Law as a Social Construct: Insights into Legal Theory
Unit 7: Law as a Social Fact
A) Law and Social Behavior Motivation
Motivational techniques include social morality and religion. However, law, unlike them, is an indirect motivational technique. It outlines sanctions rather than a list of duties.
Instead of directly promoting desired conduct, it discourages contrary conduct by imposing penalties. The specific aspect of this method is to sanction a coercive act contrary to the desired behavior. The author of the legal rule intends for individuals, whose conduct is regulated, to consider such coercive acts as an evil and seek to avoid them. The goal is for individuals to channel a certain behavior by threatening them with an undesirable consequence. According to Kelsen, this pressure often achieves the desired outcome. However, Kelsen acknowledges that other factors, such as religious or moral grounds, also influence people’s adherence to standards. Considering the technique, it’s clear that law addresses only human conduct, as only individuals with reason and will can be induced by the representation of a rule to act accordingly.
The legal technique can be used to achieve any purpose. Law is a means of social coercion, closely related to a social order it seeks to maintain. The consistency of the legal order and the behavior of individuals are determinative of the validity of the legal order, as its effectiveness is a condition of validity. This agreement stems from ideologies that encourage or facilitate such agreement.
Law as a Fact for Officials, Judges, and Citizens
Officials are those who dictate general rules: legislators, responsible for creating and repealing the rules.
Judges are the bodies responsible for determining which rules apply to specific situations and, if necessary, implementing the coercive measures such rules prescribe. Through their judgments, they particularize the law.
Citizens are those governed by the rules. The law can limit or promote social behavior, always aiming to regulate the conduct of citizens.
B) Relations Between Law and Force
Law is distinguished from other legal systems by linking specific behaviors to an act of coercion. From this, it follows that law utilizes force. In defining law as a coercive order, it’s established that the role of law is to regulate the use of force in relations between individuals. Force should only be used by authorized individuals. Thus, acts of coercion undertaken by these individuals are considered “lawful.” Under the law, those who use force cannot do so on their own behalf but as organs of the community (police, army, etc.).
In conclusion, the role of law is to establish a monopoly of force in support of the various legal communities.
Kelsen’s Conception: Pure Concept of Legal Revolution
Kelsen stated that a revolution occurs when there is a fracture in the main regulatory logical antecedent, that is, in the constitution. This occurs when a constitution is reformed in a manner different from that provided for within it. The magnitude of change, quality, speed, or even the ruler is irrelevant, as long as there is a reform in the constitution by a body that is not responsible for it. For Kelsen, revolution is a matter of formality, not content.
Cossio’s Concept of Legal Revolution: The emergence of standards in accordance with a procedure that is set by the higher standard. This breakdown of the logic of history can be in any degree of the legal system.
Legal revolution can be summarized as:
- Personal Revolution: Only individuals change.
- Administrative Revolution: Not only individuals change, but also the administration.
- Institutional Revolution: Changing institutions.
- Social Revolution: Not only institutions change, but also the supreme values that govern the legal order, for purposes of the state and the community in question.
A revolution succeeds if there is compliance on the part of society.
Analysis of Article 36 of the Constitution
This article states that the Constitution will remain in force even when its observance is interrupted by acts of force against the constitutional order and democratic system. These acts are void. This relates to Kelsen’s concept of revolution; if such a revolution occurs, the acts are void. The authors of these acts will be disqualified from holding public office, excluded from pardon and commutation of sentences, and also liable to a penalty. This relates to the connection established by Kelsen between law and force, as any person not authorized to exercise force commits an illegal act and is liable to a penalty. This article gives citizens the right to resist against those who engage in acts of force without authorization. It also states that those who undermine the democratic system by committing an intentional crime against the state that involves unjust enrichment shall be disqualified for public office for the duration fixed by law.
Finally, it empowers Congress to enact a law on public ethics for the performance of their duties.
C) Law as Legal Realism
Realism asserts that law is not just a matter of logic but of experience. Realists try to see the legal phenomenon as fact, without ignoring the rules but keeping in mind that these are not sufficient to understand the law because it regulates the conduct of individuals, and their standards are applied by certain organs.
This current has been developed in the U.S. and Scandinavia, with writers such as Holmes, Frank, Olivecrona, and Illium. The features of realism are:
- A negative attitude towards rules. It loses confidence in them and considers the facts of the legal system more important.
