Table Of Contents
- About the author(s)/editor(s)
- About the book
- This eBook can be cited
- Table of Contents
- Vito Breda, Lidia Rodak - Introduction
- PART I Philosophical Perspectives
- Michal Pazdziora - 1. What rationality? Whose objectivity?
- Lucia Berdisova - 2. Objectivity and arbitrariness of blind rule-following or what it means to follow a (legal) rule blindly
- Pietro Denaro - 3. The causality of omissions and the objectivity of human agency
- PART II Analytical Perspectives
- Maciej Pichlak - 4. Objectivity and Institutional Reflexivity in Law
- Lidia Rodak - 5. “Essentialism of a kind” and “objectivity of a kind” as necessary for law
- Marcin Pieniążek - 6. The objectivity of the legal text in view of the concept of semantic autonomy. Comments on Paul Ricoeur’s theory.
- Jaqueline Sena - 7. The imperative of objectivity and neutrality in legal science and its repercussion on judicial activity: an analysis of the ideas of the Latin-American jurist Luis Alberto Warat
- PART III Historical Perspectives
- Cosmin Cercel - 8. The Purloined Letter: Law, History and the Theory of Totalitarianism
- David Marrani - 9. Postmodern Evolution of Places of Justice: The Use and Abuse of Transparency
- PART IV Empirical Perspectives
- Vito Breda - 10. The Concept of Objectivity in the UK Supreme Court through a Comparative Looking Glass
- Antal Szerletics - 11. Paternalism and ‘Objective’ Best Interests
Objectivity is an inherently complex philosophical concept and, as such, it is a continually recurring theme in philosophical and jurisprudential debates. One of the fundamental questions, still surrounded in controversy, is whether objectivity is a “self-generated” universal concept that transcends local discourse. If so, how can it be philosophically justifiable, and what part, if any, does the jurisprudential debate play in such a discourse? Although these questions may appear a bit naive nowadays, they express the ambitions and power of the concept of objectivity. On one hand, it represents the desire for truth, akin to Kant’s “things in themselves”, something fixed and eternal. On the more negative side, objectivity interpreted as the narration of a timeless universal truth is associated with its power to impose authority from above.
In “The Structure of Scientific Revolution”, Thomas Kuhn claimed: “that there is no representation of facts without an observatory language, and there is no observatory language which is “theory free’”. Under this system, a rejection of objectivity in its strong sense seems inevitable. In line with this way of thinking, social sciences have adopted the concept of intersubjectivity in place of objectivity, which seems better suited to humanities in general. Law and legal discourse, however, which play central roles in organizing human society, remain strongly committed to the notion of objectivity, despite all the controversy that surrounds it. The rationale behind this is far from straightforward. It is not at all clear whether law has a distinctive type of objectivity, separate from scientific epistemic methods, or whether legal discourse has its own specificity that influences legal objectivity. If either of these are true, we have to ask what it is for law to be objective and whether objectivity is suitable for law, given its contested and changeable nature. If objectivity is somehow necessary for law, we also need to ascertain whether there is just one type of objectivity or different types of objectivity that meet its requirements. These questions are all addressed in the book.
The main aim of this edited collection of essays is to contribute to the debate on legal objectivity. The authors address the debates on the status of law and judicial discourse separately and the papers can be roughly divided into two categories. Articles in the first category focus on the general debate over metaphysical objectivity (by Pazdziora, Berdisova, Pichlak and Rodak). Articles in the second category form part of the debate over the possibility of epistemologically objective procedures (by Pieniazek, Denaro, Sena, Cercel, Marrani, Breda, and Szerletcs). ← 7 | 8 →
Taking into account the specific character of practical legal discourse, which has a strong commitment to both objectivity and subjectivity, it can be questioned whether objectivity is suitable for legal discourse at all. In order to understand the scope of the papers in this collection, it is helpful to look briefly at some of the criticisms of objectivity in this respect. Sir Neil MacCormick has written extensively on the practice of legal reasoning and objectivity and, on several occasions, he admitted to his doctoral students that he considered the concept of objectivity in judicial discourse as an unhelpful idea. In MacCormick’s later renderings, objectivity in judicial discourse is a contested concept for two different sets of reasons. The first set relates to the failure of objectivity in judicial discourse to eliminate the subjective; the second set focuses on ideological bias.
