The Concept of Legal Competence

CONCEPTS IN LAW Law and Philosophy Library VOLUME 88 Managing Editors FRANCISCO J. LAPORTA, Department of Law, Autonomous University of Madrid, Spain ALEKSANDER PECZENIK† , Department of Law, University of Lund, Sweden FREDERICK SCHAUER, John F. Kennedy School of Government, Harvard University, Cambridge, Mass., U.S.A. Former Managing Editors AULIS AARNIO, MICHAEL D. BAYLES† , CONRAD D. JOHNSON† , ALAN MABE Editorial Advisory Board AULIS AARNIO, Research Institute for Social Sciences, University of Tampere, Finland ZENON BAŃKOWSKI, Centre for Law and Society, University of Edinburgh PAOLO COMANDUCCI, University of Genoa, Italy ERNESTO GARZÓN VALDÉS, Institut für Politikwissenschaft, Johannes Gutenberg Universität Mainz JOHN KLEINIG, Department of Law, Police Science and Criminal Justice Administration, John Jay College of Criminal Justice, City University of New York NEIL MacCORMICK† , School of Law, University of Edinburgh UK WOJCIECH SADURSKI, European University Institute, Department of Law, Florence, Italy ROBERT S. SUMMERS, School of Law, Cornell University CARL WELLMAN, Department of Philosophy, Washington University For further volumes: www.springer.com/series/6210 CONCEPTS IN LAW Edited by JAAP C. HAGE University of Maastricht, The Netherlands DIETMAR VON DER PFORDTEN University of Göttingen, Germany 123 Editors Prof. Jaap C. Hage University of Maastricht Dept. Metajuridica 6200 MD Maastricht Netherlands jaap.hage@maastrichtuniversity.nl Prof. Dietmar von der Pfordten Universität Göttingen Platz der Göttinger Sieben 6 37073 Göttingen Germany dpfordt@gwdg.de ISSN 1572-4395 ISBN 978-90-481-2981-2 e-ISBN 978-90-481-2982-9 DOI 10.1007/978-90-481-2982-9 Springer Dordrecht Heidelberg London New York Library of Congress Control Number: 2009929296 c Springer Science+Business Media B.V. 2009  No part of this work may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Publisher, with the exception of any material supplied specifically for the purpose of being entered and executed on a computer system, for exclusive use by the purchaser of the work. Printed on acid-free paper Springer is part of Springer Science+Business Media (www.springer.com) Contents An Essay on Legal Concept Formation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Åke Frändberg 1 About Concepts in Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Dietmar von der Pfordten Understanding and Applying Legal Concepts: An Inquiry on Inferential Meaning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Giovanni Sartor The Meaning of Legal Status Words . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55 Jaap Hage Explicating the Concept of Legal Competence . . . . . . . . . . . . . . . . . . . . . . . . . 67 Torben Spaak The Influence of Normative Reasons on the Formation of Legal Concepts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81 Lorenz Kähler The Hand of Midas: When Concepts Turn Legal, or Deflating the Hart-Dworkin Debate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99 Ralf Poscher After Conceptual Analysis: The Rise of Practice Theory . . . . . . . . . . . . . . . . 117 Dennis Patterson v About the Authors Åke Frändberg (e-mail: Ake.Frandberg@jur.uu.se) is emeritus professor of Jurisprudence at Uppsala University, Sweden. Among his publications can be mentioned the books Om analog användning av rättsnormer (On Analogical Use of Legal Norms, 1973), Rättsregel och rättsval (The Concept Legal Rule and Choices of Law, 1984) and Rättsordningens idé (The Idea of Legal Order, 2005). His main interests are the investigation of general legal concepts and the interpretation and application of law. His present research is focused on the idea of the Law-State (Rechtsstaat, the Rule of Law). Jaap Hage (e-mail: jaap.hage@maastrichtuniversity.nl) holds the chair of Jurisprudence at the University of Maastricht in the Netherlands. His earlier publications include the books Reasoning with Rules (Dordrecht 1997) and Studies in Legal Logic (Dordrecht 2005). His present research focuses on general legal concepts and on the method of legal science. Lorenz Kähler (e-mail: lkaehler@web.de) works at the chair of Philosophy of Law and Social Philosophy at the University of Göttingen, Germany. He has published on overruling decisions. Currently, he writes about the concept and characteristics of default rules. Dennis Patterson (e-mail: dpatters@camden.rutgers.edu) holds the Chair in Legal Theory and Legal Philosophy at the European University Institute in Florence. He is Board of Governors Professor of Law and Philosophy at Rutgers University School of Law (Camden) and he holds a Chair in Jurisprudence and International Trade at Swansea school of Law, UK. His most recent book is The New Global Trading Order (with Ari Afilalo; Cambridge 2008). Dietmar von der Pfordten (e-mail: dpfordt@gwdg.de) holds the chair of Philosophy of Law and Social Philosophy at the University of Göttingen in Germany. His earlier publications include the books Deskription, Evaluation und Präskription (Berlin 1993), Ökologische Ethik (Reinbek 1996), Rechtsethik (Munich 2001) and Normative Ethik (forthcoming 2010). His research focuses on practical philosophy and philosophy of law. vii viii About the Authors Ralf Poscher (e-mail: poscher@poscher.eu) holds the chair of Public Law, Sociology and Philosophy of Law at the Ruhr-University Bochum in Germany. His publications