JOSE DE SOUSA E BRITO

Universidade Nova de Lisboa

josesousabrito@yahoo.com

Does Legal Semiotics Cannibalize Jurisprudence?

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Does Legal Semiotics Cannibalize Jurisprudence?

Some months ago I was talking with a student of my Faculty who is working on a

doctor thesis in Harvard under Duncan Kennedy. He had written a project draft on

skepticism in law and morals. I observed that he made no reference to the contemporary

discussion in analytical philosophy about skepticism in ethics as in the books of Gilbert

Harman and Judith Harvis Thomson on Moral Relativism and Moral Objectivity1 or

Thomas Nagel on The Last Word2 nor to the correspondent discussion in analytical legal

theory about Dworkin’s article “Objectivity and Truth: You You’d Better Believe It”3 or

Nikos Stavropoulos, Objectivity in Law4. He answered me that analytical philosophy is

not studied in the circle of Duncan Kennedy. His professor would say: “we cannibalize

them”. After that I began fearing for my skin and reading Duncan Kennedy. I found that

he expects legal semioticians to cannibalize ideas and history all around. In his own

words: “Anybody can use the theoretical literature [of legal semiotics and of general

semiotics, is to be understood from the context], and somewhat to the amazement of the

old timers [like himself], quite a few people seem to want to use it. They are constantly

reinterpreting the ideas and the history and cannibalizing them and incorporating them

into all kinds of left projects”5. To my delusion he does not try to cannibalize analytical

philosophy, which he largely ignores. But he reiterates attempts to cannibalize almost

1 Oxford, Blackwell, 19962 Oxford University Press, 19973 Philosophy &Public Affairs, 25 (1996), 87. This article prompted a discussion in the internet with Simom Backburn and others: http://www.brown.edu/Departments/Philosophy/bears/symp-dworkin.htm. See Ronald Dworkin, Justice in Robes, Cambridge, Massachusetts, 2006, chapter one, for his last word until now. 4 Oxford, Clarendon, 1996.5 Gerard J. Clark, “A Conversation with Duncan Kennedy”, The Advocate. The Suffolk University Law School Journal, 24-2 (1994), 58.

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everything in jurisprudence, including analytical jurisprudence. That is why I decided to

take the challenge and choose the title of this paper. Does he succeed?

What does Duncan Kennedy mean by “to cannibalize”? Pretty much the same as

Balkin by “to rhetorize” and Derrida by “to deconstruct”. Balkin says that the work of

the legal semiotician is to rhetorize legal discourse. “The purpose of semiotic study is to

understand the system of signs which creates meaning within a culture. It is to

understand the underlying structures that make meaning possible. The legal semiotician

seeks to identify what might be called the "grammar" of legal discourse—the acceptable

moves available in the language game of legal discourse. These may occur at the level

of permissible argument forms, modes of factual characterization, categories of social

perception, or in many other ways. The semiotician traces the way that the system

produces meaning, and if she has fully assimilated the post- structuralist critique, she

tries to see the gaps or uncertainties within the structure, the many different levels at

which rhetorical tropes can occur, and the many possible ways of redescribing them.

Yet the fact that legal discourse is rhetorizable says nothing about its lack of

authenticity. To the contrary, I would insist that the only type of discourse that is truly

authentic is that which is permissible within our existing language games, and is thus

always rhetorizable.”6 As to Derrida’s deconstruction, Duncan Kennedy invokes him

when he summarizes the particular type of critical theory of law that he theorizes in his

book A Critique of Adjudication7 and whose semiotics he expounds in an article “A

Semiotics of Critique”. I quote the whole text:

“There are four steps to follow as one gets ready to do some critical theory within

law—critical theory, that is, of the particular type semioticized above.

6 “The Promise of Legal Semiotics”, U. Texas L. Rev., 69 (1991), 1831, 1845.7 A Critique of Adjudication (fin de siècle), Cambridge, Massachusetts, Harvard University Press, 1997.

