Revue
de la B.P.C. THÈMES I/2014
http://www.philosophiedudroit.org
accueil mise en ligne le 2 avril 2014
_________________________________________________________
Jose
Ortega y Gasset’s legacy in the XXth century legal philosophy
On
the cultural dimension of the law
par
Aymeric d’Alton*
Table of contents
I.
Introduction
………………………………………………………………………………..….3
A.
Possible
interpretation of the naturalistic fallacy argument…………………………………....4
1.
Naturalistic
fallacy argument and rationalism………………………………………………....5
2.
Naturalistic
fallacy argument and culturalism…………………………………………….…...6
B.
The Orteguian
legacy……………………………………………………………………...…...7
1.
Bridging
both interpretations of the naturalistic fallacy argument…………………………….8
2.
The
notion of culture at the basis of the legal system………………………………………….9
II.
The legal environment
………………………………………………………………………..10
A.
Legal formalism and
the denial of the cultural dimension …………………………………...11
1.
The
Philosophical origins: modern idealism………………………………………………..….13
2.
Hans
Kelsen’s pure theory of law and the purely intellectual origin of the grundnorm…………………………………………………………………….………………14
a. Law and Normativity…………………………………………………….………………..….14
b. Law and Efficacy………………………………………………………………………….....16
c.
Inherent contradictions to Kelsen’s Pure Theory of Law………………………………..…...16
B.
Legal relativism and
the recovery of the cultural dimension…………………………………17
1.
Philosophical
origins: Wilhelm Dilthey’s fundamental distinction between Naturwissenschaften
and Geistwissenschaften……………………………………………………………………….…18
2.
Consequences
of Dilthey’s Distinction………………………………………………………21
3.
Relativism:
the development of the cultural dimension of the law………………………….22
III.
Ortega y Gasset’s
import…………………………………………………………..………...25
A.
The “I” and his
circumstance…………………………………………………….….……….28
1.
The
nobleman…………………………………………………………………………..…....28
2.
The
average man of the mass……………………………………………………..………....30
B.
The estimative as
valuation principle…………………………………………….………….30
1.
Values as
fundamental standards………………………………………………….………..30
2.
Value and
estimative………………………………………………………………….….…34
IV.
Ortega y Gasset’s
legacy – the legal philosophy of Recasens-Siches and
Reale………………………………………………………………………………………...34
A.
The rule of law as
an intentional object………………………………………………….….35
1.
The norm
as objectified form of human life……………………………………….……..…35
2.
The
cultural dimension of the rule of law…………………………………………….….…38
B.
The tridimensional
legal theory: the dialectical articulation between the facts, the values and
the norm………………………………………………………………………………………...40
1.
The
implication of the facts…………………………………………………….…………..41
2.
The
implication of values…………………………………………………………..…….…43
a.
Necessary
prerequisite for the axiological content of the tridimensional theory of
law…………………………………………………………………………………….…....44
b.
The
Hierarchy of values…………………………………………………………….……...46
3.
The
implication of the norms or the realization of values…………………….…………....48
C.
Rule of law and
philosophy of history…………………………………………..………...50
1.
Transpersonalism
and the denial of the human person dignity…………………….….......52
2.
Personalism
and dignity of the human person………………………………………….…53
Bibliography of books used for the present
thesis……………………………………..….54
I.
Introduction – recovering
the cultural dimension of the law
Many doubts may be
addressed to the attempt of introducing Jose Ortega y Gasset’s striving into
the complex streams haunting the history of contemporary legal philosophy. The
most serious and challenging argument addressed to such an attempt might be,
that Ortega y Gasset never focused on legal studies, so that his thought might
not be relevant in defining the rule of law[1]. An authoritative argument may address the
assumption: Ortega y Gasset truly used to study philosophy; however, his
students developed what could have been Ortega’s legal philosophy. Luis
Recasens-Siches, Luis Legaz y Lacambra[2] were Ortega’s students, it
can even be argued that they truthfully applied Ortega’s metaphysical analysis
in their own legal philosophical studies[3].
Recasens-Siches, to a
certain extent, Reale[4], inherited Ortega’s
insights. Furthermore and interestingly, they not only developed Ortega’s
seminal insights but faced the same issues in the legal field as well. Whereas
Ortega y Gasset tried to overcome neokantian idealism, his students were
trained by Hans Kelsen, whose tantamount legal theory was the most perfect
idealistic legal system ever developed within the European legal culture[5].
The present topic therefore implies a context, (neokantianism) a
critical tool (Ortega y Gasset) directed toward such a context and an outcome,
the legal dimension of which deserves to be carefully recovered through a sound
development of Recasens-Siches and Reale’s surveys.
The context implied in
that study is related, directly or indirectly, to the legal translation of
Kantianism[6]. Furthermore, this
Kantianist context necessary refers to the naturalistic fallacy argument to
which all post Kantianist thinkers comply with consciously or not. Therefore,
being post Kantian, Ortega y Gasset, interestingly carried on that argument.
However, it may be assumed that Ortega’s developments would not have been
possible if some ambiguity did not undermine the naturalistic fallacy argument,
the empiricist origins of which may not be underestimated.
A. The
possible interpretations of the naturalistic fallacy argument
No “ought be” can be
inferred from the is” – Such an assertion decisively framed the contemporary
surveys in legal philosophy. Its interpretation is twofold.
This interpretation is implicitly suggested by Luis
Recasens-Siches[7].
On the one hand, would values be deduced by means of formal
logic, then the naturalistic fallacy argument would reduce the rule of law to
its most rationalistic form of expression. Contemporary Neokantianist legal
philosophies and, more recently, new American natural law theories are the
typical illustration of that argument.
On the other hand, if reality cannot be identified with the
unity of the being, singular things still remain the object of human
experience. If no universal moral principle can be inferred from the being
anymore, some sort of intuitive and sensitive experience may exist, out of the
rational scope, to grant the existence of the moral experience underlying any
legal system. Contemporary partisans of the naturalistic argument have never
really addressed such an on-going experience.
Nevertheless it still
remains a key issue in order to understand human actions. Such an experience
does not deny the impact of reason and logic over the rule of law. The logic of
the rational is substituted by the logic of the reasonable which enriches the
legal experience of the recovery of the emotional experience and the action of
sympathy[8].
The growing up of such an
empirical experience has always been the weakness of the naturalistic fallacy
argument. The naturalistic fallacy argument has never paid attention to the
possible recovery of both the emotional experience and, within that experience,
the experience of sympathy at the origin of the rule of law. Therefore, it can
be said that the broader the scope of reason over the definition of the rule of
law, the weaker the scope of experience, the less essential is the attention
paid to the cultural dimension of the rule of law (See Part 1). The stronger such an experience is in order to define
the rule of law, the weaker the latent rationalism influence over the
conception of the law, the more essential cultural dimension of the rule of law
(See Part 2).
1. Naturalistic
fallacy argument and rationalism
According to the
naturalistic fallacy arguments, only individual things are real and grasped by
the mind by means of a very narrow and limited sensitive knowledge exclusively.
Since individual things only are the object of a very limited act of knowledge,
then no universal legal norm can be inferred from these individual realities.
Any universal norm, if any, is the outcome of a rationalistic reasoning. Legal
Kantianism based on Marburg’s Kantianism[9] and Kelsen’s pure theory
of norm[10], both denying or limiting
the scope of experience, are deeply rooted in that argument.
Kelsen’s Pure Theory of
law is the strongest illustration of abstract normativism, which is
characterized by the denial of the cultural dimension of the law. The structure
of the rule of law is limited to a formal duality of norm and efficacy, so that
no norms can be inferred from the facts, because the Norms oppose to the facts.
2. Naturalistic
fallacy argument and culturalism
From the idealist
standpoint, when it is said that no
“ought to be” can be inferred from an “is”, it is meant that no universal
principle can be abstracted from a reality made of singular things. The Fact is
not based on nature anymore and happens to be gathering of thing by means of a
valuation judgment. Such is the necessary background of the notion of fact.
Among those facts, Man is expected to find some orientation in a disoriented
and unstable world. In the meantime, if the mind is taking part to the
construction of the fact, all the activity of the mind, including sensitive
knowledge and sympathy are taking part to that construction.
Moreover beyond the
sensations, the sympathy and the emotional related to some fundamental
principles of human life human life shared and respected as gathering each
individual may offer a more fundamental and spiritual basis in order to achieve
some values than the natural basis. Such is the fundamental commitment toward
cultural reality. Interestingly enough, legal Kantianism from the Baden’s
School[11] took that cultural
dimension into account without referring to the empiricist side of the
naturalistic fallacy argument. Such a reference would have made possible the
recovery of experience to mitigate the overwhelming presence of reason.
Nevertheless, Concrete
normativism and the development of the cultural dimension of the law would not
have been possible without the Neokantian account of the Baden’s school[12].
The formulation of concrete normativism is at the crossroad of
two fundamental trends which may be described in this way:
In a first step, Kelsen’s normativism is assimilated by
Recasens-Siches and Miguel Reale.
In a second step, Ortega y
Gasset’s metaphysical commitment towards culture and value is assimilated by
both legal thinkers. Such an assimilation has remained the key argument to
overcome legal idealism in general and Kelsen’s normativism specifically.
In a third step, the rule
of law has been defined as a cultural synthesis of three dialectically
articulated features: Facts, value, and norms[13]. The orteguian legacy is
the special trend in legal philosophy which achieves to articulate these
feature.
B. The
Orteguian legacy
Such a legacy does not
deny any value to rationality; nevertheless, rational logic does not exhaust
the content the law, and the Orteguian thinkers strived to recover the
existence of the logic of reasonableness[14], which restitutes its
cultural dimension to the law. In order to achieve that task, Ortega y Gasset
tried to bridge reason and experience (Part
1) and recover the cultural dimension in Man’s activity (Part 2).
1. Bridging
both interpretations of the naturalistic fallacy argument
The Orteguian legacy has
had to face the issue of bridging experience of individual realities, reason
and values in a coherent synthesis, the aim of which was to fix the efficacy of
the rule of law, its axiological justification and its normative dimension.
According to Ortega y Gasset, Man is looking for a fundamental
orientation[15],
is responsible for a destiny he cannot afford to give up to an ontological
force. Relying on his own force, humanism is responsible for defining the
values which may guide and orient its action.
Ortega y Gasset precisely
takes into account the fundamental disorientation of the human being and tried
to recover the fundamental belief according to which Humanism can afford to
give a basis to culture.
However, in order to achieve that task, Man must get a rid of
modern rationalism. Reason cannot exhaust the whole of humanism as the idealism
would like us to believe
Moreover, Man must get a rid of the illusion of Irrationalism,
pure Vitalism and sensualism, since they cannot legitimately exhaust humanism.
Furthermore and on the one
hand, Ortega y Gasset argues for the fundamental belief that the recovery of
the pre-modern ontology, focusing on human nature, is impossible. Following
that path, even if he has paid attention to the content of natural law,
Recasens-Siches will never argue for the recovery of the natural law tradition
to justify the existence of positive law[16].
