Legisprudence

Practical Reason in Legislation

Luc J. Wintgens

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317105909
• Edition: 1
• Topic: Diritto
• Subtopic: Giurisprudenza

This book establishes legisprudence, in contrast to jurisprudence, as a legal theory of rational law-making. It suggests that by rejecting the common wisdom about the nature of political law-making, legislation could be improved and streamlined. Using the methods, theoretical insights and tools of current legal theory and philosophy of law in a new way, the book suggests the creation of law by legislators rather than government. Raising new questions and problems of the validity of norms, the book opens a new perspective on legitimacy of norms, their meaning and the structure of the legal system. In distinguishing legitimacy and legitimation of law, the book ventures into the philosophical roots of legal theory and suggests the articulation of a new conception of sovereignty. In shifting the emphasis to the position of the legislator and legislation, this book opens a number of new insights into the relationship between legislative problems and legal theory. Its main claim is that legislation should be justified by the legislator.

Chapter 1
The Metaphysics of Legalism

Introduction

In an attempt to characterise the nature of Modernity, Hans Blumenberg (1983) has argued that there is something irreducibly original about it, while Karl Löwith (1970) claims that its intellectual Gestalt is a secularisation of Christian theology. Both seem to have it at least partly right. Descartes’ cogito is prima facie an irreducible novelty, while ‘sovereignty’ in a Modern context is no doubt related to late mediaeval divine omnipotence. Following the latter, the claim that Modernity is a radically new period in history, in that it comes up with new problems, needs to be qualified. It is a different way of ‘understanding understanding’, a new form of consciousness of the perennial problems of philosophy.

As far as legalism is concerned, which is the main issue to be explored in this chapter, it is usually related to Weber’s articulation of the relation of capitalism and Protestantism (Weber 1992). On his contraction of legality and legitimacy, Weber is held to be the initiator of legalism in that all norms that have the form of rules are therefore legitimate. It combines the rational organisation of labour with rational book-keeping, both of which are freed from any religious or superstitious beliefs. For capitalism to flourish, a stable and predictable legal system is needed. The easy conclusive step would be to assert that capitalism is ‘caused’ one way or the other by Protestantism, the combination of which calls for a rational legal system consisting of predictable rules. Legalism can be characterised as ‘the ethical attitude that holds moral conduct to be a matter of rule following and moral relationships to consist of duties and rights determined by rules’ (Shklar 1986: 1), no matter where these rules come from (Bankowski and Schafer 2007: 34). I will most of all dwell on the first part of the expression, that is, that normativity is a matter of rule-following. The content of these rules and the determination of moral relationships as rights and duties require a different study which will be a matter for the future.

The main claim of this chapter is that legalism is not an invention of Modernity. On the contrary, it is a metaphysical concept that has its roots in late mediaeval theology. For legalism, it is rules that are important, not where they come from. From there it spreads into political and legal philosophy going along with both jusnaturalism and positivism.1 Far less is it the spin-off of positivism. The opposite is true. Whilst legalism may give rise to positivism, it is not, however, conceptually related to it.

I will not enter into the discussion sparked by the Weber thesis. Protestantism and capitalism may have met upon some favourable historical circumstances, so that the former may have strengthened the influence of the latter, both combining into legalism.2 More interesting for our purposes however is the exploration of one of the basic roots of legalism, that is, nominalism.3 In this respect, I propose to explore nominalism as the metaphysical setting for legalism, in which mediaeval nominalism in both its philosophical and theological versions plays a key role.

Nominalism has many variants and articulations (Largeault 1971: 7–43). The revival of the interest in it, combined with its positive assessment since the middle of the last century, is at odds with the critical evaluation of nominalism as a degeneration from late mediaeval scholastics, more specifically Thomism.4

While the renewed interest in nominalism saw its importance in the focus on logic rather than metaphysics, Heiko Oberman has drawn attention to the fact that ‘Nominalism is not a doctrinal unity, but a common attitude, on some points at least, of remarkably different strands’ (Oberman 1960; see also Michalski 1927; Vignaux 1948). An aspect of this common attitude which is crucial is the interpretation of God’s omnipotence, from the thirteenth century onwards (Oberman 1960). This new interpretation had a particular influence on the position of the Church, as well as on Christian metaphysics. Protestantism, with legalism in its wake, may be considered a conceptual offspring of nominalism. What are usually held to be the characteristics of Modern philosophy as Descartes initiated it – individualism, rationalism and freedom – are actually products of late mediaeval theology in which nominalism takes root. They are, as I will argue throughout this chapter, conceptually related. In chapters 2, 3 and 4, I will come back to individualism, rationalism and freedom respectively and offer a contextualised interpretation of these concepts.

