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A Post-Analytical Approach to Philosophy and Theory of Law

by Andrzej Bator (Volume editor) Zbigniew Pulka (Volume editor) Jan Burzyński (Editor and translator)
Edited Collection 194 Pages

Summary

Post-analytical philosophy of law departs from the traditional view which considers philosophical cognition merely as a sense-making and optimizing activity. It also questions the apparently universal and objective character of the theorems put forward by existing analytical philosophy. Just like every scientific trend whose name is supplemented with the "post" prefix, it does not break with its past, but rather seeks to critically revisit its established achievements. The main goal of post-analytical philosophy is no longer to impose a conceptual structure upon chaos in the realm of legal and political phenomena. Rather, it seeks to deconstruct the analytical, both philosophical and legal, narrative to expose it as a collection of schemes which oversimplify – if not mystify – the legal and political reality. This kind of diagnosis paves the way towards the construction of a positive program of post-analytical philosophy of law, which the focus of this book.

Table Of Contents

  • Cover
  • Title Page
  • Copyright Page
  • About the editors
  • About the book
  • Citability of the eBook
  • Contents
  • Introduction
  • Post-Analytical Theory and Philosophy of Law. New Problems, New Research Perspectives?
  • Hermeneutic Universalism: A Post-Analytical Inquiry into the Political of Legal Interpretation
  • The Concept of Law in the Analytical and Post-Analytical Theory
  • Philosophical Premises of the Concept of Systemness of Law in Jerzy Wróblewski’s Theory of Interpretation
  • Towards Post-Analytical Theory of Law. On the Consequences of Richard Rorty’s Metaphilosophy
  • Legal Culture as Praxis: Towards Interactionalism
  • Is It the End of the Theory of Law? A View from the Polish Perspective
  • Postanalytical Challenges to Legal Education in Poland
  • Law After the Death of God. Jurisprudence and Some Assertions of the Contemporary Philosophy

Andrzej Bator and Zbigniew Pulka

Introduction

In the Western tradition, the primary function of philosophical cognition was to optimize the perception of an object by proving it to be a carrier of a specific order. Within the philosophical realm, the analytical current was the most far-reaching attempt to tame the chaos of ideological frenzy of the 20th century, or at least to distance oneself from this chaos. Neo-positivism reduced philosophy to the logical analysis of academic language. Within the philosophy of law, an attempt to seek order in legal and political phenomena was the analytical philosophy of law, which reduces the academic image of law to the logical and linguistic dimensions. There is a definite correlation between neo-positivism and the analytical philosophy of law, at least when considering Polish theory and philosophy of law. The post-analytical approach is a critical response to the idea of order introduced into the language of science by the analytical tradition. It does not in extenso undermine the principles and claims of analytical philosophy, but instead seeks to relativize it, bringing the logocentric image of language reality, as founded by analytical philosophy, to one of the available scientific discourses. Post-analytical philosophy does not, therefore, negate the existing practices of language sciences, but rather thrives on their critique. It urges to broaden the field and perspectives of academic perception. As any research current of the “post” type, the post-analytical approach also cannot exist without ideas founded on its own tradition.

The post-analytical vein of the philosophy of law separates itself from the tradition of philosophical cognition in its purely sense-making and optimizing activity. Its main goal is not to tame or introduce order into the chaos of legal and political sphere, but rather to deconstruct the philosophical and legal analytical narration by showing that it is a collection of simplifications, which in consequence partly mystify the legal and political reality. The chief goal of the post-analytical philosophy of law is to challenge the universal and objective character of the notions of the analytical philosophy. These will be related both to the picture of legal phenomena and process of cognition of law.

