A Dialogue on Legal Theory Between a European Legal Philosopher and His American Friend MARUAN PAVCNIK' AND Lous E. WOLCHER? SUMMARY 1. INTRODUCTION FROM THE EDITORS Su toee Tl. THE DIALOGUE I. INTRODUCTION FROM THE EDITORS ‘The editors of the Texas International Law Journal are pleased to present this unusual and, we think, provocative and enlightening international dialogue on themes pertinent to legal theory and the philosophy of law. It takes place in the form of a series of questions and answers passing back and forth between two thinkers—one European, the other American—who view law and legal phenomena from radically different cultural and intellectual perspectives. Their “discussion” did not occur in a concentrated burst of talk, but unfolded itself as an exchange of written questions and answers passing back and forth between two continents over a period of five years. The dialogue ranges over the widest possible ground: the nature of law and legal decision-making, the role of language and the dangers of linguistic confusion in legal theory, the meaning of the concept “The Rule of Law,” as well as of the concept “meaning” itself, critical legal theory in its various manifestations, the role of morality and justice in legal thought and decision-making, and the contents, goals, and tendencies of legal education as it is practiced in Europe and America, What is more, there hovers over all these matters a constant meta-question, to which the participants return again and again: What role can and should philosophical thinking play in law and legal studies? It seems appropriate to say a word or two about the participants themselves. Marijan Pavénik (“MP” in the Dialogue) teaches at the University of Ljubljana Law Faculty in Ljubljana, Slovenia and has written several books and over two hundred articles on legal theory and the philosophy of law. Professor Wolcher has described Dr. Pavénik elsewhere as “one of the most prolific and interesting of those academics from the formerly communist states of Central and Eastern Europe who are currently writing on topics germane to legal philosophy.”" Louis Wolcher (“LW” in the Dialogue) teaches at the University of Washington School of Law in Seattle and is the author of numerous articles and essays on law and philosophy. His essay “Time’s Language” was recently awarded second prize by the final jury of the International Essay Prize Competition—a worldwide + Professor, University of Ljubljana Faculty of Law, Kongresni trg 12, 1000 Ljubljana, Slovenia, Email address: Ada Polajnar-Pavenik@guest.ames.si. t Professor, University of Washington School of Law, 1100 N.E. Campus Parkway, Seattle, Washington 98105-6617. Email address: wolcher@u.washington.edu. 1, See Louis E. Wolcher, Pavénik’s Theory of Legal Decisionmaking: An Introduction, 72 WASH. L. REV. 469, 469-70 (1997) [hereinafter Pavénik’s Theory} 335336 TEXAS INTERNATIONAL LAW JOURNAL [VOL. 35:335 philosophical prize contest co-sponsored by Weimar 1999—Cultural Capital of Europe and the European cultural magazine Lettre International? Tl. THE DIALOGUE LW: Let me start by saying something about the word “theory” in the title of our dialogue. I have learned from our discussions that at the University of Ljubljana, where you teach, law students must take a course called “Introduction to Law” (having to do with what you have characterized as the “theory of law”), and they must also take a different course called “Philosophy of Law.” I gather that, in European legal education, it is generally thought that there is a difference between theory of law and philosophy of law, and I am eager to hear what you conceive this difference to be. But, for the moment, it will suffice to say that I want to take the broadest possible view of the word “theory” in this dialogue, The English word “theory” derives from the Greek @ewpua, which originally signified a looking at, a viewing, or a contemplation of something'—a sense that is carried forward perhaps most transparently in our word “theater,” which is derived from the same source.‘ I would like to draw on this etymology to reinforce my sense of our topic here. 1 propose that we agree to mean “legal theory” in the sense of having a view of... well, of ail things that we are inclined to call “legal.” Having staked out the largest possible ground for our inquiries, I hope that it will be possible for us to find a shared place within that ground from which to view and express the differences, and the similarities, between ‘our two forms of life in the law. But perhaps I have already presupposed too much. Do you agree with my proposed definition of “theory”? What is the special meaning of “theory of law” in your system, and how does it differ from what you call the “philosophy of law”? MP: Well, your suggestion that “theory” is having a view of the object we are researching or talking about hits the essence of the problem and immediately opens a number of key questions, the most important of them probably being: What kind of view? What kind of legal object or legal thing? Kelsen would say that “the specific method defines the specific object” of research.’ I would say that the methodological approach only co-defines the object of research, yet it cannot arbitrarily define the latter. A circle exists between the subject and the object. The subject may be more or less productive when endowing the object with meaning, yet the subject cannot disregard it and believe that as to its meaning the object is independent of the subject investigating it. Of no lesser importance is the “depth” of questioning and research, Personally, | am inclined to take the view that it is difficult to draw a sharp dividing line between philosophy of law and theory of law.’ Let us say that theory of law deals with general concepts and general regularities of law (e.g., with establishing general characteristics and elements of law, their mutual connections and the relation of law and other social phenomena).’ These characteristics 2. See Louis E. Wolcher, Die Sprache der Zeit {Time's Language], 47 LETTRE INT'L 18-26 (1999) (Chris Hirte trans.) (hereinafter Die Sprache}. 3. See THE COMPACT EDITION OF THE OXFORD ENGLISH DICTIONARY 3284 (2d ed. 1971). 4. See id. at 3279. 5. See HANS KELSEN, DER SOZIOLOGISCHE UND DER JURISTISCHE STAATSBEORIFF: KRITISCHE UNTERSUCHUNG DES VERHALTNISSES VON STAAT UND RECHT 106 (1922). For a serious critique of this standpoint, compare GONTHER WINKLER, RECHTSTHEORIE UND ERKENNTNISLEHRE: KRITISCHE ANMERKRUGEN ZUM DILEMMA VON SEIN UND SOLLEN IN DER REINEN RECHTSLEHRE, AUS GEISTESGESCHICTLICHER UND ERKENNTNISTHEORETISCHER SICHT 175 (1990), 6. See, e.., EINFONRUNG IN RECHTSPHILOSOPHIE UND RECHTSTHEORIE DER GEGENWART (Arthur Kaufmann & Winfried Hassenmer eds., 6th ed, 1994). 7. See. eg., Rall Dreier, Was Ist und Wozu Allgemeine Rechistheorie?, in RALF DREIER, RECHT-MORAL- {DEOLOGHE: STUDIEN ZUR RECHTSTHEORE 17-47 (1981); JEAN-LOUIS BERGEL, THEORIE GENERALE DU DROIT 6 (1989); DICTIONNAIRE ENCYCLOPEDIQUE DE THEORIE ET DE SOCIOLOGIE DU DROFT 610-13 (1993).2000) A DIALOGUE ON LEGAL THEORY 337 and regularities can only be found if one knows what law is, which part of reality is to be treated as the legal phenomenon, how it should be recognized, what its aim and object are, what right (just) law is, etc. These ontological, gnoscological, and axiological questions, cited by way of example, are a conditio sine qua non of theory of law; they refer to law as a whole and seek answers to what is essential and basic for it. If established convention and terminology are followed, these questions belong to philosophy of law.* In addition to philosophy and theory of law, there exist legal sciences dealing with individual, and hence narrower, legal areas. To the relation between these sciences and philosophy of law, basically the same principles apply as to the relation between theory and philosophy of law. This means that philosophical answers draw the scope of single legal sciences, whereas, on the other hand, even the smallest question from the standpoint of positive law can develop into philosophical discussions (e.g., the objective of punishment in general and of capital punishment in particular, causation, just damages, the nature of single basic constitutional rights, the limits of legal discretion and legal force). Of key importance, however, are the direction and depth of how a single legal science deals with law. The names of these sciences are only of secondary importance. What I want to say is this: if @ certain science is not called “philosophy” (e.g., philosophy of constitutional law or philosophy of criminal law), this does not necessarily mean that it does not put philosophical questions and seek philosophical answers. Thus it might not be superfluous to compare our legal systems from this viewpoint. What is the “view” of single legal soiences (e.g., sciences of constitutional, criminal, civil, and administrative law) and how do they define things that they call “legal”? Are this “view” and this “legal thing” far from philosophical search, are they philosophically indifferent or do they also approach philosophy? Do we agree that we are also interested in the view of law at this level? LW: I'm not sure we are both at the same level yet. Perhaps we can agree with H.L.A. Hart that, at least at some level (and even then with some misgivings on my part), there is “[lJittle...to be gained from elaborating the traditional distinctions between philosophy of law, jurisprudence (general and particular), and legal theory.” Still, “philosophy” seems to name, for you, a kind of questioning of law that is both prior to, and a foundation of, the interrogations that belong to any particular legal theory or science, I detect this privileging of philosophy in your assertion that answers to questions like “What is law?” (let's call them “meta-questions”) are a condition of the possibility of any theory of law or particular legal science, and that these meta-questions belong uniquely to the Philosophy of law. On the other hand, you seem to see a kind of dialectic at work between philosophy of law and the individual legal sciences, in which the latter put philosophical questions and then seek, or at least are capable of seeking, philosophical answers. The image of a fantastic kind of garden comes to mind: Philosophy is the gardener who lays out and plants the vegetable bed, and then carefully keeps the carrots and spinach in their separate rows—while remaining always on the lookout, of course, to pluck out dandelions and other weeds as they sprout up. But now the carrots, for example, do more than just grow and flourish in their allotted row; every now and then they long to transcend their roots. They rise up and ask themselves questions like “What does it mean to be a carrot, as opposed to a head of spinach or a dandelion?” and “What is the ultimate objective of being a carrot?” In a word, the carrots become philosopher-carrots.'° 8. See Quiesi-ce que la Philosophie du Droit?, in 7 ARCHIVES DE PHILOSOPHIE DU DRorT 83 (1962). 9. See H.L.A. Hart, Problems of Philosophy of Law, in 6 THE ENCYCLOPEDIA OF PHILOSOPHY 264 (Paul Edwards ed., 1967) (hereinafter Philosophy of Law 10. Compare the metamorphosis of the man who became a vegetable patch in Kobo Abe's novel, Kangaroo ‘Notebook (Maryellen Mori trans., 1966).