B. Brożek - Outline of A Theory of Law's Normativity

63 ou t l i n e o f a T h e o r y o f L a w s No r ma t i v i t y
bartosz broek
OUTLINE OF A THEORY
OF LAWS NORmATIvITY
This essay aims at developing a framework for discussing laws norma-
tivity. it is my claim that there is no one absolute conception of the nor-
mativity of law: any such theory is relative to the accepted ideal of ration-
ality. however, there exists an absolute notion of normativity, although it
is a feature of what i call rudimentary rules, which cannot be divided into
types (moral, legal, etc.). i claim further, that it is the rudimentary rules and
rudimentary normativity that conditions the very possibility of discussing
different approaches to laws normativity.
The essay consists of three parts. Part 1 is devoted to the traditional ex-
planations of normativity, i.e. to monism and dualism. a detailed analysis of
two examples (Petrayckis and Kelsens theories of law) leads to the conclu-
sion that in order to account for the normativity of law, one needs to adopt
broader ontological and normative perspectives, ones that are not conined
to legal rules. Part 2, in turn, examines the ontological basis for any discus-
sion concerning normativity. Drawing on the conceptions of wittgenstein
and Popper, i attempt to develop a satisfactory ontology of rules. finally,
Part 3 deals with the different notions of normativity and culminates in the
formulation of some general morals for legal philosophy.
studia_z_filozofii_6.indd 63 2011-06-15 13:19:40
64 B a r t o s z B r o e k
one inal remark: in what follows i accept a working deinition of
normativity which reads: rules of behaviour are normative if and only if
they constitute objective reasons for action. i am fully aware of the fact
that there exist other approaches to normativity. however, i believe that
the deinition accepted here is the most common. moreover, it has the
advantage of distinguishing the normative force of a rule from its mere
psychological bindingness.
1. The Received Ontological Scheme
from the most general ontological perspective, one can speak of two
traditional schemata of explaining normativity. on the monistic account,
rules are reducible to the sphere of facts (sociological or psychological). in
this way, what we call reasons for action are mere psychological (subjec-
tive) motives or some predictions of social behaviour. The dualistic account,
in turn, offers a full-blooded conception of rules as objective reasons for
action. it does so, however, for a high price: it postulates the existence of
a sphere of values or pure norms, and opens an unbridgeable gap between
the factual and the normative. in what follows, i will analyse in detail para-
digmatic examples of monistic (Petraycki) and dualistic (Kelsen) explana-
tions of laws normativity. along the way, i will try to highlight the most
problematic aspects of both approaches.
1.1. Petrayckis monism
1
Petraycki is considered one of the most eminent if not the most emi-
nent Polish legal theorist. his answer to the question of what is law? is
very original indeed. it does not mean, however, that his conception is law-
less. Petraycki set out to lay new foundations for jurisprudence and claimed
that this task requires, irst and foremost, an answer to the question of what
is law. he observed that without such a deinition any legal-philosophical
and legal-theoretic considerations are carried out in a vacuum:
1
The following section is based on my paper Some Remarks on the Naturalization of Law,
[in:] Studies in the Philosophy of Law, vol. v: Law and Biology, eds. J. Stelmach, B. Broek,
m. Soniewicka, wyd. UJ, Krakw 2010, pp. 73-82.
This is a principal and prejudicial issue, one which conditions the
very possibility of the science of law
2
.
The answer to the question what is law demands, according to
Petraycki, the application of an adequate method. The problem is, how-
ever, that the methodological tools Petraycki uses are out-dated, if not
anachronistic even from the perspective of the 19
th
century philosophy
of science
3
. Petraycki claims that the goal of jurisprudence understood
as a science in the correct sense of the word
4
is to look for the essence of
law
5
. in effect, one should try to construct a classical deinition of law, i.e.
a deinition per genus et differentiam:
in order to divide the law scientiically into kinds and determine the
differences between them, one should know the genus of law ().
it is thus necessary to recognize to which higher, more general cat-
egory of phenomena law belongs
6
.
here, in a nutshell, one can ind all the ingredients of the aristotelian
view of science. it assumes, irst of all, that in the world there exist essences; the
aim of science is, thus, to capture those essences in deinitions which serve
to build a table of essential deinitions (Porphyrys tree), one that classiies all
entities univocally. Petrayckis method presupposes, then, a very strong meta-
physical view. it also encapsulates a static conception of science. Both those
features are inconsistent with the practice of contemporary science.
furthermore, one has to note that some of Petrayckis claims open
the door to a revision of aristotelian orthodoxy. he says, for example:
The foundation of scientiic legal policy should be the examination
of the causal features and the causal mechanisms of law in general,
and of its different kinds and elements in particular
7
.
The passage above indicates that jurisprudence should conine itself
to the considerations of causal connections, while in the aristotelian
2
L. Petraycki, Wstp do nauki o prawie i moralnoci (An Introduction to the Science of Law and
Morality), PwN, warszawa 1959, p. 41.
3
Cf. the views of french conventionalists.
4
L. Petraycki, Wstp, op.cit., p. 13.
5
Ibidem, p. 39.
6
Ibidem, pp. 31, 35.
7
Ibidem, p. 14.
tradition the teleological connections play an eminent role. moreover,
Petraycki also notes:
especially in science, where each and every theory needs to overcome
attempts at rejection and modiication in order to be considered ac-
ceptable (), where one has to do with a struggle for life and only
the ittest doctrines survive, one should expect that with the passage
of time there should survive objectively sound theories
8
.
Such a declaration its well with the conceptions of Popper or Lakatos.
This is evidence that Petraycki had many original insights connected to
the question of what is science. Unfortunately, he combined them with
the anachronistic ideas of aristotle. This led, in turn, to the development
of an incoherent methodology. it wouldnt be too devastating if the ele-
ments of the essentialist ideology remained at only the verbal level but
Petraycki applied those methodological rules meticulously, making his
theory of law one conceived in original sin, an unacceptable one.
for Petraycki and that is also aristotelian jurisprudence, as well as
other humanistic and social disciplines, needs a foundation, which is to be
found in a more basic science: psychology. Petraycki was unhappy with
the psychology of his time, in particular, disagreeing with the Kantian her-
itage it accepted. Kant divided mental phenomena into three categories:
knowing, feeling and willing. Petraycki considered this division incom-
plete, claiming that one should add to it another, fourth category:
one should distinguish not three, but four basic forms of inner
experiences and four classes of mental elements: (1) emotions, i.e.
impulsions (two-sided mental experiences), 2) and 3) sensations and
feelings (passive one-sided experiences), 4) processes of the will
(one-sided active experiences)
9
.
emotions (impulsions), a category which is essential for the task of
deining law, are two-sided, active-passive, while all the other experiences
are one-sided. among the emotions Petraycki includes hunger and love
10
.
8
Ibidem, pp. 205-206.
9
L. Petraycki, O pobudkach postpowania i o istocie moralnoci i prawa (On the Motives for Action
and on the Essence of Morality and Law), oicyna Naukowa, warszawa 2002, p. 14.
10
Cf. ibidem, p. 10.
furthermore, Petraycki provides us with a classiication of emotions.
from our perspective, the most interesting are the ethical emotions (emo-
tions of duty), which are experienced as an inner limitation of freedom
11
.
ethical emotions could be further divided into moral and legal; the former
are exclusively imperative (i.e., the actor feels obliged to do something),
while the latter are imperative-attributive (the actor feels obliged to do
something, but also accepts that someone else has the right to require her
to do it). This distinction leads Petraycki to the famous deinition:
Law, as a separate class of real phenomena should be understood as
such mental experiences whose emotions are of the attributive char-
acter (). all the other ethical experiences, i.e. experiences of exclu-
sively imperative emotions, should be deemed moral phenomena
12
.
one should be mistaken, however, if she insisted that Petraycki iden-
tiies legal norms with certain emotions or complex mental experiences.
in order to clarify this issue, one should distinguish between such notions
as emotion, representation, norm and duty.
emotion, as noted above, is one of the four basic, irreducible mental
experiences. People, according to Petraycki, also have the power to im-
agine certain situations or behaviour. Such an imagined representation
together with the emotion it causes constitutes a motive for action. in On
the motives for action and on the essence of morality and law Petraycki says:
we are interested, especially, in one particular type of motivation,
the one in which there is a connection of representations of various
acts with very peculiar emotions, which we deem ethical emotions
or emotions of duty
13
.
for instance, if i imagined taking part in a fraud, i would experience
a mental state similar to that which i experience while considering eating
a piece of rotten meat, touching a spider or a snake; in normal circum-
stances i would experience repulsive emotions
14
.
