Ken Ehrenberg: "Uptake Grounds Legal Status, but be d Careful whom you Tell"
As a kind of institution, law is something we pretend into existence. As a kind of institution, law creates and manipulates artificial statuses which purport to create and alter desire-independent reasons for action. Uptake (or acceptance from the internal point of view) of some kind or another is the ground by which those statuses cross from mere pretence into a more robust existence. One person on his own, waiving his pen in the air shouting that it is the sceptre of power, giving him the right to make laws for the community, is a crank or a dreamer. But when others start believing it and seeing the pen’s holder as thereby having the right to issue rules that they ought to follow, then an institution is formed. All artificial status therefore depends upon uptake. However, the more we draw attention to this, the more we threaten its ability to succeed.
Alex Sarch: "The Willful Ignorance Doctrine: Fiction, Fact or of Legal Content From Semantic Meaning?"
In this presentation, I want to consider three views of the willful ignorance doctrine and compare the relative merits view. The first is the Fiction View. I argue for this view-- albeit far too briefly -- in my recent book on willful ignorance. More precisely, I contend that the willful ignorance doctrine involves a fiction. I follow the general criminal law theory consensus is not knowledge, and so the willful ignorance doctrine sanctions a fiction -- namely that the willfully ignorant defendant possessed the knowledge required for conviction. Thus construed, the willful ignorance doctrine would seem to pose legality and rule of law challenges. As Husak and Callendar argue, it would permit convicting defendants of crimes without all of their stated elements being present. I argue in my book that such a substitution of willful ignorance for knowledge can be normatively justifiable and perhaps we might want statutory reforms to reflect this practice more explicitly.
A second view of the willful ignorance doctrine -- call it the Fact View -- seeks to resist the "fiction" label by casting willful ignorance as merely another way of actually qualifying as knowing something for legal purposes. This is the route taken by the Model Penal Code. However, I think this view of willful ignorance as just another form of knowledge faces problems -- not least that it has some counter-intuitive entailments and would lead to a disunified and unstable account of what knowledge is for purposes of criminal law. Moreover, it, too, might seem to require statutory reforms.
Therefore, I want to consider a third view -- call it the Divergence View -- which may help reduce the legality and rule of law worries as well as obviate the need for thoroughgoing statutory reforms. To see the third picture, consider the debate in general jurisprudence about how to understand the relation between legal content and the ordinary semantic meaning of legal texts. People like Mark Greenberg and Jonathan Crowe argue that the two can come apart for a range of legitimate reasons. The willful ignorance doctrine might be thought to be one core example that helps drive a wedge between legal content and ordinary semantic meaning. After all, in virtue of this doctrine being widely accepted in the legal system, it might seem we have cases where criminal statutes whose ordinary semantic meaning is to prohibit certain acts done with certain bits of knowledge actually generate a wider obligation not to do those acts either with the mens rea of knowledge or willful ignorance (i.e. this is the wider legal content of these statutes). Thus, the legal content generated by the statute might seem to outstrip the facial semantic meaning of the text of the statutes.
Which of these three views is correct? Indeed, one might wonder if the third view is actually competitor to the first -- or just a more general description of the Fiction View. Regardless, if the Divergence view in some form is correct, would it really provide a non-question-begging way to remove the rule of law problems and obviate the need for statutory reforms others have argued for? Or would these worries still call out for a substantive answer (i.e. a normative justification of why, precisely, the true legal content of the statute can legitimately diverge from its ordinary semantic meaning in the sort of case in question)? Investigating these questions, it is hoped, will help us t better understand the precise way in which legal content (legal obligations, prohibitions and permissions) can be grounded in ordinary semantic meaning as mediated through legal practice.
Monika Zalewska and Carsten Heidemann: "Grounding in Hans Kelsen’s neo-Kantian Theory of Law"
1. Theories of metaphysical relations, and of grounding in particular, are en vogue in current general philosophical discourse. We attempt to reconstruct central theorems of Kelsen’s specific neo-Kantian theory of law, as contained in his writings between 1920 and 1935, with the help of grounding, in order to check its explanatory value. We choose Kelsen’s neo-Kantian writings because they contain the most elaborate and ambitious legal metaphysics he ever developed and because he makes use, in this phase, of vocabulary which comes close to grounding vocabulary. For instance, he talks of a “Grundnorm” forming the base of the legal system and maintains that the “ground” of the validity of any norm is a higher norm. And he takes the specific normative legal category, “(peripheral) imputation”, to be analogous in status to causality; causality in turn being possibly a case of (non-metaphysical) grounding. Furthermore, (parts of) neo-Kantianism and (parts of) grounding theory share the aim of replacing traditional ontology, which concentrates on “what there is”, by a theory of fundamental relations.
