Distinguiendo. Estudios de teoría y matateoría del derecho. Guastini, Riccardo. Published by Gedisa Editores, Barcelona, Price: £ Distinguiendo: Estudios de teoría y metateoría del derecho Pasta blanda – 10 dic Riccardo Guastini Gedisa Mexicana Riccardo Guastini is the author of Teoria e ideologia de la interpretacion constitucional / Theory and ideology of constitutional interpretation Distinguiendo.
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In this essay I argue a particular legal philosophy is committed to a partial and closed view of how distinguirndo work is conceived. This view produces a legal philosophy that lacks the ability to guide substantive discussions.
I argue that methodological legal positivism is not a good way to articulate the development of legal philosophy. Then, I argue that we need to consider the place that legal philosophy should occupy in the global intellectual landscape.
Estudios De Teoria Constitucional Por Riccardo Guastini
In addition, I develop my argument distinnguiendo distinguishing the work of legal-philosophy jurists from that of legal-philosophy philosophers and philosophy philosophers.
As a coda, I sketch the criteria in order to conceive analytical legal philosophy from a new perspective. La barbarie del especialismo. Justicia es dar a cada uno lo suyo. Analytical Legal Philosophy Revisited.
My primary aim in this essay is to present a perspective of the way I believe a significant part of legal philosophy is developed. This perspective will combine a testimonial ingredient with a conceptual stance regarding the place Philosophy of Law should occupy in the domain of what is called practical philosophy.
I would like to focus mainly, though not exclusively, on the Philosophy of Law developed by jurists, in either the Spanish-American context or the English speaking one.
I will also claim that this kind of positivism either becomes isolated from practical philosophy or has an inadequate understanding thereof.
Added to this is the fact that, if legal positivism is carved out under a partial and distorted conception of analytical philosophy, it also entails a fragmented and frail understanding of law and of the place of the Philosophy of Law.
I shall argue that we must once again reflect upon the best way to make conceptual analysis from the realm of practical philosophy and not from the confined walls of the legal positivist lighthouse.
The lights of this lighthouse are too weak to guide sailors venturing forth into the sea of practical philosophy in an illuminating manner and tackle the problem of the authority of law.
To begin with, I would like to present a diagnosis of the theoretical situation of the discipline. Firstly, there is a philosophy developed primarily by jurists dogmatists of law, judges and barristers who have borrowed philosophical tools in a fragmentary manner, often self-taught and generally ad hoc, in order to study problems they, ultimately, find urgent or interesting.
Several of these legal-philosophy jurists also understood that only philosophy made by analytical philosophers was worth reading, thus setting aside texts like those of Nietzsche, Foucault or Derrida, to give a few examples. This way of understanding philosophy, as I will argue, is pernicious and is not even required by analytical philosophy, at least not in the way I shall outline in this paper. Although I shall be dealing with this question later, it is worth to anticipate, roughly, the two reasons why I believe such a reception of analytical philosophy is pernicious.
First, because it serves as a poor excuse to ignore much philosophical work that is valuable. Second, because it is a way of understanding analytical philosophy which is too narrow and not descriptive enough of the work of many philosophers we would no doubt also consider analytical.
These legal-philosophy jurists I am thinking of, also generally received a more or less systematic, more or less careful, more or less encyclopedic legal education which problematized normative materials to a greater or a lesser extent.
But in most cases we are talking about philosophers who were made in schools of law rather than schools of philosophy.
This partial description does not mean that philosophers who were trained in schools of philosophy cannot also become interested in law as was, in fact, the case with classical philosophers such as Kant or Hegel or, nearer to our times, philosophers as divergent as Boaventura de Sousa Santos, 1.
While legal-philosophy jurists tackle small, concrete legal issues, legal-philosophy philosopher tend to deal with more abstract legal problems. This differentiation, on the other hand, has placed legal-philosophy jurists in the unfortunate situation of not being true philosophers, at least for some philosophers from schools of philosophyor, if they are, of doing nothing that seems of interest or worth taking seriously. And, for many lawyers, trained in legions of law schools, these legal-philosophy jurists are either not jurists or not lawyers and most of the things they write or teach, for example on logic, the methodology of a purported legal research project, etcetera, are manifestations of abstract, abstruse topics, unrelated to the true concerns or problems of jurists and therefore devoid of any practical relevance.
Another predominant feature is that an important part of the activities of these legal-philosophy jurists, notwithstanding the partial inclusion of certain philosophical tools, makes their work decidedly “isolationist” 11 or strongly “insular”.