11
Ibidem, p. 27.
12
L. Petraycki, Teoria pastwa i prawa (Theory of State and Law), vol. i, PwN, warszawa
1960, pp. 72, 73, 123.
13
Idem, O pobudkach, op.cit., p. 25.
14
Ibidem, p. 21.
furthermore, one should distinguish between emotions, representa-
tions and motives on the one hand, and legal and moral norms and duties
on the other. Petraycki deines legal (moral) norms as the contents of the
ethical (moral or legal) convictions
15
. Thus, norms are not emotions, mo-
tives etc but they are of an intellectual character. They may be described as
speciic representations or propositions, which can be grasped (contem-
plated). it is worth noting that those representations (propositions) serve
as primitive terms in Petrayckis psychology, similar to the notion of idea
in hobbes, Descartes or Locke, or the notion of concept in Kant.
The notion of duty is deined in a similar way. Petraycki says:
Duties are ideal projections, which originate in our minds. Such pro-
jections are connected to the described emotions and representa-
tions, and not to some things or phenomena in the outer world
16
.
it seems, therefore, that duties should also be called representations or
propositions, which are graspable by the human mind. one can ind the
conirmation of those conceptual distinctions in the following passages:
The explained difference of genus between one-sided imperative
(moral) and two-sided duty-imposing (legal) norms and duties is
based on the adequate genus differences among the emotional-intel-
lectual complex phenomena which are, as we demonstrated, the real
base for ethical duties and norms
17
.
The basic motivation, which consists in connecting representations
of actions with the above characterized repulsive or impulsive emo-
tions, we should deem ethical motivation and the corresponding
principles of behaviour ethical principles or norms
18
.
Therefore, law and morality exist in the minds of people. Law cannot
be identiied with norms. it would be a mistake, however, to identify it with
certain ethical emotions. when Petraycki says that law, as a separate class
of real phenomena should be understood as such mental experiences whose
emotions are of the attributive character, he claims that law is a complex mental
phenomenon, one that consists of adequate emotions, norms and duties.
15
Ibidem, p. 33.
16
Ibidem, p. 34.
17
Ibidem, p. 49.
18
Ibidem, p. 28.
Still, one more problem should be addressed: what is the relationship
between the law (in Petrayckis sense) and the provisions of legal acts?
Petrayckis reply is the following:
The representations of legal provisions or biblical commandments
shall be deemed the representations of normative facts. ethical
convictions, to which such representations belong, shall be called
positive ethical convictions, and their contents positive norms.
ethical convictions, which lack such representations of normative
facts, are intuitive ethical convictions, and the corresponding norms
intuitive norms
19
.
The general mental mechanism proposed by Petraycki appears as fol-
lows: people have the capacity to imagine certain situations, patterns of
behaviour etc. There are a plethora of sources of such imagined repre-
sentations: legal acts, the Bible, or any other normative fact, as well as
ones own intuition. Those representations cause the corresponding legal
or moral emotion. Together, they serve as motives for action.
in light of the above, one may say that Petraycki presents us with a
peculiar ontology of law. he believes that norms are certain representa-
tions or propositions. he claims, moreover, that law cannot be identiied
with the set of legal norms. Law consists of complex mental states, which
include representations (propositions), and emotions, together generating
motives for action.
it is interesting that Petraycki does not address the problem of laws
normativity. he does not consider legal (or moral) norms as objective rea-
sons for action. he seems to concentrate on a different question: how does
a legal or moral norm motivate peoples actions? The key role in this proc-
ess is played by the relationship between representations of certain states
of affairs and the ethical emotions they generate. Does this mean that the
reductionist strategy deployed by Petraycki leads to the elimination of the
concept of laws normativity? Does Petraycki show that the notion of a le-
gal norm which is an objective reason for action is meaningless? The answer
is a plain and resounding no. The notion of normativity is needed as soon
as Petraycki moves from describing law to the problems of legal policy.
19
Ibidem, p. 33.
The entire theoretical enterprise described above, which aims at un-
covering the psychological mechanisms of how legal and moral norms
inluence human behaviour, has an additional, practical goal. Petraycki says:
The essence of the legal policy problems boils down to scientiically
justiied prediction of the effects of enacting legal provisions. Legal
policy aims at developing such principles, which introduced into the
legal system or in some other way would yield the required effects
20
.
moreover, Petraycki devotes much attention to describing those re-
quired effects. The legislator, he claims, has a certain goal to realize
21
. The
goal is to be reached in a purely instrumental way, with the utilization of the
knowledge concerning the mental motivational mechanisms. in such a set-
ting the legislator becomes a super-human. while ordinary people are led
by emotions, the legislator applies the rules of pure instrumental rationality.
it is necessary, of course, to explain the normativity of those rules. further-
more, the surprising fact that a certain kind of rules the rules of rationality
are of a totally different character to legal and moral rules is also in need
of an explanation. Thus, the reduction proposed by Petraycki is only partial
and suffers from a serious case of schizophrenia.
in conclusion: Petraycki offers an intriguing conception of law. Con-
trary to usual presentations, he does not identify legal norms with emotions.
he claims that law is a complex mental phenomenon. Unfortunately, along
the way he commits some grave errors. The anachronistic method he ap-
plies aristotles essentialism carries with itself a serious metaphysical
baggage. accepting it, Petraycki is forced to look for the essence of law, an
ephemeral entity that is nowhere to be found. moreover, misled by aristo-
telianism, Petraycki looks for a foundational answer to the question what
is law. This foundationalism has two faces: irstly, it requires us to look for a
science that is more basic than jurisprudence; secondly, it launches a search
for some basic phenomena which, taken together, produce law.
all those deiciencies would be avoidable if Petraycki recognized the
role philosophy should play in any attempt at deining law. instead, he
20
L. Petraycki, Wstp, op.cit., pp. 13, 14.
21
Cf. K. motyka, Leon Petrayckis Challenge to Legal Orthodoxy, Towarzystwo Naukowe
KUL, Lublin 2007, pp. 48, 49.
tried to construct the deinition of law directly at the level of the more fun-
damental science of psychology (i disregard the fact that Petrayckis psy-
chology has little to do with contemporary psychology, as my remarks are
methodological in character). The disregard for the philosophical dimension
of his project leads Petraycki to a premature dismissal of the phenom-
enon of normativity. it turns out that the normativity problem reduced
to the psychological problem of the motivating force of law reappears at
a different level. when considering the goals of legal policy, Petraycki ex-
plicitly states that a legislator should act according to rules of instrumental
rationality, ones that clearly possess some normative force. The failure of
Petrayckis theory vis a vis the puzzle of normativity may thus be described
in terms of the unacceptable narrowing of the normative horizon. it is as if
Petraycki were content with the reduction of laws normativity to the nor-
mativity of the rules of instrumental rationality. moreover, he seems to have
no interest in explaining the normative force of the latter. in this way, the
normative horizon he adopts is quite narrow: his theory aims at accounting
for the alleged normativity of only legal rules. This may be interesting per se,
but as a way to solve the normativity puzzle it is useless.
1.2. kelsens dualism
hans Kelsens philosophy of law has been commonly recognized as one
of the most important contributions to 20
th
century legal theory. it is surpris-
ing, as his conception is descriptively inadequate and theoretically extravagant.
at the outset, it must be noted that Kelsen produced a lot of writings, of-
ten changing even the most basic of his views. Therefore, it is impossible to
present and comment upon all of his remarks concerning the problem of
normativity. instead, i shall concentrate on the main aspects of his view.
Kelsens idee ixe is best encapsulated by the title of his major work: he
sets out to develop a pure theory of law. This goal has several presupposi-
tions. firstly, it is assumed that there can exist an autonomous, speciic le-
gal method; secondly, that the method in question is useful and desirable.
The pure method stands vis a vis its object: the law, understood as an object
of scientiic investigation, independent of other branches of science:
[T]he purity of the theory or amounting to the same thing the
independence of the law as an object of scientiic cognition is what
i am striving to secure, speciically in two directions. The purity of
the theory is to be secured against the claims of a so-called so-
ciological point of view, which employs causal, scientiic methods
to appropriate the law as a part of natural reality. and it is to be
secured against the natural law theory, which, by ignoring the fun-
damental referent found exclusively in the positive law, takes legal
theory out of the realm of positive legal norms and into that of
ethico-political postulates
22
.
