Ratio Juris. Vol. 16 No.

4 December 2003 (506–24)

The Existence and Life of Law

SEBASTIÁN URBINA

Abstract. From a commonsense view we usually accept that the claim “there is a dog
in this garden” implies the existence of this dog. If instead of a dog we are dealing
with black holes or quarks, our senses do not play the same role. We usually use
instruments that mediate between the object and us. What if we move from this, let’s
say, natural world to the legal normative field? Unlike the task of Legal Dogmatics
the task of Physics, for example, is not both descriptive and normative but only
descriptive of what there is (or a selected part of it) although they “see” what there
is through theories. In any case, Physicists do not try to “optimise” the laws of nature
as legal scholars (sharing an internal point of view) do with the legal order.

1. What There Is
Generally speaking, no citizen should be upset about the existence of legal
norms. This does not mean that it is only a whim of legal philosophers to
be interested in their existence. In doing so, the legal philosopher accepts
that common sense is not necessarily the last word in the ontological realm.
One possible approach is to follow a philosophical tradition that stems from
Aristotle, Leibniz, Kant, and other important thinkers who tried to know,
widely speaking, “what there is.”
In this work I will not try to scrutinize the existence of physical entities,
though I am not saying that physical entities have nothing to do with the
existence of legal norms that are not physical entities. In any case, how do
we know that something exists? At least from a commonsense point of view
we claim, for example, that “there is a dog in the garden” and in saying this
we imply the existence of this dog. How do we know that this dog exists?
We believe in its existence because we rely on our senses. We see the dog,
perhaps we can touch it. We can also believe that there is a dog in the garden
even if we do not see it, because we can rely on the testimony of a friend
who recently saw the dog there. We can also believe in its existence on the
basis of an inference. For example, we hear barking and infer that there is a
dog not very far away. Certainly we may be wrong but I will not scrutinize
this possibility because, inter alia, I will not support infallibilism.
© Blackwell Publishing Ltd 2003, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden 02148, USA.
 The Existence and Life of Law 507

If instead of a dog we are dealing with black holes or quarks, our senses
do not play the same role. We normally use complex instruments that
mediate between the object and us. We do not, or cannot, rely on our senses
as we do in the case of the dog. Furthermore, certain instruments have
allowed us to develop our ontology. Both telescopes and microscopes have
allowed us to see or discover new entities and these discoveries have
enabled us to widen our ontological fields. If we move from this, let us say,
natural world to the legal world, how should we cope with these ontologi-
cal problems?
As a first step we can state the known distinction between “brute facts”
and “institutional facts.” The former are not dependent on human will, con-
vention or contrivance. Institutional facts are different because the fact that
two people have made a certain agreement means that there is now a legal
contract, that is, we have a new “existing” entity. Is this true? For the
moment, let us say that this is not the only way to “create” institutional facts.
Let us see now whether there is truth, or not, in these institutional facts.
Let us take the case in which people state that something is true, for
example, that Peter rents his house to Mary. But what is stated is not true
simply because of the condition of the material world and the causal rela-
tionships obtaining among its parts. “On the contrary, it is true in virtue of
an interpretation of what happens in the world, an interpretation of events
in the light of human practices and normative rules” (MacCormick and
Weinberger 1986, 10).
In relation to our normative legal field, I would support a conception of
truth close to a pragmatic one. Hence, truth should not be understood as the
correspondence of legal language or legal normative texts to something
external. It is not applicable to the metalanguage of legal scholars when
dealing with the legislator’s language because the task of Legal Dogmatics
is not exclusively to reproduce or repeat what the legislator has already said.
These so-called legal propositions should not be called true or false because
the task of Legal Dogmatics is not only descriptive but also normative. The
rational reconstruction of the legal order (at least understood from an inter-
nal point of view, which is usual among citizens and officials) is a creative
rational reconstruction that tries to “optimise” its object either explicitly or
implicitly or in both ways. Unlike the task of Legal Dogmatics, the task of
Physics, for example, is not both descriptive and normative but only descrip-
tive of what there is, though physicists “see” what there is by means of
theories. In any case, physicists do not try to “optimise” the laws of nature.
In this respect, the language of physics could be called true or false accord-
ing to the correspondence theory of truth. In Legal Dogmatics what can be
called true or false is, at least usually, trivially true or false. This is because
when a given legal normative text (understood as an element of the legis-
lator’s language) has no conflicting meaning for the legal experts of a
given legal community, legal scholars just describe it. This can be better
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508 Sebastián Urbina

understood in the light of what H. Hart called “hard-core meaning” of legal

concepts or legal rules. It is well known that he tried to distance himself
from legal realists who believed that “open texture” was applicable to the
entire legal order and not only to the margins or frontiers of it. Hence, we
would have a “hard core” and a “penumbra.” The first part would be basic
because it would allow the important legal function of guiding and justify-
ing the behaviour of citizens and the decisions of judges. The problem is
how we should understand this “hard core.” To understand it as if legal con-
cepts and legal rules had an intrinsic fixed meaning would mean adopting
a kind of essentialist view of language.
An alternative is to see this “hard core” as a “flowing meaning” but with
the important feature that it flows much more slowly than the “penumbra”
area because there is a stronger agreement about meaning. As a matter of
fact, there are certain normative legal texts that have been subject (before
they have been derogated) to different interpretations and, in this respect,
the same legal normative text has “produced” several different legal norms.
We can see, then, how a given “hard core” may change while the same legal
normative texts remain in force. Hence we should see not a “hard core” and
a “penumbra” but “provisional hard cores” and “penumbras.” The inten-
sity of the change may depend on many variables but, in any case, legal
experts (sharing an internal point of view) will take into account that “opti-
misation” of the legal order requires stability and change, legal certainty and
justice of the case.
Nevertheless, the change will not only occur in the penumbra. Hart seems
to believe that in “penumbra” areas “sound” decisions could take place,
while in the “hard core” area deductive decisions would take place. “In this
area men cannot live by deduction alone [ . . . ] So it is rational or ‘sound’ to
argue and to decide that for the purposes of this rule an aeroplane is not a
vehicle, this argument must be sound or rational without being logically
conclusive [ . . . ] it seems true to say that the criterion which makes a deci-
sion sound in such cases is some concept of what the law ought to be” (Hart
1983, 64).
Suppose that in relation to a given legal order legislator X has stated that
“it is prohibited for anyone to smoke on public buses.” What is significant
is the interpretation of what counts as a public bus, but the interpretative
task should not be called true or false. This interpretative aspect that cannot
be called true or false but correct or incorrect, convenient or inconvenient,
is fundamental in any legal order. The true/false dichotomy, so important
let us say in physics, has less importance in legal normative fields. This is
why I use a conception of truth closely related to the pragmatic philosophi-
cal tendency. Although there are diverse interpretations, a central point is
the importance given to the practical effects. In this respect the expression
“something is true if it works satisfactorily in the widest sense of the word”
can be understood if it works from a participant’s point of view.
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 The Existence and Life of Law 509