On the other hand Ortega y Gasset argues that the recovery of
the platonist conception of ideas are not consistent with the variable
dimension of values within the cultural dimension[17].
2. The
notion of culture at the basis of the legal system
Even if the being is not
the fundamental issue of contemporary thought, reality, towards which the mind
directs its attention, remains the fundamental environment of human action.
Even if the value cannot be understood as classical platonistic
form, nor as the fruitful outcome of reasoning, it remains a fundamental belief
according to which man orient its self through reality. Culture precisely is
the act of fundamental orientation of man within reality[18].
The legal system, which is an act of fundamental orientation of
man to achieve justice, is an act of orientation within reality. Therefore, any
legal system has a cultural dimension whether it likes it or not.
The present paper will precisely demonstrate that the cultural
dimension is such a dimension of the identity of any legal system as its
existence cannot be denied unless the existence of the legal system itself is
denied.
Since the recovery of the
notion of culture within the boundaries of human existence has been the great
task assigned to Ortega y Gasset, it is not surprising to pay attention to its
legacy over a generation of legal philosophers. The paper will focus on two of
them. Luis Recasens-Siches and Miguel Real, whose early writings focused on
neokantianism, achieved to overtake their initial posture to argue for the
cultural dimension of the legal system in light of Ortega y Gasset’s thought.
Therefore, before any introduction to Ortega y Gasset’s thought (Part III), a general outlook over the
influence of neokantianism in legal philosophy must be made (Part II). The Orteguian legacy over
the contemporary legal philosophy will overcome neokantianism in light of the
Orteguian import (Part IV).
II.
The legal environment
As there is a philosophia
perennis standpoint referring to the persistent issues occurring in philosophy,
there are some persistent and ongoing issues occurring in the tradition of
legal philosophy. Among these issues, the cultural dimension has always been
implied in the development of the rule of law.
Some Historical and comparative insights give a strong evidence
of such a persistent issue.
In a first step the recovery of Ancient debates, within the
boundaries of the classical roman law, distinguishes the Proculian school
(logic and grammar of the regula),
which was a formalistic trend which
strongly argue to understand law as a science, and the Sabinian school
(tradition and nature of things through a definitio)
which was a realistic trend arguing
for the understanding of the law as an art and focusing on the social origin of
the rule of law[19].
In a second step, the recovery of the medieval debates
distinguishes the Mos italicus, an
interpretativist trend which argued for the development of a free
interpretation of the roman Corpus Iuris civil and creation of the Ius commune,
from the Mos gallicusm, a scientific trend which argued for the recovery of the
authentic content of the Corpus Iuris Civilis in order to demonstrate the
autonomous development of the Ius Commune and the relativity of Roman law in
order to support the development of the scientific conception of law epitomized
by the civil law[20].
These historical steps
eventually framed the contemporary debates, since these debates have focused on
the scientific objectivity of the rule of law.
On the one hand a scientific conception of the law would deprive
the law from any altering content such as values or facts. Moreover, such a
scientist conception would argue for the logical ordering of the law according
to rational and logical principles: all scientific principles implied in the
law would then have their most explicit achievement in the strife for
codification[21].
On the other hand, a humanistic conception of the law would be
preoccupied with the a-logical aspect of the law. The a logical dimension of
the law was the main object of survey suddenly sought in the relation between
Law and sociology in light of the seminal outlooks of Hermann Kantorowicz[22] and Eugen Ehrlich[23]. According to that stand
point, the rule of law is implied in social reality and may rely on some values
judgment.
A general outlook on these distinctions may suggest that the
definition of the rule of law cannot be limited to a formalistic approach which
would further it away from its social efficacy (See part A). Reversely, each
formalistic interpretation of the rule law has used to being addressed by some
renewed approaches. Such an historical fact reveals the permeability of the
rule of law to the experience of reality, whatever it is, and especially to
that kind of living experience which overcomes any restricting forms and
illustrates a rhythm of “incessant metapmorphosis”[24] (see Part B).
A. Legal
Formalism and the denial of the cultural dimension of the law
Legal formalism reduces
the existence of any legal system to its conceptual framework and assumes that
the existence of such a conceptual framework is the outcome of a purely
rational reasoning.
If the legal system always consists in a conceptual framework,
then it is consistent with conceptualism to say that such a system denies any
corrupting content which might interfere in its enforcement. That conceptualism
has found in the Marburg School and the Kelsenian normativism its most perfect
formulation[25].
Interestingly enough, given that the existence of a legal system
depends on its purely conceptual framework, it is no use referring to any
valuable content. Values may have an important dimension; nevertheless,
deprived of any rational content, they are not consistent with a legal system,
the concern of which is exclusively dedicated to the scientific validity of the
legal norms.
Such an outcome deserves
to be carefully developed to grasp Ortega y Gasset’s philosophy and its legacy
over the contemporary legal philosophy. The origins of conceptualism may not be
ignored since, Ortega himself and, later, Recasens-Siches and Reale, will
explicitly overcome such a legal dead end[26]. All of them were deeply
aware of the consequences of modern idealism, all were especially aware of the
incommensurable power consented to human reason on the one hand, of the deep
weakness of human reason when it has to deal with its environment on the other
hand.
The present part will
focus on that desperate attempt of human reason to reduce the legal system to a
conceptual framework and will develop the inherent contradictions which
appeared within the scope of such a theory.
Such a development will pay attention to the philosophical
origin and the arguments made by the school of Marburg (Part 1) in order to give a general outlook of Hans Kelsen’s pure
theory of norm (Part 2) which still
remains nowadays the most extreme and radical form of legal conceptualism ever
reached in legal theory.
1.Philosophical
origins : modern idealism
A brief outlook of the
content of modern idealism may soundly introduce to the contemporary
understanding of the objectivity of the law, the framework of which is mainly
subjective, and dedicated to a scientific account of the law.
The History of philosophy opposes the via antiqua to the via
moderna[27]. From the standpoint of
the via antiqua, the categories of knowledge was inferred from the order of
things. The via moderna turned that standpoint upside down, so that the order
of things is deduced from the activity of the mind and imputed to the things.
Kantianism and neo Kantianism belong to that philosophical tradition. According
to the via moderna, the universality of categories cannot be inferred from
reality, since reality is nothing but a gathering of singularities. It argues
for the supremacy of the mind over the things, so that the order of things is
shaped by the categories of the mind. Such is the position as Neokantianism.
More precisely and in
light of the via moderna, legal idealism focuses on the activity of the mind.
Any foundation of any legal system must at least find its ground in the
intellectual activity, in the activity of the mind and get a rid of any
substantial import of reality within the scope of the legal system.
Since the value of justice depends on the activity of the mind,
the objectivity of justice is related to its conceptual and rational dimension,
the more rational it is, the more objective. At last, the universality of
justice remains within the scope of human inter-subjectivity.
Within the scope of legal
idealism, there has been existed a classical claim arguing for a scientific
conception of the law. That claim must be carefully understood in light of the
distinction made between the via antiqua and the via moderna briefly explained
above. The quest for a scientific conception of the law has always been the aim
of contemporary legal studies. However, no conception was closer to this aim
than the neokantian one.
When Reason is erected at the basis of the existence of any
category of knowledge, the category of justice become an emanation of reason, a
pure logical category, the validity of which depends on the single activity of the mind. The scientific and
objective dimension of the law, depending on the activity of reason, is not
only based on on a conceptual and formalistic scheme, but on the activity of
the mind as well.
Such a shift must be
clearly understood. Accross history, the claim for a scientific dimension of
the law was limited to the distinction between the ius commune and the civil
law. The framework of the Ius Commune tradition depended on the mechanism of
inference of legal principles – definitio
– from precedents. Any standard was induced from precedents one according to
some reasoning principles of presupposition-implication. The civil law
tradition was interested in organizing the rule – regula – according to the scheme of reason by means of a system of
codification[28].
Given that Kelsen always considered his theory as a scientific account of the
law, it is not irrelevant to point out that his theory is, to a certain extent,
the most perfect form of legal idealism and the greatest formalist outcome of
the civil tradition in general.
That standpoint is
decisive, in light of the diffusion of Ortega’s thought among the Latin
American legal philosophers such as Recasens-Siches and Miguel Reale. If both
contributed, in a way or another, to promote legal idealism epitomized in
kelsen’s pure theory of law[29], both also explicitly
challenged legal idealism, specifically its subjectivist tendency, in arguing
that no legal framework would be possible if it did not refer to some living
foundations.
2.Hans Kelsen’s pure theory
of law and the purely intellectual origin of the “grundnorm”
Hans Kelsen’s thought
cannot be understood without referring to the school of Marburg’s neo
Kantianism[30].
This trend of Neokantianism deserves a special mention, since it
is specifically targeted by Ortega y Gasset when he questions the excesses of
rationalism in philosophy. Besides, Kelsen exerted a strong influence over
South-American Legal Philosophy: Recasens-Sichez and Reale’s legal philosophies
cannot be understood without a sharp attention to the Kelsenian attempts.
Precisely
because the kelsenian normativism is a very strong form of legal formalism,
Recasens-Siches and Reale found in Ortega y Gasset’s ratiovitalism a means to
integrate kelsenian normativism in a more embracing and concrete form of
normativism.
a. Law and
Normativity
Kelsenian normativity implies a set of
principles which actually frames the law according to a scientific standpoint.
Any science, including the law is framed analogously to the law of nature and,
deprived of any content, complies with the law of rational and syllogistic
necessity.
The fundamental norm is intelligible as
long as it is thought by the mind as a pure “sollen”, that is a pure duty to
act legally. it may be identified to the activity of the mind or to the Kantian
“intellectus archetypus” [31] and exists as long as the
mind reflects on its own activity. The fundamental norm is therefore the
outcome of the reflection of the mind over its own activity.
Furthermore, the existence of the norm
depends on its pure rationality. The Grundnorm
may be considered as the principle of any legal system as long as it is
continuously thought by the mind, as long as the mind keeps on thinking over
its own activity. To be thought as fundamental, the Grundnorm has to be the single legal object of such a fundamental
reflection[32],
so that any subsequent norm has a legal existence as long as it participates to
the purity of the fundamental norm, as long as it is figured by the mind.
b. Law and
efficacy
Given the purety of the fundamental
norm, the legal system develops itself according to the implementation of the
fundamental norm by means of some subsequent and hierarchically organized
norms.
Any
special norm depends on a special fact, so that factuality contributes to the
efficacy of the fundamental norm and contributes to the special development of
the fundamental norm into special norms.
c. Inherent
contradiction of Kelsen’s pure theory of law
However, when the fundamental norm
becomes factually efficient, it loses its purity. If the fundamental norm loses
its purity because of its relation to factuality, therefore the fundamental
norm does not exist as an object of thought anymore. Furthermore if the
fundamental norm does not exist as object of thoughts anymore, the legal system
should not exist anymore unless its existence eventually depends on factuality.