The independence of law as an object of scientiic cognition is se-
cured through taking the law to be a system of ideally valid norms, i.e.
the norms belonging to the sphere of pure ought (Sollen). Kelsen devotes
much attention to the reconstruction of the system in question. he rejects
the idea to regard it as a static system (a system of law connected through
content). The reason for this move is that the highest norm in such a sys-
tem is a maxim of the practical reason (in the Kantian sense of the word),
which leads to a version of a natural law theory. in other words, the legiti-
mization of a static system of norms lies in ethics.
The only remaining solution is to consider the law as a dynamic sys-
tem of norms, where norms are connected through a formal competence
relation: a higher norm establishes a competence to issue a lower norm.
also in this case, the question concerning the highest norm may be asked.
Kelsen deems it the Basic Norm (die Grundnorm). The Basic Norm is one
of the most controversial issues in Kelsens theoretical account of the law.
The dificulty is relected by the number of names with which Kelsen re-
fers to the Grundnorm. he speaks, inter alia, of the presupposed norm, pre-
supposition, a norm included in a supposition, juristic hypothesis, ultimate
hypothesis of positivism, ultimate ground of the validity of the legal sys-
tem, thought norm, genuine iction, judicio-logical constitution, constitu-
tion in the transcendental-logical sense, transcendental-logical concept, or
transcendental-logical condition of the interpretation in legal sciences
23
.
These descriptions are characteristic for two reasons. first, Kelsen
treats the Basic Norm as a certain assumption or presupposition. Second,
he believes it has a ictional character. The Basic Norm must be assumed
in order to understand what lawyers say when they claim that the norms
of a legal system are valid. Therefore, the Basic Norm:
22
h. Kelsen, Hauptprobleme der Staatslehre, JBC mohr, Tubingen 1911, pp. 3, 4.
23
U. Bindreiter, Why Grundnorm?, Kluwer, Dordrecht 2002, pp. 17, 18.
merely makes conscious what most legal scientists do, at least un-
consciously, when they understand [legal] facts not as causally deter-
mined, but instead interpret their subjective meaning as objectively
valid norms, that is, as a normative legal order, without basing the
validity of this order upon a higher, meta-legal norm, that is, upon
a norm enacted by an authority superior to the legal authority ().
The theory of the basic norm is merely the result of an analysis of
the procedure which a positivistic science of law has always applied
24
.
The Basic Norm is, at the same time, a iction: it is not a maxim of
the practical reason and as such has no determinate grounds. it has also
no determinate positive content it only prescribes to act in accordance
with the constitution and the acts issued on the basis of the constitution.
against the backdrop of the aforesaid, robert alexy does not hesitate to
call Kelsens Basic Norm an analytical norm. alexy claims, moreover
25
, that
the Basic Norm serves three different functions: it enables the categorical
transformation, establishes criteria and uniies the legal system. The categori-
cal transformation boils down to generating normativity. The Basic Norm
is the ultimate answer to the question as to how legal rules have any norma-
tive force. Kelsen does not explain how such a transformation is possible,
he merely claims that the thesis that legal norms are ideal obligations (hence:
objective reasons for action) presupposes the Basic Norm. The Basic Norm
also serves as the ultimate grounds for identifying those facts which are legally
relevant. Put otherwise, the Basic Norm establishes the criteria for determin-
ing which facts are important from the legal point of view. finally, the Basic
Norm becomes a principle which uniies the legal system: without it, the legal
system would remain an unordered set of disconnected norms
26
.
a similar characterization of the Basic Norm is offered by Bindreiter,
who stresses that the Groundnorm: (1) is not posited but only thought of;
(2) is hypothetical rather than categorical; (3) is devoid of any positive
content; (4) closes up the hierarchy of legal norms; and (5) generates and
transmits normativity
27
.
24
h. Kelsen, Pure Theory of Law, University of California Press, Berkeley 1967, pp. 204, 205.
25
Cf. r. alexy, The Argument from Injustice A Reply to Legal Positivism, Clarendon Press,
oxford 2002.
26
Cf. ibidem.
27

Cf. U. Bindreiter, op.cit.
from our point of view, it is the last of the features of the Basic Norm
enumerated which is by far the most interesting, as it constitutes Kelsens
answer to the normativity puzzle:
The basic norm of a positive legal order a dynamic, authorizing
basic norm is seen to achieve the initiation as well as the transmis-
sion, via the legal organs, of the bindingness the normativity
of law. Thanks to the competence of the legal organs (competence
stemming from the basic norm) binding force is inherited by the
lower norms of the [legal system]
28
.
This reply is surprisingly weak. if the source of normativity lies in a
merely thought-of hypothetical Basic Norm, Kelsens theory pays a high
price for its purity. while formulating the Basic Norm, Kelsen only puts
a label on what he does not know and cannot explain. Thus understood,
the Basic Norm is a de facto abdication of legal theory in the face of the
normativity puzzle.
however, in addition to the conception of the Basic Norm, Kelsen
formulates the thesis that legal norms are citizens of the sphere of pure
ought (Sollen), which should be clearly distinguished from the sphere of
facts (Sein). Stanley Paulson observes that this conception can be inter-
preted in two ways. Kelsens ought can be considered a de dicto or a de re
modality. in the former, our utterances about legal obligations are just a
way of speaking. in a sense, they are iction (they do not refer to any real-
ity). on the latter reading (de re), Kelsens thesis is a strong metaphysical
claim: he posits the existence of two, mutually independent ontological
spheres, that of is and that of ought. on this account, Kelsens pure
theory of law is parasitic on an ontology, which is queerer (in the sense
of mackies argument from queerness) than other ontologies, including
the Kantian. Kelsens Sollen is limited to legal norms, leaving unexplained
other kinds of normative phenomena, such as morality, rationality, etc.
29
.
The above analysis shows that Kelsens pure theory of law is a misit
it begins with a suspicious, if not plainly false assumption that the science
of law should stick to a mysterious, autonomous legal method. This thesis
28
Ibidem, p. 23.
29
S. Paulson, Four Phases in Hans Kelsens Legal Theory? Relections on a Periodization, oxford
Journal of Legal Studies 1998, 18, p. 157.
might have been reasonable at the beginning of the 20
th
century, when the
spectacular success of physics led the representatives of other disciplines
either to defend their autonomy, or to search for methods as eficient as
the methods of the empirical sciences, but so shaped as to answer the
needs of the respective disciplines. Today, however, the methodological
autonomy thesis is an anachronism. it is clear as soon as one considers the
development of the philosophy of science in the 20
th
century.
false assumptions led Kelsen astray. The view of law he developed
that of a dynamic system of norms, culminating in the merely thought-of,
hypothetical Basic Norm may be interpreted in one of two ways. if Kel-
sens Sollen is treated as a de dicto modality, one gets a theory of law which is
descriptively inadequate and which folds when faced with the normativity
puzzle. on the other hand, when one reads Kelsen as saying that there are
two ontologically different spheres, of is and of ought, the resulting dualis-
tic solution to the problem of normativity is queerer than the paradigmatic
queer ethical and legal theories. The queerness in question stems from the
fact that Kelsen shapes his sphere of ought to include only ideal legal ob-
ligations. in other words, Kelsen seems to narrow his ontological horizon (he
conines the discussion to legal norms). Thus, he leaves out other kinds
of rules: moral, linguistic, prudential, etc. where do they belong? an an-
swer pointing to the sphere of is only re-generates the normativity puzzle,
and urges us to sharpen ockhams razor in anticipation. if the normativity
of other-than-legal kinds of rules can be explained within the kingdom of
facts, the postulate of the existence of the sphere of Sollen is a clear exam-
ple of the forbidden multiplication of entities; if not, it is not only Kelsens
ontological horizon, but also his normative horizon which is too narrow.
2. Ontology of Rules
The problems connected with the normative and ontological horizons
are troublesome, but they are also highly characteristic of monism and
dualism. The monistic account one that attempts to show that laws nor-
mativity is actually a iction inds itself quickly embracing some other
kind of normativity (of the rules of rationality, morality etc.). This is the
working of the logic of monism: it tends to push us beyond the monistic
framework and accept something (e.g., the normative force of prudential or
moral rules) that lies outside the sphere of fact. Put otherwise, monism is
unable to deal with the properly determined normative horizon. Dualism,
on the other hand, is incapable of adopting a suficiently broad ontologi-
cal horizon. if it postulates that legal norms belong to the sphere of ought,
there is no place left for moral, prudential or linguistic rules. if the sphere
of ought is broadened accordingly, it becomes heterogeneous, and opens
up the way for asking, what is the nature of values, theories, and other
abstract objects. Do they belong to the sphere of ought or to that of is?
i believe that in order to deal with these problems one need to adopt
from the outset a more comprehensive approach, one that aims at ex-
plaining all kinds of normativity and of types of rules, while relating them
to other kinds of abstract entities. To this end, i suggest a careful analysis
of wittgensteins remarks concerning rule-following and a thorough re-
thinking of Poppers theory of the three worlds.
