I. Introduction
Positivismo jurídico “interno” (Redondo 2018, hereafter: ‘PJI’) is a striking and complex volume, consisting of five chapters, each of which deals with fundamental questions of contemporary legal theory.
A first general merit of the book is that it defends an original and unorthodox position that goes beyond the usual discussions in the literature, focusing obsessively on the debate between legal positivism (inclusive and exclusive) and anti-positivism.
A second merit is its unity. It condenses Redondo’s research, the origins of which go back to the author’s dissertation (Redondo 1994-1995), and which has developed in several directions that find further development in this volume. I refer to her studies devoted to normativity and the notions of reason and rule (Redondo 1996, 1999, 2003), as well as to the notion of (legal) duty (Redondo 1998a, 2001); to her work on the distinction between internal and external points of view and the acceptance of law (Redondo 2002, 2014); and to her reflections on legal positivism (Redondo 1998b, 2005, 2007). The fil rouge that connects Redondo’s contributions is reflected in the sequence of chapters and their conclusions, which lead the reader to the fifth and final chapter, specifically dedicated to the theme expressed in the book’s title. To limit oneself to the last chapter, however, is not sufficient for a thorough understanding of Redondo’s positivismo jurídico normativista.
As the preface makes clear, the analysis has a critical-reconstructive purpose aiming to defend what Redondo calls “internal” (“interno”)1 or “normative” (“normativista”) legal positivism.
On the one hand, Redondo defends the positivist standpoint against some of the main criticisms in the literature. She responds by pointing out the difficulties encountered by the antipositivist theses advanced by natural-lawyers and interpretivists (PJI: e.g. 9, 149, 157).2
On the other hand, PJI debunks the criticisms directed at normativism, focusing specially on the criticisms of the so-called “realist” positivists who defend a purely empirical conception of jurisprudence (Redondo calls this view “positivismo escéptico”; see PJI: 9).3
The legal positivism proposed by Redondo can be summarized as follows:
i. Legal norms are nothing but content/meaning; as long as their content is abstract, legal norms are not empirical entities; the existence of a valid norm corresponds to the existence of a legal obligation (Chapter 1).
ii. Ontological problems (questions about the existence of legal norms) must be distinguished from epistemic problems (questions about the determination of their content) and vice versa (Chapter 1).
iii. The existence of duties and legal norms is an institutional fact. It is relative to a practice, but it is neither limited to it nor completely determined by it. The identification of a legal duty/norm does not depend on the interpretation of normative statements nor on the demonstration in all cases. The existence of a norm and the belief in its existence are independent of one another. The possibility of identifying a duty/norm presupposes that we can grasp or understand directly the criterion followed in practice. There is no definitive test for knowing whether we grasp such a criterion, i.e., when the propositions expressing norms are true or false in this respect (Chapter 1).
iv. Knowledge of duties is objective insofar as it rests on an absolute notion of truth. It is not necessary to adopt a correspondence theory of truth. The truth conditions of a legal rule consist in the existence of a duty, i.e. a normative entity. The required notion must respect the equivalence thesis, i.e., the distinction between the ontological question of the existence of a duty and the epistemic question of knowing the truth-value of the propositions expressing it (Chapter 1).
v. Knowledge of legal norms is based on public reasons, which are open to any reasonable person who takes the trouble to learn the concepts necessary for such a process of knowledge (Chapter 1).
vi. The notion of "genuine" normativity can be explined in terms of reasons for action; law proposes generalizations that are treated and used as exclusionary reasons in a discourse of justification. The theses of the exclusionary and immutably relevant character of norms do not refer to the substantial weight they may or may not actually have in the process of decision-making, either from an objective (moral) or subjective point of view (Chapter 2).
vii. The notion that the content of the law is determined according to the criteria established by the existing conventions of interpretation must be supplemented by exclusive positivism, which has “authority” as its essential element (Chapter 3).
viii. The Author discusses the dichotomy that either the theoretical status of internal and/or normative discourses or the theoretical status of external and/or descriptive discourses. Such dichotomy is deemed a false dilemma (Chapter 4).
ix. Also rejected is the thesis that the study of social institutions is something that can be done from a single standpoint. In particular, this implies the rejection of both (a) the internal point of view thesis, according to which it is impossible to identifyor use an institutional term without accepting the institutions to which the termrefers; and, (b) the contrary thesis that in order to identify and understand a socialinstitution, one must adopt the external point of view of the observer (Chapter 5).
Since I share many of the author’s theses expounded in the book (i.e., some general premises as well as some specific views on legal language and interpretation), I will focus mainly on chapters 1 and 5 which are the most controversial and, as the author herself explains (PJI: 9), contain the core of Redondo’s positivismo jurídico normativista.