The first set of critiques is based on the law’s inability to evaluate complex data. For example, MacCormick argues that, in an ideal scenario, the numbers of variables and infinite number of possible commutations that the court would have to consider as part of its judicial activity make a judgement based on subjective opinions inevitable. So, by definition, this is antithetical to the idea of objectivity. However, these types of critical engagements, which focus on the objectivity of legal narrative, are drawn from a misguided representation of what can be expected from judicial reasoning and they are seldom mentioned in this book. Most contemporary legal authors accept that few complex scientific activities can deliver an absolutely objective result. It is reasonable to expect judges to act in a similar way to scientists and normalise the results of their studies after having considered all the variables. Normalising the results may sound ‘dodgy’ and, to some extent, it is. For example, judges may prefer certain epistemic practices to others, and this may be exploited by lawyers who seek to bias the judgement. However, the practice of reducing relevant variables, evaluating narratives, and assessing results is axiomatic of most complex scientific activities. Over the centuries, these epistemic activities have delivered reasonably consistent results and progressively increased the precision of legal studies. In other words, scientific methods have delivered the ‘goods’. As Richard Rorty argues, judicial opinions based on a series of intersubjective evaluations have, over the years, been perceived as objective by a community of experts. Objectivity of legal discourse, as in any other branch of science, cannot be constructed in absolute terms.
In comparison to MacCormick’s epistemic critiques that deny the possibility of judicial objectivity, his ideological critiques suggest that objectivity in law is a pernicious concept and that judges are instruments of power, making use of their positions to protect ideological assumptions, reactionary ideas, and even discriminatory practices against minorities and women. The Critical Legal Studies, Critical Gender Studies and Critical Race Theories movements have been ← 8 | 9 → instrumental in exposing the effects of discriminatory judicial practices, judicial paternalism and xenophobia.
This set of critiques is well represented in this collection of essays. However, the contributors substantiate their narratives with different types of scholarship, employing philosophical, analytical, historical and architectural perspectives, along with empirical studies and in-depth comparative analyses of the legal systems researched. This process was aided by a series of workshops (including those organised at the biennial IVR World Congress of Legal Philosophy, and at the University of Palermo). The results of these activities matured over a long period to form the present collection.
From the meetings that preceded the completion of this collection, it emerged that law has a strong demand for objectivity, yet it might be approached from many different perspectives. The papers in this volume all conform to this view, each revealing its own perspective and employed theory. As a consequence, objectivity, as analyzed in this volume, avoids any claims to universality.
The complexity of the issues will become apparent by reading this volume, but the reader may find it helpful to first have a brief overview of each of the articles, outlining the author’s chosen aspects of legal objectivity.
The first set of articles, representing the philosophical and analytical approaches, refer mainly to the metaphysical aspect of legal objectivity. Papers by Michal Pazdziora, Lucia Berdisova, Maciej Pichlak and Lidia Rodak all address the question of what type of objectivity is suitable for law. Each of the authors proposes their own solution.
Michał Paździora, author of “What rationality? Whose objectivity?” (1), poses the question of who or what is the subject of objectivity and rationality in law. Reflecting on the significance of the objectivity of law for lawyers, he points out that it is possible to identify an ideological bias under the surface of legal discourse. He introduces the importance of legal reality, which necessarily involves the perspective of subjects, even if this is in an “invisible way”. His arguments for a “subjectively underpinned objectivity” sketch out the background for the other papers, revealing the participants of objective legal discourse.
Lucia Berdisova, in her paper “Objectivity and arbitrariness of a blind rule-following or what it means to follow a (legal) rule blindly?” (2), seeks a normative justification for procedural objectivity. Through her discussion of the “Kripkenstein” argument on the impossibility of following rules, she poses fundamental questions on the concept of law and its objectivity. By refuting the arguments of rule scepticism, the author defends objectivity of law and reaches the conclusion that objectivity is created, not discovered. She continues the discussion by looking at the human agency involved in creating objectivity, leading neatly into the ← 9 | 10 → question posed by the next contributor of who is responsible for creating objectivity of law. Through the interpretative debate on “whether or how is it possible to follow rules”, she shows how the epistemological and metaphysical perspectives are tightly connected.
Maciej Pichlak (4) discusses the interplay between objectivity and institutional reflexivity in law. His essay aims to answer the question of how objectivity is possible within law. It focuses on two notions of objectivity that can be observed in legal practice: objectivity as a social fact, and objectivity as a moral ideal of legal practice. Employing an institutional perspective on social sciences, he claims not only that these two dimensions of objectivity may be plausibly explained, but also that they concur within social institutions. Concurrence does not mean conflation though: the relation between the factual and ideal aspects of objectivity is dialectical in nature and they need to be distinguished clearly. After explicating the weaknesses of other theoretical perspectives that fall into the fallacy of conflating the factual and the ideal, the paper subsequently develops an institutional concept of objectivity. Adopting the notion of institutional reflexivity as characterizing contemporary institutions, the author outlines the idea of “reflexive objectivity” in law.