2.1. Wittgensteins Insights
in Philosophical Investigations wittgenstein offers what is probably the most
detailed analysis of the phenomenon of rule-following available
30
. Let us con-
sider wittgensteins favourite example. imagine that you ask someone to add
2, starting with 0. in reply, you get the following sequence of numbers: 2, 4,
6, 8, 10, ... 1000. at this point, something surprising happens. after 1000 you
hear 1004, then 1008, then 1012, etc. at your insistence that this sequence is
incorrect it should be 1002, 1004, 1006 your interlocutor says that she is
certain of her response. The question wittgenstein poses in this context is:
how do we know that 1002 is the correct answer? he notes ( 186):
() how is it decided what is the right step to take at any particular
stage? The right step is the one that accords with the order as
it was meant So when you gave the order +2 you meant that
he was to write 1002 after 1000 and did you also mean that he
should write 1868 after 1866, and 100036 after 100034, and so on
an ininite number of such propositions? No: what i meant was,
that he should write the next but one number after every number
30
Cf. L. wittgenstein, Philosophical Investigations, Blackwell, oxford 2001. This is the edi-
tion i quote below.
that he wrote; and from this all those propositions follow in turn.
But that is just what is in question: what, at any stage, does follow
from that sentence (...).
wittgensteins question may seem crazy. That in adding 2 1002 fol-
lows 1000 is obvious. however, it is the task of a philosopher to question the
obvious. it is relatively easy to show the dificulty involved in capturing why a
rule contains all those propositions. from the point of view of mathemat-
ics, the rule plus 2 is a function, i.e. an ininite set of pairs of numbers, of
which the antecedent is the one to which we add 2, and the consequent is
the result of addition. To know such a rule means to be able to contemplate
the actual ininity. This we cant do, however. There must be a different way
in which rules enable us to capture the potentially ininite cases of its ap-
plication. Therefore, we can note here an important intuition concerning the
concept of a rule: rules are patterns of behaviour (or: contain patterns of
behaviour). Let us call this requirement the pattern condition.
The second wittgensteinian insight concerning the concept of a rule
reads: rules are objective reasons for action (the reason condition). wittgen-
stein notes ( 222):
The line intimates to me the way i am to go. But that is of course
only a picture. and if i judged that it intimated this or that as it were
irresponsibly, i should not say that i was obeying it like a rule.
Put differently: even if we understood, how a rule contains all those
propositions, it would not be suficient to explain rule-following. rules
(at least some rules) must be objective reasons for action. even if there are
rules, how is it possible, that we should follow them? a complete theory of
rules must reply to this question.
against this background, wittgenstein rejects some traditional con-
ceptions of rules. The typical interpretation of Philosophical Investigations
posits that wittgenstein undermines three theories of rules: mechanicism,
Platonism and mentalism. firstly, rules are not dispositions to act in the
given way (e.g., to answer 1002). we do not follow rules automatically
and such an account is at odds with the reason condition. Secondly, rules
are not mental states, rather wittgenstein observes that one can imagine
rules as some kind of picture. however, it is dificult to comprehend how
such a picture can contain all the cases of a rules application (e.g., for
plus 2 this is an ininite number of cases). Thus, rules-as-pictures cannot
account for the pattern condition. Thirdly, the same holds true for Platon-
ism. were rules platonic objects, we would be able to imagine them only
as some kind of pictures.
i believe that the catalogue of the erroneous conceptions of rules
sketched above is too generous. observe that it is not clear where wittgen-
stein criticizes mechanicism (theory of dispositions). Saul Kripke, who also
claims that wittgenstein attacks mechanicism, cites 193-195 as the basis
for his reconstruction
31
. Let us recall some passages from these paragraphs:
( 193) The machine as symbolizing its action: the action of a ma-
chine i might say at irst seems to be there in it from the start.
what does that mean? if we know the machine, everything else,
that is its movement, seems to be already completely determined.
we talk as if these parts could only move in this way, as if they could
not do anything else. how is this do we forget the possibility of
their bending, breaking off, melting, and so on? yes; in many cases
we dont think of that at all. we use a machine, or the drawing of
a machine, to symbolize a particular action of the machine. for
instance, we give someone such a drawing and assume that he will
derive the movement of the parts from it.
( 194) when does one have the thought: the possible movements
of a machine are already there in it in some mysterious way? well,
when one is doing philosophy (...).
( 195) But i dont mean that what i do now (in grasping a sense)
determines the future use causally and as a matter of experience,
but that in a queer way, the use itself is in some sense present.
But of course it is, in some sense! really the only thing wrong with
what you say is the expression in a queer way (...).
one may ask what is the goal of the analysis of the concept of a
machine. it seems that is not to seriously consider the possibility that rule-
following is similar to the operations of a machine. The remarks follow
directly 186-192, which aim at dismantling mentalism. This is a hint that
for wittgenstein it is some aspect of the metaphor of rules-as-machines
that matters. The aspect is that the action of a machine seems to be there
in it from the start. This remark is vital when one considers the pattern
31
Cf. S. Kripke, Wittgenstein on Rules and Private Language, harvard University Press, Cam-
bridge 2007, p. 35 and n.
condition. it is hard to comprehend how rules contain all the cases of
their application (cf. 186); similarly, although i cannot think of all the
future operations of a machine, knowing its structure i in a way know
what operations it can perform.
an additional argument in favour of the interpretation that the analy-
sis of machines is but another thread in the discussion concerning mental-
ism can be found in the structure of 195: But i dont mean that what
i do now (in grasping a sense) determines the future use causally and as
a matter of experience, but that in a queer way, the use itself is in some
sense present. This sentence is not uttered by wittgenstein, but by his
interlocutor. it follows that the dialogue concerning machines from its
very beginning concerned a version of mentalism. it aimed at providing
a picture of how a rule determines all the cases of its application, despite
the fact that grasping a rule does not consist in contemplating all of its
possible applications at once. Thus, it seems unlikely that mechanicism is
an object of attack in 193-195.
The above discussion strongly suggests that wittgensteins main object
of attack is mentalism and Platonism. however, it is not so certain in the
latter case. i would say that if wittgenstein launches an assault on Platon-
ism it is surprisingly weak. Let us observe that he does not formulate any
of the traditional arguments against Platonism he deploys neither ock-
hams razor, nor the argument from queerness. moreover, the alleged at-
tack on Platonism is encapsulated in a few paragraphs of the Investigations.
in this context, the least controversial seems the role of 218 and 222:
( 218) whence comes the idea that the beginning of a series is
a visible section of rails invisibly laid to ininity? well, we might
imagine rails instead of a rule. and ininitely long rails correspond
to the unlimited application of a rule.
( 222) The line intimates to me the way i am to go. But that is of
course only a picture. and if i judged that it intimated this or that as
it were irresponsibly, i should not say that i was obeying it like a rule.
in the quoted passages the metaphor of rules-as-rails is used: rules like
rails may lead us to ininity to ininitely many applications. wittgenstein
points out, however, that this is only a picture. we are trying to imagine rules
as ininite rails, for we have no better metaphor. moreover, let us observe
that there is nothing in the picture of rails that would suggest that it depicts
an abstract object which is beyond time and space as any Platonic object
would be. rather, it seems that wittgenstein is dealing here with two dif-
ferent problems. first, he stressed that rails stretch to ininity; it is only a
metaphor, an attempt to express the fact that a rule determines all the cas-
es of its application, although while grasping a rule we cannot picture
all these applications. Secondly, wittgenstein utilizes the reason condition,
claiming that the metaphor of rules-as-rails is incapable of accounting for
it. he says: if i judged that [the line] intimated this or that as it were irre-
sponsibly, i should not say that i was obeying it like a rule. The problems
connected to pattern and reason conditions occur again and again. Let us
have a look at the following paragraphs:
( 187) But i already knew, at the time when i gave the order, that he
ought to write 1002 after 1000. Certainly; and you can also say you
meant it then; only you should not let yourself be misled by the gram-
mar of the words know and mean. for you dont want to say that
you thought of the step from 1000 to 1002 at that time and even
if you did think of this step, still you did not think of other ones. (...)
( 188) here i should irst of all like to say: your idea was that that act
of meaning the order had in its own way already traversed all those
steps: that when you meant it your mind as it were lew ahead and
took all the steps before you physically arrived at this or that one.