focus on constitutional law and legal theory. Presently he works on theoretical questions of adjudication. Giovanni Sartor (e-mail: giovanni.sartor@eui.eu) is professor of Legal Informatics and Legal Theory at the European University Institute of Florence and at the University of Bologna. His publications include the book Legal Reasoning: A Cognitive Approach to the Law (Dordrecht 2005). His current research focuses on logical models of legal knowledge and legal reasoning, on game theory and the law, and on ICT in the legislative process. Torben Spaak (e-mail: Torben.Spaak@jur.uu.se) is professor in jurisprudence at the Department of Law, Uppsala University, where he teaches jurisprudence and legal reasoning. He has published two monographs in core areas of jurisprudence, and a number of articles on jurisprudential topics in international journals of law, jurisprudence, or philosophy, such as Buffalo Human Rights Law Review, Ratio Juris, Law and Philosophy, Analisi e diritto, Archiv für Rechts- und Sozialphilosophie, and Theoria. Contributors Åke Frändberg Uppsala University, Uppsala, Sweden, Ake.Frandberg@jur.uu.se Jaap Hage University of Maastricht, Maastricht, Netherlands, jaap.hage@maastrichtuniversity.nl Lorenz Kähler University of Göttingen, Göttingen, Germany, lkaehler@web.de Dennis Patterson Rutgers University School of Law, Camden, US, dpatters@camden.rutgers.edu Dietmar von der Pfordten University of Göttingen, Göttingen, Germany, dpfordt@gwdg.de Ralf Poscher Ruhr-University Bochum, Bochum, Germany, poscher@poscher.eu Giovanni Sartor European University Institute of Florence, Florence, Italy, giovanni.sartor@eui.eu Torben Spaak Department of Law, Uppsala University, Uppsala, Sweden, Torben.Spaak@jur.uu.se ix Introduction Concepts play a central role in the law, because all forms of law are formulated with the help of terms that express – in the eyes of many at least – concepts. Concepts are also important in the study of law’s nature in philosophy of law and legal theory. After some decades of neglect, concepts are nowadays rediscovered by general philosophy, epistemology, cognitive science, psychology, artificial intelligence, informatics and – this is at least one of our aims in editing this volume – also philosophy of law and legal theory. This crucial role of concepts in the law and their recent rediscovery by several disciplines were the reasons to organise a special workshop on concepts in the law during the conference of the International Society of Philosophy of Law and Social Philosophy (IVR) 2007 in Cracow. A selection of the papers presented at this workshop is collected in this volume. The topics of the selected papers provide an illuminating overview of the different ways in which concepts are involved in the law and the philosophical and theoretical analysis of the law. The first paper in this volume, An Essay on Legal Concept Formation, by Åke Frändberg is introductory and methodological by nature. It consists essentially of a number of distinctions between the many functions concepts play in the law. The basic difference pointed out by Frändberg is between the juridical-operative function and the law-stating function of concepts. To state it overly simple, concepts in the juridical-operative function are used to deal with the law while concepts in the law-stating function are the concepts used in legal norms. One of the editors of this collection experienced the practical relevance of this basic distinction when he wanted to present an analysis of legal transactions in general, while part of his audience expected an exposition of the rules that specify when a legal transaction is valid. In the terminology of Frändberg, he wanted to analyse legal transactions in their juridical-operative function, while the audience expected a discussion of legal transactions in their law-stating function. Apart from this basic distinction, Frändberg makes a number of other relevant distinctions that are very helpful to avoid confusions about the roles of concepts in the law. Also the second paper in this volume, About Concepts in Law, by Dietmar von der Pfordten is introductory by nature. Von der Pfordten starts by attacking ‘normativism’, that is the today widely accepted view in legal theory that norms (rules, principles) play the primary role in the law, and not, for instance, concepts or xi xii Introduction institutions. Von der Pfordten first discusses the nature of concepts and of conceptual analysis in general. Second he investigates the way in which concepts are related in a conceptual scheme. He then returns to the law and answers the question how these general findings can be applied to legal conceptualisation. Especially interesting in this discussion is a fourfold division between the levels of abstraction of concepts, and its relevance for the issue to what extent general concepts are malleable by the law. Von der Pfordten argues that in particular those concepts which are one level more or one level less abstract than the concepts that function on the level of perception are most malleable by the law. By way of conclusion, he returns to the question whether normativism is correct. Von der Pfordten argues that normativism neglects the central and independent role of concepts in legal reasoning. He therefore rejects the view of Alf Ross, who held in his famous paper Tû-Tû that the meanings of intermediate legal concepts, such as ‘owner’ could be reduced to the norms that specify when they are applicable and the norms that specify the consequences of their applicability. Alf Ross’ Tû-Tû paper also plays an important role in the contributions of Giovanni Sartor and Jaap Hage. Giovanni Sartor starts the third paper in this volume, Understanding and Applying Legal Concepts: An Inquiry on Inferential Meaning, with the observation that Ross’ analysis of the meaning of intermediate legal concepts was in one important respect correct: the meanings of these concepts can indeed be specified in terms of the roles they play in legal argument chains, on the basis of the rules that specify when they are applicable and the consequences of their applicability. From this observation he draws the conclusion that at least for these concepts there is no demarcation between on the one hand their meanings and on the other hand the positive law that specifies their roles in the legal system. But then a problem arises. Does understanding an intermediate legal concept imply that one endorses the corresponding contents of the law? Suppose that a legal system uses the concept of a patriarchal marriage. The meaning of this concept is given by the following rules: IF a couple goes through a marriage ceremony, THEN the two spouses are in the relation of patriarchal marriage, and IF two spouses are in the relation of patriarchal marriage, THEN the husband has power over his wife. Does one’s knowledge of the meaning of term patriarchal marriage commit one to the view that whenever a couple has gone through a marriage ceremony, the husband has power over his wife? This is not a position that Sartor wants to adopt. To avoid it, he devotes the second part of his paper to an analysis of inferential meaning that does not commit a person who knows the inferential meaning of a concept to endorsement of the rules that define this meaning. To this purpose he makes use of a technique developed by Ramsey to replace intermediate concepts by an existentially quantified variable and a technique developed by Carnap to distinguish between the possession (understanding) of a concept and its endorsement. Introduction xiii In the fourth paper in this collection, The Meaning of Legal Status Words, Jaap Hage also takes the analysis of Alf Ross as his starting point, but focuses on Ross’ claim that words like ‘owner’ do not have a proper meaning, because their sole role is to function as intermediaries in legal argument chains. First Hage argues that words like ‘owner’ do, opposite to what Ross argued, denote entities. To be sure, these entities do not exist in physical reality, but next to the physical reality there is a social reality in which entities can exist because their existence follows from the application of rules. Words such as ‘owner’ denote a legal status which exists in the rule-based (institutionalised) part of social reality. There are rules which specify when such a status comes into being or ends, and what the consequences of its presence are. The next question is whether these rules specify the meanings of legal status words. Here Hage takes a fundamentally different position than Sartor. According to Hage, the rules that govern the use of legal status words do not specify their meanings. The meaning of a word like ‘owner’ is that it stands for owners, nothing more. Are the rules irrelevant for the meanings of legal status words, then? No, their importance lies in the fact that one should know about these rules to know what the legal status for which they stand involves. Without knowing the rules that govern ownership, one does not know what ownership is. And if one does not know what ownership is, one does not know what the word ‘owner’ means either. But from this it does not follow that the rules governing the use of legal status words specify their meanings. One legal concept that is mostly used in a juridical-operative function is the concept of a power or competence. (Hart, however, has created the impression that it is commonly used in a law-stating function, by writing about ‘power conferring rules’). In the fifth paper in this collection, Explicating the Concept of Legal Competence, Torben Spaak offers an extensive analysis of this concept and of what the exercise of a competence is. He connects competence conceptually with changes in legal positions that are brought about by acts which then count as exercises of competence: A person, p, has the competence in regard to a legal position, LP, if, and only if, there is a competence-exercising-act, a, such that it depends for its legal effect on having been performed with an (actual or imputed) intent to bring about the relevant legal effect, and a situation, S, such that if p in S performs a, and thus goes about it in the right way, p will, through a, change LP. Apart from this analysis, Spaak discusses a number of subdivisions between types of competence, the most common being that between autonomous and heteronomous competence. When concepts are used in their law-stating function, they become the object of legal manipulation. By broadening or narrowing a concept’s scope of application, the contents of the law can be changed. This well-known phenomenon is at the focus of the contributions by Lorenz Kähler and Ralf Poscher, be it that they approach it with different purposes in mind. Kähler raises in his contribution Do Normative Reasons Completely Determine