Int J Semiot Law (2009) 22:387398

DOI 10.1007/s11196-009-9116-6

Does Legal Semiotics Cannibalize Jurisprudence?

Jose de Sousa e Brito

Published online: 14 August 2009

Springer Science+Business Media B.V. 2009

Abstract Does Duncan Kennedy successfully cannibalize jurisprudence? He

attempts to do it by demonstrating the inexistence of rightness in legal argumentation. If there is no right legal argument, then there is no right answer in adjudication, adjudication is not a rational enterprise and legal doctrine cannot be said to
be a science. It can be shown that skepticism is self-defeating. Duncan Kennedy can
avoid self defeat only because he actually believes in a lot of legal arguments. His
thesis that judges decide questions of policy without any methodology that distinguishes them from legislators does not hold. Judicial reasoning is subject to constraints that do not affect legislators. It must be based on the sources of law and is
limited by rules of procedure. Even when the judges have interstitial legislative
powers they are, unlike the legislator, bound to fit the system and their decisions are
considered in procedure from the perspective of the right answer doctrine. The only
work that can convincingly refute the skeptic argument against legal science is the
reconstruction of jurisprudence as a scientific enterprise. Such work is beyond the
scope of any single paper. The article aims to give some inspirations for such a task.
Keywords Jurisprudence
Semiotics of law
Philosophy of law

Duncan Kennedy
Some months ago, I was having a conversation with a student at the Universidade
Nova de Lisboa where I teach, and who is working on a doctoral thesis at Harvard
under Duncan Kennedy. He had written a draft essay on skepticism in law and
morals. I observed that he made no reference to the contemporary discussion in
analytical philosophy about skepticism in ethics as in the books of Gilbert Harman
and Judith Jarvis Thomson on Moral relativism and moral objectivity [9], or
J. de Sousa e Brito (&)
Faculdade de Direito, Universidade Nova de Lisboa, Campus de Campolide, 1099-032 Lisboa,
Portugal
e-mail: josesousabrito@yahoo.com

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Thomas Nagel on The last word [26] nor to the correspondent discussion in
analytical legal theory about Dworkins article Objectivity and truth: You youd
better believe it [5],1 or Nikos Stavropoulos, Objectivity in law [37]. His response
was that analytical philosophy is not cultivated in the circle of Duncan Kennedy.
His professor would say: we cannibalize them. After that I began fearing for my
life and reading Duncan Kennedy. I found that he expects legal semioticians to
cannibalize ideas and history all around. In his own words:
Anybody can use the theoretical literature [of legal semiotics and of general
semiotics, is to be understood from the context], and somewhat to the amazement
of the old timers [like himself], quite a few people seem to want to use it. They are
constantly reinterpreting the ideas and the history and cannibalizing them and
incorporating them into all kinds of left projects. [4, p. 58]
To my surprise, he does not try to cannibalize analytical philosophy, which he
largely ignores. But he reiterates attempts to cannibalize almost everything in
jurisprudence, including analytical jurisprudence. That is why I decided to take up
the challenge and choose the title of this article. Does he succeed?
What does Duncan Kennedy mean by to cannibalize? The term refers to an
essential move in the process of Kennedys critique. To understand its function in
the critique, it is useful to look at similar procedures such as Balkins
rhetorization and Derridas reconstruction.
Balkin says that the work of the legal semiotician is to rhetorize legal discourse:
The purpose of semiotic study is to understand the system of signs which
creates meaning within a culture. It is to understand the underlying structures
that make meaning possible. The legal semiotician seeks to identify what
might be called the grammar of legal discoursethe acceptable moves
available in the language game of legal discourse. These may occur at the
level of permissible argument forms, modes of factual characterization,
categories of social perception, or in many other ways. The semiotician traces
the way that the system produces meaning, and if she has fully assimilated the
post-structuralist critique, she tries to see the gaps or uncertainties within the
structure, the many different levels at which rhetorical tropes can occur, and
the many possible ways of redescribing them.
Yet the fact that legal discourse is rhetorizable says nothing about its lack of
authenticity. To the contrary, I would insist that the only type of discourse that
is truly authentic is that which is permissible within our existing language
games, and is thus always rhetorizable. [2, p. 1845]
As to Derridas deconstruction, Duncan Kennedy invokes him when he summarizes
the particular type of critical theory of law that he theorizes in his book, A critique
of adjudication [16], and whose semiotics he expounds in A semiotics of critique
[17]. I quote the whole text:
1

This article prompted a discussion with Simom Backburn and others: http://www.brown.edu/
Departments/Philosophy/bears/symp-dworkin.html. See also [6, Chap. I].

