B. Brożek - Outline of a Theory of Law's Normativity

63o u t l i n e o f a T h e o r y o f L a w ’ s N o r m a t i v i t y

bartosz brożek

OUTLINE OF A THEORY OF LAW’S NORmATIvITY

This essay aims at developing a framework for discussing law’s norma-tivity. it is my claim that there is no one absolute conception of the nor-mativity of law: any such theory is relative to the accepted ideal of ration-ality. however, there exists an absolute notion of normativity, although it is a feature of what i call rudimentary rules, which cannot be divided into types (moral, legal, etc.). i claim further, that it is the rudimentary rules and rudimentary normativity that conditions the very possibility of discussing different approaches to law’s normativity.

The essay consists of three parts. Part 1 is devoted to the traditional ex-planations of normativity, i.e. to monism and dualism. a detailed analysis of two examples (Petrażycki’s and Kelsen’s theories of law) leads to the conclu-sion that in order to account for the normativity of law, one needs to adopt broader ontological and normative perspectives, ones that are not conined to legal rules. Part 2, in turn, examines the ontological basis for any discus-sion concerning normativity. Drawing on the conceptions of wittgenstein and Popper, i attempt to develop a satisfactory ontology of rules. finally, Part 3 deals with the different notions of normativity and culminates in the formulation of some general morals for legal philosophy.

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64 B a r t o s z B r o ż e k

one inal remark: in what follows i accept a working deinition of normativity which reads: ‘rules of behaviour are normative if and only if they constitute objective reasons for action.’ i am fully aware of the fact that there exist other approaches to normativity. however, i believe that the deinition accepted here is the most common. moreover, it has the advantage of distinguishing the normative force of a rule from its mere psychological ‘bindingness’.

1. The Received Ontological Scheme

from the most general ontological perspective, one can speak of two traditional schemata of explaining normativity. on the monistic account, rules are reducible to the sphere of facts (sociological or psychological). in this way, what we call ‘reasons for action’ are mere psychological (subjec-tive) motives or some predictions of social behaviour. The dualistic account, in turn, offers a full-blooded conception of rules as objective reasons for action. it does so, however, for a high price: it postulates the existence of a sphere of values or pure norms, and opens an unbridgeable gap between the factual and the normative. in what follows, i will analyse in detail para-digmatic examples of monistic (Petrażycki) and dualistic (Kelsen) explana-tions of law’s normativity. along the way, i will try to highlight the most problematic aspects of both approaches.

1.1. Petrażycki’s monism1

Petrażycki is considered one of the most eminent – if not the most emi-nent – Polish legal theorist. his answer to the question of ‘what is law?’ is very original indeed. it does not mean, however, that his conception is law-less. Petrażycki set out to lay new foundations for jurisprudence and claimed that this task requires, irst and foremost, an answer to the question of what is law. he observed that without such a deinition any legal-philosophical and legal-theoretic considerations are carried out in a vacuum:

1 The following section is based on my paper Some Remarks on the Naturalization of Law, [in:] Studies in the Philosophy of Law, vol. v: Law and Biology, eds. J. Stelmach, B. Brożek, m. Soniewicka, wyd. UJ, Kraków 2010, pp. 73-82.



This is a principal and prejudicial issue, one which conditions the very possibility of the science of law2.

The answer to the question ‘what is law’ demands, according to Petrażycki, the application of an adequate method. The problem is, how-ever, that the methodological tools Petrażycki uses are out-dated, if not anachronistic – even from the perspective of the 19th century philosophy of science3. Petrażycki claims that the goal of jurisprudence – understood as ‘a science in the correct sense of the word’4 – is to look for the essence of law5. in effect, one should try to construct a classical deinition of law, i.e. a deinition per genus et differentiam:

in order to divide the law scientiically into kinds and determine the differences between them, one should know the genus of law (…). it is thus necessary to recognize to which higher, more general cat-egory of phenomena law belongs6.

here, in a nutshell, one can ind all the ingredients of the aristotelian view of science. it assumes, irst of all, that in the world there exist essences; the aim of science is, thus, to capture those essences in deinitions which serve to build a table of essential deinitions (Porphyry’s tree), one that classiies all entities univocally. Petrażycki’s method presupposes, then, a very strong meta-physical view. it also encapsulates a static conception of science. Both those features are inconsistent with the practice of contemporary science.

furthermore, one has to note that some of Petrażycki’s claims open the door to a revision of aristotelian orthodoxy. he says, for example:

The foundation of scientiic legal policy should be the examination of the causal features and the causal mechanisms of law in general, and of its different kinds and elements in particular7.

The passage above indicates that jurisprudence should conine itself to the considerations of causal connections, while in the aristotelian

2 L. Petrażycki, Wstęp do nauki o prawie i moralności (An Introduction to the Science of Law and Morality), PwN, warszawa 1959, p. 41.3 Cf. the views of french conventionalists. 4 L. Petrażycki, Wstęp…, op.cit., p. 13.5 Ibidem, p. 39.6 Ibidem, pp. 31, 35.7 Ibidem, p. 14.



tradition the teleological connections play an eminent role. moreover, Petrażycki also notes:

especially in science, where each and every theory needs to overcome attempts at rejection and modiication in order to be considered ac-ceptable (…), where one has to do with a ‘struggle for life’ and only the ittest doctrines survive, one should expect that with the passage of time there should survive objectively sound theories8.

Such a declaration its well with the conceptions of Popper or Lakatos. This is evidence that Petrażycki had many original insights connected to the question of what is science. Unfortunately, he combined them with the anachronistic ideas of aristotle. This led, in turn, to the development of an incoherent methodology. it wouldn’t be too devastating if the ele-ments of the essentialist ideology remained at only the verbal level but Petrażycki applied those methodological rules meticulously, making his theory of law one conceived in original sin, an unacceptable one.

for Petrażycki – and that is also aristotelian – jurisprudence, as well as other humanistic and social disciplines, needs a foundation, which is to be found in a more basic science: psychology. Petrażycki was unhappy with the psychology of his time, in particular, disagreeing with the Kantian her-itage it accepted. Kant divided mental phenomena into three categories: knowing, feeling and willing. Petrażycki considered this division incom-plete, claiming that one should add to it another, fourth category:

one should distinguish not three, but four basic forms of inner experiences and four classes of mental elements: (1) emotions, i.e. impulsions (two-sided mental experiences), 2) and 3) sensations and feelings (passive one-sided experiences), 4) processes of the will (one-sided active experiences)9.

emotions (impulsions), a category which is essential for the task of deining law, are two-sided, active-passive, while all the other experiences are one-sided. among the emotions Petrażycki includes hunger and love10.

8 Ibidem, pp. 205-206.9 L. Petrażycki, O pobudkach postępowania i o istocie moralności i prawa (On the Motives for Action and on the Essence of Morality and Law), oicyna Naukowa, warszawa 2002, p. 14.10 Cf. ibidem, p. 10.



furthermore, Petrażycki provides us with a classiication of emotions. from our perspective, the most interesting are the ethical emotions (emo-tions of duty), which ‘are experienced as an inner limitation of freedom’11. ethical emotions could be further divided into moral and legal; the former are exclusively imperative (i.e., the actor feels obliged to do something), while the latter are imperative-attributive (the actor feels obliged to do something, but also accepts that someone else has the right to require her to do it). This distinction leads Petrażycki to the famous deinition:

Law, as a separate class of real phenomena should be understood as such mental experiences whose emotions are of the attributive char-acter (…). all the other ethical experiences, i.e. experiences of exclu-sively imperative emotions, should be deemed moral phenomena12.

one should be mistaken, however, if she insisted that Petrażycki iden-tiies legal norms with certain emotions or complex mental experiences. in order to clarify this issue, one should distinguish between such notions as emotion, representation, norm and duty.

emotion, as noted above, is one of the four basic, irreducible mental experiences. People, according to Petrażycki, also have the power to im-agine certain situations or behaviour. Such an imagined representation – together with the emotion it causes – constitutes a motive for action. in On the motives for action and on the essence of morality and law Petrażycki says:

we are interested, especially, in one particular type of motivation, the one in which there is a connection of representations of various acts with very peculiar emotions, which we deem ethical emotions or emotions of duty13.

for instance, if i imagined taking part in a fraud, ‘i would experience a mental state similar to that which i experience while considering eating a piece of rotten meat, touching a spider or a snake; in normal circum-stances i would experience repulsive emotions’14.