It means, inter alia, that we should take into account not only consequen-
tialist but also deontological considerations. That is, true interpretations of
the legislator’s language should be understood as correct interpretations, to
be understood as those that support “just” solutions on the basis of the basic
values (or their balance) of the legal order at stake. We expect useful meta-
languages and in this case “useful” means that they help to “optimise,” here
and now, the legal order that is at stake.
A final comment in relation to truth and correctness. I use the term “truth”
in relation to statements that refer to the empirical world and to logically
valid inferences. Nevertheless, empirical statements should not be under-
stood in the sense that they “match” reality in itself or in the sense that there
is a relation of “sameness” between these statements and reality. This calls
for a clarification of the concept of “reality.” I reject here so-called meta-
physical realism and accept so-called internal realism. This means that we
do not have statements (true ones) that match reality in itself, but statements
that have a certain relation to reality as understood by our conceptual
schemes.
If there is a more or less approximate “match,” it is between our state-
ments and our conception of reality. I said that this relation is more or less
approximate because our theories, even our scientific theories, are not reflec-
tions of reality in itself but maps that try to represent it. On the other hand,
I use “correctness” in relation to values and norms because they are neither
true nor false. What can be true or false are value-statements and norm-
statements. Nevertheless, we can differentiate between “norm” (what ought
to be done) and “value” (what is good), claiming that there is a deontolog-
ical aspect and an axiological aspect. Even if we accept this, I would say that
a normative statement that says that something ought to be done implies a
value, that is, that something is good or just.
The difference between “hard core” and “penumbra” has analogies with
the difference between “legal norms” and “legal principles.” In this respect,
R. Alexy (2000) distinguishes between principles, understood as optimisation
commands, and rules, understood as definitive commands. The analogy
could be the following: It is usually believed that there is a higher level of
legal certainty in relation to legal rules than in relation to legal principles. If
the value of legal certainty were the only one to defend in our legal orders,
we would not have reason to include principles. Nevertheless, the level of
legal certainty is not the same before and after interpretation. After inter-
pretation we could claim that we reach a definitive command in all cases.
In the example Alexy gives (whether a trial may be held in the case of a
defendant in danger of suffering a stroke or heart attack brought on by the
stress of the trial) the judge would establish a certain conditional priority,
considered as the correct one. At least in certain circumstances, it would be
mandatory for judges to establish the same conditional priority in future
analogous cases.
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510 Sebastián Urbina

It seems that a basic problem remains, that is, the existence of a clearer
(hard core, definitive commands, etc.) part of the legal order and a less clear
one (penumbra, optimisation commands, etc.). When we cannot reach a
legal decision with a high level of certainty (being a logical conclusion of
the ideal decision because it would be necessary from given premises), we
have to deal with lower levels of certainty combined with the other funda-
mental requirement, the value of “justice of the case.” As already stated,
when two legal rules contradict each other, we can eliminate one of them or
make an exception. In certain branches of law this is possible but not in
others. Nevertheless, principles give more chance for new justified solutions.
If we accept that Principle theory (Alexy 2000) implies the principle of
appropriateness, necessity and proportionality, we can see how the task of
weighing and balancing gives more chance for “optimisation” of the legal
order, especially in penumbra areas.
Nevertheless, “optimising” is not only establishing certain conditional
priority relations because these priority relations make sense and are justi-
fied if they serve (or are coherent with) something else, that is, the basic
values and/or the main goals of the legal order at stake. If we did not have
principles, we would have more difficulties in fulfilling the basic value
requirement of the justice of the case. Hence, we could say that legal norms
(as hard-core or as definitive commands) would better serve to fulfil the
value of legal certainty while (penumbra or legal principles) would better
serve to fulfil the value of justice of the case. It is well known that the expres-
sion “justice of the case,” in spite of having a definite article, implies a
universability requirement.
Summing up: although citizens and practising lawyers do not embark
upon a research about the objects that inhabit the legal world, it is a matter
of justified interest for legal researchers whether they share an internal point
of view or not. In this vein, some of the following questions may be of inter-
est: Are there units that are the basic constituents of legal orders? In the case
of an affirmative answer, what are these constituents units? Are they the
result of the legislator’s will, a construction of legal scholars, or judges’ deci-
sions or something else? Should we require these units to exist to talk
soundly of legal orders? In the affirmative, what conception of existence
should we support? In relation to the basic constituents of legal orders,
I would say that they are legal rules that include legal norms and legal prin-
ciples. Why legal norms and not, let us say, legal texts, understood as the
legislator’s language? In so far as we can soundly choose among these pos-
sibilities, we are not within the realm of necessity but contingency.
As participants we try to achieve the “better,” here and now. This is not
done in a vacuum but in a socio-historical context. Nevertheless, this is not
the end but the beginning because any legal move takes place within an
existing legal order that is a complex and dynamic construction. What do
we mean by “better”? Should we rely on positive or critical morality or both?
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 The Existence and Life of Law 511

In what sense? For the moment, suffice it to say that legal scholars recon-
struct the legal normative realm in a certain contingent manner. This sup-
position would justify the existence of a legal task (or a similar one), usually
called Legal Dogmatics. But there is another point, that legal orders are
neither a complete nor a coherent set of rules. We shall see that the tasks of
legal scholars are usually undertaken on the basis of certain presuppositions
such as “to achieve the better.”