The structure of my essay is as follows.
In section 2, I discuss Redondo’s theses on the objective knowledge of norms and legal duties and claim that inter-subjectivity and not objectivity should be the proper criterion for normative legal positivism.
Then, in section 3, I examine the role that normativity plays in normative legal positivism and clarify the metaphysical character of the thesis according to which law belongs to normativity and practical reason.
Section 4 is devoted to the discussion of Redondo’s conception of legal entities and her anti-reductionist approach.
In section 5, I point out a gap in PJI concerning the theory of sources of law and authority.
Finally, in section 6, I address what I deem to be PJI’s main flaw: its defence of the epistemic neutrality of legal theory. A feature which, according to Redondo, enables legal theory to describe the internal point of view of participants without committing to the values of the existing legal practice(s).
II. Knowledge: objectivity vs inter-subjectivity
PJI rightly highlights two problems that are crucial to legal positivism: the ontological problem regarding what is it that legal norms consist in, and the epistemic problem regarding the possibility of obtaining objective knowledge of legal norms (PJI: 13).4 In my view, these problems are but two sides of the same coin: cognitive propositions about law or norms are no different from propositions about their existence or nonexistence. So if norms cannot be known on grounds of skepticism, then they do not exist as norms (from a skeptical point of view, which is not mine, they may exist as statements, or as something else).
Redondo appropriately takes a liberal approach by presenting her own theses as based on given assumptions (PJI: e.g. 201, 204, 214). She shows a clear awareness that any conception of law is derived from more general epistemological and ontological assumptions.
In this respect, I think that the notion of “objective knowledge of norms and legal duties” (PJI: e.g. 9, 69-70, 84-85, 90-91) is misleading and dissonant in relation to the conception proposed there. If this “objective knowledge is knowledge supported by public reasons, available to any rational human-being who is willing to make the effort to learn the concepts needed to do it” (PJI: 90-91)5, it is confusing to frame this knowledge as objective. Knowledge as such is more properly seen as intersubjective, as it is based on interactions between people and mediated through human communication, i.e. the use of language. To consider knowledge (related to legal phenomena) as intersubjective allows, on the one hand, to set a limit to extreme relativism or skepticism and, on the other hand, to avoid a slide into essentialism.
To speak of the intersubjective rather than the objective dimension of law and legal knowledge is not a mere lexical preference. The difference in terminology reflects a fundamental disagreement about the epistemological requirements of a normative positivist approach to law. Redondo takes an epistemic view based on “an absolute concept of truth” ("un concepto absoluto de verdad”, PJI: 72, 90). However, this claim to epistéme is not necessary for her positivismo jurídico normativista and, more generally, not a prerequisite for legal positivism.
This reference to objectivity and an absolute concept of truth also seems at odds with the book’s conclusions, where Redondo clearly and rightly rejects “the thesis according to which the study of social institutions is something that can be done from a single point of view” (PIJ: 244)6, and notes that it is misleading to think that “only a single method can accomplish ‘the’ goal of grasping the true nature of law” (PJI: 247).7
I agree with Redondo that any investigation of legal phenomena is conditioned by the method employed, and also that any positivist approach cannot ignore the ontological-epistemological issues. However, I do not agree that legal positivism displays a necessary connection to an objective knowledge of legal phenomena, or that it must presuppose an epistemic basis of (legal) knowledge.
Positive law is something that exists outside and beyond the sphere of any individual, but that does not mean that one should assume absolute objectivity. Behind our idea that the law exists and that it makes sense to say so – and that we know in some sense what law is and prescribes – is not a neutral (as a kind of detached “God’s eye”), but a normative standpoint. Legal phenomena exist to the extent that they are known and experienced in an intersubjective perspective.8 This reflects a principle of common sense and realism.9
To consider oneself a positivist implies a genuine interest in positive law as the relevant main subject of inquiry. If we assume that positive law exists beyond individual perception and is in some way cognizable in an intersubjective manner, then the theoretical (and practical) research of legal positivists makes sense. Moreover, it becomes necessary to address the problems of the existence and knowledge of legal norms that Redondo places at the beginning of the book (PJI: 9, 13, 88).
