The Logic of Autonomy: Law, Morality and Autonomous Reasoning

263 Pages·2012·1.093 MB·English

by  Jan-R Sieckmann

THE LOGIC OF AUTONOMY
Autonomy is the central idea of modern practical philosophy. Understood as
self-legislation, autonomy seems to require that the validity of norms depends on
recognition, namely, that their addressees, being autonomous agents, recognise
these norms to be valid. But how can one be bound by norms whose validity
depends on their being recognised as valid by their addressees? The questions of
how autonomous morality and, on this basis, the authoritative character of law
can be understood, present persistent puzzles that have been widely discussed, but
still await a satisfactory solution.
This book presents an analysis of the idea of autonomy as self-legislation and its
consequences for law and morality. It links the idea of autonomy with the idea of
the balancing of normative arguments, develops a notion of normative arguments
as distinct from normative judgements and statements and explains claims to cor-
rectness and objectivity that are found in normative discourse. Thus, a ‘logic of
autonomy’ emerges, and it is pervasive in normative reasoning. It connects theses
regarding the logic of norms, the structure of balancing, human and fundamental
rights, legal validity, legal interpretation, and the relations among legal systems,
offering a theory of central elements of normative argumentation, a theory that is
undergirded by the mutual relations that exist between and among its parts as
well as through the relations that it bears to other theories. Moreover, it offers an
alternative to Kantian notions of autonomy and provides solutions to problems
that other theories have failed to master.
Volume 5 in the series Law and Practical Reason
Volume 5 in the series Law and Practical Reason
The intention of this series is that it should encompass monographs and collec-
tions of essays that address the fundamental issues in legal philosophy. The foci
are conceptual and normative in character, not empirical. Studies addressing the
idea of law as a species of practical reason are especially welcome. Recognising
that there is no occasion sharply to distinguish analytic and systematic work in the
field from historico-critical research, the editors also welcome studies in the his-
tory of legal philosophy. Contributions to the series, inevitably crossing disciplin-
ary lines, will be of interest to students and professionals in moral, political, and
legal philosophy.
General Editor
Prof George Pavlakos (Antwerp and Glasgow)
Advisory Board
Prof Robert Alexy (Kiel)
Prof Samantha Besson (Fribourg, CH)
Prof Emilios Christodoulidis (Glasgow)
Prof Sean Coyle (Birmingham)
Prof Mattias Kumm (New York and Berlin)
Prof Stanley Paulson (St Louis and Kiel)
Prof Joseph Raz (Columbia Law School)
Prof Arthur Ripstein (Toronto)
Prof Scott Shapiro (Yale Law School)
Prof Victor Tadros (Warwick)
Editorial Assistant
Triantafyllos Gouvas (Antwerp)
Volume 1: The Normative Claim of Law
Stefano Bertea
Volume 2: Community and Collective Rights: A Theoretical Framework for
Rights held by Groups
Dwight Newman
Volume 3: New Essays on the Normativity of Law
Edited by Stefano Bertea and George Pavlakos
Volume 4: Hannah Arendt and the Law
Edited by Marco Goldoni and Christopher McCorkindale
The Logic of Autonomy
Law, Morality and Autonomous Reasoning
Jan-R Sieckmann
OXFORD AND PORTLAND, OREGON
2012
Published in the United Kingdom by Hart Publishing Ltd
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© Jan-R Sieckmann 2012
Jan-R Sieckmann has asserted his right under the Copyright, Designs and Patents Act 1988,
to be identified as the author of this work.
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To Julia and Lisandro

