Normativity and Objectivity in Law

By Patterson, Dennis | William and Mary Law Review, October 2001 | Go to article overview

Normativity and Objectivity in Law


Patterson, Dennis, William and Mary Law Review


The agreement of people in calculation is not an agreement in opinions or convictions.

--Ludwig Wittgenstein (1)

INTRODUCTION

The protagonists battle on. Trumpeting right answers, (2) foundations, (3)

and truth, (4) objectivists lash out against the unrelenting tide of nihilism, postmodernism, and deconstruction. (5) Armed with the tools of literary theory, antifoundationalism, and Kuhnian (6) "relativism," subjectivists (7) dismiss the dreams of objectivism as philosophical illusions. But the "conflict" between these two camps is vastly overstated. In fact, the entire debate depends upon a shared premise, one that is both false and unnecessary. The objectivism/subjectivism debate assumes a picture of mind and law that should be extirpated rather than explicated. (8) In this Article, I argue in favor of objectivity but do so from a more perspicuous framework. I seek to change the terms of the debate from one of mind to one of action. After this change is effected, the current debate will simply fade away, and a new, more revealing focus shall take its place.

Objectivity is often theorized as a relationship between an assertion and some state of affairs in virtue of which the assertion is "objectively true." (9) The nub of the argument is that assertions or beliefs are true in virtue of the way things are (i.e., facts). (10) Facts make assertions and beliefs true, and objectively so, for facts are not mere matters of mind: they are a function of the way things are. (11) By conceptualizing objectivity in terms of a connection between a belief or assertion and a mind-independent state of affairs, proponents of objectivity all but guarantee creation of objectivism's opposite, subjectivism. Subjectivists deny the efficacy of the objectivist account of the relation between mind and world, locating the seat of truth and belief in the individual subject. The debate is intractable.

I argue that the choice between objectivism and subjectivism is false. Just because we are free to describe a situation in a variety of ways (rejecting objectivism) (12) does not dictate the conclusion that, within each vocabulary, there are no standards for correct and incorrect assertion (rejecting subjectivism). (13) I propose to approach objectivity from the point of view of normativity. By "normativity" I mean to identify the ways in which speakers of a language appraise assertoric utterances in terms of "correct" and "incorrect" or "true" and "false." I want to replace the conventional understanding of objectivity with an account of the notion that grows out of the actual practice of law. My claim is that the normativity and objectivity of legal judgment is a function not of the way the world is, but is forged in community agreement over time. Action, not mind, is the basis of this alternative approach to normativity and objectivity.

Law exhibits an argumentative framework employed by participants in legal practice to show the truth of legal propositions. (14) Identifying this framework, and describing how it is used to appraise propositions of law, is a central feature of my argument. Objectivity is a product of the recursive use of this argumentative framework. I shall describe the framework in detail, explain how action, not mind, is the central feature of normativity, and then explain both the presence and limits of objectivity in law.

This Article has five parts. I begin by describing the current state of the objectivity debate in legal theory. (15) The two leading positions, objectivism and subjectivism, are discussed in the context of exemplary examples of each position. The conclusion of this part of the Article is that the debate between objectivism and subjectivism rests on a false premise. Having identified that premise, I explain in Part II why normativity can best be thought of in social rather than cognitive terms. Here I discuss the oft-trodden topic of rule-following (16) to set the stage for Part III, where I argue for the social basis of normativity. …

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