- More importance is given to the individual standard, the case, than the general rule. It prioritizes the case over legislation.
Different Areas: American and Scandinavian Realism. Oliver W. Holmes and Alf Ross
Holmes summarizes his thought in the phrase “the law is not logic but experience.” He suggests that to find the law, one should look at it through the eyes of a “bad man,” who is interested in knowing what will happen if he acts in a certain way. In analyzing this, Holmes realizes that general rules take a backseat in law; what really matters is the sentence that the judge would give. He states that he understands the right prophecies about what the courts will do.
Holmes defines legal science as systematic knowledge of the conduct of judges. This knowledge is a kind of synthesis of sociological, biological, historical, and psychological factors, so that it serves to assist in the interpretation and clarification of legal phenomena.
Scandinavian Realism is represented by the Uppsala school, including Alf Ross. Although it has points of contact with American realism, they differ in that the latter neglects the problem of norms to refer only to facts, while the former deals with the problem of regulation to try to reduce it to reality.
Alf Ross is a moderate realist who tries to overcome the dualism of reality-validity (logic considers the right position as a system of valid norms) because he says that neither of the two aspects can be found the truth.
Unit 11: Construction of Law: Interpretation Methods
A) Methods of Interpretation of Formal Volunteering
The voluntarist position argues that the judge, in interpreting the rules of law, performs an act of intellect (knowledge) and an act of will (interest).
Among the proactive methods, the variability of case law (decisions of various courts) is permitted. Structured voluntarism presupposes that the work of the judge moves within the framework given in advance by a regulatory structure.
- Pure Theory of Law: Kelsen notes that each time a higher-level standard needs to be applied, the court finds that this rule not only anticipates the process for the production of the lower standard but also the content of it. But this determination is never complete; it is a framework of possibilities within which the judge can move without breaking the law.
In summary, pure theory is a formal will; the act will be performed by the interpreter within the framework that gives the legal standard.
- Egological School: Cossio argues that lawyers do not interpret the law but the conduct through the law. The lawyer has to interpret the law based on the specific situation presented. Their activity is not only logical but also unravels axiological because the value of the standard gives meaning to the standards, which, according to Cossio, is intersubjective interference behavior. To capture the lawyer’s conduct, one should use the dialectical empirical method, a circular process that goes from the facts in regard to achieving understanding. What matters is knowing what facts of conduct should be referred to legal standards, and this is not the task of logic but of axiology. Egological theory holds that lawyers should not only be interested in the knowledge of dogmatic references to the laws and concepts and meanings, but must also consider the object to which they refer, and that purpose is to conduct inter-interference.
B) A Model of Legal Interpretation
In the judge’s task to interpret behavior through the rules, axiology comes into play. But this feature is not unique to the interpretation of the work of judges.
It is possible to establish a common legal method for all lawyers to be developed in two complementary directions: the systematic and interpretation.
Interpretation: Interpreting is known for understanding what a sign says. Judges interpret the rules, but they interpret behavior by using an empirical dialectical method. Lawmakers, meanwhile, also interpret behavior that must be considered in its mass phenomena.
The doctrine also works with generic concepts related to mass phenomena. Thus, it is clear that the method of legal interpretation is empirical.
Dialectical Logic
Aristotelian dialectic finds its clearest formulation in the Topics. It states that any discussion must fit according to the following principles:
- Appearance and awareness of a problem (a point that generates discussion).
- The need for two “rivals,” each of whom holds a different reason—two parts.
- The need for an arbitrator to direct or moderate the discussion—a judge.
- Agreement rules to which all must undergo (opponents and the referee)—standards to which the judge and the parties should adhere.
The scope of the dialectical method is very practical and instrumental.
Arguments Used by Jurists (Topical)
Aristotle tells us that topography is an act, a method of knowledge that teaches us to reason without falling into contradictions in the field of debatable issues (doxa) and allows us to access knowledge of the probable, plausible. Topical, as part of the rationale, always aims to know the truth.
The title “topical” comes from topoi, places. The sites are intended to provide arguments for dialectical discussion. This is seen in the perspective of a dialogue that must be reasoned. The dialogue takes the form of an instrument that shows a practical way, which in turn poses a methodological problem that is addressed to gain the consent of the opponent, the referee, and the audience. Today, the agreement sought is primarily that of the judge.
