Revue de la B.P.C.                      THÈMES                                            I/2014

 

http://www.philosophiedudroit.org

 

accueil                                                                      mise en ligne le 2 avril 2014

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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.

 

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©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 philosophyid.  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