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Deborah Charles Publications
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LEGAL SEMIOTICS MONOGRAPHS, Vol. XI
Anna Pintore, Law without Truth
Introduction (footnotes omitted)
(continuation: click here for
first section)
This work unfolds according to the following plan. The first chapter
illustrates the salient characteristics of contemporary philosophical discussions
about truth. These discussions are particularly lively at present, especially
among logicians, epistemologists and semioticians. In these "sectorial"
philosophical disciplines, there is no particular dominant conception or
theory of truth: everyone interprets Tarski's conception, despite its being
much debated, or maybe because of the very fame it enjoys, in the manner
most favourable to his own view of the question of truth, so that it has
ended up as a sort of mark of approval which every conception of truth must
try at all costs to appropriate for itself. Nevertheless, the discussion
is particularly intense among logicians, philosophers of science and semioticians,
because it springs from a single concept of truth, obviously a minimum concept
that is compatible with different conceptions: 'truth' (or rather 'true
of') as a term referring to linguistic objects and a term of a relational
nature. This concept, which we can call the minimum analytical concept of
truth is flanked and opposed in general philosophical speculation by multiple
"synthetic" views which can only be characterised negatively here,
since all of them question the principal aspects of the analytical concept,
namely its linguistic and relational character. These conceptions can be
labelled as synthetic not because they are "too" philosophical,
but because they do not separate the main philosophical questions that are
connected and compressed in the narrow confines of the concept of truth.
These are: epistemological questions, semiotic or conceptual questions and
ontological (metaphysical) questions.
The second chapter is devoted to an examination of the more common arguments
used for and against the possibility of ascribing truth-values to norms
(in general, not just to legal norms). I dedicate little space to the classical
arguments, since I fear that I have nothing original to say about them;
rather, I invest more time in the "new" semiotic arguments, although
they, too, will eventually turn out not to be decisive for solving the problem
in one way or the other.
The second part of the book examines those conceptions of truth which
enjoy the greatest following in analytical (but not only analytical) circles:
the "classical" theory of truth as correspondence, the coherence
theory of truth, the consensus theory of truth and lastly the theory of
truth as procedural correctness.
Chapter III is devoted to the concept of truth as correspondence and
to its uses in law. An exhaustive treatment of the topic would have called
for a reassessment of the whole history of natural law - neither possible
nor, fortunately, necessary within the scope of this book. I have therefore
gone no further than to examine some recent applications to law of the idea
of truth as correspondence (examining particularly the works of G. Kalinowski,
E. Opocher and F. Viola). My conclusion is that to treat law as true (and
not only as just), because there is a correspondence between its norms and
an objective moral or legal reality, expresses not so much agreement with
ethical objectivism as a desire for an impossible return to an ancient view
of the world: of a world where not only the great division between Sein
and Sollen is ignored or rejected, but the same fate is suffered by a distinction
that is even more fundamental for modern thought, that between society and
nature.
In Chapter IV, I examine the coherence theory of truth and some of its
recent uses in the field of law. In particular, I consider what Dworkin,
Alexy, Peczenik and MacCormick say about it. In this chapter, I maintain
that if the value of coherence, which is an ethical and legal even more
than an epistemological value, is used as the hinge of a general conception
of truth, it risks being transformed into a terribly autocratic (post-modern?)
metaphysics.
In Chapter V, I deal with truth as consensus, especially the conception
elaborated by Habermas and scholars more or less closely linked to him,
such as Apel, Aarnio, Alexy and Peczenik. The consensus theory of truth
may appear to be plausible only if its scope is strictly limited and it
is converted into an openly ethical-political conception - a regulatory
idea for governing the public sphere.
A comparable approach can be adopted with regard to the idea that normative
and legal truth can be connected to the notion of procedural correctness
(this topic is the subject of Chapter VI). Such an idea runs through Habermas'
thought and (whether in connection with or independent of him) much of contemporary
philosophy, including legal philosophy.
Law is irremediably without truth, but that is what provides it with
its usefulness and, I would say, its raison d'être. Linking law to
truth makes it an aim, or a principle in itself, and induces us to neglect
its essential nature, which is that simply of a tool. It induces us to consign
it to the domain of power, which, if it is conceived as the source or a
channel of truth, is thus removed from the public control and accountability
that are essential for our liberal democracies.
