28 If the foregoing considerations are assessed from the point of view of the legal image of man, it is clear that such experiments cannot indicate that human beings are incapable of acting in the light and on the basis of reasons, or that there are no reasons at all, but only that there are situations in which the reasons, which we consider to be the causes of our actions, are not actual causes of these actions. In this experiment, it appears that the subjects did not have the ability to respond to the reasons because the cognitive mechanisms responsible for their verbal responses in the second phase of the experiment differed markedly from the cognitive mechanisms that actually functioned and caused their insomnia to be reduced or intensified. In addition, participants were unable to discern the reasons because they did not believe the experimenters when they were informed of the experimental hypothesis and the postulated attribution process. However, this indicates at best that they lacked rationality only in the context of the experimental situation, but not that they lacked rationality in court. A related concept to legal naturalism is iusnaturalism, which asserts that ideas of nature and divinity or reason confirm natural and positive laws.  5 Many legal positivists (most, as mentioned, are anti-naturalists) have vigorously denied such a link (see sources cited in Priel 2013:275 note 13). Jurisprudence theory does not deal with the relationship between „evidence“ and „scientific theory“, but with the justifying relationship between „legal reasons“ (entry, so to speak) and judicial decision (the outcome): jurisprudence theory attempts to tell judges how to justify their decisions, that is, it attempts to „justify“ judicial decision-making in the reasons. that require unique results. American legal realists are „anti-fundamentalists“ in terms of judicial decisions in the sense that they deny that legal bases justify a single decision: legal bases determine the decision, at least in most cases actually contentious. Specifically, realists argue that the law is rationally undefined in the sense that the class of legal reasons – that is, the category of legitimate reasons that a judge can offer to justify a decision – does not justify a single result. Just as sensory input does not justify a single scientific theory, legal reasons do not justify a single decision, according to realists.
1Legal positivism and natural law remain widely used tools in the lawyer`s toolbox. Among other things, they represent competing ways of thinking about legal argumentation, the foundations of political authority, and the existence of necessary links between law and morality. However, when contemporary legal philosophers, specifically the analytic legal philosophers of the English-speaking world, examine the distinction today, they consider this unregulated use of terms to be a great waste. To understand legal positivism, they say, we need to identify a „distinct proposition“ (Gardner 2012: 19). On an intellectual path that cannot be traced here (but discussed in Priel 2015), legal philosophers seem to have settled on a very narrow understanding of the distinction between legal positivism and natural law, dealing mainly with competing views on the conditions of legal validity. Understood in this way, however, it turned out to be an indiscriminate distinction, since many natural jurists do not contradict legal positivists on the issue of legal validity. This essay attempts to show one (among several) possible understandings of the relationship between legal positivism and natural law that has the merit of being both more consistent with the history of the field and having the potential to breathe new life into a debate. He does not do this by tinkering with the margins of existing definitions, but by proposing a new way of thinking about this distinction, which reinterprets both positions as naturalistic theses. On the basis of this discussion, I will then sketch very superficially which approach seems to me to be right to explain the normativity of law. More than an argument in its own right, some of the positions I take here are a promissory note for a view of the foundations of the rule of law that demands more than space here allows.
Before I get to that, I must argue in favour of such an approach, which is not evident in the context of contemporary debates. 55 The main problem with the classical approach is that it is useless for the study of the part of the mind that is not available for introspection. This is especially important because it is the most important part of the mind in terms of influencing thinking and behavior. A systematic and interesting insight into the workings of the automatic, unconscious and rapid part of the mind is only possible through experimental research. The results of this research can be completely arbitrary from a popular psychological point of view, as in research on introspective confbulation. And the phenomenon of introspective confabulation is just the tip of the iceberg of the automation revolution that cognitive science has seized in recent years. 7 (6) is not strictly concerned by (5). (6) is true insofar as we think that legal positivism and natural law exhaust the range of possible (or plausible) general theories of law, so that one of them must be true. Even if this is not true, the text`s argument clearly opens the way to a certain version of legal positivism. Of course, even if the new reference theory correctly reflects the meaning of certain concepts (such as natural concepts), this does not show that it gives us the correct representation of meaning for the purposes of legal interpretation (cf.
Munzer 1985). Suppose Parliament prohibits the killing of „fish“ within 100 miles of the coast and clearly intends (as legislative history shows) to protect whales, but does not recognize that the term „fish“ is a natural term that does not include whales in its extent. The new reference theory tells us that the law protects sea bass, but not whales, but certainly a court that has interpreted the law to protect whales would not make a mistake as well. In fact, one might think that the opposite is true: because a court that does not protect whales would violate the will of the legislator and therefore indirectly against the will of the people. The example suggests that the correct theory of legal interpretation is not only a matter of philosophical semantics: questions of political legitimacy—the conditions under which the exercise of coercive power by courts can be justified—must influence theories of legal interpretation, and such considerations may even prevail over considerations of semantics. At least in contemporary Anglo-American legal philosophy, „legal positivism“ is generally used as an abbreviation for a statement that looks like this: „The existence and content of law depends on social facts, not on its merits“ (Green 2009). What is the relationship between naturalism and legal positivism in the aforementioned sense? The situation is somewhat complex because some, but not all, right-wing positivists are naturalists, and few have gone as far as Scandinavian realists in wearing their naturalism on their sleeves. In short, naturalism can and should sometimes play a role in motivating legal positivism. 29If, for any other reason, the truth of (3) has nothing to do with the law itself, I will not address it here. Assuming (3) is true, is there a way out for the natural law theorist? Undoubtedly, if naturalism is true, this argument is effective against some versions of natural law theory, but in the next section I will suggest that we can reconstruct some views of natural law in naturalistic terms (i.e., we can (2) reject). For a legal naturalist, these are the most interesting points of view to consider.
14Against all this, Leiter proposed that hermeneutical explanations could be naturalized (2007: 173-75). If this is true, it can be seen as a way to save Hart`s naturalistic credentials, but regardless of whether or not this is a viable position, it is obvious that Hart himself resisted it. He saw this as the fundamental error of those who thought they could describe concepts such as right and duty „exhaustively“ in naturalistic terms (Hart 1955: 248). At most, Hart could be interpreted as a proponent of the view sometimes called „liberal naturalism.“ This view, along with stricter forms of naturalism, shares the idea that a representation of normativity is „not supernatural,“ but at the same time insists that „normative objects are not natural laws“ and, more positively, that „the space of reasons and values“ is something that the sciences cannot explain. Instead, this view suggests that these aspects of human life are the product of „maturation, language learning, and enculturation“ (Macarthur 2010: 127-28). Anyone familiar with Hart`s work will easily recognize it by these words. Whether we call this view „liberal naturalism,“ „second-nature naturalism,“ or „weak antinaturalism,“ is a pointless verbal argument, but it is quite clear that this view is at odds with the kind of naturalism Leiter would like to see more in the philosophy of law, a naturalism that openly persists with the natural sciences. There are some problems with this objection. First, conceptual naturalism does not exclude criticism of the norms that are applied by a society as law. To the extent that it can plausibly be asserted that the content of a norm imposed by society as a law does not correspond to natural law, this is a legitimate reason for moral criticism: since the norm to be applied by the law is unjust, it follows from conceptual naturalism that it is not legally valid.