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First: Identify a distinction that drives you crazy when it is trotted out to justify

things you can’t stand, and that you feel people do not really believe in except when

they need it to justify those things (to take an example at random, the distinction

between adjudication and legislation).

Second: Find in each half of the distinction the things, traits, aspects, qualities,

characteristics, or whatever that were supposed to be located in the other half, and vice

versa. This is the move classically called chiasmus, and practiced most notably and

repetitively by Marx and then by Derrida, theorized in an irrationalist semiotic manner

in Of Grammatology.

Third: Put the question of whether the distinction you have just destabilized

corresponds to a real division in reality on hold, suspend it, or put it in parentheses or in

brackets (Husserl calls this the epoche)—turn your eyes away from it, and instead try to

figure out why the people who use the distinction work so hard to maintain belief in it in

the face of their own doubts, which you can intuit by imagining that they are just as

capable of destabilizing it as you are.

Fourth: Trace the consequences of the distinction by hooking it up to one or many

of the organicist, antinomian, paranoid structuralist, and semiotic moves discussed

above. My own project, subject always to critical unravelling per supra, has been to ask

about the distributive consequences of liberal distinctions, that is, to ask how belief in

them contributes to inequality, domination, alienation, and unhappiness, in different

measures for different people, for some much more than for others.”8

I think that Duncan Kennedy incorporates the rhetoric and topic tradition of

semiotics, as the use of the rhetoric scheme of chiasmus shows, but the phrase “to

rhetorize” would not cover the whole of semiotic schools that he uses alternatively or

conjunctively in its “left-modernist/postmodernist” critical enterprise. In the article he

8 “A Semiotcs of Critique”, Cardozo L. Rev. 22(2001), 1147, 1188.

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distinguishes organicism (Hegel, Ruskin, Parsons), antinomianism (Kierkegaard,

Nietzsche, Sartre), structuralism (Marx, Freud, Foucault), and semiotics (Saussure,

Levy-Strauss, Derrida), and within each a rationalist and an irrationalist variant. He

considers all these variants “subject always to critical unravelling”, so that there is no

point in choosing one of those or in reconstructing a better one. For him “the project of

reconstruction (as opposed to any particular proposal) looks, from a left/mpm point of

view, like the reification or fetishism of theory, in a mode parallel to the fetishism of

God, the market class, law, and rights. Left/mpm, by contrast, is caught up for better or

worse in the “viral” progress of critique, and in so much as there is a lesson from the

progress of the virus it would seem to be to anticipate loss of faith in theory in general

and general theory in particular.”9

I guess that Duncan Kennedy prefers in informal contexts to speak of

“cannibalizing” instead of “deconstructing” to suggest that he is within critical theory

“self-taught”10, so he does philosophical critique in a non-civilized manner, not as

someone with a formal academic training in the field would be expected to do. Perhaps

he also assumes the frequent fallacy of his critique when it pretends to attack ideas by

attacking people (because of the class they belong to, the interests they consciously or

unconsciously represent, etc.).

Does Duncan Kennedy successfully cannibalize jurisprudence? By jurisprudence I

mean here two different things: adjudication and legal doctrine. Adjudication

determines the rule of the case and applies it to the case. Legal doctrine determines what

the rule of the case is according to the best legal opinion and determines the rules and

principles that she finds in the sources or constructs from them and on which base the

rule of any case should be determined. Being so different they have in common that

9 Ibidem, 221.10 A Semiotics of Critique, 1148.

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they are both normative, that is, they direct conduct, however from different positions:

from a position of authority in adjudication and from a position of counselling in

doctrine. They have also in common the same logic: it is the same legal argument that

derives the norm of the case from other norms and principles in adjudication and

doctrine. Duncan Kennedy attempts to cannibalize both by demonstrating the

inexistence of rightness in legal argumentation. If there is no right legal argument, there

is no right answer in adjudication, adjudication is not a rational enterprise and legal

doctrine can not be said to be a science. The fate of adjudication and doctrine hang

together in success or failure of his attempt and that is why I take them together in the

discussion.