The lawyer wants to reach a particular conclusion. Based on the law, they must build a formally stringent argument. Instead of searching for the appropriate standard within the legal universe, when supported by the facts, it should be tested as specified by the adjective rules. Their work leads them to search for the standard and the factual evidence that matches the desired conclusion and display it through a convincing argument to persuade the judge.
Finally, the topic is a machine for making assumptions based on a given conclusion. For the dialectical, know the conclusion they want to reach, and your task is to find premises that would achieve the aim pursued.
In the case of topically applied to the legal order, there are, first, rules and other facts that allow judging human behavior in particular.
From the material point of view, this dialectic is conditioned by its object (human behavior).
C) Rediscovery of Topography
Theodor Viehweg reassessed Aristotle’s topical, which was at the heart of the dialectic. With it, we have that topography is a technique that is focused on a problem; that is, we must develop a method that allows us to find premises that must be supported by approved views. The roads are currently open: a) scientific legal technique, b) it, as is the subject of a science.
Ancient Rhetoric
Lets build a theory of argumentation using dialectical reasoning. It is an instrument of thought that aims to inform decisions. As there is controversy, both must be informed, which necessitates the argument. The ultimate goal of the art of rhetoric is to persuade a court that the reason put forward is correct.
The New Rhetoric of Perelman
Perelman wanted to deal scientifically with problems using rationally acceptable methods, such as “Why do you prefer good to evil? Or justice to injustice?”.
Perelman’s investigation led to an important conclusion: There is no specific logic for value judgments, but what comes closest to it has been developed in rhetoric.
Perelman notes that Aristotelian rhetoric covered three areas:
- A theory of argument that is the main axis and provides the connection with demonstrative logic and philosophy.
- A theory of utterance.
- A theory of speech composition.
Logic and Reasoning
Any argument uses concepts, judgments, and reasoning and cannot be alien to logical rules. Usually, when we argue, what is called natural logic is used; we instinctively use arguments and reasons but do not know scientifically what laws are governing our reasoning. A judge can make a good decision without having ever studied logic.
Scholars of argumentation, even in natural logic, tell us that an argument is acceptable when:
It is consistent. There are no contradictions. It should be as complete as possible. It must be stringent.
The Logic of Reasonableness of Recaséns Siches
The logic for interpreting the law is intended in traditional logic. These (Aristotle, Bacon) study ideals that are necessary connections to find ideas or natural realities. These systems do not constitute the whole logic, only a portion of the logos. There are other parts: the logic of vital reason, historical reason, and experimental logic.
In legal interpretation, traditional logic is inadequate and leads to an absurd, irritating result. We feel and understand that there are compelling reasons to treat the problem in a way as to push aside that traditional logic. If we feel that there are reasons, we are in the field of logos. We have thrown out traditional logic reasons for other reasons that we should take precedence over those. Therefore, we are within the scope of reason. There are reasons other than traditional logic, which supply the correct way to solve the problem of finding the right thing.
Opposed to a legal problem is reasoning of a different type, that is precisely what puts us in touch with the right solution. That reasoning makes us find the right and just solution; it is the reason applied to the case.
Alexy’s Position
Legal argument is a special case of general practical argumentation. The paradigm of the theory of general practical argumentation is the theory of rational discourse. According to this theory, a normative statement is correct or true if it may be the result of a particular procedure, that is, rational discourse.
Discourse theory, as a theoretical model of argument, is characterized by the fact that the factual and normative beliefs of individuals may be modified under the arguments presented in the proceedings.
Practical discourse rules are different. It includes rules of logic, rules about participation and oral presentation, etc.
The central problem of the theory of discourse is the formulation and justification of the rule system. On the one hand, it has to be as strong as possible to exclude as much as possible in order to increase its significance decision. On the other hand, it should be as weak as possible so you can find wide acceptance. Systems that have no moral content must satisfy the second, but not the first requirement.
The broad field of discourse cannot match a similarly broad field as legally allowed. Otherwise, social conflicts could be solved on the basis of conflicting rules.
The acceptance of a rule by all participants in the discourse as a result does not necessarily bring their obedience from everyone. In a series of rules, where some cannot be fulfilled, no one may be required for compliance.
Unit 14: Development of Legal Thought
A) Background of Contemporary Legal Thinking
History marks the end of the Modern Age and the beginning of the Contemporary in 1789, the year of the French Revolution, which marks the end of absolutism and the old regime.
