Abstract
Near the end of the last century, some legal philosophers adapted the so called causal theories of reference to solve internal problems in legal theory. Among those philosophers, Nicos Stavropoulos adjusted Hilary Putnam’s semantic externalism claiming it as a better philosophical view than legal positivism defended by Herbert Hart. According to him, what determines the correct application of a legal rule must be determined by the objects themselves. In that case, what determines the reference of legal terms is an issue to be solved by the best theory developed. However, this is not the case necessarily: Hart’s model can reach to the same conclusions as an externalist adjustment of law. Furthermore, the epistemic criteria required by Putnam to deal with value judgements are also acceptable in a positivist model. This paper presents the central thesis of Putnam’s semantic externalism, with Stavropoulos adaptations to law, and defends that Hart’s approach to deal with legal rules and Putnam’s approach to deal with language rules can converge.
This is a preview of subscription content, log in via an institution to check access.
Similar content being viewed by others
Notes
Essentialist views say that certain classes of individuals (e.g. biological and chemical species) are identified by essences or micro-structural intrinsic properties. Without those properties or essences, those individuals would no longer be what they are. Brian Ellis states that “essentialists believe that there are objective, mind-independent, kinds of things in nature. These are the so-called ‘natural kinds’. To explain the existence of these natural kinds, essentialists postulate that the sources of relevant similarities and differences are intrinsic, i.e. independent of circumstances, and independent of human knowledge or understanding.” [13, 139–140]. Recently, Tuomas Tahko summed up essentialism in the following way: “there are at least some genuine, mind-independent natural kinds that are defined by their essential properties” [57, 796].
For Putnam, whatever is understood as “necessary” is restricted to a specific body of knowledge. “H2O” is a necessary element of what we call “water” by our current scientific standards: “In particular, when we say that a statement is necessary relative to a body of knowledge, we imply that it is included in that body of knowledge and that it enjoys a special role in that body of knowledge” [31, 240]. Hence, “water is H2O necessarily” not because it has a metaphysical or an intrinsic property which exists independent from any theoretical context; it is necessary concerning to the fact that we accept as true our scientific descriptions. This was well implicit in “MoM” but was anticipated in 1962 and returned in “Rethinking mathematical necessity” [42].
Juliet Floyd says that one of the main contributions of Putnam’s semantic externalism was to present an alternative to relativism concerning the debate about theoretical terms: “[h]is causal treatment of reference, developed in the mid-1960s and most famously defended in ‘The meaning of ‘meaning’’ was, inter alia, a response to the then popular idea that when our beliefs change (as when Science progresses), so do the meanings and referents of our terms. Because of the influence of Carnap, Kuhn and Malcolm, this relativist conception seemed viable at the time, and Putnam’s response, accordingly, revolutionary” [16, 17]. However, it is questionable that Kuhn actually put forth a strong relativist view. About this topic, see Bird [4], and Oberhein and Hoyningen-Huene [26].
Putnam’s conception assumes that there is an indexical component in the fixing of the extension of a term which designates an object. So, the choices and the wills of the nominators would be constrained by the environment, either physical or social. See Putnam [35].
Regarding the stereotypes of objects like electrons, Putnam said: “I myself would regard possession of the stereotype—not the theory—that electrons are charged particles (‘little balls’ with trajectories and unity negative charge) as part of our concept of the electron. In my opinion, stereotypes are far more stable than theories, and contribute to the identity of our natural kind concepts without providing necessary and sufficient conditions for their applications” [41, 445].