Lidia Rodak (5) continues the discussion on what kind of objectivity is suitable for law. Through her analysis of debates from the different schools of Feminist Jurisprudence on the limitations of essentialist and anti-essentialism positions, she proposes “essentialism of a kind” as the ideal model for objectivity of law. Such a position recognises the role of subjectivity in protecting the rights of citizens, while admitting that law necessarily needs “objectivity of a kind”. The next group of papers addresses the question of how, if at all, it is possible to apply objectivity in practical legal discourse. The authors investigate the internal procedures and mechanisms of practical legal discourse to trace the involvement of human agency in legal objectivity. This debate is divided in four discussions, from analytical, philosophical and empirical, and historical perspectives, providing a full interdisciplinary picture of legal objectivity.
Marcin Pieniążek, (6.) comments on Paul Ricœur’s theory of semantic autonomy of texts and the perspective of the legislator. The objective meaning of legal texts is, inter alia, of deep interest for the jurisprudence in the context of both the interpretation and the application of law. Pieniążek proposes Ricœur’s views as the foundation for “the third way” of thinking about the objectivity of legal texts. The author manages to interpret semantic autonomy as a form of understanding the objectivity of legal texts, whilst retaining their autonomy in the context of the legislator’s intention and still conforming to the hermeneutical model of the application of law. ← 10 | 11 →
Taking a philosophical perspective, Pietro Denaro (3) continues the discussion on human agency involved in legal discourse by sketching out the key arguments for defending a theory whereby both actions and omissions have a causal role. In the first part of his essay, he criticizes those views which deny the causal role of omissions. In the second part, he presents a rapid overview of some of the problems relating to metaphysical objectivity in theories of human agency in order to affirm that we do make a difference by omitting as well as by acting.
Finally, Jaqueline Sena (7), discusses the possibility of neutrality in legal science and judicial activity by reviewing the works of Luis Alberto Warat. She postulates that neutrality is not possible within a judicial activity, making reference to contemporary democracies that have lost their power to represent the people. Her conclusion is that the idea of neutrality of judges is nothing more than a harmful fiction.
Papers in the historical perspective section discuss whether historical and architectural perspectives could provide a justification for current judicial procedures.
Cosmin Sebastian Cercel (8) explores the dark partnership between authoritarianism and law. His paper aims to further complicate the articulate the question of objectivity within legal and historical discourse by exploring the theoretical intricacies raised by the historiography of totalitarianism. His focus is on the ambiguous status of law within authoritarian settings, one marked by thorough complicity between ideology and “legal” normativity. The paper addresses three core questions, namely: the role of the theory of totalitarianism in historical and memorial discourses in structuring the law within authoritarian contexts; the historiographical and jurisprudential implications of examining the past through the chosen framework; and the construction of meaning through a historical recollection marked by the paradox of evil law. By underlining the pivotal role of the theory of totalitarianism in politics for representing the past, he attempts, through a genealogical reading informed by the works of Giorgio Agamben and Lacan’s psychoanalysis, to explore the potentialities of a different rendering of totalitarian law as part of legal modernity. In this way, the author critically examines the limits of representation of law and totalitarianism in both historiographical and jurisprudential settings.
David Marrani (9) focuses on the institution of the “Palaces of Justice”. Empirical evidence shows that there is a link between the architecture of the courts of justice and respect for the law. Court architecture may influence the efficiency of the law in terms of individual case resolution, which in turn has an impact on the cohesion of society. Law courts operate like microcosms of social organisation In the past, the myth of authority was represented by neoclassical architecture in civil law countries, such as France, or Gothic revival architecture in common law countries, such as the UK; the “palaces of justice”. In more recent years, we have ← 11 | 12 → witnessed a radical shift in courthouse design with wide scale use of glass. The use of transparency, or what the author terms the new opacity, can be seen as in tune with postmodern idea of objectivity as an empty form. This fascinating article studies the relation between the architecture of the courts and types of objectivity.
The empirical debate reflects on how procedural objectivity affects the decision process in current legal practice.
Vito Breda (10) reports on the results of his hermeneutical research project entitled “Objectivity in UK Judicial Discourse”. The research focuses on mapping out the cluster of interpretations of objectivity (and arguments derived there from) made by common law judges in the UK, with a particular emphasis on judgements made by the House of Lords and the UK Supreme Court.
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- 2015 (December)
- Legal Reasoning epistemological perspective Cartesian paradigm of objectivity
- Frankfurt am Main, Berlin, Bern, Bruxelles, New York, Oxford, Wien, 2016. 252 pp.