or not its norms operate as reasons in the psychological sense, underlines not only the anti-liberal character, but also the paradoxical character that the claim of constituting reasons in this sense would have, since it would be forbidden (always from a liberal point of view) to control whether what it claims actually takes place.

  • 34 Monti 2020: online § 40.

40As for the objection about the rationality of understanding rules as motivational subjective reasons, Monti says that he agrees with my conclusion, though for different reasons. I cannot analyse his proposal here, but it should be noted that it rests on a general distinction between two kinds of reasons for action: practical reasons and reasons of the right kind. In his example (which presupposes the problematic thesis that beliefs can be intentionally decided) getting a million dollars offered to us to adopt the belief that p is a practical reason for doing so, but it is not the right kind of reason because it is not associated with the truth of p.34 According to this classification, the moral theory of utilitarianism is ruled out ab initio as a possible framework for justifying/motivating actions because it does not offer the right kind of reasons’ for evaluating a situation. I agree with Monti that this approach could provide an alternative basis for a conclusion similar to the one I have tried to endorse. The point is that this approach does not in itself show its priority over others, and it is not apparent in what sense it points to a deficiency in what I have proposed in my book, and in respect of which it is presented as a critique.

  • 35 Monti 2020: online §§ 47 y 49.

41Second, as for legal positivism possibly sustaining that genuine norms that the law tries to establish are substantive reasons in an objective sense, Monti’s first critique of my claims is that I do not develop this point enough, but he later admits that I do offer an argument.35 It should be recalled that my general question is to what extent legal positivism can admit that the genuine rules it intends to create are practically relevant, i.e. generate reasons for action. With this question in mind, I have argued for the logical incompatibility between the theses of legal positivism and the thesis that such rules are substantive reasons in an objective sense. I would say that the argument of logical incompatibility is perhaps the strongest argument that can be offered for concluding that legal positivism cannot endorse the thesis in question. Certainly, this line of reasoning enables the conclusion, advocated by many authors, that it is legal positivism that should be abandoned, not the thesis that the genuine rules by which law seeks to guide its addressees are indeed substantive reasons in an objective sense. But in this context, the abandonment of legal positivism is not under discussion, neither in my work nor in Monti's.

42Although it does not explicitly appear in Monti's commentary, I believe that the fundamental disagreement lies in the fact that, in my view and not in his, law is, by definition, a practical or normative phenomenon and that this normativity is explained in terms of reasons for action. Hence the urgency or need to explain in what sense law is normative or, in other words, manages to create ‘genuine norms’ that, by hypothesis, provide reasons to their addressees.

  • 36 Monti 2020: online § 55.

43Monti tells us nothing about whether law is a normative phenomenon endowed with a practical character. The only thing that emerges from his comments is that this property cannot be attributed to every legal norm. In fact, this is one of the theses that, according to Monti, legal positivism necessarily accepts: “(T2. It is possible that a legal norm requires A to perform Φ and yet A has no reason to perform Φ)”.36 I fully agree with this. But as I said, from my point of view, in some sense the law—and not each of its norms—actually provides reasons for action. Otherwise, the idea that law is defined as a normative phenomenon endowed with a practical nature cannot be understood.

44Monti’s considerations in no way attack what I have defended in my work. They simply speak to something else. Specifically, in the first place, we both agree that it is perfectly possible for legal positivism to admit the weak idea that the law claims to constitute substantive-objective reasons. My point is that legal positivism cannot sustain the thesis that the typical or defining normativity of law is explained by these kinds of reasons. And the justification for this claim is obvious, because if it were to explain legal normativity in moral terms, it would contradict one of its central theses: the separability of law and morality. In this sense, legal positivism cannot explain legal normativity in terms of substantive-objective reasons.

  • 37 Monti 2020: online § 51.

45According to Monti, “Legal positivism is compatible, in fact, with the thesis according to which having a legal obligation to Φ consists in having reasons of a certain kind to Φ.”37 This cannot be considered a criticism because it is the starting point of my reasoning. If what we call law in general (i.e., not every legal norm) is a normative phenomenon endowed with practical relevance, this means that it generates reasons of a certain type. The question is what type of reasons are legal reasons according to legal positivism.

  • 38 Monti 2020: online § 56.
  • 39 Monti 2020: online § 56.