This insularity is reinforced by two aspects. The first is related to the fact that the progress of the theory of law has been associated, starting with Kelsen, with a growing autonomy and strong delimitation of law and legal science with regard to other social disciplines. However, this process has generated significant inconveniences. First, this process generated “schizophrenic” jurists or thinkers. For example, Kelsen wrote on the political theory of democracy, the theory of justice and the theory of law separately, thus breaking the communication between these areas of study.
But apart from this observation of academic psychology the main problem has been the construction of a legal theory isolated from the remaining disciplines in the humanities history, moral and political philosophy, and so on. This isolation ends up generating partial and distorted images of law, showing it as something apart from achievements made in other areas, in particular relevant practices such as moral and political philosophy. Added to this, there are but a few institutional spaces for them to interact.
And this is not something attributable only to legal-philosophy jurists but also to philosopher-philosophers. Their indifference to certain theoretical research on law reveals how little philosophical sensitivity they sometimes show for relevant practical issues.
Law is a field where nearly all, if not all, the most relevant practical issues are posed. Perhaps this can be reinforced by what Mackie 13 once stated about ethics being jurisprudence’s poorer relative. This could also be reinforced by the idea once suggested by Toulmin that legal reasoning is the basis of informal logical reasoning, 14 with the idea popularized by Popper 15 that the tribunal of experience is similar to a court of justice in the way it operates or, lastly, with the idea that the modus operandi of analytical philosophy is similar to that of forensic argument.
All these examples show that some philosophy philosophers do show a greater sensibility to law, unlike other colleagues from schools of philosophy who represent the opposite attitude. The diagnosis I have made does not wholly capture the reality of the jurist philosophy but what it does do is to truly describe a large part of what can be called their theoretical production.
There is a common tendency between jurists that borrow fragmentarily certain philosophical tools and embrace a narrow understanding of analytical philosophy, so when they endorse methodological legal positivism, they rule out moral and political philosophy because these areas are external to a self-conceived discipline which is strongly autonomous.
This situation derives from a philosophy I shall call “unloaded”, that is, a philosophy lacking the power to improve the task of conceptual research in law and also in nearby areas like morality and politics.
In this work I wish to plea for a “reloaded” analytical legal philosophy. However, my idea of “reloaded” points to the thesis that legal philosophy as a discipline must be re-energized, reloaded with energy.
For this reloading to be feasible, in the first part of this work, it is necessary to revisit the relationship between jurist legal philosophy and philosopher legal philosophy section II.
That is, it is necessary first to question the common reception made of Bobbio’s old distinction. Second, it is necessary to revise the place the philosophy of law has riccarso universities, especially in schools of philosophy. And this will also involve a critical look at philosophy philosophers. I shall claim that what makes a person a philosopher is not his enrolment guasrini a university department of philosophy, but his ability to develop a philosophical perspective of the world.
And this is something relatively independent of people’s original training.
Filosofía jurídica analítica recargarda
But I shall definitely clarify this statement section IIIurging legal-philosophy jurists to look over the walls of the philosophy of law conceived in an isolated or insular fashion. This requires an exercise, an effort to fit the philosophy of law into what Willfrid Sellars called the “global riccsrdo landscape”.
I shall here defend a middle position. I believe legal positivism may be useful as a theory rather than as a philosophy of law. But as a philosophy, it is necessary to overcome legal positivism, due to the fact that we will not be able to account for the conceptual links between legal practice and moral and political philosophy. In addition, it is necessary to study the way in which mainly legal-philosophy jurists have received analytical philosophy section V.
I will claim that what is important, once the analytical spirit has been identified, is to broaden the boundaries of this tradition and encourage the dialogue and the reception of ideas held by philosophers from different traditions. Jurist legal philosophy, philosopher legal philosophy and philosopher philosophy. As I have claimed in the introduction, I intend to critically expose the modus operandi of a certain way of conceiving the philosophy of law.
Philosophy of law has been developed mainly along riccadro lines: Bobbio’s distinction has been distinguoendo as a way of reflecting two distinct styles of work: According to this distinction, jurists devote themselves to strictly legal issues such as the concept of illicit, administrative offence, labor risk, extra contractual liability, sanction, enforcement, embargo, etcetera, and they also know law better since they have originally been trained to casa manipulate their respective positive laws and, at best, to compare different legal systems.
