Institutional Analysis and Epistemology of Values in Law: an Outline

MARCELO GALUPPO, MÔNICA SETTE LOPES,

KARINE SALGADO, LUCAS GONTIJO, THOMAS BUSTAMANTEEditors

Human Rights, Rule of Law and the Contemporary Social Challenges in Complex SocietiesProceedings of the XXVI World Congress of Philosophy

of Law and Social Philosophy of the Internationale Vereinigunf für Rechts- und Sozialphilosophie

Belo Horizonte2015

Human Rights, Rule of Law and the Contemporary Social Challenges in Complex Societies: Proceedings of the XXVI World Congress of Philosophy of Law and Social Philosophy of

the Internationale Vereinigunf für Rechts- und Sozialphilosophie

Marcelo Galuppo

Mônica Sette Lopes

Lucas de Alvarenga Gontijo

Karine Salgado

Thomas Bustamaente

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Human Rights, Rule of Law and the Contemporary Social Challenges in

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Law and Social Philosophy of the Internationale Vereinigunf für Rechts- und

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1. Law - Philosophy. 2. Human Rights. 3. Rule of Law. I. Galuppo,

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898 • XXVI World Congress of Philosophy of Law and Social Philosophy

Institutional analysis and epistemology of values in Law: an outline

Maciej Pichlak1

Abstract: The paper offers an outline of a research programme consisting in cognition of axiological foundations of law through an analysis of institutional settings of legal system. Such approach allows to escape from existing contro-versies about arbitrary character of axiological reflection, which are still to be found in legal science. Thanks to the process of reconstructing values ‘embod-ied’ within given institutional practices and structures, it offers an intersubjec-tive method of recognition of values material for the legal order.

To explain such version of institutional analysis the study refers to methodological postulates of two – in many respects different – philosophers, Paul Ricoeur and Jürgen Habermas. From Ricoeur it takes an idea of such anal-ysis as a ‘roundabout route’ to ethical reflection, which escapes from a tempta-tion of unconstrained and arbitrary moralizing. With Habermas it shares an aspiration to go beyond a futile conflict between functional approach (which ex-cludes axiological inquiry at all) and aesthetic bias (which places axiological re-sources solely in dispositions of individual, apart from institutional structures) in social sciences. The works of both authors express and justify a possibility of conjunction of analysis of factual, empirical components of social practices, such as law, with reflection on their ideal, axiological plane.

The paper elaborates epistemological rather than epistemic problematic of cognition of values – which means that it delve into conditions of possibility of such cognition, instead of verifying particular methods of axiological studies.

Key words: Institutional theory of law; axiology of law; factual and ideal.

Introduction

The study aims at elucidate how an analysis of institutional set-tings of legal order supports a cognition of axiological foundations of law. To say about ‘elucidation’ may be a bit exaggerating, as all I of-

1 Assistant Professor at the Department of Legal Theory and Philosophy of Law at Uni-versity of Wrocław, Poland. Email adress: [email protected].

DOI: 10.17931/ivr2013_sws77_02

mailto:[email protected]

Special Workshop: Institutional Philosophy and Institutional Theory • 899

fer here is a brief and preliminary outline of argumentation that waits for further elaboration. Before I will be able to conduct a more detailed analysis of these problems, let me present a roadmap of such possible inquiry.

The problem of cognition of values might be analysed on two basic levels: epistemological or epistemic one (to use terminology of transcendental philosophy for that sake). At the first level, one asks about necessary (and/or sufficient) conditions of possibility of cognition of values; the second one treats about most plausible methods of such cognition. As the title of this paper suggests, this is an epistemological problematic that will be scrutinized here. A matter of my concern are the chances that institutional analysis creates for reflecting axiological ques-tions, rather than exact methods of such reflection.

Both these questions – about the very possibility, as well as on acceptable methods of axiological cognition in law have been a matter of controversy, where axiological considerations have been accused for irrationality and arbitrariness. Nevertheless, this is the very point where institutional approach proves its own usefulness, for it allows for a ra-tional reconstruction of material values being ‘embodied’ within given institutional settings. Therefore, analysis of such institutional structures reveals to be a fruitful method of cognition of those values.

