Two causes are responsible for our not doing this or believing it. One of them is as follows. That the deity is not a body has been demonstrated; from this it follows necessarily that everything that in its external [=literal] meaning disagrees with this demonstration must be interpreted figuratively, for it is known that such texts are of necessity fit for figurative interpretation. However, the eternity of the world has not been demonstrated. Consequently in this case the texts ought not be rejected and figuratively interpreted in order to make prevail an opinion whose contrary can be made to prevail by means of various sorts of arguments. This is one cause.

The second cause is as follows. Our belief that the deity is not a body destroys for us none of the foundations of the Law and does not give the lie to the claims of any prophet. The only objection to it is constituted by the fact that the ignorant think that this belief is contrary to the text; yet it is not contrary to it, as we have explained, but is intended by the text. On the other hand, the belief in eternity the way Aristotle sees it – that is, the belief according to which the world exists in virtue of necessity, that no nature changes at all, and that the customary course of events cannot be modified with regard to anything – destroys the Law in its principle, necessarily gives the lie to every miracle, and reduces to inanity all the hopes and threats that the Law has held out, unless – by God! – one interprets the miracles figuratively also, as was done by Islamic internalists; this, however, would result in some sort of crazy imaginings.

If, however, one believed the eternity according to the second opinion we have explained – which is the opinion of Plato – according to which the heavens too are subject to generation and corruption, this opinion would not destroy the foundations of the Law and would be followed not by the lie being given to the miracles, but by their becoming admissible. It would also be possible to interpret figuratively the texts in accordance with this opinion. And many obscure passages can be found in the texts of the Torah and others with which this opinion could be connected or rather by means of which it could be proved. However, no necessity could impel us to do this unless this opinion were demonstrated. In view of the fact that it has not been demonstrated, we shall not favor this opinion, nor shall we at all heed that other opinion, but rather shall take the texts according to their external sense and shall say: The Law has given us knowledge of a matter the grasp of which is not within our power, and the miracle attests to the correctness of our claims (Maimonides 1963, II, Chapter 25: 327–329).

In this case Maimonides does indeed give priority to the data of MRS, but only because WRS did not provide enough clear, unambiguous data. Here too the important thing is his general credo, which states that whenever WRS provides us with clear, unambiguous data we have to accept them and reinterpret the religious sources accordingly. Thus Maimonides has also created a combined hierarchical system, except that in his case the WRS sources have priority and the MRS sources are subordinate to them. He himself indicates an example of his use of this method – his willingness to reinterpret the Biblical verses whose surface meaning is that God has a body, so as to accord with rationalist philosophy, which claims that He does not.

Incidentally, Maimonides's method, involving a change in the concept of the Deity, is also a good example of what I discussed in Chapter Four above, about changing the boundaries of a concept. At first glance it would seem appropriate to ask whether Maimonides's God is actually the Biblical God. Doesn't the change in the concept of God lead to a situation in which the two texts – the Bible and Maimonides – are actually talking about different objects? The answer to this is not unequivocal. Let's take it as a premise that the author of the Biblical text meant the literal ("external") sense of its words, as understood by the common people. Now, if Maimonides and the common people shared the same system, we could say that Maimonides had taken an accepted datum from his cultural community and attempted to change it out of a new understanding drawn from the sources of that system. But since Maimonides actually tried to subordinate this system to another one, which is not shared by the common people, it is very likely that he was trying to introduce a new term in place of the old one, taking advantage of the old term's prestige within the cultural community (in the way that Spinoza's use of the word "God" should be understood). However, the fact that Maimonides seems to truly and sincerely consider his concept of "God" to be the same one that is transmitted by the Bible shows that he considers himself as drawing from the same religious system as the community he belongs to, and is merely trying to "amend" this concept from within, as it were.

It should be added, that the basic idea of the "double-faith" theory is shared by some of the contemporary philosophers of religion. Most notable is Alvin Plantinga (born 1934), whose theory attempts to meet the challenges of evidentialist criticism and prove that religion is rational (Plantinga 2006 and other works). William Alston (1921–2009) contended that religious experience is not significantly different from sensual perception, and therefore should be admitted as one of the sources of WRS (Alston 1991). Theories of "religious epistemology" suggest that we can offer rational justification to religious truths if we only recognize that slightly different rational standards than the ones that apply to philosophical and scientific knowledge should apply to religious knowledge. One of the most intriguing theories in this field, and one that speaks in a language quite close to Source Theory, is Zagzebski's theory of "epistemic authority" (Zagzebski 2013). Zagzebski claims that there are moral as well as epistemic good reasons to trust not only our own capacities, but also that of others. This, she continues, may give epistemic justification to religious beliefs. We can easily identify Zagzebsi's concept of "trust" as a form of "source adoption", in our terminology. If so, in Zagzabski's theory the religious sources are not adopted as superior sources but only authorized by virtue of arguments in WRS, and thus adopted only as subordinate sources of that system. Thus, MRS becomes a subsystem within WRS. In this way a full compatibility between the two is achieved (at least in principle), in the spirit of the "doublefaith" theory.