One of the fundamental myths undermined by the post-analytical philosophy of law is the myth of the legal system. It may be found in the ontological variant, which assumes that a systemness is a necessary property of law and therefore law exists as an ordered collection of norms, perceived as utterances. An ←7 | 8→epistemological version will entail an assumption of systemic character of law, which is deemed necessary in the process of cognizing law. In postanalytical thinking, logocentric picture of the system of law as an ordered whole is replaced with the vision of law as an agonistic social practice that manifests itself in asystemic or desystemized legal regulations. The undermining of the assumption of systemic character of law goes hand in hand with the questioning of its systemic binding force which entails that the binding effect of one norm is the result of the existence of another, related, binding norm. As a consequence, there also falls the myth of the limits of law defined by the notion of systemic binding force. In the post-analytical picture of law as a dynamic praxis, borders between legal and non-legal phenomena become blurred. Specifically, the political character of law and its ideological sense are exposed. Law as a social praxis, entangled into the game of conflicting political interests, ceases to be perceived as rational entity, that is, one that fulfils the criteria of instrumental or communicational rationality. According to the post-analytical thinking, the myth of a rational lawmaker as the creator of law is therefore undermined. It is also hard to maintain taking into account the ongoing globalization of legal and political reality, where informal and supranational normative rules become dominant, as exemplifies, for example, the corporation law. In the conditions of a dominating normative order being established outside of any democratic control, the category of individual rights attains a mythological sense.

In turn, in the epistemological dimension, the post-analytical reflection undermines the myth of the analytical method as legal cognition free of evaluation. Demystification of the analytical method refers to both the reconstructionist and descriptivist variants of the study of language. A critical approach to traditional legal analyses reveals that legal phenomena are axiologically entangled also in the language dimension. When the theory of legal interpretation is considered as a method of legal cognition, the breaking of the myth of the analytical method takes the form of rejecting the concept of statutory interpretation as an act of cognition. Such an act would, when employing a set of commonly accepted interpretational directives, arrive at the same result: an objectively existing meaning of a legal text. The post-analytical reflection leans towards hermeneutic concepts of interpretation which relativize the results of interpretation by taking into account the context of a given interpretative community. In the epistemological dimension, this equals hermeneutic universalism or “paninterpretationalism,” in which the opposition of the subject and object of cognition, deeply exposed by the analytical philosophy, vanishes. The post-analytical vision of law entails that philosophical reflection results in the emergence of space, in which a number of idiosyncratic images of legal phenomena ←8 | 9→exist, relativized to the perspective of the person cognizing law. In consequence, the post-analytical philosophy of law also undermines the postulate of creating a single image of legal phenomena, that would be equipped with value of scientific character and universality.

Philosophers in the post-analytical vein have never formed an integrated academic school. They were bound by the common way of thinking, even if it was delivered independently by each of them, constructed on the conviction about the autonomy of humanistic and social sciences. This may be called an anti-naturalistic attitude. However, the extent of critical involvement of individual philosophers in the existing ways of practicing science varied. It ranged from a cautious critique of the previously dominating analytical traditions to a more radical questioning of the fundamental assumptions of these traditions – which is evident in the postmodern approach or the area of Critical Legal Studies in case of law education. The range of variety also is evident in the texts from this book. The reader will find texts related to the fundamental theses of analytical philosophy itself, its criticism, evaluations of the leading theses of the post-analytical philosophy with attempts of application to the theory and philosophy of law, as well as fragments on selected issues of jurisprudence. Moreover, criticism of the individual authors towards the analytical tradition and, consequently, their writing style varies, at times reaching even towards the postmodernist manner of argumentation.

The authors of all the texts from this book are professors or PhD candidates at the Department of Theory and Philosophy of Law at the University of Wrocław and represent a spectrum of academic generations.

We would like to express our gratitude to Wydawnictwo Uniwersytetu Wrocławskiego for their agreement to reproduce some of the texts contained within this book.1

Andrzej Bator, Zbigniew Pulka
Wrocław, December 1, 2017

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1 The agreement covers fragments of text published in Czy koniec teorii prawa (P. Jabłoński, ed.) in the series “Prawo,” No. CCCXII, Wydawnictwo Uniwersytetu Wrocławskiego, Wrocław 2011; Postanalityczna filozofia prawa (M. Jabłoński and M. Paździora, eds.), “Przegląd Prawa i Administracji” No. CII, Wydawnictwo Uniwersytetu Wrocławskiego, Wrocław 2015; and Systemowość prawa (Z. Pulka, ed.), “Przegląd Prawa i Administracji” No. CIV, Wydawnictwo Uniwersytetu Wrocławskiego, Wrocław 2016.