While Redondo is right when she says that “there is no definitive test to know whether we have rightly grasped the criterion underlying the practice” (PJI: 89)10, I disagree with the assertion that:
The positivist thesis according to which the existence of duties is relative to a practice and the thesis according to which knowledge of such duties is objective, insofar as it is based on an absolute concept of truth, may be jointly submitted (…) only on the basis of [the] distinction (…) between the ontological question of the existence of a duty and the epistemic question of the truth-value of duty-statements (PJI: 90).11
At first, this thesis seems at odds with Redondo's general aims. While the book is concerned with explaining the sense in which legal norms and duties exist and how we can know precepts and normative meanings, Redondo shifts her analysis to an epistemic inquiry into the truth-value of deontic propositions and modalities. This epistemic turn, however, seems to be a means of trying to bring objectivity into a normative context that is fundamentally value-laden. Furthermore, in my opinion, this turn does not benefit the theory and is not coherent with the general explanation of legal normativity and the general thesis about public justification mentioned in the book (PJI: 91; Ch. II, esp. 133-136).
Second, the proposed view leads to a fallacious claim of exclusivity. If it were true that a coherent normative positivism can only be constructed by adopting Redondo’s epistemological view, the only legitimate normative legal positivism would be Redondo’s theory. On the one hand, this is inconsistent with the approach proposed in the book; on the other hand, the literature on deontic logic presents many theories that differ from the truth-value theory conceived by Redondo.
Finally, Redondo aims to offer an antidote to skepticism by means of her truth-value theory, but this epistemic turn does not fulfil the proposed target. The truth-value theory does not solve the problem of legal indeterminacy, which depends on the nature of legal language and the law as an institutional practice. Therefore, her assumption of “an absolute concept of truth” is not an antidote to rule skepticism, as well as to skepticism about jurisprudence and interpretation. Instead, it risks hiding indeterminacy and discretion.
III. Normativity: a metaphysical tenet
In addressing the two problems mentioned above, Redondo assumes that “the content of a norm consists mainly in types of permitted, forbidden or obligatory actions” (PJI: 13).
This assumption reveals the underlying premise on which Redondo’s positivism rests, namely, that law is a normative phenomenon.
The theoretical hypothesis that normativity is one of the necessary, though not sufficient, properties of law is not explained in the book; however, it appears between the lines12, especially in the second chapter.
To prevent possible misinterpretations: in my legal positivist view, this theoretical hypothesis that law is something normative is a descriptive metaphysical thesis in Strawson's sense Common sense beliefs tell us what realm of social reality we must look to find the law in force. This common experience is supported by an abundance of material clues that replace eyes and hands. Our senses as sight and touch are pertinent to our process of knowing material objects, but not to the existence of the law, except in the form of metaphors. This view is consistent with a realist (i.e., descriptive metaphysical) explanatory stance of what exists for individuals.13 That law is something and is designed to regulate human behaviour is a general and empirical fact that legal theory (especially positivism) must face. As such, it has no essentialist implications. It does not imply adherence to the idea that an essence of normativity or law exists somewhere.14 The assumption that law is necessarily normative does not preclude the possibility of examining it in other ways or from other points of view.
It should be made clear that the theoretical hypothesis that normativity is one of the necessary, though not sufficient, properties of law does not imply a necessary connection between law and morality. On this point, I agree with Redondo’s notion of normativity, which is not reductive.
Normativity does not collapse into the moral sphere and cannot simply be identified with ethics (thus, “the concept of normativity does not make reference necessarily and solely to a moral property”, PJI: 40). The universe of normativity consists of many spheres. Legal normativity is one of them. From this point of view, Redondo reveals an idea of normativity – that is, practical reason – as a general category, of which morality (or ethics) and law are specifications.15 From this setup, she coherently derives the thesis of the “non-reducibility [no reducibilidad] of legal norms, either to social facts, on the one hand, or to moral norms, on the other” (PJI: 46).
The concept of normativity defended by Redondo and myself is also anti-dogmatic in the sense that it takes upon itself the burden of proof to show its explanatory capacity in relation to positive law.16
I cannot here go into the details of Redondo’s reply to the critics of normativism. However, it will be useful to recall some major errors or misunderstandings that can be avoided if the premises outlined above are accepted.
As stated, Redondo’s normative legal positivism warns against confusing ontological and epistemic issues in relation to legal norms (PJI: cap. I, 88).
Redondo defends this distinction by pointing out that normativism does not imply that the question of the existence of norms collapses into the question of their knowledge, or vice versa.17 It is beyond the scope of this paper to discuss this philosophical cornerstone.18 It should be pointed out, however, that adherence to normativism affects the way in which the relation between existence and knowledge of what is being investigated or speculeted upon is conceived
As stated, the metaphysical assumption of normative legal positivism, i.e., that the existence of legal norms is practical-conceptual in nature, fundamentally affects the method that can be used to know them.