Thus you were inclined to use such expressions as: The steps are re-
ally already taken (...).
it is clear that wittgenstein attacks here the idea that one can think of a
rule in such a way that it contains all the steps. it is impossible. yet what if
grasping a rule does not boil down to seeing all the steps? it is as if we could
grasp the whole use of the word in a lash. Like what e.g.? () But have you
a model for this? No. it is just that this expression suggests itself to us. as the
result of the crossing of different pictures ( 191). you have no model of this
superlative fact, but you are seduced into using a super-expression ( 192).
i believe that the correct way of interpreting these remarks is to ob-
serve that they are not uttered within an academic discussion, which clear-
ly distinguishes between mentalism and Platonism. The questions witt-
genstein asks are more concrete: what is a rule if it were to contain all the
steps? how can it be grasped? it seems that wittgensteins attack goes
deeper than the rejection of mentalism or Platonism. his target seems to
be the model of thinking-as-seeing. This is one of the most deeply rooted
metaphors of western culture. Thinking is usually referred to as seeing
through the minds eye. This idea had many progenitors but Descartes
played a leading role since it was he who urged us to look for ideas that we
see in a clear and distinct way. it was Descartes and his contemporaries
who insisted that what matters is the mental discourse in our minds, the
chain of ideas we see with our inner eyes, and not the public discourse,
which is of no real philosophical signiicance
32
.
Doubtless, the model of thinking-as-seeing is only a model, a handy
metaphor that helps us to describe the process of thinking. moreover, it
seems useful in many contexts. when i try to solve a geometrical problem,
recall someones face, or imagine my lecture tomorrow, my thinking may
resemble seeing. it is less useful, however, when i feel pain (Descartes claims
that this also is an instance of seeing an idea) or follow a rule: here, the
metaphor of thinking-as-seeing fails. from this perspective, wittgensteins
remarks on rule-following undermine a key model of thinking and of the
architecture of the mind, a model so dear to the western philosophy. it is
also at the same time an attack on mentalism and Platonism, to the extent
that they are connected to the model of thinking-as-seeing (which they
are, at least in their most typical incarnations).
it is much more dificult to present wittgensteins solution to the prob-
lem of rule following in a coherent way. however, a number of aspects of
the solution may be identiied. firstly, wittgenstein claims that one cannot
speak of rule-following outside of a community. as Saul Kripke observes,
if one person is considered in isolation, the notion of a rule as guiding
the person who adopts it can have no substantive content. The situation
changes when we widen our gaze from consideration of the rule follower
alone and allow ourselves to consider him as interacting with a wider com-
munity. others will then have justiication conditions for attributing cor-
rect or incorrect rule following to the subject
33
.
This observation is based on a number of wittgensteins remarks in which
he stresses the communal character of rule-following. for example, he says:
32
Cf. i. hacking, Why Does Language Matter to Philosophy?, Cambridge University Press,
Cambridge 1975.
33
Cf. S. Kripke, op.cit., p. 89.
The phenomenon of language rests on regularity, on agreement in
acting. here it is of the greatest importance that all of us, or the
overwhelming number, agree on certain things. for example, i can
be sure that the colour of this object will be called green by most
people who see it
34
.
Thus, rules are neither mental states, nor platonic objects. one can
speak of rule-following for we participate in a certain social practice; a
practice based on common agreement.
Secondly and contra Kripke the sole regularities of social behaviour are
insuficient to justify speaking of rule following. as Susan hurley observes:
[i]t is not an adequate answer to say that the solution [to the witt-
gensteins paradox] practices provide is a sceptical one, that nothing
underwrites content and we just, contingently, happen to agree in doing
this rather than that. () [T]he full force of the sceptical view dissolves
our capacities for intentional action, for trying and choice, however ar-
bitrary, as much as for perception and thought. it takes the ground out
from under the feet of pragmatism and conventionalism, as much as
Platonism and psychologism. it rules out appeals by the sceptic to our
intentional responses, our attributions, our constructions, our investiga-
tions, our procedures of veriication or ratiication, etc.
35
.
in short: hurley tries to say that in order to speak of rule-following one
needs not only agreement in social reactions but also certain mental attitudes:
that i believe that the given behaviour is obligatory (complies with a rule).
Thirdly, wittgenstein claims that rule-following has a systematic charac-
ter. Put differently, speaking of rule-following is possible only against a back-
ground of a complex system of behaviour and mental attitudes. one can say
that one followed a rule only because there are a large number of cases in
which one can speak of following different rules. wittgenstein notes:
we say that, in order to communicate, people must agree with one
another about the meanings of words. But the criterion for this agree-
ment is not just agreement with reference to deinitions, e.g., osten-
sive deinitions but also an agreement in judgements. it is essential
for communication that we agree in a large number of judgements
36
.
34
L. wittgensein, Remarks on the Foundations of Mathematics, miT Press, Cambridge ma
1983, 342.
35
S. hurley, Natural Reasons, oxfrod University Press, oxford 1992.
36
L. wittgenstein, Remarks on the Foundations..., op.cit., 283.
fourthly, in light of the above, an important if not decisive role is
played by very simple, basic rules. in 219 wittgenstein observes:
all the steps are really already taken means: i no longer have any
choice. The rule, once stamped with a particular meaning, traces the
lines along which it is to be followed through the whole of space.
But if something of this sort really were the case, how would it
help? No; my description only made sense if it was to be under-
stood symbolically. i should have said: This is how it strikes me.
when i obey a rule, i do not choose. i obey the rule blindly.
Crispin wright claims that most such basic cases of rule-following,
in which one tends to speak of following a rule blindly, are the key to
understanding the phenomenon of rule-following. These reactions
although they are full-blooded rule-following, as they are rational in the
sense that they involve intentionality and a willingness to accept correc-
tion in the light of inadvertent breaches of the rule
37
are to a great
extent derived from our biological underpinning. Thus, it is no surprise
that we agree when we determine colours: [T]hat is no miracle: it is just
what is to be expected of biologically and neurophysiologically similar
creatures, hardwired and trained in similar ways
38
. on the other hand,
the agreement in the most basic cases constitutes the foundation for the
phenomenon of rule-following in more complicated situations, when it
is more proper to say that following a rule is not blind, that it requires
a decision (cf. 186 of Philosophical Investigations).
fifthly, at the basic level, the phenomenon of rule-following displays
a feature that may be called normative unity. what i have in mind is
that at the basic level one cannot distinguish between different kinds of
rules. Some commentators claim that wittgenstein speaks only of lan-
guage rules yet this is a mistake. Nowhere does wittgenstein narrow at
least explicitly his remarks to language. moreover, his favourite example
of the rule plus 2 is hardly an instance of a purely linguistic rule. if it
were, the same would hold of any rule: one should not kill other people,
one should pay taxes, or one should maximize her utility function. of
37
C. wright, What is Wittgensteins Point in the Rule-following Considerations, http://www.nyu.
edu/gsas/dept/philo/courses/rules/papers/wright.pdf, p. 26.
38
Ibidem, p. 31.
course, Philosophical Investigations are centred around language but wittgen-
stein offers a new conception of the relationship between language and
reality. it is no longer understood in terms of the language of describing
or depicting the world. for wittgenstein, language is a tool for acting in the
world. in this way, the dichotomy of language reality loses its importance.
one cannot clearly distinguish between linguistic and other kinds of rules:
each rule, be it mathematical, moral or legal, has its linguistic dimension, is
an element of a language-game, i.e. determines the uses of certain expres-
sions. This is especially visible at the level of the most basic rules. only
through an ex post relection, through the application of abstract categories
of mathematical or linguistic rules, can we judge that the utterance of 1002
after 1000 was an instance of the application of a mathematical rule, while
the utterance of green was a result of applying a linguistic one.
one can justiiably ask how this wittgensteinian conception fares vis a
vis the pattern and reason conditions. The answer is straightforward, but
subtle. The pattern condition taken literally is not fulilled. however,
in contrast to other theories of rules, there exists a rudimentary form of
the fulilment of the pattern condition in the wittgensteinian account. on
the one hand, it is provided by the regularities in social behaviour and re-
lated reactions to others actions. on the other hand, people are equipped
with what biologists and psychologists call a pattern recognition mecha-
nism, i.e. a biologically conditioned capacity to grasp structural similari-
ties between events, individuals or properties. The role of these abilities is
clearly visible in the cases of the most basic rules. The reason condition
in the developed conception is also present in a rudimentary form. rule-
following is a communal enterprise. in this way, it is not dependent only
on what goes in our heads: we have (publicly shared) reasons to act in the
given way, not merely psychological motives.
my inal observation concerning wittgensteins insights is this: witt-
genstein would never say that the existence of rules is conditioned by both
the regularities of social reactions and mental attitudes. he would be pre-
vented from doing so by his metaphilosophy, which forbids constructing
philosophical theories, including ontologies. Thus, to be faithful to the witt-
gensteinian directives, one would need to say that the regularities of social
reactions and mental attitudes condition the possibility of speaking of rule-
following. however, as i have argued elsewhere
39
, wittgensteins metaph-
ilosophy is objectionable. in particular, it is based on some assumptions
(e.g., regarding the possibility of distinguishing scientiic or logical problems
from the philosophical ones) that can and should be rejected. Therefore
i am inclined to say that wittgensteins remarks can be interpreted as pro-
viding two conditions for the existence of rules. from this perspective, it is
reasonable to claim that rules are emergent entities which supervene on the
regularities of social behaviour and are a kind of mental attitude.
