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Law and Language: The Italian Analytical
School
INTRODUCTION
by
Anna Pintore
(for footnotes to this Introduction, click
here)
(Continued)
3. A Divisionist Philosophy
We now turn to a more precise indication of the principal
features and problems now being discussed by the Italian analytical legal
school. This is by no means an easy task. Indeed, the very notion of "analytical
philosophy" is quite controversial. Debate on this very theme is lively
today, in Italy as elsewhere. From it have emerged different characterisations
of this philosophical orientation. As I see it, three families or notions
of "analytical philosophy" have been advanced thus far among Italian
analytical legal philosophers. In a first, quite weak sense, it has been
said that analytical philosophy is for the most part a "philosophical
style" characterised by a preference for analysis rather than synthesis,
by a propensity for distinctions rather than for the great conceptual rassemblements,
and by a preference for rigorous argumentation.[15] In a second sense, analytical
philosophy has been characterized as a philosophy asserting the total reducibility
of thought to language: an analytical philosopher is one who holds that
language is the indispensable vehicle of thought.[16] In a third sense,
which is certainly the strongest of the three, analytical philosophy is
connected with certain basic metaphysical ideas or ultimate principles not
susceptible to further justification (discussed in what follows as "divisionism"
and "neo-empiricism"); they condition its proceeding and distinguish
it from that of all other philosophical orientations. [17]
It would be out of place in this context to abandon the
description of the Italian analytical-legal school in order to embark on
a general discussion of these and other possible definitions of analytical
philosophy. I shall therefore limit myself to a brief exposition of my opinion
on this subject. I take it for granted that analytical philosophy is not
merely a technique to be used in the analysis of language. To reduce it
to this is tantamount to mistaking the menu for the meal.[18] The dishes
served at the analytical banquet are full of quite demanding principles
and philosophical options, so much so that many consider them indigestible
and turn to lighter, and faster, philosophical food. To continue with the
gastronomic metaphor, we may add that the table of analytical philosophy
is set with a rich variety of dishes capable of satisfying different tastes,
even though they are all prepared with the same basic ingredients.
The analytical philosopher undoubtedly considers that
one cannot transcend language. This would, however, be insufficient to characterise
him or her, for many contemporary philosophers would in fact be willing
to subscribe to this idea. It is also beyond doubt that analytical philosophy
has an unmistakable "style", although it is difficult to translate
this impression into words and into a list of distinctive elements. Concerning
the analytical philosophy that deals specifically with law, it has rightly
been said that, compared to other philosophical orientations, its style
and approach is no less influenced by legal thinking, problems and style
than by general philosophical ideas. Nevertheless, it is to be stressed
that to practice a philosophy closer to jurists does not imply adopting
indiscriminately their language and concepts; much less ignoring the philosophical
problems of law. Within Italian analytical-legal philosophy, the coexistence
of a theory of law from above with a theory of law from below has rightly
been pointed out.[19] This distinction does not coincide with the distinction
between a more and a less philosophical theory: rather it is useful in distinguishing
between a theory more oriented towards logical, methodological and even
metaphysical problems and one that is more interested in the "concrete
problems of conceptual arrangement as they arise in this or that legal discipline".[20]
An excellent example of a theory from below is supplied in this anthology
by Lazzaro's essay on the relationship between legal and common language.
A paradigmatic example of a theory from above is to be found in Conte's
essay on constitutive rules.
We can already see that the Italian analytical approach
to legal philosophy is by no means representative of a compact and homogeneous
school with univocal ideas and positions. However, it is possible to find
within it certain common characteristics that are not simply questions of
style or due to the importance attributed to language. These characteristics
are rather philosophical principles that Italian analysts consider fundamental
and that must be taken into consideration, even if only for the purpose
of rejecting them. One characterisation of the analytical method in this
sense has been attempted by Jori and Guastini, and it is significant that
both of them - the former, a normativist, and the latter, close to
legal realism - consider the same two principles as constitutive
of the analytical attitude: the principle of the "Great Division"
between prescriptive and descriptive language and the principle of the distinction
between analytical and synthetic judgements.[21]
With the distinction between prescriptive and descriptive,
a first, fundamental and distinctive feature of the analytical school can
be identified, that is, divisionism.; with the distinction between analytical
and synthetic it is possible to single out the second, which is empiricism.