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There are four steps to follow as one gets ready to do some critical theory
within lawcritical theory, that is, of the particular type semioticized above.
First: Identify a distinction that drives you crazy when it is trotted out to
justify things you cant stand, and that you feel people do not really believe in
except when they need it to justify those things (to take an example at random,
the distinction between adjudication and legislation).
Second: Find in each half of the distinction the things, traits, aspects, qualities,
characteristics, or whatever that were supposed to be located in the other half,
and vice versa. This is the move classically called chiasmus, and practiced
most notably and repetitively by Marx and then by Derrida, theorized in an
irrationalist semiotic manner in Of Grammatology.
Third: Put the question of whether the distinction you have just destabilized
corresponds to a real division in reality on hold, suspend it, or put it in
parentheses or in brackets (Husserl calls this the epoche)turn your eyes
away from it, and instead try to figure out why the people who use the
distinction work so hard to maintain belief in it in the face of their own doubts,
which you can intuit by imagining that they are just as capable of destabilizing
it as you are.
Fourth: Trace the consequences of the distinction by hooking it up to one or
many of the organicist, antinomian, paranoid structuralist, and semiotic moves
discussed above. My own project, subject always to critical unraveling per
supra, has been to ask about the distributive consequences of liberal
distinctions, that is, to ask how belief in them contributes to inequality,
domination, alienation, and unhappiness, in different measures for different
people, for some much more than for others. [17, p. 1189]
My belief is that Duncan Kennedy incorporatesor cannibalizesthe rhetoric
and topic tradition of semiotics, as the use of the rhetoric scheme of chiasmus
shows, but the phrase to rhetorize would not cover the whole of semiotic schools
that he uses alternatively or conjunctively in its left-modernist/postmodernist
critical enterprise. In the article, he distinguishes organicism (Hegel, Ruskin,
Parsons), antinomianism (Kierkegaard, Nietzsche, Sartre), structuralism (Marx,
Freud, Foucault), and semiotics (Saussure, Levy-Strauss, Derrida), and within each
a rationalist and an irrationalist variant. He considers all these variants subject
always to critical unraveling (ibid.), so that there is no point in choosing one of
those or in reconstructing a better one. For him
[t]he project of reconstruction (as opposed to any particular proposal) looks,
from a left/mpm point of view, like the reification or fetishism of theory, in a
mode parallel to the fetishism of God, the market class, law, and rights. Left/
mpm, by contrast, is caught up for better or worse in the viral progress of
critique, and in so much as there is a lesson from the progress of the virus it
would seem to be to anticipate loss of faith in theory in general and general
theory in particular. [18, p. 221]

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It seems clear that cannibalization goes hand in hand with deconstruction. Duncan
Kennedy deconstructs by means of cannibalizing. It is however difficult to separate
the critical theories that he cannibalizes from the ensuing critique as resulting
deconstruction, since both are subject to the viral progress of critical unraveling.
The distinction appears almost impossible in jurisprudence, where Kennedy
cannibalizes jurisprudence in order to deconstruct or unravel it.
I also suspect that Duncan Kennedy speaks of cannibalizing to suggest that he
is within critical theory self-taught [17, p. 1148]. This allows him to engage in
philosophical critique in a non-civilized manner, not having to respect the
constraints of the cannibalized theories, not as someone with a formal academic
training in the field might be expected to.
Does Duncan Kennedy successfully cannibalize jurisprudence? By jurisprudence,
I mean here two different things: adjudication and legal doctrine. Adjudication
determines the rule of the case and applies it to the case. Legal doctrine determines
what the rule of the case is according to the best legal opinion and determines the
rules and principles that it finds in the sources or constructs from them and on which
base the rule of any case should be determined. While very different, they have in
common that they are both normative, that is, they direct conduct, however from
different positions: namely, from a position of authority in adjudication and from a
position of counseling in doctrine. They have also in common the same logic: it is the
same legal argument that derives the norm of a case from other norms and principles
in adjudication and doctrine. Duncan Kennedy attempts to cannibalize both by
demonstrating the inexistence of rightness in legal argumentation. If there is no right
legal argument, then there is no right answer in adjudication, adjudication is not a
rational enterprise and legal doctrine can not be said to be a science. The fate of
adjudication and doctrine hang together in success or failure of his attempt and that is
why I consider them together in this discussion.
There is an argument against the thesis that there is no right legal argument that
runs as follows: you say that there is no right legal argument; to demonstrate your
thesis you must use a right legal argument; thereby you defeat your thesis.
You cannot avoid self defeat by saying that you do not need a right legal
argument, because you may have a right argument of another kind, an epistemological argument for instance, and that is enough. For the purpose of our discussion
however all arguments that lead to a legal conclusion are legal. Since we are
discussing whether there is a right answer in adjudication, only the arguments that
lead to the conclusion that there is a right answer in adjudication or to the
conclusion that there is none, are in order. Similarly, to know whether legal doctrine
is a science or not, whether it arrives rationally at its conclusions or not, only the
arguments that lead to one of those alternatives are in order. Now all these
arguments, and only these, are in order in a discussion about the existence of
rightness in jurisprudence and are properly called legal. Whether they are also
epistemological is irrelevant.
What if you agree with Duncan Kennedy and contend that you do not believe in
rightness of any kind? For you, there is no right legal argument because there is no
right argument at all. But then you cannot demonstrate your thesis. Kennedy [18,
p. 221] goes so far as to say: I dont think I can demonstrate that reconstruction is