The irrational content of the fact support the development of the fundamental
norm through a legal system. However, the legal system depending on an
irrational and impure background loses its intelligibility. Paradoxically, the
legal system disappears as long as the fundamental norm tends to be efficient.
If pure rationality tends to undermine
the rule of law when it is applied to the facts, then pure rationality, when it
is substituted to the cultural dimension of the law, cannot constitute a
substantial basis for the law. Not only pure rationality undermines the
cultural dimension of the law, but the law disappears as long as reason is
trying to reach its purest achievement[33].
Rationalism
was therefore doomed to disappear. Ortega y Gasset precisely grasped such an
antinomy of reason by addressing its critic towards modern idealism to recover
the cultural dimension.
B. Legal
Relativism and the recovery of the
cultural dimension
Legal relativism mainly
acknowledges that no universal principle can be deduced from the activity of
reason. Therefore, legal relativism especially addresses to the supremacy of
reason in the framing of the rule of law. However, and such an account remains
a substantial recovery of legal relativism, if reason cannot claim any
supremacy in the determination of the rule of law, it carries on its activity
within the frame of the rule of law. Reasonableness substitutes to rationalism,
Rational and logical necessity are challenged by an irrational import, which
must be kept into account to define the rule of law. Such a non-rational import
must be related to the diffusion of Wilhelm Dilthey’s thought (Part1) among neokantianists thinkers (Part 2) and legal relativists such as
Emil Lask and Gustav Radbruch (Part 3).
1.Philosophical origins :
Wilhelm Dilthey’s fundamental distinction between Naturwissenschaften and Geistwissenschaften
Dilthey never directly had
any influence over the law. It is hardly possible to find any lawyer who would
focus on his account of human life. If
Dilthey might have had some influence over the law, such an impact has happened
to be indirect[34].
Nevertheless, it is
relevant to point out that Emil Lask[35] and Gustav Radbruch did
not ignore Dilthey’s surveys and, as many neokantianist thinkers, found in
Dilthey’s survey some seminal and powerful insights to upward their own level
of reflection. Gustav Radbruch’s legal surveys were mostly focusing on
positivism before he came to develop a relativistic conception of law[36].
Another important observation must be made about Dilthey’s
fundamental intuitions: as the empirical experience related to any axiological
content was completely neglected by the partisans of the naturalistic fallacy’s
argument, so was Dilthey’s intuition related to the notion of human life by
most of neokantianist thinkers. Both intuitions were ignored as long as the
humanities used to focus on the activity or reason.
Ortega y Gasset will
acknowledge Dilthey’s account on human life as fundamental: “I became
acquainted with Dilthey’s work as late as 1929, and it took me four more years
before I knew sufficiently well. This ignorance, I do not hesitate to maintain,
has caused me to lose about ten years of my life – ten years, in the first
place, of intellectual development, but that, of course means an equal loss in
all other dimension of life”[37]
According to Dilthey,
natural sciences must not be confused with humanities. Explanations in
Humanities cannot be limited to the syllogistic form of logic, since the
categories implied in the latter do not fit the reality of the former. The
contingent structure of humanities is not compatible with the necessary rules
of the syllogistic argument. The contingent structure of humanities implies a
non-rational dimension, an a-logical dimension[38].
Dilthey’s surveys lead to
the recovery of the cultural dimension in humanities. This point is absolutely
crucial and would have been decisive in the legal science, if legal philosophy
had paid attention to this new dimension.
Dilthey overcame the supremacy of the mathematical logic over
the human sciences and asserted that the field of the formalist or
rationalistic logic was limited to the word of truth and falsity. Dilthey did
not deny the logical dimension of the human sciences. Such a logical dimension
was not of mathematical nature and had a more subtle nature[39].
Ortega y Gasset took a great care to acknowledge Dilthey’s
struggle to define the subtle nature of humanities when it was time to define
the notion of historical reason at work in his thought. This assertion might be
true with regards to Luis Recasens Siches who transposes Ortega y Gasset’s
concept of historical reason and develops the logic of the reasonable to
overcome the formalistic reasoning applied in the legal field.
Indirectly, Dilthey opened
a new path towards the recovery of the notion of values
The recovery of the values means that, as such, values have
never really been expelled from any survey in legal philosophy. From Augustine
to Ortega y Gasset, the path of values can be easily identified, if it is paid
attention to their structure and the problem of universals in philosophy.
Firstly, the values carry an ability to be universal by means of
which it is possible to assert that some things have a value and others have a
different one. The assertion implies that there is a hierarchy of values from
the weakest to the strongest, from the best to the worst, from the easiest and
the most accessory to the most complex and fundamental[40].
Secondly, if some things have a value, this means that the being
of such a thing cannot be confused with the being of its value, so that is
raised the issue related to the location of value.
On the one hand, from a
Platonist standpoint, it can be argued that the being of value can neither be
confused with the human mind nor be confused with reality. Value would
therefore have an objective and ideal form. Such a point of view is expressed
by Max Scheler[41]
and Nicolai Hartman[42], whose influence on
Recasens-Siches[43]
and Reale[44]
cannot be underestimated.
On the other hand and from a kantianist standpoint, value
depends on the activity of the mind, is vested in a rational form. It is a
regulative concept within the scope of modern legal philosophy. Value would
therefore be a subjective form. Within the scope of neokantianism, the purely
logical or a logical form of value has been discussed. Such a distinction was
to oppose the school of Marburg to the school of Baden[45], Natorp and Cohen’s
notion of values was to oppose Rickert and Windelband’s notion of values.
Overcoming the platonistic
issue bound up with the ability of the mind to grasp the existing values and
the kantianist issue related to the objectivity of values based on human
subjectivity, Ortega y Gasset’s transcendental humanism[46] will argue for the intravital form of values in order to
grant their objectivity and their knowableness.
2.Consequences
of Dilthey’s distinction
Dilthey’s distinction did
beget an important renewal among the neokantianists themselves. The alogical
dimension of Culture and the plasticity of the categories of the mind gave
birth to a vitalist conception of culture, which must be kept in mind to understand
the emergence of Orteguian’s thought.
The School of Baden
remains an illustration of the idealistic tradition. The a priori forms of
knowledge especially remain in human subjectivity.
Nevertheless, the identity of the school of Baden differs from
the Marburg’s one in so far as the a priori form of knowledge is not strictly
limited to the logical categories of the mind. Subjective categories of the
mind either have a logical dimension or an alogical dimension. The alogical
dimension of the a priori implies the irrational kingdom of values. Reality
might therefore be determined by any alogical category of the mind in general,
by any value especially.
The discovery of the alogical dimension and, therefore, the
articulation between the irrationality of the empirical world, the
reasonableness of the cultural world and the alogical dimension of values
anticipate the forthcoming articulation epitomized in the legal
tridimensionalism[47].
On the other hand,
Dilthey’s surveys beget a vitalist dimension which deserves a special
attention.
The vitalist trend has argued for the recovery of a heroic
dynamism that Reason completely exhausted. From an esthetic standpoint,
vitalism evolved in a more sophisticated way in order to recover a dynamical
form of reasoning which focused not only on the plasticity of reality but on
the plasticity of the category of the mind as well. According to that
sophisticated form of vitalism, the sensations are subject to change and find
their frame by means of the category of the mind.
However, the categories of
the mind are as flexible as the sensations framed by these categories.
Something is therefore common to sensation and categories which explains change
and justifies the existence of dynamism – this “something” is relativity, it does
not mean the absence of a first principle (non-relative and absolute),
relativity’s dynamism is bound up to the activity of the first principle. In Simmel, such a first principle is the
fundamental relation of man to life, the fundamental principle of transcendental
humanism: “Transcendanz der Leben”[48].
3.Legal
relativism: development of the cultural dimension of the law
Neither Lask nor Radbruch
have shown up any decisive shift to overtake the is/ought separation
undermining the evolution of contemporary legal philosophy. The persistent
efficacy of the naturalistic fallacy argument must be noted in both attempts to
define the cultural dimension of the law.
According to Emil Lask, on
the one hand, the modern natural law theory is related to the existence of
universal and absolute value. However, such a theory does not imply any touch
with empirical or sensitive experience. On the other hand, the historical
school of law rejects any universal axiological content to justify the
existence of the rule of law and assume that the rule of law finds its source
in historical experience. Therefore, Lask classically opposes rationalism and
empiricism within the scope of the source of law[49].
Regarding the natural law
theory, Lask explicitly acknowledges the existence of the axiological content.
However, no legal system can directly be deduced from such an axiological
principle. Regarding the historical school of law, Lask admits that an
empirical dimension underlies the elaboration of the rule of law, without
ascribing any universal scope to such an experience[50].
Therefore, Lask aims to
articulate the axiological content and the experience on which the rule of law
depends, as long as there is no confusion between the “ought to be” and the “is”. Referring to Rickert’s theory
of values, Lask argues that, within historical reality, values can change and
ascribe a cultural dimension to empirical reality. Values become norms as long
as the will manages to achieve them historically. Any legal system may
therefore be defined as an historical achievement of the idea of justice by
means of practical reason.
Within the realm of
culture, the rule of law becomes a real cultural factor, a vital social
process. Inserted in a social and historical environment, the rule of law is
factor of historical and social change. Fundamental cultural orientations are
made by means of the legal ruling. Any social and historical change implies
some legal impulse which identifies the law as a vital social process.
Therefore, since the rule of Law is a complex of normative
meanings, the orientation of any social change implies a meaningful norm.
Complying with the Lask’s requirements,
Radbruch argues in favor of the naturalistic fallacy argument, conserving the
“is” and the “ought be” spheres as two separated spheres from one another[51].
At this
step of the reasoning, it is not useless to assume that Radbruch position is at
the crossroad of a fundamental trend in legal philosophy. Much of the
vocabulary which will be used by Luis Recasens- Siches or Miguel Reale has been
made by Radbruch. It suffices to refer to the concept of “triadism”[52] which is going to find in
Miguel Reale’s legal philosophy its most perfect formulation.
However,
voluntarily or not, Radbruch’s legal philosophy is at the threshold of legal
Kantianism. It would be useless to look for any concept analogous to the
simmelian “transendanz der leben” since it was not, at this time, the issue
Radbruch was interested to address directly. On the one hand, there is in
Radbruch’s attempt a strong commitment towards the living dimension of the law.
Such a legacy may find its grounds in the free law movement initiated by
Hermann Kantorowicz[53]. On the other hand,
Radbruch, following neokantianist relativism, overcame its former legal
positivism and explicitly refers to the cultural dimension of the rule of law.
In a first step, Radbruch explicitly
argued against the scientific positivism expressed in Hans Kelsen’s fundamental
norm theory. The content of the law cannot be exclusively deductive and refers
to some axiological contents. Therefore, far from accepting the activity of
pure reason in any legal framework, Radbruch argues that practical reason may
help to refer to values to justify the development of the law according to the
contextual diversity[54].