These two characteristics, although indicative of the
peculiar position of the Italian analytical school in contemporary legal
culture, are at the same time quite general and problematic. Therefore they
serve to explain not only the points of convergence, but also the disagreements
to be found within the analytical school.
Let us begin with divisionism: this is a complex ethical
conception, within which one must distinguish between three logically independent
theses. Firstly, there is the semiotic thesis of the Great Division in the
strict sense, that is, the semantic-pragmatic distinction between types
of discourse and linguistic functions, both descriptive and prescriptive.
Secondly, there is the (meta)ethical thesis, known as Hume's Law, which
prohibits going from descriptive premises to prescriptive conclusions and
vice versa by purely logical-linguistic means. Thirdly, there are two ontological
and epistemological theses, known as ethical non-objectivism and non-cognitivism
respectively; these deny that the prescriptive is the dominion of the true
or the false, or of any other objective and knowable value.
Their divisionism causes Italian analysts to be critical
of both old and new versions of natural law theories: indeed, whatever Italian
analysts are today, they are certainly not natural lawyers. They are not
so with regards to the substance, since they refuse all confusion between
the concept of law as it is and the concept of law as it ought to be; they
do not want to adulterate the description of law with value judgements.
Nor are they natural lawyers in the methodological sense, since they deny
that moral judgements can be objectively true and knowable.[22]
A fundamental test of membership to the analytical school
is thus represented by acceptance of the distinction between descriptive
and prescriptive. This is obviously not a distinction between two spheres
of reality, but between two kinds of discourse. It should not appear surprising
that analysts get along quite well with those philosophers who claim they
can overcome the Great Division, but still take quite seriously the distinction
between the prescriptive and the descriptive and problems connected with
such a distinction. Gaetano Carcaterra is an analyst in this sense. He is
the author of a powerful work on the naturalistic fallacy in which, after
a profound and careful examination of the problem, he concludes by rejecting
the Great Division in the strong sense of the impossibility of going from
the descriptive to the prescriptive. [23]
With a brevity appropriate to these rather blunt periodisations,
three main stages in the discussions amongst Italian analysts concerning
meta-ethics can be distinguished. In a first stage the implications of divisionism
were examined in depth, both as metaethical and ethical problems, and as
semiotic problems.[24] The next stage was dominated by the need to refine
theoretically and to defend from attacks the divisionistic thesis; attacks,
especially with regards to criticisms coming from within philosophical analysis
itself, and based mainly upon Austin's theory of performatives and Searle's
theory of institutional facts.[25] A significant text on this point is the
essay by Scarpelli in this volume, which shows that it is possible to be
both a divisionist and a fierce critic of radical emotivism and other forms
of ethical irrationalism. The most recent stage is characterised by a deep
change in the way in which the divisionist thesis is practiced and applied
to practical problems within the field of the law.
Italian legal philosophy is today part of what has been
called the "rediscovery of practical reason" in ethics and law.[26]
Several and diverse factors have contributed to the creation of the new
atmosphere; among them, the shifting of interest among analytical philosophers
from metaethics to normative applied ethics, a shift that is usually related
to Rawls' A Theory of Justice; interest in Perelman's new rhetoric and,
more recently, in Habermas' and Apel's ethics of discourse and the theories
of rational argumentation of Alexy, Aarnio and Peczenick; the diffusion
of the so-called post-positivistic theories, proposing less rigorous criteria
of empirical scientificity.