In order to justify such version of institutional analysis the study refers to methodological postulates of two – in many respects different – philosophers, Paul Ricoeur and Jürgen Habermas. From Ricoeur it takes an idea of such analysis as a “roundabout, long route” to ethical reflec-tion, which escapes from a temptation of unconstrained and arbitrary moralizing. With Habermas it shares an aspiration to go beyond a futile conflict between two reductivisms in social science: the one of functional approach (which excludes axiological inquiry at all) and another one of aesthetic bias (which places axiological resources solely in disposi-tions of individuals, apart from institutional structures). Instead of this, the proposed perspective perceives public institutions as ‘axiologically saturated’ in nature. This proves itself to be a plausible starting point for a study on mutual relations between empirical (factual) and ideal (axi-ological) components of social practices – law included.

Axiology in the clash

The very possibility, as well as acceptable methods of cognition


of legal axiology, have been a matter of dispute since years, including the viewpoints negating such possibility. In particular, the question has been posed whether the reflection on axiology of law is able to liberate itself from subjectivism and arbitrariness.

On another hand, there has always been a need for axiological considerations within legal practice. It doesn’t seem that it may be left apart as useless or irrational. From the most fundamental questions on legitimacy and validity of law, to purely practical methods of legal rea-soning in everyday practice – the law all the time goes into intimate rela-tions with values, particularly these of moral kind.

This practical need does not necessarily leads to any generally accepted methods of interpreting those values, though. For decades the discourse about axiology of law has been fragmented between legal phi-losophy of natural law on the one hand, and analytical legal theory (le-gal positivism) or empirical legal sociology (legal realism) on the other. These competing traditions could hardly find any common point (see e.g.Coyle, Pavlakos, 2005).

In Polish jurisprudence the problem of legal axiology has been conceptualized within the frames of the discussion about so called planes of law. ‘Planes’ were understood as the most relevant dimensions of the complex reality of law, at the same time determining the main methodological perspectives of analysis of law in legal science. Accord-ing to the most influential proposals, the following planes have been distinguished: logical-linguistic, psychological, sociological, and axi-ological. Among these, the axiological plane was the most controversial and problematic one: on the one hand, it was usually recognized as a necessary one, yet on another hand, it was with just the same frequency reduced to others planes. Put it another way, ‘values’ relevant for law were interpreted as merely linguistic (expressions of agents’ evalua-tions), psychological (emotions of individuals), or sociological (moral beliefs dominating in social group) phenomena (see e.g. Wróblewski, 1969a, Wróblewski, 1969b)2.

Similar debates and controversies may be found also in other 2 Unfortunately, I am not familiar with any easy-to-access survey of that discussion in English. However, practical consequences of a ‘multi-plane approach’ may be well seen e.g. in the major (and translated into English) book of one of the best-known partici-pants of that debate, which is Judicial Application of Law by Jerzy Wróblewski (1992), where various theoretical models of application of law conforms with different possible planes of law. See particularly Wróblewski’s analyses of ‘ideology of judicial decision’ as an instance of studies on the axiological plane.


countries, and not only within jurisprudence. In Germany – just to evoke one, yet significant, example, the opposite views on the usefulness and reasonability of axiological reflection have been replacing one another on the dominant position in general jurisprudence during the whole XX century – the process that has been recently described in a persuasive way by Jerzy Zajadło (Zajadło, 2013, see also Klatt, 2007).

One can learn one more thing from the German example: that these methodological debates within legal science reflect more general disputes in social sciences and humanities. Also the state of defragmen-tation of perspectives – ‘objective’ and ‘neutral’ social science vs. ‘moral-istic’ social philosophy – can be observed in here. This rather miserable situation of both social and legal science has been depicted by Jürgen Habermas in his widely recognized book Faktizität und Geltung (Be-tween Facts and Norms – see Habermas, 1998). Habermas writes about two, equally one-sided, versions of bias within social theory: functional reductivism (of system theory’s kind) and aesthetic bias.

System theory represents in Habermas’es view these approaches which reduce axiological dimension of social life into some purely de-scriptive terms – what resembles the aforementioned general attitude of Polish jurisprudence to axiological plane of law. Thus from the point of view of Luhmann’s theory, socially relevant values might be described merely as one kind of expectations that social agents share – norma-tive ones, as distinguished from cognitive expectations. By doing this, Habermas claims, such functionalist approach “neutralizes anything that, from the participant perspective, appears obligatory or at all mean-ingful” (Habermas, 1998, p. 3). Yet this attempt to construct objective explanatory language drives to a paradoxical situation, for system the-ory lacks an explanatory force in some respects. Particularly it seems to be unable to justify practical commitments of social agents, and these practices which directly depends on such: “If reasons no longer com-mand a force intrinsic to rational motivation – if, as Luhmann formu-lates it, reasons [Gründe] cannot be justified [begründen] – then the high-priced culture of argumentation developed in the legal system becomes a mystery” (Habermas, 1998, p. 51). Legal scholar might express similar thought with a use of slightly different, Hartian vocabulary: for system theory ‘internal point of view’ is a mere delusion of a deceived lawyer’s mind (cf. Hart, 1961).