11 Ibidem, p. 27.12 L. Petrażycki, Teoria państwa i prawa (Theory of State and Law), vol. i, PwN, warszawa 1960, pp. 72, 73, 123.13 Idem, O pobudkach…, op.cit., p. 25.14 Ibidem, p. 21.



furthermore, one should distinguish between emotions, representa-tions and motives on the one hand, and legal and moral norms and duties on the other. Petrażycki deines legal (moral) norms as the contents of the ethical (moral or legal) convictions15. Thus, norms are not emotions, mo-tives etc but they are of an intellectual character. They may be described as speciic representations or propositions, which can be grasped (contem-plated). it is worth noting that those representations (propositions) serve as primitive terms in Petrażycki’s psychology, similar to the notion of idea in hobbes, Descartes or Locke, or the notion of concept in Kant.

The notion of duty is deined in a similar way. Petrażycki says:

Duties are ideal projections, which originate in our minds. Such pro-jections are connected to the described emotions and representa-tions, and not to some things or phenomena in the outer world16.

it seems, therefore, that duties should also be called representations or propositions, which are graspable by the human mind. one can ind the conirmation of those conceptual distinctions in the following passages:

The explained difference of genus between one-sided imperative (moral) and two-sided duty-imposing (legal) norms and duties is based on the adequate genus differences among the emotional-intel-lectual complex phenomena which are, as we demonstrated, the real base for ethical duties and norms17. The basic motivation, which consists in connecting representations of actions with the above characterized repulsive or impulsive emo-tions, we should deem ethical motivation and the corresponding principles of behaviour – ethical principles or norms18.

Therefore, law and morality exist in the minds of people. Law cannot be identiied with norms. it would be a mistake, however, to identify it with certain ethical emotions. when Petrażycki says that ‘law, as a separate class of real phenomena should be understood as such mental experiences whose emotions are of the attributive character’, he claims that law is a complex mental phenomenon, one that consists of adequate emotions, norms and duties.

15 Ibidem, p. 33.16 Ibidem, p. 34.17 Ibidem, p. 49.18 Ibidem, p. 28.



Still, one more problem should be addressed: what is the relationship between the law (in Petrażycki’s sense) and the provisions of legal acts? Petrażycki’s reply is the following:

The representations of legal provisions or biblical commandments shall be deemed the representations of ‘normative facts’. ethical convictions, to which such representations belong, shall be called positive ethical convictions, and their contents – positive norms. ethical convictions, which lack such representations of normative facts, are intuitive ethical convictions, and the corresponding norms – intuitive norms19.

The general mental mechanism proposed by Petrażycki appears as fol-lows: people have the capacity to imagine certain situations, patterns of behaviour etc. There are a plethora of sources of such imagined repre-sentations: legal acts, the Bible, or any other ‘normative fact’, as well as one’s own intuition. Those representations cause the corresponding legal or moral emotion. Together, they serve as motives for action.

in light of the above, one may say that Petrażycki presents us with a peculiar ontology of law. he believes that norms are certain representa-tions or propositions. he claims, moreover, that law cannot be identiied with the set of legal norms. Law consists of complex mental states, which include representations (propositions), and emotions, together generating motives for action.

it is interesting that Petrażycki does not address the problem of law’s normativity. he does not consider legal (or moral) norms as objective rea-sons for action. he seems to concentrate on a different question: how does a legal or moral norm motivate people’s actions? The key role in this proc-ess is played by the relationship between representations of certain states of affairs and the ethical emotions they generate. Does this mean that the reductionist strategy deployed by Petrażycki leads to the elimination of the concept of law’s normativity? Does Petrażycki show that the notion of a le-gal norm which is an objective reason for action is meaningless? The answer is a plain and resounding ‚no’. The notion of normativity is needed as soon as Petrażycki moves from describing law to the problems of legal policy.

19 Ibidem, p. 33.



The entire theoretical enterprise described above, which aims at un-covering the psychological mechanisms of how legal and moral norms inluence human behaviour, has an additional, practical goal. Petrażycki says:

The essence of the legal policy problems boils down to scientiically justiied prediction of the effects of enacting legal provisions. Legal policy aims at developing such principles, which – introduced into the legal system or in some other way – would yield the required effects20.

moreover, Petrażycki devotes much attention to describing those ‘re-quired effects’. The legislator, he claims, has a certain goal to realize21. The goal is to be reached in a purely instrumental way, with the utilization of the knowledge concerning the mental motivational mechanisms. in such a set-ting the legislator becomes a ‘super-human’. while ‘ordinary’ people are led by emotions, the legislator applies the rules of pure instrumental rationality. it is necessary, of course, to explain the normativity of those rules. further-more, the surprising fact that a certain kind of rules – the rules of rationality – are of a totally different character to legal and moral rules is also in need of an explanation. Thus, the reduction proposed by Petrażycki is only partial and suffers from a serious case of ‘schizophrenia’.

in conclusion: Petrażycki offers an intriguing conception of law. Con-trary to usual presentations, he does not identify legal norms with emotions. he claims that law is a complex mental phenomenon. Unfortunately, along the way he commits some grave errors. The anachronistic method he ap-plies – aristotle’s essentialism – carries with itself a serious metaphysical baggage. accepting it, Petrażycki is forced to look for the essence of law, an ephemeral entity that is nowhere to be found. moreover, misled by aristo-telianism, Petrażycki looks for a foundational answer to the question ‘what is law’. This foundationalism has two faces: irstly, it requires us to look for a science that is more basic than jurisprudence; secondly, it launches a search for some basic phenomena which, taken together, ‘produce’ law.

all those deiciencies would be avoidable if Petrażycki recognized the role philosophy should play in any attempt at deining law. instead, he

20 L. Petrażycki, Wstęp…, op.cit., pp. 13, 14.21 Cf. K. motyka, Leon Petrażycki’s Challenge to Legal Orthodoxy, Towarzystwo Naukowe KUL, Lublin 2007, pp. 48, 49.



tried to construct the deinition of law directly at the level of the ‘more fun-damental’ science of psychology (i disregard the fact that Petrażycki’s psy-chology has little to do with contemporary psychology, as my remarks are methodological in character). The disregard for the philosophical dimension of his project leads Petrażycki to a premature dismissal of the phenom-enon of normativity. it turns out that the normativity problem – reduced to the psychological problem of the motivating force of law – reappears at a different level. when considering the goals of legal policy, Petrażycki ex-plicitly states that a legislator should act according to rules of instrumental rationality, ones that clearly possess some normative force. The failure of Petrażycki’s theory vis a vis the puzzle of normativity may thus be described in terms of the unacceptable narrowing of the normative horizon. it is as if Petrażycki were content with the reduction of law’s normativity to the nor-mativity of the rules of instrumental rationality. moreover, he seems to have no interest in explaining the normative force of the latter. in this way, the normative horizon he adopts is quite narrow: his theory aims at accounting for the alleged normativity of only legal rules. This may be interesting per se, but as a way to solve the normativity puzzle it is useless.

1.2. kelsen’s dualism

hans Kelsen’s philosophy of law has been commonly recognized as one of the most important contributions to 20th century legal theory. it is surpris-ing, as his conception is descriptively inadequate and theoretically extravagant. at the outset, it must be noted that Kelsen produced a lot of writings, of-ten changing even the most basic of his views. Therefore, it is impossible to present and comment upon all of his remarks concerning the problem of normativity. instead, i shall concentrate on the main aspects of his view.

Kelsen’s idee ixe is best encapsulated by the title of his major work: he sets out to develop a pure theory of law. This goal has several presupposi-tions. firstly, it is assumed that there can exist an autonomous, speciic le-gal method; secondly, that the method in question is useful and desirable. The ‘pure method’ stands vis a vis its object: the law, understood as an object of scientiic investigation, independent of other branches of science:

[T]he purity of the theory or – amounting to the same thing – the independence of the law as an object of scientiic cognition is what i am striving to secure, speciically in two directions. The purity of



the theory is to be secured against the claims of a so-called ‘so-ciological’ point of view, which employs causal, scientiic methods to appropriate the law as a part of natural reality. and it is to be secured against the natural law theory, which, by ignoring the fun-damental referent found exclusively in the positive law, takes legal theory out of the realm of positive legal norms and into that of ethico-political postulates22.

The independence of law as an object of scientiic cognition is se-cured through taking the law to be a system of ideally valid norms, i.e. the norms belonging to the sphere of pure ought (Sollen). Kelsen devotes much attention to the reconstruction of the system in question. he rejects the idea to regard it as a static system (a system of law connected through content). The reason for this move is that the highest norm in such a sys-tem is a maxim of the practical reason (in the Kantian sense of the word), which leads to a version of a natural law theory. in other words, the legiti-mization of a static system of norms lies in ethics.