A most significant aspect of this recent stage in the
discussion, which well exemplifies the new course in analytical debates,
is documented by the proceedings of an analytical meeting on moral and legal
justification [27] which took place in 1984. Within the Italian school of
analytical legal philosophy, the subject of practical reason in law has
been closely studied, particularly by Letizia Gianformaggio (see the essay
in this volume), who was led from Perelman to a weak and divisonistic concept
of practical reason. The most recent, and at the same time most remarkable,
contribution supplied by the Italian analytical school to the "rediscovery"
of normative ethics is Diritto e ragione by Luigi Ferrajoli, a powerful
book that will certainly make a long-lasting mark on legal culture. Diritto
e ragione is a treatise on the philosophy of criminal justice inspired by
the defence of a refined normative model of minimum criminal law in support
of the rule of law.[28]
This divisionistic, and accordingly anti-natural law attitude
shared by Italian analysts accentuates the impression of their apparent
sharp differentiation from theorists of other schools, and their apparent
closeness of opinion inter se. In effect, anti-divisionism makes all possible
dialogue with adversaries difficult, certainly not because either position
is intolerant of debate, but because they bring about many subtle differences
in the use of language. The Italian natural lawyer devotes his efforts prevalently
to the philosophy of justice and the history of legal philosophy, two branches
of study that he appears to see as largely coincident, as the philosophy
of justice is equated to the study of the concretisation of the idea of
justice throughout history. The naturalists show scant interest for legal
theory: only rarely do they deal, for example, with the problem of the norm,
of the legal order, of interpretation, of legal reasoning and so on. Up
to now, current Italian legal theory has been prevalently analytical. Nonetheless,
also in Italy, a hermeneutic theory of law is now developing a close-knit
dialogue with analytical theory. I suspect, however, that the reciprocal
interest shown by hermeneuts and analysts does not arise so much from a
convergence of principles or the existence of common problems, but from
an extrinsic factor, that is, from the fact that both orientations are interested
in language and law as a language.[29]
4. An Empiricist School
Divisionism is thus a first fundamental feature of the
Italian analytical school, a position accepted and defended not only for
epistemological but also for ethical-political reasons. Divisionism in fact
is seen as a precondition for defending the space of a scientific, or at
least neutral, description of the law and to preserve the clarity of moral
criticisms of law.
The approach of Italian analysts to law is characterised
by another principle: the distinction between analytical and synthetic judgements,
and thus empiricism, in its special version of neo-empiricism.[30]
In fact, Italian analysts today on the whole still accept
the neoempiricist model of the natural and social sciences, just as Bobbio
had done in the 1950s. The essays by Ferrajoli and Jori published in this
collection are an example of the persistence of neoempiricist influence
on Italian legal analytical philosophy. As both these essays show, this
model is used to examine closely the several discourses concerning law,
and especially those of jurists, purporting to be part of a "legal
science".[31] I suspect that this is the part of Italian analytical
discussions that English-speaking readers will find furthest from their
own interests. For often discussed historical and cultural reasons, the
question of the epistemological nature of legal science and the very notion
of "legal science" are not among the problems studied by jurisprudence
in common law countries. Significantly, one fault Hart's Italian critics
have repeatedly found in his much appreciated theories is that of having
neglected to account for the position of the doctrinal jurist when making
his celebrated opposition between the external and internal point of view.
A criticism of this kind is expressly formulated in Jori's essay on legal
science, and it is clearly suggested in Alfonso Catania's essay on the concept
of "acceptance" in Hart.
Among Italian analytical-legal philosophers, adhesion
to a common epistemological model has not given rise to a unitary conception
of science and the theory of law. Two main facts explain this. Firstly,
this shared epistemological model (according to the present fashion, it
should perhaps be called a paradigm) has its roots in rather divergent versions
of empiricism. These different opinions will be briefly discussed below,
where mention will be made of the simultaneous presence within the Italian
analytical school of different semiotic conceptions, which point to rather
different versions of empiricism. Secondly, the intervention of the other
analytical principle (the distinction between descriptive and prescriptive)
further complicates things. In fact, when applying this distinction to the
problem of legal science and cognition, one immediately realises that the
question is actually composed of three problems. Firstly, the problem of
whether legal science-as-it-is really is a genuine science; secondly, the
problem of whether legal science-as-it-is, although not a true science,
can be transformed into a scientific undertaking; finally, the problem of
whether it is opportune for the jurist to become a scientist. The various
answers to these problems can intersect in rather complicated ways.
Italian analysts have thus applied the neo-empiricist
model of science first and foremost as a descriptive model, as a yardstick
for ascertaining whether or not the arguments effectively produced by jurists
are consonant with the model and can consequently be considered scientific.
