Two Conceptions of Law and Their Implications for Legal Truth
20 Pages Posted: 5 Aug 2009
Date Written: August 3, 2009
The questions whether legal judgements are true or false and what makes them so does not only have substantial practical importance; it is also a difficult and persistent question from the point of view of legal philosophy. In this paper I will focus on two different conceptions of the law and on their implications for these questions. These two views of the law are, to state it with slogans, law as social fact and law as practical reason. The main point of this paper is to show how these fundamentally different conceptions of the law lead to different answers to the questions about legal truth. There is a second point, however. The nature and causes of the truth of legal judgements depends not only on the nature of the law, but also on the nature of truth in general. I will argue that there is a connection between one’s conception of the law and the type of truth theory one will be probably adopt. The realist theories of truth fit well with the law as social fact conception, even to the extent that it seems to be presupposed by it, while the non-realist theories are better suited to the law as practical reason conception. So we end up with two clusters. The one consists of the conception of the law as social fact, a realist theory of truth, and particular answers to the questions about the truth in law. The other cluster consists of the conception of law as practical reason, a non-realist theory of truth, and another set of answers to the questions about the truth in law. Apparently there is no neutral test by means of which we can choose between different conceptions of the law. Paradoxically, this does not mean that there are no single right answers to the question what the truth of a legal judgement amounts to and what makes such a judgement true. It ‘only’ means that the single right answer depends on one’s starting points and therefore may differ from one person to another. There is no ‘view from nowhere’.
Keywords: law as social fact, law as practical reason, theories of truth, legal truth
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