The idea of a social contract in which the people are the repository of sovereignty and delegate part of it to the rulers is expressed by Rousseau. This idea presupposes two conditions: equality and freedom, which is embodied in the Declaration of the Rights of Man and of the Citizen.
Since then, man and his liberty have been the central interest of the legal philosopher. This will be the current budget of the 19th century.
The passage from the Modern Age to Contemporary philosophy is implemented by Immanuel Kant, who achieves the overcoming of dogmatism between positivist and empiricist skepticism.
Kant’s “Critique of Pure Reason” examines the problem of knowledge and concludes that it is not possible to know the thing itself, but we know things as they appear to us.
Historical Materialism
This is the most extreme manifestation of legal positivism, and its chief representative is Karl Marx. Marx was born in Germany in 1818 and became a disciple of Hegel while simultaneously criticizing him.
Hegel believed that the state represented the interests of everyone, but Marx noted that this is not so; the state represented the interests of the ruling class and was an instrument of domination.
According to Marx, the error in Hegel’s conception came from his having forgotten to study civil society, as for Marx, there was a break, a gap between the world of ideas and material reality.
Here is the why of historical materialism. Materialism because it lies in a material conception of reality that is space-time; events refer to movements required of the subject. Historical because materialism is a tool to explain history.
By studying society from an economic point of view, Marx finds that men, to satisfy their existential needs, establish what are called production relations. These relationships, for Marx, are the material basis of society, a structure that will condition all other political, religious, ideological, etc., constituting a conditional superstructure. It is within this superstructure that the right subject is included.
Marx shows how everything is conditional on the economy using the Hegelian dialectic. He says that in a capitalist world, there is a ruling class, the bourgeoisie (thesis), and another dominated, the proletariat (antithesis), that when made aware of itself and for itself will produce a class struggle (synthesis) that, after a short period of dictatorship of the proletariat, will create a new model of production: the communist, where there will be a classless society, so there is no need for state laws.
Neo-Kantianism and Directions
Positivism continues to grow until the late 19th century, early 20th century, where an anti-positivist reaction appears, which brings back Kant. It returns to Kantian thought: “Critique of Pure Reason” and “Critique of Practical Reason.” The return of Kant (neo-Kantianism) is seen in two ways:
- Marburg Neo-Kantianism (takes criticism of pure reason).
- Baden Neo-Kantianism (takes criticism of practical reason).
Baden Neo-Kantianism
The Baden school has an ethical criticism; its representative is Radbruch (relativistic). He distinguishes the field of nature from culture, saying that man brings value to the legal field.
This author says that values change according to society and time (that is relativistic) and that to understand, people should use values.
Radbruch analyzes the axiological problem of law based on political ideals. He distinguishes three political concepts:
- Individualists: They say the prevalence of human personality values; they serve the collective values and works or work.
- Supraindividualists: The values of personality and work are in the service of collective values.
- Transpersonalists: Individual and collective values are at the service of labor or work.
Marburg Neo-Kantianism
Stammler and Kelsen are representatives of logical criticism.
1. Stammler: He defines law as a permanent organization of social life, which manifests as wanting, binding, self-sufficient, and inviolable. He makes a distinction between causal sciences (which put us in touch with nature) and teleological or finalist sciences. This puts the science of law in the field of teleological science.
Stammler does not speak of a standard. The idea of Stammler and Kelsen are equal, but they feel entitled to different things.
This idea of law is the idea of justice; it has a formal idea of justice (following Kant).
Justice implies equality in the treatment of people in similar situations and opportunities. The formal idea of justice is variant. Man never reaches true justice; they can reach it, but it is changing.
2. Kelsen: He distinguishes between causal and normative sciences.
- Division between science and science policy grounds:
Causal sciences: nature (all the elements related to a principle of causality) link cause and effect. Infinite chain. Atmosphere of “being.”
Normative sciences: society (relation between antecedent and consequent). Principle of accounting; realm of “ought.”
- Division between morality and law (two science policy).
In a society governed by the principle of imputation, there is the norm with the copula “ought.” This may be logical (neutral value, field of law) or axiological (value, field of moral).
c. Standard Definition: A hypothetical trial built with the copula “ought” that imputes a consequent (penalty) to an antecedent (tort). This would be the primary rule. The secondary standard would be the one with the legal duty and responsibility. Validity: A norm is valid when it belongs to a valid order. The validity of an order is given by the fundamental rule.