In order to articulate contextual
diversity with abstract and alogical values which grant the intelligibility of
the law, Radbruch refers, as Lask would have done, to the concept of culture.
Complying
with Dilthey’s survey, Radbruch explicitly develops a distinction between value
blind sciences (naturwissenschaft) and activity of valuation
(Geistwissenschaften)[55].
Law
belongs to the Geistwissenschaften, therefore, the law as such requires
specific tools to be carefully analyzed. (fact, value, philosophy of history).
Culture is related to value, law is related to the realization of a value,
therefore law is a cultural phenomenon, a fact related to a value (the
definition is recovered in the Latin American legal philosophy).
Moreover,
between the kingdom of empirical diversity and the kingdom of alogical values,
Radbruch adds an intermediary reality. The cultural reality aims to unify the
diversity within the sphere of values. However, given the diversity of values,
some antinomies appear and must be solve to ensure the unity of the rule of law
within the legal system. Such is the task of democracy, so that within the
boundaries of culture Constitutional democracy remains a key issue in the
emergence of the rule of law.
Second, such a legal perspective cannot
be efficiently understood without keeping in mind the triadism nature-culture-
values underlying the existence of the rule of law. The cultural form of the law may vary in a
period of time. For such and such a period of time, a special context may require
the achievement of some values at the detriment of others. The variability of
the democratic commitment towards some set of values may determine the quality
of the cultural dimension and, therefore, given its cultural dimension, the
quality of the law itself[56].
furthermore,
given such an emphasis on the value of history made by neokantianist thinkers,
it can be observed that historical reality has remained a major part of Ortega
y Gasset’s philosophical development. It is therefore decisive to note that
history may remain a substantial part of such Orteguian legal thinkers as Luis
Recasens-Siches and Miguel Reale.
III.
Ortega y Gasset’s import
One quotation from the
revolt of the masses gives a general outlook of Ortega y Gasset’s thought. That
paragraph deserves a huge attention, and any contemporary survey in legal
philosophy cannot afford to deny its existence given its seminal meaning: “The
greek believed that he had discovered in the reason, in the concept, the
reality itself. We, on the contrary, believe that the concept is one of man’s
household utensils, which he needs and uses in order to make clear his own
position in the midst of the infinite and very problematic reality which is his
life. Life is a struggle with things to maintain itself among them. Concepts
are the strategic plan we form in answer to the attack”[57].
Ortega y Gasset explicitly
argues for the absolute relativity of any conceptual needs. This standpoint may
give the general idea according to which any legal philosopher has to think of
the development of the rule of law. The orteguian legacy is openly arguing
against any modern rationalism. In other words, legal neokantianism is directly
targeted by the Orteguian Ratio- vitalism. Any abstract normativism which may,
directly or indirectly, be related to Kelsen’s theory of fundamental norm is
targeted.
Besides, Ortega y Gasset
does not get a rid of the conceptual framework. The concept is a tool used by
man to orient himself among things. Therefore and firstly, any legal
philosopher will certainly consider that, first of all, kelsen’s theory of norm
is not wrong or true. It suffices to remind that such a theory deserves its
purity as long as it is deprived of any content: It is neither wrong nor true,
it is either valid or not.
Thirdly, if Kelsen’s
theory is a pure concept, it is a magnificent legal tool remaining at the
disposal of any man to orient himself among the things. Furthermore and at
last, being a legal tool at Man’s disposal, Man may deliberately makes the
decision to get a rid of any normativism in light of the juridical valuation[58].
In conclusion, there is in
the quoted paragraph the peculiarly relevant assertion that any concept is used
according to man’s commitment toward some value, so that no concept can
seriously be shaped out of the existence
of values, so that no legal system, the formulation of which does depend on the
concept, can exist out of the scope of values.
Ortega y Gasset develops his thought by means of some
fundamental schemes.
The first scheme distinguishes
between Beliefs and Ideas[59]. The Beliefs may orient
Man among what surrounds him and may be identified to the highest and most
fundamental value underlying the process of orientation. The ideas, in which
Man often believes to be true regardless of their obsolescence or their
inability to orient him among the things, may be identified to the lowest and
most inefficient value.
The second scheme distinguishes the concept of generation and
the concept of historical scale.
The strength of the historical scale epitomized in culture
depends on some aristocratic principles, whereas the weakness of such a scale
depends on the masses and the happening of democracy[60].
Each of these schemes underlies the relation of the “I” with his
circumstance (Part A) and the
estimative principle (Part B).
A. The “I”
and his circumstance
The “I” and the
circumstance, the relation between the “I” and the things around him, are the
main components of the orientation process of man among the things defined by
Ortega y Gasset. That scheme of disorientation/orientation determined all the
principles of Ortega y Gasset’s philosophy and, more specifically, his theory
of estimative on which his philosophy of values is based.
The I, the man, is the valuating principle, the principle of orientation
who can refuse to orient himself whereas his circumstance is the outcome of
man’s valuation and orientation among the things.
That conceptual framework will be used by Luis Recasens-Siches
to structure his own thought to such an extent that he explicitly and
abundantly quotes Ortega y Gasset when he tries to identify the location of the
law[61].
Two kinds of man are in relation with reality, the nobleman (Part 1) and the mass-man (Part 2); their respective character
determines the quality of their environment and the process of orientation.
a. The
nobleman[62]
The noblemen are but a few
and creative. Ortega y Gasset gives a strong definition of such a man’s
ability: “a creative life implies a strict sens of mental health, of high
conduct, of constant stimulus, which keep active the consciousness of man
dignity. A creative life is energetic life, and this is only possible in one or
other of these two situations: either being the one who rules, or finding
oneself placed in a world which is ruled by someone in whom we recognize full
right to such a function: either I rule or I obey[63].
the noblemen’s principle
of life is bound up with the duty to serve transcendental standard. His life is
dedicated to discipline and the use of tool towards the achievement of
outstanding progress within the civilization. Quoting Goethe, Ortega says that
“to live as one likes is plebeian; the nobleman aspires to order and law”[64].
The nobleman is an ascetic person, some who is trained and
trains himself to serve the highest standards. Because such a training is
demanding, only a few aristocrats are able to carry on such an ascetic life.
The ascetic life of the
nobleman is wholly ordained to have ideas, to desire truth and, therefore,
“accept the rules of the game imposed by the truth”[65] whether he like it or
not. These rules imposed by the truth
are then regulated by a higher authority, they are “standards of discussion on
which culture rests”[66].
Describing the standards underlying the existence of culture,
Ortega y Gasset says: “What I affirm is that there is no culture where there
are no standards to which our fellow-men can have recourse. There is no culture
where there are no principles of legality to which to appeal. There is no
culture where there is no acceptance of certain final intellectual position to
which a dispute may be referred. There is no culture where economic relations
are not subject to a regulating principle to protect interests involved. There
is no culture where aesthetic controversy does not recognize the necessity of
justifying the work of art”[67].
b. The
average man of the mass
The average man is not
demanding toward himself and expect nothing but what is immediately given to
him. He is therefore unable to carry on a personal reflection towards the
existence of some demanding principle.
He is not trained to such
an effort, since he assumes that ascetic life is a useless life the
requirements of which are too burdening. The immediacy of social life gives him
his fundamental needs. As Ortega y Gasset says: “let us recall that at the
start we distinguished the excellent man from the common man by saying that the
former is the one who makes great demands on himself, and the latter the one
who makes no demands on himself, but content himself with what he is and is delighted
with himself”[68]
Interestingly the
historical tempo imposed by the average man is faster than the historical tempo
imposed by the nobleman. The average man multiplies his action towards multiple
ends and exhausts himself in a dead end. In contradistinction, the nobleman
focuses on the highest stability. Such an aim is so demanding that he is
expected to face any burden to achieve it. However, achieving its aims, the
nobleman satisfies the demanding requirements of his ascetic life through the
progresses implied in the civilization.
B. The
estimative as valuation principle
Ortega developed a theory
of value (Part 1) which depends on
the estimative (Part 2)
1.Value as
fundamental standards
Ortega gives a specific
outlook over the notion of standard which underlies the cultural dimension:
“the varying degrees of culture are measured by the greater or less precision
of the standards. Where there is little such a precision, these standards rule
existence only grosso modo; where there is much they penetrate in detail into
the exercise of all the activities”[69]
The standards implied in
the cultural environment are hierarchically ordained toward the highest
standard. Ortega y Gasset duplicates a classical point of view which was then
argued by Max Scheler and Nicolai Hartmann.
It may be added, on the
one hand, that the lower standard is an approximate standard which is not
demanding and can be violate without any consequence. Since they are not
socially demanding, they rule existence “only grosso modo”. Such a standard may
grant the process of civilization. Ortega y Gasset explained that “the average
man finds himself with “ideas” in his head, but he lacks the faculty of
ideation. He has no conception even of the rare atmosphere in which ideas live
(…) his ideas are in effect nothing more than appetites in word, something like
musical romanzas”[70]
On the other hand, the
highest standard refers to a radically different state of mind. The highest
standard has not been made for the average man and has still remained the aim
of the noble man. It is the most demanding and precise standard which therefore
supports the whole existence of culture. Constituting the essence of the
cultural dimension, no part of the cultural dimension can be deprived of it.
Any part of the cultural dimension actually remains on the existence of such a
high standard,
In the case of the legal
system, whose essential cultural dimension cannot be denied unless denying
existence to the law itself, standards of legality are required to ensure the
existence of any legal system. Justice is then a standard which not only grants
the existence of the law, but grants the existence of culture as well.
At this step of the reasoning, it is not surprising that Ortega
y Gasset’s understanding of culture explicitly addresses a possible argument to
overcome contemporary idealism in legal philosophy[71].
Therefore, refering to the notion values as the standards of
existence of culture and legality has become a key argument to challenge the
kelsenian abstract normativism.
The standard of justice
must be developed in light of the arguments described above.
First of all, the act of taking the standard of justice into
account cannot be made by the averageman, such a privilege exclusively belong
to the nobleman. The quality of justice is so decisive that the existence of
culture is at stake: so long as the standard of justice disappears, may raise
the tide of barbarianism epitomized in the average man.
The standard of justice is therefore one of the highest form, a
supreme authority which, among the noblemen, frame the quality of the most
perfect form of dialogue, of intercommunion, of coexistence. Since Justice is
strictly limited to the universe of culture, of noblemen and coexistence, the
standard of justice firmly establishes a frontier between the cultural
dimension or civilization and the Barbary.
Setting the State within
the perspective of the standard of justice[72] may reveal the seminal
insight of the Orteguian thought.
Ortega y Gasset explains that the State is the effective outcome
of imagination which is able to overcome the burden of nature. It is a cultural
reality[73] made by the imagining
skill of man.
The noble man exclusively interested in wowing its life to the
respect of justice was not afford to create such a technical achievement as the
State. Ortega y Gasset clearly emphasized that Justice and State are not
related to the same class of reality. If justice is made for the noble man
beyond any rational means, the state is a rational institution the technical
dimension of which has to be attributed to the so called Specialist.