The only remaining solution is to consider the law as a dynamic sys-tem of norms, where norms are connected through a formal competence relation: a higher norm establishes a competence to issue a lower norm. also in this case, the question concerning the highest norm may be asked. Kelsen deems it the Basic Norm (die Grundnorm). The Basic Norm is one of the most controversial issues in Kelsen’s theoretical account of the law. The dificulty is relected by the number of names with which Kelsen re-fers to the Grundnorm. he speaks, inter alia, of the presupposed norm, pre-supposition, a norm included in a supposition, juristic hypothesis, ultimate hypothesis of positivism, ultimate ground of the validity of the legal sys-tem, thought norm, genuine iction, judicio-logical constitution, constitu-tion in the transcendental-logical sense, transcendental-logical concept, or transcendental-logical condition of the interpretation in legal sciences23.

These descriptions are characteristic for two reasons. first, Kelsen treats the Basic Norm as a certain assumption or presupposition. Second, he believes it has a ictional character. The Basic Norm must be assumed in order to understand what lawyers say when they claim that the norms of a legal system are valid. Therefore, the Basic Norm:

22 h. Kelsen, Hauptprobleme der Staatslehre, JBC mohr, Tubingen 1911, pp. 3, 4.23 U. Bindreiter, Why Grundnorm?, Kluwer, Dordrecht 2002, pp. 17, 18.



merely makes conscious what most legal scientists do, at least un-consciously, when they understand [legal] facts not as causally deter-mined, but instead interpret their subjective meaning as objectively valid norms, that is, as a normative legal order, without basing the validity of this order upon a higher, meta-legal norm, that is, upon a norm enacted by an authority superior to the legal authority (…). The theory of the basic norm is merely the result of an analysis of the procedure which a positivistic science of law has always applied24.

The Basic Norm is, at the same time, a iction: it is not a maxim of the practical reason and as such has no determinate grounds. it has also no determinate positive content – it only prescribes to act in accordance with the constitution and the acts issued on the basis of the constitution.

against the backdrop of the aforesaid, robert alexy does not hesitate to call Kelsen’s Basic Norm an analytical norm. alexy claims, moreover25, that the Basic Norm serves three different functions: it enables the categorical transformation, establishes criteria and uniies the legal system. The categori-cal transformation boils down to ‘generating’ normativity. The Basic Norm is the ultimate answer to the question as to how legal rules have any norma-tive force. Kelsen does not explain how such a transformation is possible, he merely claims that the thesis that legal norms are ideal obligations (hence: objective reasons for action) presupposes the Basic Norm. The Basic Norm also serves as the ultimate grounds for identifying those facts which are legally relevant. Put otherwise, the Basic Norm establishes the criteria for determin-ing which facts are important from the legal point of view. finally, the Basic Norm becomes a principle which uniies the legal system: without it, the legal system would remain an unordered set of disconnected norms26.

a similar characterization of the Basic Norm is offered by Bindreiter, who stresses that the Groundnorm: (1) is not posited but only thought of; (2) is hypothetical rather than categorical; (3) is devoid of any positive content; (4) closes up the hierarchy of legal norms; and (5) generates and transmits normativity27.

24 h. Kelsen, Pure Theory of Law, University of California Press, Berkeley 1967, pp. 204, 205.25 Cf. r. alexy, The Argument from Injustice – A Reply to Legal Positivism, Clarendon Press, oxford 2002. 26 Cf. ibidem.27 Cf. U. Bindreiter, op.cit.



from our point of view, it is the last of the features of the Basic Norm enumerated which is by far the most interesting, as it constitutes Kelsen’s answer to the normativity puzzle:

The basic norm of a positive legal order – a ‘dynamic’, authorizing basic norm – is seen to achieve the initiation as well as the transmis-sion, via the legal organs, of the ‘bindingness’ – the normativity – of law. Thanks to the competence of the legal organs (competence stemming from the basic norm) binding force is inherited by the ‘lower’ norms of the [legal system]28.

This reply is surprisingly weak. if the source of normativity lies in a merely thought-of hypothetical Basic Norm, Kelsen’s theory pays a high price for its ‘purity’. while formulating the Basic Norm, Kelsen only puts a label on what he does not know and cannot explain. Thus understood, the Basic Norm is a de facto abdication of legal theory in the face of the normativity puzzle.

however, in addition to the conception of the Basic Norm, Kelsen formulates the thesis that legal norms are ‘citizens’ of the sphere of pure ought (Sollen), which should be clearly distinguished from the sphere of facts (Sein). Stanley Paulson observes that this conception can be inter-preted in two ways. Kelsen’s ought can be considered a de dicto or a de re modality. in the former, our utterances about legal obligations are just ‘a way of speaking’. in a sense, they are iction (they do not refer to any real-ity). on the latter reading (de re), Kelsen’s thesis is a strong metaphysical claim: he posits the existence of two, mutually independent ontological spheres, that of is and that of ought. on this account, Kelsen’s pure theory of law is parasitic on an ontology, which is ‘queerer’ (in the sense of mackie’s argument from queerness) than other ontologies, including the Kantian. Kelsen’s Sollen is limited to legal norms, leaving unexplained other kinds of normative phenomena, such as morality, rationality, etc.29.

The above analysis shows that Kelsen’s pure theory of law is a misit – it begins with a suspicious, if not plainly false assumption that the science of law should stick to a mysterious, autonomous legal method. This thesis

28 Ibidem, p. 23.29 S. Paulson, Four Phases in Hans Kelsen’s Legal Theory? Relections on a Periodization, “oxford Journal of Legal Studies” 1998, 18, p. 157.



might have been reasonable at the beginning of the 20th century, when the spectacular success of physics led the representatives of other disciplines either to defend their autonomy, or to search for methods as eficient as the methods of the empirical sciences, but so shaped as to answer the needs of the respective disciplines. Today, however, the methodological autonomy thesis is an anachronism. it is clear as soon as one considers the development of the philosophy of science in the 20th century.

false assumptions led Kelsen astray. The view of law he developed – that of a dynamic system of norms, ‘culminating’ in the merely thought-of, hypothetical Basic Norm – may be interpreted in one of two ways. if Kel-sen’s Sollen is treated as a de dicto modality, one gets a theory of law which is descriptively inadequate and which folds when faced with the normativity puzzle. on the other hand, when one reads Kelsen as saying that there are two ontologically different spheres, of is and of ought, the resulting dualis-tic solution to the problem of normativity is ‘queerer’ than the paradigmatic ‘queer’ ethical and legal theories. The queerness in question stems from the fact that Kelsen shapes his sphere of ought to include only ideal legal ob-ligations. in other words, Kelsen seems to narrow his ontological horizon (he conines the discussion to legal norms). Thus, he leaves out other kinds of rules: moral, linguistic, prudential, etc. where do they belong? an an-swer pointing to the sphere of is only re-generates the normativity puzzle, and urges us to sharpen ockham’s razor in anticipation. if the normativity of other-than-legal kinds of rules can be explained within the kingdom of facts, the postulate of the existence of the sphere of Sollen is a clear exam-ple of the forbidden multiplication of entities; if not, it is not only Kelsen’s ontological horizon, but also his normative horizon which is too narrow.

2. Ontology of Rules

The problems connected with the normative and ontological horizons are troublesome, but they are also highly characteristic of monism and dualism. The monistic account – one that attempts to show that law’s nor-mativity is actually a iction – inds itself quickly embracing some other kind of normativity (of the rules of rationality, morality etc.). This is the working of the ‘logic’ of monism: it tends to push us beyond the monistic



framework and accept something (e.g., the normative force of prudential or moral rules) that lies outside the sphere of fact. Put otherwise, monism is unable to deal with the properly determined normative horizon. Dualism, on the other hand, is incapable of adopting a suficiently broad ontologi-cal horizon. if it postulates that legal norms belong to the sphere of ought, there is no place left for moral, prudential or linguistic rules. if the sphere of ought is broadened accordingly, it becomes heterogeneous, and opens up the way for asking, what is the ‘nature’ of values, theories, and other abstract objects. Do they belong to the sphere of ought or to that of is?

i believe that in order to deal with these problems one need to adopt – from the outset – a more comprehensive approach, one that aims at ex-plaining all kinds of normativity and of types of rules, while relating them to other kinds of abstract entities. To this end, i suggest a careful analysis of wittgenstein’s remarks concerning rule-following and a thorough re-thinking of Popper’s theory of the three worlds.

