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He proceeds as follows. Against this background he argues that a reductionist approach is feasible and closes the paper by trying to save one of the main intuitions that inspired the instantiation conflicts argument.
The main intuition behind NS is that any legal, case-solving process consists in establishing the deontic status of a certain action, which is relative to a given universe of discourse UD , according to the normative propositions that describe the legal system under consideration.
The inference from general norms to effective individual requirements does not presuppose any sort of volitional act. When legislators namely, empowered authorities 3 did not provide any clear solution, judges must find the correct answer on their own.
Any legal order, taken as a whole, is a sequence of interlocking systems, connected by a specific, positivistic relation of identity qua membership. I will not even try to discuss the host of problems raised by this approach, which have already been analyzed by Mauro Barberis I would like to invite attention to this topic because, despite their great theoretical importance, normative conflicts seem to occupy only peripheral positions in NS, and receive but a rushed overview.
NS, instead, assumes that every antinomy, by definition, is a conflict between general cases: accordingly, every antinomy stems from an inconsistent deontic modalization of two identical or overlapping general cases. In my essay I will propose new arguments in favor of NS, by showing how even paradigmatic examples of instantiation conflicts can be reframed as antinomies between general cases. I will defend the approach of NS as follows:. Although these authors are very cautious in deriving dramatic implications from their argument, I will maintain that, should they be right, several fundamental assumptions of NS might be seriously questioned.
As Giovanni Battista Ratti demonstrated a couple of years ago, there are compelling reasons for denying that so-called conflicts of instantiation display special logical properties, and that they necessarily arise from the facts of an actual, individual case.
If we accept antecedent strengthening , every example of instantiation conflict proposed in the lively debate over antinomies can be effectively reframed as a conflict between generic cases. Under my view, this argument, albeit incorrect, could be considered as an attempt to do justice to some reasonable intuition about our perception of normative conflicts.
Those cases generally regarded as instantiation conflicts do not display any peculiar, logical structure, or feature, that confines them to the dimension of individual cases.
Nevertheless, in such cases, the identification of a normative conflict seems to be a difficult task. This difficulty does not arise from the fact that certain properties have to be instantiated in order to generate a contingent normative conflict. Under uncertain circumstances, the interpreter must think slow , 14 and get involved in a less intuitive kind of reasoning in order to ascertain the presence of a conflict.
The instantiation conflicts argument offers a mistaken response to this reasonable intuition. In this way I will move, of course, from logics to cognition. From the positivistic perspective of NS, ideal systems are consistent, non-redundant and complete. A normative conflict is described as a special case of inconsistency: we face a normative conflict only if the system ascribes incompatible solutions to the same general case for instance: smoking in general , or to overlapping general cases for instance: abortion and therapeutic abortion which belong to a given Universe of Cases.
Accordingly, any normative conflict comes from the interplay of the content variable and the deontic-operator. Third, NS contains a formal definition of consistency. This becomes especially true if we assume the validity of ex falso quodlibet principle, which basically licenses the derivation of any proposition whatsoever from two contradictory contents, leading to the implosion of a system.
Contextual content is incrementally determined by the interplay of literal meaning and background information: it can express a variety of proposition, or propositional-like entities, by varying background assumptions. The two authors assume straightforwardly both that normative conflicts are entirely confined within the level of general cases , and that it is possible to analyze antinomies using a conservative expansion of a basic system of first-order model theoretic logic.
As we shall see, both assumptions are far from being uncontroversial. Now, the question is: were Alchourron and Bulygin right in making this assumption? This dilemma brings us to the main topic of the present essay.
Before offering a line of argument that justifies these considerations, I shall present briefly the distinction between generic cases and individual cases, which plays here the pivotal role: as hinted before, NS assumes that antinomies are always conflicts between general cases; on the contrary, the argument from instantiation conflicts is aimed at showing that some antinomies are necessarily conflict between individual cases.
