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ACTA UNIVERSITATIS BRUNENSIS
IURIDICA
Editio S No 451
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PUBLICATIONS OF FACULTY OF LAW
MASARYK UNIVERSITY IN BRNO
No 451
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ARGUMENTATION 2013
International Conference on
Alternative Methods of Argumentation in
Law
Jaromír Šavelka
Michał Araszkiewicz
Markéta Klusoňová
Matěj Myška
Martin Škop (eds.)
Masaryk University
Brno 2013
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Jaromír Šavelka
Michał Araszkiewicz
Markéta Klusoňová
Matěj Myška
Martin Škop (eds.)
Authors: Wojciech Ciszewski, Adam Dyrda, Tomasz Gizbert-Studnicki,
Maciej Juzaszek, Izabela Skoczeń
The Argumentation 2013: International Conference on Alternative Methods of
Argumentation in Law and the publication of this proceedings have been funded
by the Masaryk University, School of Law, research projects no. MUNI/B/0899/2012
Argumentation 2013 – Formal Methods in Legal Reasoning.
c⃝ 2013 Masarykova univerzita
ISBN 978-80-210-6410-2
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Programme Committee
Chris Reed, University of Dundee, UK (chair)
Leila Amgoud, Inst. de Recherche en Informatique de Toulouse, France
Michał Araszkiewicz, Jagiellonian University, Poland
Hrafn Asgeirsson, Monash University, Australia
Kevin D. Ashley, University of Pittsburgh, USA
Trevor Bench-Capon, University of Liverpool, UK
Floris Bex, Univeristy of Dundee, UK
Colette R. Brunschwig, University of Zurich, Switzerland
Katarzyna Budzynska, Polish Academy of Sciences, Poland
Noel Cox, Aberystwyth University, UK
Vytautas Čyras, Vilnius University, Lithuania
Christian Dahlman, Lund University, Sweden
Vanessa C. Duss, University of Luzern, Switzerland
Enrico Francesconi, ITTIG-CNR, Italy
Tomasz Gizbert-Studnicki, Jagiellonian University, Poland
Jaap Hage, Maastricht University, Netherlands
Aleš Horák, Masaryk University, Czech Republic
Marcin Koszowy, University of Bialystok, Poland
Pavel Materna, Masaryk University, Czech Republic
Ugo Pagallo, University of Turin, Italy
Tomasz Pietrzykowski, University of Silesia, Poland
Radim Polčák, Masaryk University, Czech Republic
Henry Prakken, Utrecht Uni. and Uni. of Groningen, Netherlands
Giovanni Sartor, European University Institute, Italy
Alessandro Serpe, University Leonardo da Vinci of Chieti, Italy
Burkhard Schafer, University of Edinburgh, UK
Erich Schweighofer, University of Vienna, Austria
Martin Škop, Masaryk University, Czech Republic
Tomasz Stawecki, University of Wroclaw, Poland
Adam Sulikowski, University of Wroclaw, Poland
Daniela Tiscornia, ITTIG-CNR, Italy
Bart Verheij, University of Groningen, Netherlands
Vern R. Walker, Hofstra University, USA
Douglas Walton, University of Windsor, Ontario, Canada
Bartosz Wojciechowski, University of Lodz, Poland
Andrey Yap, University of Victoria, Canada
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Marek Zirk-Sadowski, University of Lodz, Poland
Tomasz Źurek, Marie Curie-Skłodowska University of Lublin, Poland
Local Organizers
Markéta Klusoňová, Masaryk University, Czech Republic
Matěj Myška, Masaryk University, Czech Republic
Martin Škop, Masaryk University, Czech Republic
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Contents
What Makes Some Considerations Legitimate Political Arguments?
On Public Reasons in Rawlsian Liberalism
Wojciech Ciszewski 7
Over-Aggregated Concepts, Adjective-Modiﬁers, and Argu-
mentation
Adam Dyrda and Tomasz Gizbert-Studnicki 23
Comment on David Enoch’s argument of pro tanto retributivism
in discussion about legal luck
Maciej Juzaszek 41
Why do Pragmatics Matter in the Legal Framework?
Izabela Skoczeń 51
Law and Literature Workshop 65
Batman and the Rise of the Drones
Jakub Harašta 69
Why Havel’s Plays Should Be Still Played?
Markéta Klusoňová 77
5
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What Makes Some
Considerations Legitimate
Political Arguments? On
Public Reasons in Rawlsian
Liberalism
Wojciech Ciszewskia
Abstract. The paper considers an important problem set against
the backcloth of John Rawls’s political liberalism, namely the
issue of the distinctiveness of public reasons. According to
Rawls public reasons are types of proper arguments and considerations
that may be invoked in democratic political life.
They are the reasons that fulﬁl the requirement of the liberal
legitimacy. In diﬀerent writings, Rawls describes them in terms
of common acceptability, universality, accessibility, shareability,
transparency, and intelligibility. In the paper the author
aims at answering the doubt raised by Ronald Dworkin with
regard to the distinctive character of public reasons. The response
will be given by developing an adequate deﬁnition of
public reasons in six steps.
Keywords. Public reasons, argumentation, legitimacy, political
liberalism, justiﬁcatory reasons, constructivism.
a
Jagiellonian University, Krakow, Poland; ciszewski.wojciech@gmail.com ( )
7
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8 Wojciech Ciszewski
1 Introduction
The role of ‘public reasons’ in political discourse, on the grounds of contemporary
liberal philosophy, is really diﬃcult to overestimate. According
to J. Rawls, among other functions, public reasons ensure respect for people’s
freedom and provide justiﬁcation of political power; they are responsible
for the stability of constitutional regime and stipulate the legitimate
participation in public discussions. Therefore, the identiﬁcation of public
reason requirements becomes a practical necessity for every democratic
citizen. Each political agent, in order to postulate a legal reform, to vote
for a party, or even to talk publicly about political matters, should necessarily
recognize the obligations of public reasons and act in accordance
with them.
Nevertheless, it is important to ask how one can, as a democratic citizen,
ﬁnd out if the reason he has is a legitimate public reason. Do we have
any method of distinguishing those publicly legitimate arguments from
other normative considerations? In the paper, I would like to shed some
light on this matter in line with Rawls’s writings.
2 Why Public Reasons?
Before moving to the core topic, I would like to recall some remarks that
constitute the starting point of public reason theory. First of all, Rawlsian
theory is based on the recognition of the fact of pluralism, which means
that people who live in the same society diﬀer deeply from each other
in their values, beliefs, and attitudes and pursue diﬀerent conceptions of
the ‘good life’. In circumstances of freedom, it is impossible for all people
to converge on the same moral, philosophical, or religious conceptions.
Secondly, although people diﬀer deeply in their worldviews with regard to
political matters, they have to act collectively and make decisions as one
body. They are equal in their political status and in their participation
in political power. According to Rawls, the political power, understood as
the power of free and equal citizens, is coercive in its essence because a
collective choice made by society is then coercively imposed on everybody.
And because of the irresolvable disagreement between people’s conceptions
of good, exercising political powers becomes a serious threat to freedom.
Thirdly, the tension between pluralism and equal freedom grows due to
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What Makes Some Considerations Legitimate Political Arguments 9
the fact that most people possess strong external preferences. They are
interested not only in pursuing their own conception of the good, but also
in creating an environment that will be friendly for their worldview. In
fact, they have some preferences against other people’s ways of life and try
to embody them through political and legal means. Political decisions are
likely to be corrupted by these kinds of preferences.
The above mentioned circumstances constitute an important predicament—
how to reconcile the multiplicity of standpoints and the necessity of exercising
political power with the respect for people’s freedom and equality.
Rawls’s moral solution to this dilemma is expressed in his formulation of
the
[...] duty of civility: [...] duty to be able to explain to one
another on those fundamental questions how the principles and
policies they advocate and vote for can be supported by the
political values of public reason (Rawls 1995, p. 217)
The essence of the duty is founded on the validity of political values of
public reason and, consequently, on the recognition of certain considerations
as public reasons. According to Rawls
[...] to give public reasons is to give reasons that we can reasonably
expect that others can reasonably accept as democratic
citizens. (Rawls 1999, p. 578)
In diﬀerent passages, Rawls describes public reasons in terms of acceptability,
universality, accessibility, shareability, transparency, and intelligibility
making his descriptions a bit confusing. The vagueness of the concept was
the main charge raised against the idea of public reason by R. Dworkin.
As he writes:
I do not see, however, what the doctrine of reciprocity excludes.
If I believe that a particular controversial moral position is
plainly right [...] then how can I not believe that other people
in my community can reasonably accept the same view?
(Dworkin 2004, p. 1397)
In the next section, I would like to explicate how the reciprocity mechanism
works and what is so distinctive about public reasons. The issue will be
clariﬁed by developing a full and adequate deﬁnition of public reasons in
six steps.
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10 Wojciech Ciszewski
3 What Are Public Reasons
3.1 Public Reasons (...)
It would be fruitful to start with some preliminary considerations with
respect to Rawlsian terminology. Before we deﬁne what is meant by the
phrase ‘public reasons’, we should explain brieﬂy how Rawls understands
the two terms that form this phrase, namely ‘reasons’ and ‘publicity’.
The concept of ‘reasons’ is founded in the Rawlsian reading of Kant’s
practical reason theory. In his 1980 paper, Rawls described the essence
of the constructivist view on reasons in Kantian moral philosophy (Rawls
1980, pp. 515–572) and afterwards, in his later writings, applied this idea
to his own political theory of justice. We can say that constructivism
with regard to reasons is the opposite view to realism; it is deﬁnitely a
kind of antirealist account. The clue of the constructivist position is the
statement that value considerations (or normative considerations) do not
possess their value-property independently of assessing them as valuable.
Their normative character depends on recognizing them as valuable according
to some prior principles or standards. Rawls claims that we must
have some initial premises because not everything can be constructed; we
need some material from which to begin (Rawls 1995, p. 102). The role of
the ‘material’ is performed primarily by a liberal framework with the ideas
of free and equal citizens and a society as a system of fair cooperation. The
constructivist perspective must always be a view from somewhere (ibid.,
p. 116).
The above claims can be illustrated by the Rawlsian example of slavery.
From the constructivist perspective, some facts about slavery constitute
reasons and others do not. It is not important whether slavery is economically
eﬀective or when it arose historically. What is crucial is that it allows
some persons to treat others as their property. This fact exists independently
of our moral and political principles; however, it becomes a reason
only in the light of these principles. When we take into consideration that
people are free and that they have equal dignity, then the relevant facts
about slavery will gain moral weight.
The second notion, ‘publicity’, was also developed by Rawls throughout
his writings. In short, the publicity condition is fulﬁlled when a given
consideration is known by the members of the public. The opposition of
publicity is ‘secrecy’ or ‘privacy’, a situation when given rules, principles,
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What Makes Some Considerations Legitimate Political Arguments 11
or reasons are not commonly known. Therefore, the meaning of publicity
is close to ‘transparency’, or ‘apparency’. C. Larmore shows the increasing
signiﬁcance of the concept in Rawlsian theory (Larmore 2003, pp. 368–
393)—from the understanding as a condition imposed on original position
to the central aspect of public justiﬁcation in political liberalism. The
evolution shows that Rawls considerably broadened the application and
function attributed to the publicity condition. In his later writings, the
concept relates not only to the product of the social contracting (publicity
with regard to rules and principles), but also to the process of reaching
agreement (publicity with regard to reasons).
The preliminary analysis shows that the terms ‘reasons’ and ‘publicity’
are separate and independent concepts. In the next ﬁve sections, I will
explain how they work together.
3.2 Public Reasons Are Good Reasons (...)
According to Rawls, every political action, decision, or legal regulation,
in order to be legitimate, must rest on reasons that are good; in liberal
democracy, each citizen should have a good reason to endorse the law.
What is more, the condition of publicity requires that everyone may be
sure that others also aﬃrm the law for reasons that are good. It is worthy
to clarify what the goodness of reasons signiﬁes.
For most contemporary theories of action (including the Rawlsian conception),
good reasons are justiﬁcatory reasons, which means that they
provide justiﬁcatory force for an action. They are normative considerations
that count in favour of some act and, hence, always refer to values
or other evaluative standards. Justiﬁcatory reasons are employed when we
want to show others that our decision or action was just or adequate—
that it was the right thing to do in a given context. In these cases, reasons
that guide our actions constitute an account for evaluating the action. It
is important that justiﬁcatory reasons must be strong enough (suﬃcient)
to support performing the action. It means that there should be no other
easily accessible normative counter-consideration, especially a justiﬁcatory
reason for not performing the action.
Good (justiﬁcatory) reasons should be distinguished from explanatory
ones. We may act for a reason that fails to justify the action; however, it
constitutes a plausible explanation. For example, the reason why I overslept
is the fact that I forgot to turn on my alarm clock. The argument
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12 Wojciech Ciszewski
performs here an explanatory role and makes one’s oversleeping intelligible.
Explanatory reasons are not reasons in themselves, but reasons why
something is thus and so (Raz 2007). Although most of Rawls’s clariﬁcations
of public reason refer to giving reasons as the explanation of political
decisions (e.g., duty of civility is a duty to be able to explain to one another
(Rawls 1995, p. 217)). It is worth noting that they should be explainable
in terms of values, what makes them deﬁnitely closer to justiﬁcatory reasons.
According to Rawls, a good example of considerations that fail to
suﬃciently justify actions are those given in favour of a compromise. Accepting
a decision or a law only as a lesser evil is not a good reason in the
Rawlsian sense.
3.3 Public Reasons Are Good Reasons Taht Could
Be Accepted (As Reasons) (...)
Due to circumstances of value pluralism and the undeniable fact that different
people regard diﬀerent considerations as good reasons for action,
the duty of civility sets one main touchstone for arguments permissible in
political discourse—the acceptability criterion. Common acceptance with
regard to reasons signiﬁes that for all relevant points of view, it should
be relatively easy to acknowledge certain considerations as good (justiﬁcatory)
reasons. On this point Rawls is quite clear; nevertheless, the
important question that arises concerns the modality of this acceptance.
Do we deal with actual or only potential acceptance of public reasons by
the audience?
As F. D’Agostino states:
[I]n each case, we have a contrast between what A and B would
accept based on their actual beliefs and desires, and what they
could accept if their beliefs and desires were supplemented in
some way. (D’Agostino 1996, p. 32)
In Rawls’s writings, there is some ambiguity about this issue. In some
passages he declares that public reason is committed to values and principles
that citizens ‘would accept when suitably presented’ (Rawls 1995, p.
125). He is also concerned with actual acceptance condition with respect
to the idea of overlapping consensus (ibid., p. 386). Although some theorists
attempt to tie the Rawlsian position with actual acceptance (Bohman
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What Makes Some Considerations Legitimate Political Arguments 13
and Richardson 2009, p. 14), in my opinion, this interpretation is highly
implausible. Rawls is aware that it is actually very doubtful that people
would accept unanimously any normative consideration as valid, even the
most general political values. Empirical research seems to conﬁrm this
conviction. For example, in the United States, according to the survey
evidence (Klosko 2009, pp. 23–44), the majority of public opinion do not
approve most liberal political values and, at the same time (and contrary
to Rawls), most of Americans support the increasing role of religious reasons
in political life. If the acceptance criterion was interpreted as actual
acceptance, then empirical data from the survey would establish a great
challenge to it. Besides, we should realize that if a current consensus on
political matters really existed, then the fact of pluralism and the burdens
of judgment would not constitute any serious challenge for a society. The
Rawlsian answer would then signify nothing more than the prescription
that citizens should accept what they in fact accept.
It is beyond doubt that Rawls frequently uses the modality of possibility.
It is expressed in diﬀerent formulations by might (Rawls 1995, pp. 218
and 374), could (ibid., p. 382), or can (ibid., pp. 10 and 128). If we agree
that potential acceptability is the adequate interpretation of Rawlsian criterion,
we need to indicate what normative assumptions frame it. In my
opinion, there are two main constraints that constitute the condition of
acceptance: the ﬁrst is moral and the second is epistemic, and both are to
be presented in next two sections.
3.4 Public Reasons Are Good Reasons That Could
Be Accepted By Each Reasonable Citizen (...)
Public reasons can be recognized as good reasons only within a qualiﬁed
group of people—reasonable citizens of democratic society. The concept
of ‘citizenship’ determines the political status of these persons and ensures
that they can freely (not coercively) accept some reasons as good.
But it should be emphasized that the notion of ‘reasonableness’ is much
more complex and weighty. Its meaning is primarily concerned with moral
assumptions.
Reasonableness, with regard to citizens, is generally characterized by
two features. We should indicate ﬁrstly, the set of moral beliefs that is held
by a reasonable person (the intellectual condition), and secondly, the moral
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14 Wojciech Ciszewski
motivation towards the democratic actions and cooperation (the voluntary
condition). According to Rawls, the set of moral beliefs that reasonable
citizens accept comprises convictions that (1) citizens are free and equal in
their status, (2) political society is a fair system of cooperation, and that
(3) reasonable pluralism is a permanent fact that is connected with the
burdens of judgment. The voluntary condition refers to the willingness to
oﬀer other citizens fair terms of cooperation and to act in accordance with
these terms (even contrary to one’s personal interest). The ideal citizen
has a will to act in a reasonable manner and also wishes to be seen as a
reasonable agent by the other members of the public. Both components—
intellectual and voluntary—taken together constitute the threshold of reasonableness.
Moral assumptions of reasonableness are not as thin as they
seem to be, as long as several important implications may be derived from
them. These conclusions are, for example, the rejection of the use of political
power in order to repress any comprehensive worldview, the necessity
of taking into account others’ conceptions of good while taking an action,
and accepting the duty of civility and requirements of reciprocity, etc.