Thus, there is no way to prove or verify the existence of legal norms empirically or logically/formally, nor can the relevant cognitive faculty be conceived according to the methods and the tools that apply to empirical phenomena or logical-formal questions. Any explanation of the existence and understanding of legal norms from a normative perspective should begin by considering law as part of social practice and its institutional dimension, within which legal norms are grounds for action. In this regard, Redondo contends that:
[t]he existence of a legal duty is relative to a social practice, but it is neither reduced nor totally determined by it. Equally, the identification of such a (legal) duty cannot always depend on an interpretation of normative formulations, nor in a demonstration. The possibility of identifying a duty presupposes that the criterion which is followed in the practice can be grasped or directly understood (PJI: 89).19
I would, however, suggest a partial modification of this position.
I agree that the existence of legal obligations and, more generally, of legal norms is relative to a social practice. In particular, those who participate in the same social practice agree on how to identify the associated domain of law. This ability to identify law is permanent and embedded in common sense as long as ordinary language contains the Stone-Age heritage of human species (Austin 1956-1957). This process is two-faced. It has an internal side, but it also has an external side. The attitudes of other people influence those of the people taking part in a social practice.
Moreover, participants’ beliefs about what is not their own law in a particular time and space (e.g., past historical experiences, different legal systems, some idiosyncratic moral beliefs, etc.) influence the law itself. In addition, people (lawyers, legal scholars, as well as anyone who is not competent and active in the field of law) also contribute to determining the specific boundaries and content of positive law from time to time in a continuous process of law-making.
This activity is not comparable to any demostration, deduction, induction, or any other method used in the natural and formal sciences. While the ability to discern law is almost primitive and unreflective, even if it is culturally charged, the ability to identify a legal norm is sophisticated and reflective.20 It requires grasping and understanding a vast set of conventions, rules, and criteria dedicated to the determination that is followed in practice. Determining legal rules is a reflective activity that follows the path of learning by doing, both by legal experts and non-experts.
IV. Law as facts or legal entities: anti-reductionism and empiricism
A general mistake to avoid according to PJI concerns the way normative propositions, i.e., propositions that refer to norms and thus ultimately to deontic positions, are conceived. Redondo writes:
[a] normativistic theory cannot hold – without contradiction – that normative propositions are reducible to empirical propositions or, what is the same, that they are true or false only in virtue of certain more or less complex empirical facts. If a ‘normativist’ proposes an empirical analysis of ‘normative propositions’ we cannot understand what he accepts when he says he accepts the existence of norms as something different from empirical facts (PJI: 87-88).21
I disagree with Redondo because there is no necessary connection between the reductive position, reducing normative propositions to empirical propositions, and the thesis that normative propositions are true or false only in virtue of their relation to certain more or less complex empirical actions. The reductive position has numerous variants, and only some of them lead to an overlap with empirical propositions. Redondo claims that there is independence between the existence of a norm and the belief in its existence.22 However, this claim is highly controversial in that a norm is a social fact based on beliefs. Of course, there are many ways in which norms and normative propositions and statements “exist”, as many studies by paleo linguists and anthropologists show.23 Also, there are different notions of truth depending on what criteria we use – as said, the criteria of common sense and empirical sciences are relevant to understand our concept of law and legal norms. For semiotic entities such as statements, etc., there are also specific criteria, different from those appropriate for material objects. The overuse of metaphors that treat semiotic entities as material objects obscures such a complex examination of the criteria needed for knowing them.
In any event, it should be noted that the foregoing does not imply that normativists cannot perform empirical analyses, nor that normative propositions and (legal) norms can only exist either as empirical facts or as something else. This thesis is circular to the extent that PJI postulates that all facts are either empirical facts or something different (i.e., non-empirical facts).
Normative legal positivism does not preclude empirical investigations and socio-anthropological explorations in the legal field, considering normative propositions and legal norms as facts, beliefs, stimuli, and so on. In other words, it does not exclude, for example, empirical investigations of law-related phenomena, such as people’s beliefs about legal facts, how they affect behaviour, and so forth.
On the contrary, since positive law is fundamentally designed to guide human behaviour, the empirical domain cannot be neglected. The empirical facets of positive law deserve refined analysis. It goes without saying that the latter must be carried out using methods that are distinct from conceptual analysis and coherent with its specific scope. In other words: in the eyes of normative positivists, laws, legal statements, and legal norms are and should be analysed as they stand in the space and time of human history. But they are in any case institutional, not just brute facts. More precisely, they are conceptual artefacts that have a practical function.24
As Redondo points out (PJI: e.g., 136, 180 ff.), the functional dimension is part of the legal phenomenon itself, which is primarily a social institution. Against this background, legal norms have the function of guiding human behaviour by considering each individual not as a monad but as a social animal living together in relation to others and in stable and differentially organized forms.