Nominalist Metaphysics

On a rough characterisation, a nominalist metaphysics deals with language and discourse while realistic metaphysics deals with things themselves.5 The latter therefore claims to provide a direct access to reality while the former only provides an indirect one; I will call them ‘direct access’ and ‘indirect access’ theories respectively. The difference between direct and indirect access theories is the location of concepts, that is, as being respectively outside or inside the mind. This involves adopting a metaphysical position in that it affects the whole of reality and its ontological status.

Like its realist mediaeval forerunners, nominalism considers the relationship between theology and philosophy to be a hierarchical one. In this respect, philosophy includes the belief in God as the highest cause, that is, the source of being of all beings. The credo in unum Deum omnipotentem is capable of different rational explanations, depending on the relationship between intellect and will in the Supreme Being. The realists’ interpretation boils down to God’s unique access to the lex aeterna containing the order of the world. Upon revelation, God has made part of the lex aeterna accessible through the lex divina expressed in the Scriptures.

On Aquinas’ view for example, ens et bonum convertuntur: what is is at the same time what it ought to be.6 This is at its maximum in God or the Ens realissimum on whom all being depends. Any being forms part of the totality, the relation with which provides its telos. The order of totality is the harmony God created. He does create what he creates because it is the best possible world he could create. Whether he created the world according to a first plan or lex aeterna, or whether he first developed a plan on the basis of which he then started creating, is of the utmost philosophical importance.

If the order of the world coexists with God it is therefore true. What matters in a realist – mainly Thomist – metaphysics is that God acts according to a plan that, logically speaking, precedes action. If God creates the world without a preexisting plan, or when he acts according to a plan resulting from his own will – this is roughly speaking the version adopted in Spanish Scholastics in the sixteenth century – the status of reality is fundamentally different. Creation without a preexisting plan is generally speaking what characterises the nominalist approach.

A fundamental metaphysical issue related to this point concerns the relationship between God’s intellect and his will. It is a philosophical evergreen par excellence: is what God orders good because he wants it or does he order it because it is good? This problem is known as the Euthyphro problem (Plato 1943: 35 ff.) to which I will return later in this chapter. This question again articulates an aspect of the difference between nominalism and realism. If God wants what is good, he wants it because it is good. This is what the realist position comes to. If, on the contrary, what God wants is good, and it is good because he wants it, we face the nominalist position.

Apart from the distinction between direct access and indirect access theories, and the Euthyphro problem, there is yet another way of characterising the differences between realism and nominalism. This consists in saying that what the faithful believes in – that is, God – can turn into the object of rational thinking. The faithful believes in God as a matter of revelation and tradition, including the authoritative interpretation of the content of faith by the Church. Another perspective is that the faithful believes in God and recognises his dependence upon God as a matter of irrational submission to the source of all Being.

Both positions can be combined with a rational inquiry into the nature of God. This is different from the religious perspective and the personal relationship this involves between God and the faithful. From the nominalist perspective, the two perspectives are not only compatible; they are mutually dependent. The realist may however object that an inquiry into faith apart from authority and tradition is heretical.

What characterises nominalism at this stage is the articulation of thinking as a purely human experience. It involves the unfolding of the rational capacities of a limited mind. It is limited because it is created. Without creation it could not exist unless it is God’s; and because God is unique, only he can be as he ought to be, that is, perfect. Nominalist metaphysics therefore takes a critical attitude toward human reason, the speculation of which in scholastics is no longer considered rationally warranted. The revealed truth of Christianity in other words should no longer be obscured by speculation.

Nominalism involving the human perspective in the metaphysical project does not, however, therefore alone slip into subjectivism. Both realism and nominalism stick to the objectivity of ideas. Realism is not more objective because it holds that concepts exist ‘out there’. When focusing on man as a knowing agent, the distinction between both can be considered a matter of emphasis or simply a matter of belief.

In this respect, Aristotle’s realism heavily stresses the belief in the existence ‘out there’ of universals, while the extension of what is ‘out there’ is much more limited for nominalists. The objectivity of concepts, however, is not affected upon their location inside or outside the mind.

Upon this general outline of realism and nominalism, I will now enter into more detail in order to show how nominalism operates as the metaphysical basis of legalism. In the following pages, I will begin by exploring in greater depth the philosophical version of nominalism and clarify the status and role of ‘distinctions’ and ‘universals’ as they operate in nominalism. After pointing to some ontological consequences of this, I will turn to the theological version of nominalism. This is not to say that there are two different versions of nominalism, one philosophical, the other theological. Rather, nominalism consists of a differentiation of two perspectives on reality, one philosophical (or logical, as we will soon see), and the other theological. Because I hold that nominalism like realism is a metaphysics, and hence deals with the totality of the world, including its own status and God, both perspectives are not mutually exclusive.