Public reason is a reason of persons in their capacity as reasonable citizens.
Therefore, we have to distinguish reasonable citizens from two other
groups that do not fulﬁl the threshold requirements. In every democratic
regime, we can ﬁnd many citizens who reject at least one of three premises
that constitute the intellectual aspect of reasonableness. Because they do
not meet this condition, they should be seen as unreasonable. Usually
they are adherents of unreasonable comprehensive doctrines that do not
conform to democratic order—discard the equal status of citizens or do
not acknowledge the fact of pluralism. There are also citizens who are not
reasonable, but who, at the same time, are not unreasonable. Although
they accept the threshold of intellectual premises, they do not fulﬁl the
voluntary condition, and they cannot apply their convictions correctly in
a given situation.
Reasonableness is primarily, but not solely, a moral ideal. As Rawls
states:
[b]eing reasonable is not an epistemological idea (though it has
epistemological elements) (Rawls 1995, p. 62)
In the next section, I attempt to clarify this epistemological component,
which is not as marginal as Rawls suggests.
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What Makes Some Considerations Legitimate Political Arguments 15
3.5 Public Reasons Are Good Reasons That Could
Be Accepted By Each Reasonable Citizen According
To Common Evaluative Standards [. . . ]
As stated by Rawls, public reasons are transparent and admissible due to
the fact that reasonable citizens could accept them on the basis of human
reason and common sense. To be precise, the special political status of
these considerations is a consequence of their equivalent accessibility and
perspicuity among the members of the public.
Public accessibility is a standard based on two assumptions; ﬁrstly,
on the existence of social consensus (at least in some dimensions of the
political domain), and secondly, on the conviction that people have equal
epistemic access to this consensus. For Rawls, public political culture with
fundamental ideas of democratic citizenship, society, and political values
constitutes the source of equally available and permissible arguments. He
says:
In a democratic society there is a tradition of democratic thought,
the content of which is at least familiar and intelligible to the
educated common sense of citizens generally. Society’s main institutions,
and their accepted forms of interpretation, are seen
as a fund of implicitly shared ideas and principles. Thus, justice
as fairness starts from within a certain political tradition.
(ibid., p. 14)
The set of shared political values includes, among others, freedoms of
speech, of thought, and of religion, equality, public peace, representative
form of government, human rights, social minimum, etc. Consensus on
these essential democratic ideas constitutes a common ground for our political
disputes and agreements. For example, I can understand your argumentation
and then accept or challenge it because I share with you the
same political premises at the deeper level. There are arguments that both
of us ﬁnd comprehensible and persuasive. For the same reason you can
prudently expect me to endorse principles of justice on the same terms
as you do. As long as the background of the dispute is equally available
for all disputants, nobody is privileged and nobody is discriminated
against—the position of both parties is perfectly equal. Thus, if we accept
religious truths or sophisticated metaphysical proofs as permissible arguments
in the public domain, we would enable some citizens to have better
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16 Wojciech Ciszewski
and wider access to the source of arguments than others, and this would
undermine the equal political status of citizens.
In my opinion, this is the main argument for excluding from political
discourse so-called comprehensive reasons derived from religious, moral,
and philosophical comprehensive doctrines (called ‘duty of restraint’). These
doctrines are traditions of thinking about good, and they are usually deﬁned
by two distinct features: ﬁrstly, by their ‘comprehensiveness’, which
means that they cover all recognized values and virtues within one rather
precisely articulated system, and secondly, by their essential ‘contestability’
referring to the fact that they are founded on controversial assumptions
or disputable visions of the truth. They contain conclusive answers to fundamental
philosophical questions. In contrast, political values or ideas
derived from common consensus can be presented independently of any
controversial premises (although it is possible that they are supported by
such considerations).
The idea of background consensus together with the accessibility condition
is often criticized even by adherents of political liberalism. According
to some of them, the constraint on permissible argumentation is too burdensome
for ordinary citizens; its restrictive character establishes a serious
threat to the fact of pluralism and the citizen’s fundamental right to freedom.
G. Gaus and K. Vallier aim to rescue the idea of public reason and,
hence, abandon the accessibility condition. They postulate replacing it
with an alleviated demand of intelligibility, which provides the epistemic
requirement based on each person’s conception of good. In accordance
with the intelligibility condition, religious or moral comprehensive doctrines
can legitimately provide reasons for and against laws. On this account,
a reason is permissible to the public if a person ﬁnds the reason
justiﬁed according to his individual standards. Gaus claims that the idea
of widespread starting consensus is doubtful and superﬂuous; the principle
of legitimacy should be recognized as fulﬁlled when citizens converge on
a given law for intelligible reasons. For example, Vallier claims that the
typical Catholic argument against abortion is fully understandable and intelligible
for all members of the society. Although some citizens may not
share the assumptions of the argument, it does not mean that they do not
understand the argument itself.
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What Makes Some Considerations Legitimate Political Arguments 17
3.6 Public Reasons Are Good Reasons That Could
Be Accepted By Reasonable Citizens According
To Common Evaluative Standards And Are Identiﬁed
By The Process Of Universalization
The last important aspect, which should be noted, is the manner of recognizing
arguments as permissible public reasons. On this point, Rawls’
solution also raises controversies among contemporary liberals. Although
he does not dedicate too much attention to answering the problem, we may
conclude that his method involves universalizing conﬁdential judgments
with regard to public reasons. Rawls’s method of identifying justiﬁcatory
reasons is clearly monological. It is important to recognize this fact, as
Rawls is often regarded as an adherent of strong deliberative regime (due
to his sympathetic comments on the idea) where senses and reasons are
worked out in interactive deliberations. Nevertheless, on his account, it is
not required for citizens or public oﬃcials to deliberate commonly so long
as the requirements of hypothetical universalization are met. There are
some passages that suggest that it is the proper interpretation of Rawlsian
account. The most widely known is the quotation where he suggests the
mode of public reasoning for the purpose of voting:
How though is the ideal of public reason realized by citizens
who are not government oﬃcials? (. . . ) To answer this question,
we say that ideally citizens are to think of themselves as
they were legislators and ask themselves what statutes, supported
by what reasons satisfying the criterion of reciprocity,
they would think it most reasonable to enact. (Rawls 2001, p.
135)
The answer to the problem of identiﬁcation brings to mind Kantian moral
philosophy and the idea of imperatives. In this situation we should ask
ourselves if our reason might be as sound as the legislator’s argument or
judicial justiﬁcation for the sentence.
A second important passage concerns the argumentation for the exclusion
of moral autonomy from the scope of public reason. Rawls says:
Whatever we may think of autonomy as a purely moral value,
it fails to satisfy, given reasonable pluralism, the constraint of
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18 Wojciech Ciszewski
reciprocity, as many citizens, for example, those holding certain
religious doctrines, may reject it. Thus moral autonomy is not
a political value. (Rawls 1995, p. 146)
Here, the Rawlsian way of thinking comes very close to T. Scanlon’s test
of reasonable rejectability. The test, aimed at distinguishing reasons, will
take the formulation by saying that a reason is legitimate only if it cannot
be reasonably rejected. However, in order to dismiss a consideration, a
reasonable person does not have to make a public opinion poll. All he
should do is to ask what could be accepted by a reasonable citizen because,
as J. Quong claims:
[...] if we have justiﬁed something to one reasonable person, we
have justiﬁed it to all reasonable persons. (Quong 2009, p. 6
The procedure of the non-interactive universalization test is charged
by discoursive conceptions of public reasoning. S. Macedo, in his interpretation
of Rawls’s political liberalism, insists that through the process of
public deliberation political communities can converge on shared principles
and a shared rationale. (Macedo 2008, p. 9) His idea, contrary to Rawls,
involves interaction, which is aimed at selecting good reasons. We should
not start from the clear and actual consensus on right reasons, but a consensus
should be the ﬁnal process of our deliberative practices. A similar
charge was raised by J. Habermas, who blames Rawls for the monological
character of public reasoning. (Habermas 2009, pp. 69 and 71) He claims
that the contemporary reading of Kant’s imperative in circumstances of
pluralism requires rejection of ﬁrst person inquiry as deﬁnitely too limited,
[...] the justiﬁcation of norms and commands requires that a
real discourse be carried out and thus cannot occur in a strictly
monological form, i.e., in the form of a hypothetical process of
argumentation occurring in the individual mind. (Habermas
1992, p. 68)
Good reasons are considerations that should be worked out during our
discoursive practices. Due process of communication and, ﬁnally, a reasonable
agreement between disputants provides the adequate validity for
political claims.
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What Makes Some Considerations Legitimate Political Arguments 19
4 Public Reasons and Exclusion
The charge against Rawls formulated by Dworkin concerns the diﬃculty
of seeing what the doctrine of public reason excludes. In my opinion,
that foregoing clariﬁcation gives ground for the utmost diﬀerent charge—
that the Rawlsian idea excludes too many considerations from political
discourse. Such exclusion applies to reasons that are not commonly acceptable,
like values that are controversial among members of the public
(just as most of the moral or religious considerations); exclusion also covers
arguments that are not equally accessible (e.g., scientiﬁc achievements
that are contestable or incomprehensible). Beyond the scope of public
discourse are unreasonable citizens who adhere to illiberal comprehensive
doctrines and reject, for example, the conviction that the fact of pluralism
is an irreducible fact about our social reality. Not permissible in the public
sphere is also supporting political demands on personal or group interests
and on reasons in favour of compromise (lesser-evil reasons). Additionally,
the possibility of achieving social stability by unanimous convergence on
non-public reasons likewise lacks justiﬁcatory force.
The exclusionary character of Rawls’s conception seems to be more
serious than the Dworkinian charge. The range of reasons in the ‘justiﬁcatory
pool’1
seems to be very tight from the beginning and very ‘resistant’
to broadening. Rawls does not foresee replacing the content of the ‘pool’
in the future. We can ask if it is really a manifestation of respect to pluralism,
diversity, and equality, when the majority of pluralist considerations
and arguments are excluded by force from the political sphere.
The charge is accurate, but only to a certain extent. Although many
theorists forget about it, Rawls’s theory of justiﬁcation is much more complex,
and it also provides a place for non-public considerations. The most
important remark is that the priority of public reasons over other political
arguments is valid only with respect to fundamental political issues
(constitutional essentials and matters of basic justice). When discussing
political matters other than the fundamental, they may refer to both public
and non-public evaluative standards. The border between fundamental
and non-fundamental matters is drawn in compliance with the basic/nonbasic
interest distinction. (Marneﬀe 1990, pp. 253–274) Basic interests
1
The concept of ‘justiﬁcatory pool’ was introduced by Vallier 2011, p. 372; and also
by Friedman (as ‘legitimation pool’) in Friedman 2000, pp. 16-33.
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20 Wojciech Ciszewski
(warranted by fundamental matters) are those necessary for all persons
regardless their conception of good; they constitute personal well-being
to a great degree. The fact that we can indicate some commonly needed
values (such as life, freedom, and self-respect) makes citizens’ conceptions
of good partially alike, it justiﬁes why similar rules should guide reasoning
in these spheres. Beyond this scope, imposing such strict requirements is
unnecessary because none of the basic interests are at stake.
References
Bohman, J. and H. Richardson (2009). “Liberalism, Deliberative Democracy
and “Reasons that All Can Accept””. In: Journal of Political Philosophy
17.
D’Agostino, F. (1996). Free Public Reason. Making It Up As We Go. New
York: Oxford University Press.
Dworkin, Ronald (2004). “Rawls and the Law”. In: Fordham Law Review
72.
Friedman, M. (2000). “John Rawls and the Political Coercion of Unreasonable
People”. In: The Idea of Political Liberalism: Essays on Rawls.
Ed. by V. Davion and C. Wolf. Rowman and Littleﬁeld Publishers,
pp. 16–33.
Habermas, J. (1992). Moral Conciusness and Communicative Action. MIT
Press.
— (2009). “Uwzgledniajac innego”. In: PWN. Chap. Pojednanie przez
publiczne uzycie rozumu, 69 and 71.
Klosko, G. (2009). “Reﬂections on Rawls”. In: ed. by S. Young. Ash Gate.
Chap. Rawls Public Reason and American Society, pp. 23–44.
Larmore, C. (2003). “Cambridge Companion to Rawls”. In: ed. by S. Freeman.
Cambridge University Press. Chap. Public Reason, pp. 368–393.
Macedo (2008). “A Republic of Reasons: Public Reason and the Constitution
of Private Sphere”. paper presented at the meeting of American
Political Science Association Annual Convention, Boston.
Marneﬀe, P. de (1990). “Liberalism, Liberty and Neutrality”. In: Philosophy
and Public Aﬀairs 19, pp. 253–274.
Quong, J. (2009). The Structure of Public Reason. url: http://www.
ucl.ac.uk/spp/seminars/political- theory- downloads/The\
_Structure\_of\_Public\_Reason\_01\_Dec.\_2009.pdf.
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REFERENCES 21
Rawls, John (1980). “KantLaw Constructivism in Moral Theory”. In: The
Journal of Philosophy 77, pp. 515–572.
— (1995). Political Liberalism. New York: Columbia University Press.
— (1999). “The Idea of Public Reason Revisited.” In: Collected Papers.
Harvard University Press.
— (2001). Justice as Fairness. A Restatement. Harvard University Press.
Raz, Joseph (2007). “Reasons: Explanatory and Normative”. Oxford Legal
Studies Reasearch Paper no 13/2007.
Vallier, K. (2011). “Against Public Reason Liberalism Accessibility Requirement”.
In: Journal of Moral Philosophy.
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Over-Aggregated Concepts,
Adjective-Modiﬁers, and
Argumentation
Adam Dyrdaa
and Tomasz Gizbert-Studnickib
Abstract. The paper discusses the idea that due to the uncontrolled
growth of meaning of natural language, there may appear
some concepts with attributes or features that can either
collide with other features that already exist or simply overreach
the generally and publicly shared criteria of the concept’s
application. These concepts are referred to as over-aggregated
concepts. In the following parts of the paper a few strategies of
conceptual disaggregation are presented and brieﬂy discussed.
Eventually, one of these ways, namely the idea of creating concept
sub-types by adding an adjective modiﬁer, is closely examined.
It should be recognized that in some circumstances
such adjective modiﬁers not merely construe ﬁne-grained distinctions,
but may also lead to creating either “diminished” or
“defeated” (“dismissive”) sub-types. In either case, we may
be confronted with a very diﬀerent concept. Thus, the lack of
such recognition may lead to a great confusion in argumentative
practice.
Keywords. Over-aggregated concepts, conceptual analysis, adjectives,
legal argumentation, concept disaggregation.
a
Uniwersytet Jagielloński w Krakowie, Kraków, Poland; dyrdaadam@gmail.com ( )
b
Uniwersytet Jagielloński w Krakowie, Kraków, Poland
23
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24 Adam Dyrda and Tomasz Gizbert-Studnicki
1 Introduction: the growth of meaning
Political and legal theory is cram full of diﬀerent types of concepts, and
it is supposed to be one of the most important tasks of political or legal
philosophers (on the most general level) to put in order the set of concepts
that legal and political philosophy is using and to arrange for proper
relations among them (and, consequently, among the things that they refer
to). The same problem appears on a lower level in connection with
concepts contained in statutory law or coined on the basis of case law.
In the ﬁeld of legal theory, K. Llewellyn once recognized that all wholesale
legal categories (like ‘contracts’ or ‘property’) are ‘too big to handle,’
since they encompass too ‘many heterogeneous items.’ In such a case, he
simply recommended
the making of smaller categories – which may either be subgroupings
inside the received categories, or may cut across
them. (Llewellyn 1962, p. 271
)
Such a move would enable a lawyer to develop the law while ‘testing
it against life-wisdom,’ so that would be of great practical importance.
Hence, if the decision-making procedure is to be conclusive, it has to be
conducted under the guidance of ‘the sense and reasons of some signiﬁcantly
seen type of situation,’ (ibid., p. 27) and cut oﬀ all the possible,
but inaccurate meanings. In Llewellyn’s view, the particular, situational
context enables one to apply a general concept, which in purely abstract
terms may be conceived as over-aggregated, i.e., confused, internally inconsistent,
or (either essentially or contingently) contested. The mechanism
of applying a concept to a legal case at hand is, however, somehow mysterious.
Despite this mystery, legal (resp. – political) systems work well and
cases are being decided all the time. But the question about in which way
the contextual elements of a case are chosen and associated with particular
features of the general concepts in use has manifold answers.
The problem may arise in connection with the process that S. Haack
calls ‘the growth of meaning.’ All natural languages shift and adapt to
new circumstances. Words acquire new meanings and also lose older connotations.
But the growth of meaning means also
1
Cf.Dagan 2005, p. 648.
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Over-Aggregated Concepts, Adjective-Modiﬁers, and Argumentation 25
the coining new terms or co-option of old ones to express new
concepts and distinctions, [thus being] just one aspect of [. . . ]
much larger, enormously complex phenomenon of the evolution
and development of languages.(Haack 2009, p. 7)
We agree with Haack’s contention that the growth of meaning does not
necessarily undermine the rationality of discourse (as is claimed by many
post-modern theorists). Therefore, the philosophical method of conceptual
analysis serves as a proper tool to resolve problems with the meaning of
words expressing concepts, starting from the most fundamental, ordinary
language distinctions that
men have found worth drawing, and all the connexions they
have found worth making, in the lifetimes of many generations.