This frame of reference is often overor under-appreciated by opposing advocates of empirical studies and purely conceptual investigations. In my view, this philosophical frame of reference provides a coherent explanation of why positive law must be analyzed in the context of practical justification and using a teleological approach. Although this view differs from that of empirical or social disciplines, it is complementary to empirical studies. In short, according to normative legal positivism, the normative lens can offer its own contribution to the pursuit of a better explanation of positive laws and legal norms among other types of social facts.
A second mistake that PJI helps to avoid is the useless multiplication of entities. I refer to the triad: (i) normative legal propositions; (ii) legal norms; and, (iii) legal content or meaning. In this respect, the book follows the widely held philosophical assumption that simplicity is a theoretical virtue. The regulative idea is that entia praeter necessitatem non esse multiplicanda.25
In the realization of this regulative idea, the conceptual resources of the philosophy of languajge and metalanguage is of particular importance. Accprding to the theory of levels of discourse, it is always possible to create further levels of discourse and conceptual entities that from a meta-linguistic level refer to other concepts that, it is hypothesized, exist at a lower linguistic level. By abstraction alone, we are able to construct meta-conceptual constructions and generate further abstract entities. This process could continue ad infinitum26. However normative theory must take into account the explanatory value of the terms it uses.
Redondo is therefore right to say that “the reduction of normative-legal entities into the propositions referring to them is ultimately possible”; while I believe that it is not correct to say that “they could be reduced to data of a sole empirical reality” (PJI: 91).27 From a normative point of view, normative-legal propositions can themselves be conceived as normative entities (norms) belonging to a higher level of normative discourse; in any case, however, both normative-legal propositions and legal norms are normative-conceptual entities, not empirical ones.
With regard to the distinction between norms and their normative content, it should be noted that the former are conceptual entities that cannot be separated from their corresponding normative meanings and conceived as something else. In Redondo’s words: “while a normative-positivist view can admit that asserting the existence of a valid norm is not the same as identifying its content, it cannot accept that norms and their contents are entities different in kind” (PJI: 89).28
Thus, to speak of norms in the context of practical argumentation is the same as to speak of normative meanings. This is also true in the legal field, where legal norms are, in abstract-general terms, directives or prescriptive meanings.
In other words, if one restricts the notion of legal norms to those valid in particular legal systems, it is clear that there can be a divergence between legal norms and legal normative meanings/contents considered independently of any criteria of legal validity. On the other hand, it is equally obvious that no such divergence can exist if the same criteria of legal validity that govern legal norms also govern the relevant legal normative meanings/contents.
From a normative positivist perspective, it is specious to speak of norms that have no meaning and no normative content29, because normative meanings are norms.30 One and the other may be valid or invalid, and it is a contradiction to speak of a valid norm with invalid meanings or vice versa (unless we refer to and apply different criteria of validity for different purposes).
It is remarkable how widespread is the tendency to multiply conceptual items, both in jurisprudence and in ordinary discourse. Such proliferation occurs due to the universal human need to render concrete abstractions. This explains the familiar metaphor of meanings as normative contents, which as such evoke the image of the norm as the vessel or form that contains them.
This same tendency to objectify abstractions is reflected in another ambiguity discussed in PJI, which often leads to confusion between valid norms and invalid meanings.
If, as said, talking about valid norms and invalid meanings in relation to one and the same norm would lead to an internal contradiction, it is not a contradiction at all to claim, for example, that invalid meanings (i.e., legally impermissible) can be attributed to legal norms validly produced according to certain procedures (i.e., meta-rules of jurisdiction and production).
In this case, the comparison is not between a particular norm itself and its meanings. Rather, it is a comparison between different entities: on the one hand, the process of legal norm-production, which in itself corresponds to the corresponding meta-norms, and on the other hand, the meanings attributed to the validly produced norm. Its content may be invalid due to error, ignorance, or other reasons, but this has nothing to do with the formal process of norm-creation.
In light of the above, it is important to emphasize that the notion of validity is relative and relational. It serves both a comparative and a classificatory function31, dependent on a certain criterion (of validity). This criterion is not established once and for all, and it is not itself part of the norm whose validity is to be determined. As is well known, in many legal norms there are a variety of criteria of legal validity which bring different facets to bear. Therefore, the validity or invalidity of legal norms (as meanings) varies according to the criteria adopted in each circumstance.