Today, almost all Italian analysts refuse to grant the status of scientificity
to legal science.[32] Nevertheless, this convergence turns out to be rather
shallow, once the much different reasons advanced in justifying such a conclusion
are spelled out. In fact, it is one thing to say, with Scarpelli, that legal
science is not a science since it identifies its object (the law) through
the preliminary choice of a basic norm, which is a politically biased choice
and therefore a methodologically inadmissible move in the light of neo-empiricist
scientific criteria. It is another thing to say, as does Tarello (see the
essay published in this volume), in the tradition of interpretative scepticism,
that legal science is not a science since mere cognition of norms, through
mere cognition of legal prescriptive meanings, is impossible. [33]
These divergences resound on the second question, whether
legal science can be turned into a genuine scientific discourse. For some
analysts, legal science, as practised by contemporary jurists, is not a
science. But it could become one without undergoing radical changes, or
could at least be made into a controllable rigorous discourse. This was
Bobbio's position in the 1950s and was substantially shared by Scarpelli
and Jori, that is to say by the normativist branch of the analytical school.[34]
On the sceptical-realist side, we find the opposite thesis, implicit above
all in the ideas of Tarello, Pattaro and Guastini, that so-called legal
science as such could never become a true science nor a rigorous (univocal)
discourse, without a radical change in its very nature. Jurisprudence is
seen by these sceptics as the activity of creating norms, and thus of producing
law, which can never be reduced to a pure recognition of pre-existing law.
The essays in this volume by the authors just mentioned show these differences.
We now come to the third point, whether or not it is opportune
to transform jurisprudence into a scientific discipline. Disagreements on
this point would appear to be the simplest to examine and to resolve, by
reaching a philosophical agreement as to the prescriptive model of legal
science to adopt, which could then be recommended to jurists. However, the
questions of opportunity are at least as troublesome as those of fact, perhaps
because, as history shows, legal philosophers have little chance of success
when they venture onto the field of prescriptive meta-jurisprudence (the
term was coined by Bobbio) and start prescribing how jurists should behave,
particularly when their proposals aim at innovation in actual legal practices.
Perhaps the near impossibility of influencing reality explains why so few
legal theorists (basically only Alf Ross) have dared to propose openly a
radical transformation of legal science and its adaptation to the canons
of neo-empiricism.[35] None of the Italian analytical theorists has taken
such a stance. They have elected not to try to induce soi-disant legal science
to change its course, limiting themselves to propound a greater rigour and
intellectual honesty in not hiding the choices made. They recognise that
the need for a properly empirical and scientific description of law can
be satisfied by the sociology of law and the other empirical sciences of
law (anthropology, psychology and so on); these disciplines might avail
themselves of the conceptual clarifications performed by analytical legal
theory, when constructing their own network of theoretical concepts which,
in the well-known image of Hempel, must be placed in contact with reality
through empirical investigations.[36]
5. Analytical Semiotics
Divisionism and empiricism, of course, deeply influence
the legal semiotics elaborated by the Italian analytical legal school. Thus,
such legal semiotics is divisionistic and empiricist; this means firstly
that the analyst considers the prescriptive nature of legal language to
be its most important semiotic feature, as befits a discourse aimed at guiding
human conduct. Second, it means that the analyst attributes crucial importance
to relations between language and extra-linguistic empirical reality, even
when dealing with a prescriptive language such as that of law. These two
ideas prove that the legal semiotics of the Italian analysts belongs to
the family of so called prescriptivistic semiotics, to the development of
which they have made some substantial contributions, although this is unfortunately
little known. Semiotic prescriptivism is in fact animated by two basic convictions:
that prescriptive language no less than descriptive language contains a
semantic component representative of reality (the phrastic, in R.M. Hare's
terminology); and that prescriptive language is semantically different from
descriptive language, since it is meant to function as a guide to behaviour.