2. Analytical and synthetic conceptions of truth
The perspective I have adopted in order to tackle the question of truth
in this book is an analytical one. Obviously, this perspective does not
exhaust all the possible approaches to this topic: as a matter of fact,
it may even be considered to represent a minority in the overall panorama
of contemporary philosophy. It will certainly be considered insufficient
by those wedded to a more "powerful" conception of philosophy:
they will tend to interpret the analytical approach as an attempt to fragment
the great philosophical question of truth and trivialize it. Such "powerful"
conceptions also include some which radically criticise the concept of truth
but, in that very negative stance, implicitly confirm its unitary, indivisible
character.
As it is certainly impossible to tackle this argument from a neutral
standpoint, even a defence of the approach chosen can only be situated entirely
within it and proceed on the basis of its own assumptions and principles.
Nevertheless, certain reasons can be cited to support the perspective
adopted here.
The first is that the analytical perspective, in the broad sense of
the term, is primarily a metaperspective, which tells us how to lay the
foundations for the philosophical question of truth, but does not force
us to adopt a univocal solution, leaving various directions open, albeit
within the limits set by the analytical method.
Yet the fact that we are talking in terms of a metaperspective should
not be construed as suggesting some sort of conciliatory ecumenism, a philosophical
licence that anything goes. Analytical philosophy entails a radical change
of track with respect to tradition, since it contests the existence of any
unique and unitary question of truth, maintaining that this term is used
to compress and confuse philosophical questions of a different nature, which
ought to be tackled separately. But, at least in the version defended here,
it also maintains that these questions cannot be solved by mere linguistic
stipulation. So the invitation to dissect and decompose is neither the result
of philosophical impatience, nor should it be treated as a short-cut or
a way of washing one's hands of the question. Both the solution of pure
definitional stipulation and that of an anaemic minimalist conception of
truth (truth being understood to be a redundant concept) are sterile, because
they are calculated to exclude from the debate about truth its most typical
dimension, the metaphysical dimension.
Thus, the part of synthetic philosophies which I refute is their approach
to the question of truth, and certainly not the relevance of truth as a
philosophical problem. I do not reject metaphysics, only a pre-analytical
or anti-analytical approach to metaphysics.
Analytical conceptions are in fact no less metaphysical than synthetic
conceptions: they are expressions of different metaphysics. But what is
analytical metaphysics? A general answer is difficult at this stage, since
it would risk deteriorating into generic terms. Although I shall return
to this in the course of the book on many occasions, for the moment I make
only the following observations.
In analytical philosophy, the question of truth returns to its starting
point, to the question of the relationships between intellectus and res,
between mind and reality or, if you like, between thought and being -
a metaphysical question par excellence. But it returns in a modern way,
separating thought from being or, rather, language from reality. In this,
analytical philosophy turns out to be incompatible with all the philosophies
that treat being and language as inextricably united.
Analytical metaphysics is made up of territorial divisions. On the subject
of truth, it concentrates mainly on drawing the lines between an epistemological
territory, an ontological territory and a semiotic or logical-conceptual
territory. As a consequence, it requires distinctions and makes use of linguistic
tools to draw them. Yet this latter approach is not treated as if it were
purely ornamental, a superfluous "semiotic layer" with which we
could dispense; on the contrary, it provides our only access to the other
territories.
The territorial distinction that is most relevant to the question of
the relationship between truth and law is the one between is and ought,
between the world of facts and the world of norms, a distinction considered
as fundamental by divisionist analytical philosophy. The general projection
of language on to the world is seen as moving in two directions and not
just in one. In other words, it is the intellectus that must adapt to the
res in the world of is, but it is the res that must adapt to the intellectus
in the world of ought. It is only when the relationship is oriented in the
first direction that we can use the "great word" truth.
Finally, analytical philosophy is a philosophy of limits, of self-confinement
within mobile frontiers. It sees the relationship between knowledge and
the world as a relationship of method and thus reveals its scientific roots.
It is therefore a perspective that centres on a direct or mediated return
of truth to science, which responds in the affirmative to its critics' peremptory,
targeted question: "is science truly, as it claims to be, the last
instance and the sole repository of truth?". For analytical philosophy,
truth is a primary value for which science provides the most basic and useful
tool.
Beyond these limits and in the absence of these conditions, it is impossible
to speak of truth, at least in analytical terms. But this no longer, today,
condemns us to silence, as analytical philosophy has now taught us.
(click here for first
section)
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