Once this clarification is made, we can safely say that a valid norm is synonymous with its legal content or its legally permissible meanings. Finally, explaining all this in terms of the existence of legal entities does not seem to add anything of value to the discussion.
V. Sources of law and authority
A central problem for any positivist conception is who produces or creates legal norms. To evoke the image of a game used in the book, it is essential for positivist to clarify who the participants in the legal game are and what roles they play. Redondo addresses the problem by discussing primarily the positions of Eugenio Bulygin and Fernando Atria (chapters three and four). From the analysis of the theses of these authors, but also of the other theorists mentioned in the book, such as H.L.A. Hart and R. Dworkin, it is clear that ethical-political choices play a prominent role in all legal theories discussed.
Redondo shows very clearly the extent to which Bulygin’s theory, in stating that “everything not relevant in the ‘legislator’s system’ is descriptively irrelevant” (PJI: 154)32, makes a determinant political choice that assigns to the legislature a privileged importance among other legal actors. Similarly, it clearly shows the primacy that both Atria and Dworkin ascribe to judicial adjudication over the legislative sphere.
This suggests that philosophical analysis is not neutral and that any normative positivist approach is committed to its object of analysis. Theoretical speculations about legal methods affect positive law directly and indirectly because they affect jurisprudence, the doctrines of legal scholars, the behaviour of people, and so on. On this point, I note a certain opacity in the approach proposed in the book.
I agree with Redondo that discretion is not synonymous with creativity in a vacuum. Moreover, from a normative perspective, comparing reasons and justifications in the context of a public and open debate33 enables the possibility of intersubjective control and makes it possible to reasonably assert that the law (though partially indeterminate) exists and that it is knowable (with varying degrees of certainty depending on the extent of indeterminacy).
Nevertheless, the book does not articulate a sources theory, and thus, does not elaborate on who is legitimated to produce legal norms. This omission is, in my view, unjustifiable, even if PJI is developing a metatheoretical inquiry rather than a theory of law.34 The key question, even for a metatheoretical inquiry into law, is which sources of law are there and what is the role of the principle of separation of morality and law among them. Every normative legal positivist should address the question: in what way should morality (which morality?) influence law? The principle of separation of law and morality is itself a moral and political principle.35 Far from excluding morality from law, it would be impossible to avoid a moral stance even in the most trivial issues: the separation principle regulates the incorporation of moral values into law primarily or exclusively through legal “forms” (authorities and procedures). The problem of the sources of law and the relationship between law and morality cannot be reduced, as has often been done in the recent debate on legal positivism, to the question of the implications of the significant presence of explicit in statutes or constitutions. The principle of separation exists in many variations, depending on the answer given to certain basic moral questions concerning the law, such as whether we prefer a law open to the influence of socila morality or other particular moral concepts, or whwther we think it is right in principle to limit as much as possible legal indeterminacy by introducing specific requirements into law. Do we think ir is right that officials be strictly bound by relatively specific general rules, or do we want them to have and exercise discretionary powers?
As the conclusions of Chapter 2 show, Redondo suggests that the concept of legal sources as defined by Bulygin in Normative Systems should be supplemented by a kind of exclusive positivism (“un tipo de positivismo excluyente”), which is not precisely identified. The only specification of this idea in the book is the relevance attributed to the notion of authority that exclusive legal positivism generally assumes (PJI: 153-155).36 In this respect, it is also not entirely clear the thesis that “exclusive positivism can face the argument of the ‘contrasting practice’ precisely because, in its perspective, this way of understanding the law captures an essential feature of the concept such as it is generally understood by participants” (PJI: 155).37
I think it would be more accurate to say that a theory of legal positivism must be able to explain both those situations in which interpretive and applicative conventions converge and those in which they diverge. This ability is not an exclusive virtue, nor is it always a necessary consequence, of exclusive legal positivism. In any case, clarifying which the (legal) authorities are under a given positive law is the first step of any theory of legal positivism (including exclusive legal positivism).38
Moreover, the author’s belief that exclusive legal positivism is capable of explaining the limits of the legal domain is not sufficiently well founded. In particular, it is not clear on what basis Redondo claims that “every jurisprudential theory operates with a concept that establishes the limits of what can be legally relevant in a descriptive sense” (PJI: 154).39 In my view, this statement needs to be emended, since every jurisprudential theory starts from a concept of law that establishes the limits of what can be legally relevant in normative or prescriptive terms, not in descriptive terms.
VI. Points of view: neutrality and values
The final chapter of the book, which forms the core of Redondo’s PJI, proposes a revised version of Hart’s distinction between the internal and external points of view. The proposal is to double the division, creating four different possible viewpoints: internal1; external1; internal2; and external2.
