Axiological Dilemmas
3.2. Can a lawyer or a judge reject the existence of values? The “anti-axiological” perspectivevalues? The “anti-axiological” perspective
3.2.1. The extreme anti-axiological position
Can nihilism,5 a radically sceptical stance in the light of which values do not exist, be reconciled with fundamental assumptions concerning law and the lawyer’s or judge’s work? Nihilism, by postulating the rejection of the idea of values, but also postulating “life without dogma,” is at odds with the constitutive traits of law according to which the actions of attorneys, judges, etc. are at least determined by binding legal norms. In other words, nihilism embodies the antithesis of the obligational character of law, thus a lawyer or a judge cannot be a nihilist, at least in the perspective of their role in the process of the application of law.6 So, the question of a whether a lawyer or a judge could be a nihilist would have to be answered “no,” even if law were held as a closed autopoietic
(self-4 These values may also include the scientific character of law, logicality of legal reasoning etc.
5 The 19th-century nihilism developed within philosophical positivism and was represented, for example, by E. Renan. However, its roots are to be found in three theses formulated in antiquity by Gorgias in the dialogue: On Nature 1) nothing exists; 2) even if something exists, nothing can be known about it; 3) even if something can be known about it, knowledge about it can’t be communicated to others. Cf. Władysław Tatarkiewicz, Historia filozofii, vol. I (Warszawa: PWN, 1998), vol. I, p. 39 and vol. III, p. 129.
6 As regards the concept of a lawyer’s role see Kaczmarek, Tożsamość prawnika, pp. 13 et seq.
generating) system apart from any external, including axiological, justifications.7 This is the case since nihilism negates every concept of systematism – including that in which the system per se is understood as a value.
Emotivism is also a pronounced anti-axiological current, which, on the grounds of empiricism and logic, assumes that valuations only express feelings (approval, disapproval) in response to other people, events, opinions, etc.8 So the original dilemma concerning the modus existendi of values decided by a lawyer or a judge in favour of emotivism means the adoption of a radically reductionist and subjectivist concept of those values.9 However, unlike nihilism, the emotivist view does not necessarily negate the constitutive qualities of law, for it may be recognised that every valuation is only the expression of emotions
“similar to an approving burp after a good dinner”,10 and at the same time holds a thesis, drawn from empirical premises, about the existence of law. Thus, it is possible to be an emotivist lawyer on the grounds of the anti-axiological system.
Emotivism influenced the philosophy of the development of law, especially by corresponding with the ideas propounded by Scandinavian legal realism.11 This current, like other realist trends, rejected all “metaphysical speculation”
on law, reducing the basis of law to psychologically conditioned, observable repeatability in human behaviour.12 In the light of these assumptions, A. Hägerström, founding father of the current, denied the existence of objective values.13 Also, A. Ross symptomatically claimed that reference to justice in a discussion is like banging a table with a fist in order only to elevate someone’s subjective expectation to the rank of absolute value.14 Simultaneously, the
7 The theory of the autopoetic system was developed, for example, by Nilkas Luhmann. Cf. Ryszard Sarkowicz, Jerzy Stelmach, Filozofia prawa XIX i XX wieku (Kraków: Wydawnictwo Uniwersytetu Jagiellońskiego, 1998), p. 159.
8 Peter Vardy, Paul Grosch, The Puzzle of Ethics (London and New York: Routledge, 2016), p. 92.
9 Iwona Bogucka, Tomasz Pietrzykowski, Etyka w administracji publicznej (Warszawa:
Wydawnictwo LexisNexis, 2009), p. 49.
10 Cf. Richard H. Popkin, Avrum Stroll, Philosophy Made Simple (London: Elsevier, 2014), pp. 54–55.
11 The chief representatives of this current were: V. Lundstedt, K. Olivecrona and A. Ross. Cf.
Sarkowicz, Stelmach, Filozofia prawa XIX i XX wieku, p. 114.
