Objectivity of Law
From IVR encyclopedie
The objectivity of law is a classical topic of legal philosophy, closely related to issues of the legitimacy of law and of adjudication. Objectivity of law in first line means that it is a normative order which is the same for everyone, independently of anyone's subjective attitudes. Accordingly, legal statements may be true or false, and are not merely expressions of subjective views. Law may also be called objective in the sense that it is neutral against different persons, groups or interests. The objective character of law is essential to the function of law to constitute a normative order for a society as a whole, that is a set of common norms binding on all its addressees. With no objective existence law could not fulfil this function, and without neutrality it would fulfil it badly. In this respect, there seems to be no doubt that law is objective in its nature and should be objective in its content and procedures. This holds true notwithstanding the fact that the requirement of objectivity in practice will not always be fulfilled.
1. OBJECTIVITY AND NORMATIVITY OF LAW
Problems regarding the objectivity of law follow from its normativity. The normative claim of law to be applied and followed needs justification, but it is controversial whether a rational justification of norms is possible and whether norms can be claimed to be objectively valid. The positivist solution to this problem is the separation of the validity of law and the obligation to follow it, and accordingly the separation of law and morality. The postulate of the objectivity of law is used as an argument for legal positivism (RAZ 1999a), suggesting a conception of law as a social fact. However, this conception cannot account for the normative function of law, determining what people shall do. Also it faces the problem that legal systems may incorporate moral terms, or even moral correctness as a criterion of legal validity. "Soft" or "inclusive" positivism, admitting this incorporation, faces similar problems of normative objectivity as normative conceptions of law. "Hard" or "exclusive" positivism preserves social objectivity at the price of a conception of law that deviates from legal reality. If, in contrast, the normativity of law depends on moral justification, the objectivity of law becomes a problem of moral or normative objectivity. Natural lawyers (MOORE, FINNIS) but also other theorists (RAZ 1999b) defend claims to normative objectivity. On the other hand, ethical skeptics and relativists deny the existence of moral objectivity and of a normative reality. Still another view holds that the issue of moral objectivity is irrelevant for legal reasoning (WALDRON 1992), or void of content and senseless (DWORKIN; cf. RODRIGUEZ-BLANCO 2004). Regarding the solution of particular cases, the issue of the objective existence of law turns into the question of the determinacy of law (GREENAWALT 1992), that is, whether law provides an objective, right answer for deciding particular cases. Inspite of the fact of reasonable disagreement in many normative issues, some authors (most prominently DWORKIN) suggest that law determines a single right answer in almost all law cases. The problem is whether legal decisions can be rationally justified and claimed to be objectively valid.
2. CONCEPTIONS OF OBJECTIVITY
Objectivity has different meanings if applied to objects, statements, sentences, or persons. In general, it is opposed to subjectivity. Objects of the external world, but also abstract or ideal entities are distinguished from subjective attitudes or experiences of individuals. Accordingly, statements are objective if they refer to external objects, and subjective if referring to experiences or attitudes of individuals. In contrast to objectivity, objective validity of statements means that they state facts, and are true, correct or rationally justified, whilst subjective validity means validity for those who believe or accept them. Sentences can be called objective if according to their semantic structure they are capable of being true or false. Persons are called objective if they are disposed to judge objectively, and subjective if they are inclined to follow their own attitudes, disregarding objective facts.
The various forms of objectivity of sentences or statements can be distinguished as semantic, ontological and epistemic objectivity. Semantic objectivity means that sentences or speech acts have referential character, that is, according to their semantic structure they refer to facts and, hence, can be qualified as true or false. A different distinction, less relevant here, is that between reference to external facts or to mental states (MARMOR 2001). Semantic objectivity of norm sentences means that they are used to state norms, more precisely, the existence or validity of norms. It is not clear whether norm sentences can be interpreted this way. A usual distinction is that between norms and normative propositions. Norms are said to be prescriptive, and not capable of being true or false. Normative propositions are defined as stating that according to a normative system S the respective norm is valid. Accordingly, they are descriptive (BULYGIN 2004), and objective in the semantic sense.
