Right and Prejudice. Ashgate 2004.

Jarkko Tontti: Right and Prejudice – Prolegomena to a Hermeneutical Philosophy of Law. Ashgate Publishing, Aldershot 2004.

ISBN: 0 7546 2397 1. Publication Date: 06/2004. Number of Pages: 210 pages. Available in Hardback only. Book Size: 234 x 156 mm. British Library Reference: 340.1. Library of Congress Reference: 2003056925

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Reviews

’The originality of [Tontti ’s] thesis, when compared to classical thinkers like Ricoeur and Gadamer, can hardly be overestimated. His claim is furthermore presented in such a way that it is itself open to criticism and so includes conflict in the very core of his own work.’ Professor Luc J. Wintgens, European Academy of Legal Theory, Belgium

’…bold and powerful…Tontti writes with clarity and passion… a challenging intervention in jurisprudence.’ Adam Gearey, The Law and Politics Book Review January 2005.

’…there is much of value in Tontti’s book for a theoretically engaged reader…His critical hermeneutic scheme, with consideration of conflict, narration, faith and suspicion, provides rich material for subsequent theorists.’ Griffith Law Review

Kaarlo Tuori: ’The Law and its Traditions’ in Wahlgren, Peter (ed.): Perspectives on Jurisprudence. Stockholm 2005: 489-504.

Charles Nunes Bahia: Hermenêutica jurídica heideggeriana? Um convite à reflexão proposta por Jarkko Tontti.

Christopher Walshaw: Interpretation Of Statutory Rules As Application: A Legal Hermeneutics

CONTENTS

INTRODUCTION

Part One

Hermeneutical Philosophy as Dialectics without a Synthesis

I – Early Methodological and Epistemological Aspirations

II – The Turn to Being

III – Nihilistic Vocations

IV – Dialectics of Explanation and Understanding

V – Narrative Structures of Texts and Identities

VI – Dialectics of Tradition and Critique

Part Two

Ontology – Being and Law

I – Being and Law – Yearn for the First Philosophy of Law

II – Time and Law – Dialects of Past, Present, and Future

III – Conflicts of Interpretations

IV – The Future Justice of Law – Communitas fraternitatis

Part Three

Epistemology and Methodology – Knowing and Doing Law

I – From Ought to Ought

II – Playing the Law – From Faith to Suspicion

III – Saying the Law – Right and Prejudice

INDEX

BIBLIOGRAPHY

INTRODUCTION

In the consulship of the same Decius the same Emperor sent an edict to Athens

commanding that no one should teach philosophy,

that the laws should not be interpreted,

and that there was to be no gaming in any of the cities.

Johannes Malalas

Chron. XVIII 451.16-19.

Immanuel Kant’s three critiques have dominated the discourses of philosophy for a long time. Similarly, in the field of law many or even most theoretical discussions have their origins – consciously or unconsciously – in Kant. Most schools of thought within legal theory can be classified according to which of the Kant’s critiques they consider to be the most appropriate in scrutinising that peculiar thing called law. The currently prevailing answer is of course the first Critique, Kritik der Reinen Vernunft. As is well known, however, Kant’s first critique deals mostly with knowledge of the natural sciences and actually has very little if anything to do directly with law.[1] But the theoretical founding fathers of today’s mainstream legal theory and legal doctrine claimed that its starting points could be used analogically to establish a scientific attitude towards law. Hans Kelsen is obviously the best-known figure in this school of neo-Kantian legal thinking and his thoroughly Kantian Reine Rechtslehre still acts as a tacit reference point for most discussions of legal theory (and also, curiously, as a justification for the practical self-understanding of the nature of their profession for many legal practitioners and scholars). According to this account, law can be and must be approached as a phenomenon which can stand on its own. Non-legal elements must be removed from the pure science of law and an epistemology for studying and appropriating law as law – and only law – must be established.

Kant’s second critique, Kritik der praktischen Vernunft and the adjoining Rechtslehre have played a secondary role in these mainstream discussions in legal theory, even if in Rechtslehre Kant explicitly addresses law.[2] For neo-Kantian legal positivists law as a form of practical thinking was not of interest, they wanted to establish an epistemology of law, a theory of legal knowledge and a theory of legal science, with a strict theoretical starting point. Even if Kant’s moral philosophy as a whole continues to hold a central position in contemporary discussions, Rechtslehre has for some time been considered a less important part of Kant’s work. Legal theorists and philosophers have been interested in Kant’s moral philosophy more than in his philosophy of law.

Within certain contemporary currents of thought that want to label themselves critical (in the practical sense of this word) or post-modern, attempts have been made to work out schemes of legal thinking from the point of view of Kant’s third critique, Kritik der Urteilskraft. As Jean-François Lyotard has pointed out, Kant’s scheme in the Critique of Judgement does not apply only to the judgements about art (or the sublime in general) or about nature, but also to ethical judgements.[3] Following this starting point it has been argued that our knowledge of law also is derived from the ”productivity of particular cases”, and contingency is both the condition of a legal judgement and the limit of its reason.[4] In similar fashion to the neo-Kantian legal positivists, ’critical’ legal scholarship seeks analogical support from Kant.