There is an argument against the thesis that there is no right legal argument that

runs as follows: you say that there is no right legal argument; to demonstrate your thesis

you must use a right legal argument; thereby you defeat your thesis.

You cannot avoid self defeat by saying that you do not need a right legal

argument, because you may have a right argument of another kind, an epistemological

argument for instance, and that is enough. For the purpose of our discussion however all

arguments that lead to a legal conclusion are legal. Since we are discussing if there is a

right answer in adjudication only the arguments that lead to the conclusion that there is

a right answer in adjudication or to the conclusion that there is no one are in order.

Similarly, to know whether legal doctrine is a science or not, whether she arrives

rationally to her conclusions or not, only the arguments that lead to one of those

alternatives are in order. Now all these arguments and only these are in order in a

discussion about the existence of rightness in jurisprudence and are properly called

legal. If they are also epistemological is irrelevant.

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What if you say with Duncan Kennedy that you do not believe in rightness of any

kind? For you there is no right legal argument because there is no right argument at all.

But then you can not demonstrate your thesis. Duncan Kennedy goes so far as to say: “I

don’t think I can demonstrate that reconstruction is impossible”11. However, if he says

so because he does not believe in the rightness of any demonstration, how can he

believe in deconstruction? The answer is: he does not. He says also: “we don’t believe

we can demonstrate the correctness of our choices”12. It goes further. If you do not

believe in rightness of any kind you can not believe that it is right that there is no right

legal argument and that means that you can not believe that there is no right legal

argument. There is no need of an argument to defeat you because you started self

defeated.

Is there an escape route by saying that believing that there is no right legal

argument is one thing; another is believing that such a thesis is right, has the quality of

rightness? If so you could deny that there is such a quality in general and that such a

quality applies to any legal argument in particular and still accept many legal

arguments. But if you accept one sole legal argument you can not hold that there is no

right legal argument. Dworkin and Blackburn – and others – have shown that sentences

like “it is objectively true that slavery is bad” or “what is right to hold is that slavery is

bad” have only an “internal meaning”, repeat emphatically that slavery is bad. They do

not stake out a second order or metaethical position. In the same way the sentence “the

right thesis is that there is no right legal argument” stays at the same level as “there is no

right legal argument”, does not go beyond or above, says the same thing in a repetitive

fashion.

11 “A Critique of Rights …”, 221.12 Ibidem, 222.

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I think that Duncan Kennedy actually believes in a lot of legal arguments and

therefore he can not hold that there is no right legal argument. His “commitment” to

loss of faith and negation of rightness makes him overstate his own position and brings

him closer to classical skepticism and to nihilism than he is prepared to admit: “That we

don’t believe we can demonstrate the correctness of our choices doesn’t make us

nihilists, at least not in our own eyes. We misunderstand internal critique if we imagine

that it might lead to a situation in which we had lost faith in “everything,” so that we

just wouldn’t know what to believe in or do. Critique changes our attitude toward a

particular theory (whichever we successfully critique) that generated a particular

sentiment of rightness. It leave us, in the way of tools for working out our commitments

and our concrete plans for the future, whatever we had before that theory and its

critique. It seems odd to me to suppose that we could ever, conceivably, be without

resources of this kind, even if each of us was a veritable Hercules of critical

destruction.”13 If so he can avoid at last self defeat. If we want to respect his last stand

and continue to discuss his theses, we have to engage in a charitable reconstruction of

both the theses and the arguments for them, beware of Mill’s caveat: "a doctrine is not

judged at all until it is judged in its best form"14.

What is the best form of the critique of the theory that there is only one right

answer in adjudication? In my opinion it is the form the theory takes in Herbert Hart 15.