46Monti's answer is clear: according to him, moral facts are those that explain the authority of law to create reasons.38 The existence of legal reasons, which Monti constantly equates with the existence of legal obligations, depends on the existence of moral facts.39 By way of conclusion on this point I will only say two things. First, the legal positivism that upholds this thesis recognizes that its theoretical tools are incapable of explaining the practical nature of law. My intention, by contrast, was to show that positivism can explain that the genuine norms the law seeks to establish (but does not always succeed in doing so) have practical relevance, and that these norms are in themselves a type of reason for action, not based on the existence of moral facts or reasons. Second, if one accepts, following Hart for example, the thesis that law by definition has practical character, then the kind of legal positivism that admits that the practical character of law depends on moral facts contradicts (or abandons) the thesis of the non-necessary connection between law and morality. According to this view, law is necessarily connected to morality because its practical character, i.e., its ability to provide reasons for action, depends on moral facts.

47In my book, I have argued that to the extent that positivism admits that law necessarily aims to constitute reasons for action, it must understand this notion from a formal perspective: as a kind of premise that requires a certain form of justificatory reasoning. The notion of reason in the ‘formal’ sense should not suggest that law constitutes reasons in a weakened or vacuous sense. On the contrary, the notion of reason understood this way is highly relevant and of great interest. At the same time, the fact that typically legal normativity is explained this way does not mean that law does not in fact claim or provide substantive reasons. It means that, according to positivism, the typical form in which law seeks to affect the practical reasoning of its addressees—ordinary and institutional—is not necessarily substantive. Its specific practical character lies in the form of the reasoning it imposes: the rules by which it seeks to guide behaviour constitute a certain kind of invariably relevant reasons/premises that, by virtue of being so, carry a double pragmatic commitment. Explaining the way in which genuinely legal rules provide reasons for action in this way is consistent with legal positivism, but certainly not in itself a merit. The merit of this approach, as I have tried to show, is that it captures a typical feature of law, which in turn is not affected by the objections that arise when the notion of reason is understood in a substantive sense.

48By abandoning the sense of reasons for action in which the discussion normally takes place (reasons in the substantive sense), none of the usual objections to rule-following apply. In this sense, I think Monti's comments have missed my point. It is true that if, as Monti suggests, we continue to argue that law is intended to offer reasons in the substantive sense, we can—and should—offer arguments to overcome the objections that arise. I have, however, taken a different path. I have tried to provide arguments in favour of the thesis that that law offers reasons in a formal sense and, from this perspective, there is no reason to assume responsibility for overcoming such objections. In short, the following should be clear: according to the position I defend, law does not claim to constitute the kind of reason that gives rise to the usual criticisms discussed in the literature.

49As I have suggested, genuine rules are invariably relevant reasons/premises. They are expressed in formally indefeasible conditionals and are associated with a twofold practical commitment of a linguistic nature (especially pragmatic): to apply the same reason to all the cases that fall in within its scope, and in the case that it does not determine the final conclusion, to identify the reasons which justify that conclusion. To better understand the idea of the indefeasibility of the genuine norms that law offers, I have thought it was important to bring up the distinction between two ways in which norms can be considered defeasible, something related to one aspect of the debate between universalism and particularism. Though, the rich debate between universalism and particularism encompasses a wide range of issues and goes well beyond this opposition.

50How does the thesis I am arguing relate to the debate between universalists and particularists? From a perspective that conceives of the notion of reason in a substantive way, the particularist position denies the immutability of the relevance of the reasons that the law would offer, while the universalist position affirms it. The position I propose, while not assuming that the law offers substantive reasons, is compatible with and allows for the expression of a universalist thesis. Only provisions that are understood as indefeasible reasons/premises are capable of expressing universally relevant substantive reasons. By contrast, the position I propose is incompatible with the notion that law offers substantive reasons in a particularist sense, since particularism precludes the twofold pragmatic commitment associated with the notion that norms are invariably relevant in a formal sense.

51I understand that abandoning the notion of reason normally used in the debate, i.e. in the 'substantial sense', can cause confusion. However, if we do not highlight this, it is not possible to understand what I am trying to argue. I think Monti is right in pointing out that the choice with which the literature usually confronts us (i.e. legal reasons are either invariably relevant substantive reasons or are mere compendiums lacking in themselves any justifying or motivational force) can be considered a false dilemma. In my proposal, this dilemma is dissolved because the claim that legal norms are invariably relevant in a formal sense shifts the focus of the discussion and moves it away from the two extremes. On this reading, legal positivism does not hold that legal norms are invariably relevant substantive reasons, nor that they are mere compendiums devoid of any independent motivational force. Rather, as I have argued, it holds that they are indefeasible statements-premises in the formal sense, which impose a certain practical commitment with respect to the linguistic act of justifying a decision.