2. Existence and Truth in Legal Normative Fields

Should we be upset about “existence”? That is, should we ask whether a
given “contract” between two persons “exists”? As we know a “legal con-
tract” is not an existing thing like a table. In a similar way, a “person” is not
an existing thing as a human body is. We do not say that a given human
body made a legal contract with another human body. It seems that in our
culture we have enlarged our ontological field, including not only living
entities that can be seen and touched but also some others that cannot. How
do we know whether we should accept Ockam’s advice and be frugal in our
ontological commitments in an actual case? One way is to try to know reality
as it is and then to expel from the true reality the spurious entities that do
not fit with reality tout court. This would be a petitio principii because we take
for granted what is in question.
Another way is to consider why we have a legal order and why we have
Legal Dogmatics (or a metalanguage about the legislator’s language), then
we could better decide what should be included in our ontological field. This
latter way is the one I claim has clear normative tones. In this respect, I agree
with Carnap’s view that we should not ask for a real existing world but we
should only ask questions within a given framework. Then we should only
ask questions within a given linguistic framework, the legal normative one.
Nevertheless, some observations should be made to avoid factualism.
First, to accept Carnap’s view does not mean that we are only confined to
semantic relations or processes. One of the reasons is the following: if Mary
asks her husband Peter whether he has signed a legal contract (X) with John,
the answer should be affirmative or negative. It means that it is true that he
signed this contract or not. But Peter and John not only engaged in certain
semantic relations: they also had (normally speaking) certain material con-
sequences. For example, Peter gave John a certain amount of money and
John gave Peter a lorry. Peter and John have made, at least implicitly, certain
ontological commitments. They believe in the existence of lorries and money
and not only in semantic relations or processes. In other words, semantic
processes are not ends in themselves but means for something else, for
example, making contracts, giving reasons for action, reaching certain
personal goals, changing social reality, and so on. In other words, sen-
tences have a propositional side (relating to a given state of affairs) and a
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512 Sebastián Urbina

performative side (relating to its illocutionary force), and this dual structure
should aim to supersede the traditional separation between semantics and
pragmatics.
Second, although accepting Carnap’s view that we cope with problems
within a given context, we should not understand that these contexts are
closed and autonomous ones. It means, inter alia, that there is not only a
“continuum” between a given linguistic framework (let us say a legal nor-
mative one) and another or others. There is also a “continuum” between the
implicit (or explicit) ontological commitments of the linguistic framework
we are directly dealing with, and certain ontological commitments of other
linguistic frameworks we are indirectly dealing with. For example, our legal
normative field and its ontological commitments do not form a closed field
protected by a firm membrane avoiding connections between the inside and
the outside. On the contrary, there is a continuous tension not only within
the legal order but also between the legal order and society at large.
Third, if the argument above is correct we are not isolated in autonomous
linguistic frameworks (like the old dream of complete and closed legal
systems) but interconnected with other linguistic frameworks that also have
certain ontological commitments, whether explicit or implicit or both. It also
means that when we “live” in a certain linguistic framework we necessar-
ily have (at least from a pragmatic point of view) semantic and ontological
“contaminations.” For example, the economic, political and moral contexts
are privileged entities that cannot be excluded when dealing with our legal
normative linguistic framework, especially in the so-called hard cases. We
can see how different legal tendencies differ. According to some of them,
usually labelled as Legal Positivist, there are linguistic frameworks (like the
legal normative ones) whose logical relations should be clarified. It is also
believed that we can clearly and precisely differentiate between what is
inside and outside a given linguistic framework. In this line of thought, it is
also believed that a given language (the context of justification) is the proper
and exclusive aim of any respectable philosophical task. According to some
other views, like those of Hermeneutic Analysis, there is no support for the
idea that we should only be interested in the context of justification, that is,
a given language and its internal relations. Nor can it be said that logical
clarification of this language is the only aim of a philosophically respectable
task. In any case, trying to understand different linguistic games would
require a transcendental linguistic game related to certain validity claims.
I am not claiming, then, that there is no difference between the context of
justification and the context of discovery. It is one thing to accept the dis-
tinction and another to claim, as logical empiricism did, that there is a sharp
and conceptual distinction between them. This is only a tradition that is
not flourishing however. At present, there are other views (among others,
Toulmin, Hanson, Kuhn, Bernstein) that do not accept this sharp distinction,
claiming, inter alia, that our research tools are the result of historical devel-
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 The Existence and Life of Law 513

