Legal Consciousness and the Internal Aspect of Rules

This contribution starts from the assumption that law exists in legal consciousness, that is: in the beliefs and attitudes of people who jointly guide their lives by law. It aims to give an account of legal consciousness that combines Haidt’s ideas about the origin of moral judgements, Berger and Luckman’s ideas about the social origin of knowledge (very loosely), and Popper’s idea that scientific knowledge is a collective product (epistemology without a knowing subject). According to Haidt, (moral) judgments originate when intuitive judgments, which are still inarticulate, are rendered in a language. Only when this has happened can the judgments be evaluated critically by the person whose intuition and judgement are concerned, but also by others. Such a critical evaluation seldom leads to a change of judgement; critical ‘evaluation’ is often post hoc justification. If it does lead to a modification of the initial judgement, this is most often the result of social interaction (criticism from others). When people interact, they develop standards for the evaluation of judgments, and when these standards become broadly accepted and seem almost objective, the justification of judgments depends on these social standards. In this way a body of knowledge grows which finds its justification in broadly shared standards. In the case of social reality (as opposed to objective reality), the facts are what justified judgements about these facts say they are. Technically stated: social ontology depends on social epistemology. The standards for justified belief that people develop in their social interaction thereby also become standards for what the social facts are. If law is a matter of social fact, this also applies to law. As Dworkin stated it: the law is what the best theory of law says it is. This best theory is true because the law corresponds to this theory. This is a correspondence theory of truth with a reversed direction of correspondence (direction of fit).