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Norm and Truth

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Truth seems to be an indispensable element of authority which presents itself as being based on more than just power and efficiency. In the domain of law,there is not only and primarily the problem of establishing the truth about the facts which are to be judged; there is also the problem of norms—does their authority rest solely on the act of establishing them, or is there “something behind”, a truth which contributes to the strength of law, and which provides legitimacy to both legislator and to the legal norms themselves. In theoretical reflection, the very possibility of talking about true norms or true evaluations is under challenge, and this view dominates in the academic education of lawyers and other professionals. At the basis of this project lies the conviction that the problem of true norms, and the more general problem of the place of truth in law, is worth re-examining. In the course of such a re-examination, it is also worth returning to certain points in the tradition of thinking about the foudations of law. In the tradition recalled by the papers presented here—by both Italian and Polish authors—a prominent place is occupied by Polish thinkers such as Leon Petra¿ycki, Czes³aw Znamierowski, and Zygmunt Ziembiński. The book consists of three major parts. The titles—Tradition, Theory, Practice mark important points of reference in the reflection on truth in the context of law. The contributions relate to these points in different degrees, and each, though placed in one of these parts, also refer to the others.
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Norm and Truth
Norm and Truth
Edited by
Marek Piechowiak
School of Humanities and Journalism in Poznañ
Poznañ 2008
Reviewer
Tomasz Stawecki
Copyediting and linguistic consulting
Stephen Mulraney
This collection © the School of Humanities and Journalism in Poznañ
Contributions © their authors
ISBN 978-83-87653-52-1
School of Humanities and Journalism
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ul. gen. Tadeusza Kutrzeby 10, 61–719 Poznañ
www.wsnhid.pl
Opracowanie techniczne, ³amanie
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e-mail: dtp@perfekt.pl
Contents
Preface / vii
I. Tradition
Stanis³aw Czepita
Czes³aw Znamierowski’s Conception of the Norm and the Problem
of Truth / 3
Jakub Martewicz
Truth of Legal Norms in Czes³aw Znamierowski’s Philosophy / 8
Giuseppe Lorini
The Threefold Role of the Logical Value of Norms / 16
Edoardo Fittipaldi
Illusions of Imperatives, Norms, and Truth / 26
Pawe³ £¹cki
Ethical cognitivism in Finnis’s Theory / 39
Andrzej Spycha³a
On the Transition from Being to Ought—Is the Problem Real? / 49
II. Theory
Amedeo G. Conte
Xenonyms. Xenonymy, Synonymy, Synsemy / 57
Marek Piechowiak
Can Human Rights be Real? Can Norms be True? / 71
Paolo Di Lucia
Founding Norms on Truth versus Founding Truth on Norms / 84
v
Guglielmo Siniscalchi
Normality as Truth / 94
Angiola Filipponio
Phenomenology of the Truth of Norms / 99
Olgierd Pankiewicz
Reduction to Objectivity in Law / 110
Antonio Incampo
Rules from Truths, Truths from Rules / 117
Stefano Colloca
A Priori versus A Posteriori in Axiotics / 125
Lorenzo Passerini Glazel
True Norms / 132
Tomasz Koz³owski
Legalness—Philosophical Truth as a Concept of Law / 141
Maurycy Zajêcki
Axiological Presuppositions of Legal Text: Some Ideas in the Neopositive
Approach / 150
III. Practice
Jacek Sobczak and Agnieszka Stêpiñska
The Truth of the Court and the Truth of the Media / 161
Ksenia Kakareko
Human Rights in the Constitution of the Republic of Belarus: Between
Declarations and Real Guarantees / 170
Maria Go³da-Sobczak
Historical Truth and the Possibilities of its Normative Consequences / 182
Piotr Piesiewicz
The Real or Virtual World—Legal Norms in Virtual Worlds / 193
About the authors / 203
vi Contents
Preface
Truth seems to be an indispensable element of authority which presents itself
as being based on more than just power and efficiency. In the domain of law,
there is not only and primarily the problem of establishing the truth about
the facts which are to be judged; there is also the problem of norms—does
their authority rest solely on the act of establishing them, or is there “somet-
hing behind”, a truth which contributes to the strength of law, and which
provides legitimacy to both legislator and to the legal norms themselves. In
theoretical reflection, the very possibility of talking about true norms or true
evaluations is under challenge, and this view dominates in the academic edu-
cation of lawyers and other professionals. At the basis of this project lies the
conviction that the problem of true norms, and the more general problem of
the place of truth in law, is worth re-examining. In the course of such a
re-examination, it is also worth returning to certain points in the tradition of
thinking about the foudations of law. In the tradition recalled by the papers
presented here—by both Italian and Polish authors—a prominent place is
occupied by Polish thinkers such as Leon Petra¿ycki, Czes³aw Znamierowski,
and Zygmunt Ziembiñski
The book consists of three major parts. The titles—Tradition, Theory, Prac
-
tice mark important points of reference in the reflection on truth in the con
-
text of law. The contributions relate to these points in different degrees, and
each, though placed in one of these parts, also refer to the others.
This book is a result of cooperation between Italian and Polish scholars
based on a project carried out by the Department of Philosophy of Law and
Human Rights at the School of Humanities and Journalism in Poznañ. A part
of this project was the Italian-Polish Workshop “Norm and Truth”, which took
place on 13–14 November, 2008. Early drafts of the majority of the contribu
-
tions were presented and discussed at this workshop. The authors of the papers
vii
include renowned scholars, as well as young researchers. The contributors also
include a number of legal practitioners.
On behalf of the participants of this project, I wish to express my grati
-
tude to the School of Humanities and Journalism for the founding of the pro
-
ject. Stephen Mulraney was kind enough to help with the language and style
of the contributions.
Marek Piechowiak
viii Preface
I. Tradition
STANIS£AW CZEPITA
Czes³aw Znamierowski’s Conception of the Norm
and the Problem of Truth
1. Introduction
The aim of this paper is to present and critically analyse the conception of the
norm formulated by one of the founders of contemporary Polish theory and
philosophy of law—Czes³aw Znamierowski (1888–1967)—in relation to the
problem of truth. In my paper I will first present Znamierowski’s conception
of the norm as a special kind of statement in the logical sense, and his distinc-
tion between axiological and thetic norms; Secondly, I will consider the origi-
nal critical interpretation of that conception due to the most outstanding of
Znamierowski’s students, Zygmunt Ziembiñski. Thirdly, I will propose my
own interpretation of Znamierowski’s ideas.
2. Znamierowski’s conception of the norm
It should be explained that in the beginning, Znamierowski’s approach to
the ontological status of the norm varied. The changes in his conception of
the norm were connected to the evolution of his views on general philosophy.
In his early years, Znamierowski, who had studied philosophy in Ger
-
many and Switzerland, was influenced by phenomenological philosophy.
What affected him most strongly were the ideas of Adolf Reinach—a student
of Edmund Husserl—concerning the existence and recognition of objects
and categories a priori (Reinach 1913; Gardies 1985).
It was under this influence that Znamierowski at first considered norms as
organic entities (as he called them). Their existence was not limited to time
and space, as the examples of musical compositions and legal norms illus
-
trate. However, Znamierowski did not share Husserl’s belief in essences ex
-
3
isting beyond time and space. He claimed that for entities such as organic en
-
tities, their existence was not fulfilled entirely in time and space, but their
essence, in a way, was manifested in particular items. For example, a musical
composition is expressed by performances, or by notes; a legal norm is ex
-
pressed in its acts of verbal expression and writing (Znamierowski 1921). Al
-
though Znamierowski’s approach was obviously not clear, it needs to be
added that in his early attitude norms were not, or at least were not assumed
to be, linguistic utterances.
Znamierowski formulated his conception of norms as a special kind of
proposition in the logical sense in the 1920s and 1930s, mainly in his books
Podstawowe pojêcia teorii prawa (Basic concepts of the theory of law) and Prole
-
gomena do nauki o pañstwie (Prolegomena to the study of the state)
(Znamierowski 1924, 1934; 1947). As far as his philosophical assumptions
are concerned, he was at that time influenced by Polish analytic philosophy,
especially the so-called Lvov-Warsaw School. As is well known, the school
held ideas similar to neopositivist philosophy, especially to the ideas of the
so-called Vienna Circle (Czepita 1988, 14ff).
Generally speaking, Znamierowski was of the opinion that the norm was
a special kind of proposition in the logical sense. This original point of view
was connected with the fact that by a “norm”, he meant a different kind of
expression than is commonly intended. Expressions indicating that in certain
circumstances one should behave in a certain way were treated by
Znamierowski as just a part of the norm, which he called its core. According
to him, a fully expressed norm must also indicate on the basis of what one
should behave in the certain way. This part of the norm—which indicates the
basis of the ought expressed in the core of the norm—Znamierowski called the
“norm introduction” (Znamierowski 1934, 22ff).
Znamierowski assumed that the basis of the ought indicated in the core of
the norm might be one’s act of evaluation, or an act of norm-giving
(norm-proclamation). As a result, he claimed that every norm is a special
kind of proposition in the logical sense, and thus that it is either true or false.
It is easy to see that the kind of utterance which he calls a norm is what is usu
-
ally treated as a deontic statement—a statement which qualifies a given con
-
duct from the point of view of a given norm (according to Znamierowski’s
terminology, from the point of view of the core of the norm). At the same
time, Znamierowski claimed that the deontic statement qualifying one’s be
-
haviour according to “the norm” (i.e. the core of the norm) is in his terminol
-
ogy a norm only on the condition that the core of this norm is justified in
somebody’s real act of evaluation, or in a real fact of norm-proclamation.
4 STANIS£AW CZEPITA
Therefore it must be stated that those expressions called norms by
Znamierowski are—in modern logical terminology—deontic statements in
the strong sense (Czepita 1988, 40–46).
Znamierowski’s approach in ascribing logical value to the norm was also
not popular when he presented it in the first half of the twentieth century,
and it did not meet with a response then. In the common approach to the
norm of Polish philosophy of law of the time, the norm was treated as an ex
-
pression that was neither true nor false. Nevertheless, it should be mentioned
that according to the Polish logical thinking of the day (and in particular in
the thought of Witold Wilkosz, an outstanding Polish logician), the problem
of whether the norm had a logical value or not was considered to be an open
one (Wilkosz 1925).
3. Ziembiñski’s interpretation
Czes³aw Znamierowski’s conception of the norm as a true or false utterance
was critically analysed by his most outstanding student, Zygmunt Ziem-
biñski (1920–1996).
As far as Ziembiñski’s methodological and philosophical approach is con-
cerned, he assumed analytic philosophy and neopositivist ideas, and he held
the main idea of emotivism in ethics in high regard. In consequence
Ziembiñski assumed that there was a sharp difference between descriptive
utterances and evaluative ones, and so there could be no logical passage lead-
ing from is to ought.
Ziembiñski was of the opinion that Znamierowski had misinterpreted the
introduction as a part of the norm. The norm was thus, according to accepted
terminological conventions, the utterance indicating that one ought to be
-
have in such-and-such a way, i.e. the utterance which Znamierowski called
the core of the norm. The indication is not a part of the norm, but indicates
its justification. Every norm expresses what ought to be done, but does not
describe anything. So it is neither true nor false. The logical value belongs
only to the proposition (statement) in a logical sense, i.e. an utterance which
states either that such is the case, or such is not the case (Ziembiñski 1970).
According to Ziembiñski, the distinction between axiological and thetic
norms formulated by Znamierowski was not a distinction between two kinds
of norms, but rather between two ways of justifying norms. The axiological
norm is the one that is to be justified in reference to somebody’s act of evalu
-
ation. The thetic norm is justified on the basis of a proper act of norm-mak
-
Czes³aw Znamierowski’s Conception of the Norm and the Problem of Truth 5
ing (norm-promulgation). Ziembiñski emphasized that one and the same
norm might be simultaneously justified from both the axiological and thetic
points of view (Ziembiñski 1963).