The allegorical form suggested by Ortega y Gasset must be read
in light of the distinction between the Noble man and the average man.
No doubt that the noble man, whose aim is directed towards the
highest transcendental standard, might assume that at the collective level, the
state must be a tool dedicated to the social realization of the highest
standard of justice within the boundaries of civilization.
However, the average man suggests another conception of the
State. The average man does not commit itself to reach out any high standard,
so much as the state is actually the institution in charge of running for its
own sake the destiny of the mass of the average men[74].
2. Value
and estimative[75].
The notion of estimative
refers to the activity of human valuation within the scope of human life.
The estimative, or valuation, is a judgment, a fundamental
judgment which makes man able to orient itself among the things. Estimating is
valuing, choosing and formulating a preference for some things over the others.
Such a notion must be carefully delineated in light of the part
developed above.
On the one hand, man
cannot afford to choose and embrace everything. Such a deed is beyond his means
and belongs to the divine dimension.
On the other hand, the
orienting process at work within human life cannot afford to deny man’s ability
to choose anything. Such a denial would seal the defeat of the orienting
process and the disappearance of human life. Only the average man would be
tempted to such a denial.
Therefore, the estimative
is the choice made by made by man towards some things over the others. These
chosen things, being more valuable than the other, demonstrate the existence of
a standard according to which a choice is made. Such a standard is the key
issue of the Orteguian legacy in legal philosophy[76].
IV.
Ortega y Gasset’s legacy
(Luis recasens-siches, Miguel Reale)
It is tempting to develop
the paths followed by each author.
All of them developed a seminal synthesis between the neokantiam
legal triadism and the encompassing notion of culture shaped within the scope
of the Orteguian thought: whereas Culture was but a tool to understand the
structure of the rule of law in neokantianism, Recasens-Siches and Reale
strongly considered culture as the most essential part of the law[77]. The rule of law becomes,
within the scope of their thought, a cultural good, the understanding of which
is depending on a concrete understanding of the notion of culture.
However, for a methodological purpose, the present paper will
limit its scope to three common areas of survey through which Recasens-Siches
and Reale agreed or would agree.
First of all, the rule of law is an intentional objet. The
intentional nature of the rule has to be strictly defined in order to avoid any
confusion with the Husserlian thought (Part
A).
Second, the tridimensional structure of the rule of law
articulating facts, value and norm deserves a special attention (Part B).
Eventually, such a legacy must be put in perspective: the rule
of law and the philosophy of history or how the recovery of the axiological
content of the rule of law might determine the historical level of a community (Part C).
A. The rule
of law as an intentional object
The structure of the rule
of law implies several components, the dialectical articulation of which
creates the rule of law.
So that it is not wrong to assert that intentionality at work in
the legal system, contributes to identify the sources of law.
1.the norm
as an objectivated form of human life
The origin of such a
definition of the norm may be found in Radbruch’s relativism. The rule of law
is at the crossroad of an antinomy opposing the fullness of life and the means
expected to carry on a consistent legal discourse.
From the standpoint of the fullness of life, the rule of law
would have to recover the entire meaning of the idea of justice. Paradoxically,
not only the law would claim an absolute intelligibility, but it would be
deprived of any reasonable form expression as well.
From the standpoint of its means, the law would be limited to
some single rational and systematically ordained forms. That thesis actually
supports the kelsenian claim. The purest of the legal system would be deprived
of any content and rely on pure rationality. Deprived of any axiological
content, such a system should then address the objection related to its
intelligibility.
As an object, the rule of
law tends to have a normative form which drastically reduces the fullness of
the idea of justice to “its most abstract outlines”[78]. However, far from
limiting its content to the exclusively rational aspect of the norm, the rule
of law implied an axiological content which provide some intelligibility to its
normative form.
As an objectified form of
human life, the rule of law is a cultural synthesis between an all-embracing
value and a very limited formal means of expression. The all-embracing content
of the rule of law, the value can exhaust its means of expression anytime,
whereas its formal means of expression is about to expel any axiological
content anytime. As an objectified form of human life, the rule of law is
therefore the outcome of outgoing tension, which actually illustrates internal
tensions occurring in the cultural dimension[79].
This definition is common to Recasens-Siches and many others:
“Positive law is a form of objectivated human life of normative character”[80]. Reale focus on the
tridimensional nature of the rule of law and said that “the juridical
experience implies a normative ordination of facts in function of values”[81].
Kelsenian abstract normativism is the common background of
Recasens-Siches and Reale. according to Recasens-Siches, Kelsenian conception of the norm is
formalistic. The pure norm, emanating from Reason, begets validity and
necessity, and mitigates the principle of freedom which may contribute to the
dynamism of the legal system. As radically as it might be, since the legal
system depends on the activity of the mind, the legal system would disappear if
the mind should stop thinking of it. Such a dependence of the norm from the
mind is precisely the point on which Recasens-Siches and Reale focused.
Both argue for the
existence of positive law as a norm. Therefore if their argument especially
challenges the formalism epitomized in kelsenianism, they only focus on the
insufficiencies of the purity of the norm without specifically arguing for the
wrongness of Kelsen’s pure theory of law. None has ever ignored Kelsen, all of
them integrate, each on their own, the truth of normativism. Therefore, the
concept of norm is not expelled from the field of their legal surveys but
integrated in a broader living experience, especially recovered by the
Orteguian thought, which decisively changes its content and meaning.
If Kelsen based its legal
theory on the existence of the fundamental Norm, Recasens-Siches and Reale
would rather assume that any legal norms are but an outcome of the cultural
dimension of the law, a cultural object or, moreover and according to Reale, a
cultural good. The norm does not exist as a pure object of thought, nor as a
purely conceptual reality anymore. The legal norm fundamentally comes from the
confrontation of the facts or vehicles of a special kind of value, with the new
valuation of the facts under scrutiny. Such a conception of the norm goes
further than the kelsenian conception in so far as its axiological content of
the norm is recovered.
In assuming the cultural
substance and the axiological content of the legal norms, they carry on a form
of concrete normativism[82], which addresses to
Kelsen’abstract normativism by a subtle integration of the norm in an ongoing
and begetting cultural process.
2.The
cultural dimension of the rule of law
Recasens-Siches
fundamentally wonders if “there is in the world of juridical problem anything
more than the norm of positive law? (…) I do not ask whether or not there
exists a supposed natural law, nor even what may be the extent of its precepts,
nor of what it consist.”[83]
It has been already said that the norm is an objectified form of
human life; it is a pattern of behavior, a human path “crystallized” in the
world by means of experience in the time.
The historical experience
admitted by Recasens-Siches and Reale focuses on the achievements of human
actions, achievements among which is the rule of law. The rule of law is not a
living experience. It is an outcome of the yesterday overcoming the boundaries
of time to have some permanence. However, the source of the rule of law is a
living experience and depends on the fundamental situation already described
above by Ortega y Gasset and fully admitted by Recasens-Siches, Miguel Reale.
Recasens-Siches’s
forewords quoted above must be understood as an attempt to find out that
fundamental source, which is not the “supposed natural law”, but a recovery of
the fundamental human experience which, whether he likes it or not, locates the
man in the middle of nowhere and requires him to orient himself in a way or
another. The fundamental requirement of orientation motivates the emergence of
the rule of law. However, besides such a motivation which remains a common
feature in all these legal scholars, the end towards which the rule of law is
directed cannot be set aside. It is toward a special end that man fulfills his
need for orientation.
From the estimative
standpoint already exposed above, the orientation process depends on the
estimative one. Recasens-Siches fully complies with Ortega y Gasset
developments related to such a process. During the process of orientation, many
choices have to be made by man among a full range of possibilities. Over a
couple of valuable ones, some have been chosen to carry on the process of
orientation. As an illustration, esthetical values may be chosen over others,
Economical values may be chosen over others. The orientation process is
achieving a certain set of values to put things in order in a special way. The
realization of a special set of values gives birth to the cultural dimension.
Therefore, culture is implied anywhere the human process of orientation is at
work.
Within the scope of the
cultural development, among the values underlying it, remains the value of
justice the end toward which human coexistence focuses. Therefore, taking part
to this cultural dimension, the rule of law comes from the fundamental needs
social of orientation of coexisting men to achieve a no less fundamental desire
of justice.
Thus, on the one hand the
rule of law has such a cultural form in so far as justice is valuable enough to
take part to the human process of orientation. On the other hand such a
cultural dimension is perfected by the attempt of realization of justice among
coexisting men. Therefore, the rule of law understood as an objectified form of
human life strongly depends on the fundamental experience of life and develops
itself as long as the human being keeps on estimating the things in his life[84].
That scheme distinguishing between the motivation, the means and
the end of the orientation process cannot be ignored to grasp the
tridimensional theory framed by Recasens-Siches and Reale.
B. Tridimensional
legal theory: fact – value – norm
The formulation explicitly
appeared in the 1932 edition of the Gustav Radbruch’s legal philosophy. “(…)
there is the basic assumption that (…) the mere antithesis of Is and Ought, of
reality and value, is not enough; that between the statement of reality and the
appraisal of values a place must be saved for the relation to value, that is,
between nature and ideal, a place for culture. The idea of law is value, but
the law is a reality related to value, a cultural phenomenon. This marks the
transition from a dualism to a triadism of approaches. That triadism turns
legal philosophy into a cultural philosophy of the law”[85].
Recasens-Siches implicitly
used the facts-values-norm relation along their respective survey[86], Reale made it explicit[87]. However, far from repeating the Radbruch’s
scheme, Recasens-Siches and Reale completely turned upside down the meaning of
the existing articulation between facts, value and norms, by adding a
dialectical tension which was missing in Radbruch’s[88].
A concrete form of
reasoning – Presupposition and implication –
animates that structure. Moreover, the existence of the rule of law
strictly depends on the presence of each element – the fact implies the
presence of values and norms – the values implies the facts and the norm to be
realized – the norm implies a factual world to realize the value.
The present concept of fact
is already an intentional construction of the mind which makes a synthesis between
the objectification of nature and Man’s choices of orientation in his life[89].
The values are
the ideal to realize among the human possibilities of orientation. They already
are implied in the historical – factual
world of culture or human life.
The norms are
forms of objectified human life. They are the realization of values in human
life[90], most especially the
outcome of the human estimation among the possibilities to orient its life
among the things.
In other words, the rule
of law does exist as long as it is:
an historical-factual
dimension, that is an outcome of the past and an ability to anticipate
social and historical demands (See Part
1);
an axiological
dimension, that is an meaningful ideal is orienting the world by means
of and towards the fundamental belief of
justice (See Part 2);
a normative dimension;
that is an objectified, ordained and systematized form, the purpose of which is
to protect and support the fundamental belief of justice by means of and toward
which the human life is directed (See
Part 3).
1.The
implication of the facts
If there is any fact, such
a fact is a constructed fact, the construction of which is tridimensional, an
outcome of the human action which may be the starting point of the mechanism of
inference. Any fact integrates a vehicle, value and the synthesizing or
estimative activity of the mind[91].
