Normativity and objectivity in law.

• Author: Patterson, Dennis

The agreement of people in calculation is not an agreement in opinions or convictions.

--Ludwig Wittgenstein (1)

INTRODUCTION

The protagonists battle on. Trumpeting right answers, (2) foundations, (3)

and truth, (4) objectivists lash out against the unrelenting tide of nihilism, postmodernism, and deconstruction. (5) Armed with the tools of literary theory, antifoundationalism, and Kuhnian (6) "relativism," subjectivists (7) dismiss the dreams of objectivism as philosophical illusions. But the "conflict" between these two camps is vastly overstated. In fact, the entire debate depends upon a shared premise, one that is both false and unnecessary. The objectivism/subjectivism debate assumes a picture of mind and law that should be extirpated rather than explicated. (8) In this Article, I argue in favor of objectivity but do so from a more perspicuous framework. I seek to change the terms of the debate from one of mind to one of action. After this change is effected, the current debate will simply fade away, and a new, more revealing focus shall take its place.

Objectivity is often theorized as a relationship between an assertion and some state of affairs in virtue of which the assertion is "objectively true." (9) The nub of the argument is that assertions or beliefs are true in virtue of the way things are (i.e., facts). (10) Facts make assertions and beliefs true, and objectively so, for facts are not mere matters of mind: they are a function of the way things are. (11) By conceptualizing objectivity in terms of a connection between a belief or assertion and a mind-independent state of affairs, proponents of objectivity all but guarantee creation of objectivism's opposite, subjectivism. Subjectivists deny the efficacy of the objectivist account of the relation between mind and world, locating the seat of truth and belief in the individual subject. The debate is intractable.

I argue that the choice between objectivism and subjectivism is false. Just because we are free to describe a situation in a variety of ways (rejecting objectivism) (12) does not dictate the conclusion that, within each vocabulary, there are no standards for correct and incorrect assertion (rejecting subjectivism). (13) I propose to approach objectivity from the point of view of normativity. By "normativity" I mean to identify the ways in which speakers of a language appraise assertoric utterances in terms of "correct" and "incorrect" or "true" and "false." I want to replace the conventional understanding of objectivity with an account of the notion that grows out of the actual practice of law. My claim is that the normativity and objectivity of legal judgment is a function not of the way the world is, but is forged in community agreement over time. Action, not mind, is the basis of this alternative approach to normativity and objectivity.

Law exhibits an argumentative framework employed by participants in legal practice to show the truth of legal propositions. (14) Identifying this framework, and describing how it is used to appraise propositions of law, is a central feature of my argument. Objectivity is a product of the recursive use of this argumentative framework. I shall describe the framework in detail, explain how action, not mind, is the central feature of normativity, and then explain both the presence and limits of objectivity in law.

This Article has five parts. I begin by describing the current state of the objectivity debate in legal theory. (15) The two leading positions, objectivism and subjectivism, are discussed in the context of exemplary examples of each position. The conclusion of this part of the Article is that the debate between objectivism and subjectivism rests on a false premise. Having identified that premise, I explain in Part II why normativity can best be thought of in social rather than cognitive terms. Here I discuss the oft-trodden topic of rule-following (16) to set the stage for Part III, where I argue for the social basis of normativity. In Part IV, we reach the practice of law. Here I detail why a social approach to normativity provides a more perspicuous account of the nature of objectivity in legal practice. Finally, in Part V, I consider possible objections to my account of normativity and objectivity. Specifically, I explain why law seems less objective than practices such as science and arithmetic. (17)

1. OBJECTIVISM AND SUBJECTIVISM

   Current discussions of objectivity in the jurisprudential literature come down to the question of grounds for legal judgments. (18) There are two views, in both the philosophical and jurisprudential literature, that dominate the discussion. These views--which I will label "objectivism" and "subjectivism"--name two radically distinct approaches to the question of what it means to follow a normative standard such as a legal rule. (19) Before we can consider a fresh approach to the question of normativity and the possibility of objectivity in law, thorough familiarity with the leading views in the objectivity debate is both necessary and appropriate.

