Appunti di Philosophy of law

Introduction

Notes taken by Marco Bellandi Giuffrida

The definition of philosophy

What is philosophy of law? It is not similar to the theory of law. The real question is this one: is philosophy of law part of philosophy? Yes, it is. Does the history of law have something to do with philosophy of law? Philosophy is the will of questioning about what we are.

«Philosophy has been essentially seen as logos, in the word’s great sense, namely not as a mere “discourse”, semantic (exclamation, prayer, order, etc.) or apophantic (statement, assertion, announcement, revelation, observation, discovery, testimony), but as “argumentation”. By “argumentation” I intend a discourse which is not limited to saying how things stand, but which tries to justify, to motivate, to demonstrate what it asserts, to bring reasons, to “account” for itself» Enrico Berti

Enrico Berti is one of the most important modern Aristotelian philosophers. Logos is not just a mere discourse, but an argumentation. Argumentation, according to Berti, is something not limited to saying how things stand, but it's something we try to justify. When we express an argumentation, we must offer good arguments: we have the duty to justify our opinion. This is what philosophy is. The typical form of argumentation is dialectical confutation, where we have two different kinds of statements and we show that the other position is not a good one. To show that something is not true means we have to bring reason, and when we are able to make a confutation of the position of the speaker against us, then we have truth. Socrates used to ask reasons and had dialogues.

The dialogue

Dialectical confutation is to state the truth of a statement through the verification of the impossibility of the statement opposite to the first one, proving that the first one is true. Philosophy is dialogue: is it possible to have confutation when I speak with someone? What is dialogue?

«Dialogue is defined as a goal-directed type of conversational exchange in which two parties reason together, taking turns to ask questions, give replies, and put forward arguments to each other» Walton Douglas.

The topical way of making argumentation is dialogue. There must be an opposition between statements. Argumentation takes place without any kind of doubt within the frame of a dialogue. Dialogue in a strong sense is not a simple conversation, but a discussion, a comparison between opposite theses, aiming to determine which of them is true and which of them is false.

If we are in a frame of argumentation, according to Berti, we do have dialogue in a strong sense: what is really a dialogue? According to Berti, dialogue is not a conversation, but a discussion. A comparison between opposite theses, aiming to determine which of them is true and which of them is false. This means one first important thing: to have a dialogue is a choice. If I really want to have a dialogue, I choose for it. And it is not easy! There are also fictitious dialogues, e.g., when you discuss with yourself.

From this point of view, dialogue is not a mere state of affairs: dialogue is the unavoidable condition of dialectically arguing. We may not have philosophy without dialogue. From this point of view, if you don't find someone who says you're wrong, you don't have a dialogue.

Dialectic and truth

What is true and what is false is something independent by the winner of a struggle. If we believe that dialectic is something like this, it would be impossible to know what is true and what is false. Aristotle thought that before both positions in a struggle there is the truth. However, according to Hegel, we do have thesis, antithesis, and synthesis, and only after that we have truth. Dialectical confrontation is mainly a confrontation: we are going to see that when we are in the real law dispute, we will also need to use dialectic.

This kind of confrontation is dialogue.

The elenctic demonstration of the undeniability of the dialogue

Obviously, we may have dialogue only if we do have truth. From this point of view, in the real world we may also imagine a dialogue with ourselves (fictitious dialogue). According to Berti, from the philosophical point of view, dialogue is an unavoidable condition of philosophy. There is no philosophy without dialogue, and it is like they are synonymous. Dialogue is a transcendental structure of philosophical conversation. There is a link between fact and dialogue.

What does it mean that a dialogue is indisponibile trascendentale? Dialogue is really unavoidable not because Aristotle said it, but because you can't simply deny it! And why can't you dialogue? Because if you want to deny a dialogue, you'll have to make a dialogue! A dialogue is something you have to do when you want to show the reason for something!!! The only way to avoid dialogue is to shut up, and if you choose to shut up, you are outside human relationships.

That is a typical way of «elenctic demonstration» (from the Greek word έλεγχος): a demonstration of something you cannot deny because you would use it if you want to deny it. If we are not able to deny a concept, then that concept is undeniable. We may only accept this condition, and this is why we translate the word "unavoidable" with the Italian term indisponibile (just like "diritti indisponibili”, which we can't give away): this condition doesn't depend on us just like diritti indisponibili don’t depend on us!