2.2. Into the World 3
it is my claim that a good point of departure for someone who sets
out to construct the ontology of rules which stays clear of the Scylla of
monism, and the Charybdis of dualism, is the so-called conception of
three worlds due to K.r. Popper. in this pluralistic philosophy the world
consists of at least three ontologically distinct sub-worlds; or, as i shall say,
there are three worlds: the irst is the physical world or the world of physi-
cal states; the second is the mental world or the world of mental states;
and the third is the world of intelligibles, or ideas in the objective sense; it is the
world of possible objects of thought: the world of theories in themselves,
and their logical relations; of arguments in themselves; and of problem
situations in themselves
40
. one can add: of rules of behaviour, values, etc.
i will leave aside numerous objections raised against Popperian theory but
instead i would like to concentrate on a number of its features which i be-
lieve to be essential to the discussion pertaining to the ontology of rules.
firstly, world 3 really exists. one should note, however, that Popper de-
ines existence in a special, albeit not unprecedented way: existing objects
have the capacity to inluence one another
41.
Popper says: The theory itself,
the abstract thing itself, i regard as real because we can interact with it we
can produce a theory and because the theory can interact with us. This
39
Cf. B. Broek, r. Zyzik, Wittgenstein o reguach (Wittgenstein on rules), Logos i ethos
2008, 1(24), pp. 27-58.
40
K. Popper, Objective Knowledge, oxford University Press, oxford 1972, p. 154.
41
Ibidem, p. 200.
is really suficient for regarding it as real
42
. he develops this thought as
follows: [one need] only think of the impact of electrical power transmis-
sion or atomic theory on our inorganic and organic environment, or of the
impact of economic theories on the decision whether to build a boat or an
aeroplane
43
, in order to reject the ictitious character of the world 3 objects.
Second, the world 3 is autonomous. By this explains Popper i mean
the fact that once we have started to produce something a house, say we
are not free to continue as we like if we do not wish to be killed by the roof
falling in
44
. The autonomy of the world 3 is connected to its objectivity.
Both the autonomy and the objectivity are indicated by the fact that certain
problems and relations are unintended consequences of our inventions,
and that these problems and relations may therefore be said to be discov-
ered by us, rather than invented: we do not invent prime numbers
45
. in
other words, Popper indicates that any discovery within the world 3 may
lead to some objective consequences which are independent of our will.
for example, one of the consequences of the development of freges log-
ical calculus in Begriffschrift was the possibility of constructing the russell
paradox. frege was unaware of this possibility; on the other hand, russell
did not invent it, he only discovered it. Besides, Popper claims that the
distinction between invention and discovery is in most contexts un-
important, for every discovery is like an invention in that it contains an
element of creative imagination
46
. Be that as it may, the objectivity of the
world 3 is, in Poppers view, indisputable.
Thirdly, Popper provides us with an evolutionary explanation of the
emergence of the world 3. he believes contra Plato that the entities of
the world 3 are not superhuman, divine and eternal; they are products of
the long process of human evolution. The world 3 is a human product, in
the same way as nests and dams are animal products. it is the expression of
our adaptation, whose roots lie in our biology. The essential element of the
evolutionary theory of the world 3 is its emergent character. Popper utilizes
42
K. Popper, Knowledge and the Body-Mind Problem, routledge, London 1996, p. 47.
43
Idem, Objective..., op.cit., p. 159.
44
Idem, Knowledge..., op.cit., pp. 47, 48.
45
Ibidem, p. 48.
46
Ibidem.
the classical understanding of emergence: in the course of evolution new
things and events occur, with unexpected and indeed unpredictable prop-
erties; things and events that are new, more or less in the sense in which a
great work of art may be described as new
47
. emergence leads then to new
properties, which are irreducible to the properties of the underlying system.
one would be mistaken, however, to claim that the Popperian thesis
that the emergent properties are irreducible is indefeasible. although Pop-
per stresses the implausibility of a future reductionist explanation of the
emergence of life, language or mind, he confesses:
i want to make clear that as a rationalist i wish and hope to under-
stand the world and that i wish and hope for a reduction. at the same
time, i think it quite likely that there may be no reduction possible; it
is conceivable that life is an emergent property of physical bodies
48
.
This declaration is highly characteristic of Poppers ontological the-
ory. Nowhere does he claim that the three-worlds ontology should be
taken literally. he suggests only that compared to other ontological
conceptions it is a better, more useful tool of philosophical argumen-
tation. The world 3 is a useful convention. i would say says Popper in
Knowledge and the Body-Mind Problem that really the name world 3 is just
a way of putting things, and the thing is not to be taken too seriously.
we can speak about it as a world, we can speak about it as just a certain
region
49.
in another essay he adds:
whatever one may think about the status of these three worlds i have
in mind such questions as whether they really exist or not, and whether
world 3 may be in some sense reduced to world 2, and perhaps world
2 to world 1 it seems of the utmost importance irst of all to distin-
guish them as sharply and clearly as possible. (if our distinctions are too
sharp, this may be brought out by subsequent criticism.)
50
.
The world 3 is a metaphor: we could, if we wish to, distinguish more
than three worlds
51
. or: whether or not you distinguish further regions or
47
K. Popper, J.C. eccles, The Self and Its Brain, routlege, London 1984, p. 22.
48
K. Popper, Objective..., op.cit., p. 292.
49
Idem, Knowledge..., op.cit., p. 17.
50
Idem, Unended Quest, routlege, London 2002, p. 211.
51
Idem, Knowledge..., op.cit., p. 25.
worlds, is really only a matter of convenience
52
. in this way, Popper tries
to say that the conception of the world 3 is a step in the right direction. Ulti-
mately, it may transpire that it is better to speak of one, two, or forty-seven
worlds. it is crucial, however, to realize that vis a vis the existing ontological
theories the idea of the world 3 constitutes progress. Put otherwise: the
division of the reality into three worlds is a heuristic device. it helps us to
identify real problems and to appreciate the role of our theories.
The above presentation of Poppers theory of three worlds indicates
that his ontological stance falls neither under the category of monism,
nor dualism. it is not dualistic, as there is no unbridgeable ontological gap
between the world 3 and the remaining spheres of reality. in a way, Pop-
pers world 3 is a function of the world 2. Thus, the world 3 is not queer
or trivial; the rules of conduct that belong to the world 3 are not sui generis
entities. Poppers ontology is not monistic, either. Popper stresses that the
objects of the world 3, including rules, actually exist. as emergent entities,
they cannot be reduced to the sphere of the mental.
moreover, i believe that Poppers conception should be modiied in an
important way. The required modiications are along the lines of wittgen-
steins remarks on rule-following. Let us observe that for Popper the emer-
gence of the world 3 is genetically connected to the emergence of language.
without language, there exists no world 3. Thus, i claim that wittgenstei-
nian remarks constitute the key to determining what is the foundation of the
world 3 or, in other words, what is it that the world 3 supervenes on.
as indicated above, wittgenstein rejects the traditional ways of under-
standing rules and suggests that one can speak of rule-following only if
there are certain regularities of social behaviour. as Saul Kripke puts it, if
one person is considered in isolation, the notion of a rule as guiding the
person who adopts it can have no substantive content. however, when
we widen our gaze from consideration of the rule follower alone and
allow ourselves to consider him as interacting with a wider community
everything changes. others will then have justiication conditions for at-
tributing correct or incorrect rule following to the subject
53
. in my view,
Kripkes interpretation goes too far. he claims that mere social reactions
52
Ibidem, p. 18.
53
Ibidem, p. 66.
entitle us to speak of rule-following. wittgenstein says something differ-
ent: in order to understand rule-following one needs to take into account
both the regularities of social behaviour and mental attitudes.
