Ratio and Voluntas

The Tension Between Reason and Will in Law

Kaarlo Tuori

• Publisher: Routledge
• Year: 2016
• Topic: Law
• eBook ISBN:
  9781317071464
• Subtopic: Jurisprudence
• Index: Law

From the ancient beginnings of Western legal tradition, law has been conceived as traversed by a fundamental tension between power (will) and reason. This volume examines the tension between these two poles, 'ratio and voluntas' in modern law. Part I focuses on three instructive phases in the history of the law's ratio. Part II examines the way legal scholarship, especially doctrinal research (legal dogmatics), can and should contribute to the law's coherence. Part III explores the role of constitutional law in managing the tension between law's voluntas and ratio. The final chapter discusses the implications the growth of transnational law may have on the relationship between ratio and voluntas. The study builds on the views of the distinctive features of the ideal-typical mature modern legal system as presented in the author's previous work, Critical Legal Positivism (Ashgate 2002).

PART I
The Historical and Cultural Dependence of the Law’s Ratio

Chapter 2
The Traditions of Law

The Time and Space of Modern Law

For Immanuel Kant (1724–1804), time and space were transcendental and ahistorical preconditions of human experience and cognition. However, they have not been spared the historicisation of Kant’s epistemology: conceptions of time and space, the ways of experiencing them, have turned out to be historically contingent, dependent on their cultural and societal environment. They are cultural patterns, functioning in the minds of social actors like Émile Durkheim’s (1858–1917) social facts.1

The evolution of conceptions of time and space is often presented schematically, as subsequent stages. Such schemes, of course, inevitably ignore historical multiplicity and variety, but, still, they serve to relativise our present cultural patterns, which we are often inclined to take for granted. Otthein Rammstedt has distinguished between diverse forms of time consciousness and experience, which follow each other and are tied to the basic structures of society (Rammstedt 1975; see also Rosa 2005, pp. 26–27). In line with many other discussants, Rammstedt has characterised the pre-modern conception of time as cyclical. The course of history was seen to possess a revolving nature: historical phases reverted to their starting-point, and everything began anew. By contrast, in the modern view history is conceived of not as a rotating movement but as a linear process. The linear conception of time distinguishes between the past, the present and the future as the temporal horizons towards which social action is oriented. Reinhart Koselleck (1923–2006) argued that in the Western cultural sphere, the space of experience (Erfahrungsraum) and the horizon of expectation (Erwartungshorizont) were detached from each other during the time span between 1750 and 1850. Christianity had already adopted the linear conception. However, in Christianity the future is predetermined, it has its end-point. Only the dissolution of this predetermination opened the future or, in Koselleck’s terms, the horizon of expectation (Koselleck 1984, pp. 349ff.).

Not only conceptions of time but ways of experiencing space, too, undergo change. Some theorists speak of specific time-space regimes, referring to the intertwinement and interaction of temporal and spatial perceptions (Rosa 2005, pp. 61–62). What is crucial in the modern conception of space is the extension of space beyond the locale, the interaction between immediately experienced space and merely imaginable space. This development, the detachment of space and locale, also opens up the possibility to enter into social relations not only with those in one’s immediate presence but also with those absent. The social environment of modern individuals, their spatial horizon, reaches out beyond the village and neighbourhood (Schroer 2006, pp. 110–119).

Modern conceptions of time and space also find their expressions in law, as cultural preconceptions that define the way legal actors approach the world. Modern law is predominantly positive law, constantly changing and changeable law, where the legislator is the primary agent of change. A corollary of the law’s positivity is its potential instrumentalisation for the political aims of the legislator. The law’s positivisation and instrumentalisation manifest a linear conception of time where the future is seen as open-ended and malleable. The modern conception of politics is based on specific temporal assumptions, which also leave their mark on the law as a political instrument. According to this dynamic conception of politics and history, society is never finished but rather constitutes a continuous political project, always setting up new tasks. Legislation is seen as an instrument in the service of this unending political project. It is not a final act but a device for managing social development and, as such, in need of constant re-definition.