4. Another interpretation
Now I would like to propose another interpretation of Znamierowski’s ideas,
one which is different from the above interpretation formulated by Ziembiñ
-
ski. The key problem is whether it is possible to at the same time presume that
on the one hand, the norm is a proposition (statement) in the logical sense—
i.e. it is either true or false—and that on the other hand, the introduction is
not a part of the norm. To analyse this problem I will use the conception of
presupposition formulated by Peter F. Strawson (Strawson 1952, 175ff).
As was noticed by Ziembiñski, what is expressed by the norm introduc-
tion (in Znamierowski’s terminology) is not expressed by the norm itself (by
the core of the norm). But in opposition to Ziembiñski’s interpretation, the
relationship between the norm introduction and the core of the norm does
not only seem to be a relationship of justification. What the norm introduc-
tion refers to is the condition sine qua non of saying whether one ought to be-
have in a particular way in a particular situation. In case of the norms which
Znamierowski calls “thetic”, we state first of all that there was an act of
norm-making (norm-proclamation). This is a presupposition of the true or
false statement determining that one ought to behave in this or that way.
Consequently, the presupposition concerns the state of the world created by
the act of norm-making (norm-proclamation).
In case of the norms which Znamierowski calls “axiological”, the character
of the presupposition depends on the accepted ontology of values. Assuming
ethical cognitivism, the presupposition says that there are certain objective
values and—in such situations—the norm (the core of the norm) ascertains
that one objectively ought to behave in such-and-such a way. Assuming ethi
-
cal noncognitivism, the presupposition is an utterance expressing somebody’s
subjective attitude, and the norm states that in the light of one’s evaluation,
addressees of the norm ought to behave in such-and-such a way. Consequently
an axiological norm is, in the first case, a logical proposition (statement) which
ascertains that one ought to behave in such-and-such a manner, providing
that there are objective values. In the second case, the axiological norm is a
psychological statement saying that one approves or disapproves of certain be
-
haviour, providing that there has been an act of ethical evaluation.
6 STANIS£AW CZEPITA
From the point of view presented, one can say that norms are true or false
propositions (statements) which state that one ought to behave in such and
such way, formulated on the assumption that some other utterances concern
-
ing the ontological status and the sources of the ought are true.
Two objections might be raised to the above conception. First, that it is
not precise enough; and one has to agree that as given, it is a draft that re
-
quires some clarification. What in particular needs clarification is what is
meant by a norm presupposition—whether we opt for a semantic or prag
-
matic conception of presupposition.
Second of all, one may claim that the conception presented requires
so-called strong ontological assumptions. But it seems that in discussing
whether or not norms are true or false, no strong ontological assumption
whatsoever would be avoided, and neither would strong ontological assump
-
tions be avoided in believing that any objective ought or objective value does
not exist.
Bibliography
Czepita, Stanis³aw. 1988. Koncepcje teoretycznoprawne Czes³awa Znamierowskiego. Poznañ: Uni-
wersytet im. Adama Mickiewicza w Poznaniu.
Gardies, Jean-Louis. 1985. Adolf Reinach and the Analytical Foundations of Social Acts. In
Speech Act and Sachverhalt. Ed. Kevin Mulligan. Dordrecht: Nijhoff. 107–117.
Reinach, Adolf. 1913. Die apriorischen Grundlagen des bürgerlichen Rechtes. Jahrbuch für
Philosophie und phänomenologische Forschung 1, 685–847.
Strawson, Peter F. 1952. Introduction to Logical Theory. London: Methuen.
Wilkosz, Witold. 1925. G³os w Naradach nad teori¹ prawa. In Prace z dziedziny teorii prawa,
ed. W. L. Jaworski. Czasopismo Prawnicze i Ekonomiczne XXIII: 45–51.
Ziembiñski, Zygmunt. 1963. Normy tetyczne a normy aksjologiczne w koncepcji Cz. Zna
-
mierowskiego. Studia Filozoficzne 2: 87–112.
———. 1970. Koncepcje filozoficzne Czes³awa Znamierowskiego a prawoznawstwo. Ruch
Filozoficzny 1–2: 1–13.
Znamierowski, Czes³aw. 1921. O przedmiocie i fakcie spo³ecznym. Przegl¹d Filozoficzny 1–2:
1–33.
———. 1924. Podstawowe pojêcia teorii prawa. 1st ed. Warsaw: Hoessick.
———. 1934. Podstawowe pojêcia teorii prawa. 2nd ed. Poznañ: Górski & Tezlaw.
———. 1947. Prolegomena do nauki o pañstwie. Poznañ: Górski & Tezlaw.
Czes³aw Znamierowski’s Conception of the Norm and the Problem of Truth 7
JAKUB MARTEWICZ
Truth of Legal Norms in Czes³aw Znamierowski’s Philosophy
“Radici: oscure immagini dei rami.”
“Korzenie: ciemne obrazy ga³êzi.”
Amedeo Giovanni Conte (*1934, Pavia)
1
Contents
1. Znamierowski’s three theses on the nature of norms
1.1. Znamierowski’s first thesis (ontological thesis): Norms are (logical) sen-
tences/propositions
1.2. Znamierowski’s second thesis (semantic thesis): Norms are capable of be-
ing true or false
1.3. Znamierowski’s third thesis (metalogical thesis): Norms are subjects of
logical relations
2. Znamierowski’s distinction: axiological norms versus thetic norms
3. Znamierowski’s theory of truth of norms
3.1. Truth of axiological norms
3.2. Truth of thetic norms
8
1
Polish translation by Wojciech ¯e³aniec.
1. Znamierowski’s three theses on the nature of norms
In chapter 1, I will expose Znamierowski’s three theses on the nature of
norms.
The first thesis is an ontological thesis, the second thesis is a semantic thesis,
and the third thesis is a metalogical thesis.
1.1. Znamierowski’s first thesis (ontological thesis): Norms are (logical)
sentences/propositions
Znamierowski’s first thesis on the nature of norms is an ontological thesis.
In Podstawowe pojêcia teorji prawa (Basic concepts of the theory of law),
Znamierowski (1924; 1934)
2
states that norms are sentences/propositions
(zdania):
W [...] sporze o istotê normy s³usznoœæ maj¹ niew¹tpliwie ci, którzy uwa¿aj¹ za
zdanie.
(Znamierowski 1934, 22).
3
In the discussion of the essence [istota] of the norm, those who claim that the norm
is a sentence/proposition [zdanie] are right.
4
Znamierowski, again in the same work (ibid., 22–31), introduces the con-
cept of logical form (forma logiczna/postaæ logiczna) of norms, and says that the
zdanie (“sentence”/“proposition”) is, in fact, a logical form (forma
logiczna/postaæ logiczna) of the norm (ibid., 24).
Given the ambiguity of the Polish term ‘zdanie’, I will offer only the fol
-
lowing interpretative hypothesis: the ontological thesis that norms are sen
-
tences/propositions (zdania) makes plausible the second thesis—the semantic
thesis.
Truth of Legal Norms in Czes³aw Znamierowski’s Philosophy 9
2
The year when Znamierowski’s Podstawowe pojêcia teorji prawa was first published, 1924, was
also the year of the death of Franz Kafka (*3 July, 1883, Prague, Austria-Hungary, †3 June,
1924, Kierling near Vienna, Austria), and the year of the birth of the eminent Italian philosopher
of law, Uberto Scarpelli (*19 February, 1924, Vicenza, Italy, †16 July, 1993, Milan, Italy).
3
My emphasis throughout. All the translations from Polish are mine.
4
We could ask, which definition of the term zdanie [in English, sentence’; in Italian, enunciato’;
in German, ‘Satz], of the more than 140 definitions of this term given by John Ries in 1931, was
believed by Znamierowski to be true? (Ries 1931, 208–224).
1.2. Znamierowski’s second thesis (semantic thesis): Norms are capable of being
true or false
Znamierowski’s second thesis on the nature of norms is a semantic thesis.
Znamierowski maintains that norms are sentences/propositions [zdania]
capable of being true or false (ibid., 31).
In his discussion with Witold Wilkosz, 1925, Znamierowski holds that
the following sentences/propositions (zdania):
(i) Prawd¹ jest, ¿e powinno byæ to a to”
“It is true that something ought to be”;
(ii) Fa³szem jest, ¿e powinno byæ owo”
“It is false that something ought to be”;
do not only make sense, but are themselves capable of being true or false
(“mog¹ byæ prawd¹ lub fa³szem”) (Znamierowski 1925, 253).
The claim that norms are capable of being true or false was maintained
(together with the thesis that norms are sentences/propositions [zdania])by
Znamierowski in his later book, Oceny i normy (1957):
Normy to [ ...] zdania logiczne, to znaczy: takie [zdania], które mog¹ byæ prawdziwe
albo fa³szywe [...] (Znamierowski 1957, 511).
5
Norms are logical sentences/logical propositions [zdania logiczne], i.e. sentences/proposi
-
tions that can be true or false.
6
1.3. Znamierowski’s third thesis (metalogical thesis): Norms are subjects of
logical relations
Znamierowski’s third thesis on the nature of norms is a metalogical thesis.
In Oceny i normy, Znamierowski (1957) maintains that norms can be con
-
nected by a relation of entailment (stosunek wynikania):
10 JAKUB MARTEWICZ
5
Statements that norms are true or false can be found also in Znamierowski (1934, 31–40).
6
For the analysis of the concept of zdanie w sensie logicznym”(sentence in the logical sense”) in
Znamierowski, see Czepita (1988, 40–46).
Normy to [...] zdania logiczne [...] które wi¹zaæ mo¿e stosunek wynikania (Zna
-
mierowski 1957, 511).
Norms are logical sentences/logical propositions [zdania logiczne] that can be con
-
nected by a relation of entailment [stosunek wynikania].
2. Znamierowski’s distinction: axiological norms versus thetic norms
In Podstawowe pojêcia teorji prawa, Znamierowski distinguishes between thetic
norms (normy tetyczne) and axiological norms (normy aksjologiczne) (Znamie
-
rowski 1934, 36).
In fact, the names ‘thetic norm’ and ‘axiological norm’ do not denote two dif
-
ferent concepts of norm, but are referred to the two different ways of justification
or foundation (uzasadnienie)
7
of a norm. Thetic norms are justified/founded
[uzasadniane] in virtue of the act of their production, while axiological norms are
justified by/founded on [uzasadniane] an evaluation (Ziembiñski 1963, 93).
Znamierowski claims that all legal norms are a subset of thetic norms, al-
though the inclusion of legal norms in the set of thetic norms does not ex-
clude the possibility of their axiological justification/foundation (uzasadnienie).
3. Znamierowski’s theory of truth of norms
According to Znamierowski, both thetic norms (normy tetyczne) and axiological
norms (normy aksjologiczne) are sentences/propositions (zdania) capable of being
true or false.
There is, however, a difference between the criterion of truth for thetic
norms, and the criterion of truth for axiological norms.
3.1. Truth of axiological norms
3.1.1. Znamierowski holds that axiological norms are true or false irrespective
of any legislative (in Amedeo Giovanni Conte’s language, nomothetic) act:
Truth of Legal Norms in Czes³aw Znamierowski’s Philosophy 11
7
As observed by Giuseppe Lorini, in this particular context, a perhaps better xenonym of the
Polish substantive ‘uzasadnienie’—instead of the usually used term ‘justification’/‘giustificazione’—
would be foundation’/‘fondazione’.
Norma aksjologiczna ‘x powinno byæ a’ lub ‘P powinien wykonaæ czyn c’ obowi¹zuje,
zdania te prawdziwe, gdy w danych warunkach w
x
, wzglêdnie w
P
, posiadanie przez x
w³asnoœci a, wzglêdnie wykonanie czynu c przez P, jest najlepsz¹ ze wszystkich mo¿liwych
ewentualnoœci
(Znamierowski 1934, 31–32).