In the opposite corner Habermas locates ‘aesthetic bias’ of po-litical philosophy, offering a role of its most prominent representative to John Rawls. One can hardly find more radical opposition to func-


tionalism of system theory: Rawlsian theory of political justice expresses very clearly the fundamental role of practical commitment of agents. Yet Habermas points that it goes too far this way: eventually, Rawls is said to have nothing more to build on, than moral dispositions of individu-als, “political consciousness of a public of citizens”3 (Habermas, 1998, p. 65). Still such consciousness of individuals is far too weak to ground any effective standpoint for action or critique. By omitting an institutional dimension of political practices, Rawls is accused for building sandcas-tles. In that light, all the accusations for arbitrariness and subjectivism of moral considerations might be repeated.

There is probably only one way of escaping the theoretical trap of functional or aesthetic reductivism, both of which fail in a plausible depiction of axiological dimension of social practices. This escape is of-fered by institutional theory, and at least for two reasons. Firstly, such theory proves its own usefulness, for it allows for a reconstruction of values being ‘embodied’ within given institutional settings ‒ “normative presuppositions of existing legal practices”, to use another quotation from Habermas (Habermas, 1998, p. xl). Hence, analysis of legal and/or political institutions allows for a rational, non-arbitrary recognition of values material for the legal order (or, one might add, any other so-cial practice). Secondly, institutional theory reunite once again this what has been split in analyses of the aforementioned perspectives: objective social structures and practical commitments of agents (see Habermas, 1998, p. 66). To put it another way: it shows how axiological beliefs and ideals reflect at the level of institutional setting (or vice versa, as it is mutual, dialectical relation).

I will try to elaborate these two advantages of institutional per-spective, with a help of two philosophers: the already evoked Jürgen Habermas and Paul Ricoeur. Such a selection might cause doubts, as their philosophical standpoints differ much from each other, and, more-over, none of them is directly associated with institutional theory. None-theless, I will try to show that they might be helpful for our sake. The usefulness and strength of both these projects, when it comes to cross over shortcomings of various opposite theoretical perspectives, has been already proved by John Thompson (see Thompson). Whereas Thomp-son shows it in the context of a clash between empirical positivism vs.

3 It is not my ambition to answer a question whether Habermas’es critique does justice to Rawls. Even if it were the case that German philosopher misinterprets his American colleague, his description of ‘a threat of aesthetic bias’ remains inspiring and fruitful.


analytical theory in social science, it seems to be more universal quality of Habermas’es and Ricoeur’s output. For sure this is the quality that brings these two philosophers together: a constant attempt to mediate between opposing viewpoints, to search for a risky equilibrium between differing perspectives, even if as a result one has to face a charge for eclectism. This general inclination may prove its usefulness once more, when we search for a way out from an unprofitable opposition between empty empiricism of (empirical or analytical) legal theory vs. abstract and idealistic moralism of traditional philosophy of law.

Ricoeur – a roundabout route of reflection

One of the most persuasive examples of a fruitful conjunction of ‘objectifying’ analysis of existing practices with more subtle axiologi-cal (and existential) reflection is a methodological programme of Paul Ricoeur, a bit metaphorically described by himself as “a roundabout, arduous […] long route” (Ricœur, 1974, p. 6). Ricoeur employs this strat-egy mainly to scrutinize problems of subjectivity and self-conscious-ness. In that context he distinguishes two possible approaches, which are called a ‘short’ (immediate) and a ‘long’ (mediate) route. A typical example of the first solution is the classical Cartesian philosophy of sub-ject, which attempts to grasp directly one’s own subjectivity, Ego cogito. Nevertheless, Cartesian method meets a serious problem, as it implic-itly accepts a false presupposition of an absolute transparency of self-consciousness. Ricoeur claims – and he is seemingly right in that point – that it is never the case. He relies on Freud to state that “consciousness is not immediate, but mediate; it is not source, but a task, the task to become more conscious” (Ricœur, 1974, p. 324). A self-consciousness is always partially a ‘false consciousness’; one can never fully and directly understand herself. However, if the consciousness is opaque for itself, the only possible way to grasp it is to go beyond it and to choose the in-direct way of analyzing its creations: language, culture, works of art etc. As French philosopher puts it: “Consciousness is only the interioriza-tion of this movement, a movement which must be rediscovered in the objective structures of institutions, monuments, works of art, and cul-ture” (Ricœur, 1974, p. 325). This roundabout route is called by Ricoeur a reflection.