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impossible. However, if he says so because he does not believe in the rightness of

any demonstration, how can he believe in deconstruction? The answer is: he does
not. He also says: we dont believe we can demonstrate the correctness of our
choices (ibid., p. 222). It goes further. If you do not believe in rightness of any kind
you cannot believe that it is right, that there is no right legal argument, and that
means that you cannot believe that there is no right legal argument. There is no need
of an argument to defeat you because you started self defeated.
Whether there is an escape route by saying that believing that there is no right
legal argument is one thing; another is believing that such a thesis is right, that it has
the quality of rightness. In such a case, you could deny that there is such a quality in
general and that such a quality applies to any legal argument in particular and still
accept many legal arguments. But if you accept one sole legal argument, you cannot
hold that there is no right legal argument. Dworkin [5] and Blackburn [40]and
othershave shown that sentences like it is objectively true that slavery is bad or
what is right to hold is that slavery is bad have only an internal meaning,
repeat emphatically that slavery is bad. They do not stake out a second order or
metaethical position. In the same way the sentence the right thesis is that there is
no right legal argument stays at the same level as there is no right legal
argument; it does not go beyond or above, but says the same thing in a repetitive
fashion.
I think that Duncan Kennedy actually believes in a lot of legal arguments and
therefore he cannot hold that there is no right legal argument. His commitment to
loss of faith and negation of rightness makes him overstate his own position and
brings him closer to classical skepticism and to nihilism than he is prepared to
admit:
That we dont believe we can demonstrate the correctness of our choices
doesnt make us nihilists, at least not in our own eyes. We misunderstand
internal critique if we imagine that it might lead to a situation in which we had
lost faith in everything, so that we just wouldnt know what to believe in or
do. Critique changes our attitude toward a particular theory (whichever we
successfully critique) that generated a particular sentiment of rightness. It
leave us, in the way of tools for working out our commitments and our
concrete plans for the future, whatever we had before that theory and its
critique. It seems odd to me to suppose that we could ever, conceivably, be
without resources of this kind, even if each of us was a veritable Hercules of
critical destruction. [18, p. 222]
If so, he can at last avoid self defeat. If we want to respect his last stand and
continue to discuss his theses, we have to engage in a charitable reconstruction of
both the theses and the arguments supporting them, beware of Mills caveat: a
doctrine is not judged at all until it is judged in its best form [25, p. 52].
What is the best form of the critique of the theory that there is only one right
answer in adjudication? In my opinion it is the form the theory takes in Herbert Hart
(see [10, pp. 811; 11, pp. 272273]). Hart says that in any legal order, there will
always be certain legal unregulated cases, gaps in the law. To reach a decision in
these cases, the law provides some criteria, such as analogy and general legal