(Austin 1961, p. 130)
If we use Peirce’s distinctions of three grades of clarity, the conceptual
analysis allows us to jump from the most fundamental level on which people
grasp the concept in their everyday experience, being the ﬁrst grade of
conceptual clarity, through the deﬁnition, being the second grade, eventually
reaching the highest, the third grade of conceptual clarity that would
cover all the practical bearings the concept may have. (Peirce 1878) However,
the analysis of the concept used in a particular discourse should cover
not only the actual usages of the concept, but also all the hypotheses relating
to the content of the concept explaining such usages. Such a modest
type of conceptual analysis (as opposed to the immodest type, which aims
at the discovery of the nature of things denoted by a concept) serves to
elucidate concepts by determining how subjects classify possibilities,
[and is a] hypothetical-deductive exercise. (Jackson
1998, p. 36)
So, on the highest level of conceptual clarity, the theorist is
seeking the hypothesis that makes best sense of a person’s responses
to possible cases, taking into account all the evidence.
(ibid., p. 36)
The analysis allows one to grasp certain concepts in their full range and
adequately.
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26 Adam Dyrda and Tomasz Gizbert-Studnicki
Sometimes the growth of meaning leads to an over-aggregation of certain
concepts. Many concepts are, through that process, being enriched
with attributes or features that either can collide with other features that
concept already has, or simply overreach the generally and publicly shared
criteria of the concept’s application. That may lead to a conceptual confusion
that comes to light in the moment when scholars use an overaggregated
concept, without any diﬀerentiation, clariﬁcation, or classiﬁcation.
This is exactly the situation that Llewellyn, quoted above, had in
mind. But over-aggregation of concepts may not only lead to confusion.
It may be that some concepts have generally shared criteria for their application
but, due to the normative valence of some of those criteria, there
arises, as an empirical fact, a disagreement concerning the proper instantiations
(uses) of the concept. Thus, concepts can be contested, either
in an essential or a contingent way. In the case of essentially contested
concepts, as W.B. Gallie demonstrated many years ago, their existence in
the discourse
involves endless disputes about their proper uses on the part
of their users, (Gallie 1956, p. 1672
)
and the controversy cannot be solved solely by any conceptual analysis
and logical methods (which is usually possible in the case of conceptual
confusion or contingent contestability).
2 Diﬀerent strategies of conceptual disag-
gregation
In this paper, we would like to analyze just one type of mechanism that
may well be in use not only in applying general, over-aggregated concepts
to particular situations, characteristic of the argumentative work of
an operative lawyer (which situations Llewellyn had in mind), but which
may also be used by legal and political philosophers, dealing with abstract
jurisprudential questions, as well. The use of certain concepts in argumentation
in every situation demands the highest grade of clarity, in order
2
On the features of ECC and disputes over the use of the concept of ECC, see also:
Collier, Hidalgo, and Maciuceanu 2006, p. 212.
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Over-Aggregated Concepts, Adjective-Modiﬁers, and Argumentation 27
to make the claims rational, and, thus, the whole argumentative practice
reliable.
As we pointed out, the starting point is that sometimes a certain
concept (which is the object of the analysis) may be discursively overaggregated.
As explained above, such over-aggregation consists in the
ascription to a concept of such features that either (at least potentially)
collide with other, historically previous features or overreach the generally
and publicly shared criteria of concept’s application. This is a natural
consequence of the growth of meaning. In such circumstances, in order to
use such a concept in any kind of rational argument, there arises a need
to dis-aggregate it.
There are at least a few strategies of conceptual clariﬁcation and differentiation
(viz. dis-aggregation) that would grant an adequate use of the
concept against particular case3
. D. Collier and S. Levitski (1997) describe
three strategies of such conceptual ‘innovation’ that are commonly used
(they are using these methods in the context of the concept of democracy,
but their classiﬁcation of methods can be easily generalized): (1) précising
the concept deﬁnition; (2) shifting the overarching concept with which a
general concept is associated; (3) generating various forms of subtypes.
The main aim of those strategies is to avoid ‘conceptual stretching,’
that is, the situation in which certain concepts are applied to cases for
which, by relevant scholars, they are thought to be inappropriate. So, in
other words, it is the situation of overextending the concept by applying
it to circumstances that either do not fulﬁll all the criteria relevant for its
application or, although they do, they also have other features that collide
with the main features that are characteristic for pivotal understanding of
such a general concept.
The ﬁrst strategy, namely the précising or contextualizing the deﬁnition
of the concept, as applied to the concept of democracy runs as follows:
As the concept of democracy is extended to new settings, researchers
may confront a particular case that is classiﬁed as a
democracy on the basis of a commonly accepted deﬁnition yet
that, in light of a larger shared understanding of the concept,
does not appear from the perspective of some analysts to be
3
However, in case of an essentially contested concepts the methods presented could
aﬀord the possibility of understanding each of competing meanings within the framework
of essential contestability.
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28 Adam Dyrda and Tomasz Gizbert-Studnicki
fully democratic. This situation may lead them to make explicit
one or more criteria that are implicitly understood to be
part of the overall meaning, but are not included in the formal
deﬁnition. The result is a new deﬁnition intended to change
the way a particular case is classiﬁed. (Collier and Levitsky
1997, p. 442)
As it appears this is a clear example of the classical conceptual analysis,
since, as a matter of fact, it consists in testing a hypothesis relating to
the content of the concept against possible (or actual) cases (cf. Jackson
1998, p. 86). This strategy simply amounts to adding a further diﬀerentiating
criterion for establishing a cut point between the concept of X and
the concept of non-X (e.g., democracy and non-democracy). It is rather
obvious that this strategy of innovation both achieves an inner diﬀerentiation
of the concept of X and avoids conceptual stretching vis-à-vis the
larger shared understanding of the concept, given that the meaning and
functioning of speciﬁc attributes of X can vary considerably in diﬀerent
contexts (in the case of the concept of democracy, ‘given that the meaning
and functioning of speciﬁc democratic procedures can vary considerably in
diﬀerent political contexts’ (Collier and Levitsky 1997, p. 442). However,
this strategy has its limits, as it would hardly be productive (and even
less innovative) to produce a new formal deﬁnition every time an analyst
encounters a somewhat anomalous case (ibid., p. 442). Hence it is useful
to use diﬀerent strategies of disaggregation as well.
The second strategy is to shift the overarching concept of which X is
seen as a speciﬁc instance. For example,
in using the concept of democracy to characterize particular
countries, scholars most commonly view it in as a speciﬁc type
in relation to the overarching concept of ‘regime’. (ibid., p.
4424
)
Now, the shift from the concept of ‘democratic regime’ to the concept
of ‘democratic government’ will lower the standard for applying the label
‘democratic’ and imply that
4
There are many other overarching concepts for democracy: “government,” “moment,”
“order,” “state,” and so on.
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Over-Aggregated Concepts, Adjective-Modiﬁers, and Argumentation 29
although a particular government has been elected democratically,
the ongoing functioning of democratic procedures is not
necessarily assured. (ibid., p. 4425
)
As Collier & Levitsky note, this innovation avoids conceptual stretching
and at the same time it introduces a ﬁner diﬀerentiation, but in situation
where too many overarching concepts, i.e., additional analytical categories
are employed, the conceptual confusion is almost a principle.
The third strategy consists in forming sub-types.
A subtype is understood [. . . ] as a derivative concept formed
with reference to and as a modiﬁcation of some other concept.
[In case of the concept of democracy] the most common
means of forming subtypes is by adding an adjective to the
noun ‘democracy’ as in ‘competitive democracy’ [. . . ]. (ibid.,
p. 4356
)
The important strategy of conceptual diﬀerentiation along these lines was
the one proposed by Sartori 1970. He showed that one of the most important
aims in comparative conceptual analysis is to achieve ﬁne-grained
distinctions by moving down the ladder of generality to concepts that a)
have more deﬁning attributes and b) correspondingly ﬁt a narrower range
of cases. (Collier and Levitsky 1997, p. 435 et seq.) However, this method
presumes that all diﬀerentiated concepts are pure sub-types, namely, the
sub-types that are all perfect instantiations of the general concept. In case
of the diﬀerentiation of the concept of democracy, the appropriate subtype
would be 100% democracy with some additional characteristic. So,
the Sartori’s subtypes preserve the ‘kind’ of the concept, but do not allow
for any change in ‘degree.’ For instance, ‘semi-competitive democracy’ cannot
be classiﬁed as a sub-type by Sartori’s method. Thus, this method can
be used only to diﬀerentiate the concept into sub-type concepts within the
boundaries of the overall concept and only if all the substantial features
of the original concept are preserved. Otherwise, the danger of conceptual
stretching will easily appear.
5
On the contrary, shifting from the concept of “democratic regime” to the concept
of “democratic state” will establish a more demanding standard for the concept application.
(Collier and Levitsky 1997, p. 442)
6
The directly quoted sentences can be found in the working draft of that paper
available on: http://kellogg.nd.edu/publications/workingpapers/WPS/230.pdf.
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30 Adam Dyrda and Tomasz Gizbert-Studnicki
However, sub-types of concepts that do not preserve all characteristic
attributes (‘a kind’) of a general concept, but deliberately omit some of
them, are called ‘diminished subtypes.’ (Collier and Levitsky 1997, p. 437
et seq.) They allow both avoiding conceptual stretching and providing
greater diﬀerentiation.
[T]hey are not ‘full’ instances of the overall type with reference
to which they are formed. (ibid., p. 437)
By using subtypes like ‘semi-competitive democracy,’ a theorist makes a
more modest claim about concept application, indicating, usually by use
of the adjective, what is lacking for a sub-type to be a full-type.
The complex structure of meaning is generated by these strategies that
allow for diﬀerent results, oﬀering to an analyst ‘an impressive array of
terms and conceptions’ that may be used in to the study of certain applications
of the general concepts (like the concept of democracy or democ-
ratization7
).
3 Dis-aggregation and the semantics of ad-
jectives
Dis-aggregation of the established concepts requires a deeper analysis of
the role of adjectives that are simply added to nouns expressing such concepts
while re-coining them to ﬁt the new, changed circumstances. The
following analysis will show that there are many pitfalls in the semantics
of adjectives and one must be very careful in order not to fall into them.
Such a slip may eventually lead to a ‘conceptual stretching,’ and thus ruin
the whole eﬀort of conceptual dis-aggregation. In such a case, the analyst
would be back in the starting point, but at the risk of the greater danger
of falling into conceptual confusion.
Let us start with a few general remarks on the semantics of adjectives.8
It appears that our understanding of the semantic function of adjectives in
natural languages tends frequently to be oversimpliﬁed. We are inclined
to think that by adding an adjective to a noun, we obtain a noun phrase,
7
See: the draft version of Collier and Levitsky 1997 available on:
http://kellogg.nd.edu/publications/workingpapers/WPS/230.pdf.
8
The following distinction is based on Twardowski 1965, p. 375 et seq.
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Over-Aggregated Concepts, Adjective-Modiﬁers, and Argumentation 31
the range of which (the class of its designata) is narrower than the range of
the same noun without the adjective. For example, if the adjective white
is added to the noun horse, we obtain a noun phrase white horse. Each
white horse is a horse, but not every horse is a white horse. Therefore,
the class of designata of the noun phrase white horse is narrower than the
class of designata of the single noun horse. Let us name such function of
adjectives as ‘determining function.’ This is a semantic function, as the use
of an adjective in such a function aﬀects the reference of the noun phrase.
This is true in most, but not all cases. Let us consider the following
example: the noun friend and the noun phrase true friend. If the relationship
between them were the same as between horse and white horse, we
would have to admit that each true friend of us is a friend, but not every
friend of us is a true friend. This would mean that we may have friends
who are not true friends. Such a conclusion, however, would be against the
meaning of the word friend. A false friend is actually not a friend at all;
he or she only pretends to be a friend. Therefore, if we add the adjective
true to the noun friend, the range of designata of this noun remains the
same. Semantically, friend and true friend do not diﬀer, as they have the
same reference. True does not refer to any speciﬁc feature that certain
friends have and others do not have. This, however, does not mean that
the adjective true is redundant and has no function at all. Its function is
pragmatic. If I say X is true friend of mine I usually want to stress that I
am certain that X has all qualities that make him a friend of mine, I have
no doubts that I can rely on X etc. Therefore, the linguistic function of
true is rather to express a sort of propositional attitude (deep conviction
in the truthfulness of the proposition X is a friend of mine), and true does
not denote any additional feature or quality of X. The function of true is
diﬀerent than the function of other adjectives I may use in reference to
friends of mine and which refer to certain properties which some friends of
mine have and others do not have (for example old friend of mine, English
friend of mine, etc.)
Such a function of adjectives can be referred to as a ‘conﬁrming function’.
This is a pragmatic function, as the use of an adjective in such a
function does not aﬀect the reference of a noun phrase, but expresses the
propositional attitude of the speaker. So the adjective true does not play
any semantic function in this noun phrase. Obviously such a function of
the adjective true is context-speciﬁc and is a consequence of ambiguity of
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32 Adam Dyrda and Tomasz Gizbert-Studnicki
the adjective true. In another context (for example true sentence) this
adjective (in its diﬀerent meaning) plays a determining function.
As it appears, in each natural language there are a number of adjectives,
the main function of which is just the conﬁrming function. If we say ‘that
is an actual fact’, or ‘that is a real success’, we do not refer to any speciﬁc
features or qualities of certain facts or successes. All facts are actual and
all successes are real. A fact which is not actual is not a fact at all. By
use of such a noun phrase, we rather express our propositional attitudes;
we say that we are fully convinced that something has happened, or we
attempt to eliminate the hearer’s actual or potential doubts as to a certain
state of aﬀairs.
There is still another function that may be played by adjectives. Let
us consider the noun phrase forged note. If we deﬁne the noun note by
reference to its function, a forged note is not a note. We can pay in a store
with a note, but not with a forged note. We can divide notes into $100
notes, $50 notes, etc., but we cannot divide notes into forged notes and
true notes. Designata of the noun phrase forged note are not designata
of the noun note. By adding the adjective forged to the noun note we
move the range of the noun phrase forged note to a class of things that
diﬀer from the designata of the noun note. Let us call such a function
of adjectives as ‘modifying function.’ This is again a semantic function,
because by adding such an adjective to a noun the reference of the noun
phrase is aﬀected. Let us note that antonyms of most of the adjectives with
conﬁrming functions usually play a modifying function. A true friend is
simply a friend. A false friend is not a friend at all.
Adjectives with a conﬁrming or modifying function frequently occur
in legal and political discourse. Let us point to a couple of examples. A
part of the basic meaning of the word contract is that a contract binds
the parties.9
An invalid contract does not bind the parties, so an invalid
contract does not fall under the deﬁnition of a contract. Therefore, the
adjective invalid plays the modifying function in the noun phrase invalid
contract. No invalid contract is a contract and no contract is an invalid
contract. A valid contract is just a contract, so the adjective valid plays
the conﬁrming function. Similarly, lawyers speak frequently about judicial
9
Under Polish law “contract” is deﬁned as exchange of declarations of will of two or
more parties, which triggers legal eﬀects intended by the parties. Legal eﬀects consist
inter alia in obligations of the parties to perform what they promised in the contract.
An invalid contract does not trigger such a consequence.
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Over-Aggregated Concepts, Adjective-Modiﬁers, and Argumentation 33
truth. A statement that is judicially true does not have to correspond to
the facts (because such a statement may be based on a legal ﬁction or a
presumption). Judicial truth is, therefore, not a speciﬁc sort of truth tout
court. Otherwise we would have to accept a logical contradiction, as one
and the same statement may be false (as not corresponding to the facts),
but judicially true. (Gizbert-Studnicki 2009, p. 5 et seq.)
To sum up: Adjectives play various roles in the discourse. It is frequently
overlooked that not all adjectives forming noun phrases have a
determining function (e.g., the range of the noun phrase is narrower than
the scope of the isolated noun). Some adjectives in certain contexts may
play a conﬁrming or a modifying function.
On the basis of the above observation, let us have a closer look at the
role of adjectives in the discourse pertaining to legal, political and ethical
matters. Our claim is that (i) sometimes, due to the lack of proper understanding
of the function of adjectives, the discourse may be distorted and
(ii) adjectives may be used for the purpose of manipulation and disorientation
of the opponent. The third strategy of dis-aggregation of concepts,
designed by Collier & Levitsky, can serve as a convenient example for our
analysis.
4 Adjectives in action
From the linguistic point of view, the third strategy consists in adding
an adjective to the noun expressing the concept in question. In this way,
a noun phrase is generated. Such a noun phrase is meant to denote a
subtype (a subcategory) in relation to the type (category) to which the
noun refers. The question arises: What is the function of the adjective of
such a noun phrase? Psychologically, there’s a strong incentive to assume
that the adjective in question has the determining function.
This may be true in most cases, but certainly not in all cases. Let us
give an obvious (and certainly exaggerated) example, relating to the concept
of democracy.10
Before 1989, the regime prevailing in the countries of
former Soviet bloc (such as Poland and Czechoslovakia) was called socialist
democracy. One does not need to have a profound historical knowledge
to conclude that such a regime had nothing to do with democracy in any
10
As was indicated earlier, the detailed analysis of such and similar examples is
provided by Collier and Levitsky 1997, passim.
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34 Adam Dyrda and Tomasz Gizbert-Studnicki
ordinary meaning of the word (and, notwithstanding the highly contested
nature of the concept of democracy, it did not fall under any of the conceptions
of democracy). Therefore, the noun phrase socialist democracy
does not denote any sub-type or sub-category of democracy tout court.
The adjective socialist in this noun phrase does not have the determining,
but the modifying function. No democracy is a socialist democracy. The
same applies to many other noun phrases containing the adjective socialist
(for example: socialist rule of law11
). What’s more, it would be an
even greater exaggeration to speak of a ‘diminished subtype’ in this case,
because the adjective socialist in the Polish and Czechoslovakian context
literally wipes out almost all features of democracy. It would be more
proper to speak of socialist regime, in order not to confuse all less historically
educated subjects (although the meaning of the adjective socialist
in this phrase materially departs from the meaning of this adjective in
political philosophy).