An issue neglected by interpreters of this phase of Putnam’s philosophy was his notion of “interest”, which permeates his view of scientific practice. The change or stability of the reference of a scientific term depends on the interests involved. In a 1962 paper, Putnam wrote: “When a patient has these symptoms we say he has ‘multiple sclerosis’—but, of course, we are prepared to say that we were mistaken if the etiology turns out to be abnormal. And we are prepared to classify sicknesses as cases of multiple sclerosis, even if the symptoms are rather deviant, if it turns out that the underlying condition was the virus that causes multiple sclerosis, and that the deviancy in the symptoms was, say, random variation. On this view the question of interest is not, so to speak, the ‘extension’ of the term ‘multiple sclerosis’, but what, if anything, answers to our notion of multiple sclerosis. When we know what answers to our criteria (more or less perfectly), that—whatever it is—will be the extension of ‘multiple sclerosis’” [37, 311]. This notion of “interest” appeared again in “MoM” and also in the 1990s when he said that “what we say about the world reflects our conceptual choices and interests” [40, p. 58]. Putnam’s notion of “interest” implies that his semantics did not have any metaphysical commitments. His semantics is different from Kripke’s view on proper names. See Hacking [19].
See Putnam [30, 225].
In this sense, the difference between scientific discovery and “discovery” in moral/legal scope would be merely a question of degree, as Dworkin also maintained: “The difference between natural kinds and political values that I emphasized of course remains after we have noticed these similarities. The deep structure of natural kinds is physical. The deep structure of political values is not physical—it is normative. But just as a scientist can aim, as a distinct kind of project, to reveal the very nature of a tiger or of gold by exposing the basic physical structure of these entities, so a political philosopher can aim to reveal the very nature of freedom by exposing its normative core. The physicist helps us to see the essence of water; the philosopher helps us to see the essence of freedom. The difference between these projects, so grandly described, and more mundane projects—between discovering the essence of water and discovering the temperature at which it freezes, or between the identifying the nature of freedom and deciding whether taxation compromises freedom—is finally only one of degree” [12, 13].
According to Carlos Roberto Gonçalves [17, 544], the gender diversity would be a natural condition. So, he claims that it should be impossible to treat—in the lights of Brazilian civil law—gay couples as married.
The reasoning of the Brazilian Supreme Court judges respected Kelsen’s pyramid, i.e. the validity of any legal rule depends from a superior rule. Judge Ayres Britto vote summarizes most of the reasons for the Court’s decision. See the Brazilian Supreme Court decision of this case on [9].
Stavropoulos is not explicit regarding what he means by “theory”. He acknowledged that a complete theory of legal interpretation needs to include other topics, such as constitutional interpretation [52, 4]. As I see it, in addition to legal norms, precedents, statutes, and so forth, his view of “theory” includes legal scholarship in a wide sense.
See Putnam [38, 115].
See Putnam [29, 208–209]. Actually, Putnam intended to make explicit which elements would be considered relevant for the composition of the meaning of a term; for instance, what would be guiding the linguist aiming to detail the meaning of a term in a dictionary (see Putnam [47, 272]. For him, the conventions of language are not separated from the world. There is no clear line separating and determining where semantic starts and where it stops. Therefore, it is natural that theoretical specifications be incorporated to the classificatory terms of a language. In the Oxford Dictionary [59], the term “gold” presents, as one of the parts of its meaning, its chemical symbol (Au). In addition, in the Portuguese dictionary Aurélio [15], the term “water” presents as one of the components of its meaning, its chemical formula (H2O).
Unlike Saudi Arabia, Brazilian’s jurisprudence does not allow polygamy.
See Rogério Castro [7].
Regarding hard cases on law and ethics, Putnam said: “The question of ‘hard cases’ is really outside of my expertise” [43, 7].
According to Putnam, “the conclusions of ‘The analytic and the synthetic’ are closely connected with what was later called ‘externalism’” [47, 193].
In explanatory terms, cluster concepts are not thought under necessary and sufficient conditions, but describe objects through a web of laws. As Frederick Suppe says: “The laws constituting the identity of a law-cluster concept determine the extension of the concept, but they overdetermine it in several ways. First, the deletion of any one or a few of the laws does not alter the extension of the concept. Second, the laws do more than merely determine its extension; they also assert various factual connections purportedly holding between falling under the concept and other entities” [56, 74].