When actualized objects exemplify properties, they generate state of affairs. According to a common view, properties include relations, understood as arbitrary classes of ordered n-tuples of things pairs, triples, and so on. Taking it forward, we might want to say that, from a psychological perspective , general cases correspond to concepts, whereas individual cases to percepts — the objects of two different mental acts. From a physical perspective , instead, we observe that particulars correspond to individual objects, or entities, being thought of as existing in a concrete time and space, whereas non-particulars are abstract entities, to whom we ascribe a non-spatiotemporal nature; they can be thought independently from some other particular entity.
A particular is something not necessarily an object that instantiates but is not itself instantiated. Universals, on the other hand, necessarily have instances or, at least, are instantia ble. Thus I think of universals as Kinds. So, for instance, the prohibition of sexual harassment established by the Italian criminal law art. Hugo to pay punitive damages for a breach of a contract previously stipulated with the x -Society, issued by a judge in flesh and bones, regulates an individual case.
As hinted before, an individual case is a concrete event, which essentially possesses spatiotemporal properties and relations. We might intuit offhand that the latter is a real, independent entity or event, whereas the former is essentially a property or, better, a set of properties , which can be predicated of a whole class of x- cases.
Accordingly, generic cases collect together sets of propositions: they collect at least one proposition for each atomic entity that can be used to fill the variable x ; or, if you prefer, they collect together all the propositions where the property, or set of properties, might occur. Propositions about general cases are explicitly presupposed by propositions about individual cases, but they are not acquainted either with the atomic propositions that describe the facts of an individual case, or the proposition-like entities that ascribe normative qualifications to them.
Rather, they can be viewed merely as schematic representations call them generalizations , if you wish depicting patterns that belong to classes of individual cases, which can be considered extensionally alike. To put it in a more technical jargon, they arise only if a certain, specific property is instantiated i. Let us now explore the argument in greater detail.
NST 1. NST 2. If we look at these formulae, we get the impression that the two norms are not contradictory at all, for they display different antecedents. Now, if this is correct, NS-apparatus seems to be missing something. According to the instantiation conflicts argument, what NS lacks is the following element: in such a case, the antinomy appears only when we come to decide about an actual, individual case namely, an in concreto case.
The example shows that two seemingly consistent norms can produce a normative conflict given the occurrence of certain factual circumstances [The stress is mine]. Therefore, here is a new element that has to be taken into consideration for a proper characterization of normative inconsistency: a set of norms can be inconsistent via certain facts — under the occurrence of certain factual circumstances [The stress is mine] — and inconsistent via other facts.
Let us imagine a normative system that contains a general norm which prescribes that for any x and y , if x has a credit from y , then it is obligatory for y to pay x :. Considered both the possibility of unemployed foreigners, and the possibility of employed citizens, we can conclude that an instantiation conflict arises for individuals that are both citizens and unemployed — say, Mr.
Situations such as this may be called conflicts of instantiation , because they involve individual norms logically derivable from at least one general norm, or instances of application of the same general norm, that generate a conflict because it is empirically impossible jointly to satisfy them. Apparently, this statement is shown to be true by following test: we can realize that there is a normative conflict in every possible world, even without considering any actual situation where, say, Mr.
Hugo — the famous farmer and legal philosopher from Gemona — is smoking his pipe. They involve consistent norms that, under peculiar circumstances, cannot be jointly satisfied, due to some factual limitation and, therefore, generate also a conflict in the system. General cases offer a minimal basis for characterizing and unifying the content of a system for three reasons: first, they establish what properties are relevant for the system; second, they characterize concrete cases through classification ; third, they are capable of repeated instantiation within a legal order.
If the proponents of the instantiation conflict argument are right, one of the fundamental functions attributed to general cases namely: grant unity to the system in NS cannot be entirely performed. Moreover, if the facts of an individual case determine the possibility of a normative conflict, then it becomes impossible to maintain that normative systems are closed under logical consequence.
Finally, the fashion of giving unity to the content of a system proposed by NS encounters strong limitations. Take the examples examined in the previous paragraph: they never involve actual interpretations of contextualized normative sentence-types, let alone normative utterance-tokens. This consideration suggests that the boundary of general cases has not been trespassed.