The above example is certainly exaggerated. But our purpose is only to
draw attention to the fact that we can have no certainty that, by adding
an adjective to the nouns expressing such basic concepts as democracy,
justice, rule of law, etc., we always obtain a noun phrase denoting a subcategory
(or subtype) of the phenomenon denoted by the original concept.
This matter always requires careful examination. For example: Is social
justice (as, for example, referred to in article 2 of Polish Constitution12
)
a ‘pure’ sub-type of justice (in Sartori’s sense, being just a speciﬁed instantiation
of a full-type)? Or, rather, does the adjective social have a
modifying function that makes the concept of social justice either a diminished
concept (but it remains unclear what feature of justice is lacking in
social justice) or the one that diﬀers to a larger extent, falling over the
boundary of acceptable ‘diminishing,’ being therefore a label for a very
diﬀerent thing? To use Collier’s example: is semi-competitive democracy
a sub-type of democracy? What does it have in common with democracy
tout court? If such adjective has the modifying function, does the strategy
designed by Collier & Levitsky really lead to dis-aggregation of the concept
(and, in eﬀect, therefore help to improve the discourse), or, rather, does
11
In Poland before 1989, the following joke was popular: what is the diﬀerence between
rule of law and socialist rule of law? The same as between chair and electric
chair.
12
“The Republic of Poland shall be a democratic state ruled by law and implementing
the principles of social justice.”
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Over-Aggregated Concepts, Adjective-Modiﬁers, and Argumentation 35
it lead to a potential conceptual confusion? If semi-competitive democracy
has little in common with democracy tout court, what do we win by
forming such a noun phrase?
As it appears, when with talk about democracy ‘with adjectives’ (for
example, semi-competitive democracy) we may have two diﬀerent things in
mind. First, we can mean that semi-competitiveness is just a speciﬁc feature
of certain democratic regimes, diﬀerentiating them from other types
of such regimes. Before we ﬁnd out what is speciﬁc for a given sub-type,
we must ﬁrst know what is common for all sub-types. In other words:
Each type of democracy must have features A, B. . . to N. Speciﬁc subtypes
have additional features (for example: semi-competitiveness). This
would, however, mean that we have a clear concept of democracy tout
court, encompassing only such features and all such features which are
characteristic for each instance falling under the concept. If we do have
such a concept, no dis-aggregation is needed, as we have criteria for application
of the concept (even if such criteria are vague). Such a sub-type
is not a diminished sub-type. This is pretty obvious and certainly that is
not something that Collier & Levitsky had in mind.
Second, adding an adjective to the noun denoting the concept may lead
to formation of a diminished sub-type. The instances of such a sub-type
(for example: semi-competitive democracy) do not have all of the features
deﬁning the over-aggregated concept (in this case: democracy). One or
more such features are missing. This means, however that the instances
of such a diminished sub-type are not instances of the over-aggregated
concept (democracy tout court). In the vocabulary used in this paper, this
would mean that the adjective semi-competitive is used in its modifying
function, as it aﬀects the reference of the noun phrase semi-competitive
democracy, moving it to a diﬀerent sort of things. In eﬀect, such a strategy
of disaggregation does not produce any single dis-aggregated concept of
democracy, but in lieu of one concept we have two diﬀerent concepts with
partially diﬀerent criteria of application: on the one hand the (still overaggregated)
concept of democracy, and on the other the concept of semicompetitive
democracy. The latter concept denotes a diminished sub-type
that is characterized not only by an additional feature, but also by the
absence (‘semi-’) of certain features characteristic of democracy tout court.
Instances of various diminished sub-types have certain common and
certain diﬀerent features. The use of the same noun with diﬀerent adjec-
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36 Adam Dyrda and Tomasz Gizbert-Studnicki
tives underlines both the similarities and diﬀerences. There is, however,
a risk involved in application of such a strategy, as it may trigger a conceptual
confusion. In order to avoid such risk it must be clear that the
sub-type denoted by the noun phrase with an adjective is a diminished
sub-type, and not just a sub-type. Conceptual clarity may be achieved
only by an indication of the feature or features deﬁning the general concept
which are missing in the sub-type. For example it is not suﬃcient to
indicate only speciﬁc features of semi-competitive democracy, diﬀerentiating
it from other sub-types of democracy, but for the purpose of avoidance
of conceptual confusion it is necessary also to explain which features of
democracy tout court are missing in semi-competitive democracy. Second,
the question arises: What are the limits for such a strategy? Let us assume
that the general concepts under discussion refer to instances having
features A, B. . . to N. How many of those features must be preserved in
instances of the diminished sub-type? Which features are more important
than others? If we do not answer these questions, we run the risk that our
diminished sub-type will include instances so much diﬀerent from the instances
to which the general concept refers that, instead of dis-aggregation,
a major conceptual confusion will be produced. Of course, it is not possible
to design any general criteria for answering those questions. If, however,
we do not put any limits, we ran the risk of abuse of the general concept
(as in the example of socialist democracy given above).
There is also a practical threat involved in such a strategy of disaggregation.
The concepts analyzed in legal and political philosophy are
usually appraisive (in the sense that their application must be based on
evaluation), which causes them to become (essentially or contingently)
contested (as evaluations are notoriously controversial). Usually (but not
always) contested concepts express positive valuation. Something that is
democratic is (in normal circumstances) perceived as better than something
that is undemocratic. Something that is just is better than something
that is unjust. If, by using an adjective in its modifying function
(in connection with formation of diminished sub-types) we move the reference
of the noun phrase to another set of designata, positive evaluative
associations linked with the original noun usually remain intact. This may
lead to disorientation and manipulation. The regimes in the former Soviet
bloc were called socialist democracies for just this reason. This was a sort
of linguistic manipulation, consisting in the abuse of positive valuation,
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Over-Aggregated Concepts, Adjective-Modiﬁers, and Argumentation 37
usually linked to the word democracy.
There may arise another problem with applying concepts of political
theory, such as democracy, rule of law, justice, etc., as well as with legal
concepts such as contract, will, oﬀence, etc. Namely, at least some of
those concepts are defeasible.13
This means that, although all conditions
of their application in a given situation are satisﬁed (e.g., such a situation
has all features A. . . N set out in the adopted deﬁnition of the concept),
we refuse to apply the concept to such a situation, since this situation
has an additional feature O. To give a classical example: let us assume
that all of the requirements deﬁning contract under Polish law have been
satisﬁed, but one of the parties acted under a threat. In such a situation
we will not say that this situation is an instance of a valid contract. We
would rather say that this is a void (or voidable) contract. The phrase void
contract does not denote a diminished sub-type of contracts. An instance
of void contract has all the features of a contract, but it has also one
additional feature which causes that it is not an instance of a contract tout
court.14
The adjective added to a concept in such situation refers to a very
diﬀerent concept that may be called a ‘dismissive subtype’.15
The issue of
defeasibility of the basic legal concepts has been intensively discussed in
legal theory. An interesting question that we are unable to take up in this
paper is whether basic concepts of legal and political philosophy (such as
justice, rule of law, democracy) are defeasible as well.
5 Final remark
As far as we can see, there are at least three diﬀerent ways of conceptual
dis-aggregation. One of them, the diﬀerentiation of sub-types, feeds on
the semantics of adjectives. But now there appears a need to discriminate
between diﬀerent functions that adjectives play with regard to nouns: determining,
conﬁrming, and modifying. Only by discerning the modifying
13
The notion of defeasibility was introduced to legal theory by Hart 1949.
14
Such sub-types may be called ‘defeated sub-types’, or, as Collier & Levitsky write,
‘dissmisive sub-types’. (Collier and Levitsky 1997, p. 442) An example given by them
(without a detailed analysis) is ‘façade democracy’.
15
Let us note that the dismissive sub-type (resp. defeated subtype) is, due to the
role that adjective dismissive plays as a modiﬁer, is in fact a dismissive sub-type of the
concept of subtype, hence indicates a very diﬀerent, but defeated, concept.
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38 Adam Dyrda and Tomasz Gizbert-Studnicki
function of adjectives can one distinguish ‘diminished’ and ‘dismissive’ subtypes
from typical subtypes of a concept, being in fact two very diﬀerent
things. In the ﬁeld of legal and political discourse, the ability to do so
is an essential feature of argumentative skills that, while neglected, would
surely result in in-reliable argument or conceptual confusion.
References
Austin, John Langshaw (1961). “Philosophical Papers”. In: Oxford: Clarendon
Press. Chap. A Plea for Excuses.
Collier, David, Fernando Daniel Hidalgo, and Andra Olivia Maciuceanu
(2006). “Essentially contested concepts: Debates and applications”. In:
Journal of Political Ideologies 11.3.
Collier, David and Steven Levitsky (1997). “Democracy With Adjectives:
Conceptual Innovation in Comparative Research”. In: World Politics
49.
Dagan, Hanoch (2005). “The Realist Conception of Law”. In: University
of Toronto Law Journal 57.
Gallie, Walter Bryce (1956). “Essentially Contested Concepts”. In: Proceedings
of the Aristotelian Society. Vol. 56, pp. 167–198.
Gizbert-Studnicki, Tomasz (2009). “Prawda sądowa w postępowaniu cywilnym”.
In: Państwo i Prawo 7. [Judicial Truth in Civil Procedure].
Haack, Susan (2009). “The Growth of Meaning and the Limits of Formalism:
in Science and Law”. In: Analisis Filosoﬁco XXIX.1.
Hart, Herbert Lionel Adolphus (1949). “The Ascription of Responsibility
and Rights”. In: Proceedings of the Aristotelian Society 49, pp. 171–
194.
Jackson, Frank (1998). From Metaphysics to Ethics. Oxford: Clarendon
Press.
Llewellyn, Karl N. (1962). “Jurisprudence: Realism in Theory and Practice”.
In: Chicago. Chap. A Realistic Jurisprudence: The Next Step.
Peirce, Charles Sanders (1878). How to Make our Ideas Clear? url: http:
//www.marxists.org/reference/subject/philosophy/works/us/
peirce.htm.
Sartori, Giovanni (1970). “Concept Misformation in Comparative Politics”.
In: American Political Science Review 64.
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REFERENCES 39
Twardowski, Kazimierz (1965). Wybrane pisma ﬁlozoﬁczne. Selected Philosophical
Writings. Warszawa: PWN.
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Comment on David Enoch’s
argument of pro tanto
retributivism in discussion
about legal luck
Maciej Juzaszeka
Abstract. In this paper I would like to analyze the argument
used by David Enoch in his discussion on legal luck. Enoch
believes that if there is no moral luck, we have a pro tanto reason
to deny legal luck. However, what does a ‘pro tanto reason’
mean? Enoch refers here to so-called weak retributivism, or pro
tanto retributivism. My aim is to present the origins of this
argument, provide a précis of it, and show some controversial
assumptions that are behind it.
Keywords. David Enoch, moral luck, legal luck, retributivism,
pro tanto, legal moralism.
In one of my previous articles, I tried to conceptualize the relationship between
moral and legal luck. (“Miedzy trafem moralnym a trafem prawnym”)
My conclusion was that statements concerning the admissibility of legal
luck are only a matter of assessing law from a moral point of view. To deliver
this ﬁnding, I referred to David Enoch’s idea that if there is no moral
luck, there is a pro tanto reason to deny legal luck. It does not matter
now if we agree or disagree with him on the acceptability of moral luck.
However, essential for my thesis is the very structure of his argument.
a
Uniwersytet Jagielloński w Krakowie, Kraków, Poland; m.juzaszek@gmail.com ( )
41
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42 Maciej Juzaszek
Let’s start with a brief introduction of the discussion on moral and legal
luck. Bernard Williams (Williams 1993) and Thomas Nagel (Nagel 1993)
once observed that within morality, people share two opposite intuitions
concerning the inﬂuence of luck on moral responsibility. The ﬁrst of these
is widely called the ‘control principle’ and holds that
[...] we are morally assessable only to the extent that what we
are assessed for depends on factors under our control. (Nelkin
2004)
Thus, when there are two moral agents who control the same range of
circumstances, we should not accept any diﬀerentiation of their moral responsibility;
they ought to be treated identically. However, often we follow
a second intuition, called ‘moral luck,’ i.e. our moral judgments are
aﬀected by some circumstances uncontrollable by assessed agents. If we
believe that morality is or should be a coherent and self-consistent set of
beliefs, we have to provide an explanation for the paradox of our contradictory
moral intuitions. If, for instance, there are two drivers who exceed
the speed limit and one of them meets nobody on the road but the second
causes a fatal accident because a child appeared out of nowhere, our moral
assessment of these two cases will probably be a good example of above
paradox. On the one hand, neither driver has control over the actions
of a child who might run into the road; on the other however, the two
drivers will very likely be assessed diﬀerently: the former just for risking
the lives of others on the road, the latter for killing the child. We ﬁnd
the same problem in the ﬁeld of law. The ﬁrst driver will be probably
only held responsible for speeding, while the other will be held responsible
for manslaughter or vehicular homicide. Legal responsibility often varies
according to circumstances that are beyond the culprit’s control. This is
legal luck. The question, however, is if it should be this way.
David Enoch strongly supports the thesis that there is no moral luck,
i.e., that only the control principle is a valid ground for determining the
blameworthiness of a moral agent. (Enoch 2007, pp. 23–60) More interesting
for the purposes of this article, he claims that if there is no moral
luck, there is a pro tanto reason for denying legal luck. How did he come
to this conclusion? His reasoning starts from the theory of retribution in
criminal law. However, there are still some useful conceptual distinctions
to be made.
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Comment on David Enoch’s argument ... 43
First, Enoch and Marmor, (critically) inspired by Strawson’s ‘Freedom
and Resentment,’ point out the diﬀerence between blameworthiness and
blame-related reactions within morality. They write:
Judgments about blameworthiness [...] and related judgments
about responsibility, culpability and the like, are not logically
equivalent to judgments about the appropriateness of blamerelated
reactions. Rather, the former serve to ground or justify
the latter. It is because a person is blameworthy that certain
blame-related reactions towards him are appropriate. (Enoch
and Marmor 2007, p. 433)
An agent can be morally blameworthy without encountering any blame
(such as social ostracism), e.g. a man who is unfaithful to his wife but nobody
knows about it; however, the opposite situation, in which an agent
meets blame without committing any moral wrongdoing, would be probably
regarded as incorrect moral judgment. Similarly, we can distinguish
between legal responsibility and responsibility-related reactions, i.e. legal
punishment. The former is a justiﬁcation for the latter. Analogously to
morality, one can be legally responsible but suﬀer no punishment. An
agent who commits a crime but is not caught by police is, of course, still
legally responsible. The same is true of an agent who commits a crime,
is caught by the police, but is not penalized by a court of law for some
reason (e.g., active repentance or advanced age of the convict).
However, what is aﬀected by the paradox of legal luck: legal responsibility
or legal punishment? If the latter, we must ask why two culprits who
are responsible for the same legal wrongdoing are punished diﬀerently. If
the former, the question is why two culprits who control the same range of
circumstances are responsible for diﬀerent legal wrongdoings that justify
diﬀerent degrees of punishment, or why one of them is responsible for a
legal wrongdoing and the second is not responsible at all and deserves no
punishment. I believe that both questions are equally important. Regarding
the ﬁrst question, we will focus on the application of a law and reasons
used by judges in sentencing. This concerns choosing a theory of punishment
and justifying the grounds for punishment. Regarding the second
question, we will focus on the content of abstract norms and reasons used
to justify criminalization. Enoch is interested in the ﬁrst problem; that is
why I will focus on it, but at the end, the second problem will inevitably
return.
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44 Maciej Juzaszek
Referring to retributivism in criminal law, we need to ask whether the
basis for legal punishment is moral wrongdoing (moral retributivism) or
legal wrongdoing (legal retributivism). Brink commented on this issue in
the following way:
The worry is that legal norms and moral norms are diﬀerent
and that legal wrongdoing is not necessarily moral wrongdoing.
But where legal wrongdoing is not morally wrong, it’s not so
clear that blame or punishment is morally deserved. (Brink
2012, p. 501)
Although Brink claims that
[...] if we don’t embrace the extreme natural law conclusion,
we cannot dismiss this worry about the moral case for blaming
and punishing culpable legal wrongdoing. (ibid., p. 501)
I think one can be a legal positivist1
and at the same time a legal and/or
moral retributivist. One just needs to abandon treating retributivism as a
theory of necessary substantive connections between concepts. A positivist
retributivist (PR) can simply say that punishment is proportional to the
moral or legal wrongdoing (descriptive thesis) in a given legal system, but
this is not really interesting thesis, because it can be empirically veriﬁed by
analysis of legal norms or study on judicial decisions. However, a PR can
also maintain that punishment should be proportional to the moral or legal
wrongdoing (normative thesis) in a given legal system or even in general,
i.e., he believes that it would be good if moral or legal wrongdoing were the
basis for legal punishment. But these claims are not necessarily connected.
A PR can admit that a descriptive thesis is false, i.e., in some legal system
punishment is not proportional to the moral or legal wrongdoing, but at
the same time insist that it should be. Even if legal norms are completely
diﬀerent from his beliefs about them, he will not say that they are not
legal rules. He will rather say that these legal rules are unfair or unjust
and should be changed.
Let’s now examine the diﬀerence between moral and legal retribu-
tivism.2
A legal retributivist (LR) claims that the only factor that should
1
‘Positivist’ is here understood as one accepting the separation thesis.
2
I present here the strongest versions of these positions.
