The Theory and Practice of Legislation

Essays in Legisprudence

Luc J. Wintgens

• Publisher: Routledge
• Year: 2017
• Print ISBN: 9780754624615
• eBook ISBN: 9781351881265
• Edition: 1
• Topic: Law
• Subtopic: Jurisprudence
• Index: Law

This work provides a rational framework for legislation. The unifying premise behind the essays is that, although legislation and regulation are the result of a political process, legislation and regulation can be the object of theoretical study. The volume focuses on problems that are common to most European legal systems and the approach involves applying to legislative problems the tools of legal theory - hence 'legisprudence'. Whereas traditional legal theory deals predominantly with the application of law by the judge, legisprudence enlarges the field of study so as to include the creation of law by the legislator. The original essays published in this collection expose and develop a range of new insights into the relationship between legislative problems and legal theory in a way which will engage and interest legal scholars throughout the world.

PART I

LEGISPRUDENCE: THEORETICAL ISSUES

Chapter 1

Legisprudence as a New Theory of Legislation

Luc J. Wintgens^*

The search for balance between law and politics has the advantage of drawing in two poles in legal research. In this chapter I will argue that the separation of law and politics that has been predominant in legal thinking until recently, makes that the creation of law via legislation has not been deemed a proper theme of attention for legal theory (Waldron, 1999, pp. 2 ff). Legislation belongs to the realm of politics focused upon by political scientists of different sorts.

Law for its part is recognized to root in politics, though it lives its own life being cut off from this root. Law has its own method of study, called legal dogmatics or, more broadly, legal theory of different sorts. The way law is created throughout the process of legislation does not appear on the screen of the legal theorist. The question of why this is so, and a critique of this position are the topics of this contribution.

The central thesis is that law is separated from politics for a political reason. The separation is operated on epistemological grounds, which contribute to the concealment of the political choices made. As a result, the domain of values, both moral and political, is structured on a “neutral” basis that prevents the elaboration of a rational theory of legislation.¹

The Social Contract and the Three Axes of Modern Philosophy

The elaboration of legisprudence as a rational theory of legislation starts with a reflection on the organisation of political space since Modernity. The basic model of this organisation is the social contract. This contract is an act of will of the subjects. Upon its conclusion, a sovereign is called into being. From the moment of his emergence, the sovereign has the power to decide about matters of practical reason. He decides the what and how of human actions (Hobbes, 1966; Rousseau, 1964; Locke, 1963; Kant, 1983).

The articulation of the sovereign is premised by a reflection on freedom. This reflection articulates the three main axes of the Modern philosophical project, that is, the epistemological axe resulting in the epistemologization of philosophy, the political axe resulting in the construction of the state and the moral axe, mainly concentrating on the freedom of the individual.

The basic premise that both Hobbes and Rousseau adopt is freedom unlimited.

For Hobbes, everyone can act in freedom on the ius naturale. It includes a right of all to all. The laws of nature impose some duties that, however, are unworkable in the state of nature. This is because of his nominalistic epistemology. According to this epistemology, concepts have no ontological value. They depend on definition by the subjects. Because everybody is more likely to define these concepts following his own biases, the laws of nature are unworkable. In short, they do exist although they are semantically empty. Only a sovereign can define their content in a binding way. Unless this is the case, there is a war of all against all.

A similar though slightly different thesis is found in Rousseau. According to him, man is born free and everywhere he is in chains. Rousseau’s is mainly an economic theory. For Rousseau like for Hobbes the conclusion of a contract is a necessary condition for warding of the dangers of this war.

From there, it follows that freedom is mainly considered a political theme. Freedom comes to its realisation in political space as a result of the will of individual subjects.

The latter’s freedom as a moral issue is only a secondary matter. Individual freedom and the possibility of subjects to interact on their own insights in social space are surpassed by the political variant of freedom or freedom according to the law. The organisation of political space is superimposed on some form of self-regulating social space in which neither Hobbes nor Rousseau believes. As long as the sovereign does not regulate an issue, subjects can act as they please. The sovereign though can intervene whenever he deems it fit, in view of the finality of his position.

Apart from the political and moral components of freedom the theory of the social contract, as it seems, is mainly coloured by the third axe, that is, the epistemological perspective.

In comparison with Descartes (Descartes, 1996), both Hobbes and Rousseau face freedom as a problem. While Descartes is of the opinion that morality would unfold as a rational system, Hobbes and Rousseau consider this not possible. They are in a way more realistic than their forerunner. They do espouse however his basic insight that comes to an epistemologization of philosophy in general and of practical philosophy in particular.