Hence, if we remain within the Kantian scheme, the third critique seems to be the most promising route to scrutinise law. But the starting point of the present work is nonetheless that none of Kant’s three critiques is fully adequate if we try to think of law, or human sciences in general. They are all, including the third critique, lacking in one critically important aspect. In none of them is the fundamental historicity of existence and historicity as the condition of all acts of consciousness taken into account properly. Kant’s categories of reason – or categories of understanding (Kategorien der Verstand) – are ahistorical invariants and for him time has only one dimension and direction; it is a successive continuum. Consequently Kant represents the time of the reflective consciousness as a medium by which the states of the human consciousness follow each other in a calculable way.[5] With this purely quantitative view of time no adequate philosophy of law or philosophy of the human sciences in general is possible, because Geisteswissenschaften – the human or the interpretative sciences in the wide sense – deal with historical, qualitative, and heterogeneous matters.

This deficiency of Kant’s philosophy has had, as is well known, immensely important consequences for the modern thought, which is all too often limited to an ahistorical ’analysis’, incapable of discussing historicity and change seriously enough as theoretical topics. Already in the nineteenth century, however, G.W.F. Hegel, for whom the dialectical and historical development of reason was a necessary law of history, overcame the ahistoricity of Kant’s philosophy in a manner that is still in many respects adequate.[6] In his lectures on the philosophy of history Hegel summarised the theme in the following words:

Jede Zeit, jedes Volk hat so eigentümliche Umstände, ist ein so individueller Zustand, daß in ihm, aus ihm selbst entschieden werden muß, und allein entschieden werden kann.[7]

Human sciences deal with unique, singular matters and are operational in the field of historical, concrete (ethical) life, in Hegel’s terminology. Consequently only a particularistic and historical approach is acceptable within them.

Even if my starting point is in this sense more Hegelian than Kantian, I am not proposing a direct or straightforward return to Hegel or to any previous phase of Western thought as an answer to current problems. Philosophy must itself be conceived as being subject to time, and its preceding periods can only offer us limited – though important – resources concerning contemporary problems, for example in the field of philosophy of law.

The principal reason for rejecting Hegel’s philosophy (even though acknowledging its strengths compared to any Kantian approach) as a whole is that for Hegel dialectical development proceeds through what he calls an Aufhebung, whereas the starting point of this work is that dialectics should be seen as an ongoing temporal process without a synthesis. In the Hegelian account, by and large, each singular phenomenon has phenomenal relevance only within a more fundamental unity, i.e. as a unity of particularity and universality.[8] I propose, instead, that the opposing poles of dialectics should not be seen as disappearing through an Aufhebung, but they can be seen as remaining distinct and in a reciprocal relationship to each other. In this never-ending historical and interpretative process the dialectical relationship between opposites causes friction but is never resolved for good.[9] One important contemporary line of thought that seems to resonate with this account is Paul Ricoeur’s hermeneutical philosophy. His work as a whole can conceivably be seen as an attempt to develop dialectics without a synthesis that aims to avoid the problems of Hegel’s philosophy.[10]

Historically, however, it was Wilhelm Dilthey who inaugurated the most important developments in revising the Kantian and Hegelian legacy and Ricoeur’s hermeneutical philosophy also remains indebted to his thought in many respects. Dilthey suggested that the missing part of Kant’s philosophy, The Critique of Historical Reason should be written.[11] Following this unfinished work I propose, then, that we need a fourth critique to establish an adequate philosophy of law and philosophy of the human sciences. A cautious and thoroughly imperfect attempt is made towards this extremely difficult goal in the first part of the work. I try to work out some aspects of a critique of historical reason conceived as dialectical hermeneutics without a synthesis, and I suggest that it could be applicable in all fields of human science. Even if the primary focus of this work is within the philosophy of law, I have found it necessary to attempt to put forward a suggestion of my own in the field of general hermeneutical philosophy. This is due to a certain dissatisfaction I have experienced with the current state of mainstream hermeneutical philosophy, especially its inability to come to terms with the question of power and the closely connected themes of normativity and conflict.

Hermeneutical philosophy, according to my proposal, has two sides; it is both a transcendental philosophy – explicating the conditions of the possibility of understanding – and a methodological orientation, with which we can clarify the methods through which practical interpretative work is carried out, for example in legal decision-making or in the praxis of the Geisteswissenschaften. That is, with hermeneutics we can try to answer both the fundamental questions of the structure of human Being-there (and ensuing existential-ontological conditions of all interpretation) and explicate the more practical problems of interpretation. Parts one and two of the work deal mostly with topics of the first orientation (even if methodological hermeneutics is scrutinised also in the first part) whereas the third part of the work is more inclined towards the latter approach to hermeneutics. Even if the principal theme of the first part concerns general philosophy, nevertheless law is not completely absent from it either. The primary claim presented in the first part is that legal interpretation is a paradigmatic example of a hermeneutic enterprise through which it is possible to gain insights into the structure of all interpretative ventures.[12] Legal hermeneutics is not a derivative form of hermeneutical philosophy; its place is at the very heart of all hermeneutical thought and through it we can reveal important aspects of general hermeneutical significance that would otherwise remain unnoticed.