opments or that our knowledge is only reached through organized com-

munities of research. It is claimed also that we should not be satisfied with
static images (one example being logical reconstructions as the supposed
paradigm of rational reconstruction) and try to build moving images of our
scientific procedures and problems.
Fourth, in relation to our commonsense view (and we should not forget
that legal normative language is a natural language that is intended to be
understandable to the addressees) we deal with real entities when we talk
of tables, cars, etc. In these cases we could say that we denote things in the
world. In other cases, we do not deal with real entities when we deal with
freedom, justice and so on. I am not saying that these terms (or the sentences
in which they are included) mean nothing, but only that they do not denote
external existing things such as tables or cars. This duality of our common-
sense view and our ordinary language is like legal language. Legal language
has terms that denote things in the world and terms that do not denote
things in the world but that make sense, at least for us.
In other words, we attribute certain qualities to certain physical entities.
Sometimes we do it through legal rules as in the case of a legal contract;
sometimes we do it through personal evaluations as in aesthetic judgements.
When we deal with ideal entities like “justice” or “freedom,” we deal with
meanings not in themselves (that is, they do not have an autonomous life)
but in relation to certain material actions or material consequences. In sum,
in both cases we deal with “contaminated” entities, that is, physical entities
intertwined with ideal or symbolic meanings (for example, Mary is the
owner of this table) or ideal or symbolic entities intertwined with actions
or material consequences. This means, inter alia, that we should not divide
(if this is possible) reality into two conceptually separate worlds. This is
because jurists in general and judges in particular have to take both into
account. In this respect, Alexy (2000, 297–8) says, “Principles qua optimisa-
tion commands demand realization as far as possible relative to the actual
and legal possibilities.”
While physicists deal with their objects through theories, instruments
and proofs, legal scholars deal with their objects through theories, that is,
through a conceptual network and its social feedback because they cannot
dispense with the evaluation of the social consequences. In this respect it is
convenient to adopt a distinction. In the so-called mature sciences we can
distinguish between basic science and applied science. One of the main fea-
tures that differentiate them is their relation to praxis. For my purposes it is
sufficient to state this dichotomy. Applied science is closely and directly
related to praxis while basic science is not. Basic science is not undertaken
to directly solve practical problems, although it can be important for praxis
in a given indeterminate future. Something similar is applicable to legal
fields. In this respect I would state the existence of several normative
layers.
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514 Sebastián Urbina

First: the legislator’s language. This is the most important normative layer
because it is the first authoritative-normative language that tries to guide
the behaviour of individuals. Nevertheless, it is not only a guiding language
but also one that is backed up by institutional coercion. Second: the so-called
jurist’s language. It is also a clear normative language but a delegated one.
Even when particular citizens have the capability to “create” new contracts,
this capability is not an ex novo one but allowed by the first-layer normative
language. These other possibilities stem from, or can stem from, the first
layer. But in this second layer we should distinguish two ways, a legal
authoritative way, represented by judges, and a legal argumentative way,
represented by practical lawyers. Third: this would be represented by legal
dogmatics, usually divided into high and low legal dogmatics. Low
legal dogmatics should be considered as a kind of applied science and high
legal dogmatics as a kind of basic science, given that the former has a more
direct pragmatic tendency unlike the latter, though it may have pragmatic
consequences as is the case also with basic science.
It is usually here, in high legal dogmatics, that some legal scholars enter
into the Heaven of Concepts, in the words of Jhering. The Heaven of Con-
cepts represents the illusion of escaping from contamination, or in other
words, of forgetting the normative and ideological origin of this conceptual
heaven. It does not mean that we should confuse social causes with justifi-
cations. It only means that to understand a given discourse (for example, a
legal normative one) we do better to keep an eye on the legal rules at stake,
and also on the social facts and social contexts that this legal rule stems from
and is applied to. To do the contrary is to believe, as logical positivists
usually do, in a sharp and radical distinction between the context of dis-
covery and the context of justification.
To sum up, even when we deal with, let us say, “external objects” like cars,
tables or rain, if they are going to have a legal normative dimension they
cannot be exclusively understood as material entities because they are, let
us say, “normativized.” Moreover, their natural reality can be subordinated
to legal normative goals. This “subordination” does not mean that we can
impose normative restrictions to their atomic composition or to the laws of
nature. What this means is that statements, including material entities like
“tables” or natural entities like “rain,” become “contaminated” when they
enter into the legal normative realm. Because they do not interest us, let us
say, in themselves but in relation to certain legal normative goals that we set
in certain social contexts. Their material structure is given for us, but not the
goals we want to achieve by using them.
This means, inter alia, that in legal normative language what matters is,
for example, whether this car is Peter’s or Mary’s, or whether there is or
there is not a mortgage, etc. The problems of physical existence are presup-
posed but they are not the object of direct scrutiny as is the case, for example,

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 The Existence and Life of Law 515

in physics. They are the bases on which we build our normative enterprises.
Otherwise we would build castles in the air.
Similarly as is the case in recent tendencies in the philosophy of science,
where it is not exclusively understood as the philosophy of scientific knowl-
edge but also as the philosophy of scientific praxis, we should understand
our judgements as practical ones. That is, we try to apply our concepts (in
this case our legal normative concepts) to concrete cases in order to solve
certain conflicts correctly. In this respect, the common understanding of legal
orders includes perceptual beliefs relating to human beings and material
objects (like cars), institutions (like courts), concepts (like legal contracts),
and instances of these concepts and procedures. This minimal scheme can
be put in motion on the basis of values, interests and goals. They are struc-
tured in a hierarchical way no matter how difficult it may be to specify, in
actual cases, their provisional prevalence. It is worth stressing the “time
factor” because one of the difficulties of practical legal judgement is this
compelling factor that should warn us against sub specie aeternitatis concep-
tual schemes.
I would like to make a brief comment on the existence of legal normative
entities. It is well known that the “existence” of legal norms can be under-
stood in several ways. I will understand, by the “existence” of legal rules,
not just their formal membership in relation to a given legal order. Basically
for the following reason: Legal orders are practical enterprises and both
judges and addressees are interested in solving certain conflicts correctly, on
the basis of certain legal norms, procedures and basic values. In this respect,
when formally valid legal norms fall into disuse they are still existing legal
norms, at least from a formal point of view, but their existence is no longer
operative. Hence, it seems to me better to equate “existence” to legal valid-
ity understood both as formal and axiological validity.
Formal validity would be a necessary but not a sufficient condition for
“legal bindingness.” Why this preference for formal and axiological valid-
ity? As M. Weber stated, any de facto power tries to achieve legitimacy. In a
similar way any existing legal order also tries to achieve legitimacy. Legal
membership understood as mere formal validity is unable to achieve bind-
ingness because it is unable to achieve legitimacy. At most it can achieve
mere obedience but not fidelity to law. In this respect, axiological validity
(relating to a given conception of justice) is a constituent of legal orders, as
a claim of legitimacy is a constituent of political power. I assume that there
can be existing but invalid laws (illegal judges’ decisions) and existing but
neither valid nor invalid ones (constituent constitutional laws).
This option makes both political power and legal orders a gradual matter.
If we rely exclusively on formal validity as a criterion of legal membership,
we could claim that legal orders or legal norms are like yes/no questions.
If we also accept axiological validity as a criterion of membership, we