The axiological norms x ought to be a’or‘P ought to do c are valid norms
[obowi¹zuj¹]—that is, these sentences/propositions [zdania] are true, if under the
circumstances w
x
or w
P
, the fact that x has a certain feature a or that an agent P
undertakes an activity c, respectively, is the best option of all possible options.
3.1.2. Znamierowski gives an example of a true axiological norm:
Je¿eli [...] prawd¹ jest [...] ¿e w danych warunkach nadanie takiego a takiego kszta³tu
danemu pos¹gowi stworzy dzie³o sztuki piêkniejsze, ni¿ inne ukszta³towanie tego samego
pos¹gu, to prawd¹ jest jednoczeœnie, i dlatego w³aœnie, ¿e pos¹g ten powinien byæ taki
a taki
(Znamierowski 1934, 31–32).
If it is true that moulding a certain sculpture into certain shape, in a certain time
and place, will make the sculpture more beautiful than it would have been if
shaped differently, then it is true that the sculpture should be [powinna byæ]
shaped exactly in this way.
3.1.3. As we can see in the quotation in section 3.1.2, the truth of an
axiological norm (e.g. that the sculpture should be shaped in a particular way)
depends on the evaluation (that moulding the sculpture into such a shape
will make it the most beautiful).
In short, in Znamierowski’s theory, the “truth” (“prawda/prawdziwoœæ”)
of an axiological norm depends on an evaluation (ocena).
Yet at the same time Znamierowski affirms that the truth of axiological
norms is not a subjective truth:
Zdania, bêd¹ce normami [aksjologicznymi], tak samo prawdziwe absolutnie, nie
-
zmiennie, jak wszelkie inne zdania, stwierdzaj¹ce jakikolwiek inny stan rzeczy
(Zna
-
mierowski 1934, 33–34).
Sentences/propositions [zdania] that are (axiological) norms are absolutely, im
-
mutably true, like all other sentences/propositions [zdania] which assert any
other state of things.
12 JAKUB MARTEWICZ
3.2. Truth of thetic norms
3.2.1.1. In this passage from Podstawowe pojêcia teorji prawa, Znamierowski
deals with the relationship between truth (prawda/prawdziwoϾ) and validity
(obowi¹zywanie) in the field of “thetic norms” (“normy tetyczne”):
Norma tetyczna obowi¹zuje, zdanie jest prawdziwe, je¿eli istotnie mia³ miejsce ów akt
stanowienia i je¿eli treœæ tego aktu by³a istotnie to¿sama z treœci¹ przytoczonej normy
(Znamierowski 1934, 35).
A thetic norm is a valid norm [obowi¹zuje], and the sentence/proposition [zdanie]
is a true sentence/proposition, if [firstly:] there really did take place the
nomothetic act [akt stanowienia], and if [secondly:] the content [treϾ] of that
nomothetic act was identical to the content [ treϾ] of the norm in question.
3.2.2. Here is my interpretation of Znamierowski’s account of the truth of thet-
ic norms.
3.2.2.1. In the case of thetic norms (normy tetyczne), neither the normative sen-
tence (zdanie), nor the thetic utterance (wypowiedŸ/wypowiedzenie) of the norma-
tive sentence (“akt stanowienia”) coincide with the thetic normative state of
affairs (stan rzeczy).
8
But the truth-conditions of a thetic normative sentence (zdanie) do coincide
with the validity-conditions of the thetic normative state of affairs (stan
rzeczy). The reason for this coincidence is that in the case of thetic norms,
both the truth (prawda/prawdziwoϾ) of the normative sentence (zdanie) and
the validity (obowi¹zywanie) of the thetic normative state of affairs (stan rzeczy)
are the product (in Kazimierz Twardowski’s language, wytwór) of the thetic ut
-
terance (wypowiedŸ/wypowiedzenie) of the normative sentence (zdanie).
Znamierowski explains the difference between validity (obowi¹zywanie)
and truth (prawda/prawdziwoϾ) of thetic norms in the following way:
Obowi¹zywanie [normy] polega na pewnem ustosunkowaniu normy jako ca³oœci, jako
pewnego samodzielnego przedmiotu, do podmiotu lub podmiotów dzia³aj¹cych, praw
-
dziwoœæ [normy] zaœ—na ustosunkowaniu treœci zdania do wyznaczonego przez treœæ
stanu rzeczy
(Znamierowski 1934, 31).
Truth of Legal Norms in Czes³aw Znamierowski’s Philosophy 13
8
The thetic utterance (wypowiedŸ/wypowiedzenie) of the normative sentence (zdanie)isthe“akt
stanowienia (in Conte’s language, the nomothetic act [akt nomotetyczny], i.e. the thetic act [akt tetycz
-
ny] of production [stanowienie] of a thetic norm).
The validity [obowi¹zywanie] of a norm consists of the relation between the norm
as a whole, as an autonomous object, and the agent or agents. On the other
hand, the truth [prawda/prawdziwoϾ] of a norm consists of the relation
[ustosunkowanie] between the content of the sentence [treϾ zdania] and the state of
affairs [stan rzeczy] stipulated [wyznaczonego] by the content.
3.2.2.2. In the case of thetic norms, the thetic utterance of a normative sen
-
tence (“akt stanowienia”) plays a twofold role in Znamierowski’s deontics:
(i) On the semantic level, the thetic utterance of a normative sentence
produces the truth (“prawda/prawdziwoœæ”) of the normative sentence
(zdanie).
(ii) On the ontological level, the thetic utterance of a normative sentence
produces the validity (“obowi¹zywanie”) of the thetic norm.
Bibliography
Azzoni, Giampaolo. 1992. Validità semantica in deontica. Rivista internazionale di Filosofia del
diritto 69, 166–177.
Colloca, Stefano. 2008. Prescrittivo vs. presentativo. In Materiali per una storia della cultura
giuridica 38, 253–266.
Conte, Amedeo Giovanni. 1968. Primi argomenti per una critica del normativismo. Pavia: Tipo-
grafia del Libro. [Later edition: Conte (2001f)].
———. 1988. Minima deontica. 1st ed. Rivista internazionale di filosofia del diritto 65, 427–475.
[Second edition: Conte (1994)].
———. 2001. Radici della fede: fides wiara truth. 2nd ed. In Filosofia del linguaggio normativo
III. Studi 1995–2001. Amedeo G. Conte. Turin: Giappichelli. 843–879. [First edition:
Conte (1999)].
———. 2001f. Primi argomenti per una critica del normativismo. In Filosofia del linguaggio
normativo. III. Studi 1995–2001. Amedeo Giovanni Conte. Turin: Giappichelli. 677–748.
[Earlier edition: Conte (1968)].
———. 2001g. Filosofia del linguaggio normativo. III. Studi 1995–2001. Turin: Giappichelli.
———. 2006. Kenningar. Bari: Adriatica.
———. 2009. Xenonyms. Xenonymy, Synonymy, Synsemy. In current volume.
Czepita, Stanis³aw. 1988. Koncepcje teoretycznoprawne Czes³awa Znamierowskiego. Poznañ: Uni
-
wersytet im. Adama Mickiewicza w Poznaniu.
Di Lucia, Paolo, ed. 2002. Filosofia del diritto. Milan: Cortina.
———. 2003. Normatività. Diritto, linguaggio, azione. Turin: Giappichelli.
———, ed. 2003b. Ontologia sociale. Potere deontico e regole costitutive. Macerata: Quodlibet.
[Second edition published 2005].
14 JAKUB MARTEWICZ
Ferrari, Gianfranco Angelo, ed. 2007 Verità e menzogna. Profili storici e semiotici. Turin: Giappi
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chelli.
Filipponio, Angiola, ed. 2005. Verità e normatività. Milan: Giuffrè.
Kordela, Marzena. 2001. Zarys typologii uzasadnieñ aksjologicznych w orzecznictwie Trybuna³u
Konstytucyjnego. Bydgoszcz: Branta.
Lorini, Giuseppe. 2003. Il valore logico delle norme. Bari: Adriatica.
———. 2006. Norma costruttiva ed atto thetico in Czes³aw Znamierowski. Rivista interna
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zionale di Filosofia del diritto 83, 279–289.
———. 2008. Oggetto e atto. Contributo alla filosofia del diritto. Turin: Giappichelli.
Martewicz, Jakub. 2008. Il quadruplice contributo di Zygmunt Ziembiñski alla filosofia del
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la norma. Rivista internazionale di Filosofia del diritto 85, 701–717.
Mazzarese, Tecla. 1989. Logica giuridica e linguaggio normativo. Padua: CEDAM.
Muffato, Nicola. 2007. Semantica delle norme. Genoa: ECIG.
Olivari, Alessandro. 2008. Termini axiologici in Karl Engisch, Uberto Scarpelli, Georg Hen
-
rik von Wright. Rivista internazionale di Filosofia del diritto 85, 211–233.
Passerini Glazel, Lorenzo. 2007. Falso, finto, non-vero. Due paradigmi per una filosofia della
non-verità. In Verità e menzogna. Profili storici e semiotici. Ed. Gianfranco A. Ferrari. Turin:
Giappichelli. 135–139.
Ries, John. 1931. Beiträge zur Grundlegung der Syntax. Heft III: Was ist ein Satz? Prague: Taus-
sig & Taussig.
Smolak, Marek. 2007. Czes³aw Znamierowski. W poszukiwaniu sprawnego pañstwa. Poznañ:
Wydawnictwo Poznañskie.
Ziembiñski, Zygmunt. 1961. O zdaniowym charakterze norm tetycznych. Studia Logica XI,
37–47.
———. 1963. Normy tetyczne a normy aksjologiczne w koncepcji Cz. Znamierowskiego.
Studia Filozoficzne 2: 87–112.
———, ed. 1987. Polish Contributions to the Theory and Philosophy of Law. Amsterdam: Rodo-
pi.
Znamierowski, Czes³aw. 1924. Podstawowe pojêcia teorii prawa. 1st ed. Warsaw: Hoessick.
———. 1925. Kilka uwag o pogl¹dzie prof. Wilkosza na sprawê nauk normatywnych.
Przegl¹d Filozoficzny 28, 252–257.
———. 1927. Z nauki o normie postêpowania. Przegl¹d Filozoficzny 30. 348–349.
———. 1934. Podstawowe pojêcia teorii prawa. 2nd ed. Poznañ: Górski & Tezlaw.
———. 1957. Oceny i normy. Warsaw: Pañstwowe Wydawnictwo Naukowe.
———. 1987. The Basic Concepts of the Theory of Law. Introductory Remarks. Trans. An
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drzej Szlêzak. In Polish Contributions to the Theory and Philosophy of Law. Ed. Zygmunt
Ziembiñski. Amsterdam: Rodopi. 33–37.
———. 2002. Atti thetici e norme costruttive. Trans. Giuseppe Lorini. In Filosofia del diritto. Ed.
Paolo Di Lucia. Milan: Cortina. 75–80. [Partial Italian translation of Znamierowski
(1924)].
———. 2006. Norma costruttiva ed atto thetico. Trans. Giuseppe Lorini. Rivista internazio
-
nale di Filosofia del diritto 83 [Partial Italian translation of Znamierowski (1927)].
Truth of Legal Norms in Czes³aw Znamierowski’s Philosophy 15
GIUSEPPE LORINI
The Threefold Role of the Logical Value of Norms
Logika jest nauk¹ o przedmiotach szczególnego rodzaju: wartoœciach logicznych.
Logic is the science of a particular type of objects: the logical values.
