Ratio Juris. Vol. 17 No.

1 March 2004 (80–6)

Fused Modality or Confused

Modality?
CHRISTIAN DAHLMAN

Abstract. According to Svein Eng there are propositions concerning the law which
are descriptive as well as normative, but cannot be separated into one descriptive
and one normative proposition. Eng calls these propositions “fused” (“sammens-
meltede”). In Eng’s theory a proposition with “fused modality” is partly descriptive
and partly normative, but cannot be classified as a separable combination of a claim
about what the law “is” and a claim about what the law “ought to be.” In a “fused”
proposition modality is a question of “degree.” The purpose of this article is to show
why Eng’s theory should be rejected. The introduction of “fused modality” adds
nothing of value to legal theory. Eng claims to have discovered a class of proposi-
tions not previously accounted for, but this is not the case. The lawyer Eng talks
about as making a “fused” proposition is simply a lawyer logically confused.

1. Svein Eng’s Theory Examined

Propositions that lawyers make about the law can concern what the law “is”
as well as what the law “ought to be.” Such propositions can therefore
be said to entail different modalities. They can be “descriptive,” i.e., they
can describe what the courts in fact do (or will do), but they can also be
“normative,” i.e., they can propose what the courts ought to do. Philoso-
phers of law who are “legal positivists” or “legal realists” believe that it is
important that these modalities be separated. They demand that it be made
clear what is intended when Professor X says, that “Jones has the right to
be compensated by Smith.” Does Professor X claim that Jones will be suc-
cessful if he sues Smith? Or does he claim that Jones ought to be successful
with such a lawsuit? That this clarification is vital for legal argumentation
is stressed by John Austin (1998, 132–8), Oliver Wendell Holmes (1996, 8),
Axel Hägerström (1953, 277), Herbert Hart (1994, 210), and others.
The demand that lawyers clarify whether their propositions are descrip-
tive or normative has been challenged by Svein Eng (1998, 310). According
to Eng there are propositions concerning the law which are descriptive as
© Blackwell Publishing Ltd 2004, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden 02148, USA.
 Fused Modality or Confused Modality? 81

well as normative, but cannot be separated into one descriptive and one nor-
mative proposition (Eng 2000, 237). Eng calls these propositions “fused”
(“sammensmeltede”). In Eng’s theory a proposition with “fused modality” is
partly descriptive and partly normative, but cannot be classified as a sepa-
rable combination of a claim about what the law “is” and a claim about what
the law “ought to be” (ibid., 252). In a “fused” proposition, modality is a
question of “degree” (Eng 1998, 327).

[ . . . ] the concept of “fusion” reveals a limit to the applicability of a dichotomy

between descriptive and normative propositions: The concepts of “descriptive
proposition” and “normative proposition” I see as extreme points on a gradual
dimension, from the purely descriptive to the purely normative. In the middle of
this dimension one has pure fusions. From the middle towards the extremes one
has degrees of preponderance of descriptive or normative elements. (Eng 2000,
251)

Eng does not claim that all legal propositions have a “fused modality.” He
says that some legal propositions are purely descriptive and some are purely
normative. And he does not claim that a legal proposition, which is neither
purely descriptive nor purely normative, must necessarily be “fused.”
According to Eng a proposition that contains an “is” as well as an “ought”
can either be a separable combination of a descriptive and a prescriptive
proposition, or an inseparable “fusion” of these two elements (Eng 2000,
237). Eng does not claim that the logical distinction between “is” and
“ought” cannot be upheld (ibid., 258). He maintains that descriptions and
prescriptions are separable in principle, but his point is that they are not
always separable in practice (ibid., 259). Some legal propositions entail a
separable combination of a descriptive and a normative proposition, but
most legal propositions do not (Eng 1998, 321). According to Eng legal argu-
mentation in practice is dominated by propositions with a “fused modality”
(Eng 2000, 246).
It should also be pointed out that Eng’s theory is about the “subjective
meaning” of legal propositions (Eng 2000, 237). It only concerns what the
speaker means to say (Eng 1998, 313). When Eng says that the “meaning”
of a legal proposition has a “fused modality” he is talking about the inten-
tions of the speaker. He is not referring to the “meaning” of the proposition
according to linguistic conventions (Eng 2000, 238).
Eng’s theory has been well received and is admired by legal scholars in
the Scandinavian countries (Peczenik 1998, 88; Dalberg-Larsen 1999, 478;
Bindreiter 2001, 85–92). The purpose of this article is to show why Eng’s
theory should be rejected. The introduction of “fused modality” adds
nothing of value to legal theory. Eng claims to have discovered a class of
propositions not previously accounted for, but this is not the case. The
lawyer that Eng talks about as making a “fused” proposition is simply a
lawyer logically confused.
© Blackwell Publishing Ltd 2004.
82 Christian Dahlman

2. “Fused Modality” = Confused Modality?