2.1. Wittgenstein’s Insights

in Philosophical Investigations wittgenstein offers what is probably the most detailed analysis of the phenomenon of rule-following available30. Let us con-sider wittgenstein’s favourite example. imagine that you ask someone to add 2, starting with 0. in reply, you get the following sequence of numbers: 2, 4, 6, 8, 10, ... 1000. at this point, something surprising happens. after 1000 you hear 1004, then 1008, then 1012, etc. at your insistence that this sequence is incorrect – it should be 1002, 1004, 1006 – your interlocutor says that she is certain of her response. The question wittgenstein poses in this context is: how do we know that ‘1002’ is the correct answer? he notes (§ 186):

(…) how is it decided what is the right step to take at any particular stage? – ‘The right step is the one that accords with the order – as it was meant’ – So when you gave the order ‘+2’ you meant that he was to write 1002 after 1000 – and did you also mean that he should write 1868 after 1866, and 100036 after 100034, and so on – an ininite number of such propositions? – ‘No: what i meant was, that he should write the next but one number after every number

30 Cf. L. wittgenstein, Philosophical Investigations, Blackwell, oxford 2001. This is the edi-tion i quote below.



that he wrote; and from this all those propositions follow in turn’. – But that is just what is in question: what, at any stage, does follow from that sentence (...).

wittgenstein’s question may seem crazy. That – in adding 2 – 1002 fol-lows 1000 is obvious. however, it is the task of a philosopher to question the obvious. it is relatively easy to show the dificulty involved in capturing why a rule contains ‘all those propositions’. from the point of view of mathemat-ics, the rule ‘plus 2’ is a function, i.e. an ininite set of pairs of numbers, of which the antecedent is the one to which we add 2, and the consequent is the result of addition. To know such a rule means to be able to contemplate the actual ininity. This we can’t do, however. There must be a different way in which rules enable us to ‘capture’ the potentially ininite cases of its ap-plication. Therefore, we can note here an important intuition concerning the concept of a rule: rules are patterns of behaviour (or: contain patterns of behaviour). Let us call this requirement the pattern condition.

The second wittgensteinian insight concerning the concept of a rule reads: rules are objective reasons for action (the reason condition). wittgen-stein notes (§ 222):

‘The line intimates to me the way i am to go’. – But that is of course only a picture. and if i judged that it intimated this or that as it were irresponsibly, i should not say that i was obeying it like a rule.

Put differently: even if we understood, how a rule contains ‘all those propositions’, it would not be suficient to explain rule-following. rules (at least some rules) must be objective reasons for action. even if there are rules, how is it possible, that we should follow them? a complete theory of rules must reply to this question.

against this background, wittgenstein rejects some traditional con-ceptions of rules. The typical interpretation of Philosophical Investigations posits that wittgenstein undermines three theories of rules: mechanicism, Platonism and mentalism. firstly, rules are not dispositions to act in the given way (e.g., to answer ‘1002’). we do not follow rules ‘automatically’ and such an account is at odds with the reason condition. Secondly, rules are not mental states, rather wittgenstein observes that one can imagine rules as some kind of picture. however, it is dificult to comprehend how such a picture can ‘contain’ all the cases of a rule’s application (e.g., for



‘plus 2’ this is an ininite number of cases). Thus, rules-as-pictures cannot account for the pattern condition. Thirdly, the same holds true for Platon-ism. were rules platonic objects, we would be able to imagine them only as some kind of pictures.

i believe that the catalogue of the ‘erroneous conceptions of rules’ sketched above is too generous. observe that it is not clear where wittgen-stein criticizes mechanicism (theory of dispositions). Saul Kripke, who also claims that wittgenstein attacks mechanicism, cites §§ 193-195 as the basis for his reconstruction31. Let us recall some passages from these paragraphs:

(§ 193) The machine as symbolizing its action: the action of a ma-chine – i might say at irst – seems to be there in it from the start. what does that mean? – if we know the machine, everything else, that is its movement, seems to be already completely determined. we talk as if these parts could only move in this way, as if they could not do anything else. how is this – do we forget the possibility of their bending, breaking off, melting, and so on? yes; in many cases we don’t think of that at all. we use a machine, or the drawing of a machine, to symbolize a particular action of the machine. for instance, we give someone such a drawing and assume that he will derive the movement of the parts from it.(§ 194) when does one have the thought: the possible movements of a machine are already there in it in some mysterious way? – well, when one is doing philosophy (...).(§ 195) ‘But i don’t mean that what i do now (in grasping a sense) determines the future use causally and as a matter of experience, but that in a queer way, the use itself is in some sense present’. – But of course it is, ‘in some sense’! really the only thing wrong with what you say is the expression ‘in a queer way’ (...).

one may ask what is the goal of the analysis of the concept of a machine. it seems that is not to seriously consider the possibility that rule-following is similar to the operations of a machine. The remarks follow directly §§ 186-192, which aim at dismantling mentalism. This is a hint that for wittgenstein it is some aspect of the metaphor of rules-as-machines that matters. The aspect is that ‘the action of a machine seems to be there in it from the start’. This remark is vital when one considers the pattern

31 Cf. S. Kripke, Wittgenstein on Rules and Private Language, harvard University Press, Cam-bridge 2007, p. 35 and n.



condition. it is hard to comprehend how rules contain all the cases of their application (cf. § 186); similarly, although i cannot think of all the future operations of a machine, knowing its structure i – in a way – know what operations it can perform.

an additional argument in favour of the interpretation that the analy-sis of machines is but another thread in the discussion concerning mental-ism can be found in the structure of § 195: ‘But i don’t mean that what i do now (in grasping a sense) determines the future use causally and as a matter of experience, but that in a queer way, the use itself is in some sense present’. This sentence is not uttered by wittgenstein, but by his ‘interlocutor’. it follows that the ‘dialogue’ concerning machines – from its very beginning – concerned a version of mentalism. it aimed at providing a picture of how a rule determines all the cases of its application, despite the fact that grasping a rule does not consist in contemplating all of its possible applications at once. Thus, it seems unlikely that ‘mechanicism’ is an object of attack in §§ 193-195.

The above discussion strongly suggests that wittgenstein’s main object of attack is mentalism and Platonism. however, it is not so certain in the latter case. i would say that if wittgenstein launches an assault on Platon-ism it is surprisingly weak. Let us observe that he does not formulate any of the traditional arguments against Platonism – he deploys neither ock-ham’s razor, nor the argument from queerness. moreover, the alleged at-tack on Platonism is encapsulated in a few paragraphs of the Investigations. in this context, the least controversial seems the role of §§ 218 and 222:

(§ 218) whence comes the idea that the beginning of a series is a visible section of rails invisibly laid to ininity? well, we might imagine rails instead of a rule. and ininitely long rails correspond to the unlimited application of a rule.(§ 222) ‘The line intimates to me the way i am to go’. – But that is of course only a picture. and if i judged that it intimated this or that as it were irresponsibly, i should not say that i was obeying it like a rule.

in the quoted passages the metaphor of rules-as-rails is used: rules – like rails – may lead us to ininity – to ininitely many applications. wittgenstein points out, however, that this is only a picture. we are trying to imagine rules as ininite rails, for we have no better metaphor. moreover, let us observe that there is nothing in the picture of rails that would suggest that it depicts



an ‘abstract object’ which is beyond time and space as any Platonic object would be. rather, it seems that wittgenstein is dealing here with two dif-ferent problems. first, he stressed that rails ‘stretch to ininity’; it is only a metaphor, an attempt to express the fact that a rule determines all the cas-es of its application, although – while grasping a rule – we cannot picture all these applications. Secondly, wittgenstein utilizes the reason condition, claiming that the metaphor of rules-as-rails is incapable of accounting for it. he says: ‘if i judged that [the line] intimated this or that as it were irre-sponsibly, i should not say that i was obeying it like a rule’. The problems connected to pattern and reason conditions occur again and again. Let us have a look at the following paragraphs:

(§ 187) ‘But i already knew, at the time when i gave the order, that he ought to write 1002 after 1000’. – Certainly; and you can also say you meant it then; only you should not let yourself be misled by the gram-mar of the words ‘know’ and ‘mean’. for you don’t want to say that you thought of the step from 1000 to 1002 at that time – and even if you did think of this step, still you did not think of other ones. (...)(§ 188) here i should irst of all like to say: your idea was that that act of meaning the order had in its own way already traversed all those steps: that when you meant it your mind as it were lew ahead and took all the steps before you physically arrived at this or that one. Thus you were inclined to use such expressions as: ‘The steps are re-ally already taken (...)’.

