Legal posi6vism and collec6ve acceptance Social Ontology Neuchatel - - PowerPoint PPT Presentation

Social Ontology Neuchatel 2020

Michael Schmitz Universität Wien

Legal posi6vism and collec6ve acceptance

Goals for this talk

• How can the law be characterized from the point of

view of a theory of collec?ve inten?onality?

• From a layered account of collec?ve inten?onality
• A collec?ve acceptance account of ins?tu?onal

reality (IR)

• Can this shed new light on tradi?onal issues? E.g.:
• those surrounding legal posi?vism and
• the rela?on between law and morality

2

Legal posi?vism I

• Whether something is law does not depend on its

(moral) merits, but on its sources (Gardner 2001)

• It depends on a posi?ve norm, on ins?tu?onal reality
• No necessary connec?on between law and morality;

no natural order that necessitates the legal order

• The law can be immoral and s?ll be the law
• This seems an admirably naturalis?c perspec?ve and

clearly correct as long as one takes an observer perspec?ve on the law but not on morality

3

Legal posi?vism II

• But morali?es can be immoral, too! So what if we

take an observer perspec?ve on law and morality?

• Can the laws of a society be independent of the

morals of the members / co-subjects of that society?

• E.g. could Jim Crow or Nuremberg laws have been

the law if moral a\tudes had been as they are now?

• Hardly! But what dependence of the law on morality

is compa?ble with LP? Is LP compa?ble with a collec?ve acceptance account of legal reality?

4

Collec?ve acceptance and ins?tu?onal reality I

• IR is not ‘observer- rela?ve’ (Searle 1995), but

‘inten?onality-rela?ve’ (Searle 2010)

• Belief not sufficient for existence of legal reality, re-

quires prac?cal acceptance, degree of iden?fica?on

• Declara?ons vs. pushmi-pullyu representa?ons

(Millikan) e.g. “We don’t eat peas with our fingers”

• Declara?on: can we make something the case – e.g.

that it is the law – by saying it is the case? Mtw and wtm dof regarding the same SOA??! (Lai?nen 2014)

5

Collec?ve acceptance and ins?tu?onal reality II

• Pushmi-pullyu: both DoF, but not with regard to

same SOA (state of affairs)!

• Basic / naive a\tude towards the law: (mtw)

apprehension of its existence and (wtm) acceptance

• f its norma?ve force not yet clearly separated: “We

drive on the right side of the road here!”

• Clear separa?on of existence and norma?ve force
• nly happens on a higher level of reflec?on.

Basic a\tude normal and crucial way of func?oning.

6

From collec?ve acceptance to co-subjec?ve consciousness

• Accep?ng rights, obliga?ons etc. with others as co-

subjects of the legal order, e.g. as a ci4zen / official

• Taking theore?cal and prac?cal posi?ons as role

bearers, in role-mode (Schmitz 2018)

• E.g.: As a ci?zen I applaud the decision of the court

In my role as [legal official], I decide that / to…

• Posi?ons taken in roles may differ from those taken

in I-mode / as a private person

7

Three layers of co-subjec?ve consciousness (Schmitz 2018)

• 1. Joint sensory-motor-emo?onal inten?onality: joint

aten?on, ac?on, emo?on & atendant disposi?ons → non-conceptual experience as co-creatures

• 2. We-mode inten?onality: beliefs, inten?ons, moral

and other values, shared with co-persons → conceptual thought / spoken language

• 3. Role-mode inten?onality: individuals / groups take

posi?ons as co-role bearers in legal / ins?tu?onal contexts → requires wri?ng and documenta?on

8

Layers, lawyers and representa?onal format

• Criteria for a taxonomy of layers:

a) richness of content / concrete to abstract b) degree of context dependence c) density / differen?a?on of representa?onal role d) degree of durability / stability

• These proper?es cluster and are connected to role

differen?a?on in a society, to lawyers which codify, systema?ze, differen?ate legal rules (Schmitz 2020)

9

Rela?ons between layers I

• Higher level inten?onality only determines CoS

against background of lower levels (Schmitz 2013) Ins?tu?onal → conceptual → non-conceptual

• Applica?on to law: legal rules can only be applied

and determine CoS against the background of shared morality / common sense Example: a legal rule forbids to take a vehicle into a public park. But what does “vehicle” mean here? Moral considera?ons / common sense play a role in answering this ques?on (Hart 1958)

10

Rela?on between layers II

• When (parts of) the legal order are too removed

from the shared morality of a society

• they may cease to be applied (e.g. laws against

sodomy / oral sex in some US states)

• they may not be accepted anymore (speed limit

in the GDR a few days awer the fall of the wall, even though legally nothing had changed)

• they may be removed / overthrown

11

Back to legal posi?vism

• Does the dependence of the legal order on
• collec?ve acceptance in role-mode
• on lower-level inten?onality for applica?on

threaten LP because morality is crucial for both

• determining applica?on / CoS
• determining collec?ve acceptance (CA)?
• CA is admitedly a vague no?on

12

Collec?ve acceptance again

• We must try to make it more precise, but I find it

hard to imagine it has no applica?on

• One precisifica?on: it is holis?c, we may accept a

legal order even if we do not accept all its rules

• Another: a legal order may be imposed on a

popula?on which are merely its objects (occupa?on)

• Acceptance is a poli?cal ques?on & there is evidence

that moral a\tudes determine poli?cal choices

• So, again, is this inconsistent with legal posi?vism?

13

First posi?vist response

• 1st response: “Legal officials do make use of moral

considera?ons in applying statutes, but that does not make morality part of the law” (Shapiro)

• Reply: It does not make sense to separate the law

from its applica?ons. If morality is essen?al to applying the law, it is simply essen?al to it.

14

Second posi?vist response

• “Whether and how moral considera?on enter into

the applica?on of the law is itself determined by legal rules”

• There are so many different ways in which morality

will shape our understanding of the law and so many different places where moral considera?ons can enter that it is implausible that the law determines all of them (how?) in advance.

15

Third posi?vist response

• “The ‘internal point of view’ only applies to legal
• fficials” (Shapiro)
• While there may be a (specialized) understanding of

the ‘internal point of view’ in which it only applies to legal officials, this is not plausible if it should mean that non-officials do not have any sort of iden?fica?on with the legal system

• If non-officials lose trust in the legal system, they will

cease to accept it

16

Fourth posi?vist response

• Response to a Weberian / Searlean acceptance

account: “Even if there is a nomological connec?on, there is no necessary / metaphysical connec?on. For example, technology might ensure dominance of a legal system without acceptance.”

• Some kind of SF-technological scenario is not what

we mean by a legal system being accepted in a

• society. That’s not governing people, that’s not the

rule of the law as we value it!

17

Conclusion: law as ins?tu?onalized morality?

• There is a need for further clarifica?on, but perhaps

ul?mately it does not mater so much if a layered acceptance account is a form of posi?vism or not

• There is nothing magical that happens to a moral

rule when it is codified and enforced by specialists

• Might the law then be con?nuous with morality like

science is con?nuous with ordinary knowledge?

• Might the law itself be a form of ins?tu?onalized

morality?

18

Thank you

★ for your joint aten?on ★ for your shared inten?ons to

par?cipate

★ for registering for and (if applicable)

• rganizing our first online conference!