chapter  8
17 Pages

The problem of objectivity in law and ethics


The problem of the objectivity of norms has interested me almost since the beginning of my legal education. My first opportunity to discuss it with Karl Popper came in 1970. He seemed to consider it as having been solved in his Open Society. Although fascinated by that book, I was then still unconvinced and remained so after our discussion. In 1980 I stumbled upon what I believed, and still believe, to be the theoretical solution of this problem. Due to professional strain it took me some time to get it written down, and the publication of my small book on legal theory which, of course, I sent to Karl Popper after publication (1984), very unfortunately came at the time of the last illness of his wife, of which I was not aware, and therefore escaped his notice. I received no answer and did not dare to inquire, and we only met again in May 1994. He very kindly took the time to read the book, predicting in advance, however, that he would probably disagree with my view of the relations between facts and norms which I had tried to explain in our conversation. He considered the issue fundamental while I thought, and still think, it has a bearing only on questions of methodology. We then had a wonderful discussion by correspondence and during another visit in August 1994, but could not reach a final agreement. The summer seminar of the University of Madrid in Santander, to which I was invited at his kind recommendation, and for which this paper was originally prepared, should have been an attempt at “intersubjective criticism” of our diverging views; but then came, sadly, his last illness, and his death on 17 September 1994. The seminar, of course, was cancelled. So I am still waiting for a discussion of my dissenting opinion. Since this was influenced by The Open Society more than by any other book, the fiftieth anniversary of this unparalleled work is an occasion to present it.