The main modiication of Poppers theory i propose is that i reject
the view that the world 3 emerges from the world 2 alone. i believe that
a better hypothesis reads that the world 3 supervenes both on mental at-
titudes (belonging to the world 2) and social interactions (which belong to
the world 1). This modiication which essentially boils down to marry-
ing Popper with wittgenstein is less absurd than it may seem in the irst
place. it is my claim that pace wittgensteinian metaphilosophy, which
rejects any attempts at constructing ontologies the similarities between
the two stances are surprising. Put otherwise: i believe that if wittgenstein
allowed the construction of ontology he would have to propose a concep-
tion very similar to the Popperian one.
The irst striking similarity between wittgenstein and Popper is that
both launch a heroic assault on Cartesianism, and especially on the Car-
tesian idea of thinking-as-seeing. in Self And Its Brain Popper says explicite
that one can indeed speak of rational intuition, but it is far from infallible
moreover, it usually leads us astray. in order to explain what thinking
is and, in particular, how do we grasp the objects of the world 3 Pop-
per points out that it is easier to understand how we produce them, rather
than how we perceive them. he believes we have no intellectual faculty
capable of grasping the world 3 objects. however:
we may understand the grasping of a world 3 object as an active
process. we have to explain it as the making, the re-creation, of
that object. in order to understand a dificult Latin sentence, we
have to construe it: to see how it is made, and to re-construct it, to
re-make it. in order to understand a problem, we have to try at least
some of the more obvious solutions, and to discover that they fail;
thus we rediscover that there is a dificulty a problem. in order to
understand a theory, we have irst to understand the problem which
the theory was designed to solve, and to see whether the theory
does better than do any of the more obvious solutions. in order to
understand a somewhat dificult argument like euclids proof of the
theorem of Pythagoras, () we have to do the work ourselves, tak-
ing full note of what is assumed without proof. in all these cases the
understanding becomes intuitive when we have acquired the feel-
ing that we can do the work of reconstruction at will, at any time.
This view of grasping assumes no eye of the mind, no mental
organ of perception. it assumes only our ability to produce certain
world 3 objects, especially linguistic ones. This ability in its turn is
no doubt the result of practice. a baby starts by making very simple
noises. he is born with the desire to copy, to re-make, dificult lin-
guistic utterances. The decisive thing is that we learn to do things by
doing things, in appropriate situation, including cultural situations:
we learn how to read, and how to argue
54
.
The passage quoted above in addition to the rejection of the thinking-
as-seeing model hints at one more important issue: Popper claims that the
development of the objects of the world 3 requires certain practice. Poppers
use of the word practice is, naturally, not identical to that of wittgenstein.
he thinks of the ways in which a child learns how to grasp (construct) the
world 3 objects through training. The point is, however, that wittgensteins
view is very similar. The difference between the two outlooks boils down to
the fact that Popper in contrast to wittgenstein claims that we should
not be content with the description of practice and training. we shall explain
more, we shall resolve more problems, if we assume that the practice led
to the evolutionary emergence of an autonomous world 3. wittgenstein is
safeguarded from such a conclusion by his therapeutic philosophy.
one can point out one more similarity between the two philosophers.
Both although in different ways underline the social character of lan-
guage and other cultural artefacts. Popper notes:
reason, like language, can be said to be a product of social life. a
robinson Crusoe (marooned in early childhood) might be clever
enough to master many dificult situations; but he would invent nei-
ther language nor the art of argumentation
55
.
i do not claim that Popper offers here a summary of the private lan-
guage argument. however, the similarity is striking.
The above discussion offers two different accounts of rules, which are
safeguarded against the objections of the normative and ontological horizons.
first, there is the view reconstructed on the basis of wittgensteins remarks.
one can speak in this context of rudimentary rules. The rudimentary rules
54
K. Popper, J.C. eccles, op.cit., pp. 44, 45.
55
K. Popper, The Open Society and Its Enemies, vol. ii, routledge, London 2006, p. 250.
emerge from the regularities of social behaviour coupled with special mental
attitudes (that there is an obligation to follow a certain pattern of behaviour).
as i have tried to stress, rudimentary rules have certain speciic characteristics.
at this level, there are no individual, stand-alone rules. we must rather speak
of a system of rules. moreover, i also posit that rudimentary rules cannot be
unequivocally individuated. in other words, one cannot provide a set of ab-
solute criteria for rule-individuation. Speaking metaphorically, the same amal-
gam of rudimentary rules may be divided in various ways, giving different sets
of fully individuated rules. what follows, at the rudimentary level there exists
no absolute criterion for distinguishing kinds of rules. one is in no position
to ascribe different rules to different categories (linguistic, legal, moral, math-
ematical). rudimentary rules are normatively uniied.
The second view we investigated is that of Popper. although he says
little of rules per se, i believe there is enough evidence to attribute a con-
ception of abstract rules as the citizens of the world 3 to him. on this ac-
count, rules are abstract entities, which can exists in isolation (i.e., apart
from a system of rules). what follows, is that rules can be unequivocally
individuated; one can also ascribe some rule-categories (legal, linguistic,
etc.) to them. i also claim that the emergence of the abstract rules is the
result of our relecting on our behaviour. it is only through relection that
we can categorize different kinds of rules, ask what are the criteria for dis-
tinguishing legal, moral, linguistic, mathematical and other types of rules.
Now, the crucial step is to recognize that both stances are accept-
able. The ontology of rules proposed here is as follows. There exist three
worlds or spheres. The world 1 is the physical reality; it is also the basis
for the emergence of the world 2 (the world of mental states). The phe-
nomena belonging to both of these worlds are subvenient entities on which
rudimentary rules supervene. These, in turn, are the scaffolding for the
abstract rules and other entities of the world 3
56
. The proposed ontology is
56
Possibly, one can also distinguish between so-called intermediary rules, i.e. rules that
exhibit the characteristic features of both rudimentary and abstract rules. These would
be the rules we live by. however, their introduction would result in much more com-
plex conception for the sake of readability i am not following this line of inquiry
here. Cf. B. Broek, Normatywno prawa. Szkic teorii (The Normativity of Law. A Sketch of
a Theory), Logos i ethos 2010, 1(28), pp. 29-66.
neither monistic nor dualistic. it is not monism, as rules cannot be reduced
to facts, neither mental, nor social, not a combination thereof. it is not dual-
ism, as it is not assumed that there exists a separate and ontologically auton-
omous sphere of rules of behaviour; the world 3 is autonomous, but it stays
in a relation of supervenience to the worlds 1 and 2. moreover, the ontology
of rules offered here fares well with the problems of the ontological and
normative horizons. on the one hand, it is not conined to one particular
kind of rules (moral, legal, mathematical, etc.). on the other, through the
idea of rudimentary rules and their normative unity, it is safeguarded from
the risk of leaving some kind of normativity unexplained. in order to rec-
ognize this, we need to turn now to the conception of normativity resulting
from the ontology of rules developed above.
3. Two Faces of Normativity
The question of normativity reads: how do rules become objective
reasons for action? from a historical perspective, this question may be
answered in two different ways. first, one may claim that rules are sui
generis entities such that they possess the normative force; in other words,
rules of their own nature are objective reasons for action. a variation
of this solution is the conception of reasons as sui generis entities defended
by Joseph raz. Still another version of the realistic reply is Kantianism,
which posits that the rules of behaviour are normative (i.e., they con-
stitute objective reasons for action) if they comply with the Categorical
imperative. The problem is, however, that the objective validity of the
Categorical imperative comes from its status as a law of practical reason,
which ultimately places the source of normativity beyond the phenomenal
world (in the sphere of noumena). Thus, the irst solution to the puzzle of
normativity is foundational (there exists an ultimate source of normativity),
absolute (there is only one such a source) and anti-naturalistic (the sources
of normativity lie outside of the physical world, i.e. the world that can be
investigated with the empirical methods of science).
The second reply to the normativity question is reductionist. in its sim-
plest form it identiies the notion of reason for action with that of a (psy-
chological) motive. This answer is lacking as it leads to the dismissal of
reasons and to the conclusion that the normativity question is ill-stated for it
presupposes that objective reasons for action do exist. The basic arguments
for justifying the rejection of reductionism are the following. firstly, it is a
conception that seems to contradict some clear and fundamental intuitions;
this argument is as persuasive, of course, as the value we ascribe to our intui-
tions. a more compelling argument reads that the rejection of the notion of
reason makes it dificult to explain some spheres of our experience e.g., in
logic and mathematics (let us think of the rejection of psychologism in the
19
th
century). finally, the logic of reductionism is self-defeating. as illus-
trated with the theory of Petraycki (the same holds for the conception of
o.w. holmes), any attempt to construct a coherent reductionist conception
of laws normativity leads us beyond the reductionist scheme and makes us
accept at least one rule of behaviour (e.g., one should act in instrumentally
rational way) that is an objective reason for action.