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principles. From the application of such criteria, it will eventually be the case that
one certain rule should be applied to a case, being then the only right answer to the
case. In some of the gaps, however, it will result in a space of indeterminacy where
more than one ruling of the case is compatible with the criteria. In such a
hypothesis, the judge still has the duty to decide the case, and he must therefore
exercise his discretion and make new law within the limits of the discretionary
power that the law provides him with for that specific scenario. These limits are
described by Hart:
[H]e must not do this arbitrarily: that is he must always have some general
reasons justifying his decision and he must act as a conscientious legislator
would by deciding according to his own beliefs and values. But if he satisfies
these conditions he is entitled to follow standards or reasons for decision
which are not dictated by the law and may differ from those followed by other
judges faced with similar cases. [11, p. 273]
Against Hart, it can be argued that it is true that different answers to the same
question by different judges or by the same judge in different cases may turn out to
be legally valid as long as they cannot be revised, since they may become res
judicatae. But as long as any such answer can be revised by another judge, it may be
sustained or reversed in consequence of being right or wrong and not in
consequence of being within or outside the discretionary power of the judge a
quo. Even if the answer became binding as a precedent for future cases, it may be as
such overruled later in consequence of being considered wrong. Thus, it seems more
natural to say that the judges do not have discretionary power to decide either way,
but have the duty to give the one right answer. In the cases where the fulfillment of
that duty cannot be controlled, this is due to the principles of res judicata or of stare
decisis and not to a discretionary power they have. If so, the judge must not decide
according to his own beliefs and values, but according to the beliefs and values that
best fit the system as a whole, as Dworkin [5] would say. But this does not imply
that there is no place for the traditional distinction between interpretation and
integration of the gaps of the law, that Hart [11] maintains and Dworkin seems to
deny. Interpretation and integration of gaps are not separated by the methods they
use to arrive at their result but by the relation of that result to the meaning of words.
As long as the result is within the possible meaning of the words of a given law,
there is interpretation. Outside it we have integration. Indeed, the judges have
interstitial legislative powers when they decide gaps in the law, when they create
new precedents or overrule old ones in the common law, or when they are allowed
by the constitution to fix general binding jurisprudence. The extent of these powers
depends on each constitution, but some points are generally accepted: in criminal
law, for example, there are no gaps, therefore interpretation is allowed but not
integration of gaps. None of this offends the principle of division of powers in a
democracy, on the contrary: powers are checked not only by division of different
powers through different power holders, but also by the division of the same power
through different power holders.
If we compare Harts and Duncan Kennedys critique of the right answer theory,
both escape the self defeating argument because both accept that there are cases

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where the system admits only one answer and other cases where more than one
answer is compatible with the system. But they set the divide between the two
groups differently. The second group embraces, for Duncan Kennedy, almost all
cases of adjudication, because whenever there is litigation the judge must decide
between competing reasons after balancing them and such an activity effaces the
distinction between adjudication and legislation. He composes lists of pairs of
argument-bites that are typically used against each other by competent legal
arguers [15, p. 326 ff]. The balancing judge has to choose between maxim and
countermaxim, for example, that pacta sunt servanda (promises should be kept,
period) versus rebus sic stantibus (only as long as the circumstances remain the
same), that the role of the courts is to apply law, not make it versus the common law
evolves to meet new social conditions. But, eventually, he must also choose
between the assertion and the denial of a factual premise, for example, pacta sunt
servanda versus there was no promise. Here, Duncan Kennedy could have invoked
Bentham, who was the first to note that the power of legislation is but a part of the
whole power of imperation in any given case, in so far as it disposes about classes; it
must be completed by the power of aggregation, that is the power to decide that an
individual (act or person or thing) is a member of that class (see [3, pp. 8183]). But
Duncan Kennedy is not interested in distinguishing different types of power and
even less in separating legislation and adjudication, quite the contrary: he wants to
cannibalize the later distinction. In broad terms, his overall argument runs as
follows: excepting some crystal-clear almost mechanical cases of adjudication,
where there is no doubt about the outcome, the judge must decide after balancing
opposite reasons relative to the rule of the case or to the qualification of the case.
Judicial balancing shows that judges decide questions of policy without any
methodology that distinguishes them from legislators [18, p. 202]. The decision of
judges and legislators, however, is not determined by rational procedures of
deduction and evaluation but by partially unconscious interests and sentiments. The
existence of pairs of argument-bytes that give rational justifications to contrary
choices at every stage of adjudication demonstrates typically that more than one
answer is possible. Legal argument, understood as the deployment of stereotyped
pro and con argument fragments, seems a particularly good example of bricolage
masquerading as hyper-rationality [15, p. 352]. This should be sufficient to
provoke loss of faith in the distinction between legislation and adjudication.
It is just not so that judges decide questions of policy without any methodology
that distinguishes them from legislators. Judicial reasoning is subject to constraints
that do not affect legislators. It must be based on the sources of law and demonstrate
the compatibility of its conclusions with the sources of law. It is limited by rules of
procedure, that determine in part what are the questions to be answered and how.
None of these constraints affect legislators. Even in the cases in which the judges
have interstitial legislative powers they are, unlike the legislator, bound to fit the
system and their decisions are considered in procedure from the perspective of the
right answer doctrine.
If decisions were never taken rationally, that is, after deliberation about reasons,
but were always a necessary consequence of antecedent events according to causal
laws, as determinism pretends, there would be no difference in the way judges and