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516 Sebastián Urbina

introduce gradualism in legal orders. In this respect, we could say that a

given legal order is more or less legitimate depending on how it incorpo-
rates, or fails to incorporate, basic human rights. Or we can say that a given
set of legal rules is more or less legitimate depending on how it respects, or
fails to respect, basic human rights. From the other point of view, legal orders
are legal orders (if they have followed the due formal procedure) or are not
legal orders (in the negative case). Something similar applies to a legal rule.
According to a view that takes formal validity as an exclusive criterion for
membership, we can always say whether a rule is a legal rule or not because
no judgement of legitimacy has to be made. Different problems arise if we
rely on “sufficient” social effectiveness, as some positivist tendencies do.
To accept legal rules only because they are formally valid would be like
focusing our attention only on political power devoid of any kind of author-
ity, that is, devoid of legitimacy. I believe this is a mistake. We (that is, a part
of the population) usually see our democratic political powers as legitimate,
at least to a certain degree. If this is correct, it means that axiological valid-
ity is also an expected feature of membership. It does not mean that it is
logically impossible for a political power to exist without authority. It means
that, as a matter of fact, all political power looks for legitimacy, and so do
legal orders. If this is correct, legal rules, understood as formally valid ones,
try to become (and this is a pragmatic requirement) axiologically valid. It
means that legal orders (in a similar way to political power) try to state both
formally valid and axiologically valid legal rules. This is so even as a matter
of fact. It should be clear, then, that the point of view underlined here is an
internal one. We are not pure and external observers of our form of life, as
I have argued elsewhere, but committed participants. This point of view has
primacy.

3. Internalism, Externalism and Ontological Commitments

From the conception of truth I am supporting here, it is not sensible to adopt
an external point of view. Among other things this is because truth, in the
pragmatic sense supported here, is a cooperative result though it is not a
logical impossibility to reach non-trivial truths in isolation. It is pragmati-
cally impossible to reach truths without the past and present contribution
of others. This is why, inter alia, we should adopt an internal point of view,
the view of participants. In this pragmatic sense, we should understand this
truth as a provisional result of a dynamic tension between actual epistemic
conditions and the best epistemic conditions we can think of. At any given
moment, we (the participants in a given practical enterprise) require a
rational judgement leading to a sound solution. In easy legal cases we can
logically infer conclusions from given premises, granted that we (partici-
pants and experts) do not challenge either the premises themselves or their
current interpretation. But this is not always the case. Furthermore, the
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 The Existence and Life of Law 517

classical distinction between questiones iuris and questiones facti is not clear
(or at least not always), especially when we are dealing with legal practice
(see Wróblewski 1989, 191ff.; Taruffo 2002, 106ff.).
From the view supported here legal normative statements are labelled as
“true” when they are accepted by most legal authorities and citizens. For
example, “Is it true that Mary rents Peter’s house?” The affirmative answer
is an economic statement of a complex web of facts, conventions and mean-
ings: that Mary and Peter are free human beings able to undertake legal con-
tracts; that we live in a society where there is a political power able to
legislate; that existing legislation allows Mary and Peter to do what they did;
that Peter’s house, for example, was empty yesterday and Mary is now
living in it; that we rely on someone else’s opinion if a third person told us
that it is true that Mary is renting Peter’s house, and so on.
The above statement can be labelled as “true” in isolation, as something
true in itself, or as something we (the participants) take as true given that
we share a complex web within which that statement makes sense for us.
We want to know whether this is true because we want to know how to
react socially. For example, we know that we can accept Mary’s invitation
because she is now legally entitled to live in Peter’s house. This is close to
the Habermasian idea of truth: We believe that a proposition is true when
we believe we have sufficient good arguments to convince a rational
community.
It means that we are embedded in a normative social web of commit-
ments. It does not mean that all elements of the above example should be
understood as “normatively true.” The physical existence of the house Peter
owns depends on a different conception of truth. We cannot deny its exis-
tence because it is a basic perceptual truth. In this case we can apply the cor-
respondence theory of truth. In this respect, and granted that it is a basic
perceptual belief, it is not “defeasible” as legal norms are. We can see that
legal orders are based on different ontologies intertwined with each other.
We should also note that the question, “Is it true that antiquarks can be con-
verted into electrons?” if answered in the affirmative does not carry every-
day social commitments as in the case of “legal normative facts.” Why then
should we use the term “true” in legal normative fields? Because there is an
inevitable connection between beliefs and assertions. If I believe that “the
cat is on the mat” I can assert it. If this is the case, I claim that this is true.
Similarly, if Peter claims that he loves Mary, he claims, at least implicitly,
that this is true.
But it is not the same to deal with physical objects and basic perceptual
beliefs as to deal with normative requirements and values. In sum, claim-
ing that it is true that “Mary rents Peter’s house” refers to a state of affairs
posed (at least partially) by a given political power. A question relating to
electrons does not. Nevertheless, we should bear in mind that both the cor-
respondence theory of truth and this, let us say, pragmatist theory of truth
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518 Sebastián Urbina