Thus, modern law and legal actors (especially the legislator) adopt the linear, progressive conception of time where the future always differs from the past. In turn, modern law’s spatial horizon exceeds the narrow confines of the immediate locality. The law’s instrumentalisation is not only linked to changes in time patterns, but also manifests the widening of space: instrumentalised law regulates relations between those absent, serves systemic integration, transpiring through objectified economic and administrative mechanisms, instead of social integration through the face-to-face interaction of members of society.

However, a word of caution is appropriate when discussing the imprint on modern law of the linear conception of time and the extension of space. Not all areas of law are similarly affected. In his Theory of Communicative Action, Jürgen Habermas instructively distinguishes between law as a medium and law as an institution. Law as a medium is a servant of the economic and administrative sub-systems and assists these to accomplish their systemic functions. Law as an institution, by contrast, is an inhabitant of the life-world (Lebenswelt) of the members of society and serves to strengthen its morally-integrated communicative structures (Habermas 1989a, p. 365).2 Economic and administrative law are typical instances of law as a medium, whilst law as an institution is epitomised by the core areas of criminal and family law. Modern law’s policy orientation comes to the fore in those branches that represent law as a medium. But there is more to modern law than just its instrumentalised departments. Law as an institution still addresses face-to-face social intercourse, and lacks the conspicuous purposive and future-related features typical of law as a medium.

Temporality and spatiality can be approached, not only as cultural patterns of experiencing time and space, but also as structural qualities of society: as durations and rhythms, boundaries and cross-boundary connections. Societal modernisation is characterised by temporal acceleration (Rosa 2005) and spatial expansion, the conquest of ever-wider space (Schroer 2006). Modern society is a functionally differentiated society, and acceleration and expansion as general temporal and spatial characteristics of modernisation assume different manifestations in different sub-systems. The law can be examined as one of these sub-systems.

Societal acceleration affects law, too. The instrumentalist legislator, carrying out the political project of social engineering, maintains constant legal change. But the law’s relation to societal acceleration is not unequivocal: the law also includes features tempering change, slowing down the velocity of time. A characteristic of modern law is not only changeability but rather a dialectic of changeability and stability.

The law’s tasks in the modern political project require law’s malleability. Under conditions of societal acceleration, the pace of legislative change must also intensify. But as has been emphasised by, among others, Niklas Luhmann (2004, pp. 142ff.), one of the law’s functions – if not the function – is to generate stability. In legal doctrine, the prerequisite of stability, of relative unchangeability, has received multiple expressions. In the early versions of the rule of law doctrine and the Rechtsstaat theory, the very concept of law included not only the criteria of generality and abstraction, but also that of permanence. Stability is closely linked to legal certainty: only relatively permanent norms can create the constancy presupposed by long-term planning in social sub-systems, such as the economy, or – for that matter – in the everyday life of individuals and families. Protection of legitimate expectations is one of the major substantive principles of EU law; indeed, many national legal orders have adopted it as well. This principle offers protection, not only against abrupt shifts in the practice of administrative authorities, but also against legislation-induced alterations in the legal environment. However, at issue is not absolute protection, but its extension expresses the fragile balance between stability and changeability.

The respective significance of, and the optimal balance between, changeability and stability is not identical throughout the law. Changeability is needed where the law is employed as a medium of social management: in administrative and tax law, environmental law, and so on. By contrast, the pace of change is slower in fields where the law functions as an institution strengthening the moral structures of the life-world and contributing to social integration, such as family law. Law as a medium and law as an institution manifest different temporalities.

Another way of pinning down the varying relationship between permanence and change in law is to distinguish between framework regulation and interventionist regulation of, say, the economy. A certain constancy in the framework regulation of property and contract is indispensable for the economic system. Through interventionist regulation, the legislator aims to correct functional disturbances in the economic system and to compensate for their detrimental effects in other social sub-systems or in the daily life of members of society, in their Lebenswelt. The lifespan of such regulation is shorter than that of framework regulation.

