ILMAR TAMMELO

ABOUT LEGAL PHILOSOPHY

ABSTRACT. In this article I will take into hand the ideas, which contain the
principal political and ethical requirements of our time, which require the special
attention of the jurists. To summarize these requirements I will use the term
‘‘humanitarianism’’. I am aware of the fact that some shades of meaning of this
notion do not reflect that what I have in my mind. Therefore, I will not attempt to
give a strict definition of humanitarianism as I understand it. A more precise defi-
nition will be left for the moment, when the ideas embraced by this definition will
have obtained more precise contours. For the first draft of concept I will observe at
the beginning that the notion of humanitarianism is strictly linked to the notion of
reason. It means that in all cases, when a man today and in future is concerned, we
have to establish a philosophical disposition carefully, according to our best
understanding, under the stimulating guidance of conscience, responsibility and all-
embracing care. At the same time this responsibility means the denial of every
‘‘intellectual immolation’’, false compassion, sanctimonious devotion and false
amicability. (This is a shortened article from the original.)

1. INTRODUCTION

The problem of inter-temporal law arises from humanitarianism.

This is justice which embraces not only the people living at present,
but also the generations to come, even those one who will live in very
far future. Such extension of the scope of justice is inevitable, because
almost all of acts and omissions, performed by the current generation
will decisively affect the generations to come. As persons behaving
morally, we are not allowed to simply solve our problems regardless
the fact what our solution can mean for the descendants. As a moral
guideline, the commandment of altruism is not sufficient here. Not
even then, if we take everyone as a fellow man living in this world, in
every corner of the world. The commandment to love, which we have
to obey at present day, extends from us to those generations which
are temporarily separated from us.

International Journal for the Semiotics of Law

Revue Internationale de Sémiotique Juridique (2005) 18: 83–94
DOI 10.1007/s11196-004-7933-1 Ó Springer 2005
84 ILMAR TAMMELO

2. LANGUAGES OFNATIONAL AND INTERNATIONAL

COMMUNICATION

The languages that are used for national and international com-
munication have turned out to be insufficient and irrational, be-
cause they fail to give expressions which would adequately respond
to the desired thought. The semiotic authenticity of the languages
that is necessary (including orthographic, syntactical, semantic and
pragmatic rationality) can be achieved solely by extreme planning
of languages. As a result of this planning the plan-languages will
be born. The artificial languages that already exist today and
which have reached its maturity being well tried – are proof of
intellectual progress of our civilisation. But the ideal of semiotic
authenticity is to sufficient extent is not realized therein. Although
they give us good grounds for further language planning which
would give those means at the disposition of our linguistic com-
munication and which would not set too narrow limits for thought
expression. Strangely, an anachronistic romantic attitude towards
the linguistic phenomenon and extreme fundamentalism sets
obstacles on the way to linguistic reason. The New Enlightenment
faces the serious task to assist the reason in overcoming the
obstacles in this domain. If this breakthrough is not taking place
now, hen our intellectual endeavours will forever suffer from lin-
guistic injustice, because the languages of greater nations in every
sense not at all admirable languages and they are still hegemonic
in their very essence. In this connection a vast amount of money
should be kept in mind, an amount of money that has been spent
for alleviating the suppression of linguistic imperialism. A great
deal of translations is performed in international organisations, but
these are translations that will never give an entirely satisfactory
result. In the field of legal, moral and state philosophy, the formal
and material principles, as well as the place value of the methods
have to be defined. It is not always understood to sufficient extent
that in this field, the thinking has to be formally, as well as
materially, rational. Moreover, the deductive thinking cannot as-
sume all the tasks of the non-deductive thinking. The argument of
vanity, which concerns the merits of both ways of thinking –
represents in itself an unreasonable pattern of thinking.
Those who write or speak about this problem often use misleading
terminology which in turn relies on words, which have too many senses
or are ill-chosen. Here we could reach further if we could coin semeiotic
 ABOUT LEGAL PHILOSOPHY 85