# **The separationist approach**

This is actually a family of approaches, which claim that the sources of one system should be adopted for some particular purposes and the sources of another system for other purposes. In terms of Source Theory, these approaches suggest compartmentalizing mechanisms. There can clearly be many different ways of compartmentalizing, but for our purposes we will concentrate on the approaches that separate descriptive data (called "beliefs" in MRS) from normative data (called "commandments" in this system). I will call this family of approaches "separationist" (following Rosenberg 1988), but two the specific forms I will discuss here, both relating to the Jewish context, is the one known as "orthopraxy" and the one I will call "Orthopistism".

"Orthopraxy" is the name often used to describe the approach that attempts to draw only normative data from MRS and disregard it descriptive data. If N denotes the set of normative data, this approach can be formalized as follows:

$$(\mathtt{m}11.1 . (((\mathtt{q} \in \mathtt{N}) \leftrightarrow (\mathtt{m} \sqsupset \circ \mathtt{q} \to \mathtt{q})) \land ((\mathtt{q} \notin \mathtt{N}) \leftrightarrow (\mathtt{m} \lnot \lnot \lnot \lnot \lnot \lnot \lnot \lnot \lnot)))$$

or, in short:

m11.1::((∈N/m7),(∉N/m8))

The most radical proponent of this approach in modern Jewish thought is Yeshayahu Leibowitz (1903-1994). He claims that any attempt to draw descriptive data from the Bible is an attempt to make use of it to satisfy human needs. He considers this an inferior religious commitment. In contrast, his religious ideal is that the Bible should not serve as a means for satisfying human needs, not even the need for "scientific information", but only for religious imperatives to serve God – that is, the practical commandments. He puts it this way:

Does religion provide information? This was considered obvious in the Middle Ages, when thinkers did not distinguish between information and meaning. The meaning they attributed to reality was embodied in the information they had, or thought they had, about the world. ... But now we draw information without any meaning from science, and we are not obligated to attribute any informative content to religious thought.

We have a source of information, which is science, and from a psychological standpoint the information it provides imposes itself on the mind of anyone who understands it, since no one is capable of not knowing what he knows. The basic, determining factor of religious feeling and awareness is not the information that can, or cannot, be extracted from religion; rather, it is the fact that the essence of religion is **a demand presented to the individual: to worship God.** This aspect of religious belief has, of course, always been the essence of Judaism, although nowadays it is likely to be more salient than it was in the Middle Ages, when people attributed informative meaning to religion as well.

If we derive our information from science, which is independent of beliefs and values, then the world of people with the awareness that they are standing before God is not the same world that they grasp through the information they receive; rather, their religious awareness is concentrated on the point of obedience to the demands that this stance implies: accepting the burden of the Torah and the commandments. The essence of religious belief is not the **knowledge** that something is a fact; it is what the religious person **determines** and **decides** (1992, Chapter 13; emphasis in original).

Thus Leibowitz sees the Bible as the source of normative, but not descriptive, data. He claims that descriptive data should be drawn from WRS, which relies on the basic cognitive tools, and especially from science, which is a subsystem of WRS. He does not, however, consider this system to be a source of normative data.

The opposite separatist approach can be called "orthopistism".. This approach sees the holy texts of MRS as sources of only descriptive statements (beliefs), while it considers the basic cognitive tools as the source of normative statements. In the Jewish context discussed here this approach can be described as non-halakhic. If D denotes the set of descriptive, this approach can be formalized as follows:

$$\text{m11.2:} \left( \left( \left( \emptyset \ominus \mathbf{D} \right) \leftrightarrow \left( \mathbf{m7} \colon \emptyset \to \emptyset \right) \right) \land \left( \left( \emptyset \not\in \mathbf{D} \right) \leftrightarrow \left( \mathbf{m8} \colon \emptyset \to \emptyset \right) \right) \right)$$

or, in short:

m11.1::((∈D/m7),(∉D/m8))

As far as I know, no Jewish thinker has ever made such a radical statement. The closest position to this approach in the Jewish world is that of some early thinkers in the Reform movement. One of the pioneers of this movement, Saul Ascher (1767-1822), expresses this view as follows:

It seems, as will be explained later, that at first the Eternal God did not plan to give the Jewish people laws in the full sense of the word. If He had chained the weak powers of the nation with laws, He would have tested their tolerance too severely and caused them to sin without reason (Ascher 1792, Volume 2, Chapter1).

