SOPhiA 2022

Salzburgiense Concilium Omnibus Philosophis Analyticis

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Programme - Talk

On the role of idealizations in legal interpretation
(Philosophy of Science, English)

The aim of my presentation will be to answer the question what role idealizations play in the process of legal interpretation. The philosophy of science literature highlights the crucial role that idealisations play in our cognitive practices, particularly in the sciences - both natural and social (Nowak 1980, Cartwright 1983, Weisberg 2007, Potochnik 2017, Uskali 2020), as well as in ethics, or political theories (O'Neill 1987, Ismael 2016). However, there is still little attention given to considering the role of idealization in legal studies, particularly in the crucial process of legal interpretation. One of the few philosophers of science who systematically addressed the issue of idealization in legal interpretation was Leszek Nowak, who, on the basis of his idealizational theory of science, pointed out that the process of legal interpretation is based on a number of idealization assumptions according to which the legislator is perceived as an ideal subject, i.e. one who, firstly, as a rational subject, possesses non-contradictory and systematic knowledge, asymmetrical and transitive preferences, and chooses means adequate to ends, and, secondly, as a perfect subject, possesses perfect linguistic competence, legal knowledge and up-to-date empirical knowledge, and wishes to realise states of affairs considered as decent against the background of a given legal axiology (Nowak 1973, 2021). Consequently, the interpretation of a legal text follows a direction that allows the realisation of these assumptions (Nowak 1973, 2021). In my presentation, using Nowak's theory as an example, I will consider what perspectives and limitations are involved in describing the practice of legal interpretation as a practice based on idealizations. At the same time, while acknowledging the validity of many of Nowak's insights, I will point to problems with the assumptions underlying his vision of legal interpretation (a theory of language that can be described as internalist, and a vision of legal practice that is not entirely adequate). Consequently, I will propose a modification of Nowak's model towards more externalist views of language (Putnam 1975, Kripke 1980, Milikan 1984), as well as more modern perspectives on legal practice (Dworkin 1987, Greenberg 2004), so that Nowak_s original theory becomes more resistant to objections.



Bibliography:

Cartwright, N. (1983). How the Laws of Physics Lie. Oxford: Clarendon Press.

Dworkin, R. (1987). Law's Empire. Harvard University Press.

Greenberg, M. (2004). How Facts Make Law. Legal Theory, Vol. 10, pp. 157-198.

Ismael, J. (2016). A philosopher of science looks at idealization in political theory. Social Philosophy and Policy, 33(1-2), 11-31.

Jones, Martin R. (2005). Idealization and Abstraction: A Framework. In Idealization XII: Correcting the Model, edited by Martin R. Jones and Nancy Cartwright, 173- 217. Amsterdam: Rodopi.

Kripke, Saul. (1980). Naming and Necessity. Harvard University Press.

Mäki U. (2020). "Puzzled by Idealizations and Understanding Their Functions." Philosophy of the Social Sciences 2020, Vol. 50(3) 215-237.

Milikan, R. (1984). Language, Thought, and Other Biological Categories: New Foundations for Realism, MIT Press.

Nowak, L. (1980). The Structure of Idealization: Towards a Systematic Interpretation of the Marxian Idea of Science. Dordrecht: Reidel.

Nowak, L. (1973). Interpretacja prawnicza. Studium z metodologii prawoznawstwa. Warszawa: Pa&_324;stwowe Wydawnictwo Naukowe.

Nowak, L. (2021). Chapter 9 Juristic Interpretation. In Pozna&_324; School of Legal Theory, Leiden: Brill.

O'Neill, O. (1987). Abstraction, Idealization and Ideology in Ethics. Royal Institute of Philosophy Supplements 22:55-69.

Potochnik, A. (2017). Idealization and the Aims of Science. Chicago: Chicago University Press.

Putnam, H. (1975). The meaning of "meaning". Minnesota Studies in the Philosophy of Science 7:131-193.

Weisberg, M. (2007). Three Kinds of Idealization. Journal of Philosophy 104 (12): 639-59.

Chair: Oyku Ulusoy
Time: 14:40-15:10, 09. September 2022 (Friday)
Location: SR 1.004
Remark: CHANGE. The talk is cancelled!

Marcin Wozny 
(University of Warsaw, Poland)



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