   1. Objectivism

      When we look at various applications of a rule, it is quite natural to ask "In what sense are these different applications each an application of the same rule?" This question is an aspect of a broader philosophical inquiry, namely how are we able to look at a variety of different objects and say "These are the same." Consider fruit. If the rule in question is "Only fruit will be served for snacks," then we know the following items may be served: oranges, bananas, peaches, and grapes. This all seems quite straightforward. What is the philosophical issue? (20) The philosopher asks "In virtue of what are all these items `fruits'?" Or, put differently, the philosopher might ask "What is it about all these items that makes them properly called `fruits'?"

      The first answer we shall consider comes from the objectivist. It is not enough for the objectivist that all these things are called fruits. The objectivist believes that they are all called fruits because they are, in some sense, really fruits. (21) What, one might ask, is the difference between something merely being called a fruit and it, in fact, being a fruit? To this question the objectivist has a distinct and well-wrought answer.

      When we set out to follow a rule, we never believe that whether we have complied with the rule is a matter of opinion. We may believe that we have complied with the dictates of a rule, but that belief cannot be grounds for our claim that we have in fact complied. This shows that rules exhibit what we might term "epistemic primacy." By this, I mean that the broad application of rules "seems to imply a standard of correctness that is independent of applications." (22) To explain this phenomenon, the objectivist asserts the existence of a standard independent of the rule which enables rule application in a variety of contexts. Let us consider a jurisprudential example.

      More than anyone, Michael Moore has championed the objectivist position (23) in modern analytic jurisprudence. (24) Moore explicitly rejects the claim that the meaning of our words turns on anything but a standard of correctness independent of our discourse. Consider his treatment of the concept of "death." He writes:

      A realist theory asserts that the meaning of "death," for example, is not fixed by certain conventions. Rather, a realist theory asserts that "death" refers to a natural kind of event that occurs in the world and that it is not arbitrary that we possess some symbol to name this thing. (It may be arbitrary what symbol we assign to name this class of events, but it is not arbitrary that we have some symbol to name it). Our intentions when we use the word "death" will be to refer to this natural kind of event, whatever its true nature might turn out to be. We will guide our usage, in other words, not by some set of conventions we have agreed upon as to when someone will be said to be dead; rather, we will seek to apply "dead" only to people who are really dead, which we determine by applying the best scientific theory we can muster about what death really is. Finally, a realist theory of meaning will not view a change in our conventions about when to apply a word as a change in its meaning. If we supplant "heart stoppage" with "revivability" as our indicator of "death," we will do so because we believe revivability to be a part of a better theory of what death is than heart stoppage. We will not have changed the meaning of "death" when we substitute one theory for another, because by "death" we intended to refer to the naturally occurring kind of thing, whatever the true nature of the event turned out to be. Our linguistic intentions are constant, on the realist theory, even if our scientific theories change considerably. (25) In Philosophical Investigations, Wittgenstein characterizes views like Moore's as advancing a "rules on rails" thesis. (26) The idea is that the applications of a rule extend into the future much as a rail extends the length and direction of a train. The train (rule) is connected to the rail (the essential property or natural kind term) and proceeds in a predetermined direction. The rule operates "as if" it were on a rail in that future applications of the rule (its extension) are already determined by the independent property (e.g., the natural kind term).

      Wittgenstein reveals a basic problem with this picture (of a mind grasping an objective standard) of what it means to follow a rule with the argument that even if there were a standard like that imagined by the objectivist, the standard would be of no use to us unless we knew how to use it. (27) And once we entertain the question of how to use the "objective standard," the whole point of the exercise evaporates. (28) Put differently, the problem is that anything that serves as a standard can be variously interpreted. (29) And if a standard is amenable to various...