claim that there is a correspondence with facts. The first option usually sees
facts as independent entities and we utter true propositions if they match
these entities. We could see these facts as the basic units of reality. We could
see them as the so-called “given.” Using a common terminology, we could
say that we want to modify reality to fit our goals but at the same time we
want our beliefs to fit the world. What does it mean? I would say that, in
legal normative fields, we want our beliefs to fit the world but not com-
pletely. We have legal fictions, we have legal presumptions like iuris tantum
and iuris et de iure. This is so because, unlike physics, theoretical rationality
is subordinate to practical rationality.
Who is asking what there is? Who is wondering which entities inhabit our
world? Is he or she a Cartesian? What does it mean? It means, inter alia, that
adopting a view of an isolated mind is a perspective that should be set aside.
On the other hand, a realist view that sees law and legal science as some-
thing to be neutrally observed and described from “outside” should also be
rejected. I have been asking just now “who is talking?” and that means that
we are facing the problem of the self. In this respect, I deny that the self can
be a pure self. The self that is asking “what there is” and also undertakes
intentional actions on the basis of legal rules, interests and values is a “con-
taminated” self. It means, inter alia, that to talk of an intentional self makes
sense only within a contextual and dynamic conceptual network of mean-
ings. From an empiricist world view, generally speaking, we should be
austere in relation to our ontology. In my opinion, this is not the best option.
One mistake stems, inter alia, from the idea that the ontology we should
accept is outside ourselves. We would be observers (in the best case trained
observers) who tell ourselves what is “outside” us. I believe that a better
option is to accept that we are an element of the reality we want to describe
and organize. In this respect, we are “in” the reality we want to organize
and describe through a given language. The reality we are dealing with is
“our” reality, not the reality “itself.” I do not discuss whether there is a
reality “in itself” but I claim that we can only scrutinize (at least in relation
to our practical enterprises, like legal orders) “our” reality and this means
that we should adopt an internal point of view. While adopting an internal
point of view means being a participant, that is, accepting (at least) the basic
values of the legal order at stake, adopting an “internalist” view would
mean that our claims and answers about what there is should be stated in
our belief system.
We do not have any other system unless we enjoy a God’s-eye view.
Nevertheless, while in the so-called mature sciences there is an exclusive
paradigm, in the other sciences there are usually several paradigms. In legal
dogmatics we could have competing legal paradigms but we (as partici-
pants) adopt what the majority of the experts of the legal community
support, with some success in fulfilling their social task. I have already
mentioned in this paper that there is a tension between “is and ought” or
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 The Existence and Life of Law 519

between what is epistemically at hand and what is epistemically the best.

This means that the “dominant” paradigm in legal dogmatics may face chal-
lenges either from inside or from other paradigms. I believe that Internal-
ism (in epistemology) is wrong if it means that our intentional actions
depend exclusively on internal elements of the individual at stake. Inter-
nalism, as I believe it should be understood, has to reject the term “exclu-
sively” because we are social beings. If this is correct (though this term calls
for more precision), Internalism should be understood from a social point
of view and not from an atomistic/individualistic view. This does not mean
supporting a Communitarian view of individuals and society.
In a similar way as we do not usually understand “meaning” in relation
to isolated words but in relation to statements or theories or even languages,
the above-mentioned internal elements should be understood as a kind of
average in relation to participants in a given legal order, of a given society,
at a given time. At the same time, Internalism fits better with the importance
that epistemic justification has for knowledge, at least in our times. If our
knowledge (I mean legal normative “knowledge,” understood as intersub-
jective justified belief) does not depend on us, we cannot be justified in
believing anything. Our legal orders are based on certain presuppositions:
one of them is that we are free, rational and responsible beings.
The admission of exceptions shows that “normality” is represented by
free, rational and responsible beings. Legal orders suppose that we can be
guilty of murder, breaking a legal contract, and so on. The point, then, is not
to deny the importance of our physical and social environment, the problem
is to make it so strong that intentional action and justification vanish. In fact,
they do not disappear because they are firmly rooted features of ourselves
and our societies. They are, inter alia, means for identifying us as “normal”
beings of a given form of life.
As legal scholars, we should bear in mind that our conceptual network
has, to a certain extent, to be understandable to citizens. This is not the case
with physicists, for example. It is not important (as it is with legal dogmat-
ics) whether we, as normal citizens, understand what physicists say. This
does not mean that there is a sharp and conceptual gap between science and
philosophy. In this respect, I agree with Quine that there is a continuum
between them but we are at the other end of this continuum, though some
parts of our task as legal scholars can be closer to strict scientific require-
ments. It is illuminating to stress that Niels Bohr (and the Copenhagen
school) stated that “the equations of quantum theory are only applicable to
the non-observed aspect of reality. When there is an observation it appears
as a process that includes direct interaction between human consciousness
and subatomic physics” (quoted in Deutsch 1999, 328). This suggests that
there is interaction between the subject and the object even in the so-called
“mature” sciences. This example supports the claim that there is a contin-
uum and not a sharp divide between science and philosophy, in so far as
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520 Sebastián Urbina