Jan £ukasiewicz
1
Contents
1. The logical value of norms
1.1. The logical value of propositions in Jan £ukasiewicz
1.2. The logical value of norms in Jerzy Kalinowski
1.3. The thesis of the plurality of logical values
2. Five deontic counterparts (deontic análoga) of truth
3. Three questions on the logical value of norms
3.1. First question: the role of the logical value of norms in formal logic
3.2. Second question: the role of the logical value of norms in the theory of
syllogisms
3.3. Third question: the role of the logical value of norms in the theory of lo
-
gical principles
4. Three roles of the logical value of norms
16
1
£ukasiewicz (1921, 189).
1. The logical value of norms
1.1. The logical value of propositions in Jan £ukasiewicz
It was the Polish logician Jan £ukasiewicz (Lvov 1878–Dublin 1956) who in
-
troduced the term “logical value” (Polish wartoœæ logiczna) to the language of
philosophical logic.
£ukasiewicz first used the term wartoœæ logiczna in the essay O wartoœciach
logicznych (On logical values), a brief essay which appeared in 1911 in Ruch
Filozoficzny, the philosophical review edited by Kazimierz Twardowski.
In this essay £ukasiewicz investigates the logical value of propositions
(zdania), and uses the term “logical value” (wartoœæ logiczna) as a synonym of
“truth value”.
1.2. The logical value of norms in Jerzy Kalinowski
While £ukasiewicz investigated the logical value of propositions (zdania), the
Polish logician and philosopher Jerzy Kalinowski (Lublin 1916–Dijon 2000),
one of the founders of deontic logic, investigated the logical value of norms.
The question, “What is the logical value of norms?” shapes the whole of
Kalinowski’s research into the grounds and the possibility of a logic of norms.
Kalinowski deals with this question in the first lines of his 1953 essay Teoria
zdañ normatywnych (Theory of normative sentences):
Zdania, które maja wartosc logiczna prawdy, falszu lub posrednia miedzy prawda
a falszem, mozna podzielic ze wzgledu na to, co wyrazaja, na zdania teoretyczne i zdania
normatywne (Kalinowski 1953, 112).
Sentences having a logical value of true, a logical value of false, or an intermedi
-
ate logical value between truth and falsehood, can be classified with regard to
their content, into theoretical sentences and normative sentences.
In this brief passage, Kalinowski introduces two fundamental theses (both
counterintuitive) on normative sentences (zdania normatywne).
(i) First thesis: normative sentences are apophantic sentences (i.e. sen
-
tences that can be true or false).
The Threefold Role of the Logical Value of Norms 17
(ii) Second thesis: the logical value (wartosc logiczna) of normative sentences
is truth (prawda).
2
1.3. The thesis of the plurality of logical values
1.3.0. I have distinguished between Kalinowski’s two theses on normative
sentences.
The second thesis, that the logical value (wartosc logiczna) of normative
sentences is their truth (prawda), is only apparently a mere specification of the
first thesis, that normative sentences are apophantic sentences.
Yet these two theses are logically unrelated: the thesis that normative sen
-
tences are apophantic does not imply the thesis that the logical value of nor
-
mative sentences is their truth.
We can understand that these two theses are not related if we are ac-
quainted with an idea which was revolutionary in the philosophical logic of
the twentieth century—the idea that beyond the pair of logical values, true
and false, there can be other pairs of logical values, such as valid and invalid.
1.3.1. The thesis of the plurality of logical values is explicitly upheld by
Kalinowski (1965):
Les logiciens admettent presque à l’unanimité que la valeur logique s’identifie à celle de
vérité ou de fausseté [...]. Cependant le logicien contemporain s’intéresse aussi aux pro-
positions (au sens grammatical du mot) impératives, interrogatives [...] ou exclamatives
qui manifestement ne possèdent pas la valeur de vérité [...]. D’aucuns se posent de ce fait la
question de savoir si l’on peut encore parler ici de logique. [...] C’est un fait qui existe des
raisonnements ayant pour prémisses et conclusions des propositions ne possédant pas la
valeur de vérité ou de fausseté. [ ...] On est donc bien obligé d’admettre une pluralité de
valeurs logiques (Kalinowski 1965, 15–16; 1967).
Logicians admit almost unanimously that logical value coincides with the logical
value of truth or falsehood. [] Nevertheless the contemporary logician is also
interested in propositions as imperative (in the grammatical sense of the word)
18 GIUSEPPE LORINI
2
The question of the logical values of norms was also discussed by a disciple of Kalinowski—
the Polish philosopher Karol Wojty³a (later Pope John Paul II), in the book Osoba i czyn (1969). In
the same year, another Polish philosopher, Feliks Wojciech [Felice Adalberto] Bednarski, dealt
with the problem of the logical value of norms in the essay La deduzione delle norme morali generali
dalla legge naturale (Bednarski 1969, 10).
propositions, interrogative propositions, and exclamatory propositions that evi
-
dently do not have a logical value. [] For this reason we may ask whether in
these cases we are still dealing with logic. [] We must recognize that there are
arguments in which premises and conclusions do not have the logical value of
truth or falsehood. [ ] Therefore we must admit the plurality of logical values.
1.3.2. In particular, it is just on the plurality of logical values that Kalinowski
(who believes that norms can be true or false) bases the possibility of a deontic
logic, even in cases where we hold that norms cannot be said to be true or false:
Même si les normes ne possédaient pas la valeur de vérité ou de fausseté, la logique déontique
serait encore possible, la vérité et la fausseté n’étant pas les seules valeurs logiques
(Kalinowski 1965, 81).
Even if norms did not have the logical value of truth or falsehood, deontic logic
would be still possible, since truth and falsehood are not the only logical values.
According to Kalinowski, truth and falsehood are not the only logical values.
2. Five deontic counterparts (deontic análoga) of truth
Kalinowski was not the first philosopher to investigate the logical value of
normative entities.
The following is a short list of predicates (properties) which the deontic lo-
gicians ante litteram (that is, those logicians who investigated the logic of nor
-
mative entities before the deontic logic was founded in 1951 by Georg Hen
-
rik von Wright [Helsinki 1916–2003] in the essay Deontic Logic) considered
to be logical values of norms.
We can distinguish five deontic counterparts (in the philosophical lan
-
guage of Amedeo G. Conte: five deontic análoga) of the logical value of truth:
(i) s³usznoœæ: Jerzy Sztykgold (1936, 493);
(ii) satisfaction: Albert Hofstadter [New York 1910–Santa Cruz 1989]
and J. C. C. McKinsey [1908–1953], in Hofstadter and McKinsey
(1939, 447);
3
(iii) Begründung (“well-groundedness”): Manfred Moritz (1941, 240);
The Threefold Role of the Logical Value of Norms 19
3
Cf. Lorini (2003).
(iv) validity: Alf Ross [Copenhagen 1899–1979] (1941/1944, 35, 38),
and Eduardo García Máynez [Mexico City 1908–1993] (1950, 47);
(v) Berechtigtkeit (“rightfulness”): Knud Grue-Sørensen [1904–1992]
(1939, 197).
3. Three questions on the logical value of norms
3.0. In section 2, I mentioned five predicates (properties) which seven deontic
logicians ante litteram recognized as logical values of norms.
These seven authors seem to give five different answers to a unique ques
-
tion: “What is the logical value of norms?” Yet these authors answer three dif
-
ferent questions about the logical value of norms. Let us examine these three
questions on the logical value of norms.
3.1. First question: the role of the logical value of norms in formal logic
The first of the three questions which the deontic logicians ante litteram tried
to answer is the following:
What is the predicate of norms that allows us to define the meaning of deontic
logical connectives?
Albert Hofstadter and J. C. C. McKinsey answer this question in the essay
On the Logic of Imperatives (1939). In this work, a logical syntax is elaborated
for imperatives, based on the analogy between truth and satisfaction.
We understand an imperative to be satisfied if what is commanded is the case.
Thus the fiat “Let the door be closed!” is satisfied if the door is closed. The satis
-
faction of an imperative is analogous to the truth of a sentence (Hofstadter and
McKinsey 1939, 447).
According to Hofstadter and McKinsey, the logical functions of the logic
of imperatives are not truth-functions, but satisfaction-functions:
The connective symbols which we introduce [...] may, on the analogy with the
truth-functions of the calculus of sentences, be thought of as satisfaction-functions of
imperatives (Hofstadter and McKinsey 1939, 447).
20 GIUSEPPE LORINI
In the logic of imperatives of Hofstadter and McKinsey, the meaning of
the logical connectives of the logic of imperatives can be defined in terms of
satisfaction”.
3.2. Second question: the role of the logical value of norms in the theory of
syllogisms
The second of the three questions which the deontic logicians ante litteram
tried to answer is the following:
What is the predicate that is transmitted from the (deontic) premises to the con
-
clusion in a deontic syllogism?
Manfred Moritz answers this question in the essay Gebot und Pflicht (Com-
mand and duty) (1941). It is well known that in declarative inferences (that is,
in those inferences where the premises and the conclusion are declarative sen-
tences), truth is transmitted from the premises to the conclusion. Moritz, ap-
plying this thesis to normative inferences, asks, “What is the predicate that is
transmitted from the (deontic) premises to the conclusion in a deontic syllogism?”
Moritz holds that this “hereditary predicate” is the well-groundedness
(Begründung) of the imperatives:
Wie bei den Schlüssen, deren Prämissen Urteile sind, die Wahrheit des gefolgerten Satzes
von der Wahrheit der Prämissen abhängt, so liegt es auch bei den imperativen Syllogismen.
Hier geht zwar nicht um die Wahrheit von Imperativen, aber statt der Wahrheit wird
nach der Begründung der Imperative gesucht (Moritz 1941, 240).
As in the case of inferences that have judgements as premises, where the truth of
the inferred sentence depends on the truth of premises, so it happens also with the
imperative syllogism. Here, it’s obviously not a matter of the truth of imperatives
but rather than truth, the well-groundedness of the imperatives is looked for.
3.3. Third question: the role of the logical value of norms in the theory of logical
principles
The third of the three questions which the deontic logicians ante litteram tried
to answer is the following:
The Threefold Role of the Logical Value of Norms 21
What is the predicate (analogous to truth) that allows us to apply logical principles
to norms?
The Mexican philosopher of law Eduardo García Máynez answers this
question in the essay Los principios jurídicos de contradicción y de tercero excluído
(The legal laws of noncontradiction and of the excluded middle) (1950). In
this work, García Máynez investigates the applicability of logical principles to
norms. In particular he asks, “How can we apply the law of noncontradiction
(Polish: zasada sprzecznoœci) to norms, if we conceive norms as non-apophantic
entities?”
4
According to him, the solution of this puzzle rests on the analogy between
truth (verdad) and validity (validez). García Máynez holds that validity
(validez) is the predicate which allows us to apply the law of noncontradiction
to norms.
He distinguishes between two areas or orders (Spanish: orden)—the logi-
cal order (orden lógico) and the legal order (orden jurídico):
(i) In the logical order, the logical principle of noncontradiction states
that “two contradictory declarative sentences cannot be both true”:
El principio de contradicción, en el orden lógico, enseña que dos juicios contradictorios no
pueden ser ambos verdaderos (García Máynez 1950, 47).
The principle of noncontradiction, in the logical order, teaches that two contra-
dictory judgements cannot be both true.
(ii) In the legal order, the legal principle of noncontradiction states that
“two contradictory normative sentences cannot be both valid”:
El principio jurídico dice: dos normas de derecho contradictorias no pueden ser válidas
ambas (García Máynez 1950, 47).
The principle of noncontradiction says: two contradictory legal norms cannot be
both valid.
22 GIUSEPPE LORINI
4
The Italian philosopher Giovanni Vailati [Crema 1863–Roma 1909] in the essay La distin
-
zione tra conoscere e volere (The distinction between knowing and wanting) (1905/1967, 173) exa
-
mines the possibility of applying the law of noncontradiction to a particular kind of nonapophan
-
tic sentences—buletic sentences. Vailati argues that the law of noncontradiction holds for the
apophantic sentences, but not for the buletic ones.