He says that in any legal order will always be certain legal unregulated cases, gaps in

the law. To reach a decision in these cases the law provides some criteria, such as

analogy and general legal principles. From the application of such criteria it will

eventually result that one certain rule should be applied to the case, being then the only

13 Ibidem, 222.14 "Sedgwick’s Discourse" (1835), Collected Works, X, p.52.15 See “Postscript”to H. L. A. Hart, The Concept of Law, 2d. ed., Oxford, Clarendon, 1994, 272-273 and H. L.A. Hart, “El nuevo desafio al positivismo juridico”, Sistema 36, Mayo de 1980, 8-11.

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right answer to the case. In some of the gaps however it will result a space of

indeterminacy where more than one ruling of the case is compatible with the criteria. In

such a hypothesis the judge still has the duty to decide the case, and therefore he must

exercise his discretion and make new law within the limits of the discretionary power

that the law gives him for that. These limits are so described by Hart: “he must not do

this arbitrarily: that is he must always have some general reasons justifying his decision

and he must act as a conscientious legislator would by deciding according to his own

beliefs and values. But if he satisfies these conditions he is entitled to follow standards

or reasons for decision which are not dictated by the law and may differ from those

followed by other judges faced with similar cases.”16 Against Hart can be said that it is

true that different answers to the same question by different judges or by the same judge

in different cases may turn out to be legally valid as long as they cannot be revised,

since they may become res judicatae. But as long as any such answer can be revised by

another judge it may be sustained or reversed in consequence of being right or wrong

and not in consequence of being within or outside the discretionary power of the judge a

quo. Even if the answer became binding as a precedent for future cases it may be as

such overruled later in consequence of being considered wrong. So it seems more

natural to say that the judges do not have discretionary power to decide either way, but

have the duty to give the one right answer. In the cases where the fulfilment of that duty

can not be controlled, this is due to the principles of res judicata or of stare decisis and

not to a discretionary power they have. If so the judge must not decide according to his

own beliefs and values, but according to beliefs and values that best fit to system as a

whole, as Dworkin would say. But this does not imply that there is no place for the

traditional distinction between interpretation and integration of the gaps of the law, that

Hart maintains and Dworkin seems to deny. Interpretation and integration of gaps are

16 The Concept of Law, 273.

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not separated by the methods they use to arrive at their result but by the relation of that

result to the meaning of words. As long as the result is within the possible meaning of

the words of a given law there is interpretation, outside it we have integration. The

judges have indeed “interstitial” legislative powers when they decide gaps in the law,

when they create new precedents or overrule old ones in the common law, when they

are allowed by the constitution to fix general binding jurisprudence. The extent of these

powers depends on each constitution, but some points are generally accepted: in

criminal law, for example, there are no gaps, therefore interpretation is allowed but not

integration of gaps. All this is no offence against the principle of division of powers in a

democracy, on contrary: powers are checked not only by division of different powers

through different power holders, but also by division of the same power through

different power holders.

If we compare Hart’s and Duncan Kennedy’s critique of the right answer theory

both escape the self defeating argument because both accept that there are cases where

the system admits only one answer and other cases where more than one answer is

compatible with the system. But they set the divide between the two groups differently.

The second group embraces for Duncan Kennedy almost all cases of adjudication,

because whenever there is litigation the judge must decide between competing reasons

after balancing them and such an activity effaces the distinction between adjudication

and legislation. He composes lists of pairs of “argument-bites” that are typically used

against each other by competent legal arguers17. The balancing judge has to choose

between maxim and countermaxim, e. g. that pacta sunt servanda (promises should be

kept, period) vs. rebus sic stantibus (only as long as the circumstances remain the

same), that the role of the courts is to apply law, not make it vs. the common law

17 “A Semiotics of Legal Argument”, Collected Courses of the Academy of European Law, III-2 (1994), 309 ff.