There are many examples that could be mentioned in the Brazilian legal system. In labor law, e.g. when there is a case which does not fall under any explicit labor rule (or jurisprudence), rules from the Civil Code can be used (art. 8, Brazilian Labor Code). Another case: art. 200, VIII, of the Brazilian Federal Constitution (1988), states that environmental law can be used to regulate issues pertaining to the living conditions of a laborer. And one could also mention administrative law, which organizes the whole legal system. Hart made his point by saying that, for its application, a rule depends on a series of other connected rules, as can be seen in the following passage: “[…] the reference to duty or its absence is involved in the definition of such other legal concepts as those of a right, power, a legal transaction, or a legal personality” [20, 92].
See Hart [20, 106–107].
He claimed that “to obey a rule, to make a report, to give an order, to play a game of chess, are customs (uses, institutions)” [60, 81e].
This is what Hart called by “internal aspect of rules”. See Hart [56, 21].
In a reply to Gary Ebbs, Putnam stated that his realism proposed in “MoM” refers, mainly, to linguistic social practices. See Putnam [39, 349].
See Putnam [38, 115].
I read Hart semantics approach in modest way. In my view, his mentions on tools from philosophy of language are better understood as a diagnosis about legal problems that lawyers and judges have to deal with in their routines. If a rule is established beforehand, it can, when contrasted with a concrete case, contain similarities, but not always all the conditions fixed by the rule, as it occurs in language. For a modest view about Hartian linguistic intentions, see Endicott [14].
See Ben-Menahem [2].
See Hart [21, 204].
As it was said by Frederick Schauer: “[…] focus on the hard appellate case would seem odd, and indeed distorting, much like description of human nature that we might get from a homicide detective, or a description of the game of bride that thought it centrally important to explain what happens when someone is dealt the wrong number of cards” [49, 851].
See Waluchow [58, 231].
References
Arabatzis, Theodore. 2006. Representing electrons: A biographical approach to theoretical entities. London: University of Chicago Press.
Ben-Menahem, Yemima. 2006. Conventionalism. New York: Cambridge University Press.
Ben-Menahem, Hanina, and Yemima Ben-Menahem. 1999. Law and science–reflections. Science in Context 12: 227–243.
Bird, Alexander. 2011. Thomas Kuhn. The Stanford Encyclopedia of Philosophy. http://plato.stanford.edu/entries/thomas-kuhn/. Accessed 6 Jan 2015.
Bix, Brian. 1993. Law, language and legal determinacy. New York: Oxford University Press.
Carnap, Rudolph. 1947. Meaning and necessity: A study in semantics and modal logic. Chicago: Chicago University Press.
Castro, Rogério. 2009. Factoring no Brasil e na Argentina: análise histórica, estrutural e funcional, estudo de direito comparado e Convenção de Ottawa do Unidroit. Curitiba: Juruá.
Cumming, Sam. Names. 2013. The Stanford Encyclopedia of Philosophy. http://plato.stanford.edu/entries/names/. Accessed 10 Oct 2015.
Distrito Federal, Supremo Tribunal Federal (Tribunal Pleno). Ação Direta de Inconstitucionalidade 4277/DF. Autor: Procuradoria Geral da República. Relator: Min. Carlos Ayres Britto, Brasília, 14 out. 2011. http://www.stf.jus.br/arquivo/cms/noticianoticiastf/anexo/adi4277.pdf. Accessed 2 Jan 2016.
Duxbury, Neil. 2001. Jurists and judges: An essay on influence. Oxford: Hart Publishing.
Dworkin, Ronald. 1977. Taking rights seriously. Cambridge: Harvard University Press.
Dworkin, Ronald. 2006. Justice in robes. London: Harvard University Press.
Ellis, Brian. 2008. Essentialism and natural kinds. In The Routledge Companion to Philosophy of Science, ed. Martin Curd and Stathis Psillos, 139–148. New York: Routledge.