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Comment on David Enoch’s argument ... 45
inﬂuence the degree of punishment is legal wrongdoing. His opponents
can argue that punishment should not be based on legal wrongdoing and
justiﬁed only by the consequences of punishment, e.g. general prevention
(legal consequentialists). A moral retributivist (MR) believes instead that
the only (or the most important3
) circumstance that aﬀects the degree
of punishment should be moral wrongdoing. Similarly, his opponents can
counter the argument by saying that legal punishment should be independent
of any considerations concerning moral blameworthiness. Thus, (1)
if one is only an MR and not an LR, he argues that moral wrongdoing
is a necessary and suﬃcient condition for punishment. Legal wrongdoing
is not prerequisite. An MR believes that (some) moral wrongdoings
should be punished by the state even if they are not criminalized. A radical
version of this position can be illustrated by the example of a religious
fundamentalist who believes that punishment is grounded by protection
against public acts of indecency. In his opinion, rules concerning chastity
are moral rules, so if these rules forbid women to expose their hair, women
who expose their hair in public should be punished by the state, even if
no such crime exists. (2) If a person is only an LR but not an MR, he
believes that a basis for punishment should be legal wrongdoing, i.e., that
legal wrongdoing is a necessary and suﬃcient condition for punishment.
Therefore, an LR thinks that legal rules are very diﬀerent from moral rules.
If something is morally wrong, it does not also have to be legally wrong,
and vice versa: If an act is a crime, it does not necessarily have to be moral
wrongdoing. But of course, this does not imply that some moral rules and
some legal rules cannot overlap. A culprit who commits a crime could also
have committed a morally analogous moral wrongdoing, but the argument
is that the latter wrongdoing should not aﬀect his punishment. So state
can treat morally neutral (or even praiseworthy) acts as crimes and punish
those who commit them if there is a good reason for it. Finally, (3) a
legal and moral retributivist (LMR) claims that legal punishment should
be based on both legal and moral wrongdoing, and that implies that all
legal wrongdoings should also be moral wrongdoings. However, it does
not mean that they are. So if state decides to criminalize some activity
that is not morally blameworthy, an LMR should protest that such a law
is unjust. Similarly, if the court punishes an agent who commits a moral
wrong, an LMR should protest that such a punishment is illegal because
3
See the below discussion on pro tanto retributivism.
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46 Maciej Juzaszek
this act should ﬁrst have been criminalized. These three alternatives can
be represented as follows:
(1) moral but no legal retributivist MR & ∼LR
(2) legal but no moral retributivist. LR & ∼MR
(3) legal and moral retributivist. LMR = LR & MR
How can a positivist be an LMR? If all of the above statements are
normative, not descriptive, this is not a problem at all. Even a positivist
can have his own vision of the content of legal norms and criticize them if
they do not meet his moral expectations. Of course, he will not claim that
only because they are unjust, they are not legally binding. He can even
be an adherent of punishing someone who committed no crime but only
some moral wrongdoing, and simply admit that it is contrary to existing
law. However, is Enoch an LR, MR or an LMR? If he had been an MR, he
would not have considered relations between moral and legal luck, because
then just statement concerning moral luck would be a justiﬁcation for
punishment. If he had been an LR, he would not have bothered about
morality at all. That is why I will now leave out MR and LR alternatives
and remain with LMR.
All of these alternatives refer to the positive aspect of retributivism:
requiring that conditions be satisﬁed to justify punishment. However,
there is also a negative aspect: setting out conditions that forbid us to
justify the punishment. Usually it is the innocence of an agent (for LR legal
innocence, for MR moral innocence and for LMR both). No punishment
can justly be imposed on a person who did nothing (morally or legally)
wrong. Although there is no room here to analyze the origins of such
limitations (Duﬀ 2013), Enoch explicitly claims that they are valid (Enoch
and Marmor 2007, p. 33).
So far, I have considered only diﬀerent varieties of strong retributivism.
Its adherents claim that punishment should reﬂect only moral or legal
blameworthiness, and other circumstances should not be taken into account.
If we accept MR, it is obvious that our position concerning legal
luck should be the same as our position concerning moral luck, because if
both agents are equally blameworthy, they deserve equal punishment. If
we accept LR, we do not have to worry about moral luck at all.
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Comment on David Enoch’s argument ... 47
However, Enoch believes that weak (moral) retributivism is a more
plausible theory than strong retributivism. Weak retributivism claims that
legal punishment should pro tanto reﬂect moral blameworthiness, that is,
the agent’s moral blameworthiness should be the starting point and basis
for considering his legal punishment.4
We can say that
[...] moral blameworthiness is always a positively relevant factor,
so that if two people are alike in moral blameworthiness,
there is a (pro tanto) positive reason to treat them alike. (ibid.,
p. 34)
If there is no moral blameworthiness, we cannot punish a person at all.
However, other important arguments, such as the possibility of rehabilitation
or a high level of threat, can disrupt the balance between blameworthiness
and punishment (these should be non-moral arguments, whereas
the moral ones inﬂuence the agent’s moral blameworthiness). To explain
nature of pro tanto reasons, Enoch uses the example of a professor grading
students’ essays. The positively relevant factor is always “the intellectual
achievement x incorporated in the paper.” If the professor has two essays
with the same level of intellectual achievement, he has a pro tanto reason
to grade them identically. But there are other reasons that may inﬂuence
his assessment, i.e., the style of the essay, or the time and level of eﬀort
put into the paper. If two students wrote two papers that are intellectually
equally valuable, the professor has a pro tanto reason to give them
identical grades. But if one of the students has clearly put much greater
eﬀort into the paper, this is a good enough reason for the professor to give
this student a higher grade. As Enoch writes:
Not just any old reason will outweigh considerations of intellectual
achievement in grading papers. It will take a strong
enough countervailing reason to justify giving signiﬁcantly different
grades to papers that incorporate intellectual achievements
that are roughly equally valuable. (ibid., p. 34)
4
Enoch uses the phrase pro tanto instead of prima facie, probably because of the
subtle but important diﬀerence between them. As Shelly Kagan writes, “A pro tanto
reason has genuine weight, but nonetheless may be outweighed by other considerations.
Thus, calling a reason a pro tanto reason distinguishes it from a prima facie reason,
which I take to involve an epistemological qualiﬁcation: a prima facie reason appears
to be a reason, but may actually not be a reason at all.” (Kagan 1989, p. 17). I will
adhere to this terminology.
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48 Maciej Juzaszek
(1) Student 1: achievement x ->grade a
(2) Student 2: achievement x ->grade a
(3) achievement & eﬀort ->grade b (b > a)
Similarly, moral blameworthiness is always a positively relevant, pro
tanto reason for punishment. That is why, to assess if legal luck is justiﬁed,
we have to see whether moral luck is justiﬁed in the ﬁeld of morality. If
diﬀerentiation between the moral blameworthiness of two agents is groundless,
it is a pro tanto reason not to threat them diﬀerently while deciding
about legal responsibility and punishment. Enoch believes that there is
no moral luck, so this is a pro tanto reason to deny legal luck. This claim
can be represented as:
∼moralLuck ->proTanto(∼legalLuck)
Is there any hidden assumption behind this argument? I think there
is quite a strong one concerning not responsibility-related reactions, but
the very concept of legal responsibility. If we want legal punishment to
be grounded at the same time by both moral and legal wrongdoing we
cannot remain only on the level of punishment, so responsibility-related
reactions. To have a legal wrongdoing compatible with our moral beliefs,
we have to admit that we want the norms of criminal law to correspond
to the norms of morality. And of course, this raises the question of legal
moralism.5
Simply speaking, the main thesis of legal moralism is that
[...] the state can and should regulate immorality, as such.
(Brink 2012, p. 504 and Cranor 1979, p. 155) [...] wrongfulness
is a suﬃcient reason to regulate conduct [...] (Brink 2012, p.
506 and Cranor 1979, p. 155)
But similar to retributivism, there is also weak legal moralism, which states
that
[...] wrongfulness establishes a pro tanto reason to regulate
conduct [...] (Brink 2012, p. 506 and Cranor 1979, p. 155)
5
Probably it is rather matter of legal responsibility than responsibility-related reac-
tions.
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REFERENCES 49
[...] and there are strong reasons to believe that it is more pausilble than
strong legal moralism. (Brink 2012, p. 508
If we mix an LMR with a pro tanto legal moralist, we will obtain a person
claiming that legal punishment should be justiﬁed by both moral and
legal wrongdoing but that such a moral wrongdoing should not always be
criminalized. Therefore, there are some situations in which there are good
reasons not to criminalize some moral wrongdoings, such as lying or extramarital
sex. However, if we try to mix an LMR with opponents of legal
moralists, we will obtain a person claiming that legal punishment should
be justiﬁed by both moral and legal wrongdoing, but that the state should
not criminalize moral wrongdoings just because they are moral wrongdoings,
but only when they are harmful acts. Then, of course, the practical
result would be similar to that in the previous case, because the majority
of moral wrongdoings will likely be criminalized—not because they are
immoral, but because immoral acts are usually harmful too. However,
punishing such a legal wrongdoing would not be justiﬁed by moral blameworthiness,
and this is inconsistent with LMR. That is why, if Enoch is an
LMR, he is also a legal moralist (pro tanto). But he does not refer to this
issue and does not give any justiﬁcation of legal moralism at all.
In conclusion, I am not providing ready answers here, but simply pointing
out the problems that we have to consider and resolve if we believe that
Enoch gives a good explanation of the legal luck paradox. I have shown
that his pro tanto (legal and moral) retributivism entails (pro tanto) legal
moralism, which is an extremely controversial belief in modern liberal
societies. To retain pro tanto retributivism, we must provide some good
reasons justifying (pro tanto) legal moralism. Looking at the argument of
opponents, this is a diﬃcult task but not a doomed one.
References
Brink, D. (2012). “Retributivism and Legal Moralism”. In: Ratio Juris 25.
Cranor, C. (1979). “Legal Moralism Reconsidered”. In: Ethics 89.
Duﬀ, A. (2013). Legal Punishment. Stanford Encyclopedia of Philosophy.
url: http://plato.stanford.edu/entries/legal-punishment/.
Enoch, D. (2007). “Luck Between MorMoral, Law and Justice”. In: Theoretical
Inquiries in Law 9, pp. 23–60.
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50 Maciej Juzaszek
Enoch, D. and A. Marmor (2007). “The Case Against Moral Luck”. In:
Law and Philosophy 26.
Juzaszek, Maciej. “Miedzy trafem moralnym a trafem prawnym”. Diamet-
ros.
Kagan, S. (1989). The Limits of Morality. Oxford: Clarendon Press.
Nagel, T. (1993). “Moral Luck”. In: Moral Luck. Ed. by D. Statman. New
York: State University of New York Press.
Nelkin, D. (2004). Moral Luck. Stanford Encyclopedia of Philosophy. url:
http://plato.stanford.edu/entries/moral-luck/.
Williams, B. (1993). “Moral Luck”. In: Moral Luck. Ed. by D. Statman.
New York: State University of New York Press.
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Why do Pragmatics Matter in
the Legal Framework?
Izabela Skoczeńa
Abstract. Grice founded his theory on the assumption that
the speaker conveys not only what he says, but also what
he pragmatically implicates. This is possible because of the
context shared by the utterer and the hearer as well as some
common rule-like assumptions called maxims of conversation.
Grice’s theory concentrated on a communication oriented at
the exchange of information between speaker and hearer. The
main objections against it were that it is narrow, as the informatively
oriented communication occurs rarely in human
interactions. Consequently, the content of maxims as designed
by Grice could not apply in many legal contexts. This paper
aims at considering only one of the multiple contexts in the
realm of law – the relations between the legislature and the
judicial powers.
Keywords. Grice, Maxim Content, Polysemy, Pragmatics, Orig-
inalism
1 Introduction
Among theories of communication developed by modern pragmatics Grice’s
theory of implicated meaning is being constantly discussed by his numerous
followers. Grice founded his theory on the assumption that the speaker
a
Jagiellonian University, Krakow, Poland; izaskoczen@gmail.com ( )
51
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52 Izabela Skoczeń
conveys not only what he says, but also what he pragmatically implicates.
In other words, the meaning conveyed goes beyond the amalgam of the semantic
meaning of the words used. This is possible because of the context
shared by the utterer and the hearer as well as some common rule-like assumptions
called maxims of conversation. Grice’s theory concentrated on
a communication oriented at the exchange of information between speaker
and hearer. He deﬁned four maxims – of quantity, quality, relation and
manner (Grice 1975). His conception of the content of maxims was put
under large criticism. This led to the formation of alternative ideas by,
among others, Levinson (Levinson 2000), Sperber (Sperber and Wilson
2004) or Horn (Horn 2004). The main objections against the Gricean account
were that it is narrow, as the informatively oriented communication
occurs rarely in human interactions. Consequently, the content of maxims
as designed by Grice could not apply in many legal contexts. This paper
aims at considering only one of the multiple contexts in the realm of law –
the relations between the legislature and the judicial powers. There exists
in the literature three hypothesis concerning this matter (I) there is a conversation
between the courts and the legislature, but the maxim-content
is speciﬁc (Marmor 2011), (II) there is a conversation, but the cooperative
principle does not apply (Poggi 2010), (III) it is something similar to
a monologue formed by two independent agents – the legislator and the
judicial authorities (being more than a standard hearer - indicating what
a reasonable hearer would have understood in the concrete case’s context
and pragmatically enriching the received meanings). It could require a
double-leveled, contextual enrichment of meaning: ﬁrst in determining the
existence of meaning of a legal act going beyond the literal one and second
determining the content of that meaning by the judicial authorities.
The third possibility seems the most probable for reasons stated in the
following paragraphs.
2 The legal contexts
The diversity of legal contexts causes a diﬀerentiation of aims of the communication.
It is a rarity for a communication within a legal context to be
oriented at a cooperative exchange of information (the Gricean idea). The
aim of a political party, trying to make its view to prevail in parliament
so as to enact a new regulation in accordance with it, will necessarily be
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Why do Pragmatics Matter in the Legal Framework? 53
utterly diﬀerent from the aim of a barrister trying to defend his client in
front of a jury. In general, there seem to be 3 main types of ‘legal’ contexts
of communication to be distinguished:
• The communication within a legislative body, aiming at making one’s
intention concerning the regulated matter to prevail. This is a typical
type of political communication, a part of what A. Marmor names
strategic speech.
• The communication between the legislator and the court that has
to decide on a speciﬁc case by applying the enacted (and so communicated
by the legislator) regulation. This seems to be the most
problematic and challenging context to be described in Gricean or
neo-Gricean terms. The considerations in this paper will be speciﬁcally
devoted to it.
• The communication occurring in court, while deciding on a speciﬁc
case between the judges or jury and litigants.
• The communication between the legislator and the target agents of
the legal act.
Let us have a closer look on the second type of communication, which
is probably most controversial, as far as linguistic matters are concerned.
3 Polysemy and normative worries
Human language is an imperfect communicative tool. It generates diﬃcult
issues for its users such as: ambiguity, vagueness, open texture and
polysemy. The last one is common in natural language. This occurs also
within the legal language. Let’s take the example given by “Meaning and
Belief in Constitutional Interpretation”:
‘It is not fair that X...’
Now consider the following options for X:
1. My daughter saying, ‘you bought my sister a new shirt but not me.’
2. The president saying, ‘the most wealthy people in the country pay
such low rates of income tax.’
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54 Izabela Skoczeń
3. The inmate in prison saying, ‘I got convicted, because I didn’t do it.’
4. My wife saying, ‘we planned this trip for so long and now the weather
is going to ruin it.’
Consequently, the phrase ‘not fair’ is quite diﬀerently understood in
each of the sentences.
In (a) there is some notion of equal treatment in play; in (b)
there is some notion of redistribution in play; in (c) it is a
concern about truth and desert; and in (d) it is about bad
luck. (“Meaning and Belief in Constitutional Interpretation”)
In natural language, the context of the conversation and the pragmatic
enrichment of meanings is helpful in determining, at least a rudimentary,
prima facie understanding of each of this utterances. Is therefore context
helpful in constitutional or statutory interpretation? As far as constitutional
interpretation is concerned, Marmor argues, it is a matter of moral or
political arguments, to deﬁne, what kind of a speech act is being produced,
which is explicit in cases called ‘super-polysemous’. It is not the linguistic
considerations that will help us choose the relevant moral-political argumentation,
while solving a case. The moral-political argumentation that
we have chosen will in fact be determining the linguistic considerations,
which are going to be conducted. Marmor comes to this conclusion as
a result of the rejection of both the externalist (endorsed by R. Dworkin
and J. Perry) as well as the internalist (endorsed by W.B. Gallie) view. He
points out, that the concept-conceptions distinction in its externalist version
leads to a metaethical realism, which is a rather controversial, not to
say unwanted, conclusion (as it would probably deny linguistic pragmatics
its signiﬁcance in determining meaning (Bix 2003)). The internalist
approach stating that there are some notions, we can have a reasonable
disagreement on, but which is not solvable by argument of any kind - is
a descriptive statement, failing to explain why such disagreements occur.
Notions, which are incommensurable or are a ‘matter of taste’ (Marmor
gives the examples of comparing French and Californian wine, or the choice
between urban and rural life) should render us indiﬀerent as too choosing
between them, rather than generating disagreements on them. If two notions
are remote and incomparable to the extent that at the very beginning
of the debate we already know there is no argument, which would designate
one of them as predominant in a manner in which absolutely every
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Why do Pragmatics Matter in the Legal Framework? 55
person would agree with, then what is the reason for considering such issues?