These two features may be used to distinguish the semiotics practised by
the analytical legal philosophers from other kinds of semiotics which may
be considered not analytical, since they are not motivated by analogous
empiricist and divisionistic preoccupations.[37] As usual, this is a very
rough division; the least "orthodox" thinkers from this standpoint
are Carcaterra and Conte, whose essays included in this volume deal with
the puzzling subject of constitutive rules. Both these authors have devoted
long years of study and have made important contributions to this argument,
which represents a crucial test for prescriptive semiotics, insofar as constitutive
rules are norms but appear to prescribe no action. Carcaterra upholds a
kind of ontological productivity of language (language shapes reality),
while Conte, the most enigmatic of the Italian analytical philosophers,
draws a typology of the constitutive rules behind which we may perhaps glimpse
the thesis that language and the world are really not separable at all.
Thus, within the Italian analytical legal school a common
basis of semiotic ideas coexists with quite different conceptions of the
further objectives of the semiotic investigation of legal discourses. Since
semiotic ideas never represent the ultimate foundation of legal philosophical
positions, we should not be surprised at discovering that the tendencies
we find at the level of semiotics represent the restatement of more traditional
positions of legal philosophy. Today, the main orientations of Italian legal
analytical theory dispute on semiotic ground, rather than directly by arguments
of general legal philosophical positions. In fact, the corrosive criticism
of analytical reason has rather made the traditional labels used in the
legal theory to differentiate among general positions, such as (legal) positivism,
naturalism and realism, outmoded. This is because of their uncertain capacity
to designate definite standpoints. It has not, however, been able to do
away entirely with what they stand for.
It is therefore possible in semiotics to distinguish between
a normativistic (formerly legal positivistic?) tendency and an anti-normativistic
(legal realistic?) tendency within the Italian analytical school. The former
is characterised by the central place accorded to the notion of rule or
norm defined as a meaning-content and of a normative order or system, and
by its favouring an approach to law seen as an abstract set of such normative
meanings. Conversely, the anti-normativistic tendency assigns a central
place to the problem of interpretation, embraces a quite sceptical conception
of this activity and for the most part devotes itself to the study of actual
interpretative activities and of their results. This approach doubts that
an abstract normative description of law is admissible, unless it is seen
merely as a part of historical or sociological discourses about the law;
one that purports to describe and explain what produces certain normative
meanings, seen as jurists' ideological positions, and what cultural and
social effects the adoption of specific laws might have.[38]
On the other hand, the abstract normativistic description
is admissible for its advocates insofar as they accept a more liberal version
of empiricism, one that has learned Saussure's structuralist lesson; while
for its detractors, normativism is tantamount to a theory of natural law
en travesti as it represents a departure from strict empiricism, which (they
believe) is bound to reject abstract notions such as "meaning",
"structure" and "system" (both legal system and perhaps
even linguistic system).[39] Jori has proposed resorting to another basic
principle for explaining the conflict between these two analytical tendencies,
the distinction between the sociological context and the context of justification,
which normativistic semiotics certainly accepts but anti-normativistic semiotics
tends to reject.[40]
Albeit not because of any logical or theoretical necessity,
the legal realist approach usually goes with a greater propensity for the
study of descriptive meta-jurisprudence, for an approach from below to legal
problems and in general for lexical investigations, descriptions of arguments
actually produced by jurists, of the history of legal culture and of juristic
ideologies. Significantly, Guastini, a disciple of Tarello, indicates, as
the main objectives of the analysis of language, the recording of linguistic
usages, the discovering of syntactic and semantic ambiguities and uncertainties,
the unveiling of value elements hidden in legal discourses, and the systematic
definition of the terms used.[41]
On the other hand, the normativistic semiotic approach
is accompanied (it too certainly not because of any logical-theoretical
necessity) by a greater propensity towards prescriptive meta-jurisprudence
(the expression is again Bobbio's), towards the theory from above and in
general towards reconstructive analysis, and the development and use of
models, in the sense of ideal-typical reconstructions of actual legal discourses.
These different semiotic tendencies within the Italian
analytical school obviously influence the choice of themes that receive
the greatest attention, and the two semiotic orientations end up by being
attracted by rather different areas of investigation, as stated previously.
But all legal-theoretical problems are inextricably interwoven, so that
in dealing with one problem it is inevitable that many others must be tackled
at the same time. The differences in semiotic formulation we have just mentioned
are often perceptible only if one examines the merits of the solutions found
for the various problems, rather than in the choice of the areas to be studied.[42]
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