### In Ascher's view, the Torah is not a source of laws, but mainly of beliefs:

If we carefully consider what we have deduced and developed from the Torah, we will find proven what we proposed at first – that belief is the prior condition for any revealed religion.

We see that faith was in decline from the time of Noah until a certain generation of his descendants. The Torah describes Noah in only one way – as a person who walked in the way of God. Nature had thus granted him a stronger faith than was common among other people. This faith was the condition for the Divine revelations he received, and he never refused, even for a moment, to act according to the command of the revelation.

Second, what we have discussed so far shows that religion lies at the basis of Judaism. This means that Judaism includes a method by which a particular human society becomes accustomed to defined concepts, and all its members are required to understand these concepts the same way. The true, sublime goal of every religion is to provide people with certain truths and describe them in a way that is more understandable than they could grasp as children.

Third, we see that God chose revelation because human beings cannot understand the truths with their own understanding, without any intermediary. Revelation created more interest in these truths and caused people to adhere to them more strongly.

Fourth, at the time in Jewish history that we have been discussing, we have seen that faith was merely regulative as a condition for revelation ... All people had the same traits – they only knew one way to go. Therefore God did not need to use threats to compel the people to hold their faith. He merely gave them signs. A particular event or vision was enough to strengthen their faith. This was the case with the crossing of the Red Sea; when the Israelites saw the doomed Egyptians behind them, in the words of the Bible, "They believed in God and in Moses His servant" [Exodus 14:31].

All this makes it clear that Judaism is a revealed religion. That is, God chose Judaism as a means of teaching some people to think in a different way. This is how the concept of "revealed religion" should be understood (ibid., Chapter 2).

A first glance, it seems that Ascher is saying that the Torah is also a source of norms, but that these are not "laws" (influenced by Kant, he vehemently opposes the "statutory" character of traditional Judaism), but rather abstract values. However, a deeper look shows that these values are moral ones, which he (and his contemporaries) considered to be deduced from universal reason. Thus, in the realm of norms, Ascher is not using MRS but rather WRS. According to his declared compartmentalization, MRS is purely a source of beliefs, while the "commandments" are drawn from WRS.

Here we can ask if Ascher was really loyal to MRS in the realm of beliefs. If he had been faced with the more modern problems of the conflict between science and religion that came up some decades after his time, would he have adhered to the Torah as the sole source of beliefs and rejected science? It would not be prudent for me to speculate about this, but it does seem probable that in such a case Ascher would have rejected the beliefs provided by MRS in favor of those provided by the scientific subsystem of WRS, as did most Reform thinkers in the following generations, whether by rejecting the religious beliefs explicitly or by reinterpreting them according to the prevailing scientific beliefs. If so, Ascher's compartmentalization is not absolute; however, it is not the specific individual that we are focusing on here, but rather the ideal type that we can delineate through Ascher's writings.

In sum, both methods of compartmentalization – the orthopraxic and the orthopististic – represent attempts to preserve the two systems in parallel, even if they actually do both systems a disservice, since each system considers itself a total one, and such a separation cannot be justified. Even though two of the thinkers cited here tried to justify their methods within MRS, it seems to me that they used a manipulative interpretation of the system's data in a way that was dictated by the sources of another system – that is, WRS.

### **The double-truth theory**

Finally, we will consider the double-truth theory, which was developed in medieval philosophy, but did not acquire many supporters. Siger de Brabant (c.1240–c.1284) and Boethius of Dacia (13th century) were accused of accepting it, but probably did not really embrace it. One of the very few who openly held this theory was Isaac Albalag (13th century), who was one of the most impressive Jewish thinkers of the Middle Ages (even though he has not been given much scholarly attention). In a certain sense, he developed the initial nucleus of Source Theory, which was one of the inspirations for the theory presented here, and he did this clearly and systematically. His book, *The Emendation of Opinions*, which was written as a commentary on Al-Ghazali's book, *The Opinions of the Philosophers*, deals with the two systems, MRS and WRS. He calls rationally-attained knowledge "demonstration" or "the natural way of thinking" and knowledge drawn from Scripture the "prophetic or miraculous way of thinking". As with most medieval philosophers, the main issue he discusses is whether the world is created *ex nihilo* or is eternal. On the philosophical, rational level, he suggests his own solution, which he calls "the perfect creation *ex nihilo*" – a clearly manipulative extension of the term "creation *ex nihilo*"*.* This solution is that the world is contingent, and therefore depends on God at every moment, but in actuality it has always existed without any starting point in time. He is aware that this idea is closer to the idea of the eternity of the world than to the simple Biblical notion that the world was created at a point in time. He claims that he could reinterpret the Bible allegorically to fit his notion, and he even provides an example as a sort of intellectual exercise, but he insists that this is not the proper way to deal with the issue. Instead he presents a different way of treating the two systems, which was called, centuries later, the "double-truth theory" (as distinct from the double-faith theory discussed above). This theory states that we should hold both systems in parallel and take a *non liquet* approach to them. In the language of Source Theory we could formulate it as:

m12: m8/m9,

which means:

m12:(m12:m8∨m12:m9)