In truth, the last viewpoint –external2– is almost entirely neglected throughout the whole analysis, being mentioned only in cross-reference with the internal viewpoints.
Since Redondo does not provide a paradigmatic example or definition for each case, I sketch here a matrix of possibilities that I assume illustrate the four views proposed in the book.
In brief:
i. internal1 point of view (PJI: 206): philosopher A affirms the validity and applicability of a certain legal norm p in a certain legal order B on the basis of the internal statements2 of the participants in that legal order, without, however, engaging in said argument in practical terms;
ii. internal2 point of view (PJI: 203 ff.): participant A in a legal order B asserts that a certain legal norm p is valid and applicable in B, compromising himself in practical terms with regard to said argument;
iii. external1 point of view (PJI: 206): observer A reports that a certain state of affairs (the fact that some people act in a certain way) occurs in a certain place and at a certain time, without regard to internal statements2 of the participants and without regard to an institutional dimension, as well as without making practical compromises with respect to the survey.
iv. external2 point of view (PJI: 210-212): observer A reports that a certain circumstance (the fact that some people act in a certain way) occurs in a certain place and at a certain time, taking into account the internal statements2 of the participants and the institutional dimensions associated with the circumstances, but without any compromise in practical terms.
In the author’s view, the above viewpoints may intersect as follows:
The internal point of view of the accepter would include, for example, those who follow the rules out of custom – with an irreflective adherence – those who adopt towards them a conscious supportive stance although they do not believe in their correctness, and the true believer – who believes in the moral correctness of the norms. In any event, it may be said that the accepter is committed in practical terms. It is she believes, or presupposes, that the norms she accepts are justified. To refer to this way of understanding the distinction l will speak oh tge adoption of the internal or external points of view (PJI: 210).40
Thus, nothing excludes that a true accepter of an institution, on a certain occasion, formulate statements referring to it but not committed to their justification, i.e., formulate internal1 statements from an external2 point of view. Correspondingly, it is possible for an agent not participating of, or not accepting, an institution, to refer to it on a specific occasion presupposing that it is indeed justified. That is, it is possible for her to formulate internal1 statements from an internal2 point of view (PJI: 212).41
The purpose of this original proposal is to defend the theoretical possibility of analyses of various kinds. In particular, Redondo is concerned to defend the possibility that a jurisprudential theory can identify and explain the content of a legal system, legal phenomena, legal concepts, etc., without necessarily accepting or justifying them (PJI: 195). Redondo’s claim is that the assumption of an internal1 point of view plays a purely epistemic role (PJI: 206; 215).
Against this background, PJI promotes the possibility of neutral normative-conceptual analyses. Legal positivist scholars are portrayed as engaging in purely theoretical or conceptual analyses that are in no way connected to “the content of the legal institutions which the participants of a specific practice are interested in” (PJI: 178). The legal positivists could carry out their analyses of positive law without any commitment towards their subject matter, without providing any kind of even indirect justification of the law, nor expressing any form of substantial or evaluative acceptance of it.42
Redondo’s proposal is based on a contested reading of Hart’s internal point of view, which is taken to be “an internal (moral) point of view”.43 However, I will not discuss Hart’s exegesis here.44
For my purposes, it is important to outline some difficulties that affect the neutrality thesis of the internal1 point of view.
First, Redondo acknowledges that the external2 point of view is not value-free either:
Adopting an external2 point of view with regard to a certain institution means that such institution is not accepted, that no theory justifying it is presupposed as true. Now, this says nothing about the commitments which she who adopts such stance has regarding other concepts or independent institutions. And, above all, it does not imply that whoever adopts this external2 attitude does not assume moral commitments in general. For this reason, it is wrong to link the idea of an external2 point of view to an Archimedean or neutral stance in absolute terms. Consequently, showing that it is impossible to refer to normative contents from an Archimedean or absolutely neutral perspective does not amount to prove that it is impossible to refer to normtive contents from an external2 point of view, simply because the external2 point of view is no Archimedean stance, nor it is evaluatively neutral in absolute terms (PJI:214).45
In other words, Redondo recognizes that the attitude of the external2 observer is also influenced by the internal2 point of view. That is, any analysis (even if carried out by uninvolved parties) is influenced by its normative object.
A similar observation applies to the external1 point of view because, as the empirical and social sciences teach, it is impossible to identify legal phenomena in terms of pure, brute fact without reference to some normative criteria, some idea of convention or rule, or some parameter of rule-following, etc.46
With direct reference to the internal1 point of view, Redondo roots her proposal in Peter Winch’s conception of action (PJI: 11, 204).