However, this suggestion limits semantic objectivity to descriptive language and excludes already semantically the possibility of normative facts and of genuine normative statements. Closer analysis shows that the distinction of norms and normative propositions is insufficient. It disregards the differences between internal expressions of participants of the discourse and external statements of observers and, furthermore, of normative arguments as the input of argumentation and normative judgements stating the result of an argumentation. At both levels of argumentation, that of introducing normative arguments and that of stating its results, the direct use of normative sentences, genuine normative statements of validity, and descriptive statements of system-relative validity of a norm have to be distinguished. It is important to note that normative arguments meant to start normative argumentation lack semantic objectivity but are merely legitimate claims of autonomous individuals. In contrast, the other types of normative expressions have propositional structure and hence are objective in semantic respect. Accordingly, the semantics allows for making genuine normative statements claiming to state normative facts and to be true, whether this claim can be epistemically justified or not.
Ontological (sometimes called metaphysical) objectivity means the existence of objects independently of their perception or recognition, that is, things are what they are independent of how we take them to be. Accordingly, a sentence refers to an object that actually exists, independently of the thoughts or attitudes of the speaker. Moral judgements, or normative judgements, correspond to some fact in an observer-independent external world. With regard to law, it implies that there exist right answers as a matter of law. This is a thesis of metaphysical realism. In contrast, anti-realism denies the existence of objects outside and independently from the views of some agent. With regard to reasons for action, this distinction has been labelled as externalism and internalism (BAYON 1991). Externalism suggests that there are reasons for action outside the bundle of preferences of individual agents. Internalism denies that there exist reasons for action which are not included in subjective preferences.
Epistemic objectivity (also called methodological, justificatory, or discourse objectivity) means that sentences can be verified or justified as objectively valid. Hence, a sentence can actually be qualified as true or false, and any reasonable agent must accept its validity. In a strict sense, this claim is difficult to justify, although some discourse theorists try to support it by transcendental-pragmatic arguments (APEL, HABERMAS, NINO, ALEXY). Nevertheless, universal reasonable acceptance may serve as a regulative idea, or as a criterion of critique of normative claims. A weaker and incomplete form of epistemic objectivity is correctness in the sense that any reasonable agent must accept a certain position as free of mistakes. It includes the procedural aspect that the law is epistemically objective insofar as the mechanisms for discovering right answers are free of distorting factors (LEITER 2001). These are positions of cognitivism. Non-cognitivism denies that sentences can be verified or can be objectively valid.
The recognition of norms may refer to norms, more precisely, the validity of norms, as abstract, ideal entities (Platonism), or one might hold a naturalistic view which relates and reduces the validity of norms to natural facts. This is expressed by the idea of supervenience, that is, normative qualities supervene on empirical qualities.
The strongest form of objectivity combines all three forms of objectivity (cf. RAZ 1999b). Other combinations are semantic and ontological objectivity without epistemological objectivity, which implies the existence of a normative reality not cognitively accessible, and semantic and epistemological objectivity without ontological objectivity, which is suggested by constructivist theories (cf. LAFONT 2004).
3. OBJECTIVE VALIDITY OF LEGAL NORMS
Normative conceptions of law are confronted with problems of the existence of valid norms, that is the problem of moral realism, and of the justification of the validity of norms, that is the problem of moral cognitivism. If objectively valid norms exist, law defined according to a normative conception exists. If the objective validity of norms could be rationally justified, normative legal statements could claim to state truth about law. However, moral realism and moral cognitivism are controversial.
A crucial problem of normative justification is the relation between objective validity and individual autonomy. The basic idea of autonomy is that of self-legislation, that is the determination of the validity of norms by autonomous agents themselves. Normative validity seems to be essentially subjective. The problem is not the existence of reasonable disagreement but the impossibility to justify norms independently from their acceptance by autonomous individuals.