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evolves to meet new social conditions. But he has eventually to choose also between

assertion and denial of a factual premise, e. g, pacta sunt servanda vs. there was no

promise. Here Duncan Kennedy could have invoked Bentham, who was the first to note

that the power of legislation is but a part of the whole power of imperation in any given

case, in so far as it disposes about classes; it must be completed by the power of

aggregation, that is the power to decide that an individual (act or person or thing) is a

member of that class18. But Duncan Kennedy is not interested in distinguishing different

types of power and even less in separating legislation and adjudication, quite the

contrary: he wants to cannibalize the later distinction. In broad lines his overall

argument runs as follows. Excepting some crystal-clear almost mechanical cases of

adjudication, where there is no doubt about the outcome, the judge must decide after

balancing opposite reasons relative to the rule of the case or to the qualification of the

case. Judicial balancing shows that “judges decide questions of policy without any

methodology that distinguishes them from legislators”19. The decision of judges and

legislators however is not determined by rational procedures of deduction and

evaluation but by partially unconscious interests and sentiments. The existence of pairs

of argument-bytes that give “rational” justifications to contrary choices at every stage of

adjudication demonstrates typically that more than one answer is possible. “Legal

argument, understood as the deployment of stereotyped pro and con argument

fragments, seems a particularly good example of bricolage masquerading as hyper-

rationality”20. This should be sufficient to provoke loss of faith in the distinction

between legislation and adjudication.

It is just not so, that judges decide questions of policy without any methodology

that distinguishes them from legislators. Judicial reasoning is subject to constraints that

18 Jeremy Bentham, Of Laws in General, ed.H. L. A. Hart, London, Athlone, 1970, 81-83.19 “The Critique of Rights …”, 20220 “A Semiotics of Legal Argument”, 352.

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do not affect legislators. It must be based on the sources of law and demonstrate the

compatibility of its conclusions with the sources of law. It is limited by rules of

procedure, that determine in part what are the questions to be answered and how. None

of these constraints affect legislators.

If decisions were never taken rationally, that is, after deliberation about reasons,

but would always be a necessary consequence of antecedent events according to causal

laws, as determinism pretends, there would be no difference in the way how judge and

legislator reach conclusions. Then there would make no sense to speak of a right

answer, only causally determined answers in each individual case would exist. Duncan

Kennedy is too much a post modern theorist to accept such an ultra-confident unproved

theory. He does not pretend more than undermine the pretension of rational deliberation

and decision in certain types of cases. Does he succeed? This can only be decided by

pondering the arguments in each case. The job, as Duncan Kennedy knows, is not

already done by epitomizing argument-bytes used in technical legal reasoning in such

cases. Here I can only refer to an example in the literature. Duncan Kennedy says21 that

the idea of argument-bytes was for him a way to radicalize Llewellyn’s famous article

“Remarks on the Theory of Appellate Decision and the Rules or Canons about how

Statutes Are To Be Construed” of 195022. Llewellyn identifies there twenty eight pairs

of opposing canons about interpretation of statutes, all of them retired from actual cases

of American state law and when he reprints the canons in his later book The Common

Law Tradition. Deciding Appeals23 he adds another nineteen groupings of canons,

mostly with two, sometimes with three or four alternative canons, retired from federal

law cases. For example the pair 12: “If language is plain and unambiguous it must be

21 “A Semiotics of Legal Argument”, 352.22 Karl N. Llewellyn, “Remarks on the Theory of Appellate Decision and the Rules or Canons about how Statutes are to be Construed”, Vand. L. Rev., 3 (1950), 395. 23 Karl N. Llewellyn, The Common Law Tradition. Deciding Appeals, Boston, Little, Brown, 1960, 521 ss.