Ricoeur makes an exhaustive use of this method in his analysis of selfhood in one of his best-known book Oneself as Another – originally


Soi-même comme un autre (Ricoeur, 1992). Although the method is first and foremost designed and applied to the abovementioned reflection on the selfhood, it seems perfectly possible to engage it analogically for analysis of law’s axiological foundations. For one may perceive law’s axiology as determining the ‘self-consciousness’ and ‘identity’ of legal order. And just as those qualities of human being, which Ricoeur is try-ing to reach in his studies, it cannot be comprehended through a di-rect insight, but only on this arduous mediate path of reflection on legal practices and institutions. Hence, even if one can hardly count Ricoeur’s philosophy into institutionalism camp, he justifies the need and makes a room for institutional analysis of social world. Such analysis forms a preliminary, yet inescapable stage of any axiological reflection on law.

Habermas - Faktizität und Geltung

Since I have highlighted Habermas as the main authority to ar-gue for a need of conjunction of ‘empirical’ and ‘ideal’ elements in insti-tutional analysis of axiological dimension of law, one may fairly expect at least a sketchy reconstruction of the solution of these problems pro-posed by German philosopher himself. Once again it will be of a great help to read his Between Facts and Norms (Faktizität und Geltung), which treats directly on legal discourse and legal order of modern state.

When compared with the above viewpoint inspired by Ricoeur’s philosophy, Habermas may be read as designing an opposite direction of analysis, advancing from abstract and formally characterized com-municational reason (the plane of Geltung) towards actual settings of legal order and legal discourse (Faktizität). This is the usual way of re-constructing his philosophical project (not only for law, but for public discourse in general), and admittedly he offers some clues which invite for such interpretation. For instance, it is by no chance a matter of coinci-dence that in Habermasian reconstruction of the fundamental elements of modern legal order we find numerous recourses to the philosophers of the state of nature – Hobbes and Rousseau (additionally to obvious Kantian inspirations), which suggest a belief in a hypothetical situation of a fully rational, universal and formal activity of ‘pure’ communica-tional reason, which establishes foundations of political and legal order (cf. Habermas, 1998, pp. 118–128).

However, that’s only one possibility of interpreting the complex relations between ‘factual’ and ‘ideal’ – the possibility which focuses on


what may be called ‘a line of justification’. It is not my intention to ne-glect the presence of such perspective in the project of Habermas; still one should realize the parallel existence of another line, that of gnosis, that means gaining a knowledge of such foundational ideals (e.g. of the kind of communicative rationality). And the latter, Habermas might state, should always be reconstructed from the actual institutional set-ting of legal order.

Furthermore, even if these two main lines coexist in Habermas’es work, the priority is given rather to the line of gnosis, proceeding (let me repeat it) from actual institutional practices towards axiological ideals. As Habermas explicitly admits, to introduce theoretically and in abstracto basic ideals of legal order, as for instance fundamental rights, is nothing more but a mere trick, “an artifice” (Habermas, 1998, p. 129). In fact, ev-ery such ideal needs to be extracted from actual or past practices. Thus, the real starting point of reflection are the standards stemming from the actual historical development of European legal systems – which, ac-cording to Habermas, allow for a “generalizing reconstruction” of the principles of rational discourse and communicational reason.

The dialectics of ideal and practice

The above considerations allow for a conclusion that institution-al analysis offers a suitable – and probably even the most plausible – method for reconstructing foundational axiological ideals of legal order. So far, so good. However, this thesis should not be read as a claim about analytical relation between ‘empirical’ and ‘ideal’ dimension of institu-tion. Were this relation analytical, it would be possible to infer deduc-tively such ideals from facts at hand. As a result, possible ideals would be – from logical as well as practical point of view – fully dependent on existing practices. This would be a disappointing conclusion, though, as a reception of axiological ideals would be not so different from that of functional reductivism.