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legislators reach conclusions. Then, there would make no sense in speaking of a

right answer, only causally determined answers in each individual case would exist.
Duncan Kennedy is too much of a postmodern theorist to accept such an ultraconfident unproved theory. He does not pretend more than an undermining of the
pretension of rational deliberation and decision in certain types of cases. Does he
succeed? This can only be decided by pondering the arguments in each case. The
job, as Duncan Kennedy knows, is not already done by epitomizing argument-bytes
used in technical legal reasoning in such cases. Here I can only refer to an example
in the literature. Kennedy [15, p. 352] says that the idea of argument-bytes was for
him a way to radicalize Llewellyns famous article Remarks on the theory of
appellate decision and the rules or canons about how statutes are to be construed
[22, p. 395]. In it, Llewellyn identifies 28 pairs of opposing canons about
interpretation of statutes, all of them retrieved from actual cases of American state
law. When he reprints the canons in his later book The common law tradition.
Deciding appeals [23, p. 521 ff], he adds another nineteen groupings of canons,
mostly with two, sometimes with three or four alternative canons, drawn from
federal law cases. For example, pair 12: If language is plain and unambiguous
it must be given effect versus Not when literal interpretation would lead
to absurd and mischievous consequences or thwart manifest purpose (ibid.,
p. 524). In the book, he discusses 64 canons used in common law as available
impeccable precedent techniques and does not group them in opposing pairs
(ibid., pp. 7791).
From the start he considers them argument tools, a technical framework and
stresses that plainly, to make any canon take hold in a particular instance, the
construction intended must be sold, essentially, by means other than the use of the
canon [22, p. 401]. As Duncan Kennedy recognizes, Llewellyn is interested in
reconstruction, in the proper way of work in jurisprudence, whose whole unity
and beauty he compares with Gothic art [23, p. 7]. For Duncan Kennedy instead,
the extension of the bites analysis from statutory interpretation to policy
discourse meant rejecting the reconstructive impulse among the realists [15, p.
352]. However, if the argument-bites are going to bite, it must be shown in the
analysis of any case where one of the bites is used, that the judge could ad libitum
have chosen the alternative bite of the pair. Michael Sinclair [32] has devoted two
recent papers to discuss the first 12 pairs of the Llewellyn duelling canons,
including the one I quoted above, intending to demonstrate that such a liberty of
choice does not exist.
I do not agree with everything Sinclair says and particularly with respect to pair
12 quoted above he defends the sole validity of the first canon of the pair and I
would argue for contrary conclusion. Duncan Kennedy would charge Sinclairand
meof doing reconstruction. Maybe. But then he must do minute deconstruction if
he wants to convince us. He does not.
Let us finally come to the skeptic thesis about jurisprudence in the sense of legal
doctrine. It says that it is impossible to demonstrate that the arguments of legal
doctrine are true. Therefore, legal doctrine is not a kind of science but a kind of
rhetoric. What is the best form of this theory? In my opinion, it is to be found in the
Humean tradition and is best represented in philosophy of law by Alf Ross.