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given effect” vs. “Not when literal interpretation would lead to absurd and mischievous

consequences or thwart manifest purpose”. In the book he discusses sixty four canons

used in common law as “available impeccable precedent techniques” and does not

group them in opposing pairs24. From the start he considers them “argument tools”, “a

technical framework” and stresses that “plainly, to make any canon take hold in a

particular instance, the construction intended must be sold, essentially, by means other

than the use of the canon”25. As Duncan Kennedy recognizes, Llewellyn is interested in

reconstruction, in “the proper way of work in jurisprudence”, whose “whole unity and

beauty” he compares with Gothic art26. For Duncan Kennedy instead, “the extension of

the 'bites' analysis from statutory interpretation to policy discourse meant rejecting the

‘reconstructive’ impulse among the realists”27. However, if the argument-bites are going

to bite it must be shown in the analysis of any case where one of bites is used, that the

judge could ad libitum have chosen the alternative bite of the pair. Michael Sinclair has

devoted two recent papers to discuss the first twelve pairs of “Llewellyn duelling

canons”28, including the one I quoted above, intending to demonstrate that such a liberty

of choice does not exist. I do not agree with everything Sinclair says and particularly in

the pair 12 quoted above he defends the sole validity of the first canon of the pair and I

would argue for contrary conclusion. Duncan Kennedy would charge Sinclair – and me

of doing reconstruction. May be. But then he must do minute deconstruction if he wants

to convince us. He does not.

Let us finally come to the skeptic thesis about jurisprudence in the sense of legal

doctrine. It says that it is impossible to demonstrate that the arguments of legal doctrine

24 Ibidem, 77-91.25 “Remarks…”, 401.26 The Common Law Tradition, 7.27 “A Semiotics of Legal Argument”, 352.28 Michael B. W. Sinclair, “Llewellyn’s “Duelling Canons, One to Seven: A Critique”, at http://ssrn.com/abstract= 780424, and ““Only a Sith Thinks Like That”: Llewellyn’s “Duelling Canons,” Eight to Twelve”, at http://ssrn.com/abstract= 902853.

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are true. Therefore legal doctrine is not a kind of science but a kind of rhetoric. What is

the best form of this theory? In my opinion it is to be found in the Humean tradition and

is best represented in philosophy of law by Alf Ross.

The Humean argument runs as follows. Legal doctrine is developed through legal

arguments. Legal arguments are normative in the sense that their include premises and

conclusions whose meaning can only be explained through ought-sentences. Ought-

sentences are not true or false. But science is a set of true sentences. Therefore legal

doctrine is not a science. This is confirmed by an epistemology according to which there

are only two ways of demonstrating the truth of a sentence: by deduction or by

induction. Legal reasoning is not reducible to deduction and induction. It entails ought-

sentences. But neither ought can be derived from is nor is from ought. Therefore legal

reasoning is neither accepted by the logic of deduction nor by the logic of induction.

This again is confirmed by a theory of will and deliberation according to which

deliberation as a rational procedure respects only the theoretical premises that relate

means to ends as necessary or sufficient conditions of such ends. But the desire

(Hume’s passion) of an end is not subject to reason (Hume: passion is the master of

reason) and the same applies to the relations between desires. Alf Ross29 tried to confirm

this again by demonstrating that if we try to relate imperatives through the logic

relations of negation, conjunction, disjunction and implication we obtain paradoxes,

rendering imperative logic impossible. For him legal doctrine as legal politics may only

be described as a kind of rhetoric, as developed by Stevenson and Perelman30.

I think that Duncan Kennedy with his fondness for post modern French

philosophy will not like the company of these modernist neo-positivists that march in

Hume’s path. He does not believe in their theories. Otherwise he would not say: “I don’t

29 “Imperatives and Logic”, “Theoria”, 1941, 53.30 Alf Ross, On Law and Justice, London, Stevens, 1958, 326.

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think I can demonstrate that reconstruction is impossible”31. The Humeans think they

can demonstrate it. The Humean version of skepticism certainly did not contribute to his

personal loss of faith and he does not expect it to cause the same loss in others. He sees

critique as a project that “negates a particular emotion in favour of another experience”

that he describes as “loss of faith and characteristic associated emotions”, namely

“irony, despair, ecstasy, and so on”32. Here we have fundamental moral options for

values interpreted as inducement of emotions. I find it strikingly Humean, even if it is

based on a bad interpretation of Hume33. But he has nothing better to offer about

science.