it is clear that wittgenstein attacks here the idea that one can think of a rule in such a way that it contains ‘all the steps’. it is impossible. yet what if grasping a rule does not boil down to ‘seeing all the steps’? ‘«it is as if we could grasp the whole use of the word in a lash». Like what e.g.? (…) But have you a model for this? No. it is just that this expression suggests itself to us. as the result of the crossing of different pictures (§ 191). you have no model of this superlative fact, but you are seduced into using a super-expression (§ 192)’.

i believe that the correct way of interpreting these remarks is to ob-serve that they are not uttered within an academic discussion, which clear-ly distinguishes between mentalism and Platonism. The questions witt-genstein asks are more concrete: what is a rule if it were to ‘contain all the steps’? how can it be grasped? it seems that wittgenstein’s attack goes deeper than the rejection of mentalism or Platonism. his target seems to be the model of thinking-as-seeing. This is one of the most deeply rooted



metaphors of western culture. Thinking is usually referred to as seeing through the mind’s eye. This idea had many progenitors but Descartes played a leading role since it was he who urged us to look for ideas that we see in a ‘clear and distinct’ way. it was Descartes and his contemporaries who insisted that what matters is the mental discourse in our minds, the chain of ideas we see with our inner eyes, and not the ‘public discourse’, which is of no real philosophical signiicance32.

Doubtless, the model of thinking-as-seeing is only a model, a handy metaphor that helps us to describe the process of thinking. moreover, it seems useful in many contexts. when i try to solve a geometrical problem, recall someone’s face, or imagine my lecture tomorrow, my thinking may resemble seeing. it is less useful, however, when i feel pain (Descartes claims that this also is an instance of seeing an idea) or follow a rule: here, the metaphor of thinking-as-seeing fails. from this perspective, wittgenstein’s remarks on rule-following undermine a key model of thinking and of the architecture of the mind, a model so dear to the western philosophy. it is also at the same time an attack on mentalism and Platonism, to the extent that they are connected to the model of thinking-as-seeing (which they are, at least in their most typical incarnations).

it is much more dificult to present wittgenstein’s solution to the prob-lem of rule following in a coherent way. however, a number of aspects of the solution may be identiied. firstly, wittgenstein claims that one cannot speak of rule-following outside of a community. as Saul Kripke observes, ‘if one person is considered in isolation, the notion of a rule as guiding the person who adopts it can have no substantive content’. The situation changes when we ‘widen our gaze from consideration of the rule follower alone and allow ourselves to consider him as interacting with a wider com-munity. others will then have justiication conditions for attributing cor-rect or incorrect rule following to the subject’33.

This observation is based on a number of wittgenstein’s remarks in which he stresses the communal character of rule-following. for example, he says:

32 Cf. i. hacking, Why Does Language Matter to Philosophy?, Cambridge University Press, Cambridge 1975.33 Cf. S. Kripke, op.cit., p. 89.



The phenomenon of language rests on regularity, on agreement in acting. here it is of the greatest importance that all of us, or the overwhelming number, agree on certain things. for example, i can be sure that the colour of this object will be called ‘green’ by most people who see it34.

Thus, rules are neither mental states, nor platonic objects. one can speak of rule-following for we participate in a certain social practice; a practice based on common agreement.

Secondly – and contra Kripke – the sole regularities of social behaviour are insuficient to justify speaking of rule following. as Susan hurley observes:

[i]t is not an adequate answer to say that the solution [to the witt-genstein’s paradox] practices provide is a sceptical one, that nothing underwrites content and we just, contingently, happen to agree in doing this rather than that. (…) [T]he full force of the sceptical view dissolves our capacities for intentional action, for trying and choice, however ar-bitrary, as much as for perception and thought. it takes the ground out from under the feet of pragmatism and conventionalism, as much as Platonism and psychologism. it rules out appeals by the sceptic to our intentional responses, our attributions, our constructions, our investiga-tions, our procedures of veriication or ratiication, etc.35.

in short: hurley tries to say that in order to speak of rule-following one needs not only agreement in social reactions but also certain mental attitudes: that i believe that the given behaviour is obligatory (complies with a rule).

Thirdly, wittgenstein claims that rule-following has a systematic charac-ter. Put differently, speaking of rule-following is possible only against a back-ground of a complex system of behaviour and mental attitudes. one can say that one followed a rule only because there are a large number of cases in which one can speak of following different rules. wittgenstein notes:

we say that, in order to communicate, people must agree with one another about the meanings of words. But the criterion for this agree-ment is not just agreement with reference to deinitions, e.g., osten-sive deinitions – but also an agreement in judgements. it is essential for communication that we agree in a large number of judgements36.

34 L. wittgensein, Remarks on the Foundations of Mathematics, miT Press, Cambridge ma 1983, § 342.35 S. hurley, Natural Reasons, oxfrod University Press, oxford 1992. 36 L. wittgenstein, Remarks on the Foundations..., op.cit., § 283.



fourthly, in light of the above, an important if not decisive role is played by very simple, basic rules. in § 219 wittgenstein observes:

‘all the steps are really already taken’ means: i no longer have any choice. The rule, once stamped with a particular meaning, traces the lines along which it is to be followed through the whole of space. – But if something of this sort really were the case, how would it help? No; my description only made sense if it was to be under-stood symbolically. – i should have said: This is how it strikes me. when i obey a rule, i do not choose. i obey the rule blindly.

Crispin wright claims that most such basic cases of rule-following, in which one tends to speak of following a rule ‘blindly’, are the key to understanding the phenomenon of rule-following. These ‘reactions’ – although they are full-blooded rule-following, as ‘they are rational in the sense that they involve intentionality and a willingness to accept correc-tion in the light of inadvertent breaches of the rule’37 – are to a great extent derived from our biological underpinning. Thus, it is no surprise that we agree when we determine colours: ‘[T]hat is no miracle: it is just what is to be expected of biologically and neurophysiologically similar creatures, hardwired and trained in similar ways’38. on the other hand, the agreement in the most basic cases constitutes the foundation for the phenomenon of rule-following in more complicated situations, when it is more proper to say that following a rule is not ‘blind’, that it requires a ‘decision’ (cf. § 186 of Philosophical Investigations).

fifthly, at the basic level, the phenomenon of rule-following displays a feature that may be called ‘normative unity’. what i have in mind is that at the basic level one cannot distinguish between different kinds of rules. Some commentators claim that wittgenstein speaks only of lan-guage rules yet this is a mistake. Nowhere does wittgenstein narrow – at least explicitly – his remarks to language. moreover, his favourite example – of the rule ‘plus 2’ – is hardly an instance of a purely linguistic rule. if it were, the same would hold of any rule: ‘one should not kill other people’, ‘one should pay taxes’, or ‘one should maximize her utility function.’ of

37 C. wright, What is Wittgenstein’s Point in the Rule-following Considerations, http://www.nyu.edu/gsas/dept/philo/courses/rules/papers/wright.pdf, p. 26.38 Ibidem, p. 31.



course, Philosophical Investigations are centred around language but wittgen-stein offers a new conception of the relationship between language and reality. it is no longer understood in terms of the language of describing or depicting the world. for wittgenstein, language is a tool for acting in the world. in this way, the dichotomy of ‘language – reality’ loses its importance. one cannot clearly distinguish between linguistic and other kinds of rules: each rule, be it mathematical, moral or legal, has its linguistic dimension, is an element of a language-game, i.e. determines the uses of certain expres-sions. This is especially visible at the level of the most basic rules. only through an ex post relection, through the application of abstract categories of mathematical or linguistic rules, can we judge that the utterance of ‘1002’ after ‘1000’ was an instance of the application of a mathematical rule, while the utterance of ‘green’ was a result of applying a linguistic one.

one can justiiably ask how this wittgensteinian conception fares vis a vis the pattern and reason conditions. The answer is straightforward, but subtle. The pattern condition – taken literally – is not fulilled. however, in contrast to other theories of rules, there exists a rudimentary form of the fulilment of the pattern condition in the wittgensteinian account. on the one hand, it is provided by the regularities in social behaviour and re-lated reactions to others’ actions. on the other hand, people are equipped with what biologists and psychologists call a ‘pattern recognition mecha-nism’, i.e. a biologically conditioned capacity to grasp structural similari-ties between events, individuals or properties. The role of these abilities is clearly visible in the cases of the most basic rules. The reason condition in the developed conception is also present in a rudimentary form. rule-following is a communal enterprise. in this way, it is not dependent only on what goes in our heads: we have (publicly shared) reasons to act in the given way, not merely psychological motives.

my inal observation concerning wittgenstein’s insights is this: witt-genstein would never say that the existence of rules is conditioned by both the regularities of social reactions and mental attitudes. he would be pre-vented from doing so by his metaphilosophy, which forbids constructing philosophical theories, including ontologies. Thus, to be faithful to the witt-gensteinian directives, one would need to say that the regularities of social reactions and mental attitudes condition the possibility of speaking of rule-



following. however, as i have argued elsewhere39, wittgenstein’s metaph-ilosophy is objectionable. in particular, it is based on some assumptions (e.g., regarding the possibility of distinguishing scientiic or logical problems from the philosophical ones) that can – and should – be rejected. Therefore i am inclined to say that wittgenstein’s remarks can be interpreted as pro-viding two conditions for the existence of rules. from this perspective, it is reasonable to claim that rules are emergent entities which supervene on the regularities of social behaviour and are a kind of mental attitude.