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The Humean argument runs as follows. Legal doctrine is developed through legal
arguments. Legal arguments are normative in the sense that they include premises
and conclusions whose meaning can only be explained through ought-sentences.
Ought-sentences are not true or false. But science is a set of true sentences. Therefore
legal doctrine is not a science. This is confirmed by an epistemology according to
which there are only two ways of demonstrating the truth of a sentence: by deduction
or by induction. Legal reasoning is not reducible to deduction and induction. It
entails ought-sentences. But ought cannot be derived from is nor is from
ought. Therefore legal reasoning is neither accepted by the logic of deduction nor
by the logic of induction. This again is confirmed by a theory of will and deliberation
according to which deliberation as a rational procedure respects only the theoretical
premises that relate means to ends as necessary or sufficient conditions of such ends.
But the desire (Humes passion) of an end is not subject to reason (Hume: passion is
the master of reason) and the same applies to the relations between desires.
Ross [28, p. 53] tried to confirm this again by demonstrating that if we try to
relate imperatives through the logical relations of negation, conjunction, disjunction
and implication we obtain paradoxes, rendering imperative logic impossible. For
him, legal doctrine as legal politics may only be described as a kind of rhetoric, as
developed by Stevenson and Perelman [29, p. 326].
I believe that Duncan Kennedy with his fondness for post-modern French
philosophy will not like the company of these modernist neo-positivists that march
in Humes path. He does not believe in their theories. Otherwise he would not say:
I dont think I can demonstrate that reconstruction is impossible [18, p. 221]. The
Humeans think they can demonstrate it. The Humean version of skepticism
certainly did not contribute to his personal loss of faith and he does not expect it to
cause the same loss in others. He sees critique as a project that negates a particular
emotion in favour of another experience that he describes as loss of faith and
characteristic associated emotions, namely irony, despair, ecstasy, and so on
(ibid., pp. 221, 219). Here we have fundamental moral options for values interpreted
as inducement of emotions. I find it strikingly Humean, even if it is based on a bad
interpretation of Hume [see Sousa e Brito 35, pp. 245265]. But he has nothing
better to offer about science.
We should evaluate Humes law and Humes conception of science differently.
According to Humes law, no ought can be derived from an is and no is can be
derived from an ought. Humes law is unassailable and it certainly implies that the
normative conclusions of legal doctrine can only be derived from arguments that
have normative premises. Humes conception of science, however, is highly
disputable and in my opinion finally wrong. Hume adopts the modern conception of
science that had earlier its best representative in Galileo. According to it there is
only theoretical reason, no practical reason. The concept of reason is essential for
the theory of science because science is constituted by sentences that are grounded
in reason. Aristotle says in the Posterior Analytics that
We think that we have the science of something whenever we think that we
know the cause why it is, that such cause is the cause of such a thing and that it
is not possible for this to be otherwise. [30, 71b 912, my translation]

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It is the cause or reason of a statementwhy something is as it isthat makes a

scientific statement out of it. The difference between Galileo and Hume on one side
and Aristotle on the other side is that Galileo and Hume do not admit the final cause.
For Aristotle, and in ordinary language, one way of explaining or saying the cause or
reason of something is to say that it is a means for a certain end. Thereby you express
a practical reasoning or syllogism. Galileo would say that if it is true that being
spherical and polished are means to reflect light it does not follow that some planet,
that is supposed to reflect light, is spherical and polished. This would indeed be a
derivation from ought to is and violate Humes law. But if teleological reasoning
is of no use for science in astronomy, it does not follow that it is also inappropriate for
science in ethics or in law. This is, however, Galileos and Humes conclusion. In the
words of Galileo: in whatever point of law and of other human studies is neither
truth nor falsity [7, p. 78]. They restrict reason to theoretical reason.
Bentham and Kant reacted to Hume by demonstrating the possibility of practical
reason. We owe to Bentham in particular the restoration of practical syllogism in
philosophy and in jurisprudence. From a methodology point of view, utilitarianism
can be equated to teleology and was indeed so named by Mill [24, pp. 949950].
Neither Mill nor Bentham nor Aristotle before them reduced the object of reason in
ethics to the causal relation between end and means. The choice of ends is also a
matter of reason. Aristotle wrote in the Nicomachean Ethics that the work of
practical thought is the truth in accordance with right desire [38, 1139a 2930, my
translation]. The quest of the right desire is the Aristotelian counterpart of the theory
of rational choice, encompassing individual and social choice. A specific approach
to the theory of social choice is given by the general discipline of cost-benefit
analysis (see Sen [31] on rational choice, social choice and cost benefit analysis),
which constitutes the methodological backbone of the economic analysis of law.
Balkin and Levinson are legal semioticians who consider economics, and all forms
of rational actor theory generally to be the discipline best suited to producing
rhetorical authority in debates about law and public policy [1, pp. 155, 183]. I
would say that it is suited to producing legal theory proper, albeit only part of it.
Bentham contributed further to the methodological foundations of law and other
practical disciplines by developing a logic of the will [33, pp. 451, 458468] and so
rediscovered deontic logic after Leibniz. He also developed a theory of the
paraphrase of concepts that anticipates Russells definition in use [36, p. 279].
Paraphrase and logic of the will enabled him to conduct an analysis of rights in
terms of subjective legal positions (see Appendix B of Bentham [3, pp. 251288]
and Sousa e Brito [34, pp. 93, 99105]). Bentham remains the main alternative to
Hohfelds theory of legal conceptions, but Hohfeld had greater success in the legal
doctrine as it is generally recognized in private law. Modern deontic logic after 1951
developed a lot through von Wright, Lindahl and others [see the short overview of
von Wright [39] for the main references until 1980 and Paul McNamara [41] for
more recent ones], again benefiting legal theory. Kanger [14, pp. 99196], Lindahl
[21] and Porn [27], for example, applied a revised version of Hohfelds doctrine to
parliamentary and human rights. The difficulties of Alf Ross have been solved by
what Richard Hare [8, p. 59] said on practical inferences and by what Anthony
Kenny [19, p. 50] wrote on the logic of satisfactoriness.