Eng claims to have discovered something new (Eng 2000, 237). He presents
the propositions he calls “fused” as a class of propositions not previously
accounted for in legal theory. According to Eng, “fused” propositions belong
to a class of their own (ibid., 254). His theory is designed to challenge a
theory which says: “What the speaker of the phrase ‘Jones has the right to
be compensated by Smith’ means is either

(1) a proposition with a single modality, or

(2) a separable combination of propositions with different modalities.”

Eng challenges a theory that claims that the subjective meaning of “Jones
has the right to be compensated by Smith” must be either (1) or (2), by
introducing a third possibility: a “fusion” of propositions with different
modalities.
The question is: What theory is being challenged here? Who is the philoso-
pher of law, who claims that the possible subjective meaning of the phrase
in question is exhausted by (1) and (2)? Unfortunately Eng does not answer
this question. Eng’s entire analysis does not contain a single reference to
someone taking the position he challenges. As far as I can see, this is due to
the fact that no one would present such a theory. It is rather obvious that
the subjective meaning of “Jones has the right to be compensated by Smith”
could also contain

(3) confused modality, or

(4) undecided modality.

I cannot imagine anyone contending the possibility that the speaker in

question is logically confused, or that he has not made up his mind yet, as
to whether he wants to say that something is the case or ought to be the
case. A statement with confused modality is a statement made by a person
who expresses an idea without a clear comprehension concerning its logical
nature. Confusion of this kind does not always stop people from expressing
themselves, and this might just be the case with our hypothetical lawyer.
As a matter of fact, it fits very well with the way Eng describes the lawyer
supposedly making a “fused” proposition.

If one asks the lawyer whether he can sort the descriptive from the normative in his
proposition de lege lata, the answer will often be negative [ . . . ]. (Eng 2000, 247)

Another possibility is that the lawyer who says “Jones has the right to be
compensated by Smith” is making a statement with undecided modality. In
this case the lawyer is not confused. He understands very well that his state-
ment can be used to make different claims about the law, and the logical
© Blackwell Publishing Ltd 2004.
 Fused Modality or Confused Modality? 83

difference between these claims are perfectly clear to him. He just has not
decided what he wants to claim. This kind of behaviour can serve a tactical
purpose in litigation. As far as our investigation is concerned, however,
statements like these are without interest. Eng’s theory is about the subjec-
tive meaning of legal statements, and a statement with undecided modality
has no subjective meaning. Strictly speaking, a statement with undecided
modality is not a proposition at all.
When Eng talks about a proposition with “fused modality” he is not
talking about a statement with separable propositions with different modal-
ities, and he cannot be talking about a statement with undecided modality.
This leaves Eng with two options. He could either be talking about exactly
the same thing that others would call a “confused statement,” or he could
be talking about a proposition that does not fit into any of the categories
listed above. The first option is devastating for Eng’s theory. If “fused modal-
ity” is just a new term for confused modality, Eng’s observations are nothing
but trivialities in a misrepresented form. Eng therefore goes for the second
option.

Fusion is not caused by the speaker’s failure to realize or decide what he wants to
say. It is caused by the speaker’s decision to refrain from the extreme points on the
gradual dimension. (Eng 1998, 343)

In Eng’s view propositions with a “fused modality” have a character of their

own. They are different from propositions with a single modality, different
from propositions with a separable combination of modalities, and different
from propositions that are simply confused. According to Eng’s theory
propositions with a “fused modality” should be listed as a fifth category in
its own right. To support this claim, Eng must show that the propositions
he calls “fused” really are different from the propositions in the other cate-
gories. He tries to do this with the following argument.

The concept of “fusion” can be illuminated by taking as a point of departure a certain

criterion for the modality of a proposition, a criterion which I consider covers wide-
spread intuitions with respect to whether we are confronted with a descriptive or a
normative proposition: namely the reaction of the language user to discrepancy between
proposition and reality. [ . . . ] To sketch the reaction criterion briefly: If the sender cor-
rects the proposition, then this is a criterion of his intending to advance a descrip-
tive proposition. If the sender tries to correct reality then this is a criterion of his
intending to advance a normative proposition. [ . . . ] If one does not only look at the
individual fused proposition, but at the class of such propositions as a whole, then
one sees that the sender does not only use two possibilities, with respect to correc-
tion, respectively only the proposition or only reality, but that the sender uses all
degrees and combinations, thus including partial correction of propositions com-
bined with partial correction of reality. (Eng 2000, 238)

Eng argues that the fact that the speaker “uses all degrees and combinations”
in his reaction to a discrepancy shows that we are dealing with a “fused”
© Blackwell Publishing Ltd 2004.
84 Christian Dahlman