the Formation of Legal Concepts? the questions xiv Introduction whether the normative character of the law completely explains which concepts are used and which meanings they have, or whether there are other aspects which determine their content. That there is such an influence is, at first glance, obvious. But it is less obvious what exactly it consists in. If legal concepts have an objective ‘deep structure’, as Dworkin argues, they might not be open to an unlimited manipulation according to one’s moral or ideological agenda. Kähler argues that there are several independent ways in which normative considerations can influence the choice and definition of legal concepts but that there are also constraints on this influence. These constraints date back to the functions legal concepts must fulfil. Legal concepts must be used in various contexts and express different states of affairs, the evaluation of which might differ. In the seventh paper in this volume, The Hand of Midas. When Concepts Turn Legal, or Deflating the Hart-Dworkin Debate, Ralf Poscher also takes the malleability of legal concepts as his starting point, but uses it as a stepping point for understanding the relation between law and morality. As soon as a concept is used in stating the law, the precise scope of application of this concept has become a legal matter. This is what Poscher calls ‘The Midas Quality of the Law’. Just as everything that was touched by the legendary King Midas turned into gold, everything that is touched by the law becomes legal. This also holds for concepts with a moral import. When these concepts are used in a law stating function, they receive a specifically legal content. In the words of Poscher: ‘The law and morality only share common concepts but not common conceptions.’ Based on this observation, Poscher argues that the Hart-Dworkin debate is based on a wrong presupposition, namely that the use of common concepts implies that moral conceptions of these concepts would be legally relevant as such and not only as one source amongst others out of which the specifically legal conceptions are developed. The question whether legal concepts are defined by means of the rules that specify their roles in legal arguments presupposes that the concepts are used in their law-stating function. The final paper in this volume, written by Dennis Patterson, focuses on the other main function of legal concepts, that is their juridical-operative function. One feature of this function is to provide a perspective on the law as a whole. Is the law, for instance, depicted as a set of norms that guide action, or as a set of protected interests? That concepts used in their law-stating function influence the contents of the law is obvious. Less obvious, at least nowadays, is that the concept of law determines this content too. Dworkin deserves the honour of having placed this role of the concept, or – maybe better – the conceptions of law on the legal philosophical agenda again. Our conception of the law may influence our position on what the law is in particular cases. It is somewhat ironic to notice that this makes analysis of the concept of law – the kind of work that Hart undertook in his major study, and which was criticised by Dworkin – relevant for the contents of the law in particular cases. There is a major difference, however, between the styles of analysis proposed by Hart and Dworkin, at least according to Dennis Patterson in the eighth contribution to this volume, After Conceptual Analysis: The Rise of Practice Theory. Where Hart would take the practice of the participants in the law as defining the concept of Introduction xv law, for Dworkin this would merely be the starting point of a theoretical analysis. In contrast to Dworkin, Hart would hold a ‘practice theory’ of the law. Under a practice theory Patterson understands ‘an account of the law that answers the question “What is the law in this jurisdiction with respect to x?” by looking at how participants in the practice decide the state of the law’. This raises the question what a practice is, and Patterson devotes the second half of his contribution to the analysis of practice and practice theory. To this purpose he refers to a study by Rouse which offers an account of practice theory at the hand of six themes. According to Patterson, the goal of any practice theory of law is to make sense of the practice as an ongoing, iterative and common activity. The normativity of the law is in this connection the most important aspect of the law that has to be explained. Therefore a practice theory of the law must illuminate how participants can be said to perform in a common world, what makes the world of law common, and how disagreements between participants about the purportedly common world are framed and adjudicated. Patterson’s paper provides a good conclusion of this volume, because it illustrates that the role of concepts in the law is not confined to the operation of the law, as emphasised in the papers that focused on concepts in their law stating function, but that concepts also play a role in our very understanding of the law’s nature. Whether the contributions in this volume cover the full range of roles that concepts play in the law is a matter that remains to be seen. That they give an attractive overview of at least a number of these roles and that they point out directions for further research is clear.