The vehicle may be
material or immaterial, it is nevertheless deprived of any meaning if it does
not carry on its function. If there is any factual vehicle, such vehicle diffuses
and supports a meaningful content, an axiological content, a value. The fact
has no normative consequences in itself, however it bears a axiological
inference the normative content of which may have some legal consequences. The
tridimensional structure of the fact must be pointed out, since any
tridimensional theory of law exclusively fits with such a definition of fact as
the tridimensional one.
That aspect of the fact was not explicitly pointed out by
Recasens-Siches. Reale has especially paid attention to that element in so far
as he explicitly referred to his theory as a tridimensional theory of law.
From the standpoint of the
legal analyst, the fact already has a tridimensional structure. That structure
apparently reflects a certain pattern of behavior, starting to which a
normative pattern of behavior can be identified. Therefore, and this important
deserves to mentioned, any intelligible fact implies a special pattern of
behavior which is the vehicle of a type of value. However, only certain type of
facts can illustrate the existence of a normative pattern. In other words, the
fact implied and defined in the tridimensional theory of the law relies on a
special type of value, the enforcement of which may consequently permit to
identify a normative pattern of behavior.
From the standpoint of the
legal analyst, and interestingly enough, whether the Orteguian legal thinkers
decided to qualify their object of study as tridimensional or not is not really
relevant. The rule of law may be defined as tridimensional, the
tridimensionality quality has not been created by them, such a
tridimensionality is the most essential structure of the rule of law; structure
without which no rule of law might be possible. The fact in the trimensional
theory of law actually is a factual step, a strong unity of a normative value
with behavior patterned according to it.
If the fact implies a special pattern of behavior, such a
pattern of behavior, being of normative nature, must be the consequence of an
act of valuation. The choice to behave in a way and not in another depends on a
valuation process of the agent’s behavior. Recasens-Siches and Miguel Reale
carefully defined on their own such a valuation process.
2.The
implication of values
The tridimensional theory of the law refers to a dialectical
articulation between facts values and norms. It has already been said that the
facts already have a tridimensional structure which actually illustrate the
enforcement of the rule of law. However the factual dimension of the rule of law
would not be possible without the recovery of its principle of intelligibility.
No fact would be intelligible deprived of any axiological content. Moreover, no
rule of law might be possible if it was deprived of any axiological content.
Recasens-Siches and Reale explicitly argued for that position, supporting what
has been defined as concrete normativism[92]. Within the scope of
concrete normativism, the hierarchy and concretion of values implied in the
tridimensional theory of the rule of law depend on a special conception of
value, which must be circumscribed in a first step.
a.
Necessary prerequisite for the axiological content of the
tridimensional theory of law
Two fundamental arguments
related to the consistence of values underlying the structure of the rule of
law have been made by Recasens-Siches and Reale. The first argument is related
to the being of values and guarantees the intelligibility of the rule of law.
The second argument, the content of which would be contradictory if the first
one was missing, makes possible the hierarchical structure of values and the
realization of the legal norm.
The intelligibility of the
rule of law within the scope of the tridimensional theory might be articuled
between two classical accounts related to the being of value. Both were used to
taking mathematical ideals as exemplars of intelligibility. Any ideals,
including values, have an existence in themselves, which cannot be confused
with empirical reality nor with the activity of the mind. If such ideals
existed, their reality was of a transcendent nature. Recasens-Siches and Reale
both accepted the existence of these objective ideals. However, he never
supported the transcendent nature of such ideal, the achievement of which could
not consequently be explained.
On the other hand, according to the Kantian point of view, the
existence of such ideals may depend on the activity of the mind and, especially
the content of value, potential universality. If Recasens-Siches and Reale
agreed on the potential universality of values in the human culture, they
strongly challenged the subjectivist dimension implied in Kantianism.
All of them rather suggest a synthesis based on Ortega’s
thought. Values do not have a transcendent reality which would deprive them
from any possibility of achievement. Neither have they any subjective dimension
which would deprive them from a necessary objective dimension. In light of a transcendental humanist standpoint,
Recasens-Siches, and Reale argued for the intravital reality of value[93]. In order to guarantee
the achievement and the objectivity of values, values must be part of the human
life considered as radical reality and receptacle of the rule of law. If, and
only if, values have such an intravital reality, will their objectivity
guarantee and their achievement by means of the rule of law.
The second claim depends on the first. If values are ideal
objects, if ideal object are looking like mathematical ideals, therefore Values
do have the same characteristics as mathematical ideals. That standpoint was
the fundamental basis supporting Kelsenian positivism and deserves a special
attention. Kelsen’s pure theory of norms, against which Concrete normativism
argues, always purposed to give a scientific account of the rule of law. Such a
purpose, regarding the understanding of the rule of law, cannot be related to
kantism exclusively.
Whether legal science
likes it or not, it is consistent with kelsen’s thought to refer to all the
sources of inspiration of the Pure Theory of Law, one of which was the logical
empiricism developed by the Vienna circle. The Vienna circle’s members, whose
dedication to Ernst Mach’s positivism was explicit, argued that any scientific
validity, including moral and legal deduction, should exclusively depend on the
logical criteria of validity. Kelsen’s legal scientific purpose precisely found
its perfect form of expression in that standpoint. Kelsen’s argued for the
rationality of the legal norm and considered it as deprived of any axiological
content as it was already said above. If the norm must have a scientific
content, if a scientific quality depends on its validity from a logico
mathematical standpoint, therefore, any legal norm and legal system cannot be
considered as scientific if it is not valid. Since no validity can proceed from
any axiological content, since validity exclusively proceeds from the logical
activity of mind, therefore any valid legal norm must proceed from the activity
of the mind and be rightly deduced from a pure logical fundamental norm
deprived of any real content. Here is the most radical and abstract point of
view against which Recasens-Siches was the first legal philosopher to focus on[94].
Luis Recasens-Siches
argued that if it is true that a scientific of object may imply a rational
analysis, it is wrong to limit that object to an exclusively logic and
rationalist content. Since human life as radical reality implies more than
reason, any scientific object, including the law, implies more than its logical
and rational content. The law, being an objectified form of human life, depends
on a valuation process which not only fulfills the human need of orientation
but orients man towards justice as its most complex end. Such a process is
bound up with the man’s genuine commitment to overcome disorientation.
Consequently, reason
itself will not be able to focus on the legal norm as long as man does not
commit to get a rid of that fundamental nihilism. In conclusion, on the one
hand, Reason is not only expected to get a rid of its intend to limit the
content of legal norm to a pure logical exercise but must admit the existence
of an orienting principle which fulfill the content of the norm with an act of
valuation which fundamentally acknowledges nihilism as the lowest value and
commit itself towards justice as the highest value by means of the legal norms.
b. The
Hierarchy of values
Both Recasens and Reale
argued for the intravital nature of values. Both, given their commitment to the
orteguian’s scheme, argued for the existence of an orientation process which
acknowledges the hierarchical structure of values. At this step of the
reasoning it is not useless to recover Max Scheler’s and Nicolai Hartman’s
argument on the hierarchical structure of values.
Both argued that the
lowest value differs from the highest values, in so far as the first being the
less complex remain easily achievable whereas the highest being the more
complex and subtle remain hardly achievable. Scheler and Hartman both conclude
that paradoxically, the lowest value were therefore the stronger whereas the
highest and most subtle ones were the weakest. If Recasens-Siches and Reale
never supported the Platonist conception of value argued by Scheler and
Hartman, both agreed on the axiological paradox sharply defined by the German
metaphysicians. The agreement was so strong that, excepted some conceptual
differences, Recasens-Siches and Reale really integrated Scheler’s and
Hartman’s scheme within the framework of their own legal philosophy[95].
Recasens-Siches made a
distinction between the founded value and the founding value[96]. Justice cannot be
achieved as long as the legal system does guarantee order and security. Order
and security are therefore founding value whose quality is stronger than
justice and lower than it. They are taking part to the achievement of justice,
the founded value, which is the weakest and the highest form of value.
According to Miguel Reale,
the cultural dimension of the law depends on the ability of the human mind to
set himself as an object of reflection to reflect on its ontological needs. The
nomothetic mind in Reale is the supreme value of orientation thanks to which
any valuation can be made[97]. The nomothetic mind
distinguishes the human person from any other things around her. That’s
precisely why Reale considers that any valuation made by the human person to
achieve its fundamental desire of justice must be ordered to the protection of
the human person. Therefore, since order and security are desirable values, the
aim of which is the protection of the human person and the achievement of
justice, order and security are taking part to the stability of the supreme
value, their relative content tend to be stabilized as long as they carry on
their aim. Ordered to the supreme value of the human person, Reale defined such
values as axiological invariables[98].
Recasens-Siches explicitly
agreed with Reale about the supremacy of the human person over any other value.
As a Matter of fact, the Spaniard legal philosopher could not disagree with the
Brazilian legal philosopher. Recasens-Siches asserted, before Reale, that if
order and security were ordered to the community, the human person would have
been a vulgar tool of achievement of the common good[99]. However, if order and
security are ordained to the orientation process of the human person in such a
way that the community is a single tool, the goal of which is to take care of
the human person and her thirst of justice, then the human person’s dignity
must be considered as the most fundamental value, toward which must be directed
the achievement of any other values.
In light of both
conceptions, the legal norm is a tool, the function of which is to guarantee
the primacy of the human person within the scope of any legal system.
3.The
implication of the norms or the realization of values
At this step of the
reasoning, the definition of the legal norm goes further than Kelsen’s
formalist definition. The legal norm is not a formalist and logical game
anymore and becomes the outcome of a process of valuation among a range of
possibilities.
The existence of the legal norm depends on a choice among
several possibilities
Such a choice is the valuation of patterns of behavior, the
positive quality of which is vested in a normative quality in light of the
supreme value – a special pattern of behavior has been positively valued to be
ordained to the protection of the human person and the achievement of justice.
Therefore any normativity depends on the process of evaluation.
Far from being abstract from any pattern of behavior as Kelsen would argue, the
legal norm is an attempt to realize a positive pattern of behavior.
Being chosen to achieve
the supreme value underlying the existence of the legal system, the realization
of the positive pattern of behavior depends on its internalization by the mind.
The tridimensional theory of law developed by Recasens-Siches
and Reale illustrates that facts, values and norms are dialectically
articulated to one another to such an extent that the factual step implies the
realization of a positive pattern of behavior vested in a normative structure
which framed the rule of law.
Moreover, the step of the
valuation confronts the former pattern of behavior with a new one in order to
determine the quality of the new pattern of behavior to guarantee the
protection of the human person and support the realization of Justice. At stake
here is the principle of hierarchy of value which implies the location of the
valuated pattern of behavior in the hierarchy with a view to determine its
normative enforcement.
Furthermore, the normative
step is the reasonable enforcement of the pattern of behavior located in the
hierarchy of values ordained to the protection of the human person and the
achievement of justice. It will be noticed that the essential feature of the
norm remains in its enforcement to complement the principle of internalization
of the pattern of behavior by the mind.