The reductionist solution is naturalistic, but in a manner similar to
the realistic account it is foundational and absolute. in my view, the com-
bination of these two features makes it impossible to give a satisfactory
answer to the normativity question. according to the theory developed
here, either absolutism or foundationism should be rejected.
my answer to the normativity puzzle coupled with the ontology of
rules presented above reads: there are two kinds of normativity, which
are often mixed up in contemporary discussions concerning the subject
57
.
firstly, there is rudimentary normativity. it is characteristic of the rudimen-
tary rules and is absolute and non-foundational. There exists no clearly
identiiable source of normativity. rudimentary normativity does not result
from anyones decision (of the sovereign, of the society, of the practical
reason). it does not follow from the structure of reality either; legal or
moral rules are not sui generis entities. rudimentary normativity is generat-
ed by some mental attitudes and regularities of social behaviour. however,
the attitudes and the regularities depend through feedback on the ex-
isting system of (rudimentary and abstract) rules, hence the rudimentary
normativity is non-foundational.
57
The possible introduction of the concept of intermediary rules would result in identi-
fying a third kind of normativity, i.e. intermediary normativity. See the previous footnote
and cf. B. Broek, Normatywno prawa..., op.cit.
Secondly, one can speak of abstract normativity: an abstract rule of be-
haviour constitutes an objective reason for action if it is so dictated by some
conception of rationality (or some other normative theory, which informs
us, what should be done). in this way, abstract normativity in contrast
to the rudimentary form thereof is relative. whether we deem a given
abstract rule of behaviour normative or not, depends on the accepted
theory of rationality (morality, etc.). at the same time, abstract normativ-
ity is foundational: once a theory of rationality is chosen, it serves as a basis
for deciding which rules are objective reasons for action. in a way, then,
abstract normativity is ictitious: we only construct theories of rationality
which instruct us that we ought to do this and that. Such utterances would be
incomprehensible, however, if there existed no rudimentary normativity,
which makes it possible to grasp the meaning of the ought sentences.
The theory of normativity presented above may be justiied by a
number of arguments. firstly, i believe that the theory is backed up by
philosophical analysis of the concept of a rule. in short, a closer look at
the history of philosophy reveals that in modern philosophy there have
been two paradigmatic ways of accounting for rules. one of them the
monistic explanation assumed that rules are reducible to mere regu-
larities of social behaviour or to mental states. The other the dualistic
stance treats rules as abstract entities, whose sources are deeply rooted
in the platonic world or in the special faculty of human reason, anchored
in the sphere of the noumena. Both these views are connected to serious
problems, as indicated by wittgenstein. however, it is dificult to believe
that such persistent conceptions (monism and dualism), formulated on
so many occasions, in so many incarnations and with the use of often
incommensurable conceptual schemes, have all been completely wrong in ex-
plaining what rules are. The conception developed here, although neither
monisitc nor dualistic, provides an explanation of the theoretical advan-
tages of both historical stances. monism refers to what i call the system
of rudimentary rules, disregarding however that already at this level there
emerges a primitive form of normativity. Dualism, on the other hand, be-
gins with the abstract notion of rules, and failing to justify their existence
by recourse to facts, is forced to postulate the existence of some absolute
(God, practical reason, the noumenal sphere) capable of imposing norms
and values onto the neutral nature.
The second argument i would like to adduce may be called the argument
from theoretical consequences. it boils down to showing that the conception
developed here may explain the persistence of some theories of law. one of
the outcomes of the above presented considerations is the thesis that there ex-
ists no absolute deinition of a legal rule and laws normativity. The normativ-
ity of legal rules may be conceived of in different ways, relative to the accepted
theory of rationality. The same holds for the deinition of law.
Petraycki claims that the deinition of law has a prejudicial character
for legal science
58
. only after such a deinition is provided, one can make
legally relevant decisions, concerning validity, interpretation, and so on. The
problem is, however, that if anything is certain in legal theory, it is the fact
that no one has so far offered a commonly acceptable deinition of law.
robert alexy claims that this is fully understandable once we realize the
double character of the law: its factual-ideal nature
59
. on the one hand, the
law is a collection of idealized postulates, or ideally valid norms. on the oth-
er the law which is actually not followed, the law, which is not considered
binding, should not be deemed law. The attempts at resolving this dilemma
may lead either through the reduction of the law to one of the aforemen-
tioned dimensions, or end in a methodologically lacking, eclectic ontology,
which mixes up the ideal and the factual. an example of the former strategy
is Kelsens normativism or american legal realism. The most striking case
of the application of the latter method is the thesis of the ontologically
complex character of the law, defended in the 1970s in Polish legal theory.
i believe that the conception presented here sheds some light on these
old controversies. Let us observe that when we place emphasis on what i
call abstract rules, we shall end up with a theory of law which underlines its
ideal character. in turn, when we look at the law from the perspective of
rudimentary rules, it is easy to understand the sources of the psychological
and sociological conceptions of the law. moreover, when we consider the
role of language in the emergence of the world 3 objects, it becomes clear
why some scholars try to identify legal norms with a category of linguistic
expressions also, the thesis pertaining to the complex ontological nature
58
Cf. L. Petraycki, Wstp..., op.cit.
59
Cf. r. alexy, op.cit.
of the law may be reformulated in terms of my proposal, as the objects
of the world 3 supervene on both mental attitudes and social practices.
i do not believe, however, that the theory i develop implies or gives pri-
ority to one speciic deinition of law. on the contrary: i claim that law can
be deined in many ways. The deinitions may be better or worse, relative
to some accepted practical or theoretical goals. Nonetheless, they cannot be
fully arbitrary e.g. it is dificult against the background sketched above to
insist that the law is a category of mental phenomena or pure regularities
of social behaviour. in both cases, we refer to necessary conditions of the
existence of rules but taken in isolation, the conditions are insuficient.
at the same time, the positivist deinition of law as a set of rules to be re-
constructed solely on the grounds of legal acts is fully acceptable: the law
is identiied here with a subset of abstract rules. at the abstract level one
can also formulate a deinition of law in the Kelsenian manner: the law is a
set of ideal, pure obligations (it is impossible, however, to accept all of the
ontological baggage of Reine Rechtslehre). it is equally possible, however, to
consider the law as a set of rules applied by judges (but not: the regularities
in judges behaviour), as a set of primary and secondary rules, etc.
as i pointed out, one may formulate different deinitions of law, which
are better or worse relative to the assumed theoretical or practical goals.
however, one may also formulate two methodological directives pertain-
ing to the acceptability of the conceptions of law, quite irrelevant of the
assumed goals, be they practical or theoretical. The irst postulate reads:
one should ensure that the proposed deinition of the law be a part of a
broader and more coherent theory. a sole deinition of law, deprived of a
theoretical context, is useless. if one says that the law is a set of primary
rules conferring rights and obligations, and secondary rules of recogni-
tion, change and adjudication, it says quite little; but when we following
hart provide a broader context, which places legal rules among other
social rules, and distinguishes the law from morality or etiquette, and spells
out our ontological, epistemological and axiological assumptions, we shall
develop a conception which may be subject to rational critique. This is a
crucial point, as the only way to select a useful concept of law is to compare
various theories (ontologies). These theories must be discussable; and it is
impossible to discuss a single sentence. The comparison of simple deini-
tions, taken out of their contexts, is a futile enterprise.
another directive is strictly connected with this. a development of a
legal ontology can never aim at capturing the essence or the nature of law, or at
providing an absolute (or true) deinition of law. Such an aim presupposes
something akin to the aristotelian ontological framework, which posits
that there exist essences or forms of things. This way of thinking may rightly
be described as the myth of the nature of law. The myth is quite dangerous: it
requires that we search for a foundation for which there is no foundation;
it leads our thinking into blind alleys and may give rise to never-ending
and futile debates. it forces us to abandon the only reasonable criterion
for comparing the deinitions of law the criterion of the usefulness of
different conceptions in favour of the holy Grail of the essence of law.
of course, one can always say that speaking of the nature or the essence
of law is just a faon de parler; that it is not the aristotelian meaning that is
at play here; that the only goal is to determine the necessary and suficient
conditions of the application of the term law. even if it is sometimes
true, i still believe that this mode of speaking is dangerous: it either leads
to misunderstandings, or at worse is intentionally misleading.

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63 ou t l i n e o f a T h e o r y o f L a w s No r ma t i v i t y

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