Nevertheless, when it is the case, that a ‘winner’ has to be declared
or a decision must be taken, the problem arises. (“Meaning and Belief
in Constitutional Interpretation”) In those peculiar situations, individuals
hold subjective views (and they believe their views are the correct ones),
while at the same time accepting that others can hold contradictory views
on the same matter. In other words, individuals accept that their preferred
arguments do not need to be reasons for others to hold similar views. Good
examples of this super-polysemy could be notions such as: cruelty, justice,
equality or fairness in constitutional interpretation. The image given by
Marmor is adequate at a descriptive level. Some polysemous cases are
resolvable by pragmatic factors, when the case reaches a court. When it
comes to a polysemy of the above described, ‘problematic’ kind, individuals
can only hold subjective views on their preferred argumentation, but they
know it cannot be a reason for others to follow it. This descriptive view is
problematic at the normative level: imagine a court has to make a decision.
When deciding on matters of polysemy of the above mentioned kind, the
judge makes a decision based on a subjective-preference argumentation.
Therefore, why should people treat the court’s argumentation as a reason
to act in accordance with the court’s decision? Relativism is the crucial
point here. This seems to be the reason why Marmor is so skeptical about
constitutionalism in general (as such cases often occur in constitutional
interpretation – if constitutions are made to ‘ﬁx’ certain meanings then
in the described cases they obviously fail at large and become virtually
useless).
Subjectivism is one of the principal reasons of the heated debate between
originalism and its opponents – anti-originalists - currently taking
place in USA. Each of the parties attempts to back their moral or political
statements with semantic arguments. They adjust their semantic
arguments to the preferred line of moral or political argumentation.
(Gizbert-Studnicki 2012) Nevertheless, it is the moral and political arguments,
which are decisive here and not the linguistic considerations.
Another cause for this disagreement is the fact that the divide of powers
principle is strongly historically grounded in our thinking about law.
(“Two Dimensions of Originalism”) This, in the above-described cases of
constitutional super-polysemy, forces judges to include in their lines of
argumentation justiﬁcations of their deference to the meaning intended
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by the legislator. The originalist stance consists of two main approaches.
It can either be considered as a constitutional interpretation aiming at
disclosing the original (psychological) intention of the legislator1
, or the
original meaning emerging from the context of the publically available debate.
There exists originalists accepting either both approaches, or only
one of them. (Gizbert-Studnicki 2012) As an example justice Antonin
Scalia rejects the ﬁrst ‘intentionalist’ –originalist approach, while favoring
the second one. This ‘switch’ from the ﬁrst approach toward the second
one is also favored by S. Soames. The second approach is the one where
linguistic pragmatics play a major role, as the public debate forms a context
enabling the recipients to form a pragmatic enrichment of the received
meaning. The ‘living constitutionalism’ stance is an alternative view. It
can also be described as mainly consisting of two approaches. The ﬁrst
one, ‘formalism’ (this label is used in statutory interpretation), favors an
interpretation directed at discovering the literal, conventional meaning,
allowing only co-textual implicatures2
and devoid of context. It denies
the role of pragmatics in constitutional interpretation. The second antioriginalist
approach is analogous to meaning emerging from the context
of the publically available debate, except it is the current meaning and
not the original one. The time factor, inﬂuencing context alterations is
therefore the key factor. It is something similar to the ‘new textualists’
view in statutory interpretation.3
In other words the second approach
tries to establish what a reasonable hearer, knowing the relevant context
or publically available debate would have understood from the provision
1
The principal argument against this approach consists of underlining the impossibility
of reconciling it with the rule of law principle, as psychological legislative intentions
are very often disclosed from the public. Furthermore it is not even clear if we can at
all speak of collective psychological intentions, while legislatures are collective bodies
in democratic states.
2
The notion of co-textual implicatures will be discussed later, see Poggi 2010.
3
See Tiersma 2012: ‘In reality, there are no American judges who would routinely
ignore what a statute says in favor of devining what the legislature was interested in
accomplishing based on extra-textual materials, and then base a ruling entirely on this
analysis. By the same token, those dubbed “new textualists” (Eskridge 1990) most
often accept to apply interpretive rules of thumb for the purpose of ascertaining the
legislature’s goals while attempting to constrain the universe of evidence they consider
in order to reduce the role of judicial discretion in the decision making process. That
is, textualists eschew some species of context, but are not anti-contextualist
in principle.’
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Why do Pragmatics Matter in the Legal Framework? 57
at the time of deciding on a particular case and not at the time of the
law’s enactment.4
If we choose the originalist approach (which, I believe
is not a choice based on linguistic arguments, but a choice based on moral
or political ones) and agree with S. Soames that:
the originalist looks for what the lawmakers meant and what
any reasonable person who understood the linguistic meanings
of their words plus the publically available facts and recent history
in the lawmaking context would take them to have meant.
This – not the original linguistic meaning of the words they
used – is the content of the law as enacted (“Textualism, Pragmatic
Enrichment and Objective Communicative Content”, p.
4),
then pragmatic factors and context become crucial. It is some kind of
a shift of focus from subjective psychological intentions, to a more objective
notion of what a standard hearer, knowing the relevant context (the
accessible public debate) of an utterance would have understood in that
situation, at the time of the law’s enactment.5
An acknowledgment of the
subjectivity and sensitivity to abuse of the process of ‘guessing’ the true
psychological intentions of the legislator is being made. It is a dangerous
process mainly because of two reasons. First, the legislature is a collective
body. This entails we cannot view its intentions as having exactly the
same nature as psychological intentions of a unitary speaker. Secondly, if
the psychological intentions of a unitary speaker can often be hidden for
the hearer or not explicitly enough expressed by the speaker or misinterpreted
by a hearer, then the psychological intention of a collective body
seems even harder to grasped. It is unclear what such intentions shall be.
A sum of the unitary intentions? Or maybe a prevailing intention? It
4
Analogously in statutory interpretation: ‘(. . . ) the meaning of a statutory text,
according to contemporary textualists, is the linguistic content that a rational and competent
speaker of the English language would, knowing the relevant context and conversational
background, have associated with the relevant text at the time of enactment.’
See “Textualism, Pragmatic Enrichment and Objective Communicative Content”, p. 2.
5
The considerations in this paper are mainly devoted to constitutional interpretation.
There seems to be an analogous idea of shifting the debate in statutory interpretation
in the States. This program is being endorsed by the so called purposivists, claiming
that a judge should seek for the objective purpose of a law – and so introduce some
normative construct. See “Textualism in Context”, p. 4.
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seems therefore more viable to resort to some less subjective criteria like a
standard, objective hearer, who knowing the relevant context understands
the speech act intentions in the most reasonable way given the available
public debate. Such approach seems more conform to the expectations of
fulﬁlling the rule of law in democratic states, as it takes into considerations
factors available to the broad public, while allowing no unexpected interpretations
basing on hidden psychological intentions and emphasizing the
‘predictability’ in the realm of law. (Bix 2003) This line of argumentation
can also cause issues. It somehow includes a normative element: we introduce
a factor that determines how the content of the legislative utterance
should be understood. Determining the most reasonable way in which it
is to be understood also requires an argumentation, which in turn could
be accused of hidden subjectivism and arbitrariness. Pragmatics helps us
to avoid confusion between the rudimentary, standard and most common
understanding of a sentence and its understanding in a given context.
The sentences ‘Do you use a cane?’ and ‘I have never used
a ﬁrearm’ do not have the same meanings in the English language
as the sentences ‘Do you use a cane for walking?’ and ‘I
have never used a ﬁrearm as a weapon.’ (“Two Dimensions of
Originalism”, p. 3)
Consequently, if the legislator issues a statute of the form ‘It is forbidden
to use a ﬁrearm’, he may intend to say ‘It is forbidden to use a
ﬁrearm as a weapon’ or ‘It is forbidden to use a ﬁrearm as a weapon or
as a payment device or any other non-standard purpose etc.’, depending
on the context of his utterance. The purpose is hidden in the pragmatic
context. There can also be, as Soames points out, a second dimension
of the interpretative issue – the content asserted by the legislator in the
particular context6
can be indeterminate.
In these circumstances, the task of the judicial interpreter is
not to discover an idealized law that is already there;it is to
make new law. The challenge to originalism is to articulate
what form of deference to original sources should guide this
process. (ibid., p. 14)
6
In fact in the context of a particular case in court.
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Why do Pragmatics Matter in the Legal Framework? 59
The task of the judge is to construct the minimum necessary presiciﬁcation
(a term introduced by S. Soames) of the law:
My version of originalism maintains that in such cases, the
court’s duty is to adopt the minimum principled precisiﬁcation
of the indeterminate existing content that allows a deﬁnite verdict
to be reached that most closely conforms to the original
lawmakers’ rationale for adopting the legal provision.
According to his view, this rationale consists
not in the causally eﬃcacious motivators of lawmakers but in
the chief reasons publicly oﬀered to justify and explain the
law’s adoption.
This deﬁnition seems to be some kind of a ‘purposivist-originalist’ view.
Purposivism is a term traditionally used in statutory interpretation, but
here it is being smuggled in the constitutional one. The considered paper
seems to weaken an initially strong originalist stance with a purposivist
element, rendering originalism a more practical and descriptively plausible
theory. Soames argues that this ‘presiciﬁcation’ process is open to abuse,
but this was never the issue.
[T]he point of an originalist conception of interpretation is not
to prevent abuse, which no reasonable conception of interpretation
can do. The point is to lay down solid and defensible
criteria by which the inevitable exercise of interpretive judgment
must be justiﬁed.
This seems to be a quite controversial statement. Solid and defensible
criteria are precisely what enables us to lay the border between interpretation
and abuse. They are supposed to prevent abusive interpretation
or at least reduce it to a minimum. It is in this second dimension of
originalism, when the asserted content of the law is indeterminate that
pragmatics again come into play. Soames deﬁnes ‘an originalist view of
judicial responsibility’:
Courts are not to legislate, but are to apply the laws adopted
by legislative authorities to the facts of particular cases. To
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do so they must determine what the lawmakers in a given case
asserted or stipulated in adopting the relevant legal texts, and
apply that content to the facts of the case to arrive at a legal
result. When the content of the law or laws fails to provide
reliable guidance in determining a unique, acceptable legal outcome
(in cases in which one is needed) – either because that
content leads to inconsistent outcomes, or because it fails to
lead to any outcome, or because it leads to an unforeseen outcome
that subverts the predominant legislative rationale of the
lawmakers in adopting the relevant laws – the task of the judicial
authority is to fashion the minimal modiﬁcation of
existing legal content that removes the deﬁciency and allows
a decision to be reached, while maximizing the fulﬁllment of
that rationale. (“Two Dimensions of Originalism”, p. 30)
This fashioning of the minimal modiﬁcation is necessary for the originalist
view to be applied in practice. Soames argues without it, descriptively
speaking, the originalist programme wouldn’t be possible to be realized.
It also enables a maximum compliance with the historically valued
divide of powers principle. It seems however, that an additional distinction
is required. The minimal modiﬁcation made by a court can be of
two kinds. It can be ‘creative’ in the sense the court uses new political
or moral argumentation. Nevertheless in some cases, the minimal modiﬁcation
can stay within a pragmatic enrichment of an asserted meaning.
An enrichment caused by additional, new facts of a particular case, which
is being decided upon. Consequently, if the minimal modiﬁcation is of a
purely pragmatic character, then the decision process is fully originalist.
Take the example of a regulation forbidding the use of drugs enshrined
on a list. The last point of the list is a legislative blank cheque stating
that the use of other existing drugs having similar eﬀects is also forbidden.
This blank cheque does not have to mean the legislator approved an antioriginalist
stance of the court, because the legislator must be aware of the
possibility of new pragmatic factors occurring. Imagine ten years after the
enactment of this law, a new drug having similar eﬀects is invented. No
rational recipient of the legislature utterance at the time of its enactment
could have had in mind that drug, because it did not yet exist. In any case
the court can rule that this is forbidden – since the rationale of the legislature
was to forbid the use of drugs with similar eﬀects. This minimum
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Why do Pragmatics Matter in the Legal Framework? 61
change of the law is strictly pragmatic. It is not clear however, whether
it is the assertive meaning of the law, which changes here (Soames’ view).
This enrichment of meaning seems more similar to an implicature in the
Gricean sense. So the switch is located more at the level of implicated,
than asserted meaning.
In the ﬁrst dimension of originalism it is so commonplace that context
plays a major role in determining the assertive content of the law,
not only because we are applying the more objective approach considering
what a rational hearer would have understood knowing the relevant publicly
accessible context, but also because in legal cases a judge does not
have to be absolutely positive that the legislator asserted more than the
literal content of the enacted statute (as Asgeirsson convincingly argues).
It is suﬃcient for him to be signiﬁcantly more probable that there is some
assertive content diﬀerent than the literal one. (“On the Possibility of
Non-Literal Legislative Speech”, passim) The demand of obviousness of
asserting something diﬀerent than what one says is being replaced by a
weaker requirement – for a judge a high probability level of a pragmatically
altered assertive content is suﬃcient. What is more, the shared conversational
background required in legal contexts has to be quite rich. (ibid., p.
33) That is the reason for the limited number of non-literal assertions in
law, as the legislative and judiciary powers rarely share particularly rich
conversational backgrounds. Its’ richness poses constraints on the pragmatic
enrichment of a literal utterance. The judge may interpret only
within the frame given by the conversational context. (ibid., p. 28) The
richer the context, the broader is the possible pragmatic enrichment.
It has to be noted though, that Soames’ description does not diﬀerentiate
between constitutional and statutory interpretation. This distinction
is made by Marmor, who also points out that
Sometimes, however, the opposite is the case; an expression
that is not particularly vague or indeterminate, becomes pragmatically
or conversationally vague precisely because the particular
context of the conversation makes it doubtful that the
expression applies to its ordinary semantic extension. (“Varieties
of Vagueness in the Law”)
The context of the case, instead of helping the judge in forming a
more precise version of the legislative meaning makes the task even more
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62 Izabela Skoczeń
challenging and unclear. An example is given concerning the enactment
of contradictory statutory law with diﬀerent presuppositions by the same
legislature. It is possible however, that this is more a co-textual problem,
than a contextual one. These are pragmatic factors sensu largo, which are
dealt with by the continental courts with interpretative rules or canons of
construction like ‘lex posterior generali non derogat legi priori speciali’ or
‘lex posterior specialis derogat legi generali’.7
Conventional and co-textual
implicatures can be predicted at a legislative level. A typical example of a
conventional implicature is the sentence ‘Even X can A’, implicating that
everybody can A and X is the least likely to be able to A. A co-textual
implicature could be a legal deﬁnition in another statute, committing the
court to understand a phrase in a deﬁnite manner. The purely contextual
implicatures are often unpredictable, because the facts of the cases that
will be decided by the courts in the future are impossible to be foreseen
(just as in the example of the drug, which has not yet been invented).
Consequently the context of a particular case at stake can render even a
deﬁnite expression vague and there is no possibility for the legislator to
foresee this at the time of the statute’s enactment. This entails context
– both at the level of interpreting the legal provision and at the level of
applying it to a certain case, can not only narrow the considered range of
meaning, but also have just the opposite eﬀect. In some cases pragmatic
factors are the cause of the suﬃciency of a linguistic method (they enrich
literal meanings suﬃciently), while in others they create the need to resort
to a moral or political argumentation to solve the case.
4 Conclusion
In some cases pragmatic factors play a substantive role in the described
exchanges between courts and legislatures. While a court stays within
the pragmatic enrichment, as an eﬀect of his interpretative actions, it is
not ‘creative’ (or ‘activist’) and stays in compliance with the traditionally
valued principle of the divide of powers. If it is the case, then analyzing
this phenomena in the light of theories like Paul Grice’s or neo-Gricean
ones appears to be promising.
The image, looming out of the above considerations is quite complex.
7
An interesting diﬀerentiation between conventional, co-textual and contextual implicatures
is given by Poggi 2010.
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Why do Pragmatics Matter in the Legal Framework? 63
The clash between – the need of introducing subjective arguments in interpretational
considerations and the traditionally deﬁned divide of powers
principle has been the cause of a long and tedious debate between
originalists and anti-originalists in constitutional interpretation. It seems
however, in cases were pragmatics are decisive of the chosen meaning originalists
and their opponents become quite univocal. The problem arises
when pragmatic arguments are insuﬃcient and there is need to resort to
subjective moral or political argumentation, as then linguistic or pragmatic
arguments are solely fashioned so as to ﬁt the already chosen line of reasoning.
The pragmatic enrichment can be double, occurring in some cases
both in the ﬁrst and second originalist dimensions. What is more, pragmatic
factors of concrete cases can be decisive or insuﬃcient as far as the
second dimension is concerned. Decisive – when the context is suﬃcient
to determine what was the content of the legislator’s utterance. It can be
insuﬃcient when determining the content depends on moral or political
arguments. The strategic speech (to use Marmor terms) taking place between
the legislature and judicial powers is particularly interesting. If we
assume the objective understanding of intentions – so what a reasonable
hearer understands from the enactment in the relevant context, then it
is de facto the court, who will decide on them. The judge can therefore
communicate the legislator that he understands the law in a certain way.
If it is not conform to the legislator’s intentions, the legislature can amend
the law. So the court becomes a quite powerful hearer, being able to indirectly
inﬂuence the law’s content. I am not sure however, if this is at all
peculiar. In ordinary, everyday speech situations, it also happens that a
speaker fails to convey what he intended to convey. When observing unwanted
reactions of his hearers, the speaker can amend his utterances, so
as to be better understood next time. That is why suggesting the Gricean
cooperative principle does not apply here (as F. Poggi does) could be misguided,
even when accepting the textualists or formalist approach.8
It
is the content of the maxims that can be very speciﬁc here. The judge
directs his decision to the litigation, who receives a ‘double-processed’ or
‘two-dimensional’ utterance.
