ЭНРИКО ПАТТАРО ДЕЙСТВИТЕЛЬНОСТЬ, НОРМЫ КАК ВЕРОВАНИЯ И ИХ ЭФФЕКТИВНОСТЬ

PATTARO E. VALIDITY, NORMS AS BELIEFS, AND THEIR EFFICACIOUSNESS In this essay, Enrico Pattaro proposes and elaborates upon new conceptualizations for phenomena traditionally addressed by jurisprudence, philosophy of law, and sociology of law: validity, norm, efficaciousness, etc. By drawing on the distinction of the American Philosopher Charles S. Peirce between types and tokens, the author first defines validity as whatever congruence of a token with a type, regardless of whether that type is contained in a norm, or of whether the instantiation of that type is (α) obligatory, (β) permitted, or (γ) prohibited, under a given norm. This move makes it possible, on the one hand, to address the so-called typicality of law from a more general perspective — one capable of encompassing all sorts of phenomena usually addressed by humanities, including literature — on the other, it makes it possible to analyze in a normatively unbiased way the role of types and tokens when it comes to norms (for example, in cases (α) and (β) the author speaks validly right tokens of types, while in cases (γ) he speaks of validly wrong tokens of types.) As for norms, the author defines them as a psychological phenomenon, namely as the belief (opinio vinculi) that a certain type of action must be performed, in the normative sense of this word, anytime a relevant type of circumstance gets validly instantiated. Like any other belief, a norm cannot exist except in someone’s mind (or, better, brain). The existence of a norm within one’s mind (i.e., its being believed in by its holder) is called by the author doxía. Among several other distinctions and neologisms, doxía is distinguished from the being a duty-holder under a given norm (called by the author deontía). It is only when doxía and deontía concur that the author speaks of the being-inforce of a certain norm within a subject (nomía of that subject as to that norm — to use the author’s terminology). Finally, among other things, the efficaciousness of a norm is distinguished from its effectiveness. A norm is called and conceptualized as effective if it is complied with whatever the motives which stand behind that compliance. Instead, a norm is called and conceptualized as efficacious if it is a motive of compliance (causa agendi) for the duty-holder who believes in it (i.e., according to the terminology of the author, for a nomic subject).