García Máynez formulates a normative counterpart of the law of noncontra
-
diction, not in terms of “truth” (verdad), but in terms of “validity (validez).
This application of the logical law of noncontradiction to normative sen
-
tences is, according to García Máynez, based on the analogy between the log
-
ical value of declarative sentences, truth (verdad), and the logical value of nor
-
mative sentences, validity (validez):
Validez y carencia de validez son a las normas lo que verdad y falsedad a los juicios
existenciales. Las normas son o no son válidas; de las enunciaciones decimos que son
verdaderas o falsas (García Máynez 1950, 47).
Validity and lack of validity are for norms what truth and falsehood are for exist
-
ential judgements. Norms are valid or not-valid; on the contrary, we say that
statements are true or false.
4. Three roles of the logical value of norms
4.1. In section 3, I distinguished between three questions on the logical value of
norms.
(i) What is the predicate of norms that allows us to define the meaning
of deontic logical connectives?
(ii) What is the predicate that is transmitted from the (deontic) premises
to the deontic conclusion in a deontic syllogism?
(iii) What is the predicate (analogous to truth) that allows us to apply
logical principles to norms?
4.2. The distinction between these three questions about the logical value of
norms is a contribution towards a study of the nature of the logical value
of norms, since it points out the threefold role played by the logical value of
norms in the logic of norms:
(i) the logical value of a norm is the predicate that allows us to define
the meaning of deontic logical connectives;
The Threefold Role of the Logical Value of Norms 23
(ii) the logical value of norms is that “hereditary predicate” that is
transmitted from the (deontic) premises to the deontic conclusion
in a deontic syllogism;
(iii) the logical value of norms is the predicate (analogous to truth) that
allows us to apply the logical principles to norms.
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Works. Ed. Ludwik Borkowski. Amsterdam: North-Holland, 89–109. [Other editions:
£ukasiewicz (1921; 1961)].
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Moritz, Manfred. 1941. Gebot und Pflicht. Eine Untersuchung zur imperativen Ethik. The
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oria 7, 219–257.
Pintore, Anna. 1996. Il diritto senza verità. Turin: Giappichelli.
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nationale Zeitschrift für Theorie des Rechts 1, 308–322.
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sophy of Science 11, 30–46] .
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[Reprinted as: Vailati, Giovanni. 1967. Il metodo della filosofia. Saggi di critica del linguag
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gio. Edited by Ferruccio Rossi-Landi. Bari: Laterza. 170–177].
Wojty³a, Karol Józef. 1969. Osoba i czyn. Cracow: Polskie Towarzystwo Teologiczne.
Wright, Georg Henrik von. 1951. Deontic Logic. Mind 60, 1–15.
The Threefold Role of the Logical Value of Norms 25
EDOARDO FITTIPALDI
Illusions of Imperatives, Norms, and Truth
1
1. The limits of Petra¿ycki’s projective hypothesis
When Petra¿ycki explained his hypothesis about the projections of ethical
2
feelings, he treated in the same way the process through which we happen to
ascribe to a certain thing or course of action a certain (projective) quality, and
the process through which we happen to feel and think that entities, such as
prohibitions and imperatives, exist and hold sway.
My hypothesis is that the process through which we project certain quali-
ties onto things or courses of action is simpler than the process through which
we begin somehow to feel the existence of actual imperatives and prohibi-
tions where there has never been any imperator or prohibitor.
I will discuss the following problem: why do many people seem to feel and think
that there are entities—such as imperatives and prohibitions—even when no such lin-
guistic phenomena exist in external reality?
While the explanation of the illusion of ethical qualities doesn’t require
a discussion of the differentia specifica of ethical qualities vis-à-vis other kinds
of projective qualities, the explanation of the illusion of imperatives and pro
-
hibitions does require this discussion of the differentia specifica.
Since according to Petra¿ycki, an important differentia specifica of ethical
emotions consists of their mystic-authoritative character, I hope I will be
able to show that both the illusions of imperatives and prohibitions and the
mystic-authoritative character of ethical emotions in general have the same
cause.
26
1
This paper is an adaptation of the third chapter of my forthcoming book, Illusions of Legal Re
-
alities. I. The Intrasubjective Features of Legal Emotions and their Offsprings: Tentative Answers to Some
Open Questions of Petra¿ycki’s Legal Solipsism.
2
I will use the terms ethics/ethical as hypernyms of morals/moral and law/legal, as Petra¿ycki
himself did.
Now because Petra¿ycki—to the extent of my knowledge—wasn’t able to
find the cause of the mystic-authoritative character of ethical emotions, he
wasn’t able to explain the illusion of imperatives and prohibitions either, and
he tried to show that this kind of illusion is caused by the very process of pro
-
jection.
That’s why he tried, in my opinion unsuccessfully, to show that illusions of
imperatives are produced in the realm of aesthetic emotions as well.
In the field of the aesthetic psyche (where, in general, impulsive projection plays
no small part), not only are fantastic...attributes [svoystva] ascribed to objects
and phenomena, but there are fantastic processes in operation; confusing repre
-
sentations [predstavleniya], some demanding [trebovaniye] and obtaining [doby
-
vaniye] certain conduct from subjects, or of not permitting—and of rejecting for
some reason—a certain behaviour originating from somewhere. (Petra¿ycki
1910, 39; 1955, 41; translation modified).
The very fact that Petra¿ycki uses in this context the word trebovaniye, which has
a strong legal connotation in Russian, and which in English could be expressed by
terms such as legal claim, pretension, etc., indicates that he was here trying to show
that the creation of such trebovaniya is somehow a natural consequence of projec-
tions in general, which holds true also for projections of aesthetic origin.
However, it remains unexplained why this process takes place much more
in the realm of ethical experience, than in any other realm—including the
realm of aesthetic experiences. In other words, my impression is that the illu-
sions of imperatives and prohibitions are much more common in the realm of
ethics than in the realm of aesthetics.
As I have already said, my opinion is that the illusions of imperatives and
prohibitions have the same cause as the mystic-authoritative features of ethi
-
cal emotions. Therefore I think that if similar illusions seem to exist also in
the field of aesthetic emotions, like the emotions we feel in the case of certain
movements of the body, or certain grammatical behaviours, it is first of all be
-
cause such emotions happen to be to a certain degree ethical emotions in the
particular (Freudian) meaning which will be discussed in the next paragraph.
2. The differentiae specificae of ethical emotions
As I have already said, according to Petra¿ycki ethical experiences have a spe
-
cific feature: they seem to have a mystic-authoritative character.
Illusions of Imperatives, Norms, and Truth 27
Let’s read a quotation where Petra¿ycki refers to this feature.
[Ethical] motorial excitements and incitements are of unique mystic-authorita
-
tive character: they stand opposed to our emotional propensities and appetences
[etc.] as impulsions with the loftiest aureole and authority, proceeding as from a
source unknown and mysterious, and extraneous to our prosaic ego, and possess
-
ing a mystic coloration not without a tinge of fear. This character of ethical im
-
pulsions finds expression among others in popular speech, poetry, mythology, re
-
ligion, and similar creations of the human spirit in the form of phantastic ideas,
and particularly in the idea that in such cases some being other that our ego is
also present opposing our ego and inciting it to a certain conduct: some mysteri
-
ous voice [golos] addressing us and talking to us. (Petra¿ycki 1910, 34; 1955, 37 –
– 38).
It is easy to recognize in this description a similarity with Sigmund Freud’s
hypothesis of a superego.
In particular, Freud’s theory is able to provide us with some conjectures on
the following features of ethical emotions:
1. they seem to stem from something different from the ego;
2. they seem to exist linguistically, as if provided with some sort of voice;
3. they seem to have a tinge of fear;
4. they seem to have a mystic coloration;
These features can be explained if we make the conjecture that Petra¿ycki’s
ethical emotions are caused by Freud’s superego. The motorial excitements that
people with superego experience toward or against certain courses of action,
would then be the result of the superego activity on the ego.
In order to understand why Freud’s superego has the features that Petra
-
¿ycki considers typical of ethical emotions, we must examine the origin of the
superego according to Freud.
According to Freud, individuals are not born with a superego, which is
rather the result of interactions of the child with her or his caretakers (mostly
her or his parents). Actually, the superego is the result of the internalization
of the caretakers by the child.
Let’s read Freud:
Young children are amoral and possess no internal inhibitions against their im
-
pulses striving for pleasure. The part which is later taken on by the superego is
28 EDOARDO FITTIPALDI
played by an external power, by parental authority. Parental influence governs
the child by offering proofs of love and by threatening punishments which are
signs to the child of loss of love and are bound to be feared on their own account.
This realistic anxiety [Realangst] is the precursor of the later ethical anxiety [Ge
-
wissensangst]. So long as it is dominant there is no need to talk of a superego and
of a conscience. It is only subsequently that the secondary situation develops
(which all are too ready to regard as the normal one), where the external restraint
is internalized and the superego takes the place of the parental agency and ob
-
serves, directs and threatens the ego in exactly the same way as earlier the par
-
ents did with the child. (Freud 1964, §31:62; translation modified, emphasis
added).
The very conjecture that the psyche can be split into multiple parts, and
that one part can control another, is able to explain the first point, namely
why ethical emotions are perceived to stem from something different from
the ego.
As regards the second point—namely the tinge of fear that seems to character-
ize ethical emotions—this can be explained by considering that the child first
obeys the prohibitions and imperatives of its caretakers for two reasons:
1. the fear of loosing their love;
2. the fear of their punishment.
An explanation can be reached if we assume that the superego somehow
retains the power to produce in the ego a fear similar to the fear which the
child experienced toward his or her caretakers.
This explanation requires the assumption that a process of internalization
takes place and that, in particular, the child decides to be like his or her care
-
takers, rather than just being subject to them.
If the superego is the result of the internalization of the prohibitions and
imperatives issued by the caretakers, it is understandable why some people
may experience it as a voice talking to the ego. The voice of the superego
would echo the voices of the caretaker issuing prohibitions and imperatives.
This seems to explain (1) why ethical emotions are experienced as some
-
thing different from the ego; (2) why they seem to be provided with some
sort of voice; (3) why they seem to be associated with a tinge of fear.
We have still to explain their mystic nuance.
Freud explained the connection between religion and ethics in the follow
-
ing way:
Illusions of Imperatives, Norms, and Truth 29
The third main item in the religious programme [after giving people information
about their origin, as well as some sort of protection in and beyond life], the ethi
-
cal demand, also fits into the childhood situation with ease. I may remind you of
Kant’s famous pronouncement in which he names, in a single breath, the starry
heavens and the moral law within us. However strange this juxtaposition may
sound—for what have the heavenly bodies to do with the question of whether
one human creature loves another or kills him?—it nevertheless touches on a
great psychological truth. The same father (or parental agency) which gave the
child life and guarded him against its perils, taught him as well what he might
do and what he must leave undone, instructed him that he must adapt himself to
certain restrictions on his instinctual wishes, and made him understand what re
-
gard he was expected to have for his parents and brothers and sisters, if he
wanted to become a tolerated and welcome member of the family circle and later
on of larger associations. The child is brought up to a knowledge of his social du
-
ties by a system of loving rewards and punishments, he is taught that his security
in life depends on his parents (and afterwards other people) loving him and on
their being able to believe that he loves them. All these relations are afterwards
introduced by men unaltered into their religion. Their parents’ prohibitions and
demands persist within them as a moral conscience. With the help of this same
system of rewards and punishments, God rules the world of men. The amount of
protection and happy satisfaction assigned to an individual depends on his fulfil-
ment of the ethical demands; his love of God and his consciousness of being
loved by God are the foundations of the security with which he is armed against
the dangers of the external world and of his human environment. (Freud 1964,
§35:163–164; emphasis added).
According to Freud, there is a connection between ethics and monotheistic
religion, the role of the father being basically the same in both.