8
A. Marmor in a theory of statutory interpretation advances the view that the
textualists approach rejects the cooperative principle, by accepting only the content,
that the legislator promulgate and negating the content intended to be conveyed by a
legislator. See “Textualism in Context”, p. 16.
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References
Asgeirsson, Hrafn. “On the Possibility of Non-Literal Legislative Speech”.
In: forthcoming.
— “Textualism, Pragmatic Enrichment and Objective Communicative Content”.
In: forthcoming.
Bix, Brian H. (2003). “Can Theories of Meaning and Reference solve the
Problem of Legal Indeterminacy?” In: Ratio Juris 16.3, pp. 281–95.
Gizbert-Studnicki, Tomasz (2012). “Państwo prawa i prawo karne Księga
Jubileuszowa Profesora Andrzeja Zolla”. In: Wolters Kluwer Polska.
Chap. Oryginalism I Living Constitutionalism a Koncepcja Państwa
Prawnego.
Grice, Herbert Paul (1975). “Logic and Conversation”. In: Syntax and Semantics
3: Speech arts, pp. 41–58.
Horn, Laurence (2004). “The Handbook of Pragmatics”. In: ed. by Laurence
Horn and Gregory Ward. Blackwell Publishing. Chap. Implica-
ture.
Levinson, Stephen C. (2000). Presumptive Meaning: The Theory of General
Conversational Implicature. MIT Press.
Marmor, Andrei. “Meaning and Belief in Constitutional Interpretation”.
In: forthcoming.
— “Textualism in Context”. In: forthcoming.
— “Varieties of Vagueness in the Law”. In: forthcoming.
— (2011). Philosophy of Law. Princeton University Press.
Poggi, Francesca (2010). “Law nad Conversational Implicatures”. In: International
Journal of Semiotics and Law. DOI 10.1007/s11196-010-
9201-x.
Soames, Scott. “Two Dimensions of Originalism”. In: forthcoming.
Sperber, Dan and Deirdre Wilson (2004). “The Handbook of Pragmatics”.
In: ed. by Laurence Horn and Gregory Ward. Blackwell Publishing.
Chap. Relevance Theory.
Tiersma, Peter Meijes (2012). The Oxford handbook of language and law.
Oxford: Oxford Univ. Press.
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Law and Literature Workshop
65
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Martin Škop (chair)
Authors: Jakub Harašta, Markéta Klusoňová
The Law and Literature Workshop has been funded by the Masaryk University,
School of Law, research projects no. MUNI/B/0831/2012 Argumentation 2013
– Law and Literature.
The following papers were presented at the Law and Literature workshop
held by the ARGUMENTATION 2013 conference.
c⃝ 2013 Masarykova univerzita
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Batman and the Rise of the
Drones
Jakub Haraštaa
Abstract. This paper aims to leave the usual scope of the law
and literature and focuses on one of the greatest comicbook
superheroes—the Batman. Batman is often claimed to be the
greatest vigilante, but in this paper I dare to argue with this
general view on its role in society. Batman cannot be claimed
to be a vigilante, because he does not aim to alter the existing
state monopoly of violence. He acts as a catalyst enhancing
the law enforcement powers. He present the incorruptible rolemodel
to something we see in our world even today as the
technology advances further into our lives—crowd-sourcing of
the law enforcement through the collective eﬀort of some of the
law-abiding citizens.
Keywords. Batman, comicbook, criminal justice, drones, law
enforcement, rendition, technological development, violence.
1 Introduction
When it comes to capturing the essence of law or legal problems in literature,
people often choose classics. Merchant of Venice by Shakespeare
together with famous Crime and Punishment by Dostoyevskiy are landmarks
of law in literature. But what about the literature that fails to be
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Masarykova univerzita, Brno, Czech Republic; jakub.harasta@law.muni.cz ( )
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70 Jakub Harašta
generally understood as high and worthy? What about comicbooks? Is it
really the kind of literature not worth the attention of lawyers or does it
speak to us about the law and its general understanding? I believe that
when it comes to Batman, often claimed to be the greatest vigilante ever,
language might be diﬀerent, but the role of perception of law is no less
important.
In this article I would like to bring to light several issues accompanying
the fact that not only the high literature often copies the society and
vice versa. When the Dark Knight trilogy, as the cinematic depiction of
the new Batman narrative, turned into blockbusters in the past decade,
new stories of Batman and new understanding of Batman’s role in society
targeted probably the biggest audience so far. My questions related to
this approach challenge the basic premises on which the Batman stands.
Can he really be perceived as a vigilante or is he something rather diﬀerent?
Vigilantism is strongly depicted in American culture (which currently
presents the single most powerful culture in today’s globalised world), so
my question also stands, whether the Batman-like behavior in society can
in any way enhance its law enforcement activities. And does the technological
development enhance this kind of behavior?
2 Violence
Violence in a national state belongs to the government. Government as
such is granted the monopoly to legal violence in any country and as
such presents the single authority to ensure criminal punishment within
its given area. Without the monopoly, there is no state as such for the
monopoly presents one of the basic characteristics of a state. According to
this premise, vigilantism as a mean to achieve extra-judicial justice through
self-help should only occur in countries that are unable to exercise such
monopoly in the long term. Because if the government functions properly,
vigilantism is not needed, as the criminal punishment is provided by the
government within reasonable time through the means of law. Despite
this, vigilantism occurs in rather normally working countries as well, such
as the United States of America. According to some experts, this can be
attributed to the strong belief of citizens about their supposedly inalienable
right to safeguard their own interests. (Lenz 1988, pp. 118 and 125) This
is quite often depicted as a part of the American way of life, which is
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Batman and the Rise of the Drones 71
therefore inherently present in the culture. Comicbook superheroes exist
because they can ﬁght the crime,1
without being shackled and tied by the
bureaucracy, which captures the aforementioned inalienable right in its
very essence.
Criminal punishment through the system of criminal justice, as the
realisation of the governmental monopoly to violence, is perceived in law
and economics as balancing the three main considerations. First of them
is the net harm from the crime to the society, which is captured through
the varying punishments for various crimes. Second is the cost of sanction,
which prefers cheaper sanctions. Third one is the expense for law
enforcement. (Hine 1998, p. 1231) These have to be balanced in order
to create law enforcement policy that does not burden society with overenforcement.
Over-enforcement can supposedly become more costly than
the crime itself and aﬀect the well-being of society as such. Applying the
same law and economics ratio, we have to conclude that people behave in
what they believe to be their best interest. Therefore the criminal justice
system has to provide penalties for criminal behavior. Penalties have to
be imposed with suﬃcient regularity so that the legitimate activities are
favored over the criminal activities. However, this model cannot be put
in reality perfectly. Even in the countries with superb police forces, most
of the criminal activities remain unpunished. (Silke 2001, p. 1) By not
burdening the society with over-enforcement, most of the criminals shall
walk freely among us without the punishment. This may present problem
due to clashing interests in the non-criminal side of criminal behavior.
Closed communities are strongly related to the victim and therefore are
strongly inclined to feel necessity for punishment within the shortest possible
amount of time. Community feels this as more urging over the overall
criminal policy and a possible burden of the over-enforcement. It is in the
interest of society to set appropriate safeguards, so that the alleged criminal
can be punished without any reasonable doubts whether and how the
crime happened. But by that time it might be too late for the community,
even in case the alleged criminal is caught and prosecuted.
1
This paper focuses on rather ordinary, yet powerful criminals. It omits existence of
the typical comicbook villains with superpowers eﬀectivelly removing such individuals
from the boundaries of law.
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72 Jakub Harašta
3 Vigilantism
Abovementioned is what I understand as the root of vigilantism in countries
with standard governments. On the lowest level, individuals, families
and communities react to the crime with anger, demanding the swift justice.
On the other hand, the state presents another level of interest focusing
on the safeguard and the general picture where the justice has to be imposed
on suﬃcient amount of criminals in order to work eﬃciently. This is
rather understandable—a family or an individuals are directly aﬀected by
the crime and usually not repeatedly, therefore it is important to achieve
justice swiftly (because of the personalised eﬀect of crime) and every time
(because crime does not come in astonishing amount of cases). On the
other hand, the state focuses on the general message seeing the broader
picture. Every crime in statistics is depersonalised and the broader picture
only demands suﬃcient amount of criminals to be punished. And the
diﬀerent interests create tension even in countries with suﬃciently functioning
government, creating demand for vigilantes.
The classical vigilante was described by William E. Burrows as (1) a
member of an organised committee who is also (2) an established member
of the community (3) proceeding with deﬁnite goals. This character (4)
claims to act as a last resort because of a failure of the established law
enforcement systems and they (5) claim to work for the preservation of
the existing system. (Burrows 1976, pp. 13–15) Given these deﬁnitions,
I ﬁnally approach the important questions whether Batman is a vigilante
or not. And I conclude that Batman is not a vigilante.
4 Batman
Batman as such does not act as a member of an organised group, but also,
and more importantly, Batman does not claim to act as a last resort of
the failing system. He always delivers criminals to court, he refuses to
use ﬁre arms, he refuses to kill criminals and in the cinematic depiction
he urges Harvey Dent (Gotham’s public prosecutor) to become the ‘white
knight’. Batman does not aim to alter the existing monopoly for violence,
he aims to strengthen it and encourage its oﬃcials. Batman does not aim
to meddle into the issue of the criminal justice delivered by the state for
he does not want to impose punishment on criminals, he simply delivers
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Batman and the Rise of the Drones 73
alleged perpetrators to justice. So, who is Batman and what is his role
in the criminal justice system in the abovementioned triade of criminal
justice? Batman provides means to bypass the costs of law enforcement.
He artiﬁcially rises eﬃciency of the law enforcement without biasing the
balance and causing over-enforcement through the mean of overfunding of
the law enforcement agencies. Batman de facto lowers the threshold for
criminal justice when the procedure fails facing the powerful and rich criminals
that can corrupt the police forces. In this case, the threshold is being
lowered by the incorruptible vigilante-like superhero Batman. Batman
does not act as an executioner and his actions can be therefore compared
to the practice of rendition in the international relations. When a criminal
cannot be brought to trial through the formal process of extradition,
rendition ensures the ineﬀective or corrupted procedures are bypassed and
the threshold for imposing criminal justice is lowered. (Ip 2011, p. 215) In
Gotham, Batman’s hometown, some sort of criminals reached such high
places that despite the undisputed enormous net harm to society and possibly
bearable costs to impose sanctions, enforcement expenses to enforce
law on such criminals would be unbearable for the society, despite its general
law enforcement eﬃciency. When it comes to the nature of Batman,
there is no usurpation of the criminal punishment by any individual. This
also makes the paradox of breaking the law for the purpose of maintaining
it obsolete. One cannot interfere with the state monopoly to violence
while in the same breath claiming his or her actions to serve the purpose of
ensuring the continuity of such monopoly. As concluding from the abovementioned
I state that Batman is not a vigilante for he does not provide
any alternative for the existing criminal justice system and he does not
impose any criminal punishment at all.
5 From Comicbooks to Reality
Without being classiﬁed as a vigilante for his lack of will to alter the
existing criminal justice system, Batman, without any doubts, acts extralegally.
His restriction of freedom, warrantless surveillance and other practices
are not legal. Can such an extra-legal activity aiming to bring criminals
to justice, but not to punish them as such, be observed in the actual
world? If we focus on the general post-9/11 practice of the US, the practice
of rendition has been frequently replaced by the practice of extraordinary
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74 Jakub Harašta
rendition. (Ip 2011, p. 215–216) It does not aim to bring the alleged
terrorists to justice, but merely aims to punish them extra-legally. This
might be perceived as the vigilantism enacted by the state. In the history,
we can often see that extraordinary situations require extraordinary
measures that might break the national or international law. In this case
state (or rather, some of its law enforcement agencies) acts as a vigilante
when intentionally breaking the law in order to achieve justice (or what is
percieved as justice). Armed drones killing suspects and special forces ensuring
extraordinary rendition clearly approach the no-jurisdiction model.
When aiming to the criminal punishment, this clearly can be deemed as
extra-legal self-help. The Batman-like behavior therefore can be hardly
observed on the state level in today’s world.
Individuals, on the other hand, seem to be more similar to Batman
in their actions. Comicbook-like reality of lowering the law enforcement
threshold can be observed and is clearly present in our society. For example,
hacktivist groups break the law in order to collect evidence on the unlawful
behavior that would otherwise be unreachable. Although evidence
obtained in this way might be inadmissible at court, social and media pressure
might play its role. Or course, the virtual and actual worlds are vastly
diﬀerent, but even in the latter, as I believe, we will soon be able to witness
similar behavior. Price of the sophisticated remote-controlled aerial
vehicles drops constantly and turns available also for citizens.2
And even
without this special equipment, Batman-like behavior is possible. Today
everyone is able to record what is happening around through a cell-phone.
After the unfortunate bombing on the Boston marathon, a vast amount of
citizens supplied law enforcement agencies with raw footage or another information.
Everyone gathering information online or oﬄine who provides
it to law enforcement agencies does basically the same job as Batman—
individuals help to lower the threshold that would otherwise have to be
reached by the vast amount of money streaming into the law enforcement.
This vast amount of money would cause over-enforcement that would, once
again, harm the well-being of society.
2
For further reference see (Pagallo 2011).
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REFERENCES 75
6 Conclusions
This paper tries to present that not only the high literature could be
a source to observe the society. Comicbooks provide us with role models
and with notions on how the society might work or works. The key
aspect of Batman is his refusal to use violence—that can be eventually
understood as a refusal to alter the existing monopoly of violence which
undisputably belongs to the state. He acts as an element preventing the
over-enforcement when dealing with high-proﬁle criminal cases able to corrupt
the law enforcement agencies.
Batman-like behavior cannot be understood as an ultimate tool to bring
down some of the powerful criminals today’s society is facing. But he can
be understood as a role model for providing law enforcement agencies
with crowd-sourced information. We know this model since the beginning
of time. Law enforcement agencies cannot be everywhere and for that
reason they turn to informants or general citizens—to ﬁll the blanks that
otherwise would not be ﬁlled.
From the legal point of view, we have Batman at reach. Batman is
not a vigilante because he does not want to alter the existing criminal
justice system. He wishes to help it, which is a wish of the major part of
the society—more eﬀective law enforcement without the burden of overenforcement.
A vigilant society, not a society of vigilants. This phenomenon
cannot be easily claimed as good or bad—it most certainly has
its beneﬁts, but surely has its pitfalls as well. When searching for the one
and ﬁnal pitfall, we do not have to look too long—Batman is no ordinary
citizen for he truly is incorruptible.
References
Burrows, W. E. (1976). Vigilantism! New York: Harcourt Brace Jovanovich.
Hine, K. D. (1998). “Vigilantism Revisited: an Economic Analysis of the
Law of Extra-judicial Self-help or why can’t Dick Shoot Henry for Stealing
Jane’s Truck”. In: American University Law Review 47, pp. 1221–
1255.
Ip, J. (2011). “The Dark Knight’s War on Terrorism”. In: Ohio State Journal
of Criminal Law 9, pp. 209–229.
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76 Jakub Harašta
Lenz, T. (1988). “Republican Virtue and the American Vigilante”. In: Legal
Studies Forum 11, pp. 117–140.
Pagallo, Ugo (2011). “Guns, Ships and Chauﬀerus: The CivCivil Use of
UV Technology and its Impact on Legal Systems”. In: Journal of Law,
Information & Science 19, pp. 224–233.
Silke, A. (2001). “Dealing with Vigilantism: Issues and Lessons for the
Police”. In: The Police Journal 74, pp. 1221–1255.
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Why Havel’s Plays Should Be
Still Played?
Markéta Klusoňováa
Abstract. This paper deals with the importance of Havel’s
plays for the legal awareness in the Czech Republic. I will focus
on Havel’s texts dealing with law both in politological and
artistic form. The aim of this paper is to prove and explain
how Havel, as an important European and international ﬁgure,
inﬂuenced our legal discourse and to answer why his plays
should be played.
Keywords. Havel, Law and Literature, theatre, legal theory,
postmodernism.
1 Introduction
The purpose of establishing the legal-theoretical ﬁeld of Law and Literature
was, in my opinion, to move legal theory and practice closer to social
context. At the beginning of 20th
century, positive law, and after all the
legal theory as well, was being developed based on the opinions and views
of Kelsen and Weyr and as every escalated idea has to have its opposite, it
may be said in retrospective that Law and Literature could be the opposite
to normative theory.
This statement is, of course, slightly distorted, but it is suﬃcient as
a framework for this paper. Back then, real law was indeed very formalistic
as well as was the legal theory—the concept of normative theory is
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Masarykova univerzita, Brno, Czech Republic; 210387@mail.muni.cz ( )
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probably well known among today’s lawyers. But back then the Law and
Literature movement oﬀered an alternative, whose followers were pointing
out that the law is not an isolated system standing by itself, but it is a
part of a large system where every human being exists.
With this idea this legal-theoretical movement made a breakthrough.
Because of the movement’s multidisciplinary eﬀorts, the legal theory went
ahead of its time. After all, if the Critical Legal Studies which currently
embrace Law and Literature were developed in the 60s, it means that this
movement had a head start of half a century.
Nowadays, Law and Literature, as well as Critical Legal Studies themselves,
face a critique based on their being isolated from legal reality. But
in fact all these essentially more or less minority and revolutionary ideological
movements resulted from the positive inﬂuence on the legal reality
and legal theory emerging from the reality. Creating theories from theories
and running around in circles of academic debates is not (or it was not in
the past) its purpose.