the intertwinement between subject and object is not exclusive to the

so-called human sciences. There may be a difference in the degree or form
of this intertwinement, or both, but not in their existence.
Before dealing with legal norms, I would like to make a comment on the
latest views of Peczenik and Hage (2000, 326–45) on legal knowledge and
legal doctrine. They claim that law consists of a mixture of conventional and
institutional entities plus moral deliberation based on them. They argue that
the conventional cum institutional theory of law should be completed by the
idea of coherence, a task that is usually undertaken by legal scholars. I
would like to make a brief comment: Is this “mixture” like mixing water and
oil or like mixing beer and wine? In other words, do we have a “new” result
of this mixture or not? In both cases, we should know their normative con-
sequences. In my opinion, law is not a “mixture” of conventional and insti-
tutional entities but a network of institutional entities with different levels
of conventionality.
The lowest levels of conventionality mean that they cannot be changed
“in practice” by the legislator. For example, the institution of contracts is not
conventional granted that we live under the “logic” of the capitalist market
economy. In criminal law we cannot dispense with sanctions for certain
forms of conduct. With other basic institutions and ideas, they represent “the
core” of the legal order, but I am also interested in discussing the links
between law and society.
We realize the gradual conventionality of legal institutional entities as far
as we see them, not in isolation but in relation to other social structures.
Given that we live in a market economy, we cannot dispense with contracts
and the freedom to sell and buy goods. In this respect they are conventional
only to a limited extent. If we look at the legislative changes, we can see that
these changes usually modify but do not eliminate or create legal institu-
tions ex novo. This is because they are not, strictly speaking, conventional.
“Strictly speaking” means that they cannot be “easily” changed on the basis
of the legislator’s will. We cannot dispense with vague terms like “easily”
and so on because we are not in the realm of geometry or logic.

4. Reality and Ideality of Legal Norms

Legal normative texts are not factual entities like tables but, at least in prin-
ciple, it can be claimed that they are factual linguistic entities that contain
one or more legal norms. Hence, legal norms should be understood as the
meaning content of these linguistic statements. Addressees need to know
what to do (in many fields of everyday life) and to do this they have to know
the meaning and purpose of legal normative texts uttered by the legislator
in a given legal order at a given time. In this respect, meaning contents are
not ends in themselves but linguistic means that help us to materialize con-
crete values and interests under certain procedures. At the same time, legal
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 The Existence and Life of Law 521

scholars who undertake a descriptive and constructive task of given legal

orders should not be understood as if they were “Cartesian-selves.” Nor
should judges and addressees. By this type of isolated human being I mean
the so-called “self-enclosed mind.”
As social beings we do not engage in speech acts for nothing, we (usually)
try to communicate with others. Participants (generally speaking) know the
meaning of the speech acts uttered by other participants. We could say that
when uttering a legal speech act we try to obtain a given answer from
another participant. This legal answer is mediated because it has to remain
within the authoritative limits laid down by the legal authorities, if it is to
be legally valid. There can be doubts about the proper interpretation of a
given speech act that includes, inter alia, an intention by the transmitter, an
answer by the receiver (taken within authoritative limits), a given code, and
that the intention of the transmitter should be (at least partially) a reason for
the answer of the receiver. This answer should also be taken within author-
itative limits that can be disputable. Hence, we can say that legal interpre-
tation is not a contingent task of any modern legal order. If we understand
this communication among participants as a matter of psychological states,
we may be surprised by the generalized agreement among different indi-
viduals with different psychological states.
If we put aside this psychological approach and take another one based
on the use of social practices by given socio-historical participants, sharing
a basic conceptual network, certain basic beliefs and primary needs, we have
less difficulty in understanding this communication among participants and
its normally successful outcome. Even when we communicate more than
what our speech acts conventionally mean, we usually succeed. This is
because, as participants of a given legal order and culture, we are usually
able to infer not only the logically valid inferences but the “sound” conse-
quences of what is said in a given linguistic and extra-linguistic context. In
this respect we can understand so-called “implicit legal norms,” not only as
legal meanings that are logical inferences of what the legislator authorita-
tively stated but as “sound” and rationally accepted legal consequences.
This is because certain logically valid consequences may be not sound, given
certain linguistic and extra-linguistic context and certain institutional expec-
tations. A well-known example is the following: if A is true (A = Peter is the
owner of house P) then “A or B” is also true (B = Carolina is singing in the
rain). Nevertheless, as participants of a given legal order, we know that “B”
is not legally relevant, no matter how true it may be from a logical point of
view.
Unlike the above-mentioned privileged “inner” self that achieves knowl-
edge in an isolated way, it is contended here that there is neither a detached
consciousness nor detached statements. This means, inter alia, the following:
first, we should not copy the methods of natural sciences while trying to
solve our legal normative conflicts because our object is not an “is” like in
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522 Sebastián Urbina

physics but it is both an “is and an ought”; second, we are not and cannot
be disinterested and neutral spectators of our own legal orders and this
makes it pragmatically unsound to talk of detached normative statements;
third, this view does not imply a rejection of methodological individualism
but only a certain understanding of it.
Although there is a danger of confusing the ontological and methodolog-
ical dimension of individualism, the point that interests me is the following:
We should not understand individuals (and this ontological option would
influence methodological options) as if they were independent selves who
can be explained and understood apart from certain roles and status,
conceptual networks and material conditions. It means, inter alia, that our
thoughts, values and interests are not determined but only conditioned by
socio-historical relationships. It also means that we are not “self-enclosed
minds.”
One of the most important conditioning elements for undertaking human
actions is “restraint”: moral, political, economic, and obviously physical. It
is not incompatible with the above comments to state that individual human
action is the basic object (or one of the basics) of our social life, at least as
we usually understand it in our cultural realms, that is, as basically free and
intentional. Nonetheless, according to one view individuals are something
“invented” by social processes or made “products.” In this alternative
holistic view, the primacy and priority is on the whole or on the structures.
Nevertheless, as is the case with most, if not all, doctrines we should dis-
tinguish a strong and a weak version. If we reject strong holism (as I do) we
reject the idea that the only thing we have is a complex web of relations.
This means that weak holism and weak individualism reject, let us say, the
extremes of dealing only with individuals or only with a network of rela-
tions. In my view we have an inevitable intertwinement and tension
between individuals and the network of relations that partly constitutes
them, or in other words, that conditions them.
In relation to the ontological status of legal norms we should bear in mind
the danger of “reification.” In this respect, there have been some tendencies
that see abstract entities (like certain meanings, for example) as if they were
existing things in themselves. Sometimes, certain institutions have been seen
as having an independent existence. In relation to this view we could recall
Hart’s criticisms to Begriffsjurisprudenz.1 Related to these ideas we can also
see the Popperian third world, or certain interpretations of it. I would say
that so-called objective knowledge should not be understood as a detached
and autonomous world. One of the consequences of these and similar views
is to neglect, and sometimes reject, the importance of contextual human
beings who construct, elaborate or modify these contents under certain
1
“Excessive preoccupation with concepts considered in abstraction from the conditions under
which they have to be applied in social life [ . . . ] a false assimilation of the concepts and
methods of legal science to mathematics [ . . . ]”: Hart 1983, 265–6.