52Now, when the formal sense of reason is assumed, legal norms are necessarily either invariably relevant reasons (indefeasible conditionals) or they are not. That is, they are defeasible conditionals (they allow for the introduction of additional conditions of application that are not foreseen in advance and coming from the context of application). Tertium non datur. In this sense, Raz's position – despite Monti's assertion to the contrary – does not constitute a third option. Both his proposal and that of Alchourrón and Bulygin—which are the two positions I have taken as examples— presuppose that legal norms, regardless of their substantive force (objective or subjective), are understood in a formal sense as indefeasible conditionals capable of expressing invariably relevant reasons.

53I understand that Monti disagrees with my proposal to conceive of legal norms as invariably relevant reasons in a formal sense. However, whether one finds this interpretation convincing or not, however, it is necessary to keep it in mind when reading my work, since otherwise one is ascribing to my words a different meaning from the one I have tried to give them.

54In short, according to the analysis I propose, the notion of a 'genuine' norm presupposes the recognition of the logical indefeasibility of the statements that express it. Consequently, to say that the law offers genuine norms is to say that the law offers reasons/premises that impose a certain kind of identification and application on those who follow them. At the moment of identification, these 'genuine' norms exclude any consideration that has not been provided in advance by the law as a condition of application, and at the moment of application, they require a certain external linguistic behaviour: a certain way of justifying the decision by the one who follows the rule. The latter, as we have seen, does not mean that they can constitute substantive reasons in an objective sense, nor that they require that those who follow them do so motivated by their acceptance.

55I close this response sincerely thankful for the opportunity to discuss my work. I can see now that the misunderstandings and some of the disagreements are due to poor presentation on my part. I hope I have been able to provide some more clarity here. In any case, each of the comments was greatly appreciated. They have all made me consider my proposal carefully, and the sharper the criticism the more stimulating the challenge has been to present adequately what I wish to defend.

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1 Searle 1995; Searle 2010; Hart 1961.

2 Rodríguez 2020: online § 6.

3 Champeil-Desplats 2022.

4 Champeil-Desplats 2022: online § 26.

5 Rapetti 2021: online §§ 3, 21 y 22.

6 Rapetti 2021: online § 32.

7 Rapetti 2021: online § 23.

8 Scataglini 2020: online §§ 1 ss.

9 Rodríguez 2020: online §§ 13 y 14.

10 Rapetti 2020: online § 3.

11 Rapetti 2020: online § 14.

12 Rodríguez 2020: online §§ 17 ss; Scataglini 2020.

13  Rodríguez 2020: online § 18: “However, when referring to an institution or a social practise, whether exclusively in terms of empirical facts or in terms of normative content, it is possible to formulate either purely descriptive statements or normative or evaluative statements about it...”

14 Rodríguez 2020: online § 18. Italics are mine.

15 Scataglini 2020: online § 9.

16 Scataglini 2020: online §§ 8 y 12.

17 Legarre 2020: online § 4; Sánchez Brígido 2020: online §§ 2 y 23.

18 Legarre 2020: online §§ 19-22; Alchourrón y Bulygin 1971: online §§ 54-61.

19 Legarre 2020: online § 2.

20 Sánchez Brígido 2002: online § 40.

21 Sánchez Brígido 2020: online §§ 3 y 40.

22  Redondo 2020: online §§ 37-38.

23 Sánchez Brígido 2020: online § 34.

24 Redondo 1999: ch. 5.

25 However, as I said at the beginning, following Rodríguez, there would be no problem in extending the proposal to include the speaker who refers directly to the empirical world.

26 Rapetti 2020: online §§ 20 y 22 mainly.

27 In this sense, although it would require further analysis, Hart would disagree with Rapetti in asserting that according to the expressivist semantics he accepts: "the meaning of our statements is a function of our mental states".Cf. Rapetti 2020: online § 23.

28 Redondo 2018: online § 93.

29 Redondo 2018: online § 126. Italics are added.

30 Monti 2020: online §§ 7, 22 ss.

31 Monti 2020: online § 26.

32 Monti 2020: online § 25.

33 Monti 2020: online § 30. Italics are mine.

34 Monti 2020: online § 40.

35 Monti 2020: online §§ 47 y 49.

36 Monti 2020: online § 55.

37 Monti 2020: online § 51.

38 Monti 2020: online § 56.

39 Monti 2020: online § 56.

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Electronic reference

María Cristina Redondo, “Internal legal positivism refined”Revus [Online], 48 | 2022, Online since 13 December 2022, connection on 11 June 2024. URL:; DOI:

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About the author

María Cristina Redondo

Researcher at CONICET (Argentina). Professor of Philosophy of law, Tarello Institute for Legal Philosophy, University of Genoa (Italy).

Address: Tarello Institute – University of Genoa – Via Balbi 30, int. 18 – 16126 Genova – Italia.

By this author

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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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