Albalag describes this theory as follows:

One should learn truth from demonstration, and then consult the Torah. Now, if its words are in conformity with the demonstrated doctrine, we shall admit it into our belief both in virtue of demonstration and in virtue of faith. If no scriptural text can be found to support the demonstrated doctrine, we shall believe it in virtue of speculation alone. Finally, if a scriptural text is found to contradict this doctrine, we shall similarly believe the literal sense of the text in the miraculous way [of thinking], while bearing in mind that the doctrine of the scriptural text in question is alien to our [rational] knowledge only because it is one of those divine doctrines reserved for the prophets to understand, and depends on a supernatural capacity. It is in this way that you shall find my rational opinion contrary to my faith in many points, for I know by demonstration that such a thing is true by the natural way [of thinking] and I know at the same time by the words of the prophets that the contrary is true by the miraculous way [of thinking].

Moreover, even if I confirm that the demonstrable doctrine is compatible with a scriptural text, I am not certain that this is the veritable intention of the text, and not another. Therefore I do not claim to believe in the truth of the biblical exegeses that I have been able to provide here, nor to teach them as a belief that I transmit to you. Rather, I meant to show you that the speculative doctrines are reliable, and that scripture can accord with them just as much as it accords with their contrary, and perhaps even more.

The reason I did this is that you should not be one of those who rush to deny speculative doctrines because of what seems to them at first glance to be the opinion of Scripture, since they try to corroborate this opinion by arguments that they believe to be stronger than those of the philosophers' … and think their own arguments to be demonstrative, although they are definitely not. There are many people who follow this path in every nation, even in ours, and even our master Moses [Maimonides] is one of them. These people failed twice: once by denying the speculation and claiming that it was non-demonstrative; and secondly by claiming that their own idea was what the prophet meant. I mentioned at the beginning of the book that the our understanding cannot grasp the intentions of the Torah beyond any doubt, for just as only a philosopher can grasp the intent of [another] philosopher, so only a prophet can grasp the intent of [another] prophet. The reason [for this] is that their ways of understanding are different from one another – indeed, opposite to one another, since the latter conceives the intelligible through the senses while the former conceives the sensual through the intellect.

Undoubtedly, just as their ways of understanding are very different, so the contents of their understandings are very remote from one another, so much so that one may conceive from below the very opposite of what the other conceives from above. Therefore we should not question one from the viewpoint of the other; rather, the wise man should believe the one when his argument is based on demonstration and accept the words of the other in the way of simple faith. And even if the statements of the one contradict those of the other, one should not reject these in favor of those, for one of the virtues of religious belief is that even if it is refuted by [rational] demonstration it is not denied the possibility of being true, since what is [conceived as] impossible under the laws of nature from the standpoint of logical investigation may be affirmed as a part of the Lord's powers by prophetic understanding … Therefore there are numerous things that are conceived as impossible by the speculative knowledge, yet are conceived as possible by Torah knowledge. Moreover, there are things that the philosopher can grasp in his investigations that cannot be grasped by the prophet through prophecy, but only insofar as he is engaged in rational investigation. And this is not because prophecy is deficient [in comparison to rational thinking], but rather because it transcends it. (Albalag 1973, Chapter 30; translation based partly on Sirat 1985: 241).

When Albalag claims that prophecy should be given priority over rational thinking, he is merely paying lip service to the concept. He actually believes that those who are not prophets, and therefore cannot clearly understand what the prophets are saying, should not give the words of the prophets any supremacy over the data transmitted by rational inquiry. Rather, they should continue to make use of both systems in parallel. Moreover, he insinuates that if the common people thought rationally, they would come to the same conclusions that he himself reached through the use of WRS, and then it would be clear that "their [rational] opinion is undoubtedly my opinion and the belief of the Torah is my belief, the one according to the natural way and the other according to the miraculous one. And if you understand what I am saying, then you will know that my opinion is true and my belief is true".

