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Diverse Narratives of Legal Objectivity

An Interdisciplinary Perspective

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Edited By Vito Breda and Lidia Rodak

This volume presents a collection of essays on objectivity in legal discourse. Has law a distinctive type of objectivity? Is there one specific type of legal objectivity or many, depending on the observatory language utilized? Is objectivity fit for law? The analyses in the various contributions show that the Cartesian paradigm of objectivity is not relevant to the current legal discourse, and new forms of legal objectivity are revealed instead. Each essay, in its distinctive way, analyses the strong commitment of law to objectivity, shedding light on the controversies that surround it.
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Maciej Pichlak - 4. Objectivity and Institutional Reflexivity in Law

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Maciej Pichlak

University of Wrocław, Poland

4. Objectivity and Institutional Reflexivity in Law

1. Introduction

The aim of the paper is to explain how and what kind of objectivity is possible within law. The explanation is greatly needed as the discrepancy between the presence of the idea of objectivity in practice and the difficulties with its theoretical justification is easily noticeable. Hence, the proceeding considerations try to recommend and slightly reformulate one of the existing methodological approaches to this problem. I will concentrate on the institutional approach, which, in my opinion, addresses this issue most accurately.

The starting point of this essay is the observation of the breakdown of a Cartesian view on objectivity in law. By the Cartesian view I understand the perspective based on a strict distinction between the subject (cogito) and the object (res cogitata) of cognition. It is fairly clear that after all the skeptical lessons jurisprudence has taken, it is virtually impossible to describe relations between the law and the lawyer using Cartesian language. Thus, legal judgments1 cannot be objective in the strong sense of this term.

Having chosen the post-Cartesian starting point, I am not going to look back. The majority of reasons for the impossibility of ‘strong objectivity’ are well-known and there is no need to discuss them here. Nearly twenty years ago, Jules Coleman and Brian Leiter in their inspiring essay2 persuasively highlighted some of those...

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