2. Kelsen’s neo-Kantian legal metaphysics may be summarised as follows: As it is impossible to have knowledge of a world as it may be independent of our cognition, the objective world can only be a product of our valid objective cognitive judgments. Their validity and objectivity is granted by their being in accordance with implicit or explicit rules guiding cognition. These rules are observed to the highest degree in the established sciences. Accordingly, traditional ontology, which refers to things as they might be in themselves, dissolves into a presuppositional analysis of the judgments of the successfully operating natural sciences. By analogy, legal ontology dissolves into a presuppositional analysis of the judgments of established legal dogmatics. Thus, the hypothetical normative judgment of legal science, which is identical with the general legal norm, is the core element of Kelsen’s legal metaphysics. It is the analogon of the natural law, connecting condition and consequence by the specific normative relation of imputation.
3. The concept of grounding is contested. Not only do many authors take grounding to be an esoteric and incoherent concept without any explanatory value; proponents disagree about central features of grounding. The following features might be said to be uncontroversial: (1) Grounding is meant to capture the meaning of “because” or “by virtue of”. (2) If it is taken to be a relation, this relation is asymmetric, irreflexive, transitive (though there seem to be exceptions). (3) It is closely connected to the notion of “explaining”. (4) The grounding element is somehow responsible or constitutive for that which is grounded.
There are, however, many features of grounding which seem to be a matter of stipulation. Major issues are: (1) Grounding might be a matter of the ontological level, of the epi-stemological level, or of the linguistic/logical level. (2) Grounding might be a relation (or some other static element), or a process/a procedure (or some other dynamic element). (3) Grounding might be an indefinable fundamental unitary notion, or a portmanteau-concept, covering different well-defined relations like causal, normative, or conceptual dependencies (as Schopenhauer thought).
4. To adjust grounding to the context of Kelsen’s neo-Kantian conception of law, it must be interpreted in a certain way. Grounding is in principle compatible with Kelsen’s neo-Kantian theory of law if it is taken to be a relation of dependency between cognitive judgments. It is incompatible with neo-Kantianism if it is taken to be part of the structure of “the world” in a realist sense (the world “in itself”, as it were). It is possibly incompatible with neo-Kantianism if grounding is taken to be necessarily asymmetric and the most fundamental metaphysical notion, and if it is taken to imply that there is a “last” most basic ground for everything. For Kantian and neo-Kantian philosophy is based on a conception of Gleichursprünglichkeit, or equiprimordiality, that is, of a mutual dependency of the basic metaphysical elements: The transcendental “I” depends on a coherent set of objective judgments, and vice versa. For Kelsen, the basic norm depends on the legal system, and vice versa.
5. If we accept these restrictions and disregard possible internal problems of grounding, there are several areas of Kelsen’s theory where grounding might at first glance be of explanatory value because the relation in question might be expressed by the terms “because” or “by virtue of”:
5.1 The relation between a higher and a lower norm in the legal hierarchy. (The higher norm is the Geltungsgrund (ground of validity) of the lower norm; the lower norm is valid by virtue of according to the higher norm.)
5.2 The relation between the empirical features of an act and its quality of being a legal act. (An act is a legal act by virtue of its empirical features.)
5.3 The normative relation between delict and sanction (that is, peripheral imputation). (There ought to be a sanction because there was a delict.)
5.4 The relation between an act of will of the law-giver and any norm Op posited by this act. (Op because the law-giver said so.)
Then there are two relations which are more difficult to grasp:
5.5 The relation between the modal indifferent substrate (that part of empirical fact and norm which either is or ought to be the case), the category of Ought, and the norm.
5.6 The relation between the basic norm and the legal system.
The relation 5.6 seems to be a relation of a “constitutive, yet mutual, dependency”; the relation 5.5 is similar to the relation between intuition, concept, and object in Kant's philosophy, the first two elements being unsaturated and constituting a meaningful whole (the third element) only when combined. Both the relations 5.5 and 5.6 cannot simply expressed by the terms “by virtue of” or “because”.
6. A closer check of grounding theory as a means of reconstructing these relations yields, on the one hand, that some of them might well be regarded as specimens of grounding, on the other, that the explanatory value of doing so is limited. This is what we intend to demonstrate in our presentation.