authentic neologisms. This will be an undertaking from the field of

‘‘trans-linguistics’’. The purpose of trans-linguistics will be crossing or
rectification of the borders/limits that language has set upon our
thinking. The New Enlightenment in the field of intellectual life has to
pay a special attention to the development of these principles and
methods, as well as its systematic and constant perfection, which en-
ables rational legal, political and moral argumentation. On one hand,
this perfection would help to shape the decision-making procedure in
legal logics, and on the other hand, such an argumentation theory
would be more appropriate for ethical aspirations. Such an argumen-
tation theory would be applied to the forum of reason, which will
consist of competent, well-informed and the honest argumentation
partners. This theory is not intended for so called ‘‘general public’’.
Arguments at this forum of reason could be treated this way as con-
vincing ones only if they find competent and comprehensible approval
at this forum. Arguments of prohibiting nature simply would lack
convincingness.
In a history of idea of law, politics and moral, the idea of
natural law has always played an important part. It has acquired
an essential meaning at present time, as well. It has happened
especially due to the fact that the global problems that humankind
is facing, and our moral obligations pro futuro would require an
urgent re-interpretation of humankind’s traditional principles as
well as those principles, which will arise adhoc. The proponents of
natural law and their opponents both are still arguing about the
core of those principles. Instead, the devotion will be directed to
the latter, as well to the main ideas of positive law, defended by
the opponents of natural law. More than often the real attention
in this dispute is paid only to the mutual accusations made by
both parties. I think that the New Enlightenment as a modus
vivendi, could come along between the supporters of natural law
and those ones of positive law. In the context of this dispute, both
sides could turn out to be ‘‘good people’’ who occupy themselves
with the establishment of perfect law. In their ‘‘eunomic’’ aspira-
tions, both sides could have a good starting position, however,
each of the sides implements its own, quite different strategies and
approaches. The eunomics of natural law, as well as of positive
law is necessary. The broad field of activity is therefore ensured for
both parties in order to cope with the problems de lege ferenda
and instructions for judicial and administrative decision-making,
especially in these fields, where a significant discretional space is
86 ILMAR TAMMELO

left for administrative decisions or there are several ways of

interpretations. The New Enlightenment is new in a sense that it
needs reason more than ever before for solving new problems.
These problems are bigger than all the preceding ones due to their
urgency, complicity. The path to this kind of Enlightenment is
thorny if we take our thinking habits – which were rooted in our
past, our conscious or unconscious intellectual prejudices, trammels
and blinkers – into consideration. My pessimism forces me to see
the world rather from the crying view of Heraclites than as the
laughing one of Democritus. Still, I can see the indications that the
humanitarianism that has been set up by demands of our time is in
the process of making, and I hope that it will sooner take a precise
shape. At least, it would justify the hope that we can get the things
in a way, on which we can decrease distress in this world. Given
by humanitarianism of this kind, we should dare to take big steps
keeping in mind the prudence ordered by the entire reason. We
have to take it into account that we are not doomed to step only
little steps in direction of this goal. We cannot afford it to our-
selves at the threat of destruction what we would draw onto the
neck, not only for the generations to come, but also for ourselves.
So, I hope that the Enlightenment, which stands in front of us, is
an obligation, which will become real philosophy of hope –
elpidology which would penetrate all this which has come anguish
along due to the course of the human things .at the present mo-
ment and which would lay the foundation for which we can jus-
tifiably hope.

3. JUSTICE AND OBSTACLES OF COMMUNICATION

Justice is a situative value and justice-related decisions are taken in

consideration only if the relevant feeling of value exists. The quality
‘‘just’’ cannot be simply deduced from a certain behaviour, a right or
a human. Instead, justice is abducted into these objects by means of
certain perceptive acts. So, objectivity in a strict sense cannot be
attributed to justice-related decisions. Their rationality finds its ma-
nifestates itself in the fact that they are inter-subjectively approved.
The relevant facts and values have to be made clear in order to
achieve the understanding of inter – subjectivity. This means that
justice in a most decisive manner depends on humane communica-
tion. Society, where communication takes place without disturbances
 ABOUT LEGAL PHILOSOPHY 87