«When somebody says that dialogue could be fictitious too, it hints at the possibility that someone holds talks with himself, that is to say, someone who represents to himself the negation of his own position trying to confute it. From this point of view, dialogue, for philosophers, is not a mere state of affairs, or only an ethically advisable behavior, but a sign of willingness to listen, of respect for others, of self-criticism. Dialogue is the unavoidable condition of dialectically arguing, and so of philosophically thinking. I consider dialogue not simply a fact, but a transcendental structure of philosophical argumentation, given its non-apodictic, namely monological, nature, which is dialectical, therefore dialogical» Enrico Berti.

According to Aristotle, in the same way, we cannot deny philosophy without philosophizing! Examination is what makes philosophy such: «anche la volontà di non filosofare è una posizione filosofica». You may not deny philosophy! I may think philosophy doesn't exist, but I would philosophize at the same time.

«If we ought to philosophize, we ought to philosophize, and if we ought not to philosophize, we ought to philosophize; in either case, therefore, we ought to philosophize. If philosophy exists, we ought certainly to philosophize, because philosophy exists; and if it does not exist, even so we ought to examine why it does not exist, and in examining this we shall be philosophizing, because examination is what makes philosophy» Aristotle.

According to some philosophers, at the beginning, man was alone. Hobbes said that the problem rises up when we as men meet others and have to decide whether a thing is ours or yours. According to Rousseau, when man is alone, he is happy. Those are not Aristotelian views! In Aristotle and Kant, we find that the law has to maintain the situation of goodness inside the ζῷον πολιτικόν. According to Hobbes, the function of the law is to avoid struggle (ne cives ad arma ruant).

The two kinds of dialogue

• Dialogue in a strong sense: A dialogue in which we discuss in the search of truth; it may be real or also fictitious when we discuss with ourselves.
• Dialogue in a weak sense: A dialogue in which we discuss but we are not in the search of truth.

Imagine a dialogue between a lawyer and his client: is it dialogue or conversation? According to Puppo, it is a dialogue: if we have a look at the definition (Douglas Walton's one), the dialogue between lawyers and clients is a dialogue because the lawyer has to demonstrate that what he says is true, not only as a matter of fact but MAINLY from a legal point of view (as a lawyer, I have to be trusted by my client). You may not say to your client that something is true because you said that, but explain to him why your argument will be as strong to win the controversy. The difference between this dialogue and a classical dialogue is that your client has no opinion! There is not a dialectical confrontation, but it is a dialogue too because when I discuss with my client, I am searching for the truth.

So we may have a real dialogue in a strong sense even if we don't have two positions. Our client often arrives from us after searching on the Net for information and so has confused ideas about law! He will not simply agree with us. There is a problem of faithfulness, and so it is a dialogue! Ethos is really important in the legal field! From this point of view, it is possible to say we are in a dialogue when we have two or more people in reciprocal relation, discussing a precise topic! Or maybe just one man in fictitious dialogue. The discussion is done because we want to understand what is true and what is false. Obviously, we may also share our opinions.

The trial

Dialogue can assume a different kind of shapes: when we discuss, I want to say that what I think is true: it is controversy (It is not a sophistic argumentation which is far from the searching of truth, starting from the fact that truth doesn't exist.) Imagine a third man who has the duty to state the truth: that man is a judge, and we have a trial. Trial is a particular form of dialogue in which we have different theses and positions but even a third man! If you are in a trial, you cannot say whatever you want (there is a procedural code). It is a context made by an institution: at the very end of the trial, you are obliged to accept the decision of the judge, which makes a performative decision you have to follow, even if you don't agree with it. Obviously, in a trial, it is possible to discuss a precise rule, and that is what we do in front of a Constitutional Court. A trial is a peculiar form of dialogue.

If the judge is not impartial, then he is part of the trial: if we accept the fair trial, you can't accept inquisition. We do have dialogue when we have two or more positions on a common topic, and we have two people speaking together about this topic, searching for truth. So in a dialogue, we have:

• Different identities and relationships (the difference is among opinions and not people);
• Relationship between subjects discussing and the object discussed.

We have a relationship among different subjects and relationships between the subject and the object in the discussion. What we do have in dialogue is a very dynamic struggle with opinions.

Rhetorics and dialectic

The first thing we are going to discuss is the difference between philosophical discussion and proper dialogue we do find in law. A philosophical argumentation needs dialectic. In dialectic, we use mainly logical tools (usually what we discuss is about matter of principle is quite easy to find position and contradiction to this position from a logical point of view). When we move from philosophy to other kinds of experiences, we do need something more than dialectic, and it is rhetoric.