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Bentham and Hohfeld worked on commands and permissions. Other types of

rules have been investigated since. Wittgenstein, Rawls and Searle, among others,
focused on constitutive rules. Dworkin opposed principles to rules and originated a
lengthy discussion on the meaning and the logic of principles and how they relate to
the different types of rules in a legal system. This again contributed to further
development of the theory of the legal system, due to Kelsen and to Santi Romano,
through Hart and Raz. These developments presupposed the advancement of
philosophical semantics due to Wittgenstein and to the Oxford analytical school
(Austin, Grice, Strawson). The work of Jarvis Thomson [13] on the meaning of
rights and the constructive semiotics of law of Roberta Kevelson [20] and of
Jackson [12] are other examples of the indispensable contribution of philosophy and
semiotics to the reconstruction of jurisprudence as a science.
These references indicate no more than inspirations for the only work that can
convincingly refute the skeptic argument against legal science: the reconstruction of
jurisprudence as a scientific enterprise. Such work is beyond the scope of any single
paper. I cannot convince Duncan Kennedy. I just tried to explain why, I believe, he
did not succeed in cannibalizing jurisprudence.
Acknowledgments Thanks to Goncalo Ribeiro for earlier criticism and to Sophie Cacciaguidy-Fahy
and Annabelle Mooney for their many stylistic and other editorial improvements.

References
1. Balkin, Jack M., and Sanford Levinson. 2006. Law and the humanities: An uneasy relationship. Yale
Journal of Law and the Humanities 18 (2): 155183.
2. Balkin, Jack M. 1991. The promise of legal semiotics. University of Texas Law Review 69: 1831
1845.
3. Bentham, Jeremy. 1970. Of laws in general. Ed. Herbert L. A. Hart. London: Athlone.
4. Clark, Gerard J. 1994. A conversation with Duncan Kennedy. The Advocate 56. Reprinted in The
Suffolk University Law School Journal 24 (2): 58.
5. Dworkin, Ronald. 1996. Objectivity and truth: You youd better believe it. Philosophy and Public
Affairs 25 (2): 87139.
6. Dworkin, Ronald. 2006. Justice in robes. Cambridge, Massachusetts: Harvard University Press.
7. Galileo, Galilei. [1630] 1933. Dialogo dei massimi sistemi. In Le opere, ed. Galileo Galilei. Firenze:
Barbera.
8. Hare, Richard M. [1969] 1971. Practical inferences. In Practical inferences, ed. Richard M. Hare,
5973. London: Macmillan.
9. Harman, Gilbert, and Judith Jarvis Thomson. 1996. Moral relativism and moral objectivity. Oxford:
Blackwell.
10. Hart, Herbert L.A. 1980. El nuevo desafio al positivismo juridico. Sistema 36: 811.
11. Hart, Herbert L.A. 1994. The concept of law, 2nd ed. Oxford: Clarendon.
12. Jackson, Bernard. 1995. Making sense in law. Liverpool: Deborah Charles Publications/London:
Routledge.
13. Jarvis Thomson, Judith. 1990. The realm of rights. Cambridge, MA: Harvard University Press.
14. Kanger, Stig. [1966] 2002. Applied logic: Obligations, rights and action. In Collected papers of Stig
Kanger with essays on his life and work, vol. I, ed. Ghita Holmstrom-Hintikka, Sten Lindstrom, and
Rusiek Sliwinski, 99198. Dordrecht: Springer.
15. Kennedy, Duncan. 1994. A semiotics of legal argument. In Collected courses of the Academy of
European law, vol. III, book 2, ed. Academy of European Law, 309365. Netherlands: Kluwer.
16. Kennedy, Duncan. 1997. A critique of adjudication (fin de sie`cle). Cambridge, Massachusetts:
Harvard University Press.