Philosophical truth for Descartes comes to securing the latter’s certainty. Ideas having the same clarity and distinctiveness as the cogito can be logically concatenated to the latter, and so to each other. Upon this, reality can be unfolded in a rational way. At the reverse, what is not capable of logical or empirical proof is therefore not rational (Perelman and Olbrechts-Tyteca, 1976, pp. 2-5).

Fruitful as this may have turned out for scientific thinking, it strongly reduces though the action radius of practical reason. Values, or goals and ends of action are not capable of logical or empirical proof; hence, they are not rational. These effects have been felt for some three centuries, and persist throughout the programme of logical positivism.

The model of the social contract as Hobbes and Rousseau conceive it purports to solve the problem of political integration as it follows from individualism. They do so by applying and enlarging the Cartesian method of transforming thinking into knowing. They deliver, that is, a specific exercise of epistemologized philosophy.

To begin with, the social contract is a true idea. In making use of his rational capacities, the subject cannot but conclude that entering into the contract is preferable to staying in the state of nature. In Razian language, the reason for entering the contract is an exclusionary reason (Raz, 1990). While Hobbes can be read to hold some utilitarian version of rationality, Rousseau’s theory most obviously is of a more purified brand. It is reason itself that unfolds and induces to the adherence to the true principles of public law, as he calls the social contract.

Both variants of the contract result however in the same thing: the sovereign’s rules are morally true. They are so in the Hobessian variant because the rules of the sovereign are implementations of the laws of nature. The latter being commands of God, they are the only true morality (Hobbes, 1966, p. 147). They are also true in Rousseau’s version because no law, because it is a law, can be unjust (Rousseau, 1964, p. 379).

The logic of both the variants of the social contract is nearly inescapable. From the truth of the premise, that is, the social contract one can logically conclude the truth of propositions based on it, that is, laws.

Legalism

From the above diagnosis, we can proceed to an articulation of the main characteristics of the pattern of legal thinking that has been dominant from the 17^th century to the middle of the last century. It is commonly labelled as “legalism”. Legalism, so we can read from Judith Shklar, takes normative behaviour to be a matter of rule following (Shklar, 1964, p. 1). Zenon Bankowski has added to this that it does not matter where these rules come from (Bankowski, 1993). Law, that is, is “just there”.

This addition brings also to light a characteristic of legalism shared by positivism and jusnaturalism. Both hold that law represents reality. This is obvious for jusnaturalism. The content of law is dictated by a substantial transcendent norm that is reproduced through the law of the sovereign. Representationalism is less obvious in positivism. Law as a command of a sovereign is a decision of the latter. It is however true as both Hobbes and Rousseau claim, because it is based on the social contract. The latter is true, and consequently the rules based on it must also be true. It is a consequence of their epistemologized version of philosophy.

Representationalism as the basic metaphysical premise of their theories is supplemented with four other aspects that identify legalism. First, if the construction of laws results in true normative propositions, the latter must be timeless. If they are not, they could hardly be held true since truth is eternal.

Secondly, since laws are true there can be no discussion about their content. This entails that the disputable nature of values, goals and ends is concealed. Any rule is true, which means that the value, goal or end is morally correct. In this view, laws are considered instruments for their realisation without any need to be chosen. This characteristic of legalism can be called its concealed instrumentalism.

Thirdly, upon the conclusion of the social contract any normative proposition of the sovereign ipso facto outweighs any other proposition that would pretend to have normative value. Personal moral insights of the subjects as to what is right or wrong is conclusively waved from the normative screen. It is the law of the state that prescribes what is right and wrong. This aspect of legalism can be qualified as etatism.

Fourthly and finally, the study of law is confined to the study of true propositions. As to its method, the study of law is held identical to that of the science of nature. Scientific method as a description and explanation of an object found “out there” equally applies to law as to nature. The study of law then is aptly labelled as the “science of law”. Propositions resulting from the science of law can operate as a supplementary source of law. This conclusion is a logical result of the truth of the premises – the law – and the uniqueness of the method of science. Hence, the legal system is a closed set of logically connected propositions.

Legalism then consists of a conjugation of these five characteristics – representationalism, timelessness, concealed instrumentalism, etatism and the scientific method of study of law. I propose to call this form of legalism “strong legalism” and will qualify it later.

Strong Legalism and the Proxy Model of the Social Contract

The foregoing brief articulation of legalism sheds some light on the theory of legislation. Legalism mainly attempts to exclude any form of theorizing on legislation. Legislation is a matter of politics. Politics is a matter of choice. Choices are disputable, so that a theory that would take them to be the object of knowledge is condemned to failure from the very beginning. Legalism then solves this problem by epistemologizing it and transforming practical reason into a branch of theoretical reason. What ought to be done is confined to the knowledge of the rules that contain rights and duties. Following rules is a matter of knowledge; their enforcement is a matter of application.