On the other hand, the authoritative character of law excludes that law can be determined by mere autonomous judgements of individuals. Law must constitute a common normative order for all its addressees, claiming to be binding for them. The justification of legal norms therefore must also account for the relation between individual autonomy and the authority of law. This requires to allow for subjective legal judgements. As courts and other legal organs must make legal decisions also in cases where a norm cannot be established as objectively valid, it is legitimate for them to make individual normative judgements based on intersubjective reflection about legal arguments. Hence, legal judgements cannot be restricted to objectively valid judgements and, accordingly, law cannot be understood as an exclusively objective concept.
Discussion of the objectivity of law must take into account the complex and procedural character of law, which excludes a simple answer to the issue of objectivity. In first line, a correct analysis of the structure of law and its claim to normative validity is required. The most plausible account for a normative conception of law is the model of principles as normative arguments, which should not be confused, however, with Dworkin's or Alexy's conceptions of principles. It is based on the idea of individual autonomy, and on normative arguments containing requirements of which norm should be accepted as definitively valid. The balancing of normative arguments has the structure of autonomous judgement, as it is at the same time bound by normative arguments but also free in the sense that the arguments do not determine a particular result. The justification of norms includes, at least analytically, several stages, namely, the introduction of normative arguments based on individual interests, the balancing of these arguments resulting in individual normative conceptions, and the intersubjective reflection about these individual normative conceptions asking which norm should be accepted as definitively valid in the situation of reasonable disagreement. The objective validity of a norm may result from the convergence of reasonable agents as the result of this procedure. However, the respective norm can be claimed to be objectively binding only if also a need for a commonly binding norm is established. The justification of objectively binding law may be promoted by authoritative procedures of decision-making. In contrast, if there is no convergence in substance, or on the neccesity to have a commonly binding norm, or on the necessity of authoritative decision, no norm can be claimed to be objectively valid law. If there is reasonable convergence but no need for a commonly binding norm, reasonable convergence provides a rational justification but no objective validity of a norm in the sense of its bindingness.
Consequently, according to the model of principles law is objective in various respects. The legally relevant arguments are interest-based normative arguments made by autonomous individuals or authoritatively established. They are related to empirically identifiable events or states, thus being objective in a naturalist sense. Moreover, as normative arguments which claim no more than to be given due account in a balancing procedure, they are objectively valid if they fulfil certain formal conditions of legitimacy, in particular of consistency, coherence, empirical correctness and universalizability. If they do not comply with these formal criteria, they are objectively invalid.
Individual normative judgements based on the balancing of normative arguments are subjectively valid. As they do not exclude reasonable disagreement they may be legitimate and correct, but they are not objectively valid. On the other hand, they can be objectively invalid if they violate formal constraints on correct balancing. Also normative judgements based on intersubjective reflection still are subjective normative judgements.
In contrast, the convergence of judgements that might result from intersubjective reflection constitutes a form of objectivity. The convergence is an objective fact, although not one directly related to the validity of a norm but one of social or institutional acceptance. However, this fact has normative consequences. In the case of the convergence of reasonable agents there is no counter-argument anymore that precludes an agent from stating as definitively valid what he thinks right. Thus, the second-order claim based on convergence can claim to be objectively valid.
Authoritative decisions do not change the structure of the argument. They have empirical objectivity, but need themselves normative justification. The effect of introducing authoritative decision-making is that reasonable convergence may be easier to achieve on the need to have authoritative decisions than on substantial issues.
Legal judgement must follow the law where it is objectively valid. However, the need for legal decision-making in controversial cases legitimatizes legal judgement also in cases where there is no objectively valid law. The structure of normative arguments requires the judge nevertheless to present his decision as required by valid law, as the legal argumenta are objectively valid and his decision is required by what he thinks are the prevailing legal arguments.
Authority, Cognitivism, Descriptive legal theory, Discourse theory, Dworkin, Indeterminacy, Law and morality, Legal positivism, Normative jurisprudence, Right answer to legal questions, Weighing and balancing
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