2.2. Into the World 3

it is my claim that a good point of departure for someone who sets out to construct the ontology of rules which stays clear of the Scylla of monism, and the Charybdis of dualism, is the so-called conception of three worlds due to K.r. Popper. ‘in this pluralistic philosophy the world consists of at least three ontologically distinct sub-worlds; or, as i shall say, there are three worlds: the irst is the physical world or the world of physi-cal states; the second is the mental world or the world of mental states; and the third is the world of intelligibles, or ideas in the objective sense; it is the world of possible objects of thought: the world of theories in themselves, and their logical relations; of arguments in themselves; and of problem situations in themselves’40. one can add: of rules of behaviour, values, etc. i will leave aside numerous objections raised against Popperian theory but instead i would like to concentrate on a number of its features which i be-lieve to be essential to the discussion pertaining to the ontology of rules.

firstly, world 3 really exists. one should note, however, that Popper de-ines existence in a special, albeit not unprecedented way: existing objects have the capacity to inluence one another41. Popper says: ‘The theory itself, the abstract thing itself, i regard as real because we can interact with it – we can produce a theory – and because the theory can interact with us. This

39 Cf. B. Brożek, r. Zyzik, Wittgenstein o regułach (Wittgenstein on rules), “Logos i ethos” 2008, 1(24), pp. 27-58.40 K. Popper, Objective Knowledge, oxford University Press, oxford 1972, p. 154.41 Ibidem, p. 200.



is really suficient for regarding it as real’42. he develops this thought as follows: ‘[one need] only think of the impact of electrical power transmis-sion or atomic theory on our inorganic and organic environment, or of the impact of economic theories on the decision whether to build a boat or an aeroplane’43, in order to reject the ictitious character of the world 3 objects.

Second, the world 3 is autonomous. ‘By this – explains Popper – i mean the fact that once we have started to produce something – a house, say – we are not free to continue as we like if we do not wish to be killed by the roof falling in’44. The autonomy of the world 3 is connected to its objectivity. Both the autonomy and the objectivity are indicated by the fact that ‘certain problems and relations are unintended consequences of our inventions, and that these problems and relations may therefore be said to be discov-ered by us, rather than invented: we do not invent prime numbers’45. in other words, Popper indicates that any ‘discovery’ within the world 3 may lead to some objective consequences which are independent of our will. for example, one of the consequences of the development of frege’s log-ical calculus in Begriffschrift was the possibility of constructing the russell paradox. frege was unaware of this possibility; on the other hand, russell did not invent it, he only ‘discovered’ it. Besides, Popper claims that the distinction between ‘invention’ and ‘discovery’ is – in most contexts – un-important, ‘for every discovery is like an invention in that it contains an element of creative imagination’46. Be that as it may, the objectivity of the world 3 is, in Popper’s view, indisputable.

Thirdly, Popper provides us with an evolutionary explanation of the emergence of the world 3. he believes – contra Plato – that the entities of the world 3 are not ‘superhuman, divine and eternal’; they are products of the long process of human evolution. The world 3 is a human product, in the same way as nests and dams are animal products. it is the expression of our adaptation, whose roots lie in our biology. The essential element of the evolutionary theory of the world 3 is its emergent character. Popper utilizes

42 K. Popper, Knowledge and the Body-Mind Problem, routledge, London 1996, p. 47.43 Idem, Objective..., op.cit., p. 159.44 Idem, Knowledge..., op.cit., pp. 47, 48.45 Ibidem, p. 48.46 Ibidem.



the classical understanding of emergence: ‘in the course of evolution new things and events occur, with unexpected and indeed unpredictable prop-erties; things and events that are new, more or less in the sense in which a great work of art may be described as new’47. emergence leads then to new properties, which are irreducible to the properties of the underlying system.

one would be mistaken, however, to claim that the Popperian thesis that the emergent properties are irreducible is indefeasible. although Pop-per stresses the implausibility of a future reductionist explanation of the emergence of life, language or mind, he confesses:

i want to make clear that as a rationalist i wish and hope to under-stand the world and that i wish and hope for a reduction. at the same time, i think it quite likely that there may be no reduction possible; it is conceivable that life is an emergent property of physical bodies48.

This declaration is highly characteristic of Popper’s ontological the-ory. Nowhere does he claim that the three-worlds ontology should be taken literally. he suggests only that – compared to other ontological conceptions – it is a better, more useful tool of philosophical argumen-tation. The world 3 is a ‘useful convention’. ‘i would say – says Popper in Knowledge and the Body-Mind Problem – that really the name ‘world 3’ is just a way of putting things, and the thing is not to be taken too seriously. we can speak about it as a world, we can speak about it as just a certain region’49. in another essay he adds:

whatever one may think about the status of these three worlds – i have in mind such questions as whether they ‘really exist’ or not, and whether world 3 may be in some sense ‘reduced’ to world 2, and perhaps world 2 to world 1 – it seems of the utmost importance irst of all to distin-guish them as sharply and clearly as possible. (if our distinctions are too sharp, this may be brought out by subsequent criticism.)50.

The world 3 ‘is a metaphor: we could, if we wish to, distinguish more than three worlds’51. or: ‘whether or not you distinguish further regions or

47 K. Popper, J.C. eccles, The Self and Its Brain, routlege, London 1984, p. 22.48 K. Popper, Objective..., op.cit., p. 292. 49 Idem, Knowledge..., op.cit., p. 17.50 Idem, Unended Quest, routlege, London 2002, p. 211.51 Idem, Knowledge..., op.cit., p. 25.



worlds, is really only a matter of convenience’52. in this way, Popper tries to say that the conception of the world 3 is a step in the right direction. Ulti-mately, it may transpire that it is better to speak of one, two, or forty-seven worlds. it is crucial, however, to realize that vis a vis the existing ontological theories the idea of the world 3 constitutes progress. Put otherwise: the ‘division’ of the reality into three worlds is a heuristic device. it helps us to identify real problems and to appreciate the role of our theories.

The above presentation of Popper’s theory of three worlds indicates that his ontological stance falls neither under the category of monism, nor dualism. it is not dualistic, as there is no unbridgeable ontological gap between the world 3 and the remaining spheres of reality. in a way, Pop-per’s world 3 is a ‘function’ of the world 2. Thus, the world 3 is not queer or trivial; the rules of conduct that belong to the world 3 are not sui generis entities. Popper’s ontology is not monistic, either. Popper stresses that the objects of the world 3, including rules, actually exist. as emergent entities, they cannot be reduced to the sphere of the mental.

moreover, i believe that Popper’s conception should be modiied in an important way. The required modiications are along the lines of wittgen-stein’s remarks on rule-following. Let us observe that for Popper the emer-gence of the world 3 is genetically connected to the emergence of language. without language, there exists no world 3. Thus, i claim that wittgenstei-nian remarks constitute the key to determining what is the foundation of the world 3 – or, in other words, what is it that the world 3 supervenes on.

as indicated above, wittgenstein rejects the traditional ways of under-standing rules and suggests that one can speak of rule-following only if there are certain regularities of social behaviour. as Saul Kripke puts it, ‘if one person is considered in isolation, the notion of a rule as guiding the person who adopts it can have no substantive content’. however, when we ‘widen our gaze from consideration of the rule follower alone and allow ourselves to consider him as interacting with a wider community’ everything changes. ‘others will then have justiication conditions for at-tributing correct or incorrect rule following to the subject’53. in my view, Kripke’s interpretation goes too far. he claims that mere social reactions

52 Ibidem, p. 18.53 Ibidem, p. 66.



entitle us to speak of rule-following. wittgenstein says something differ-ent: in order to understand rule-following one needs to take into account both the regularities of social behaviour and mental attitudes.