The purpose of Law and Literature’s existence is to oﬀer an alternative
to classic legal method in legal argumentation, interpretation and legal
education. Its core idea is that for the right usage of law its knowledge is
not enough, but wider knowledge, especially in culture, is necessary.
The answer to the question of the purpose of this idea is at hand. Law
is a part of culture in its wider meaning and thus it inﬂuences people
together with other cultural elements, such as art. Thus, we could assume
that the law and culture act together and in a mutual interaction.
Law is a basic inspirational source for art which in turn forms legal
knowledge. If our aim is to manage law in a most persuasive way, it would
be almost despotic not to use art as a persuasive means, whether it is by
argumentation by belles-lettres, interpretation of the legal text as if it was
literature or by teaching law using theatre.
Taking into consideration the current state of law in Czech Republic
and the situation and the state of the Law and Literature movement, it
turns out that Václav Havel’s plays should be performed way more often
in this country. Explaining the reason for this statement will be the focus
of this contribution and may this contribution’s aim be to persuade you
of its necessity.
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Why Havel’s Plays Should Be Still Played? 79
2 Why Havel’s Plays
3.1 Author
Václav Havel was a playwright, essayist and later a politician. In his life he
wrote a large amount of journalistic and theatrical texts and essays that
regardless to the genre have been inﬂuencing not only the Czech society.
(Carey 1992, pp. 200–211)
For many people he still is a controversial persona with contradictory
artistic ideas and political legacy (Brooks 2005, pp. 491–522), but his
signiﬁcance in current Czech paradigm is unquestionable. (Pontuso 2004)
For many people he was
[...] a playwright who mocked the authoritarian system in his
absurd dramas but also stood up against it, refusing to play
the role assigned to him by the system, was imprisoned several
times and ﬁnally, in a momentous turn of history, led a peaceful,
‘velvet’, revolution that brought it down and became his
country’s ﬁrst democratic president. (Ditrych et al. 2013, pp.
407–417)
On the other hand he was also a ‘usual’ politician with certain political
opinion and not even a philosopher or idealistic dissident. He stood by
his concept of anti-political politics, on which his understanding of ‘real’
politics in the post-dissident times was based. (ibid., pp. 407–417)
Politics in Havel’s eyes were deﬁnitely cultural and moral. This opinion
was inﬂuenced by Masaryk’s concept of democratic state. Havel’s text
the Power of the Powerless refers to the world of a ritually reproduced
lie. Havel refused this post-totalitarian lie as well as the consumer value
system of the Eastern Europe because he simply refused each such failure
of modern humanity. (Petrusek 2012, pp. 569–576)
It is often said that Vaclav Havel is considered one of the foremost
playwrights of the 20th
century. This statement is quite widespread but
not scientiﬁcally veriﬁable for lawyers. Only literal scientists can examine
and decide that. So we have to focus only on the impact of his work on
law.
The question is whether it is possible to use Havel’s ideas (contained
in his plays) in law and if it is possible for such ideas to inﬂuence current
legal awareness in the Czech Republic.
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80 Markéta Klusoňová
I think that it is possible and that Václav Havel’s life, personality and
achievements may justify the use of such ideas in law.
Václav Havel is a controversial ﬁgure of our history and of course of our
political life. But he remains a big moral authority of our time, he emphasized
the most crucial topics of our society and his writing craftsmanship
is globally recognized.
I believe that these three characteristics need to be fulﬁlled when we
ask about the real impact of a work of art on legal world and I am sure
that Václav Havel and his absurd drama have all these qualities. So let us
now look at the content of Havel’s plays and try to ﬁnd and describe their
hypothetic legal impact.
3.2 The contents of Havel’s plays and its impact on
legal awareness
Havel deﬁned his dramatic goal as forcing the audience
[...] to stick his nose into his own misery, into my misery, into
our common misery, by way of reminding him that the time
has come to do something about it [...] Face to face with a
distillation of evil, man might well recognize what is good [...]
(Havel 1990)
Carey writes that there are three types of Havel’s drama: the early
absurdist comedies; the Vanek morality plays; and the psychological-prison
plays. I think this division is nearly perfectly suitable for our purposes so
we shall preserve it. (Carey 1992, pp. 200-211)
In his ﬁrst important play, ‘The Garden Party’, Havel focused on the
clichés, which inﬂuenced our lives by language. (Havel 1993) In ‘The Memorandum’
Havel deals with language again and an artiﬁcial language Ptydepe
is what moves the story towards (political) absurdity. (ibid.)
These two early absurdist comedies complement the legal awareness
with a critical view on the state and the law and in many ways they also
reﬂect Derrida’s concept of the law as a play. (Derrida 1978) Language is
perceived as a key aspect of perception of reality and the fact of reality
being abused by bureaucratic language, by phrases with no content or by
artiﬁcial language, has to have its consequences.
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Why Havel’s Plays Should Be Still Played? 81
‘The Garden Party’ may be interpreted as a critique on state bureaucracy,
which absurdly capitalizes itself and absorbs human beings to change
them beyond recognition. That is exactly what a postmodern state should
not be doing and that was the reason Havel pointed it out. What he described
in ‘The Power of the Powerless’ as empty phrases that serve only to
express one’s conformity with the regime, not to express the real content,
can be found in The Garden Party in inﬁnite modiﬁcations.
Besides, ‘The Memorandum’ may be seen as the next stage of the
situation described in ‘The Garden Party’. The language that deﬁnes and
manipulates people’s minds also guides their actions. Human beings are
becoming robots in the hands of the state, because the state is controlling
their actions by the imposed language. By meaningless words the state
also turnes the human thinking into a load of nonsense, which allows easier
control.
This situation characteristic for post-totalitarian states could be very
inspirational even for a postmodern democratic state in 21st
century, because
it describes extremities, which cannot be allowed.
The term The Vanek Plays refers to three one-act plays written in
the 1970s that are based on one character, Ferdinand Vanek: ‘Audience’,
‘Private View’ and ‘Protest’. The ﬁrst and the second are important for
us. (Carey 1992)
‘Audience’ (Havel 1992) may be seen as a Havel’s critique of paradoxes
of the resistance against the post-totalitarian regime. Vanek’s denial of
accepting the rules of the system is confronted with an assault on intellectuals
and their principles. The main aim of depicturing this main paradox
is to show how dangerous it is to live within a lie. But the question is
what the word ‘lie’ actually means. Can a principle work as a lie? Is it
really diﬀerent from ‘Living for nothing?’
The second Vanek play is called Private view. It’s main topic is again
‘living for nothing.’ It criticizes consumerism of modern society and furthermore
it depicts ‘the crisis of human identity’ (which is included in
all Havel’s plays and is fundamental for his point of view) in the most
accessible way of all Havel’s plays. (ibid.)
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82 Markéta Klusoňová
3.3 How Can a Theatre Play Aﬀect Legal Aware-
ness?
In the post-modern world the culture and the law are closely related. They
have a common fate based on the fact that the traditional state that formerly
held them both in its hands is now abandoning their strict authoritarian
interpretation and is beginning to respect the diversity of individual
truths. (Škop 2008)
Culture and law are both a part of socio-cultural system and also a part
of a symbolic capital as described by Bourdieu, (Bourdieu 1998) and both
serve the state as means of power to control the population, as described
by Foucault. (Foucault 2000) Furthermore, according to Derrida, both are
imprisoned in the same form—the language, meaning that both have at
least same form in which they apply their inﬂuence. Therefore, mutual
impact of law and art is inevitable. Furthemore, taking into consideration
Rorty’s idea that in law, anything that is convincing may be used for
argumentation, it is possible to see an appropriate source of impact on law
in art. (Škop 2008)
On the other hand in law as well as in art privatization eﬀorts are
getting stronger, giving the ﬂoor to those from whom the capital came
from—the population of the state. There are no longer great narratives
that could portray the relationship between law and art. It is up to everyone
to deal with art’s possible impact on law, especially on legal awareness.
The area where art inﬂuences law the most is legal awareness. That
includes knowledge of the objective law, as well as the attitude towards law
including the values. But where else to ﬁnd values in postmodern world
than in art?
Postmodern world gave up on scientiﬁcally rational and hence impersonal
truths. It is searching for a single truth, which contains multiple
individual truths and justices to cover the diversity of the society after
postmodern turn.
The law in a postmodern state contains in its core an ethical dimension,
but it cannot draw it from itself. Postmodern state cannot prioritize one
value over another and justify this action on its own system of values.
The state has to seek compromise of multiple diﬀerent truths leading to
the most just solution. The basis for this compromise must necessarily be
individual truths related to the problem. The source of these truths may be
art. For this source to be acceptable as a part of the only truth and justice
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Why Havel’s Plays Should Be Still Played? 83
that the postmodern law seeks, it needs to meet certain requirements.
As stated above, almost all Václav Havel’s works are in theory such
works of art, which aﬀect legal awareness and therefore law can make
use of them. Substantiation consisting of the author’s authority, artistic
quality of the piece and the content oriented onto values, all this could
be generalized and stated as general conditions for the works considered
important for law.
Every single one of these characteristics has other consequences that
may not be apparent on the ﬁrst sight.
The author’s authority is in contradiction to the classic postmodern
doctrine about the death of an author, but in this case we will have to
moderate the approach to postmodern theory, similarly to the case of the
legislator. Authority of the author of the artwork used in legal argumentation
determines the value of the piece same way as in case of the legislator.
It is caused by the fact that a large part of society is not and cannot
be familiar with these artworks. As the amount of existing works of art
is immense, it is impossible for everyone to know everything. From this
amount of works there are some pieces sticking out – artistic mastery of
their authors being so highly regarded that knowledge of these works is a
part of general cultural knowledge.
What is the subject matter of this generally assumed knowledge could
be hardly determined. Although there are authors, who are so important
that there are no doubts about their place in the general cultural knowledge.
These authors are e.g. Sofokles, Shakespeare, Dostojevski, Kafka or
Beckett. In my opinion, for the Czech Republic, Václav Havel is one of
those.
The author’s authority however has yet another dimension. In the
postmodern world controlled by the media and almost fully globalized
when it comes to information, the personality and self-presentation of the
author plays its role in the artwork’s evaluation. In the eyes of the public,
the author’s persona becomes an integral part of his authority. When it
comes to the author from the past, this dimension disappears, because it is
either questionable, fully unrecognizable or at least not generally known.
In case of a contemporary author the situation changes entirely. His
artwork is being perceived in context of his professional and personal life,
his artistic or non-artistic opinions. A Textbook example could be the case
of Milan Kundera, whose political past is impacting his artwork overview
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84 Markéta Klusoňová
greatly, at least in the Czech Republic. It raises the question whether the
artwork of such an author has any persuasiveness at all when it comes to
the values it communicates.
Václav Havel’s political career could have diminished the persuasiveness
of his ideas, but I think that its inﬂuence is not that signiﬁcant. After
all not even his political colleagues refrain from questioning his qualities
as a playwright.
The second condition, the artistic value of the artwork, is closely related
to the ﬁrst one and has to be accomplished cumulatively. Only
after meeting the ﬁrst condition we could get to assessment of the author’s
works. Each artwork then must be assessed according to its general
content familiarity and its widely regarded artistic quality.
Only while insisting on meeting both aforementioned conditions, there
is a higher probability of avoiding a situation where we take into consideration
an artwork that has an artistic quality that could be questionable
or only temporary, even though the artwork is currently generally well
known.
In case of Václav Havel’s plays we should consider especially ‘The Garden
Party’ and ‘Audience’.
The third condition is then the content of value of the work that has met
the ﬁrst two conditions. Only the work that tackles core questions of values
that are at the same time inevitably connected to law but irresolvable by
law,could practically inﬂuence the society’s legal awareness.
This content is clear in both the aforementioned Havel’s plays, as stated
above.
3 Conclusions
Each country has its own characteristic features of law based on its historical
experience and Czech Republic is not an exception. The critique of
law is a mirror of law itself so we necessarily need to know it to meet the
complex discourse. However, it is not only the purely legal critique of law
which constitutes legal environment.
I think that Václav Havel’s critique of state and society is important
enough to inﬂuence our legal system. His point of view inﬂuenced legal
consciousness during the period of Actually Existing Socialism as well as
later after the Velvet revolution. Even after the end of communism in the
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Why Havel’s Plays Should Be Still Played? 85
Czechoslovakia, Václav Havel remained a critic of the defects of our state,
society and law.
Besides that, Havel as an international ﬁgure inﬂuenced legal discourse
in all Central and Eastern European countries. He connected our experience
with the experience of foreign states of our area so he established
a really important connection between our law and their law. Of course,
his opinion cannot be considered as a legal one in the usual sense but his
ideas can be used in legal reasoning because of their moral qualities.
In his work Havel explains that conformity, uniformity, and discipline
were obligatory for each citizen of communist era. He says that
This system serves people only to the extent necessary to ensure
that people will serve it. (Havel 1990)
Analogically it means that law of this system served only to the extent
necessary to ensure that people will serve the system. Nowadays it is not
diﬀerent and we must be aware of that.
Havel also explains the principle of legality in the situation of our posttotalitarian
Czech discourse:
Of course, one need not be an advocate of violent revolution to
ask whether an appeal to legality makes any sense at all when
the laws-and particularly the general laws concerning human
rights-are no more than a facade, an aspect of the world of appearances,
a mere game behind which lies total manipulation.
The denial of such a game is naturally included in all Havel’s texts and
the reason is connected with his intention of living in truth. Havel shows
the importance of the principle of legality by the basic rhetoric question:
They can ratify anything because they will still go ahead and
do whatever they want anyway—this is an opinion we often
encounter. Is it not true that constantly to take them at their
word, to appeal to laws every child knows are binding only as
long as the government wishes, is in the end just a kind of
hypocrisy, a Švejkian obstructionism and, ﬁnally, just another
way of playing the game, another form of self-delusion? In
other words, is the legalistic approach at all compatible with
the principle of living within the truth? (ibid.)
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86 Markéta Klusoňová
And he also answers that a persistent and never-ending appeal to the
laws does not mean at all those who do so have succumbed to the illusion
that in our system the law is anything other than what it is. Fortunately,
any system cannot exist without the law, because it is hopelessly tied down
by the necessity of pretending the laws are observed. Havel concludes that
demanding that the laws be upheld is thus an act of living within the truth
because such appeals make the purely ritualistic nature of the law clear
to society. People who insist on the principle of legality draw attention to
real material substance of law.
In his plays Havel transformed his ideas and beliefs into artistic forms.
He expressed his ideas in essays and later on even during his political
career His critique of the law, state and the society is so accurate and
timeless that it oﬀers a necessary critical point of view even today. In
the postmodern world, the subject of Havel’s writhing and the world we
still live in, the law is necessarily related to the culture. According to this
fact we can assume the possibility of the legal knowledge being aﬀected by
artwork without any doubt. Some artists could signiﬁcantly aﬀect legal
knowledge and Havel is an excellent candidate for this role. This is why
his plays should be still played.
References
Bourdieu, P. (1998). Teorie jednání. Karolinum.
Brooks, D. C. (2005). “The Art of the Political: Havel’s Dramatic Literature
as Political Theory”. In: East European Quarterly 39, pp. 491–
522.
Carey, P. (1992). “Living Lies: Václav Havel’s Drama”. In: Cross Currents
42, pp. 200–211.
Derrida, J. (1978). Writing and Diﬀerence. University of Chicago Press.
Ditrych, O. et al. (2013). “Understanding Havel?” In: Communist and
Post-Communist Studies 46, pp. 407–417.
Foucault, M. (2000). Dohlížet a trestat: Kniha o zrodu vězení. Dauphin.
Havel, Václav (1990). Disturbing the Peace. New York: Alfred A. Knopf.
— (1992). Selected Plays. Faber & Faber.
— (1993). The Garden Party: And Other Plays. Grove Press.
Petrusek, M. (2012). “Václav Havel (1936–2011): Remarks on Havel’s ‘Lay
Sociology’”. In: Czech Sociological Review 48, pp. 569–576.
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REFERENCES 87
Pontuso, J. P. (2004). Václav Havel: Civic Responsibility in the Postmodern
Age. Rowman and Littleﬁeld.
Škop, Martin (2008). Právo v postmoderní situaci. Masarykova univerzita.
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Editorial Board MU
prof. PhDr. Ladislav Rabušic, CSc., Mgr. Iva Zlatušková,
prof. RNDr. Zuzana Došlá, DSc.,Ing. Radmila Droběnová, Ph.D.,
Mgr. Michaela Hanousková, doc. PhDr. Jana Chamonikolasová, Ph.D.,
doc. JUDr. Josef Kotásek, Ph.D., Mgr. et Mgr. Oldřich Krpec, Ph.D.,
prof. PhDr. Petr Macek, CSc., PhDr. Alena Mizerová
doc. Ing. Petr Pirožek, Ph.D., doc. RNDr. Lubomír Popelínský, Ph.D.,
Mgr. David Povolný, Mgr. Kateřina Sedláčková, Ph.D.,
prof. MUDr. Anna Vašků, CSc., prof. PhDr. Marie Vítková, CSc.,
Mgr. Martin Zvonař, Ph.D.
ARGUMENTATION 2013
International Conference on Alternative
Methods of Argumentation in Law
Jaromír Šavelka
Michał Araszkiewicz
Matěj Myška
Markéta Klusoňová
Martin Škop (eds.)
Published by Masaryk University, 2013
Faculty of Law Publications No. 451 (number of theoretical)
Editorial Board: J. Kotásek (chair), J. Bejček, V. Kratochvíl,
N. Rozehnalová, P. Mrkývka, J. Hurdík, R. Polčák, J. Šabata
Printed by: Tribun EU, s.r.o., Cejl 892/32, 602 00 Brno
1st edition, 2013
ISBN 978-80-210-6410-2