proposition (Eng 1998, 311). This is not very convincing. That the speaker
“uses all combinations” means that the speaker’s reaction could be (1) an
adjustment of his proposition, (2) an effort to adjust reality, or (3) an adjust-
ment of his proposition as well as an effort to adjust reality. This excludes the
possibility that the proposition in question is one with a single modality, but
it does not exclude the possibility that we are dealing with a separable com-
bination of modalities, or the possibility that the speaker is confused.
That the speaker “uses all degrees” in his reaction is a claim that goes
back to Eng’s idea that “fused” propositions can be placed on a graduated
dimension between the “purely descriptive” and the “purely normative”
(Eng 2000, 251). Eng seems to think that this “concept of degree” is charac-
teristic for “fused” propositions, and separates such propositions from other
propositions. But what does it mean that a statement, that contains a descrip-
tive element as well as a normative element, is descriptive “to a higher
degree”? What does it mean that a statement is “more descriptive than nor-
mative”? Unfortunately this is never explained in Eng’s theory. That a state-
ment is “70% descriptive” could not possibly mean that it does not make its
descriptive claim to 100%. Such a “concept of degree” would be unintelli-
gible. So what does it mean? The fact that Eng leaves us in the dark on this
crucial issue is reason enough to dismiss the theory of “fused modality,” until
he can come up with an explanation. But, for the sake of philosophical argu-
ment, I will make a comment on the idea that I guess Eng has in mind.
Eng uses reactions to discrepancy as a criterion for determining subjec-
tive meaning, and this indicates that the graduate dimension we are looking
for is the dimension of “importance.” If this interpretation is correct, the
meaning of a statement being “more descriptive than normative” is, that the
descriptive proposition is more important for the speaker. It means that
the speaker’s preference against a discrepancy between proposition and
reality is stronger when it comes to the descriptive proposition. This could
for example be the case when Jones’s attorney says “Jones has the right to
be compensated by Smith” to voice the belief that the purpose of the law is
violated if Jones loses the case, as well as the belief that Jones will win the
case. The descriptive element in this statement is more important to Jones’s
attorney than the normative. Jones’s attorney wants the court to accept his
recommendation concerning the purpose of the law, but it is more impor-
tant for him that the prediction about Jones winning the case will turn out
to be true. He would prefer the court to judge in Jones’s favour for some
other reason than promoting the law’s purpose, to the court judging in
favour of Smith although it agrees that this violates the purpose of the law.
If this is the “concept of degree” that Eng has in mind, it does not support
his theory. That a certain statement is “more descriptive than normative” in
this sense does not rule out the possibility that the statement contains a sep-
arable combination of propositions with different modalities, or the possi-
bility that it is a statement with confused modality.
© Blackwell Publishing Ltd 2004.
 Fused Modality or Confused Modality? 85

Consequently, Eng has not demonstrated that there are propositions in

legal argumentation which have features that make it impossible to place
them in any of the three categories above. Eng has not shown that the propo-
sitions he calls “fused” are different from the propositions that are normally
called “confused.”

3. Why Accept Confusion?

Eng says that his theory is purely descriptive (Eng 2000, 258). It only
describes what lawyers actually do, and does not concern what they ought
to do (Eng 1998, 318). This is not entirely true. At the end of his analysis,
Eng says that one should not demand that lawyers always separate whether
they mean that something “is” or “ought to be” the law.

[ . . . ] it is logically impossible both to accept the doctrine of the sources of law,

lawyer’s decision situations and the interests that these situations in fact actualise,
and at the same time to demand that the distinction between descriptive and nor-
mative propositions be carried out without exception [ . . . ]. (Eng 2000, 258)

What Eng is saying here is that due to the conditions under which lawyers
make statements about the law (“the doctrine of the sources of law”, etc.),
there are bound to be propositions with a “fused modality,” and that it there-
fore should be accepted that lawyers make such propositions. This norma-
tive claim challenges a keystone in the theories of philosophers like John
Austin, Oliver Wendell Holmes and Herbert Hart: the idea that logical
clarity is always desirable. As we have seen, the propositions Eng calls
“fused” are no different from the propositions that Austin, Holmes and Hart
would refer to as confused. The normative conclusion in Eng’s theory is that
we should not always demand logical clarity from lawyers.
This normative conclusion, however, is unsupported by the findings in
Eng’s investigation. The observations concerning “fused modality”/”con-
fused modality” do not show that there are situations where the conditions
under which lawyers make propositions about the law make it practically
impossible to keep “is” and “ought” separate. At most, Eng’s observation
shows that such propositions are frequently “fused”/”confused,” and that
it is therefore unrealistic to expect that lawyers will ever stay out of
“fusion”/”confusion” without exception. But this is no reason to stop
demanding that lawyers should try to be clear about what they mean.
Demands for clarity are not always effective. Some people refuse to make
clear whether they claim that something “is” or “ought to be” the case, no
matter how many times we ask them. This is a fact of life, familiar to every-
one who has tried to have a rational conversation with a person who resorts
to authority rather than reason. This kind of behaviour is acceptable from a
police officer on patrol duty, who informs people about their rights and obli-
gations, but it should never be tolerated from a legal counsellor, judge or
© Blackwell Publishing Ltd 2004.
86 Christian Dahlman

law professor. There is no legitimate reason for a lawyer to obscure the

logical nature of his or her claims about the law.

Lund University
Faculty of Law
P.O. Box 207
SE-22100 LUND
Sweden

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——— . 2000. Fusion of Descriptive and Normative Propositions. The Concepts of
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© Blackwell Publishing Ltd 2004.