and obstacles, promotes essential values from the point of view of

justice. This society shapes criteria which further shape ‘‘the consti-
tution’’ of justice. Besides, these values should guide human activity
to the inferior norms of justice in different domains and this guidance
enables to achieve the unity in concrete justice-related decisions. Yet
the obstacles of communication could cause confusion in value-atti-
tudes as well as in the relevant assessments. These will help to avoid
the fights held in the shadows for the sake of justice. Some miserable
obstacles of communication are similar to taboos. There is justice in-
depth concerning problems that are sometimes dangerous to speak
about, because of tough prejudices are related to those problems: the
hostility can even be brought about by pointing out that these
problems are relevant. By speaking about them, on simply is
addressing deaf ears. If someone still even dares to deal with these
problems, then this person will be considered and treated as an odd
man or even a dangerous heretic.
The envisaged situation of communication has always made my
thinking restless and thus has given a boost to some of my scientific
endeavours. I have not been able to speak sincerely, without any
problems, about everything what I have wanted to say about justice
and what I could have been said. I have postponed the publishing of
some of my writings or even given it up, partly on the advice of
compassionate colleagues. The taboos, which still dominate the do-
main of justice, have made it clear to me that the frontal attack –
directed against irrationality of justice that has cast a spell on our
coexistence – does not always need to reach its goal. The attacks of
this kind do not actually comply with philosophical modus operandi
which obliges the researcher to penetrate into the very depth of the
roots of irrationality. I will try to do it in this paper. Foremost, I will
sketch the general situation into which those are engaged, who ask
for theories of justice. Next, I will take in account some problems
concerning the taboos, which deteriorate the aspirations of justice.
The issues related to legal philosophy turn out to be edgy, if they
concern the life attitudes rooted in a certain society. The legal and
social institutions are not only endorsed by sanctions which will be
implemented upon the violation of norms. They are also (and even
foremost) endorsed by the conviction that they are inseparable from
social life as far as they to some extent justify themselves. When
someone dares to criticise them using the ideas of justice what has not
been tried yet, then even the best arguments will not suffice him, even
if he is ready for extreme experiments in social and political field.
88 ILMAR TAMMELO

These experiments can become possible only then if general suspicion

or revolutionary moods prevail in society. Then the rudder is grasped
by the personalities with irrational charisma. The others are ready to
pursue them even to death. The challenged institutions and the shield
of taboos that protect the ideas of justice will be then crushed and
fear in front of the re-arrangement will be achieved.

4. THE PHILOSOPHY OF JUSTICE

The aim of philosophy is to control and question everything which is

related to justice. The legal philosophy faces this task not only in an
extreme revolutionary situation. The aspirations of philosophical
contemplations are often not understood or they are misunderstood.
The revolutionary spirit that leads to destruction, is a driving thought
behind this philosophy. Hereby the circumstance should not be
overlooked that philosophical ideas may turn out to be very attrac-
tive to those who want to introduce social innovations which are
impossible to implement without violence and sufferings. Philosophy
of justice cannot confine itself only to the analysis of the problems of
justice, defining the term of justice and formulating the criteria of
justice that have been already generally recognized. One of its tasks is
also contemplating upon the dominating criteria of justice and
establishing new norms of justice.
Dealing with the normative questions of justice makes the position
of the philosopher who treats the issue of justice, difficult, especially
when the philosophers are aware of fact that dogmatism, ideological
infatuation and delaying intellect (intellectus cunctatus) as Francis
Bacon called it, belong to the very nature of philosophical esprit. The
real aim of philosophy is the studying of the foundations of objects
and the reasons; the real philosopher does not present challenges, but
inquires. Still the philosopher acting in the ethical and political field is
often treated as the profaner of old respectable habits of thinking or
even as an accomplice of the revolts. For a philosopher, it is possible
to make mistakes by choosing the path and to cause trouble by
erroneous consequences of thinking. Besides, a philosopher can affect
he society fatally, if his reasonable thoughts are misinterpreted, fal-
sified or distorted. Here we have to keep in mind that without risky
mistakes, it is hardly possible to undertake something progressive.
The ethnic units as well belong to the different subjects of justice.
These units are usually characterized by different language, religion,
 ABOUT LEGAL PHILOSOPHY 89

culture and certain life-habits. Sometimes the ethnic unit differs from
the others by its somatic features. Societies which have comparatively
indifferent attitude towards ethnical problems can be found among
great nations. These great nations consist of people having different
racial origin, different religions, different cultures and so on. At the
same time they are ready to adopt the elements of their own kind.
They often see themselves as a melting pot where the factors causing
ethnical differences are dissolved. In a contrast, there are such
societies that protect their ethnic integrity a lot and consider its
protection to be an issue of justice. The vulnerable problem of
ethnocentrism emanates from here, meanwhile racialism, one of
ethnocentrism’s manifestations, seems to have a bad reputation. The
taboo-like attitudes are somehow linked to the ethnical differentia-
tion as well to the moral commandment coming from the idea of
human dignity that requires denouncing such a differentiation. Thus,
as. we see, the contrary taboos collide. For legal philosophy, it is not
certain whose requirement from the point of view of justice has to be
taken in consideration, but the unity of humankind as well its
division and versatility are basic values.
The requirement based on the legal considerations – is to socialize
only with those with whom one feels affiliation and keep away from
those who are unpleasant, even if it is based only on irrational
incomprehension. At the same time the rationalisation in the sense of
Freud, often takes place when the apparent reasons are given. For
example, those from whom one wants to differentiate are inferior. All
this brings forth extremely complicated problems which definitely re-
quire in-depth scientific research and philosophical disposition. The
reasonable research as well as ascertaining the facts concerned and the
causes of values, turns out to be very difficult due to the prevailing
prejudices in this domain. For example, it is generally stated that all
humans are equal. This statement is grounded only on a fact that all
humans belong to the species homo sapiens and they have got common
features of the species. In many other senses, people are not equal. This
disparity does not confine itself solely to individual differences such as
talent, abilities, intelligence etc. The inequality also deals with ethical
individuality as well as dynamics of civilisation-forming and sponta-
neity. Treating all humans as equal – is not the absolute requirement of
justice. Sometimes the real requirement of justice – is just to take care of
those who are less talented, rather than of more capable ones.
The taboo-like conception prevails in the civilised world,
according to which, human shall not manipulate with human lives –
90 ILMAR TAMMELO