12 The realistic approach also includes the psychologism of L. Petrażycki and American legal realism, however the views of Scandinavian realism allow for an authoritative explication of the anti-axiological standpoint. For instance, in the case of American realism it is more complicated because, among other things, the pragmatism at its core (in James’ form), despite its declared empiricism, assumes the influence of values on the process of cognition. See: Władysław Tatarkiewicz, Historia filozofii, vol. III (Warszawa: PWN, 2001), p. 199. Cf. Jerzy Stelmach, Współczesna filozofia interpretacji prawniczej (Kraków: Wydział Prawa i Administracji Uniwersytetu Jagiellońskiego, 1995), pp. 39–40.
13 Cf. Sarkowicz, Stelmach, Filozofia prawa XIX i XX wieku, p. 113.
14 Alf Ross, On Law and Justice (London: Stevens & Sons, 1958), as cited in: Bogucka, Pietrzykowski, Etyka w administracji publicznej, p. 50.
realists, including the Scandinavians, studied the normativity of law as a certain cognisable phenomenon inter alia in the psychological, social, or institutional (court), dimensions. Therefore, a realist lawyer or a judge adopting an anti-axiological and anti-metaphysical stance when facing a “preliminary dilemma,”
will consistently invoke the concept of law as a cognisable “psychological fact”
or “social fact.”15
In turn, a normativist lawyer or judge will support the anti-axiological view on totally different grounds. Normativism here is understood according to H. Kelsen’s Reine Rechtslehre concept, which is a radical variant of continental legal positivism. In the light of key normativist theses, law is a hierarchical, autonomous and self-organising normative system.16 Hence, it is qualified solely to the sphere of duty (Sollen) and is separated from the empirically cognisable being (Sein).17 Simultaneously, in Kelsen’s theory an ordinary norm is binding as long as it belongs to the system of law, which means that it does not require any external, (including axiological) justification. However, the problem of values in the theory being discussed is revealed in the perspective of the “basic norm”
(Grundnorm), from which the binding character of the whole system follows.
Whereas in the case of a dynamic system the anti-axiological stance is consistent, in a static one, according to R. Sarkowicz and J. Stelmach, Kelsen “nears legal natural solutions,”18 for a dynamic system is based on formal competence relations between norms, and, in its basic norm, expresses no objective values or positive law content.19 Contrary to this, in static systems the relations between norms relate to content, and Grundnorm has the ultimate value.20 As is known, Kelsen’s legal system was originally dynamic, but the philosopher subsequently stated that there are also static elements which together form a mixed system.21 Despite the controversy related to the latter perspective, a normativist lawyer or judge will regard their dilemmas as formal and material conflicts of duties, and not of values. Axiology, being incongruent with the paradigm of “pure law theory,” will be redundant in corresponding legal thought, even at the level of discussing the content of constitutional legal rules.
15 In the Polish history of law, Kelsen’s original standpoint, according to which the law is a dynamic normative system, was opposed, i.a., by. Z. Ziembiński. Cf. Zygmunt Ziembiński, Wartości konstytucyjne (Warszawa: Wydawnictwo Sejmowe, 1993), p. 8.
16 Cf. Sarkowicz, Stelmach, Filozofia prawa XIX i XX wieku, p. 47.
17 Stelmach, Współczesna filozofia interpretacji, p. 38.
18 Sarkowicz, Stelmach, Filozofia prawa XIX i XX wieku, p. 48.
19 Ibidem.
20 Ryszard Sarkowicz, Jerzy Stelmach, Teoria prawa (Kraków: Wydawnictwo Uniwersytetu Jagiellońskiego, 1996), p. 181.
21 Sarkowicz, Stelmach, Filozofia prawa XIX i XX wieku, p. 47.
It has to be remarked that taking an extreme anti-axiological stance does not free a lawyer from dilemmas concerning their choice of the preferred concept of law, which may negate the existence of values due to a realist or normativist approach. Basically, a lawyer does not need values either when they reduce law to empirically cognisable regularities of the world or when they understand law as pure duty. Therefore, the anti-axiological dilemmas identified are conditioned to some extent by the thesis deduced from D. Hume’s idea of the separation between the spheres of being and obligation (mutatis mutandis reflected in the distinction between Sein and Sollen in Kelsen’s theory).