Endicott, Timothy. 2001. Herbert Hart and the semantic sting. In Hart’s postscript: Essays on the Postscript to The Concept of Law, ed. Jules Coleman, 39–58. New York: Oxford University Press.
Ferreira, Aurélio. 2010. Mini Aurélio: o dicionário da língua portuguesa, 8 a Edição. Curitiba: Positivo.
Floyd, Juliet. 2005. Putnam’s ‘The meaning of “meaning”’: Externalism in historical context. In Hilary Putnam, ed. Yemima Ben-Menahem, 17–52. New York: Cambridge University Press.
Gonçalves, Carlos. 2005. Direito civil brasileiro: direito de família. São Paulo: Saraiva.
Green, Leslie. 2012. Introduction. In The concept of law, 3rd ed, ed. Herbert Hart, xv–lv. New York: Clarendon Press.
Hacking, Ian. 2007. Putnam’s theory of natural kinds and their names is not the same as Kripke’s. Principia 11: 1–24.
Hart, Herbert. 1983. Essays in jurisprudence and philosophy. New York: Clarendon Press.
Hart, Herbert. 1994. The concept of law, 2nd ed. New York: Clarendon Press.
Khatchadourian, Haig. 2007. Meaning & criteria: With to various philosophical problems. New York: Peter Lang.
Leiter, Brian. 2003. Beyond the Hart/Dworkin debate: The methodology problem in jurisprudence. American Journal of Jurisprudence 48: 17–51.
Levi, Edward. 1948. An introduction to legal reasoning. The University of Chicago Law Review 15: 501–574.
Lyons, David. 1977. Principles, positivism, and Legal Theory. The Yale Law Journal 87: 415–435.
Oberheim, Eric, and Hoyningen-Huene, Paul. 2013. The incommensurability of scientific theories. The Stanford Encyclopedia of Philosophy. http://plato.stanford.edu/entries/incommensurability/. Accessed 8 Jan 2015.
Patterson, Dennis. 2006. Dworkin on semantics of legal and political concepts. Oxford Journal of Legal Studies 26: 545–557.
Payne, Michael. 1976. Hart’s concept of a legal system. William and Mary Law Review 18: 287–319.
Putnam, Hilary. ed. 1975a. Memo on ‘conventionalism’. In Mathematics, matter and method: Philosophical papers, vol. 1, 206–214. New York: Cambridge University Press.
Putnam, Hilary. ed. 1975b. What theories are not. In Mathematics, matter and method: Philosophical papers, vol. 1, 215–227. New York: Cambridge University Press.
Putnam, Hilary. ed. 1975c. It ain’t necessarily so. In Mathematics, matter and method: Philosophical papers, vol. 1, 237–249. Cambridge: Cambridge University Press.
Putnam, Hilary. ed. 1975d. The analytic and the synthetic. In Mind, language and reality: Philosophical papers, vol. 2, 33–69. Cambridge: Cambridge University Press.
Putnam, Hilary. ed. 1975e. Is semantics possible? In Mind, language and reality: Philosophical papers, vol. 2, 139–152. Cambridge: Cambridge University Press.
Putnam, Hilary. ed. 1975f. Explanation and reference. In Mind, language and reality: Philosophical papers, vol. 2, 196–214. Cambridge: Cambridge University Press.
Putnam, Hilary. ed. 1975g. The meaning of ‘meaning’. In Mind, language and reality: Philosophical papers, vol. 2, 215–271. Cambridge: Cambridge University Press.
Putnam, Hilary. ed. 1975h. Language and reality. In Mind, language and reality: Philosophical papers, vol. 2, 272–290. Cambridge: Cambridge University Press.
Putnam, Hilary. ed. 1975i. Dreaming and ‘depth grammar’. In Mind, language and reality: Philosophical papers, vol. 2, 304–324. Cambridge: Cambridge University Press.