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 The Existence and Life of Law 523

conditions. I think that a proper answer to this problem would be to state

that this so-called third world is partially autonomous. Nevertheless, I know
that this statement should be much more precise although it is not the aim
of this paper.
Our legal norms are, then, factual linguistic entities that have certain
understandable meanings for those who are addressees of these norms, no
matter whether they adopt an internal or an external point of view because
this external point of view is not like Malinowski’s view when he was
observing the inhabitants of the Tobriand Islands. I am not claiming that
“addressees” are the only ones able to understand the legal norms at stake
but I claim that, at least in principle, they are best placed for this under-
standing, especially legal experts. It is not argued here that all addressees
know and understand all legal norms of a given legal order. This is practi-
cally impossible.
It is sufficient to understand it in the following ways: Some of the most
important legal norms, at least in our cultural realms, are normative mean-
ings backed by institutional coercion and/or by sufficient legitimacy to
guide and coordinate certain important aspects of social behaviour. There-
fore legal norms are (at least for those who share an internal point of view)
like practical guiding devices for fulfilling, in certain procedural ways, indi-
vidual and social values, goals and interests. In this view, legal scholars
should keep one eye on internal coherence and another on social reality. This
“contaminated” interplay would show both the impurity of legal norms and
of the task of legal scholars.
In any case, do legal rules exist or does legal language exist? Who asks
this question? Or in other words, which is the self that poses this question?
Suppose that Carolina and Peter marry and suppose that after the ceremony
Carolina asks Peter, “Does the marriage exist?” Given that Carolina and
Peter are not like Robinson Crusoe and Man Friday but individual human
beings enmeshed in a complex social web of relations, this question can only
mean whether the previously stated procedures have been properly fulfilled
or whether there is something wrong that would make the marriage invalid.
In this respect, I would say that, at least usually, participants do not face the
problem of the existence of basic legal concepts and their applications to
ordinary life. That is, they do not doubt the social practices they are engaged
in as part of their everyday life.
Social practices in force and basic perceptual beliefs cannot be seriously
doubted by participants in a given society. Nevertheless, it is one thing that
participants do not face the problem of the existence of the social practices
in which they are embedded and another that this is not a question that
deserves to be dealt with. From a philosophical point of view, we know that
certain legal tendencies, like Scandinavian Realism, held that the legal nor-
mative world was a world of imagination, not a real world located in space
and time.
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524 Sebastián Urbina

In this respect, I agree with O. Weinberger when he stresses that legal

norms have both an ideal existence as a thought structure and a real exis-
tence as a social phenomenon. Nevertheless, I disagree when he claims that
the distinction between the lawyer’s and the jurist’s language is unaccept-
able.2 If I properly understand him, he rejects the distinction usually made
between legislator’s language and jurists’ language. The idea is that accept-
ing this difference would avoid the same logical connections for the same
norm, understood as a thought-object. This view seems to be close to the
Kelsenian idea of neutral and value-free legal science. If legal science exclu-
sively describes the object as it is, then there would be no differences
between the legislator’s language and jurist’s language. I have elsewhere
criticized this idea for two main reasons: first, this kind of legal dogmatics
would be poor, and would not fulfil certain social expectations, like legal
normative proposals to solve certain difficult legal conflicts.
To sum up, participants in legal orders are enmeshed in a world of dual-
ities and tensions, not in a world of neutrality and detachment. Among these
inevitable dualities I would say: individual-society, procedure-substance,
legislator’s language-jurist’s language, hard core-penumbra, reality-ideality,
instrumental action-communicative action, and so on. These and other dual-
ities give legal orders and participants (who make possible their existence
and their working) a dynamic character relating to intertwinements, ten-
sions and balances in an endless process of proper adaptation to changing
expectations.

University of Islas Baleares

Edificio Anselm Turmeda
Department of Private Law
Carretera de Valldemossa, Km. 7¢5
07071 Palma de Mallorca
Spain

References
Alexy, R. 2000. On the Structure of Legal Principles. Ratio Juris 13: 294–304.
Deutsch, D. 1999. La estructura de la realidad. Barcelona: Anagrama.
Hart, H. L. A. 1983. Essays in Jurisprudence and Philosophy. Oxford: Clarendon.
MacCormick, N., and O. Weinberger. 1986. An Institutional Theory of Law. Dordrecht:
Kluwer.
Peczenik, A., and J. Hage. 2000. Legal Knowledge about What? Ratio Juris 13: 326–45.
Taruffo, M. 2002. La prueba de los hechos. Madrid: Trotta.
Wróblewski, J. 1989. Sentido y hecho en el derecho. San Sebastián: Universidad del País
Vasco.
2
“Hence, Englis’s theory of the two-sided quality of a norm-distinguishing the norm as a
command in the mouth of the legislator from the norm-addressee’s judgement about the norm
so issued is unacceptable—on the same ground and in the same way as B. Wróblewski’s dis-
tinction between lawyer’s language and jurists’ language”: Weinberger 1986, 34.

© Blackwell Publishing Ltd 2003.