In conclusion, the tridimensional theory of the rule of law, not
only recovers the cultural dimension of the rule of law, but solves the genuine
antinomy existing between the validity and efficacy of the legal norm within
the framework of Kelsen’s pure theory of law.
C. Rule of
law and philosophy of history
How might the recovery of the axiological content of the
rule of law determine the historical level of a community? Identifying human
life and rule of law might give an opportunity to the lawyer to build a
standard to evaluate the historical level of the community. Clearly, this
dimension has not been developed by Recasens-Siches and Reale.
The relevance of that survey to conclude the present paper
might be questioned, would there really be an implicit philosophy of history in
Recasens-Siches’ and Reale’s legal philosophy?
An argument of authority deserves a special attention. A
careful attention to Sorokin’s writings including and posterior to Social and Cultural dynamics may reveal
that he developed an implicit philosophy of law within the frame of his
philosophy of history. Once retired, Sorokin committed a last book with a view
to evaluate the contemporary sociology of his time. Interestingly enough,
Sorokin dedicated a chapter to Ortega y Gasset. Interestingly enough, Sorokin
met Recasens-Siches in Mexico and became acquainted with Ortega y Gasset
lately. In that chapter, Pitirim Sorokin explicitly claimed that Ortega’s view
where totally compatible with his owns. Given the scope of Sorokin’s philosophy
of history, given the seminal dimension of Ortega’s writing on historical
reason, it is not irrelevant to think of the existence of an implicit philosophy
of history in Orteguian’s legal philosophers such as Recasens-Siches and Reale.
Last but not least, it is very tempting to compare Reale’s tridimensionalism
with Sorokin’s tridimensional understanding of the cultural phenomenon despite
such a comparative study is not relevant with the topic developed in the
present paper and would make a step beyond its scholarly boundaries.
Most of all, any lawyer would argue the useless aspect of
that survey. Such an argument might be true if any lawyer could without any
doubt assert that the content of the law is totally deprived of any value.
However, at the moment that the lawyer acknowledge the axiological content of
the law, whether he like it or not, he is expected to pay attention to the
quality of such a content which may vary as all human achievement according to
the intellectual orientation of man. Ortega and Recasens have strongly focused
on such an orientation.
Given the dimensions at
work in the structure of the rule of law, it might be assumed that the rule of
law itself is a cultural environment the quality of which varies in space and
time according to the intellectual orientations of man toward the value of
justice.
Two fundamental issues may allow some valuation of the
historical level of the rule of law in Recasens-Siches and Reale’s legal
philosophy.
Each of them explicitly
argues against both classical realism and modern idealism, both ascribe a
crucial role, somewhat different, to the human person. Most of all, both issues
are intimately related to one another: Recasens-Siches argues for the
fundamental import of transcendental humanism whereas Reale argues for the
existence of a transcendental natural law, nevertheless both argue for the
intravital dimension of value and the primacy of the human person in the heart
of the existence of any consistent legal system.
Reale’s identification of the human person with the most
fundamental value at work in any legal system illustrates this stand point.
Recasens-Siches refers to the primacy of the human person over the existence of
the state and the legal system, locating her action at the heart of the
cultural phenomena. At least should it be said that the cultural dimension,
therefore the law, is but a tool in the hand of the human person to realize her
most fundamental ends. Such a point of view cannot be relevantly challenged
without jeopardizing the whole legal system.
1.Transpersonalism
and denial of the human person dignity
That standpoint was
especially discussed by Recasens-Siches. If the founding values are ordained to
the community, then the primacy of the community over the human person makes
clear the fact that the human person will be a single tool used to achieve the
common good.
Such a position may be understood in light of the fundamental
assumption of the process of orientation of man among the things. It has been
said that such a process is a human commitment to overcome any nihilism in
light of the principle of dignity. However, the process of orientation may
precisely fail to orient man. The denial
of the orientation process does not permit man to achieve his desirable end.
Then remains the common idea admitted by the community that the human person is
a single tool submitted to the achievement of the common good[100].
This devaluation of the
human person may give a striking illustration of the paradox that the human
person not only is a weak and subtle value, the supremacy of which may be
anytimes challenged by a special state of mind.
Ortega y Gasset made a
subtle distinction between the nobleman and the average man, he was insisted
upon the fact that the noble man acted according to highest fundamental values.
In the meantime, Ortega y Gasset argued for the weakness of this man whose
ascetic life is weaker than the dedication of the mass to lynching.
Recasens-Siches recovers that standpoint in his axiology. If the human person
is a tool ordained to the achievement of the conmon good, the community will
therefore start a process of cultural annihilation. It appears that the community
denies the dignity of its principle of existence and is condemned to eradicate
not only its most fundamental component but itself as well.
2.
Personalism and dignity of human person.
In the opposite way, if
the process of orientation is fully underlying the emergence of the rule of law
with a view to the protection of the human person and the achievement of
justice, then the achievement of the common good will be ordained to the
respect of the human dignity and justice.
The principle of dignity
may consecutively be considered as a socially constructive principle. The
common good is committed to the protection of each human person. Therefore,
society becomes the vehicle of the founding common good and the founded
personal dignity.
Therefore, in conclusion, it can be pointed out that the process
of orientation carefully developed by Ortega y Gasset has become a key issue in
the attempt to overcome legal formalism. No sound definition of culture would
have been possible, nor any sound concrete normativism, if the orientation
process had not been developed and integrate within the scope of the legal
survey made by Recasens-Siches and Miguel Reale.
*New-York, docteur en droit (Centre de philosophie du droit,
université Montesquieu, Bordeaux, France), avocat.
__________________________________________________
©THÈMES, revue de la
B.P.C., mise en ligne le 2 avril 2014
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[1] Such an argument
would totally deny the content of Ortega’s Revolt of the masses, See, J. Ortega
y Gasset, The Revolt of the Masses (WW Norton & Company, 1957)
[2] The present study cannot
ignore the Ortega’s influence over Eduardo Garcia-Maynez. However Eduardo
Garcia-Maynez never focused on the cultural dimension of the law as Recasens-
Siches or Miguel Reale did. See Eduardo Garcia- Maynez, “The philosophical
juridical problem of the validity of law”, in Kunz (J . intr.) Latin American
legal philosophy (Harvard University Press 1948).
[3] See Luis
Recasens-Siches, “Human life society and law, fundamentals of the philosophy of
law”, in Kunz (J . intr.) Latin American
legal philosophy… id. at 28 – 35; see also Luis Legaz y
Lacambra, “the juridical notion of the human person and the right of man”, in
Caponigri (E. transl.) Contemporary
spanish philosophy, an anthology (University of Notre Dame Press 1967) at 92-124.
[4] See Miguel Reale, Experience et culture, fondement d’une
theorie generale de l’experience (Editions Biere, 1990)
[5] See Hans Kelsen, Pure
Theory of Law, (University of California Press, 1978)
[6] As a sound
illustration, complement the kelsenian legacy, see The legal philosophies of Lask, Radbruch and Dabin, Paterson (E.
intr.), (Harvard University Press, 1950)
[7] See Luis
Recasens-Siches, “the logic of the reasonable as differentiated from the logic
of the rational (Human reason in the making and the interpretation of the law”
Newman (R. ed.) Essays in Honor of Roscoe
Pound (The Bobbs Merrill Company, 1962). See also Luigi Bagolini whose
surveys interestingly recovered the origin of the concept of sympathy through
its empiricist Scottish and English empiricist origins, See Luigi Bagolini,
“Legal obligations in Hume”, Hume Studies 1981, p 85-93.
[8] Id.
[9] On very clear and
sharp development related to Marburg’s School, see Joseph M. Bochenski, Contemporary European Philosophy,
(University of California Press, 1956).
[10] See Hans Kelsen see
note 5.
[11] On the Marburg’s
school, See Joseph M. Bochenski, see note 9.
[12] That is especially
true regarding Miguel Reale’s legal philosophy which overcame a underlying
neokantianism to argue for the existence of concrete normativism. See Miguel
Reale, “Fundamental structure of the law”, http://biblio.juridicas.unam.mx/libros/1/422/3.pdf. See also See, Augusto Cesar MOREIRA LIMA, “A
Brazilian perspective on jurisprudence: Miguel Real’s tridimensional theory of
law”, at 114 10 Oregon Review of International Law 77 2008.
[13] Id.
[14] See Luis
Recasens-Siches, note 7
[15] For a very clear
development of that Orteguian classical scheme, see Jose Ortega y Gasset, Man and People (WW Norton & Company,
1957) chap. 1, 2 and 3.
[16] See luis
Recasens-Siches note 3.
[17] See the parts of the
study dedicated to Parmenides and Heraclites in Jose Ortega y Gasset, The Origin of Philosophy, (WW Norton
& Company 1967).
[18] See Luis Recasens-
Siches note 3 at 50, see also, Miguel Reale, Experience et culture, Fondement d’une theorie generale de l’experience,
(Editions Biere, 1990).
[19] See Sir Paul
Vinogradoff, Roman Law in Medieval Europe,
(Barnes & Nobles 1968); also Peter Stein, The character and influence of the roman civil law (Hambledon
Press, 1988).
[20] Id.
[21] See Hans Kelsen note
5.
[22] See Hermann
Kantorowicz, The Definition of Law,
(Cambridge University Press, 1958); Legal
Science – a Summary of its Methodology, 28 Columbia L. Rev. 679.
[23] Eugen Ehrlich, Fundamental Principles of the Sociology of
Law, transl. W.L. Moll, intr. R. Pound (Russell & Russell 1962).
[24] Jose Ortega y
Gasset,“A chapter from the history of ideas, Wilhelm Dilthey and the idea of
life”, Concord and liberty, (Norton & Norton, 1963) p 147.
[25] See Joseph M
Bochenski note 9 and his summary related to the Marburg’s school. Also see Hans
Kelsen note 5
[26] That Miguel Reale
will later deter as a pure play on a word.
See also Luis Recasens-Siches, Note 7 at 193-194.
[27] On this point see
Gyula Klima, Gyula Klima, “The medieval problem of universals”, Stanford
encyclopedia of Philosophy,
http://plato.stanford.edu/entries/universals-medieval/.
[28] On the distinction
bertween the definitio and the regula in ancient roman law in the Sabinian and
Proculian doctrine, See Peter Stein, note 19 at 37.
[29] As many others
Spaniard legal Scholars, Recasens-Siches had been trained by Kelsen Himself in
Vienna, see Kunz (J . intr.) Latin
American legal philosophy…at xxv; see also, Augusto Cesar MOREIRA LIMA, “A
Brazilian perspective on jurisprudence: Miguel Real’s…note 12 p 90 footnotes 38
and 39.
[30] It may be added the
basis of kelsenian’s though is not entirely taken into account by the American
translation. It can be added, that Kelsen’s teaching took place in Vienna when
the Vienna circle of Rudolf Carnap was very influencing. See Hans Kelsen, Theorie pure du droit, trad.