Freud’s hypothesis doesn’t imply that there is a connection between reli
-
gion and ethics in the context of animism or polytheistic religions. Let’s read
Freud:
We may suppose that even in the days [of the animistic mode of thought], there
were ethics of some sort, precepts upon the mutual relations of men; but nothing
suggests that they have any intimate relation with animistic beliefs. (Freud
1964, §35:166).
Freud’s hypothesis, therefore, would be unable to explain the mystic nu
-
ance with which ethical emotions may be experienced
30 EDOARDO FITTIPALDI
1. by peoples with polytheistic or animistic religions;
2. by atheists.
My opinion, though, is that Freud’s basic idea that the superego—and
therefore ethical emotions—can be explained by examining the childhood
situation, can be used also in order to explain the fact that there may be peo
-
ple who have not been raised in a culture affected by monotheism, who still
experience a mystic nuance in ethical experiences.
I think such an explanation can be given if we consider Pierre Bovet’s Le
sentiment religieux et la psychologie de l’enfant (1951).
3
If we consider Bovet’s ideas, we can state that one basic feature of the
childhood situation Freud talked about is that the child ascribes to his or her
parents (or more broadly, to the caretakers) omnipotence, omniscience, and moral
perfection (Bovet 1951, §1.3). According to Bovet, the child ascribes to his or
her parents omnipresence and eternity as well.
Bovet—like most psychologists after him (and also including Freud, as we
have already seen)—thought that the attitude of the child vis-à-vis his or her
parents is characterized by a fusion of love and fear. Bovet called this fusion of
love and fear “respect” (Bovet 1951, § 1.4).
All this implies that the attitude the child has vis-à-vis his or her parents
already has all the features that some people would later transfer to the
monotheistic god, if they happen to be in the right context.
According to Bovet,
Religious sentiment is filial sentiment. The first objects of this sentiment for the
child are his or her parents. The father and the mother are the child’s gods: they
have all divine perfections. But life experience forces the child to change, if not
his or her religion, at least his or her God. He is forced to transfer to a further be
-
ing the marvellous attributes he earlier referred to his or her parents. (Bovet
1951, §1.4).
Therefore according to Bovet, rather than talking of a divinization of the
parents, we should talk of a fatherization of god.
4
Illusions of Imperatives, Norms, and Truth 31
3
Less relevant to our goals is Bovet’s Les conditions de l’obligation de conscience (1912). I want to
stress that Bovet himself considered his work compatible with Freud (see Bovet’s introduction to
Le sentiment religieux).
4
It is worth stressing that Bovet thought that showing that religious sentiment originates
from filial sentiment is not at all tantamount to showing that the object of religious worship does
not exist (see Bovet 1951, conclusion).
If all this is true, this implies that the superego, once developed, may re
-
tain a mystic characterization, even in a non-monotheistic context. This hap
-
pens because the religious nuance pertains to the way the child experiences
whatever stems from his or her parents. This has clear implications as to the
way children experience imperatives and prohibitions issuing from their par
-
ents.
Jean Piaget (1978, 36–37), in his Le jugement moral chez l’enfant, found evi
-
dence confirming Bovet’s hypotheses.
Now we can also explain why we talk of a mystic nuance of ethical emo
-
tions, without necessarily attributing them a divine or religious nuance. I use
the adjective mystic in order to refer to a religious nuance devoid of any explicit
reference to any personal god.
We can now make the conjecture that, if the superego becomes autono
-
mous from imperatives or prohibitions of parents or personal gods, it can still
retain a religious nuance devoid of any such reference, and that, therefore, the
ethical emotions produced by such a superego may have such a mystic nuance.
I must stress here, that Piaget thought that the child, after this kind of
ethics which he called moral de l’autorité, develops a second kind of ethics,
which he called moral du respect mutuel, and which lacks any such mystic nu-
ance.
I think that, in this respect, Freud and his followers were right when they
made the hypothesis that the superego, once developed, can become enriched
with new contents, even contents completely incompatible with the first par-
ental imperatives and prohibitions, because it still retains its basic way of
functioning, including mystic nuances.
I hardly believe there can be a moral du respect mutuel completely indepen
-
dent of the moral de l’autorité.
3. Norms and imperatives
Up to now, I have discussed the causes of the illusions of imperatives and pro
-
hibitions, and of certain features of them.
I think that the illusion that there exist norms, understood as normative
utterances, even where there are no linguistic phenomena at all, can be ex
-
plained in a way similar to the explanation of the illusions of imperatives and
prohibitions.
Imperatives and prohibitions are a subset of normative utterances, and
therefore, if the superego originates from the first caretakers’ imperatives and
32 EDOARDO FITTIPALDI
prohibitions, it is easy to make the conjecture that norms are conceived in
terms of imperatives and prohibitions, because of the very origin of the super
-
ego.
An issue I want to discuss here is the following: Is it possible to avoid the re
-
duction of norms to imperatives, without bringing back the concept of norm to Freud’s
superego, and to Petra¿ycki’s ethical emotions?
I will try show that this is not possible, and that the only way to really ex
-
plain ethical phenomena is to assume that their ultimate explicative basis is
not in norms, but in ethical emotions, of which norms are but superficial
manifestations, while the deeper ultimate reality of ethical phenomena is the
superego.
I think that a good way to make this point is to briefly discuss one of the
most serious attempts I know of distinguishing norms from imperatives.
Theodor Geiger, in his Vorstudien zu einer Sociologie des Rechts (1964),
thought that
1. neither is the ultimate reality of ethics the superego,
2. nor can norms be conceived in terms of normative utterances.
Geiger had a behavioural conception of norm. According to Geiger there
exists a norm according to which in certain situations s, a certain course of ac-
tion g must be taken, if either that course of action is actually taken by the ad-
dressee of the norm, or—in case of noncompliance—some negative reaction
occurs to the addressee.
Furthermore Geiger, famously, distinguished declamative and proclamative
normative utterances (and sentences).
Deklarative Normsätze are linguistic descriptions of ethical phenomena, as
in the case of the description of a certain custom.
Proklamative Normsätze introduce not-yet existing rules. Imperatives, ac
-
cording to Geiger’s language, are a subset of the set of proklamative Normsätze.
According to Geiger, the reason why norms are conceived of in terms of
imperatives, is that actually only proklamative Normsätze are taken into con
-
sideration, while there are fields—as is the case of customs—where nothing
like this can be found (Geiger 1964, 65).
He doesn’t really explain why such an Orientierung am proklamativen
Normsatz takes place. Maybe he would have answered such an objection by
referring to the important role of legislation in Western culture. As we have
seen in the preceding paragraph, my opinion is that another explanation can
be found by taking into consideration the origin of the superego.
Illusions of Imperatives, Norms, and Truth 33
It is important to stress that if Geiger’s explanation is the only true one, we
should expect that in cultures which have only customary ethics, ethical emo
-
tions shouldn’t be conceived of as provided with some sort of voice. This is an
empirical question which I cannot endeavour to answer in this paper.
As I have tried to show in the preceding paragraphs, I think it is impossi
-
ble to give the differentia specifica of ethical phenomena without taking into
consideration the imperatives and prohibitions first issued to the child by the
caretaker, and that therefore every ethical experience is somehow connected
with imperatives and prohibitions, even where there are no official
proklamative Normsätze at all.
While legal positivists think on one hand that there is an identity between
proklamative Normsätze and ethical phenomena; and while Geiger, on the other
hand, thinks that ethical phenomena can be completely autonomous from
proklamative Normsätze, I think that ethical phenomena have a necessary link
with proklamative Normsätze, but only from a genetic point of view, and that
without this link it is impossible to distinguish ethical phenomena.
Geiger tries to describe ethical phenomena without making use of psy-
chology. He discusses the case of a norm that originates from custom, rather
than from a certain explicit command of the head of the family. According to
Geiger, an ethical norm (unlike a mere regularity) can exist even if it is vio-
lated, but in this case it is necessary that:
1. an external spectator would have some sort of blaming reaction,
2. and/or the actor would experience some sort of “bad conscience”. (Gei-
ger 1964, 58–59)
The concept of bad conscience in Geiger, though, doesn’t lead to the concept
of any sort of superego.
Actually, Geiger seems to have reduced schlechtes Gewissen to some sort of
insecurity related to the anticipation of the reactions other people may have,
rather than to something that takes place inside the psyche of the individual.
In fact, Geiger did reduce conscience to social anxiety:
Gewissen ist soziale Angst (Geiger 1964, 57).
Stating that conscience is social anxiety is tantamount to reducing ethical behav
-
iour to economic behaviour. In this way the specificity of ethical phenomena, in
general, as well as of legal phenomena, in particular, is lost. Geiger’s distinc
-
tion between norms and regularities doesn’t provide us with a way to distin
-
34 EDOARDO FITTIPALDI
guish ethical actions from economic actions. Geiger wasn’t able to make this
distinction because he refused to introduce psychology into his sociology of
law.
The reduction of ethical phenomena to psychic phenomena related to the
superego instead, rather than ignoring the specificity of ethical phenomena,
allows the explanation of their specific features. Ethical behaviour cannot be
identified by an independent concept of norm, but only by the theoretical notions of su
-
perego and ethical emotions caused by the superego.
4. The role of norms in legal theory
If norms cannot be considered a particular kind of behavioural regularity, and
we don’t want to reduce them to really existing imperatives or prohibitions,
is there some room in legal theory for a concept of norm?
Even though—as we know—according to Petra¿ycki, the ultimate reality
of law is certain ethical emotions, Petra¿ycki did make a proposal for
a stipulative definition of norm.
The existence [sushchestvovaniye] and operation [deystvie] in our psyche [psikhika],
of immediate combinations of action representations [aktsionnye predstavleniya]
and emotions [emotsii] (rejecting or encouraging corresponding conduct—i.e. re-
pulsive or appulsive) may be manifested in the form of judgments [suzhdeniya] re-
jecting or encouraging a certain conduct per se—and not as a means to a certain
end: “a lie is shameful”; “one should not lie”; “one should tell the truth”; and so
forth. Judgments [suzhdeniya] based on such combinations of action ideas with
repulsions or appulsions we term...normative judgments [normativnye suzhdeniya];
and their content we term norms [normy]. The corresponding dispositions, the
dispositive judgments we term...normative convictions [normartivnye ubezhdeniya].
(Petra¿ycki 1910, 20–21; 1955, 30).
We have therefore the following theoretical entities:
1. Normative convictions, that can be identified with superego.
2. Combinations of representations and ethical emotions, caused by the super
-
ego.
3. Normative judgments, that are based on those combinations.
4. Norms, that are the representational content (in Carl Bühler’s meaning)
of normative judgments.
Illusions of Imperatives, Norms, and Truth 35
5. Can truth be predicated to normative judgments or norms?
5
I think that at least three different answers can be given to this question in
the theoretical frame of legal solipsism.
First. From a theoretical point of view, Petra¿ycki’s ethical solipsism im
-
plies that, since ethical realities don’t exist (butin the psyches of the individu
-
als who pretend, these realities have some sort of external existence), only
vacuous truths
6
can be predicated of normative judgments or norms.
Second. If we pay attention to the emotions underlying norms and normative
judgments, we could say that they are true or false according to the fact that
the one who makes them is really experiencing the ethical emotion that usu
-
ally should underlie them.
In this case truth would be understood as truthfulness.
Third. As we all know, legal phenomena, according to Petra¿ycki are
a source of conflicts between individuals, because of what I would call the
natural drift of legal opinions.
A psychic source of destruction, malice, and vengeance—a dangerous explosive
material—is latent in...thelegal psyche where the opinions and convictions
held by individuals or by masses do not coincide; unquestionably many millions
have suffered death on Earth, and countless human groups have been destroyed
or exterminated, because of the non-coincidence of opinions regarding the exis-
tence and compass of mutual obligations and rights. (Petra¿ycki 1910, 172;
1955, 113).