123

398

J. de Sousa e Brito

17. Kennedy, Duncan. 2001. A semiotics of critique. Cardozo Law Review 22 (2): 11471189.
18. Kennedy, Duncan. 2002. The critique of rights in critical legal studies. In Left legalism/Left critique,
ed. Wendy Borwne and Janet Halley, 178227. Durham, NC: Duke University Press.
19. Kenny, Antony. 1975. Practical Reasoning and rational appetite. In Will, freedom and power, ed.
Anthony Kenny. Oxford: Blackwell.
20. Kevelson, Roberta. 1988. The law as a system of signs. New York: Plenum.
21. Lindahl, Lars. 1977. Position and change. A study in law and logic. Dordrecht: Reidel.
22. Llewellyn, Karl N. 1950. Remarks on the theory of appellate decision and the rules or canons about
how statutes are to be construed. Vanderbilt Law Review 3: 395406.
23. Llewellyn, Karl N. 1960. The common law tradition. Deciding appeals. Boston: Little Brown.
24. Mill, John Stuart. 1974. A system of logic. In Collected works of John Stuart Mill. Essays on ethics,
religion, society, vol. VI, ed. John M. Robson. London: Routledge.
25. Mill, John Stuart. [1835] 1974. Sedgwicks discourse. In Collected works of John Stuart Mill. Essays
on ethics, religion, and society, vol. X, ed. John M. Robson, 3174. London: Routledge.
26. Thomas, Nagel. 1997. The last word. Oxford: Oxford University Press.
27. Porn, Ingmar. 1970. The logic of power. Oxford: Blackwell.
28. Ross, Alf. 1941. Imperatives and logic. Theoria 7: 5371.
29. Ross, Alf. 1958. On law and justice. London: Stevens.
30. Ross, William D. 1949. Aristotles prior and posterior analytics. Oxford: Clarendon.
31. Sen, Amartya. 2002. Rationality and freedom. Cambridge, Mass.: Harvard University Press.
32. Sinclair, Michael. 20052006. Only a Sith thinks like that: Llewellyns dueling canons, eight to
twelve. New York Law School Law Review 51: 10041054.
33. de Sousa e Brito, Jose. 1972. Relire Bentham. A propos de ledition de Of laws in general de
Bentham par Hart. Archives de Philosophie du Droit 17: 451472.
34. de Sousa e Brito, Jose. 1981. Droits et utilite chez Bentham. Archives de Philosophie du Droit 26:
93119.
35. de Sousa e Brito, Jose. 1982. Humes law and legal positivism. In Filosofia del Derecho y Filosofia
de la Cultura, Memoria del X Congreso Mundial ordinario de Filosofia del Derecho y Filosofia
Social, vol. VIII, ed. Jose Luis Curiel, 245265. Mexico: Universidad Nacional Autonoma de
Mexico.
36. de Sousa e Brito, Jose. 1987. La methodologie juridique de Bentham. In Actualite de la pensee
juridique de Jeremy Bentham, ed. Philippe Gerard, Francois Ost, and Michel van de Kerchove, 279
289. Bruxelles: Publication des Facultes Universitaires Saint-Louis.
37. Stavropoulos, Nikos. 1996. Objectivity in law. Oxford: Clarendon.
38. Susemihl, Franciscus, and Otto Apelt. 1912. Aristotelis Ethica Nichomachea, 3rd ed. Leipzig:
Teubner.
39. von Wright, Georg H. 1980. Logik, deontisch. In Historisches Worterbuch der Philosophie, ed.
Joachim Ritter, Karlfried Grunder, and Gabriel Gottfried. Basel: Schwabe.

Online Resources
41. Blackburn, Simon. 1996. Symposium. commentators. http://www.brown.edu/Departments/Philo
sophy/bears/9611blac.html. Consulted 6 November 2008.
40. McNamara, Paul. 2006. Deontic logic. In The Stanford encyclopedia of philosophy, ed. Edward N.
Zalta. http://plato.stanford.edu/archives/spr2006/entries/logic-deontic/. Consulted 6 November 2008.

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