The two above-mentioned dimensions of institution should be rather perceived as remaining in more subtle, dialectical relations. Once again, this is the standpoint of Ricoeur and Habermas, who clearly ad-here to dialectical thinking in their works. And this is not just a stroke of luck that in these works they illuminate the crucial characteristics of such dialectical relation, which might be named – for the sake of brevity – as inter-independence and criticalness.


Dialectical relation is an inter-independent one, since – as Ricoeur indicates – its components can never be properly understood without each other, yet they are not to be conflated with nor reduced to one another. The most relevant dialectical relation is for Ricoeur prob-ably the one between Oneself and Another, as reflected in the title of his book. According to this viewpoint, Another becomes a necessary part of my own self-understanding, still remaining Another, distinct and inde-pendent from myself. Noteworthy, a similar dialectical structure might be noticed in the field of law, between ‘legal’ and ‘non-legal’ elements creating an identity of modern legal order (see Pichlak, 2014).

The second specific quality of dialectical relation consist in a fact that it is critical – that means that both components of it form a ground and a yardstick for a mutual criticism. This feature of dialectics is explic-itly employed by Habermas in his studies of political and legal institu-tions. According to his view, the ideals embedded in existing practices may be at the same time understood as counter-factual foundation of actual practice which is able to reflect critically its own results. This pos-sibility of internal critique of social institutions from the point of view of its own inherent ideals may be seen as a common motif of almost the whole output of German philosopher, including his early book The Structural Transformation of the Public Sphere – Strukturwandel der Öfetn-lichkeit, originally published in 1962 (Habermas, 1989). It has been also in an inspiring way applied to analysis of modern legal order by Kaarlo Tuori; Tuori employs this approach in order to describe relations be-tween various components of legal system (see Tuori, 2002).

***

As one may notice, despite the fact that the study focuses on the issues of epistemology of values, such epistemology (together with the methods of cognition typical of it) requires some ontological presump-tions as to the nature of public institutions. These ontological presump-tions form an implicit background of the analysis, even if they are not scrutinized here.

References

COYLE, S., and G. PAVLAKOS, eds., 2005. Jurisprudence or legal science? A debate about the nature of legal theory. Oxford: Hart Publishing.


HABERMAS, J., 1989. The structural transformation of the public sphere. An in-quiry into a category of bourgeois society. [Cambridge]: Polity.

HABERMAS, J., 1998. Between facts and norms. Contributions to a discourse theo-ry of law and democracy. Cambridge, Mass: MIT Press. Studies in contemporary German social thought.

HART, H., 1961. The concept of law. Oxford: Clarendon Press. Clarendon law series.

KLATT, M., 2007. Contemporary Legal Philosophy in Germany. Archiv für Rechts- und Sozialphilosophie, 94(4), 519-539.

PICHLAK, M., 2014. Prawa człowieka a dialektyka prawa. In: A. BATOR, M. JABŁOŃSKI, M. MACIEJEWSKI, and K. WÓJTOWICZ, eds. Współczesne koncepcje ochrony wolności i praw podstawowych. Wrocław: Prawnicza i Ekonom-iczna Biblioteka Cyfrowa, pp. 23-36.

RICŒUR, P., 1974. The Conflict of Interpretations: Essays in Hermeneutics. Evan-ston, Ill: Northwestern University Press.

RICOEUR, P., 1992. Oneself as another. Chicago: University of Chicago Press.

TUORI, K., 2002. Critical legal positivism. Aldershot: Ashgate. Applied legal philosophy.

WRÓBLEWSKI, J., 1969a. Prawo i płaszczyzny jego badania. Państwo i Prawo, (6), 996-1006.

WRÓBLEWSKI, J., 1969b. Zagadnienie wielopłaszczyznowości w metodolo-gii współczesnej teorii prawa. Studia Prawnicze, 21.

WRÓBLEWSKI, J., 1992. The judicial application of law. Dordrecht: Kluwer Aca-demic Publishers. Law and philosophy library. v. 15.

ZAJADŁO, J., 2013. Philosophy and theory of law in contemporary German jurisprudence. In: A. BATOR AND Z. PULKA, eds. Legal Theory and Philoso-phy of Law: Towards Contemporary Challenges. Warsaw: Scholar, pp. 67-88.

Institutional Analysis and Epistemology of Values in Law: an Outline

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