Andrzej Bator

Post-Analytical Theory and Philosophy of Law. New Problems, New Research Perspectives?

1 Introduction

In the beginning, I would like to offer a few remarks about the title of this chapter, as well as about the goal of the deliberations articulated in the subtitle. The post-analytical idea itself is a notion that provokes doubt,1 especially if used in the context of the philosophy of law. It is a relatively new notion and not yet grounded in general jurisprudence. The doubt arrives already with an attempt to place law research in the post-analytical perspective either on the side of theory of law and philosophy of law. Traditionally, the problem of the analytical character of law was located unambiguously in the area of the theory of law, even when its roots may be traced back to “analytical philosophy.” It turned out, therefore, that not all “philosophy” needs to be speculative and this certainly is not true of analytical philosophy. The term “analytical philosophy” seemed to have been reserved to the general reflections on language. When applied to law or jurisprudence as a detailed discipline it was usually perceived a “theory.” It was accordant with the rule of “analytical philosophy” as a general discipline that cooperates with various specialized sciences, while employing and establishing its own universal rules of research methodology. In jurisprudence, there seemed to be no place for a “particular” philosophy, so the name of the discipline contained a clearly dominant “analytical theory of law.”2 However, the post-analytical approach breaks the established rule of separating “philosophy” from “theory” in the study of language. It is naturally distrustful towards divisions and distinctions of notions. However, in the situation led by post-analytical caution, it was decided that the title of this work ought not to omit the word “philosophy.”

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The question mark at the end of the title of this chapter reveals yet another doubt, about what we wish to call a “post-analytical” theory and philosophy of law and whether it bears the ability to articulate new notions in jurisprudence. In my opinion, it does. This text will try to prove that the application of the post-analytical notion to a category of general jurisprudence makes sense and may be applied to name cognitively serious problems. Such situations may otherwise disable the possibility of adequate consideration of the traditional analytical philosophy. Problems generated by the language as offered by the post-analytical approach are, however, not new to the contemporary theory and philosophy of law. Cognitive value of this scientific approach is reduced, in my opinion, not so much by the fact that something new can be “discovered” using this approach, but rather because it allows to articulate and order the opinions and positions largely already present in different scientific concepts and research, even if they are separated. The common front of disputing the logocentric tradition of analytical philosophy – also frequently authenticated by the “analytical” biographies of leading “post-analytical philosophers” – seems to bind this loose milieu. Undoubtedly, already the common name for a defined group of opinions and attitudes strengthens and legitimizes specific research and non-research practice, allowing to identify it as something that is recognized and accepted by the milieu. As each “post,” however critical of its source current, may not live without the current it seeks to criticize. Each “post” broadens the perspective of the reader and sensitizes them to the phenomena that were unavailable in its traditional form, but it does not seek to undermine the achievements of its original current, with some exceptions. It rather strives to relativize the achievements, showing their overt claims and the tendency to monopolize the existing scholar consciousness.

Biographical notes

Andrzej Bator (Volume editor) Zbigniew Pulka (Volume editor) Jan Burzyński (Editor and translator)

Andrzej Bator is Professor at the University of Wroclaw and Head of the Department of Theory and Philosophy of Law. In his research, he deals with the problems of analytical theory of law. He has published on the use of a legal norm in the regulation of economic relations, competence in law and jurisprudence, as well as legal theory and philosophy of law. Zbigniew Pulka is Professor at the University of Wroclaw. After graduating in law in 1977, he has been employed at the University of Wroclaw in the Department of Theory and Philosophy of Law. His main research interests include the concept of the system of law, epistemology of law and methodology of jurisprudence. He is a member of the International Association for the Philosophy of Law and Social Philosophy (IVR) and the Animal Rights Association.

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Title: A Post-Analytical Approach to Philosophy and Theory of Law