On the other hand, legal-philosophy philosophers have focused on issues considered to be more abstract and have not necessarily received a systematic legal education: The distinction, which appears to be parasitic to an educational-bureaucratic organization like the university may, however, be clarified. This is, the so called philosophy philosophers could perhaps, after their basic philosophical training, have been drawn to specific legal questions, while the legal-philosophy philosophers could well have been jurists but felt a preference for legal issues of greater abstraction or dlstinguiendo.
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On the other hand, we have philosophy philosophers, a label I use simply to point to those generally trained in schools of philosophy who are interested in research areas such as the philosophy of politics, morality, religion, economy, mind, language, mathematics or logic. These philosophy philosophers are sometimes indifferent to the conceptual developments raised by the reflection on law.
Just as legal-philosophy jurists tend to work in an enclosed environment, so do these other philosophers, hardly concerned at all with law, viewing it disdainfully and, by extension, slyly sarcastic towards judges and lawyers who are viewed as corrupt beings, dim, foolish or ignorant of the cultural world around them.
This attitude is related to a prejudice rather than an illustrated exercise of philosophical doxa. No doubt there are factors that explain this disdain, irony or indifference towards the law. The tendentially insular training of jurists, linked to the discredit they, above all judges and lawyers, command with actions lacking in moral virtue, might explain the negative attitude of philosophy philosophers.
Added to this is the fact that philosophy philosophers tend to be skeptical about how much philosophy legal-philosophy jurists can actually master. I wish to maintain, as regards to this last point, that this skepticism is another covert form of prejudice and, as such, is rationally questionable. Naturally, philosophy philosophers start off with an advantage over legal-philosophy jurists: I say this because many schools of philosophy do not include philosophy of law as part of the curriculum, not even as part of practical philosophy reflections.
Yet the point I wish to dwell on is the following: What allows us to state that a person is a philosopher? The only attributive criterion cannot be based solely on the fact of having passed through the classrooms of a department of philosophy.
Wittgenstein 19 stressed that what makes us philosophers is a certain training, I would say certain ways of arguing and presenting reasons and, above all, having a nose for philosophical problems. From this point of view, the work of legal philosophers, trained in schools of law, may well be regarded as philosophical in the full sense and extension of the word “philosopher”.
While the former excelled in the philosophy of law, the latter worked on the philosophy of mind and language, and on metaphilosophy. My former teacher Ricardo Caracciolo is an eloquent example: And currently, my colleague Hugo Seleme, initially a jurist, is a recognized philosopher of politics and of normative ethics.
What I wish to state is that Bobbio’s distinction between “a jurists’ philosophy of law and a philosophers’ philosophy of law” must be revised. If the distinction is taken as a separation crystallizing and fixing a closed and stagnated manner of understanding the intellectual work of legal philosophers, be they jurists or philosophers, then it needs to be reformulated.
Behind a simple difference in style, the insular work of jurists ends up being justified when they claim to be philosophizing and the work of philosophers who are mostly insensitive to legal and practical issues jurists are presumably dealing with.
This way of posing the distinction does not contribute to the fluidity of intellectual work on law to avoid being less stagnated in a closed form of reflection with regard to more abstract or fundamental philosophical issues, or in relation to the everyday legal matters jurists deal with. What I want to claim is that legal-philosophy jurists should always take advantage of the work made by legal-philosophy philosophers and of the general tools and views articulated by general philosophers in topics like the justification of knowledge, problems of truth, logical structure of propositions, moral justification, the status of politics, or the structure of our minds and the constitution of personal identity, to give just a few examples.
A more terrestrial view, as the one offered by jurists, would surely be a good corrective or even a platform for empirical, conceptual or normative evidence, useful for inquiry by legal-philosophy philosophers and philosophy philosophers.
The importance of configuring modern law as a representation of a community’s ethical life in Hegel’s style could in turn be a precious instrument to gain an idea of the validity of legal rules that does not limit itself to notions such as pertaining to a legal system, for example, an extension to issues regarding a moral test of such rules.
Take the example of philosophy philosophers’ inquiry regarding the structure of mind and its relation to desires which can provide a valuable heuristic method for jurists when considering legal concepts such as intention or action.
My idea is that, notwithstanding the existence of a dominant preference for a tendentially closed form of research, 21 crossing disciplinary instruments and approaches 22 may have a more fluid, and therefore less stagnant impact on distinguishing between these three types distinguienddo work I have briefly described above. The philosophy of law and the global intellectual landscape. Another of my concerns is configured, as I said earlier, by Sellers.