Analytic Philosophy
It surged in England as a stream of general philosophy that acquired great importance when applied legally. It is called analytic because of its property. Or, questions arise about every little problem.
It is proposed as a method of language analysis. Language, in the conception of analytical philosophy, is conventional; that is, there are no right or wrong words.
Austin makes an important contribution to English legal philosophy in school by initiating the “School of Analytical Jurisprudence” (pre-analytical philosophy). He divides the study of law into three parts: General Decisions, Particular Decisions, and Court of Legislation.
Law is a normative order imposed by an organizing will. The legal standard is an expression of a mandate from the sovereign. The essence of law is the duty of individuals to fulfill that mandate.
He distinguishes two types of mandate: primary mandates aimed at individuals, and secondary commands, which refer to officials who must implement the sanction when the primaries are not met.
Hart: An analysis of the concept of law with its three recurring problems and other legal concepts.
The role of language in the legal field is manifested in the definition of general terms and across the explanation of the reasoning in the application of general rules to particular cases.
C) Argentine Legal Thought
In this, Cossio stands out and continues to have an effect through his followers, the egological school.
The chair of introduction to the law of La Plata is predominantly influenced by Kelsenian and egological thought. The so-called School of La Plata, Argentina, founded the law.
Natural Law
It argues that positive law is subordinate to natural law. According to this position, in case of conflict between them, positive law should be verified.
On the contrary, legal positivism considers as true and only right that which men historically do.
But the same natural law can play a conservative role and be of service to the preservation of the status quo, as in the case of Catholic schools opposing divorce. In this case, the ideals fostered by natural law as a model for all legal systems can be studied as a means of political power to reform existing law.
Aristotle has been attributed to a natural law position because he introduced the distinction between “natural right” and “legal right.” Natural right has everywhere the same force, while legal right apparently depends on the will of men and would only be fair when people have established it.
The Ideas of the Enlightenment: Alberdi
Juan Bautista Alberdi is considered the father of Argentine legal philosophy. His philosophical principles can be seen in our Constitution.
Democratic trends connoted a potentially decisive political significance, making it necessary to discern which of the republican forms could respond to the needs of the country. This methodical approach led Alberdi to philosophically address the issue under the influence of critical rationalism and relativism of the historical school, represented by Savigny.
Alberdi preferred a consideration of historical phenomena. He hosts the idea of openness and support for immigration, effective freedom of trade, navigation, education, worship, the establishment of industries, capital, technology, and railways in equal rights between national and private foreign individuals.
The philosophical principles of the Enlightenment of the 18th century assumed that man was innately directed to the good, justice, and truth. Alberdi states in his book that constitutions should not express the needs of yesterday or tomorrow, but today’s.
Neo-Scholasticism
In the second half of the 19th century, with the presence of Pope Leo XIII, the Catholic Church, like neo-Kantianism, also reacted against the anti-philosophical attitude of the dominant Positivism, promoting current research on the thought of Aquinas and other Christian philosophers.
In the beginning, this new approach is not totally opposed to other philosophies but attempts to extract from them the necessary and useful to adapt the old scholastic concepts to the problems of a new world.
To achieve this, it was necessary to bring science to Thomism.
But neo-scholasticism should also address the problems posed by the critical attitude. Referring to Aristotle, the art of discussing opinions in order to achieve a firm one had come to formulate a theory of truth. Augustine argued that the path towards the truth must go through all the individual and not just the intellect.
The consequence was the almost total abandonment of the metaphysics of being. The whole philosophy of St. Thomas is a philosophy of being and its requirements and essential ontological connections.
Legal Trialism
According to Reale, any legal system assumes the term of an objective order of values to which human activity itself is subject to ethical ends through coexistence. Thus, the rule of law is a dynamic integration between social fact and value.
Therefore, law is an integrated three-dimensional unit because of the value and the standard, and must be apprehended by the lawyer.
The basic approach of the three-dimensional flow directly postulates on the legal reality a threefold consideration (normative logic, empirical, and axiological). The three-dimensional undoubtedly fits the general methodology used by contemporary legal philosophy. There is no originality in this, as there is no philosophical direction that currently ignores the threefold consideration of the legal phenomenon.