Philosophical and Theological Version of Nominalism

Philosophical Version of Nominalism

The combination of Aristotle’s problem of the unification of the one and the multiple with Christian revelation opened up a new type of questioning after the high Middle Ages: is there more in reality than our experience of the multiple? (Aristotle 1984c: 1056 b, 3 ff.). The negative answer to this question is the hallmark of nominalism’s criticism of mediaeval realism. It prepares Descartes’ search for certainty, that is, the certainty that reason provides without the help of Revelation, with a critical investigation of the arguments which show how God, Being, the world and the human person form a unity. This position shows nominalism worthy of the qualification ‘metaphysics’.

The issue may have been obfuscated by the fact that many scholars have considered nominalism merely as a matter of logic. There is a good deal of truth in that. It leaves however unanswered the question as to why philosophers, who are as a matter of fact first of all theologians, would all of a sudden begin to focus exclusively on logic. Logic on its own has nothing ‘metaphysical’ in that it gives a rather thin view of reality. It would be silly to believe that mere logic was going to explain the world as it was, including the position of God. The position of God as the omnipotent Creator of the world however was at stake in the confrontation with the universal ideas or essences that were imported from Greek philosophy. ‘Divine freedom’ and ‘universal ideas’, so the nominalists thought, were at odds, or at least difficult to reconcile.

The first attempt at a synthesis of the stoic inheritance with Christian faith has Augustine’s Neoplatonic stamp. The stoic recta ratio governing the world is reinterpreted as the Christian lex aeterna existing in God’s mind.7 On the Neoplatonic basis of this thought, human understanding of the world involves a divine illumination of the human intellect or a participation of the human mind in the divine intellect. What this approach, in short, suggests is that we can look upon the world through God’s eyes. The Augustinian view on the question of universals is that they are located in God’s intellect in which we participate.8 Under this doctrine, divine freedom in creation is absolute, not bound by any antecedent form or norm.

The Augustinian theory, in combination with the rediscovery of Aristotle in the West in the early thirteenth century, is critically interpreted by Aquinas. This critique strongly resembles Aristotle’s appraisal of Plato; that is, human knowledge addresses the material world. Universals or ideas do not exist separately from the world, as Plato holds, and the understanding of which follows does not exist separately from participation in or illumination from God’s mind, as we read from Augustine. What there is to know, according to Aquinas, is the universal, which is only intelligible by the method of abstraction. The universal in each thing represents the permanent form that pre-exists in God’s mind. According to Aquinas, our intellect only understands by abstracting this form, universal, or essence, upon an investigation of nature, from the material thing which leads back to divine unity. Beings thus exist as materia signata, matter marked by the form resulting in individuation.

In direct relation with Aquinas, Duns Scotus (1893: d. 3, q. 6, n. 1) argues that the essence or universal is extended into the individual and is seized by intuition. A universal is differentiated, according to the process of haecitas or individuating difference, into different individuals. This ontology preserves the dynamics of Being in terms of ‘becoming’ as in Aristotle’s metaphysics. It suggests however that intellect is related to the individual rather than to the universal.

The core of Scotus’ version is the ontological passing over of a common nature into an individual. Intuition reveals a number of universal formalities inside individual things, upon which the unity of the universe is guaranteed in its dependence on God, from where these formalities stem.

For all the realism that is his, Scotus brings to the fore an issue of great importance in connection to nominalism. In his interpretation of the classical unity of the four causes, he introduces the ‘Christian cause’ of the universe, that is, the omnipotent God. Reserving a further exploration for later in this book, it is crucial to notice that in his omnipotence God can create matter without form. Matter and form could exist separately de potentia absoluta Dei (if God wanted it). This is not necessarily a conclusion based on experience. In other words, it need not be actually the case that both are separated. It however shows the possibility of a different world, containing other beings ordered in another way.

Scotus’ position is focusing on things, on what there is, even if only hypothetically. This metaphysical position is fine-tuned from a logical point of view by Ockham. Under the latter position, it is no longer possible to focus on things directly. Any rational discourse in other words must be preceded by a rational critique of discourse. On this point, Ockham’s ‘second’ version of nominalism respects Abelard’s ‘first’ version. Ockham’s logical theory, as we will soon see, carries with it a metaphysics. It explores not only what there is but also what reality could be if God had wanted it that way.

Ockham’s rational critique of human discourse explores conditions of possibility. The investigation of the conditions of the possibility of rational discourse is a matter for philosophy, under which access to reality is no longer direct but indirect. It is, I venture to say, an exercise of Kantian transcendental philosophy avant la lettre. This crit...