Albalag seems to be discussing only the descriptive data of the two systems, but he does not say this explicitly, so I will take the liberty – at least for the purposes of our theoretic discussion - of interpreting his comments as referring to all aspects of the systems – their descriptive data, their normative data, and any other data they may transmit. Under this interpretation, Albalag is presenting a method that clearly adheres to the principle of the purest utilization, which was presented above (Chapter Four) as the recommended method for people who are looking to adopt a source model. This principle stated that every person must utilize all of the systems he is capable of utilizing, and only those systems. To remind ourselves, the following secondary principles were derived from it:

The conservative rule: A person should stay with his native system unless he can no longer maintain his adoption of it.

The separation rule: A person who has two or more native systems should keep them all without trying to combine them.

The exhaustiveness rule: A person should be maximally knowledgeable about his or her native system, its basic sources, and the division of labor among them, and should try to receive the maximum amount of data that the system can provide him. The same is true in the case when a person has more than one native system**.**

As I deduced above, the result of this principle and the rules derived from it is that people who have a psychological attachment to two or more systems are in a permanent state of *non liquet* with regard to these systems.

Albalag seems to systematically hold this principle and the rules derived from it. It would seem that he was fully and deeply acquainted with both MRS and WRS, and that he had formed a psychological attachment to each of them. He felt a deep identification with each system, understanding its internal logic and self-justification, and he considered it unfair to distort either system or reject parts of it in favor of the other in an attempt to achieve a forced harmony between them. He therefore held each one separately, acting as if each one were a different computer program. He would input a question into each of the programs to see what answer it would provide on the basis of its sources. He would then compare the outputs, but would not attempt to decide between them, since he had no non-arbitrary way to make such a decision. He therefore chose to keep each one separately, in a state of *non liquet*.

Some people feel uncomfortable with this approach, considering it a form of intellectual split or compartmentalization. After all, the critics say, Albalag was a human being who was unlikely to be able to maintain absolute neutrality between the two systems. Thus, whenever their basic sources would have provided him with conflicting data, he would probably have felt a greater psychological attachment to the data of one system than to those of the other. However, on this issue Albalag, fortunately enough, was not a modern thinker. He was not interested in the existential question of whether the self identifies with "its truth", but rather with what the truth itself is. Indeed, he would have been willing to sacrifice his psychological needs and intellectual comfort for that "truth". Moreover, he would even have been willing to sacrifice his own sense of psychological integrity for the sake of preserving the integrity of the systems that aspire to provide that truth. From his standpoint, even if he felt a greater psychological closeness to the data of one system than to the contradictory data of the other, this sense of closeness is not evidence that these data are more true, but only of the subjective psychological state of the system user.

However, even if it was not Albalag's main intent, his approach paradoxically also satisfies some deep existential sentiments, maybe even deeper than the need for harmony between sources. Anyone who has become deeply acquainted with both WRS and MRS, as Albalag was, is aware of the immense cultural and intellectual forces that they contain. Anyone who fully and sincerely allows himself to absorb these forces will find it difficult to identify with radical secular messages of the sort proposed by d'Holbach and Russell or radical anti-rationalist messages of the sort proposed by Loyola, Luther, Rabbi Nahman, and the like. Anyone who is truly familiar with a religious tradition and is acquainted with modern believers can no longer say that such traditions are based solely on fear, just as anyone who is familiar with WRS can no longer say that its only purpose is to release people's "desires" and evil inclinations. The roots of the two systems are different. WRS maintains a cautious trust in the basic cognitive tools, under the assumption that these sources are after all more reliable than authorities who presume to transcend them, while MRS maintains a great deal of distrust for these cognitive tools, both in view of their limited capacity and in fear of the influence that undesired sources may exercise upon them. Rather, MRS favors the data transmitted by sources that are considered reliable, having passed the test of time, and are said to be traced back to a supernatural source, which is free of the limitations and weaknesses of human nature. Now, since the adoption of a source model is to a great extent a function of psychological attachment, the question of trust is a crucial factor in it, as every individual adopts a source model according to the trust that he has in it. However, when a person is closely acquainted with both of the systems to more or less the same degree, he can understand the internal logic of both of them and can develop a psychological attachment to both.

Indeed, the model presented here for the philosophy of religion, which was illustrated for two particular systems, is equally applicable to the relations between any two systems that a person becomes deeply acquainted with and with which he identifies. Source Theory makes it possible for people to live in two worlds, as it were, on the condition that they become accustomed to replacing the Kantian question "What can I know?" with the question "What can I know within each of the systems that I am able to operate?"

### CHAPTER SIX

# **Source Theory and the Philosophy of Law**

#### **The law as a subsystem**

The law is a compartmentalized subsystem within every developed culture. In most (if not all) of those cultures we can find a definite, separate set of data that are known as laws. These data are transmitted by unique sources – the legislature, the courts and the like – that are not identical to those of the larger system, though not completely detached from them. These sources not only transmit the data, but also determine their being laws (the rules of recognition, in H. L. A. Hart's terms). In jurisprudence they have for ages been termed "sources of law", a terminology that anticipated that of Source Theory, and so it almost invites an analysis in terms of Source Theory.