We should evaluate differently Hume’s law and Hume’s conception of science.

According to Hume’s law, no ought can be derived from an is and no is can be derived

from an ought. Hume’s law is unassailable and it certainly implies that the normative

conclusions of legal doctrine can only be derived from arguments that have normative

premises. Hume’s conception of science however is highly disputable and in my

opinion finally wrong. Hume adopts the modern conception of science that had earlier

its best representative in Galileo. According to it there is only theoretical reason, no

practical reason. The concept of reason is essential for the theory of science because

science is constituted by sentences that are grounded on reason. Aristotle would say that

“we think that we have the science of something whenever we think that we know the

cause why it is, that such cause is the cause of such a thing and that it is not possible for

this to be otherwise”34. It is the cause or reason of a statement - why something is as it is

– that makes a scientific statement out of it. The difference between Galileo and Hume

on one side and Aristotle on the other side is that Galileo and Hume do not admit the 31 “The Critique of Rights”, 221.32 Ibidem, see 221combined with 219. 33 See José de Sousa e Brito, "Hume's Law and Legal Positivism", Filosofia del Derecho y Filosofia de la Cultura, Memoria del X Congreso Mundial ordinario de Filosofia del Derecho y Filosofia Social, VIII, Mexico, Universidad Nacional Autonoma de Mexico, 1982, pp. 245-265. 34 Posterior Analytics, I, 2, 71b 9-12.

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final cause. For Aristotle and in ordinary language one way of explaining or saying the

cause or reason of something is to say that it is a means for a certain end. Thereby you

express a practical reasoning or syllogism. Galileo would say that if it is true that being

spherical and polished are means to reflect light it does not follow that some planet, that

is supposed to reflect light, is spherical and polished. This would indeed be a derivation

from ought to is and violate Hume’s law. But if teleological reasoning is of no use for

science in astronomy, it does not follow that it is also inappropriate for science in ethics

or in law. This is however Galileo’s and Hume’s conclusion. In the words of Galileo:

“in whatever point of law and of other human studies is neither truth nor falsity”35. They

restrict reason to theoretical reason.

Bentham and Kant reacted to Hume by demonstrating the possibility of practical

reason. We owe to Bentham in particular the restoration of practical syllogism in

philosophy and in jurisprudence. Methodically utilitarianism can be equated to

teleology and was indeed so named by John Start Mill36. Neither Mill nor Bentham nor

Aristoteles before them reduced the object of reason in ethics to the causal relation

between end and means. The choice of ends is also a matter of reason. Aristoteles says

that “the work of practical thought is the truth in accordance with right desire”.37 The

quest of the right desire is the Aristotelian counterpart of the theory of rational choice,

encompassing individual and social choice. A specific approach to the theory of social

choice is given by the general discipline of cost-benefit analysis38, which constitutes the

methodological backbone of the economic analysis of law. Balkin and Levinson are

legal semioticians who consider “economics, and all forms of rational actor theory generally”

to be the discipline best “suited to producing rhetorical authority in debates about law

35 Dialogo dei massimi sistemi (1630), Le Opere (ed.Nazionale), Firenze, VII; reimp. 1933, p. 78.36 A System of Logic, VI, XII, 6 (ed. Robson, Collected Works, London, Routledge, 1974, 949-950). 37 Nicomachean Ethics, VI, 1139ª 29-30.38 On rational choice, social choice and cost benefit analysis see Amarttya Sen, Rationality and Freedom, Cambridge, Massachusetts, Harvard University Press, 2002.

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and public policy”.39 I would say that it is suited to producing legal theory proper, albeit

only part of it..