At the very beginning of the second book of Aristotle, Rhetoric is divided:

• Epideictic contest (pronouncing eulogies, having an audience that agrees with you);
• Deliberative contest (discussion about what you are doing, persuading other people who are listening to you);
• Juridical contest (discussion about what has been done, persuading other people who are listening to you).

In both deliberative and juridical contests, you have to gain the consensus of the audience, using not only logical tools but also being able to make a persuasion on πάθος, emotion, and feelings by using also your ethical structure. The persuasion uses emotion!

«But since rhetoric exists to affect the giving of decisions -- the hearers decide between one political speaker and another, and a legal verdict is a decision -- the orator must not only try to make the argument of his speech demonstrative and worthy of belief; he must also make his own character look right and put his hearers, who are to decide, into the right frame of mind» ARISTOTLE, Rhetorics.

For Aristotle and all classical rhetoricians, it is very clear that it is impossible to divide λόγος from πάθος and ήθος. Nowadays, some think that we are able to use emotions you may have the persuasion of the audience without logic and truth. For Aristotle and all classical rhetoricians, it is impossible to have persuasion without truth. For sophists in legal and political debate, you don't have truth, and persuasion is only to «movere animos», but it is impossible to admit the existence of truth. As we are going to see, sophists' is not a good position: between Aristotle and sophist, we should choose Aristotle. Dialectic is not sufficient to make persuasion in a trial.

It is not possible to deny truth

So, now we may ask: is it possible to deny truth and say that truth does not exist? If we say truth does not exist, this kind of statement is impossible: by saying «truth does not exist» I am obliged to admit the existence of truth.

The first thing is that if you claim that truth doesn't exist, you think in a contradictory way: but then this kind of position is the very basic assumption of sophist. But the kind of philosophical position according to which truth does not exist is not provable! You are obliged to admit something is true, by saying truth does not exist. It's something very similar to the denying of dialogue: in fact, it is another example of elenctic demonstration: we cannot deny the existence of truth. Every time we speak, we refer to truth: usually when we speak, we cut off the locution «it is true that» but it remains implicit.

What is an argument?

When we are in the realm of an argumentation, we persuade someone about our opinion. To make argumentation means to use argument. But what is an argument? An argument is something we use to motivate our position; according to Leo Groarke and Christopher Tindale, «argument is a set of reasons offered in support of a claim»: according to them, reasons may be presented orally, in a written text, or by means of photographs, symbols, and other nonverbal means. Groarke is the main theorist of visual argumentation, which is a new field in rhetoric according to which it is possible to prove the evidence of our reasons using nonverbal meanings (elocutio and actio according to Quintilian).

When we make an argumentation, we need something in support of our claim. The claim for which the reasons are given in support is called the argument's conclusion. The reasons are called its premises. Every time we are in argumentative contests, we may have different conclusions and so we may also have different premises. Obviously, the problem is finding out good premises. Imagine a lawyer: he cannot choose his own conclusion, which is decided by his client (if I defend my client against the prosecutor, I have to say he is not guilty or not as guilty as the prosecutor thinks: I don't choose my conclusion, but I have to find good arguments). The lawyer has the duty to find out good arguments.

When is an argument good? An argument is good when it is able to make a persuasion! To be the truth of an argument means that this kind of argument is able to persuade people (the hearers or the judge).

If I agree with you about premises, the conclusion is something that I cannot deny. An orator has to find out good arguments. And to be good of an argument means that the argument must be true; something is worth believing true: it is impossible to believe in something if I think it is false. No one would say I agree with you because I think you are saying something false. Everyone who is in an argumentative contest claims that what he is going to say is true: in order to make a persuasion, you have to say something that is believed to be true: we see how sometimes it is very difficult to recognize false persuasion.

The trial is a dialogue between two opponents in front of a judge; it means that what is true or false is not before the trial but just at the end of the trial. To be in a trial is to make evidence for my position. The work of the lawyer is not to decide if his client is guilty or not, but simply to make a good defense of the client’s position. A process is about deciding if the prosecutor is right or wrong; the prosecutor has the duty to demonstrate that the imputate is guilty; the lawyer has only to demonstrate the prosecutor's position is false.

The problem of (legal) argumentation is not to say something but to say something is true. So, a conclusion is a good one when we accept it and when we do have good arguments to accept it; to have good arguments is to have arguments we think are true. But obviously, when we are in a realm of argumentation, we also have to think about logic. In order to understand how logic works in argumentation, first of all, we have to understand that a statement may be seen as true or false; the reason is valid or invalid and not false or true! A reasoning could be valid from a logical point of view, but conclusions can be false.

Let’s have some examples:

P1 (major premise): if today is Thurs...