In part two of the work I search for an answer to the ontological question of law from the point of view of the dialectical hermeneutical philosophy outlined in part one. Following the path opened up by Martin Heidegger, I ask the meaning of Being of law. How is law? What is law’s mode of Being? That is, I try to work out aspects of a regional ontology of law seen as a linguistic human artefact profoundly bound to historicity and conflict. Through these key notions and with time as the general horizon to which all ontology is bound, I attempt to elaborate a plausible ontological account of law. In chapter two, ’Time and Law’, I examine the relationship of time and law and explicate pastness as the primary temporality of law. In chapter three, ’Conflicts of Interpretations’, I suggest an account that comprises conflict as a necessary ontological component of law and attempt to explicate how the tradition of law is composed as a field of production of legal knowledge where different interpretations contend to reach a position of hegemony. In chapter four, ’The Future Justice of law’, I examine the necessarily ethical base of law and explicate justice as the future mode of Being-there and the future mode of Being-of-law.

In part three I take the methodological and epistemological course and inspect a number of recent topics in legal theory through the general philosophical framework established in parts one and two. In chapter one, ’From Ought to Ought’, I attempt to develop aspects of a theory of legal knowledge starting from the criticism of the Is-Ought distinction. I maintain that all legal statements are normative and constitutive narrative presentations of their object. Legal knowledge is constructed in the field of production of law where different actors compete to promulgate and justify their proposal of the content of law, that is, how to interpret and apply the tradition of law here and now. In chapter two, ’Playing the Law – From Faith to Suspicion’, I put forward an interpretation of the different possible tasks of legal scholarship starting from the criticism of the distinction between so-called external and internal points of view towards law. In addition, I make an attempt to establish a theoretical ground for critical legal interpretation, developing further the theme of critical hermeneutics conceived as hermeneutics of suspicion as presented in part one. In the third chapter, ’Saying the Law – Right and Prejudice’, I suggest a hermeneutical and narrative model for conceiving the processes of legal decision-making, following the arguments presented in part one on narrative and dialectical hermeneutics without a synthesis.

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[1] Cf. KANT, Kritik der Reinen Vernunft, p. 18-19 (B XII-XIV) and 173 (A 94).

[2] KANT, Kritik der praktischen Vernunft, p. 16-18. KANT, Metaphysische Anfangsgründe der Rechtslehre, p. 37-38.

[3] KANT, Kritik der Urteilskraft, p. 15-19. LYOTARD, Le Différend, p. 174-180 and 189-199.

[4] GOODRICH & DOUZINAS & HACHAMOVITCH, Introduction, p. 1 and 24-26.

[5] Cf. NOUSIAINEN, Time of Law – Time of Experience, p. 26-31.

[6] In Hegel’s own time there was a widespread effort to open up new perspectives against the formalistic and abstract character of Kantian thinking. Besides Hegel himself this movement included authors like Schiller and Jacobi. KOTKAVIRTA, Practical Philosophy and Modernity, p. 71, 93-94 and 138.

[7] Hegel, Vorlesungen über die Philosophie der Weltgeschichte, p. 19. ”Every period of history and every nation is composed of such particular circumstances and they are individual situations in such a way that they can be judged and must be judged only by themselves and as themselves.”

[8] Cf. KOTKAVIRTA, Practical Philosophy and Modernity, p. 151.

[9] Similarly Arthur Kaufmann’s starting point is ’Harmonie aus Gegensätzen’, harmony through the opposites (which remain distinct), as the ground of legal thinking. KAUFMANN, Die ontologische Struktur des Rechts, p. 478.

[10] See e.g. Ricoeur, Liebe und Gerechtigkeit – Amour et justice, p. 6: ”Par dialectique, j’entends ici, d’une part, la reconnaissance de la disproportion initiale entre les deux termes et d’autre part, la recherche des médiations pratiques entre les deux extrêmes, – médiations, disons le tout de suite, toujours fragiles et provisoires.” In the field of philosophy of law especially François Ost has developed dialectics without a synthesis as a starting point for philosophy and theory of law.

[11] In his most recent works Ricoeur has also developed the theme of ’Critique du jugement historique.’ See Ricoeur, La Mémoir, l’histoire, l’oubli, p. 385.

[12] This starting point receives its chief inspiration from Hans-Georg Gadamer’s similar thesis, but I will nonetheless argue that Gadamer’s analysis of the structure of legal interpretation is not fully defensible. Cf. GADAMER, Wahrheit und Methode, p. 312-316.