Suchergebnisse

Abstract
This paper suggests that libertarian and (related) contractarian ideas would be less vulnerable to certain forms of criticism if they would more carefully disentangle their legal and moral standards for the assess­ment of institutions from empirical, methodological, and epistemological assumptions about individualism and non-cognitivism. Holding apart several meanings of individualism different issues can be treated separately. It will be shown that the justification of libertarian norms raises some problems which are not too easily solved within a non-cognitivist approach. No attempt to solve them is made subsequently but how far in principle the 'argumentation possibility frontier' might be shifted out for that purpose is outlined. In this respect the paper might be regarded as a companion to Viktor Vanberg's brillant reconstruction of contractarian liberalism in this issue of Analyse & Kritik (pp. 113–149).

Inclusive legal positivism has been in the limelight for some time. There are several reasons for this. Among the structural reasons for this general change of direction within general jurisprudence are cultural changes such as the renewed interest for theory of action or normative methodology. This paper discusses José Juan Moreso's contribution to this debate. The paper focuses especially on the thesis that there would be no connection between non-cognitivism as set out in meta-ethics and positivism in legal theory. This thesis is really the outcome of a compound of different positions: on the political level, the question concerns the possible relationships and tensions between democracy and liberalism. On the ethical and foremost meta-ethical level, the issue basically revolves around the relation between cognitivism and expressivism; and, on the level of legal theory, Moreso attempts to resolve the problem that Benedetto Croce, a century ago, compared to the difficulty of sailing around Cape Horn, i.e. to connect the law and ethics. The paper is divided into five sections. In the first section of the paper, a few historical remarks are made. In section two, I look at how natural law is defined in Moreso. In section three, some observations are made on how legal positivism is qualified in relation to natural law. In section four, I suggest a possible criticism of the conception of moral relativism used by Moreso and recommend an alternative conception that hopefully grasps further features of the way the problem is frequently discussed. Finally, some methodological remarks are made: the choice of disregarding the distinction between authentic and inauthentic normative propositions leads Moreso to conceive the object of dispute between cognitivists and expressivists in an unfruitful way. The lack of distinction between the role played by belief on the one hand and conative attitudes on the other makes it hard, if not impossible to grasp what exactly is the object of this dispute. In fact, their opposition, instead of representing a fertile scientific dialogue becomes similar to a situation where people are talking pass each other. If this outcome is to be avoided and the two positions reconstructed properly, an account of what constitutes belief should complement the theory. Probably greater focus is also needed on what is considered to be the primary function of normative propositions.

Naturalism rejects a sui generis and fundamental realm of the evaluative or normative. Thought and talk about the good and the right must hence be understood without appeal to any such evaluative or normative concepts or properties. In Sections I and II, we see noncognitivism step forward with its account of evaluative and normative language as fundamentally optative (that is, expressive of wishes or desires) or prescriptive. Prescriptivism falls afoul of several problems. Prominent among them below is the "problem of prima facie reasons": the problem, namely that prescriptions do not properly capture the character of defeasibility of the prima facie, featured by nearly all our moral convictions. We find in Section II that, ironically, emotivism, with its emphasis on optative rather than prescriptive language, though historically more primitive, is yet better attuned to that crucial prima facie aspect of the normative and the evaluative. But even emotivism still faces serious difficulties that beset noncognitivism generally, such as the problem of embedding in subordinate clauses, and the problem of normative fallibility. That takes us up to Section III.

Psychology striving to make us more aware of our own nature dominantly, if not exclusively, is realized through psychotherapy. Psychotherapy as a praxis of psychology, which only follows the psychological theory and without it we can hardly call it that, is largely dependent on the prevailing social trends and the dominant form of pathology that can occur in them. That theoretical aspects of many forms of pathology are not completely understood and not give the right to cancel the search for the unconscious forces that determine the subject. Dominant tendencies in contemporary psychology not only do not favor psychotherapy, but are directly aimed against it. At least against that psychotherapy which is based on the split subject, the interior space in which the physical and perceptual sensations, moral rules, mood depression and everything else that we call 'mental'. The great danger that is above psycho­therapy activity comes by pharmacology and cognitivism (lat. Cognitio 'knowledge') and the intellectual soul. Equating the mind and the brain makes psychotherapy unnecessary in relation to the pharmacology whose power impact becomes decisive on each deviation and every suffering. The fact that in the psychology shortens the long and uncertain path of mental knowledge that does not correspond to the nature of 'psychological' seems to be replaced by those efforts which are only concerned with the question of science. The fact that there is no comprehensive theory of emotions that can not be resolved by cognitivism which is opposite to emotional. Rorty's cynicism towards such efforts, which emphasize that the spirit is the same as that stimulate the brain and that the theorem symphonies and excreted in the same way that the spleen is excreted dark juices (Rorty 1990: 54) exhorts the psychology of the fact that instead of being which has a spirit, that is different from the 'physical body', 'matter', the central nervous system, has been the equalization of the spirit with this case of positivist science study. Consciousness, which turns psychology, becomes infinite, and non spatial, or posses­sion of a non spatial bodies or elements almost disappears. The most controversial consequence of this is that possessing inner life is not relevant for understanding. Dynamic psychology is targeted by those who want to replace it with chemical treatment, which is more effective than psychotherapy because it affects cerebral causes of strife and suffering. Passion, death, madness, unconsciousness, sexuality, object relations, which shape each subjectivity, in such a psychology will be made redundant, or will be, like previous experiences, translate into the language of the new psychological school. However, the survival of the unconscious in psychological theory, the unique psychological theory, psychotherapy life will depend on the ability that man, freeing of the self-deception, reach his freedom.

L'acte de juger, de porter une appréciation selon des principes éthiques ou politiques, est coextensif à la pratique humaine. La loi elle-même n'est que la conséquence d'une activité de jugement ou évaluation. Car pour qu'une norme soit édictée il faut que, préalablement, elle ait été considérée, jugée, comme bonne ou mauvaise; ou que le comportement qu'elle vise à favoriser ou à interdire soit jugé bon ou mauvais. Or la théorie longtemps dominante en épistémologie, accompagnant le positivisme, fut qu'il n'est pas possible d'avoir des jugements de valeur, ou des jugements évaluatifs objectifs, répondant à une exigence de vérité. L'article ici proposé est une tentative de démontrer, au contraire, qu'il est possible de formuler des jugements évaluatifs ayant une valeur d'objectivité et de vérité.