especially denouncing the termination of another person’s life, even if

this life means more sufferings or represents in itself only vegetative
existence, which for the person himself is rather a burden. The
eugenics as well will stumble before the sacredness of human life. The
eugenic measures refer to marriage prohibition, compulsory sterili-
sation and abortion. The requirement of human life sacredness is in
opposition to the requirement to increase the quality of this life, as
well the requirement of economizing the means that are at the dis-
posal of society. The requirement of freedom can be opposed to the
requirement according to which every person himself/herself can
make a decision about the value of his living. The scientific research
of the concerning factual situation and philosophical assessment of
the value-situation is aggravated by religious views, which ones are
neither uniform nor certain.

5. The Rule of Law and Communication

The idea of the state based on the rule of law has been re-located to a
specific place in our civilisation and there is taboo-like aura around it.
Posing it under question automatically brings about hostile reactions
and suspicion that the person poses the question(s) infected with the
political ideas that have acquired bad reputation. And still it is
apparent that the traditional principles of legal statehood cease to
function properly in present day situations. They are often used for
the sake of undermining legal stately situations and finally after all –
for the destruction as well. The other vital values of societal and
individual life -such as security and. freedom – are actually attacked
in the shadow of their protection. According to the principles of legal
statehood, the implementation of the stately power can take place
only in legally regulated framework of proceeding: the legality of all
stately measures is subject to judicial revision. These requirements are
without any doubt essential demands of justice. But justice also re-
quires the implementation of effective means for the protection of
state community and the people. This is often impossible due to the
ponderousness of traditional principles of legal statehood. Step by
step the understanding has been achieved, according to which we are
dealing with the crisis of the state based on the rule of law. The taboo
of integrity paralyses the aspirations to exert through-out control
over ideas and render them meaningful.
In extreme situations, especially during the war, the partly sus-
pension of legal statehood takes place. Due to the image of taboo that
 ABOUT LEGAL PHILOSOPHY 91

surrounds the doctrine of the state based on the rule of law, the
philosophical understanding that certain principles of the legal
statehood are sometimes suspended even during the apparent peace,
remains in the shadow. Namely, in case if the adversaries of the state
community endanger public and individual security. In this case,
loyalty is not any more sworn to lofty ideals. It is rather assessment of
the situation that leads to choosing the means which after all would
require from justice as few victims as possible. In principle, the
penetration into the private sphere of humans without sanctions,
have to be condemned, but only from a principal point of view. When
there is an urgent suspicion that the activity endangering public, takes
place in this sphere the measures incongruent with the abstract
principles of legal statehood still have to be exerted. Even in case of
these measures, it is possible to avoid the individual arbitrariness of
the representatives of state power if the control over the measures to
be implemented. Herewith we cannot underestimate the relative
importance of ‘‘the public opinion’’ formed by mass-media. This is
still of secondary importance.

6. Conclusion

The idea of justice is not linked to certain existing government form.