Indeed, problems in the philosophy of law too can be expressed, and perhaps even solved, in terms of Source Theory. Since I cannot discuss all possible legal systems here, I will choose for my test case the modern legal system – the rational, Western one, a subsystem of WRS – which most of philosophers of law have considered. Here, too, I will not discuss a specific legal system but will take an ideal type as an object for analysis. This can be called the Western Rational Legal Subsystem. Nevertheless, at least some of the arguments I present here are true, *mutatis mutandis*, of more traditional legal systems as well.

Even though in every culture the law is a subsystem of the general cultural system, it does not always have the same degree of attachment to the parent system. Max Weber (1978, Volume II: 656) distinguished between formal (or formalistic) and non-formal systems. He defined a formal system as one that does not decide the law "upon an ethical, emotional or political basis" (ibid). To formulate Weber's stand more sharply and more radically (even if Weber himself would probably disapprove of this alteration), we could say that the Weberian ideal is that of an autarchic subsystem detached from the parent

#### **How to cite this book chapter:**

Brown, B 2017 *Thoughts and Ways of Thinking: Source Theory and Its Applications.* Pp. 103–117. London: Ubiquity Press. DOI: https://doi.org/10.5334/bbh.g. License: CC-BY 4.0

system, which is supposed to provide data from within itself. At first it would seem that it is supposed to provide an answer for every legal question without using any additional sources; and, indeed, Weber defines the formal system as "gapless" (ibid.: 657–658); However, as we shall see, such complete detachment is impossible, and the most that one can consider is the maximal degree of detachment.

We begin the discussion with the fundamental question of all political or legal philosophy, the question of authority. Afterwards we will discuss the sources of judgment and the application of judgment to facts.

### **Authority and its justification**

The problem of authority is one of the oldest and most important in political philosophy and the philosophy of law. For the purposes of the present discussion we will define authority as one person's right to obligate another individual to obey his orders. This person could be a king, a legislator or any other person who claims to have legal authority. (Actually this applies, *mutatis mutandis*, to ethics as well, even though it was not legislated by any particular person, but for this reason we will leave it out of the discussion, to avoid complications). The question it raises is thus what gives the former person this right. The answer to this question, insofar as the responder affirms that this person actually has such authority, is that he has gained it by virtue of principle p. p is a sentence, and therefore it is transmitted by a source – let's call it d. The real authority behind p is therefore d. If d is a person, we can ask further who or what gives him/her that authority, and so on. In terms of Source Theory, a person with authority is nothing but a source (of orders), while the people who obey him have adopted this source (whether by choice or coercion). Thus the problem of justifying authority is parallel to the problem of justifying adoption in Source Theory. Both involve an infinite regress in a peculiar version stemming from the source-datum relation (See Raz 1970: 102). The principle p can therefore be considered the **authority justification principle**. (In philosophical discourse, the term "legitimation" is generally used to denote the justification of authority, so I will use it occasionally in place of "justification").

The legal philosophy that seems most suitable to Source Theory is Hans Kelsen's Pure Theory of Law (Kelsen 1965; see also Kelsen 1961, Chapter 10). Kelsen described law as a hierarchic structure of norms often equated to a pyramid. In this structure, most of the norms attain their validity from "higher" norms. Thus, municipal enactments attain their validity from the law of the state and the law of the state attains its validity from the constitution. At the top of every such system there is a basic norm of "You must obey x" that gives validity to the entire system. In a monarchy, for example, x is the king, but if some rebel topples that king, that basic norm will soon be changed. The basic norm itself is not justified by anything further; otherwise it would not be basic. As the ultimate justification for all the norms in the system, the basic norm cannot itself be subject to justification. It has been rightfully contended that Kelsen's theory is one of legal-theoretic foundationalism. It has received numerous critiques, many of them attacking it exactly for its foundationalist character. Source Theory can provide some defense for Kelsen's theory, but not in its entirety, as will be discussed below. The basic norm can be described as none but an adoption sentence, and the x of the basic norm is none but a superior source in the source model of the legal system. There is, however, one important distinction: in Kelsen's theory, law is a system, while in Source Theory, law is a subsystem. This is not just a matter of labeling. Kelsen is completely indifferent to the cultural environment in which law is established and of which law is a part. Being a staunch positivist, he is eager to detach law from morality, viewing the basic norm as not a moral norm but a "pure" legal one. He therefore also detaches law from the normative conventions of the society in which law works. These norms, however, are those that give the basic norm, and therefore the whole legal system, its legitimacy. Legitimacy is the sociopolitical twin of the epistemological "justification". As a result, these legitimizing norms prove superior to the basic legal norm. This point will be addressed further below in this chapter.