Preface
The core idea of this book is to link the notion of autonomy with both norm theory
and the method of balancing. In this respect the book is, I believe, distinct from
other accounts of autonomy in the literature. It draws on ideas that have been
developed quite apart from the notion of autonomy, but stem from an analysis of
the logical distinction between rules and principles and of the method of balancing.
The distinction between rules and principles, introduced by Ronald Dworkin,
has been given a great deal of attention but precious little support. Indeed, the
terminology of rules and principles bears no clear relation to the issue at stake,
namely, that the norms figuring as arguments in the course of balancing conflict-
ing norms must have logical properties that differ from those of the norms that
result from this balancing. This point, however, is crucial. It is made here by dis-
tinguishing normative arguments, judgements and statements, where normative
arguments are understood not as statements of norms or – more precisely – of
their validity but as requirements to the effect that a particular norm be recog-
nised as definitively valid.
The second element is the analysis of the balancing of normative arguments. In
this respect, a main line of enquiry is whether and to what extent balancing pres-
ents a method of rational justification. Authors who take up balancing usually try
to show how it can provide objectively correct results or to show at the very least
that balancing offers the best approach to normative justification. What happens,
however, if one focuses on the other side of balancing, its indeterminacy?
Recognising the indeterminacy of balancing carries with it the implication that
the judgement resulting from balancing cannot be derived from pre-established
premises, but includes an element of individual choice.
From the logical structure of normative arguments and the indeterminacy of bal-
ancing there emerges the notion of autonomy in the true sense of self-legislation: the
normative judgement resulting from balancing is free in the sense that one might
just as well have chosen another result, but the logical structure of the prevailing
argument, being a requirement of the validity of the resulting norm, means that one
must always present one’s judgement as obligatory, for it is required by what one
deems to be the stronger argument.
This notion of autonomy is analysed here with an eye to its philosophical
foundations as well as to its application in various fields of legal philosophy and
legal theory, in particular, the theory of rights, legal validity, legal interpretation,
and the relations that hold between and among legal systems. Thus, a coherent
account of law within the framework of autonomous morality emerges, and this
lends support, in turn, to the distinctions between normative arguments, judge-
ments, and statements on which the notion of autonomy rests.
viii Preface
The ideas presented in this book have been developed in various contexts and
on various occasions, and I am indebted to a number of colleagues who have
helped me to refine my ideas. I extend special thanks to Georgios Pavlakos, who
not only accepted this book for publication in his series ‘Law and Practical
Reason’ but also made substantive comments on its content. Stanley L Paulson
undertook the task of monitoring my English, and he also offered important sub-
stantive suggestions. I profited, too, on various occasions, from the criticism of
Robert Alexy, Jaap Hage, Nils Jansen, Daniel Oliver Lalana and Peng-Hsiang
Wang, and from discussions in Robert Alexy’s seminar for doctoral students at
the University of Kiel, as well as from Eugenio Bulygin’s Seminar for Logic and
Philosophy of Law at the University of Buenos Aires.
Jan-R Sieckmann
Buenos Aires, January 2012
Contents
Preface vii
1 The Idea of Autonomy 1
1.1 The Paradox of Autonomy 2
1.2 Autonomy and Authority 6
1.3 The Logic of Autonomy 10
1.3.1 How Not to Understand Autonomy 11
1.3.2 Structure of Autonomous Reasoning 13
1.3.3 Definitions of Autonomy 17
1.4 Central Issues in a Theory of Autonomous Reasoning 20
2 Normative Language 22
2.1 A Framework for Autonomous Reasoning 23
2.2 Norms, Normative Arguments, Judgements and Statements 24
2.2.1 Semantic Conception of Norms 25
2.2.2 Normative Statements 26
2.2.3 Normative Arguments 30
2.2.4 Structure of Autonomous Judgement 31
2.3 The Non-Propositionality Thesis 35
2.4 The Logic of Normative Argument 37
2.4.1 Inference Rules for Normative Arguments 38
2.4.2 Inference Rules for Normative Judgements and Statements 42
2.5 Conclusion 44
3 The Concept of Normative Arguments 45
3.1 Structure of Normative Arguments 45
3.2 Argument for the Reiteration of Requirements for Validity 48
3.2.1 Structure of Balancing 49
3.2.2 Structure of Normativity 52
3.2.3 Structure of Interest-based Arguments 54
3.2.4 Structure of Autonomy 55
3.2.5 Trilemma of Normative Justification 57
3.3 Objections and Problems 58
3.4 Conclusion 60