I think, however, that Winch’s ideas cannot be a philosophical pillar of Redondo’s theory. According to Winch47, human and social behavior cannot be understood without referring to the concept of rule. Rules are used to evaluate what someone does. The notion of rule-following is logically inseparable from the notion of error and misbehavior. If it makes sense to say that a certain person follows a rule, it means that we can also ask whether what one does is correct or not. Otherwise, it would be impossible to say that a particular behavior is right (i.e., correct) or wrong or that someone is following a rule in what she is doing.
Moreover, Winch notes that the Anarchist avoids explicit rules as much as possible and considers each proposed action on the basis of its intrinsic value. His choice is not determined a priori by a rule he may follow, but his behavior should be distinguished from foolish behavior, for example.48 In this respect, the notions of rule and universalizability are fundamental analytical tools, according to Winch.49 In his view, in order to understand social phenomena, social scientists cannot imitate natural scientists, and should therefore participate in the practice.50 This view is very far from the neutral and epistemic view proposed by Redondo.
Apart from this problematic reference to Winch in PJI, the crux of the matter is that the identification of fundamental concepts such as those of norm, duty, social practice, institutional act, etc., is not an activity of mere cognition, but the result of choices that depend on the methodological, ethical, and political attitudes espoused by the theorist.51
In keeping with her concern for neutrality. Redondo does not tap into the axiological background behind her positivismo jurídico normativista. She merely refers to the institutional and teleological-functional perspective that lies beyond her normative legal positivism (PJI: 246). For Redondo, law is an institutional concept, and it is so because of a fundamental practical consideration: positive laws are social institutions that have a practical function and find their raison d’être in this practical function.
But even this perspective is not neutral or value-free. Analyses carried out from Redondo’s point of view have to deal internally1 with questions related to, for example, what a legal institution is and the notion of (legal) authority, which are not purely theoretical or epistemological.
Similarly, the positivismo jurídico normativista denies the political dimension of law at the methodological level and especially in relation to jurisprudence. There are no references to the political dimension of legal theory in the book. This is a direct consequence of Redondo’s belief that legal theory involves a conceptual enterprise that does not interfere with positive law and existing legal institutions.
The main flaw of Redondo’s theory lies in forgetting that jurisprudence, and especially a normative theory of legal positivism, cannot conceive of sterilizing its own connection with the legal practice of which it is a part, to which it addresses its own analyses, and which is in constant dialogue with other legal experts (judges, legal scholars, etc.). From a theoretical point of view, it is conceivable to have a theory (of law) that is concerned only with ideal analyses, fully divorced from the laws actually in force here and now (and perhaps in every time and place). In my view, such a theory ends up sterilely and almost contradictorily as a futile exercise, abusing the title of a theory of law. However, even allowing for this hypothesis in abstracto, this is not true of all the theories of law examined in Redondo’s book and of her own theory. Redondo’s positivismo jurídico normativista is neither a theory meant to be sterile, devoid of any impact on positive law and legal method, nor a theory that lives in a vacuum. Rather, PJI is a theory that does indeed have a normative character, not only because of its object – law - but also because of the goals of the prescriptive methodology that it proposes, even if somehow covertly.52
This is one of the main differences with many other conceptions of legal positivism and, for example, with the one proposed by Scarpelli in 1965.53 Scarpelli clearly exposed the axiological and political compromise of legal positivism vis-à-vis positive law, emphasizing that “the normative standpoint is constituted by the political commitment to norms”, functioning as exclusive criteria to guide behaviour and are always produced and re-produced involving teleological judgments directed to specific purpose and values (Scarpelli 1983: 297-300).54
In conclusion, my main criticism of Redondo’s positivismo jurídico normativista concerns her attempt – misleading, in my opinion – to present the internal1 point of view as neutral, failing to explain explicitly the evaluative choices that underlie its methodological proposal.
I think that the majority of the theses presented in the book (those on normativity, the role of practical reason, authority, institutions, their functional relevance from the pragmatic point of view, the anti-skeptical approach to legal interpretation, etc.) could be defended even after abandoning the illusory ideal of the neutrality of legal theory.55
In this respect, I agree with Schauer56 in that a concept of law is something that is made and continually remade by society: whether this is done, and on what grounds and for what purposes, is itself a normative matter, and in this sense legal positivism is normative like the other theories and doctrines of general jurisprudence. Each of them may have its descriptive side, but every choice of a legal concept and every argument for its conceptual determination has a normative underpinning.