Bentham contributed further to the methodological foundations of law and other

practical disciplines by developing a logic of the will40 and so rediscovered deontic logic

after Leibniz. He developed also a theory of the paraphrase of concepts that anticipates

Russell’s definition in use41. Paraphrase and logic of the will enabled him to an analysis

of rights in terms of subjective legal positions42. Bentham remains the main alternative

to Hohfeld’s theory of legal conceptions, but Hohfeld had a greater success in the legal

doctrine as it is generally recognized in private law. Modern deontic logic after 1951

developed a lot through von Wright, Lindahl and others43, benefiting again legal theory.

Kanger44, Lindahl45 and Pörn46, for example, applied a revised version of Hohfeld to

parliamentary and human rights. The difficulties of Alf Ross have been solved by what

Richard Hare said on practical inferences47 and by what Anthony Kenny wrote on the

logic of satisfactoriness48.

Bentham and Hohfeld worked on commands and permissions. Other types of rules

have been investigated since. Wittgenstein, Rawls and Searle, among others, focused on

39 Jack M. Balkin and Sanford Levinson, “Law and the Humanities: An Uneasy Relationship”, Yale Journal of Law & the Humanities, 18, 2006, 155, 183.40 See José de Sousa e Brito, “Relire Bentham. A propos de l’édition de “Of Laws in General” de Bentham par Hart”, Archives de Philosophie du Droit, 17, 1972, 451, 458-468.41 See José de Sousa e Brito, “La methodologie juridique de Bentham”, Philippe Gérard ed al.(eds.), Actualité de la pensée jurique de Jeremy Bentham, Bruxelles, Saint-Louis, 1987, 279.42 See appendix B of Of Laws in General, ed. H. L. A. Hart (Collected Works), London, Athlone, 1970, 251-288 and José de Sousa e Brito, “Droits et utilité chez Bentham”, Archives de Philosophie du Droit, 26, 1981, 93, 99-105.43 See the short overview of G. H. von Wright, “Logik, deontische” in Historisches Wörterbuch der Philosophie, eds. J. Ritter, K. Gründer, Basel, Schwabe, 5, 1980 for the main references until 1980 and Paul McNamara “Deontic Logic” (2006), Stanford Encyclopedia of Philosophy, for more recent ones.

44 Stig Kanger, “Rights and Parliamentarism” (1966) and other essays under the heading “Applied Logic: Obligations, Rights and Action” in Collected Papers of Stig Kanger with Essays on Hi sLife and Work, ed.by Ghitta Holmström-Hintikka et al., Dordrecht, Kluwer, 2001, I, 99-196.45 Lars Lindahl, Position and Change. A Study in Law and Logic, Dordrecht, Reidel, 1977.46 Ingmar Pörn, The Logic of Power, Oxford, Blackwell, 1970.47 R. M.Hare, “Practical Inferences” (1969), Practical Inferences, 1971, 59.48 Antony Kenny, “Paractical Reasoning and Rational Appetite”, Will, Freedom and Power, Oxford, Blackwell, 1975, 70

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constitutive rules. Dworkin opposed principles to rules and originate an enormous

discussion on the meaning and the logic of principles and how they relate with the

different types of rules in a legal system. This again contributed to further development

of the theory of the legal system, due to Kelsen and to Santi Romano, through Hart and

Raz. These developments presupposed the advancement of philosophical semantics due

to Wittgenstein and to the Oxford analytical school (Austin, Grice, Strawson). The work

of Judith Harvis Thomson on the meaning of rights and the constructive semiotics of

law of Roberta Kevelson and of Bernard Jackson are other examples of the

indispensable contribution of philosophy to the reconstruction of jurisprudence as a

science.

These references indicate no more than inspirations for the only work that can

convincingly refute the skeptic argument against legal science: the reconstruction of

jurisprudence as a scientific enterprise. Such work is beyond the scope of any single

paper. I can not convince Dunkan Kennedy. I just tried to explain why he did not

succeed in cannibalizing jurisprudence.

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