Putnam, Hilary. ed. 1978. Reference and understanding. In Meaning and the moral sciences, 97–122. London: Routledge.
Putnam, Hilary. 1992. Reply to Gary Ebbs. In The Philosophy of Hilary Putnam, ed. Christopher Hill, 347–358. Fayetteville: University of Arakansas Press.
Putnam, Hilary. 1992. Renewing philosophy. Cambridge: Harvard University Press.
Putnam, Hilary. 1992. Truth, activation vectors and possession conditions for concepts. Philosophy and Phenomenological Research 52: 431–447.
Putnam, Hilary. 1994. Rethinking mathematical philosophy. In Words and life, 245–263. Cambridge: Harvard University Press.
Putnam, Hilary. 1995. Are moral and legal values discovered? Legal Theory 1: 5–19.
Putnam, Hilary. 2002. The collapse of the fact/value dichotomy. Cambridge: Harvard University Press.
Putnam, Hilary. 2004. Ethics without ontology. Cambridge: Harvard University Press.
Putnam, Hilary. 2013. Comments on Tyler Burge’s “Some remarks on externalisms”. In Reading Putnam, ed. Maria Bagharamian, 272–274. New York: Routledge.
Putnam, Hilary. 2013. The development of externalist semantics. Theoria 79: 192–203.
Reimer, Marga and Michaelson, Eliot. 2014. Reference. The Stanford Encyclopedia of Philosophy. http://plato.stanford.edu/entries/reference/. Accessed 5 July 2014.
Schauer, Frederick. 1987. The jurisprudence of reasons. Michigan Law Review 85: 847–870.
Shapiro, Scott. 2007. The Hart-Dworkin debate: A short guide for the perplexed. Public law and legal theory working papers, no. 77.
Shecaira, Fábio. 2013. Legal scholarship as a source of law. New York: Springer.
Stavropoulos, Nicos. 1996. Objectivity in law. New York: Oxford University Press.
Stoney, George. 1881–1883. On the physical units of nature. Scientific Proceedings of the Royal Dublin Society 3: 51–60.
Stoney, George. 1888–1892. On the cause of the double lines and of equidistant satellites in the spectra of gases. Scientific Transactions of the Royal Dublin Society 4: 563–608.
Struchiner, Noel. 2002. Direito e linguagem: uma análise da textura aberta da linguagem e sua aplicação ao direito. Rio de Janeiro: Renovar.
Suppe, Frederick. 1974. The structure of scientific theories. Chicago: University of Illinois Press.
Tahko, Tuomas. 2015. Natural kind essentialism revisited. Mind 124: 795–822.
Waluchow, Will. 1994. Inclusive legal positivism. New York: Clarendon Press.
Wehmeier, Sally. 2000. Oxford advanced learner’s dictionary. 6th ed. New York: Oxford University Press.
Wittgenstein, Ludwig. 1958. Philosophical investigations. Oxford: Blackwell Publishers.
Wittgenstein, Ludwig. 1978. Remarks on the foundations of mathematics. Oxford: Blackwell.
Wittgenstein, Ludwig. 1993. Cause and effect: Intuitive awareness. In Philosophical occasions, ed. Ludwig Wittgenstein, 1912–1951. Indianapolis: Hackett Publishing Company.
Acknowledgements
I would like to thank Juliele Sievers (UFSM), Rogério Severo (UFRGS) and the reviewer for their comments and suggestions. In addition, I’d like to thank CAPES (Brazilian institution for research) for the financial support to this research.
Author information
Authors and Affiliations
Corresponding author
Rights and permissions
About this article
Cite this article
Fonseca, A.M. Hart and Putnam on Rules and Paradigms: A Reply to Stavropoulos. Int J Semiot Law 31, 53–77 (2018). https://doi.org/10.1007/s11196-017-9526-9
Published:
Issue Date:
DOI: https://doi.org/10.1007/s11196-017-9526-9