Even though from a theoretical point of view, Petra¿ycki’s legal solipsism
does imply that normative judgments are capable only of vacuous truth, it is
nevertheless true that from a practical point of view, certain mechanisms
have developed that made certain normative judgments dependent on facts
(normativnye fakty) happening in real reality, thus artificially creating a sort of ob
-
jectivity, that reduces the natural drift of legal opinions. Petra¿ycki talked of
the unifying tendency of law (unifikatsionnaya tendentsiya prava):
36 EDOARDO FITTIPALDI
5
A completely different question is whether normativnye fakty (in Petra¿ycki’s meaning),
among which there are also real imperatives or prohibitions, are capable of truth. I won’t discuss
this question here.
6
By vacuous truth I mean:
1. a truth about the members of a class that is empty (e.g. All pink elephants are nice”), or
2. the truth of a conditional in the form p ® q, where p is false (e.g. “If Rome is in Poland,
then Poznañ is in Italy”).
Associated with this, on the ground of, and explained by, socio-cultural adapta
-
tion is the tendency of law to development and adaptation in the direction of
bringing legal opinions of the parties into unity, identity and coincidence, and in
general toward the attainment of decisions as to obligation-rights which possess
the utmost possible degree of uniformity and identity of content from both sides,
and—so far as may be—exclude or eliminate discord.
This tendency...maybecalled briefly the unifying ...tendency. (Petra¿ycki
1910, 172ff.; 1955, 113; translation modified, emphasis added).
Petra¿ycki described four “tendencies” that, though imperfectly, limit
what I will call the natural drift of legal opinions (Petra¿ycki 1910, 173ff.; 1955,
112):
1. the tendency for a single pattern of norms to develop, as is the case of
positive and official law;
2. the tendency of legal concepts toward precision and definiteness of content
and compass;
3. the tendency to have the facts, on which the “existence” of legal obliga-
tions and rights is felt to depend, susceptible of proof—these facts are
called by Petra¿ycki normative facts (normativnye fakty);
4. the tendency toward “subjecting disputes to the jurisdiction of a disin-
terested third party (Motyka 2007, 33).
Petra¿ycki didn’t explain what causes these tendencies and, therefore,
seems to commit a functionalist fallacy. However, it is not the goal of this pa-
per to try to explain the causes of these tendencies.
7
If we focus on the third tendency, we can reach the following conclusion:
while from a theoretical point of view, normative judgments (and norms) are capable
only either (1) of vacuous truth or (2) of the reduction of truth to truthfulness, civiliza
-
tion—for practical reasons—has successfully made more and more ethical emotions—
and therefore also normative judgments (and norms)—of people dependent on the fact
Illusions of Imperatives, Norms, and Truth 37
7
Znamierowski was wrong when he said that Petra¿ycki’s lack of explanation of the unifying
tendency of law is a necessary consequence of the logical and metaphysical foundations of his the
-
ory (Znamierowski 1922, 58–59).
Even though Petra¿ycki’s explanation of this tendency is lacking, his conception permits esta
-
blishing an important sociolegal problem: what factors do cause the situation that, under certain cir
-
cumstances, many people happen to have similar or complementary psycholegal experiences?
In Fittipaldi (2007), I have developed an explicative hypothesis of the second and third ten
-
dency pointed at by Petra¿ycki, by strongly modifying Priest’s (1977) theory about the causes the
allegedly lead common law toward economic efficiency.
that certain external happenings have taken place (i.e. Petra¿ycki’s normative
facts, including also the fact—for instance—that a certain imperative has
been really issued by some king), so that the useful illusion comes into existence,
that normative judgments (or norms) are themselves directly capable of truth.
Bibliography
Bovet, Pierre. 1912. Les conditions de l’obligation de conscience. Introduction a l’étude psy
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chologique des faits moraux. L’année psychologique 18, 55–120.
———. 1951. Le sentiment religieux et la psychologie de l’enfant. 2nd edition. Neuchâtel: Dela
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chaux et Niestlé.
Fittipaldi, Edoardo. 2007. Bonae fidei possessor fructus consumptos suos facit. Tentative
answers to one question left open by Petra¿ycki’s economic analysis of law. Paper delive
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red at the Joint Annual Meeting of the Law and Society Association and the Research
Committee on Sociology of Law, July 26, in Berlin.
Freud, Sigmund. 1964. New Introductory Lectures on Psychoanalysis. In The Standard Edi-
tion of the Complete Psychological Works of Sigmund Freud, vol. 22. Ed. J. Strachey. London:
The Hogarth Press and the Institute of Psycho-Analysis.
Geiger, Theodor. 1964. Vorstudien zu einer Soziologie des Rechts. Neuwied am Rhein: Hermann
Luchterhand.
Motyka, Krzysztof. 2007. Leon Petra¿ycki’s Challenge to Legal Orthodoxy. Lublin: Towarzystwo
Naukowe Katolickiego Uniwersytetu Lubelskiego.
Petra¿ycki, Leon. 1910. Teoriya prava i gosudarstva v svyazi s teoriey nravstvennosti. 2nd ed. Saint
Petersburg: Yekateringofskoye Pechatnoye Delo.
———. 1955. Teoriya prava i gosudarstva v svyazi s teoriey nravstvennosti. Trans. H. W. Babb.
In Law and Morality. Leon Petra¿ycki. Ed. N. S. Timasheff. Cambridge, MA: Harvard
University Press. [ Partial translation of Petra¿ycki (1910)].
Piaget, Jean. 1978. Le jugement moral chez l’enfant. Paris: Presses Universitaires de France.
Priest, George L. 1977. The Common Law Process and the Selection of Efficient Rules. Jour
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nal of Legal Studies 51, 65ff.
Znamierowski, Czes³aw. 1922. Psychologistyczna teorja prawa. Przegl¹d Filozoficzny 25, 1–78.
38 EDOARDO FITTIPALDI
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Ethical cognitivism in Finnis’s Theory
1. Introduction
John Finnis is considered to be one of the most important contemporary natural
law theorists. His 1980 book, “Natural Law and Natural Rights” has had signifi-
cant effect in attracting renewed attention to natural law in moral and legal phi-
losophy. The theory developed and defended by Finnis is sometimes labelled “the
New Natural Law Theory”,
1
and here the adjective “new” should be understood
not so much as referring to the original contributions to jurisprudence made by
Finnis—which is not to deny that he has made such contributions—but primar-
ily as referring to the restatement of the very philosophical foundations of the
classical natural law theory rooted in the thought of Thomas Aquinas.
This paper deals with one of the aspects of these foundations, namely the
issue of moral cognitivism. By moral or ethical cognitivism I mean a view
that there are true and objective moral judgments which can be known and
rationally argued for. Such a view is opposite to the views of ethical scepti
-
cism and relativism. Ethical cognitivism is an indispensable part of every nat
-
ural law theory—indeed, within every such theory there are justified
nonpositive and objective standards of critical evaluation of human action
and social institutions. Being a natural law theorist, Finnis describes himself
as an ethical cognitivist—he considers himself as a defender of “nonsceptical
ethics”, and believes that there are “normative propositions” which are “true,
and choice otherwise than in accordance with them is unreasonable”; these
standards also “provide the premises for endorsement or justified rejection of
[positive] laws, conventions or practices” (Finnis 1998, 686).
39
1
It must be stressed that the New Natural Law Theory was not developed by Finnis alone.
With regards to its philosophical foundations, Finnis collaborated closely with Germain Grisez
and Joseph Boyle. In fact, it was Grisez who initiated this original interpretation of natural law.
See especially Grisez (1965).
I am going to present Finnis’s ethical cognitivism, and confront it with
the views characteristic of other Thomists. Such a confrontation seems to be
especially interesting, because of the critique directed at Finnis on the part of
numerous Thomistic natural law thinkers—whom I will call the “traditional
Thomists”. Those thinkers argue that Finnis undermines and contradicts the
essential elements of the classical natural law tradition. The question has
even been raised whether Finnis is a natural law thinker at all (Veatch 1981,
298). For his part, Finnis believes that the understanding of natural law pre
-
sented by traditional Thomists is rationally indefensible. The subject of this
controversy bears directly on the problem of ethical cognitivism.
In what follows I will briefly discuss natural law and ethical cognitivism
according to traditional Thomists. Then I will present the structure of natu
-
ral law according to Finnis, and the problem of the relationship between hu
-
man nature and knowledge of natural law. In the final part, I will discuss
moral knowledge and the concept of moral truth in Finnis’s theory.
2. Natural law and ethical cognitivism according to traditional Thomists
Undoubtedly one of the most crucial concepts in traditional natural law the-
ory is the concept of human nature. Human nature is understood as a dy-
namic reality, and has a teleological character. Man is “a creature who is not
all that he might be, and whose present or actual condition needs always to
be compared with what...hemight be” (Veatch 1981, 302). This nature
constitutes at the same time—at least to some extent—the end or goal for
the human being, his perfection or fulfilment. Therefore, what is meant by
human nature is not merely the factual reality of man, but his true or full re
-
ality. On the other hand, nature determines the proper way of man’s func
-
tioning—the way man achieves the fullness of his being.
To have a nature means to possess some “essential and necessary ends”
(Maritain 1954, 78), some dispositions and inclinations. But “since man is en
-
dowed with intelligence and determines his own ends, it is for him to attune
himself to the ends that are necessarily demanded by his nature” (ibid). Since
man is free and rational, it is up to him whether he will realize his nature or
not. Morality consists in no more and no less than in acting in accordance with
nature. Therefore, human nature is the basis for morality. Nature is also a cri
-
terion of right and wrong in human action. We can distinguish right and
wrong action by relating them to nature, to the ends inherent in the ontologi
-
cal structure of the human being. We can judge whether an action is right or
40 PAWE£ £¥CKI
wrong by assessing whether it is compatible or not “with the general ends and
normality of functioning of the rational essence” (Maritain 1954, 80).
Reference to human nature as a reality which has to be realized by rational
and free action justifies moral normativity—the moral “ought” (Maritain
1954, 78, 79). In order to explain the moral “ought”, one can use an analogy
with the nonmoral dimensions of human activity, such as craft, skills, or tech
-
niques: taking the example of medicine, “one justifies a certain care and
treatment of patients as being naturally required on the basis of the end of
the medical art, which is health. So likewise, given that the natural end of hu
-
man life is the attainment of one’s natural fulfilment as a human being, then
one can come to recognize what it is that is naturally required of one, and
what one needs to do or what it is right for one to do, in order to attain such
an end” (Veatch 1978, 26). All this has its consequences for ethical knowl
-
edge. In fact, moral knowledge depends entirely on knowledge of human na
-
ture. One has to know first what man is, in order to know how he should act.
There is no illicit transition from “is” to “ought”, because the very “is” of hu-
man nature already has its “ought” contained within it (Veatch 1981, 303).
Nature is in some way normative.
Moral truth consists of “conformity of thinking with reality, with the full
reality (Messner 1955, 48) of the human being. As judgments about what is
in accordance with human nature, moral judgments are factual judgments.
There is no specific method of applying the predicate “true” or “false” to nor-
mative judgments. What is important is that the objectivity of ethics is es-
tablished in this way. Morality is objective because it is founded on a reality
existing independently of the human mind and human action. At the same
time, ethics depends on metaphysics and anthropology, or even can be
viewed as their extension.
3. Finnis’s theory
3.1. The structure of natural law
In Finnis’s theory, natural law consists of three sets of principles:
Firstly, there is a set of principles directing human choice and action to
-
ward basic human goods. These goods are the basic reasons for action, i.e.
their character as reasons does not depend on any more fundamental reasons
to which they are the means. For the acting person, they are ends in them
-
Ethical cognitivism in Finnis’s Theory 41
selves. Basic goods also are intrinsic aspects of human fulfilment. Human ful
-
filment consists of participating in those goods. What kinds of goods are
these? In Finnis’s “Natural Law and Natural Rights”, we find the following
list: life, knowledge, play, aesthetic experience, friendship, practical reason
-
ableness and religion (Finnis 1980, 85–90).