However, this piece of evidence is not enough to score a point against the existence of instantiation conflicts: we need to build up a proper counter-argument. In order to bring about the antinomy in the abstract dimension of general cases it is sufficient to apply antecedent strengthening either to N 1 or N 2.
Then, how could we bring about the antinomy between general cases? After all, we are still talking about citizens and unemployed as general categories. On these premises, Ratti concludes that the instantiation conflicts argument is flawed, for it confuses the empirical occurrence of an antinomy with the conceptual identification of the antinomy itself.
If a predicate quantifies over an empty set, then, by definition, it cannot denote any actual, individual state of affairs, action, event, object or entity. The proof is highly intuitive, and therein lies its strength.
Considered that, according to Ratti, unicorns do not exist his usual ontology corresponds to a non-generous form of conceptualism , the normative conflict between N 1 and N 2 is independent from any instantiation of the relational property of being both a unicorn and a meek animal. The Fregean sense of the normative statement is not anchored to any individual entity, for the norm can be satisfied by a whole set of individuals and events that fall under the scope of those terms that fulfill a predicative function.
Consequently, the instantiation conflicts enthusiast confuses the empirical occurrence of a normative conflict with the conceptual identification of the normative conflict itself. Let me begin with the charge of blurring the distinction between identification and occurrence of a normative conflict, which he addresses to the friends of instantiation conflicts. If Mr. Or, if our good Mr. Hugo becomes too old to drive his tractor, then he will never get into a position where he might find a red light in front of a military base while driving.
These are trivial truths but, as Ratti correctly maintains, they tell us something about the empiric possibility of a normative conflict, and not about the identification of a normative conflict within a certain normative system. In other words, they involve the relation between normative micro-systems in our case: a portion road traffic regulation and empirical facts Mr.
Moreover, what is most important, this trivial truth cannot be used to build a hard-edged case for the distinction between antinomies understood in a narrow sense and conflicts of instantiation, for it is a trivial truth about every antinomy whatsoever, including the most paradigmatic examples of conflicts between general cases.
Thus, there is a sense in which any antinomy is a conflict in concreto, in so far as judges discuss antinomies only if they are connected with the atomic fact of a real litigation. Thus, any argument based on this trivial truth would not serve as a justification for the distinction between conflicts between general cases and conflicts of instantiation.
For all these reasons, Ratti recommends being careful, and keeping occurrence separate from identification. The situation represented in the example is rather a problem of purely factual impossibility : a certain agent b is facing a tragic choice, because he is unable to comply with an abstract norm, due to his scarce resources. The agent b has only ten dollars in his pocket money, but his total debt towards his creditors a and c amounts to twenty dollars.
Whether he decides to pay a, or to pay c he will not comply with his obligation. On these premises, Hamner Hill develops a functional understanding of normative conflict, and a taxonomical classification that distinguishes between three species of conflicts: normative contradiction a conflict between obligations , normative collision a conflict between permissions, or between obligations and permissions , and normative competition cases in which the conflict involve norms of distinct jurisdictions.
However, I think it is worth stressing that the notion of impossibility of joint compliance, taken as a definitional tool for antinomy, might open the road for the confusion between empirical occurrence of a normative conflict, and a genuine normative contradiction or collision within a certain system.
There is not such a thing as a free lunch here. An extension of first - order propositional calculus with deontic operators will not do the job. Going back to our examples, we have to show how agricultural machineries and vehicles, meek animals and unicorns, traffic lights and military airbases, might be brought together under the same class. These postulates become descriptive constants that have the function of validating semantically based inferences, 62 which are constitutive of the meaning of a word or phrase.
However, these definitional components might not even be primitive: they might denote functional or cultural factors, other complex entities, and other non-observational elements.
According to Jackendoff , the sorts of conditions required to specify word meanings are, at least, three: necessary conditions , graded conditions , and conditions that are typical , but might be subject to exceptions. It is not as one has to get involved in the analysis of the facts of an individual case, or in a sociological study on the behavior of unicorns.
The Expressive Conception of Norms