But the applicability of Source Theory to law does not necessitate a full commitment to the Pure Theory of Law over other theories. Kelsen's idea of a basic norm is not very far from H. L. A. Hart's "rule of recognition" (Hart 1961, Chapter 6; see the analysis in Marmor 2011, Chapters 1–3). Although Hart himself alluded to differences between the two concepts (Hart 1961: 105), it is quite clear that both of the rules serve as foundational elements of the legal system and can be considered adoption sentences. The claim of Bentham (1945, 1960) and Austin (1995) that the sovereign is that foundational element can also be reformulated in the terms of Source Theory, i.e. that the sovereign is a superior source in the model. Raz (1970), who coined the term "chain of validity" to describe the order of authorization in a way quite similar to our "chain of adoptions", claims that usually legal systems are defined by more than one source of authority (see Raz 1970, 1986, 1990), and so his theory calls for its reformulation in terms of "source model". In light of the insight I presented in Chapter Three, which claims that the issue of adopting a source or a system is essentially normative, we can say that the issue of the justification (legitimation) of authority is almost fully parallel to the issue of the justification of adoption.

In modern political philosophy, several principles have been suggested for justifying authority. Each of theories that have been presented in the history of political philosophy, such as those that determine the justification principles by "natural law", "social rules", "the social contract", or "the divine right of kings", assumes that its particular principle is self-evident. There is, however, reason to ask what the source of this principle is and what justification there is for its authority. To be precise, the source of this justification is not merely a truth source, but also an authority source, since it demands obedience, and, in this case, obedience to its command to grant authority to the authoritative body it "chose" by virtue of the principle it transmitted. As in epistemology, there is no escape here from the claim that the last justification is always internal – that is, arbitrary.

An especially interesting theory on this issue is offered by Joseph de Maistre, according to Owen Bradley's interpretation (1999, Chapter 5; its grains can be found in Huber 1958 and Lebrun 1965). Although this interpretation does not seem to be perfectly faithful to the French philosopher's thought, it is too brilliant and challenging to be abandoned; for precision's sake we will therefore call it the "Maistre-Bradley theory". To sum up the theory simply and briefly, it claims that all authority was originally acquired by force – that is, by violence (a similar theory was previously suggest by Paine 1792, who used it to mock the traditional authority, and later by Freud,1933). When this authority is maintained over time, it acquires legitimacy, which makes violence unnecessary. On the contrary, this legitimation is intended to deprive others of the right to use violence so as to obtain the authority. For this authority to become established, it must hide its historical roots. Therefore real authority can never be based on a particular event or document, but rather on a hidden, unrecognizable source. This provides the authority with a mysterious aura of "holiness" or "divinity", which makes it self-evident and allows it to be accepted. To quote Bradley:

[L]egitimacy does not derive from "birth" but from simple longevity: "Everyone knows that there are fortunate revolutions and usurpations very criminal in their beginnings, to which, however, it pleases Providence to affix the seal of legitimacy by a long position". Maistre indeed expresses the suspicion that no great power has origins as "humble" as they might appear: "At the present day, with our philosophy, all our civilization, all our fine books, there is not, perhaps, one European power in a position to justify all its possessions in the face of God and Reason". …

Maistre presents this same general claim in an even more provocative form. In the early history of constitutions, "everything reduces to what I have called *legitimate usurpation*; the sovereign acts, obedience is general, tranquil, and constant; the option, if there is one, is particular, turbulent and temporary; finally, the sovereign sits down, and on his throne is written: I possess because I possess". This is legitimacy!

For Maistre the beginnings of sovereignty, its "birth", if not its acquired name, are always illegitimate: hybrid, puny, inglorious, vague, and bloody (Bradley 1999: 112–113).

Despite this theory's cynical charm, however, it does not provide a solution for the essential problem. In effect, it gives up on the possibility of justifying authority. If violence is the justifying principle, then we can ask what justifies this very principle. One may suggest that the justifying source is some "unknown source", but this does not advance us any further. Its invisibility may make it an effective practical instrument on the level of the Machiavellian enterprise (which the Maistre-Bradley theory discusses), but it does not provide any answer on the level of philosophical justification. On this level, an unidentified source not only fails to serve as a good justification for an argument, but may even weaken it.