2
The principles directing human
action toward those goods are called the first principles of practical reason.
They are all specifications of the formal principle that good is to be done and
to be pursued. These principles are not moral norms. Although an action per
-
formed in accordance with one of them is always a reasonable action, it is not
necessarily entirely reasonably (i.e., morally) good.
The second set of principles of natural law consists of the basic require
-
ments of practical reasonableness. The role of these intermediate principles is
to order the realization and pursuit of basic human goods in such a way that
human action will be fully reasonable, and therefore moral. They guarantee
that human action responds fully to the combined directiveness of all the ba-
sic principles. The secondary principles are also specifications or implications
of a single principle, which is called the master principle of morality and
which states, “in all one’s deliberating and acting, one ought to choose and in
other ways will those and only those possibilities the willing of which is com-
patible with integral human fulfilment—that is, the fulfilment of all human
beings and their communities in all the basic goods” (Finnis 2002, 28).
Among the basic requirements of practical reason mentioned by Finnis are
such principles as “do not answer injury with injury”, “do not do evil that
good may come”, and the Golden Rule (Finnis 2002, 29–30).
Finally, the third set of principles consists of moral norms directly forbid-
ding or requiring certain specific types of human action. Among them are
exceptionless norms, identifying acts that are intrinsically evil, e.g. forbid
-
ding the killing of an innocent person.
In Finnis’s account of natural law, there are two important methodologi
-
cal distinctions. Firstly, he is very attentive to the distinction between “is”
and “ought”. Recognizing that there is no valid transition from “is” to
“ought”, he insists that classical natural law theory is free from such a fallacy.
Furthermore, Finnis stresses the distinction between theoretical and practical
reason or thinking. Theoretical reason (thinking) is concerned with what is—
with discerning the truth about some issue—whereas practical reason is con
-
cerned with what is to be done. According to Finnis, these modes of thinking
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2
In Finnis’s later works, this list is subjected to some modifications, among the most impor
-
tant of which seems to be the addition of the good of marriage. See Finnis (1998, 80–86).
should not be confused. They have different principles of operation; princi
-
ples of natural law are principles of practical, not theoretical, reason.
How do we come to know the above-mentioned principles of natural law?
The first principles of practical reason are self-evident (per se nota). Being first
principles, they cannot be proved by referring them to something more basic.
Knowledge of them is by no means inferred from knowledge about human
nature. But how can they be identified? Finnis points to reflecting on human
action and asking questions about the reasons for the action. Many reasons
for action have only instrumental value, and some are more fundamental
than others. Nor can there be an infinite regress of reasons in a particular ac
-
tion of an acting person. There are reasons which are really fundamental, and
which do not require further justification; every intelligent acting subject can
identify and understand them.
Although basic goods are self-evident, it does not mean that they cannot
be rationally defended. Finnis believes that the results of anthropological and
psychological investigations affirm that the goods he identifies are really uni-
versal. Of course, data from empirical sciences cannot establish or prove the
truth of the first principles which point to some basic goods. But they can
support our identification of them. For instance, if the outcome of cultural
analysis was that friendship is not valued in some cultures, it would cast some
doubt on the judgment that friendship is a basic good.
3
Furthermore, in respect to one of the goods in particular Finnis applies
a special dialectical argument: He argues that sceptical doubts are self-de-
feating in respect to the good of knowledge. Finnis argues in the following
way: Someone who holds that knowledge is not a good and that it is not
worth pursuing the truth, is nonetheless willing to contribute to rational dis
-
course—he implicitly accepts the judgment that it is valuable to make such a
judgment because it is true. Such a person also expresses the conviction that
it is valuable to know the truth.
It should be stressed that such a defence is presented by Finnis only for
one of the basic goods and not the others. Anyway, the above-mentioned ar
-
guments do not change the fact that knowledge of first principles directed at
basic goods is underived, and that these principles are self-evident. Rather,
they defend them from sceptical doubts.
How do we get to know the intermediate principles? They are inferred
from the master moral principle, which is also self-evident. The master moral
Ethical cognitivism in Finnis’s Theory 43
3
This is an example given by Robert P. George who is a prominent adherent of Finnis’s theory
(George 1999, 62).
principle refers to the ideal of integral human fulfilment, and our knowledge
of it comes from comprehending all the first principles of practical reason di
-
recting human actions to basic goods (George 1999, 68).
3.2. Human nature and moral knowledge
From the above it is clear that there are substantial differences between
Finnis and the traditional Thomists on the subject of knowledge of natural
law. This difference is stressed in a critique directed by Finnis at traditional
Thomists. One of the main lines of criticism raised by Finnis refers to the rela
-
tionship between ethics and metaphysics. Finnis does not agree with the view
that ethics depends on metaphysics, that moral judgments can be inferred
from judgments about human nature.
4
According to Finnis, the main prob
-
lem with the position of traditional Thomists is that they are “indifferent to
the question why I should regard the supposed truths of ontology...asen-
tailing any moral obligation”. He believes that “asked how one moves from
the ‘is’ of true propositions in ontology, anthropology, metaphysics, etc., to
the ‘ought’ of normativity for praxis...[they] give, answers which at bottom
are...voluntarist, and . . . mistaken” (Finnis 2003). So his main line of criti-
cism is based on the conviction that acceptance of the traditional position on
the relationship between morality and human nature renders it impossible to
justify the moral “ought”, because the theoretical knowledge of nature as
such does not have any practical relevance for the acting person.
Finnis, while contradicting the thesis that knowledge of human nature is
a condition of moral knowledge, argues that practical knowledge is a condi
-
tion for knowing human nature. We cannot know human nature before we
reflect on that which man should do. Knowledge about that which is good
for man is a precedent condition for full knowledge of human nature (Finnis
1981, 270). Finnis says that “practical reason’s...underived understanding
of basic . . . goods precedes our theoretical understanding of . . . human na
-
ture” (Finnis 1991a, xvii). What is more, he holds that “by theoretical reflec
-
tion upon truths first grasped in practical understanding, we can reach...
theoretical . . . judgments about human nature” which can be called anthro
-
pological (Finnis 1997).
5
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4
[knowledge of] human nature is not ‘the basis of ethics’” (Finnis 1983, 21); “Ethics is not
deduced from metaphysics or anthropology (Finnis 1983, 22).
5
To justify his position Finnis very often recalls “the most fundamental...axioms of Aqui
-
nas’s philosophy: that one comes to understand the nature of an active reality (for example, human
So in the epistemological dimension, practical knowledge of human good
has priority over theoretical knowledge about human nature. But ontologic
-
ally there is a priority of human nature: there are such and such basic goods
because man has such a nature. If human beings had different nature, there
would be different basic goods. So Finnis believes that there is an intercon
-
nection between morality and human nature, but not in the way that the
Neo-Scholastics think. For instance, Finnis admits that the realization of
a human good means the actualization of the potentiality of the human being
(Finnis 1980, 102–103).
Now an important question to be answered is this: since moral knowledge
does not depend on knowledge of human nature or knowledge of reality—
what guarantees the objectivity, the truth of morality? What is the criterion
of truth in respect to principles of natural law?
3.3. The concept of moral truth
As previously said, Finnis makes a clear distinction between theoretical and
practical reason. Correspondingly he distinguishes between the truth of theo-
retical knowledge and the truth of practical knowledge. According to him,
“‘true’ is said in radically diverse senses” (Grisez, Boyle, and Finnis 1987,
117) in each case of knowledge. In the first instance, truth consists in the
conformity of propositions to prior reality. “This truth is signified by ‘is’: So it
is (ibid., 115). In the case of practical truth, matters are different: truth in
this respect does not mean “conformity of knowledge to subject matter,
adequation of mind to reality (ibid., 116), be it actual or possible. Instead
there is another kind of adequation—conformity. According to Finnis, prin
-
ciples of natural law are true “by anticipating the fulfilment possible through
action in conformity with them”. They are also true by directing action to
-
ward that realization. So the truth of the principles of natural law is “their
adequetion to possible human fulfilment considered insofar as that fulfilment
can be realized through human action” (ibid., 125). But this does not mean
that they are “true by conforming to anything” (ibid., 116). Finnis says that
the relationships between the human mind and its objects are opposite in the
case of theoretical and practical knowledge; in the second case, reality must
conform to the mind.
Ethical cognitivism in Finnis’s Theory 45
persons) by understanding its capacities and inclinations, and one comes to understand them by
understanding the corresponding activities, and one understands these activities by understan
-
ding their objects” (Finnis 1991, xvii); and these objects are basic goods.
Thus formulated, the Finnis conception of moral truth differs significantly
from that of traditional Thomists. Yet one can find in Finnis’s works some
statements that bring his theory quite close to the traditional Thomistic posi
-
tion. For example, when he says that “moral directiveness is essentially a mat
-
ter of truths about the relationship between the activity directed and human .
. . fulfilment” (Finnis 1991a, 41), or when he states that “the truth of ethical
claims is assessed by considering whether they correctly identify how the
kind of action...inissue relates to the well-being of human persons” (Finnis
2004). The crucial role of the concept of human fulfilment in the Finnis’s the
-
ory is undoubtedly a common element shared with the traditional Thomists.
But for Finnis, human fulfilment is not treated as a prior reality which can be
known theoretically by the acting subject.
As has been said, actions chosen according to one of the first principles of
practical reason are reasonable, but not necessarily morally good. Similarly,
Finnis differentiates between practical truth and moral truth. Not all practical
truths are also moral truths. Only those normative propositions which are in-
tegrally directed toward possible human fulfilment are moral truths. So-called
moral falsities (Grisez, Boyle, and Finnis 1987, 126) lack that integrity, and
are characterized by incompleteness in directing toward human fulfilment.
The question remains why Finnis uses the term “truth” at all, in respect to
practical reason, when there is such a difference. He says the usage is
analogical, and also holds that in both cases of theoretical and practical
knowledge, there is a relationship of the mind and its object to the mind of
God. But still the term appears in the philosophical account of natural law,
and Finnis stresses that one can analyze natural law without asserting God’s
existence (Finnis 1980, 49).
4. Concluding remarks
There is an important difference between traditional Thomists and Finnis in
terms of comprehending the standard or criterion of moral truth—on one
hand, it is an objective reality, independent from human reason and will (hu
-
man nature). On the other hand, it is an ideal of practical reason. Finnis’s the
-
ory requires a very peculiar treatment of the concept of truth in respect to
morality. In the traditional view, knowledge of natural law depends on
knowledge of the reality of human nature. In Finnis’s view, in order to get to
know the natural law, we have to uncover the self-evident principles of our
practical reason from which we can derive further principles.
46 PAWE£ £¥CKI
It has been argued against Finnis that self-evidence as a way of knowing
natural law is less convincing than acceptance of nature as a foundation of
natural law. He has been criticized for trying to defend the classical natural
law theory, without the necessary philosophical baggage of metaphysics,
nowadays considered unacceptable in dominant intellectual circles. It has
been argued that the consequence of such an approach is to compromise the
objective status of natural law. For Finnis, we cannot base natural law on
metaphysics because of the impossibility of deriving normativity from de
-
scriptive judgments, yet moral norms may be objective without conforming
to an existing reality as a criterion of their truth.
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———. 1983. Fundamentals of Ethics. Oxford: Clarendon Press.
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———. 1991a. Moral Absolutes: Tradition, Revision and Truth. Washington DC: Catholic
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———. 1997. Natural Law—Positive Law. In “Evangelium Vitae” and Law: Acta Symposii In-
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ANDRZEJ SPYCHA£A
On the Transition from Being to Ought—Is the Problem Real?
1. Introduction
Out of the range of issues to be tackled during