The main modiication of Popper’s theory i propose is that i reject the view that the world 3 emerges from the world 2 alone. i believe that a better hypothesis reads that the world 3 supervenes both on mental at-titudes (belonging to the world 2) and social interactions (which belong to the world 1). This modiication – which essentially boils down to marry-ing Popper with wittgenstein – is less absurd than it may seem in the irst place. it is my claim that – pace wittgensteinian metaphilosophy, which rejects any attempts at constructing ontologies – the similarities between the two stances are surprising. Put otherwise: i believe that if wittgenstein allowed the construction of ontology he would have to propose a concep-tion very similar to the Popperian one.

The irst striking similarity between wittgenstein and Popper is that both launch a heroic assault on Cartesianism, and especially on the Car-tesian idea of thinking-as-seeing. in Self And Its Brain Popper says explicite that one can indeed speak of rational intuition, but it is far from infallible – moreover, it usually leads us astray. in order to explain what thinking is – and, in particular, how do we grasp the objects of the world 3 – Pop-per points out that it is easier to understand how we produce them, rather than how we perceive them. he believes we have no ‘intellectual faculty’ capable of grasping the world 3 objects. however:

we may understand the grasping of a world 3 object as an active process. we have to explain it as the making, the re-creation, of that object. in order to understand a dificult Latin sentence, we have to construe it: to see how it is made, and to re-construct it, to re-make it. in order to understand a problem, we have to try at least some of the more obvious solutions, and to discover that they fail; thus we rediscover that there is a dificulty – a problem. in order to understand a theory, we have irst to understand the problem which the theory was designed to solve, and to see whether the theory does better than do any of the more obvious solutions. in order to understand a somewhat dificult argument like euclid’s proof of the theorem of Pythagoras, (…) we have to do the work ourselves, tak-ing full note of what is assumed without proof. in all these cases the understanding becomes ‘intuitive’ when we have acquired the feel-ing that we can do the work of reconstruction at will, at any time.



This view of grasping assumes no ‘eye of the mind’, no mental organ of perception. it assumes only our ability to produce certain world 3 objects, especially linguistic ones. This ability in its turn is no doubt the result of practice. a baby starts by making very simple noises. he is born with the desire to copy, to re-make, dificult lin-guistic utterances. The decisive thing is that we learn to do things by doing things, in appropriate situation, including cultural situations: we learn how to read, and how to argue54.

The passage quoted above – in addition to the rejection of the thinking-as-seeing model – hints at one more important issue: Popper claims that the development of the objects of the world 3 requires certain practice. Popper’s use of the word ‘practice’ is, naturally, not identical to that of wittgenstein. he thinks of the ways in which a child learns how to grasp (construct) the world 3 objects through training. The point is, however, that wittgenstein’s view is very similar. The difference between the two outlooks boils down to the fact that Popper – in contrast to wittgenstein – claims that we should not be content with the description of practice and training. we shall explain more, we shall resolve more problems, if we assume that the practice led to the evolutionary emergence of an autonomous world 3. wittgenstein is safeguarded from such a conclusion by his therapeutic philosophy.

one can point out one more similarity between the two philosophers. Both – although in different ways – underline the social character of lan-guage and other cultural artefacts. Popper notes:

reason, like language, can be said to be a product of social life. a robinson Crusoe (marooned in early childhood) might be clever enough to master many dificult situations; but he would invent nei-ther language nor the art of argumentation55.

i do not claim that Popper offers here a summary of the private lan-guage argument. however, the similarity is striking.

The above discussion offers two different accounts of rules, which are safeguarded against the objections of the normative and ontological horizons. first, there is the view reconstructed on the basis of wittgenstein’s remarks. one can speak in this context of rudimentary rules. The rudimentary rules

54 K. Popper, J.C. eccles, op.cit., pp. 44, 45.55 K. Popper, The Open Society and Its Enemies, vol. ii, routledge, London 2006, p. 250.



emerge from the regularities of social behaviour coupled with special mental attitudes (that there is an obligation to follow a certain pattern of behaviour). as i have tried to stress, rudimentary rules have certain speciic characteristics. at this level, there are no individual, stand-alone rules. we must rather speak of a system of rules. moreover, i also posit that rudimentary rules cannot be unequivocally individuated. in other words, one cannot provide a set of ab-solute criteria for rule-individuation. Speaking metaphorically, the same ‘amal-gam’ of rudimentary rules may be divided in various ways, giving different sets of fully individuated rules. what follows, at the rudimentary level there exists no absolute criterion for distinguishing kinds of rules. one is in no position to ascribe different rules to different categories (linguistic, legal, moral, math-ematical). rudimentary rules are normatively uniied.

The second view we investigated is that of Popper. although he says little of rules per se, i believe there is enough evidence to attribute a con-ception of abstract rules as the citizens of the world 3 to him. on this ac-count, rules are abstract entities, which can exists in isolation (i.e., apart from a system of rules). what follows, is that rules can be unequivocally individuated; one can also ascribe some rule-categories (legal, linguistic, etc.) to them. i also claim that the emergence of the abstract rules is the result of our relecting on our behaviour. it is only through relection that we can categorize different kinds of rules, ask what are the criteria for dis-tinguishing legal, moral, linguistic, mathematical and other types of rules.

Now, the crucial step is to recognize that both stances are accept-able. The ontology of rules proposed here is as follows. There exist three worlds or spheres. The world 1 is the physical reality; it is also the basis for the emergence of the world 2 (the world of mental states). The phe-nomena belonging to both of these worlds are subvenient entities on which rudimentary rules supervene. These, in turn, are the ‘scaffolding’ for the abstract rules and other entities of the world 356. The proposed ontology is

56 Possibly, one can also distinguish between so-called intermediary rules, i.e. rules that exhibit the characteristic features of both rudimentary and abstract rules. These would be the ‘rules we live by’. however, their introduction would result in much more com-plex conception – for the sake of readability i am not following this line of inquiry here. Cf. B. Brożek, Normatywność prawa. Szkic teorii (The Normativity of Law. A Sketch of a Theory), “Logos i ethos” 2010, 1(28), pp. 29-66.



neither monistic nor dualistic. it is not monism, as rules cannot be reduced to facts, neither mental, nor social, not a combination thereof. it is not dual-ism, as it is not assumed that there exists a separate and ontologically auton-omous sphere of rules of behaviour; the world 3 is autonomous, but it stays in a relation of supervenience to the worlds 1 and 2. moreover, the ontology of rules offered here fares well with the problems of the ontological and normative horizons. on the one hand, it is not conined to one particular kind of rules (moral, legal, mathematical, etc.). on the other, through the idea of rudimentary rules and their normative unity, it is safeguarded from the risk of leaving some kind of normativity unexplained. in order to rec-ognize this, we need to turn now to the conception of normativity resulting from the ontology of rules developed above.

3. Two Faces of Normativity

The question of normativity reads: how do rules become objective reasons for action? from a historical perspective, this question may be answered in two different ways. first, one may claim that rules are sui generis entities such that they possess ‘the normative force’; in other words, rules – of their own nature – are objective reasons for action. a variation of this solution is the conception of reasons as sui generis entities defended by Joseph raz. Still another version of the realistic reply is Kantianism, which posits that the rules of behaviour are normative (i.e., they con-stitute objective reasons for action) if they comply with the Categorical imperative. The problem is, however, that the objective validity of the Categorical imperative comes from its status as a law of practical reason, which ultimately places the source of normativity beyond the phenomenal world (in the sphere of noumena). Thus, the irst solution to the puzzle of normativity is foundational (there exists an ultimate source of normativity), absolute (there is only one such a source) and anti-naturalistic (the sources of normativity lie outside of the physical world, i.e. the world that can be investigated with the empirical methods of science).

The second reply to the normativity question is reductionist. in its sim-plest form it identiies the notion of reason for action with that of a (psy-chological) motive. This answer is lacking as it leads to the dismissal of



reasons and to the conclusion that the normativity question is ill-stated for it presupposes that objective reasons for action do exist. The basic arguments for justifying the rejection of reductionism are the following. firstly, it is a conception that seems to contradict some clear and fundamental intuitions; this argument is as persuasive, of course, as the value we ascribe to our intui-tions. a more compelling argument reads that the rejection of the notion of reason makes it dificult to explain some spheres of our experience – e.g., in logic and mathematics (let us think of the rejection of psychologism in the 19th century). finally, the ‘logic of reductionism’ is self-defeating. as illus-trated with the theory of Petrażycki (the same holds for the conception of o.w. holmes), any attempt to construct a coherent reductionist conception of law’s normativity leads us beyond the reductionist scheme and makes us accept at least one rule of behaviour (e.g., one should act in instrumentally rational way) that is an objective reason for action.