Constitutional law plays a particular role in balancing the contradictory demands of legal stability and change. The relatively high degree of permanence expected of the constitution is already manifest in the procedure for its amendment; for instance, the requirement of a qualified majority, or acceptance by two subsequent parliamentary compositions, or by referendum. While these requirements aim at securing the legitimacy of the constitution and the political system, they also possess a temporal aspect, linked to constitutional stability. A standard modern constitution includes an organisational part and a Bill of Rights. Demand for stability arises both from the constitution’s role as a framework regulation of the political system (the organisational part) and from its intimate ties to fundamental principles of the legal order (the basic-rights part).

Viewing law as a multi-layered phenomenon sheds light even on the dialectic between change and stability. The rapid pace of change is a quality of the law’s surface, consisting of explicit, discursively formulated normative material; here, the activity of the legislator maintains continuous movement. The briskness of change is tempered by the deeper layers of the law; they change too, but according to a slower rhythm. The legislator’s omnipotence does not extend to the legal culture, which changes only gradually, as a joint effect of legal practices. The particular role of the legislator in the legal and political system, as it were, forces it to embrace the ideology of societal progress. The legal culture that governs the interpretation and application of instrumentally-conceived legislation offers a conservative counterweight to the legislator’s radicalism. This aspect of modern law’s temporality can be expressed in terms of voluntas and ratio, too. The voluntas of the legislator engenders surface-level turbulence, which is calmed down by the ratio sedimented into the law’s cultural layers. The law’s voluntas and ratio obey divergent rhythms.

Nonetheless, legal change extends to legislation’s legal-cultural underpinnings and even to what can be termed the law’s deep culture: its fundamental normative principles and the categories that enable legal thinking, argumentation and regulation in the first place. If in general it is justified to talk about different historical types of law and about, for instance, pre-modern law’s transformation into modern law, justification derives from fundamental changes in the law’s deep culture. But the pace of deep cultural changes is slow; the pace of deep culture measures the law’s longue durée. The centuries-long history of the emergence of modern law, beginning with the revival of Roman law during the twelfth and thirteenth centuries, is a history of the gradual formation and stabilisation of its conceptual, normative and methodological infrastructure.

At its surface level, modern law itself defines its time and space. In Hans Kelsen’s pure theory of law, time and space are present as dimensions of the validity of legal norms (Kelsen 1989, p. 198ff.). The law’s temporal and spatial coordinates are decided by the legislator. Laws are issued to be in force until further notice or for a limited period – indeed, the legislator may even accord them retroactive effect.

The temporality of modern law should be explored as a quality, not only of the legal order and its layers, but also of the legal practices producing and reproducing this order. Lawmaking and legal proceedings in courts have their distinctive durations. These are in part legally determined; the procedural rules of parliament, for instance, may define intervals between readings of a bill. However, the pace of legal procedures is also affected by their discursive requirements. The lawmaking of a democratic Rechtsstaat takes time, as is made particularly clear by Habermas’ ideal model of democratic lawmaking.

This model includes diverse forms of communication. Lawmaking begins with pragmatic discourses focusing on ends–means relations. If the values underpinning the ends of a legislative reform turn out to be obscure or controversial, the process continues with ethico-political discourse, aiming at a value consensus. If interest conflicts prevent a consensus, then consensus-oriented discourse must be replaced by compromise-oriented negotiations. At the next stage, the moral acceptability of values and interest compromises is tested in moral discourse. Finally, juridical discourse is needed to monitor the consistency and coherence of the legal order (Habermas 1996, pp. 157–168). Contemporary society is characterised by increasing complexity, as well as by growing cultural pluralism and the differentiation of particular interests. In these circumstances, finding an optimal regulatory solution, or defining a common value basis and reconciling divergent interests, are increasingly demanding and time-consuming tasks.

In turn, the pace of legal proceedings in courts is governed by procedural requirements manifesting the principle of impartiality: all parties are allowed to present their version of the facts and their interpretation of the relevant norms. The objective of legislative and adjudicative procedures is to ensure that laws and rulings as legal-institutional speech acts meet the criteria of normative correctness. But this also makes them rather ill-suited to the general tendency of societal acceleration, which seems only to gain in strength in the development of modern society.

