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LEGAL SEMIOTICS MONOGRAPHS, Vol. XI
Anna Pintore, Law without Truth
Introduction (footnotes omitted)
1. This work
For a conspicuous number of legal philosophers, the problem of whether
the predicates of 'true' and 'false' are applicable at all to law is simply
non-existent. If law is a body of norms and if those norms (conceived as
sentences, meanings or suchlike) are entities belonging to the universe
of directives, then truth is not a predicate that applies to the law: just
as illness is not applicable to numbers.
The basic assumption on which this simple reasoning rests can be formulated
more precisely in the following way:
[1] no directive discourse can be true or false
Another possible formulation might be:
[2] only indicative discourses can be true or false
Many legal philosophers would be quite prepared to subscribe also to
[2] and would consider it to be, to all intents and purposes, the equivalent
of [1]. For my part I prefer to keep the two theses distinct and use only
[1] here; this will equally serve my purpose, and is likely to generate
less complications because of its more limited scope. As we know, the distinction
between directive language and indicative language is not considered to
be exhaustive by everyone who draws it. In addition, there are those who
hold that apophanticity (truth-value) is a characteristic not only of indicative
discourses, but also of other types of discourse, e.g. performative discourses.
For this reason, theses [1] and [2] cannot be treated as equivalent and
for our purposes it is better to use the weak thesis [1], which is after
all contained logically within [2].
That truth-values cannot be referred to directives is a recurrent theme
in the analytical philosophical literature; I would go so far as to say
that this is one of its identifying traits, in particular in its Italian
version. The fundamental, undeniable principle of analytical philosophy
is the Great Division between indicative and directive discourses. The division
is great and impassable (a logical gap), precisely because only indicative
discourses can be true or false and qualified as such with the aid of intersubjective
procedures; conversely, directive discourses can be neither true nor false,
but can at most be qualified on the basis of such different values, other
than truth, as individuals ascribe to them freely and that are ultimately
the result of subjective choices.
So thesis [1] constitutes the real basis of analytical philosophy -
a premise so basic and accepted that it is not necessary even to discuss
it.
So it comes as no surprise that the analytical response to the question
about the truth of that part of the directive that is legal is uncompromisingly
negative: since law consists of directives (legal norms) and since directives
can be neither true nor false, it follows that legal norms can themselves
be neither true nor false. For the analytical philosopher, truth may only
be a predicate, at most, of metalinguistic discourses (obviously only those
in indicative mode) about law, but never of law itself. To put it bluntly,
the question is simply not considered open to discussion; if anything is
open to discussion, it will be the consequences of the denial of such attributes
to directive discourses, in particular with regard to the logic of norms.
It follows as inevitable that analytical philosophers will exclude law
from the domain of truth: this is the necessary consequence of the conjunction
between their divisionist semiotics and their metaethical non-cognitivism
and non-objectivism. In analytical legal philosophy, non-objectivism and
ethical non-cognitivism combine naturally with the voluntarist tradition
that runs through all modern legal culture, from Hobbes to Kelsen: auctoritas
non veritas facit legem is Hobbes' celebrated motto, on which Kelsen appends
his lapidary statement: "there can be no question of a 'truth' of law.
For law, even just law, is norm, and - as norm - can be neither
true nor false".
But if he is to be coherent with his starting premises, the analytical
philosopher must treat his own conviction, that legal norms can be neither
true nor false, as the result of a choice: what we could call an ultimate
choice of a philosophical nature, which means that it is open neither to
logical demonstration nor definitive empirical proof.
I also believe that this is how things stand. This is because the question
of the truth of law takes us into the terrain of ultimate philosophical
premises, which means that they are not open to further argument. Nevertheless,
I believe it would be worthwhile to ponder a while on the topic of the truth
of law: in the usual analytical way, to define the parameters, to draw some
distinctions that have been missing until now or that have been drawn in
a rather unsatisfactory way. In our field, the radical nature of the positions
adopted has, as I have already suggested, resulted in practically all discussion
being outlawed, with the consequence that the main reasons both for and
against the ascription of truth-value to norms have often been proposed
or refuted apodictically. Precious little interest has been taken in and
precious little attention has been paid to the philosophical ideas latent
in the various conceptions concerned with the relationship between truth
and law, including those of the analytical conception itself.
The analytical philosopher's job is therefore primarily one of self-reflection,
not least for the excellent reason that his own ideas are perfected and
can be better defended, the more he refines them by comparing them with
different ideas. Secondly, its usefulness becomes apparent as soon as he
realises that the terms of the problem are not as simple as his own formulation
may suggest.
Indeed, the question "can law be true (or false)?" is irremediably
ambiguous, for the obvious reason that there are various meanings that can
be attributed both to truth and to law. In the following pages, the concept
of truth will be used, so to speak, as an independent variable: several
conceptions of truth will be scrutinised together with the ways in which
they inevitably reflect on law.
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