C. Eisenmann, (Paris, 1962). See also the English translation already quoted
above Hans Kelsen, Pure theory of law, (University of California Press 1978).
We will refer to the English translation which, nevertheless, does not implies
the translation of some original and substantial footnotes made by Kelsen in
the original version of the Reine
Rechtlehre, the content of which decisively achieve to clarify Kelsen’s account
on the fundamental norm.
[31] For a sharp account
on Kelsen’s pure norm, Carlo Cossio, “Phenomenology of the decision”, Latin American legal philosophy…note 7
at 363 : “The fundamental norm is hypothetical because it is the a priori
gnosiological hypothesis which the jurist makes in order to be able to think as
a jurist of positive law; that is because it is the gnosiological condition of
his own thought”.
[32] See Hans Kelsen note
5 at 201-205
[33] See Luis
Recasens-Siches note 7 at 204-205
[34] On Dilthey, See Joseph
M. Bochenski, note 9
[35] Emil Lask, “Legal
Philosophy”, in Paterson (E. intr.) The
Legal Philosophy of Lask, Radbruch and Dabin (Harvard University Press
1950) at 41
[36] It might be add that
Radbruch’s legal survey should not stop on their ways, since they upwarded to a
very Aristotelian form of realism, inferring universal principle of natural law
from the nature of things.
[37] J. Ortega y Gasset,
“A chapter from the history of ideas, Wilhelm Dilthey and the idea of life”, Concord and liberty, (Norton &
Norton, 1963), p 136.
[38] J. Ortega y Gasset,
“A chapter from the history of ideas, Wilhelm Dilthey and the idea of life”, Concord and Liberty, (Norton &
Norton, 1963), p 145: “at the end of the seventeenth and throughout the
eighteenth century, thinkers in England and France tried to apply the
scientific method to human phenomena. And it was in the course of those
endeavors that the obstinate resistance of human phenomena to mechanical
interpretation paved the way for the discovery of human life as a reality in
its own right – a reality no less no more, opaque than the cosmic reality had
been”.
[39] See Luis
Recasens-Siches note 7
[40] See Luis
Recasens-Siches, note 3 at 257-290.
[41] See Max Scheler, Formalism in ethics and non-formal ethics of
values; a new attempt toward the foundation of an ethical personalism,
(Northwestern University Press 1973).
[42] Nicolai Hartmann, Ethics, (G. Allen & Unwin ltd 1932).
[43] See Luis
Recasens-Siches note 3 at 10.
[44] See Miguel Reale,
note 4.
[45] See Joseph M.
Bochenski note 9.
[46] On that designation
made Recasens-Siches, See Luis Recasens-Siches note 3 at 23.
[47] See Gustav Radbruch,
“Legal philosophy”, in Paterson (E intr.), the
legal philosophy of Lask, Radbruch and Dabin (Harvard University Press
1950) at 69-70.
[48] See Vladimir Jankelevitch,
“Georg Simmel, philosophe de la vie”, 32, Rev.
de Metaphysique et de Morale 213 (1925).
[49] See Emil Lask supra
note 35 at 12.
[50] Id. at 10-11.
[51] See Gustav Radbruch,
supra note 47 at 53.
[52] Id. supra note 47.
[53] See Hermann
Kantorowicz, supra note 22.
[54] See Gustav Radbruch
note 47 at 57.
[55] Id. at 52.
[56] Id. at 120: “The theme of the philosophy of history is history from
the viewpoint of the realization of values, history as the road towards, or
again the wrong road away from value. So the problem of the philosophy of
history in relation to the law (or the philosophy of legal history) is to
contemplate, in the reality of historical events, the realization of the
concept, the idea, and the validity of the law (…)”. Ortega y Gasset is used to
referring to such an issue as the issue of the historical level. An entire
chapter is dedicated to such an issue in the Revolt of the masses.
[57] Jose Ortega y Gasset,
The Revolt of the Masses (WW Norton & Company 1957) at 131.
[58] See Luis
Recasens-Siches supra note 3 at 230.
[59] See Jose Ortega y
Gasset, Idees et Croyances, (Stock 1945).
[60] See Jose Ortega y
Gasset, supra note 57 p 19-28.
[61] See Luis Recasens-
Siches, supra note3.
[62] Jose Ortega y Gasset,
supra note 57 at 63-64.
[63] Id. at 144.
[64] Id. at 63.
[65] Id. at 71.
[66] Id. at 72.
[67] Id. at 72.
[68] Id. at 63
[69] Id. at 72
[70] Id. at 73
[71] Id. at p 72, Ortega especially says that “there is no culture where
there are no principles of legality to which to appeal”.
[72] Id. at 115-124
[73] J Id. at 153-154 “On the one hand, the word “State” implies that
historic forces have reached a condition of equilibrium, of fixedness. In this
sense, it connotes the opposite of historic movement: the State is a form of
life stabilized constituted, static in fact. But this note of immobility, of
definite unchanging form, conceals, as does all equilibrium, the dynamism which
produced and upholds the State. In a word, it makes us forget that the
constituted text is merely the result of a previous movement, of struggles and
efforts which tended to its making. The constituted state is preceded by the
constitutent state, and this is a principle of movement. (…) the state (…)
needs to be laboriously build up by [man]. It is not like the horde or tribe or
other societies based on consanguinity which Nature takes on itself to form
without the collaboration of human effort. On the contrary, the state begins
when man strives to escape from natural society of which he has been made
member by blood. And when we say blood, we might also say any other principle:
language for example. In its origins, the State consists of the mixture of
races and of tongues. It is the superation of all natural society. it is
cross-bred and multilingual”, and further at 155: “there is no possible
creation of a State unless the minds of certain peoples are capable of
abandoning the traditional structure of one form not previously existing. That
is why it is a genuine creation. The State begins by being absolutely a work of
imagination. Imagination is the liberating power possessed by ma. A people is capable
of becoming a State in the degree in which it able to imagine. Hence it is ,
that with all peoples there has been a limit to their evolution in the
direction of the state: precisely the limitset by nature to their imagination.
[74] Id. at 122: “Society creates the State as an instrument. Then the
State gets the upper hand and society has to begin to live for the State. But
for all that the State is still composed of the members of that society. But
soon these do not suffice to support it, and it has to call in foreigners:
Dalmatians, then germans. These foreigners take possession of the State, and
the rest of the State, the former populace, has to live as their slaves –
slaves of people with whom they have nothing in common. This is what the State
intervention lead to: the People are converted into fuel to feed the mere
machine which the state. The skeleton eats up the flesh around it. the
scaffolding become the owner and tenant of the house”.
[75] See Jose Ortega y
Gasset, Que son los valores, introduccion
a una estimative, (Encuentro 2004).
[76] A sharp recovery of
the structure of the estimative has been made by Luis Recasens-Siches, see Luis
Recasens-Siches supra note 7 p 213 – 215.
[77] See Luis
Recasens-Siches, supra note 3 at 50; also Miguel Reale, Supra note 4.
[78] See Gustav Radbruch,
supra note 47 at 132-133 “to the man of the law, what is left of Goethe
consists of his birth and death certificate, the document of his admission to
the bar, his marriage license and the birth certificate of his son, the recordings
of his house on frauenplan and of his cottage on the Stern, the contrast
concerning the publication of his works, and his appointment, and his
appointment as a privy councilor! So what is juridically essential in a
concrete individuality is but its most abstract quality”.
[79] Tension implied in
the cultural dimension is the scope of the philosophy of history.
[80] See Luis
Recasens-Siches supra note 3 at 48.
[81] See Miguel Reale,
“Fundamental structure of the law”, supra note 12.
[82] See Miguel Reale, “La
situation actuelle de la théorie tridimensionnelle du droit”, Archives de philosophie du droit at 369-
388 (1987)
[83] See Luis
Recasens-Siches supra note 3.
[84] See Luis
Recasens-Siches supra note 3 at 42-48.
[85] See Radbruch, Supra
note 47 at 69-70.
[86] Recasens- Siches
never dialectically articulated facts, values and norms. However, when he used
the Orteguian Schemes of thought, He no longer has the choice than using that
dialectical articulation, since Ortega considered the human valuation across
history and the valuation activity to overcome a nihilistic fate.
[87] See Miguel Reale,
supra note 12; see also Teoria
tridimensionnal do direito, (Editora Saraiva, 1994).
[88] See Augusto Cesar
Moreira-Lima, “A Brazilian perspective on jurisprudence: Miguel Real’s…note 12
at 99.
[89] See Miguel Reale
Supra note 12 at 20: “to understand well the tridimensional structure of law
and not to fall back in a juridical and abstract normativism, it is necessary
to recall that the fact from which the legislator starts, in order to state a juridical
norm, is never a pure fact. In it is to be found, as if immanent, an
axiological sense, which is inseparable from the sociohistorical circumstances
in whose contact the fact happens, in such a way, that one could say that to
every type of fact must correspond the kind of value adequate to its nature and
not any value freely chosen by the stater of the legal norm.
[90] According to Reale,
values are characterized by their achievability.
[91] Such a conception of
the fact is recovered by Reale which refers to Gurvitch and Sorokin analysis
related to the definition of the social and cultural phenomenon. See Miguel Reale, Teoria tridimensionnal do direito…supra note 87.
[92] Concrete normativism
implies the recovery of the axiological content of the norm. However, Concrete
normativism cannot be strictly limited to that standpoint. If it was, it could
be said that legal philosophers as Carlo Cossio, Gabriel Garcia- Maynez or Juan
Llambias de Azebedo defended a concrete normativism. Cossio, Garcia-Maynez and Llambias de
Azevedo, whose survey explicitly refers to Scheler and Hartmann’s ethics to
recover the axiological content of the law to overcome Kelsen’s formalism,
never defended any concrete normativism on their own. Concrete normativism not only implies a renewed
conception of the legal norm in light of the Orteguian philosophy but a special
conception of values as well, which differs from Scheler and Hartman’s
conceptions of value.
[93] See Luis
Recasens-Siches, supra note 3 at 25: “in the light of the Metaphysics of life,
I consider that probably it will have to be established that, if indeed values
are objective – that is, they are not projection of the psyche – this
objectivity must nevertheless be understood as something immanent in human
life; since human life is the basic reality which sustains all the others; and
all the others appear in it”. See also on Miguel Reale’s axiology, Luis
Recasens-Siches,“Juridical Axiology in ibero-america” at 167 3 Natural Law Forum. 135 (1958).
[94] See Luis
Recasens-Siches, supra note 7.
[95] On Nicolai Hartman,
see supra note 42; on Max Scheler see note 41.
[96] See Luis
Recasens-Siches note 3 at 22.
[97] See Miguel Reale, Experience et culture…supra note 4
(Editions Biere, 1990) at 30-31.
[98] See Miguel Real,
supra note12.
[99] See Luis
Recasens-Siches supra note 3 at 325
[100] See Luis
Recasens-Siches supra note 3 at 22 and 325