The reductionist solution is naturalistic, but – in a manner similar to the realistic account – it is foundational and absolute. in my view, the com-bination of these two features makes it impossible to give a satisfactory answer to the normativity question. according to the theory developed here, either absolutism or foundationism should be rejected.

my answer to the normativity puzzle – coupled with the ontology of rules presented above – reads: there are two kinds of normativity, which are often mixed up in contemporary discussions concerning the subject57. firstly, there is rudimentary normativity. it is characteristic of the rudimen-tary rules and is absolute and non-foundational. There exists no clearly identiiable source of normativity. rudimentary normativity does not result from anyone’s decision (of the sovereign, of the society, of the practical reason). it does not follow from the ‘structure of reality’ either; legal or moral rules are not sui generis entities. rudimentary normativity is generat-ed by some mental attitudes and regularities of social behaviour. however, the attitudes and the regularities depend – through feedback – on the ex-isting system of (rudimentary and abstract) rules, hence the rudimentary normativity is non-foundational.

57 The possible introduction of the concept of intermediary rules would result in identi-fying a third kind of normativity, i.e. intermediary normativity. See the previous footnote and cf. B. Brożek, Normatywność prawa..., op.cit.



Secondly, one can speak of abstract normativity: an abstract rule of be-haviour constitutes an objective reason for action if it is so dictated by some conception of rationality (or some other normative theory, which informs us, what should be done). in this way, abstract normativity – in contrast to the rudimentary form thereof – is relative. whether we deem a given abstract rule of behaviour normative or not, depends on the accepted theory of rationality (morality, etc.). at the same time, abstract normativ-ity is foundational: once a theory of rationality is chosen, it serves as a basis for deciding which rules are objective reasons for action. in a way, then, abstract normativity is ictitious: we only construct theories of rationality which instruct us that we ought to do this and that. Such utterances would be incomprehensible, however, if there existed no rudimentary normativity, which makes it possible to grasp the meaning of the ‘ought’ sentences.

The theory of normativity presented above may be justiied by a number of arguments. firstly, i believe that the theory is backed up by philosophical analysis of the concept of a rule. in short, a closer look at the history of philosophy reveals that in modern philosophy there have been two paradigmatic ways of accounting for rules. one of them – the monistic explanation – assumed that rules are reducible to mere regu-larities of social behaviour or to mental states. The other – the dualistic stance – treats rules as abstract entities, whose sources are deeply rooted in the ‘platonic world’ or in the special faculty of human reason, anchored in the sphere of the noumena. Both these views are connected to serious problems, as indicated by wittgenstein. however, it is dificult to believe that such persistent conceptions (monism and dualism), formulated on so many occasions, in so many incarnations and with the use of often incommensurable conceptual schemes, have all been completely wrong in ex-plaining what rules are. The conception developed here, although neither monisitc nor dualistic, provides an explanation of the theoretical advan-tages of both historical stances. monism refers to what i call the system of rudimentary rules, disregarding however that already at this level there emerges a primitive form of normativity. Dualism, on the other hand, be-gins with the abstract notion of rules, and failing to justify their existence by recourse to facts, is forced to postulate the existence of some absolute (God, practical reason, the noumenal sphere) capable of imposing norms and values onto the neutral nature.



The second argument i would like to adduce may be called the argument from theoretical consequences. it boils down to showing that the conception developed here may explain the persistence of some theories of law. one of the outcomes of the above presented considerations is the thesis that there ex-ists no absolute deinition of a legal rule and law’s normativity. The normativ-ity of legal rules may be conceived of in different ways, relative to the accepted theory of rationality. The same holds for the deinition of law.

Petrażycki claims that the deinition of law has a ‘prejudicial’ character for legal science58. only after such a deinition is provided, one can make legally relevant decisions, concerning validity, interpretation, and so on. The problem is, however, that if anything is certain in legal theory, it is the fact that no one has so far offered a commonly acceptable deinition of law. robert alexy claims that this is fully understandable once we realize the double character of the law: its factual-ideal nature59. on the one hand, the law is a collection of idealized postulates, or ideally valid norms. on the oth-er – the law which is actually not followed, the law, which is not considered binding, should not be deemed ‘law’. The attempts at resolving this dilemma may lead either through the reduction of the law to one of the aforemen-tioned dimensions, or end in a methodologically lacking, eclectic ontology, which mixes up the ideal and the factual. an example of the former strategy is Kelsen’s normativism or american legal realism. The most striking case of the application of the latter method is the thesis of the ontologically complex character of the law, defended in the 1970s in Polish legal theory.

i believe that the conception presented here sheds some light on these old controversies. Let us observe that when we place emphasis on what i call abstract rules, we shall end up with a theory of law which underlines its ‘ideal’ character. in turn, when we look at the law from the perspective of rudimentary rules, it is easy to understand the sources of the psychological and sociological conceptions of the law. moreover, when we consider the role of language in the emergence of the world 3 objects, it becomes clear why some scholars try to identify legal norms with a category of linguistic expressions also, the thesis pertaining to the complex ontological nature

58 Cf. L. Petrażycki, Wstęp..., op.cit.59 Cf. r. alexy, op.cit.



of the law may be reformulated in terms of my proposal, as the objects of the world 3 supervene on both mental attitudes and social practices.

i do not believe, however, that the theory i develop implies or gives pri-ority to one speciic deinition of law. on the contrary: i claim that law can be deined in many ways. The deinitions may be better or worse, relative to some accepted practical or theoretical goals. Nonetheless, they cannot be fully arbitrary e.g. it is dificult – against the background sketched above – to insist that the law is a category of mental phenomena or pure regularities of social behaviour. in both cases, we refer to necessary conditions of the existence of rules – but taken in isolation, the conditions are insuficient. at the same time, the positivist deinition of law as a set of rules to be re-constructed solely on the grounds of legal acts is fully acceptable: the law is identiied here with a subset of abstract rules. at the abstract level one can also formulate a deinition of law in the Kelsenian manner: the law is a set of ideal, pure obligations (it is impossible, however, to accept all of the ontological baggage of Reine Rechtslehre). it is equally possible, however, to consider the law as a set of rules applied by judges (but not: the regularities in judges’ behaviour), as a set of primary and secondary rules, etc.

as i pointed out, one may formulate different deinitions of law, which are better or worse relative to the assumed theoretical or practical goals. however, one may also formulate two methodological directives pertain-ing to the acceptability of the conceptions of law, quite irrelevant of the assumed goals, be they practical or theoretical. The irst postulate reads: one should ensure that the proposed deinition of the law be a part of a broader and more coherent theory. a sole deinition of law, deprived of a theoretical context, is useless. if one says that the law is a set of primary rules conferring rights and obligations, and secondary rules of recogni-tion, change and adjudication, it says quite little; but when we – following hart – provide a broader context, which places legal rules among other social rules, and distinguishes the law from morality or etiquette, and spells out our ontological, epistemological and axiological assumptions, we shall develop a conception which may be subject to rational critique. This is a crucial point, as the only way to select a useful concept of law is to compare various theories (ontologies). These theories must be discussable; and it is impossible to discuss a single sentence. The comparison of simple deini-tions, taken out of their contexts, is a futile enterprise.



another directive is strictly connected with this. a development of a legal ontology can never aim at capturing the essence or the nature of law, or at providing an absolute (or true) deinition of law. Such an aim presupposes something akin to the aristotelian ontological framework, which posits that there exist essences or forms of things. This way of thinking may rightly be described as the myth of the nature of law. The myth is quite dangerous: it requires that we search for a foundation for which there is no foundation; it leads our thinking into blind alleys and may give rise to never-ending and futile debates. it forces us to abandon the only reasonable criterion for comparing the deinitions of law – the criterion of the usefulness of different conceptions – in favour of the holy Grail of the essence of law. of course, one can always say that speaking of the nature or the essence of law is just a façon de parler; that it is not the aristotelian meaning that is at play here; that the only goal is to determine the necessary and suficient conditions of the application of the term ‘law’. even if it is sometimes true, i still believe that this mode of speaking is dangerous: it either leads to misunderstandings, or – at worse – is intentionally misleading.


B. Brożek - Outline of a Theory of Law's Normativity

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