All forms of government have to be transparent from the point
of view of justice. It does not concern solely the different forms of
democracy, but democracy in general as well. The special reason of
this requirement emanates from the fact that the governing form
which is called democracy, functions improperly almost everywhere.
The taboo-like wall has been set up around democracy – this is the
wall against which bounces the principal reproaches towards the
democracy. In fact, the critical argumentation of democracy is dan-
gerous. In an attentive manner, the aura of democracy is more linked
to the outer shape than to the inner contents. Therefore, the idea of
democracy has quite different connotations in different parts of the
world. The particular forms of democracy (or rather a particular
governance form called democracy) are criticized in political con-
frontations always having recourse to the idea of democracy that is
understood in another way.
The principal idea of any democracy is active participation of the
people in state affairs. It is entirely reasonable to acknowledge that
this participation shall have its own limits.
92 ILMAR TAMMELO

The limits of people participation in state affairs come from the

fact that the knowledge, the understanding and the ability to
contemplate – which are necessary pre-conditions for many vital
decisions in the fields of state affairs – cannot be expected from the
people to sufficient amount. However, the unlimited competence of
the people to take political decisions will result in the governance
of non-experts. This would certainly contradict the interests of
people, as well the interests of the generations to come, about
which ones every decent state has to care. The philosophers who
deal with the idea of justice should not neglect the problem of
democracy. They have to ask for its ordinary institutions and even
think about overcoming them. The widespread and deeply rooted
conviction seems to contradict the fact that all governing forms
have already been tried in history but only democracy has sur-
vived. The elaborating spirit of the great thinkers of the past which
enabled them to establish the foundations of democracy probably
seems to have abandoned us for ever. Contemplating about
democracy and the governing forms appropriate for future we
would be taken by the leash of taboos.
The need for global political integration and even for certain world
governance becomes apparent, because the majority of the present
day problems are supra – or trans-national. The taboo paralyses the
aspirations for performing a such integration and blocks the hope for
better governance. This taboo is foremost caused by the image of
sovereignty. Requirement for national sovereignty at present day
seems to be more powerful than ever before, although more than ever
before the sovereignty is reduced in importance.
The taboo that protects the idea of sovereignty, at the same time
prevents the United Nations Organisation from occupying itself with
something for which the organisation is either called or competent.
At the present time, the way of reinforcing the competences of the
United Nations Organisation in the field of human rights is closed.
The same taboo foils the disarmament, as well as preserves the threat
of apocalyptical wars.
Those, who bless the compliment of sober realism, may be right
claiming that the advent of the world-state could not simply occur
in our days. This situation is mainly caused by the fact that just
those who claim this prophecy to be fulfilled, serve as priests to the
above-mentioned taboo. A closer examination of the background
of the idea of sovereignty will pluck away its wreath of honour.
This should be one of the essential issues of philosophy of justice.
 ABOUT LEGAL PHILOSOPHY 93

If the reason is not attached to foreground of the idea, it is not

possible to achieve the fundamental conditions of international
law. The aspiration for justice in supra- and trans-national rela-
tions remains mending tears forever in present situation, which has
constantly given rise to the present day relations in the field of
political activity. Unfortunately, the philosophy of justice is not
competent to enlighten something existential. The linguistic phi-
losophers have to strain themselves in order to eliminate naive and
emotional prejudices towards neutral international language of
communication. Legal linguistics has to demonstrate that the lin-
guists can better contribute to generating an appropriate plan-
language than the ignorandi of the past who laid foundations for
national languages. The philosophy of justice will be hereby
capable to demonstrate that the hegemonic establishment of any
national language as an international language of communication
is unjust as well.
The difficulty of speculating about the issue of justice emanates
from our devotion to the past. The dominating ideologies of present
time have been shaped by the thinkers, who could not reasonably
foresee the current situation of humankind. Even if they could not
foresee it – yet they still enjoy authority which is similar to the cult of
the dead. This cult is promoted by epigones who have not a courage
to think constructively, which is more appropriate for present day
and future.
It is willingly claimed that we live in the brave new era. Never-
theless the contemporary thinkers are not sufficiently great, in order
to cope with the challenges raised by our time. Mostly, they do not
have a spirit of daring pioneers, as one could expect from them.
Instead, they stumble in front of taboos.
Thus, the primary task of the philosophy of justice has turned out
to have its departure point in the cult of dead. This cult anguishes us
and therefore empowers the conditions for continuous and unob-
structed scientific research, which should result in developing a
philosophical disposition. In the process of conducting this research
and establishing a disposition, the dead ones will have a slightly
different influence. Some of them tried to accomplish ideas, perfectly
reasonable in themselves, but which have gone horrible astray and by
virtue of that caused unforgettable intellectual distress. Their intel-
lectual crimes have revealed the wrong path, and the relevant ideas
have been obstructed. As we can see, the power of dead ones upon us
still has a devastating effect. The question – how to get rid of these
94 ILMAR TAMMELO

taboos, – is the problem of strategy and tactics of philosophisation.

Especially psychology and sociology have to come here for assistance.

Law School
The University of Melbourne
Melbourne
Victoria
Australia