An integral aspect of the temporality of legal practices consists in how they relate to the time horizons of the past, the present and the future. As will be discussed below in this chapter, legal practices differ in, for instance, their relation to tradition.

Thus, modern law has its time. However, this is not singular but plural time: it varies in different branches and at different levels of the legal order, while legal practices, too, display their distinct temporalities. Modern law occupies its characteristic space as well. Its privileged space has been that of the nation state. Modern law and the nation state have in many ways been dependent on each other. The legislator of the nation state has been the central legal actor of modern law, of which legislation is the central source. At the other end of its span of functioning, the law has been applied by nation-state courts and executed by the state’s coercive machinery. The nation state, in turn, has needed the law as a means of organising itself and implementing its policies. Modern law’s links to the nation state account for its positivity and increasing instrumentality. The voluntas of the law has been, first of all, the voluntas of the legislator of the nation state.

The emergence of nation states expresses the extension of society’s spatial horizon beyond the immediate locality. The nation state both manifests and facilitates entering into social relations beyond the narrow confines of a particular locale. This accomplishment of the nation state is largely due to the law, which regulates the relationships of, not only those present, but also those absent from each other.

The modern nation state is a territorial state. State territory belongs, along with state people and state power, to the three characteristics of the standard concept of the state, espoused by, for instance, the German late constitutional school of public law. Nation states are separated by boundaries which also define the territory for each state’s sovereignty. The space of the nation state, delineated by state boundaries, is exclusive and excluding: a sovereign state power does not accept another sovereign state power in its territory. The aspiration of the modern nation state is to monopolise all political power in its territory. It abolishes pre-modern political pluralism, which allowed for several power centres to wield their authority at the same time and in the same territory: the king, the Church, the lord of the manor, the town … (Schroer 2006, pp. 189–193).

The sovereignty of state power implies sovereignty of the national legal order. The law’s space is as exclusive and excluding as that of the nation state; the national legal order does not accept another rival or overlapping legal order in its territory. And just as the modern nation state puts an end to pre-modern political pluralism, modern law eliminates pre-modern legal pluralism: canon law, feudal law, manorial law, borough law, royal law, mercantile law, and so on (Berman 1983).

The interdependence of modern law and the nation state has, of course, left its trace on modern legal theory. In his pure theory of law, Kelsen went as far as to hold state and law to be identical. In his view, the state is merely a personification of the legal order, while the concept of the state was a similar legal fiction as subject concepts in general. Kelsen had studied under the influence of the German late constitutional school. Georg Jellinek (1851–1911), Kelsen’s teacher, had embraced the definition of the ‘state’ through the three elements of state territory, state people and state power (Jellinek 1914, pp. 394ff.). Kelsen argued that none of these elements can be conceived independently of the legal order. State territory equals the legal order’s territorial scope of validity; state people its subjective scope of validity; and state power its efficacy (Kelsen 1989, pp. 286–290). Adding the temporal dimension of the legal order’s validity, we arrive at the following definition: ‘Thereby the state whose essential elements are population, territory, and power is defined as a relatively centralised legal order, limited in its spatial and temporal sphere of validity, sovereign or subordinated only to international law, and by and large effective’ (ibid., p. 290). Following such a definition, the concept of the Rechtsstaat loses its independent significance: if the state is identical with the legal order, every state is a Rechtsstaat.

Kelsen conceived of the legal order as a hierarchically organised whole, where lower-order norms derive their validity from higher ones: by-laws from laws, laws from the constitution ...

Table of contents

• Cover Page
• Half Title Page
• Title Page
• Copyright Page
• Table of Contents
• Series Editor’s Preface
• Preface
• Prologue
• 1 Two Challengers of Normative Legal Scholarship
• Part I The Historical And Cultural Dependence of the Law’S Ratio
• Part II Legal Scholarship and The Coherence of Law
• Part III Ratio and Voluntas in Constitutional Law
• Epilogue
• Bibliography
• Index