As a consequence, the central position of the judge as the main actor within the legal system and the subsequent reduction of jurisprudence to the theory of the application of rules goes without saying. The legislator operates behind the scene of the legal system. His role is confined to political decision-making. The true principles of public law, as Rousseau had labelled the social contract (Rousseau, 1964, p. 470), concern the establishment of the institutions, and not the content of the decisions that result from that.

This is a consequence of sovereignty. The legislator is a sovereign actor within political space. He cannot be bound to rules, at least not in the sense a judge is. If he were, he would not be a sovereign. On this view, the constitution is a political programme that steers legislation. It is not a set of binding rules for the legislator. As a consequence, the legislator is not considered a legal actor. He is only a political actor. Legislation then is a matter of politics. In severing law from its political origin, law making is not a matter of legal theory.

In the pages to come, I will challenge this view. The argument of this paper aims at articulating the position of the legislator as a legal actor. I will do so in three steps. In the rest of this section, I will briefly explore the meaning of freedom. The next section is dedicated to the articulation of the contours of an alternative version of the social contract. In the last section, four principles of legisprudence will be identified, that allow for a rational elaboration of legislation.

This tentative sketch has not the ambition of being complete. It only contains a rudimentary outline of legisprudence as a theory of legislation, that is elaborated at more length in a forthcoming publication.

I propose to start with the concept of freedom. In the absence of any external limitation, any subject is free to act as he pleases (Hart, 1979). Both Hobbes and Rousseau take this as a starting point. As a matter of logic, the subject faces an infinite variety of possibilities to concretise the concept of freedom. The concept of freedom allows any action. Paradoxically, freedom has to be limited for action to be possible at all. If no choice is made from the infinite variety of possibilities, no action ever takes place.

This is saying that action in order to be possible is preceded by a limitation of freedom. Freedom-unlimited is only a concept; it must be supplemented by a concretisation that I propose to call a “conception”. Conceptions are a necessary condition for action.

In the absence of any external limitation of freedom, subjects are to act on their own conceptions. They have to choose the limitations of freedom that I propose to call “conceptions of freedom”. Conceptions of freedom are concretisations thereof and these concretisations are determinations of the infinite variety of possibilities. Conceptions of freedom are limitations of freedom by the subject. When the subject acts on a concretisation of freedom that is not his own, he acts on a conception about freedom. A conception about freedom can also be called an external limitation of freedom, since the limitation that is necessary for action is external to the subject. At the opposite, a conception of freedom can be considered an internal limitation of freedom.

What both Hobbes and Rousseau are eager to show is that social interaction cannot take place on the basis of conceptions of freedom. This is most obviously the case with Hobbes. According to him, subjects do not dispose of the true meaning of the laws of nature. This is because of their semantic emptiness. Once we would achieve the true meaning of the laws of nature, social interaction disposes of rules.

Unlike Hobbes, Rousseau holds that there exists a society before a state comes into being. His theory embraces the possibility of social interaction based on meaning. Subjects, that is, interact in the context of participation. It is within this context of participation that they recognize each other as members of a social bound. The existence of a war of all against all is a sign that there is a society. War, that is, is a form of social interaction.

Meaning, however, is different from truth. Truth is unique while meanings are multiple. Social interaction based on meanings, that is, social interaction from the perspective of a context of participation, is deemed to failure. This is so because of man’s wicked nature, as can be read from Hobbes. It is due to relations of dependence resulting from the economic settings within social space, according to Rousseau.

This can be reframed in the above terminology. Subjects acting on conceptions of freedom do not dispose of its “true” meaning. Conceptions of freedom are of an infinite variety; the “true” meaning of freedom for its part must be unique.

The three axes that were pointed to above appear in the contractual setting in the following way. Conceptions of freedom as the basis of action of the subject are a practical necessity. Without concretisations of freedom in terms of conceptions there can be no action. This practical necessity includes, at the same time, a priority of the subject. If there are no external limitations of freedom, that is, conceptions about freedom, the subjects can act as they please. Howeve...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Series Preface
• Introduction
• PART I LEGISPRUDENCE: THEORETICAL ISSUES
• PART II CONSTITUTIONALISM, LEGALISM AND DEMOCRACY
• PART III POLITICS, LEGISLATION AND LEGITIMACY
• PART IV PRACTICAL REASON, ARGUMENTATION AND INTERPRETATION
• PART V PRACTICAL ISSUES