We therefore come to the same conclusion here about the concept of authority as we did in the epistemic arena about the concept of truth. This concept is meaningful only within a particular system whose basic sources are the ones that transmit the justification principle. The basic sources themselves do not need to be justified, since their justification is necessarily internal, that is, arbitrary. This characterization, which is pertinent for logical systems, is also correct, *mutatis mutandis*, for the social arena, where a cultural system is involved, and consequently for its normative subsystems. All of the "truths" in the system are those that it transmits and endorses, including normative truths. One of these truths is authority. This is the root of the centralized authority of the state (which is sometimes called "sovereignty"), including the authority of its various powers, one of which is the law. Since the law is also a system, it should be seen as a subsystem of the cultural one (see Mautner 2011, and the different approaches and rich references presented there).

Since the law's authority is derived from that of the cultural system, a situation in which the legislature enacts norms that are at odds with values accepted in the cultural system is quite problematic. Such a situation can be defined as a contradiction between two norms within the same cultural system: a substantive norm, which in this case is a value accepted by the cultural system; and an "empowering" norm, which is the one that authorizes the legislature to enact laws. As in cases where there are contradictions among the data in the epistemic arena, the source model is called upon to solve the problem through the division of labor, particularly through the hierarchy. The nature of the hierarchy that can accomplish this is the subject of the controversy in the philosophy of law between the naturalists (who advocate the theory of natural law) and the positivists. The former place the substantive norms higher on the hierarchy, with the empowering norms subordinate to them, while the latter advocate the opposite order.

#### **How laws are made**

The legal process is one in which the law is applied to the facts. There are thus two levels of discussion, that of the law and that of fact. The faculty of judgment is apparently the sole factor in this process, since the legal process connects general norms to individual cases through *modus ponens*: All those who steal things are liable to three years' imprisonment; John stole something; therefore John is liable to three years' imprisonment. This is the traditional conception of the legal process. Although Hage (1996) suggested a different calculus, based on a nonmonotonic logic, which claims that judgment is defeasible, for the purposes of our discussion I will ignore this novel idea and merely note that the essence of what I have to say here can be applied, *mutatis mutandis*, to this new logical conception of the legal process as well. I will therefore base my discussion on the conception of the legal process as the application of *modus ponens*. However, we must first understand how this is done, by analyzing the way the courts determine each of the levels, that of the law and that of the facts.

Judgments are determined by their sources. As I mentioned above, the term "source", which we have been using throughout all our discussions in this book, was developed mainly for the theory of law, and the term "sources of the law" was probably used in jurisprudence much before the term "sources of knowledge" was commonly accepted in epistemology. The classic theory of law recognizes various sources of law: written law, which is enacted by a legislative body; precedent, which is determined by the courts; custom, which is generally decided by the community, or at least by parts of it; and the like. The two great traditions of Western culture – the Continental and the Anglo-American – have been divided on the issue of the hierarchy of these sources. However, in most modern law systems the written law has the highest status in the hierarchy, while precedent and custom are valid only through its force. In any case, this will be the starting point of our discussion here, if only for the purpose of simplification.

Since the law is a general norm, from the standpoint of Source Theory it is a general datum. Underlying the laws are values, or principles, which the legislators seek to protect. In the simplest cases, each law embodies one value, but cases of this sort are actually very rare. In general each law embodies a number of values, as well as the balance among them as determined by the legislature. Since a logical analysis of the layers of such laws would be very complex, we will consider a very simple example here. With such an example, where the legislators are defending only one value, the defense is categorical. Thus the defense of this value takes the form, "Any action that is contrary to value v is prohibited", or, in more extreme and very rare cases, "Any action that promotes the value v is obligatory". Nowadays legislators generally do not express their orders in terms of prohibitions or obligations, but rather in terms of the sanctions to be imposed on anyone who acts in contradiction with the stated order. This is quite clear in criminal law, but it is also true of civil law, in which the protected value is generally private property and the sanctions are generally of the civil sort. As a result, prohibitions are now expressed in the form, "Those who perform act w will be sanctioned in the following way", while obligations are expressed in the form, "Those who do not perform act w will be sanctioned in the following way". However, this change of form should not divert us from the true normative content of the law, which is a prohibition or an obligation.

Consider, for example, the law that prohibits discrimination in hiring. The value that the law is protecting is equality. We can therefore analyze the layers of the law as an argument with this structure:

Acts that are opposed to the value of equality are prohibited. Discrimination in hiring is an act opposed to the value of equality. Conclusion: Discrimination in hiring is prohibited.

Let us analyze this argument with the classical distinction between normative and descriptive statements (ignoring its philosophical difficulties for the moment). In this example, both the major premise and the conclusion are normative statements, while the minor premise is a descriptive one. This is the case because it states that the concept "discrimination in hiring" is included in the concept "an act opposed to the value of equality". Even though this statement refers to normative concepts, it expresses the relationship between the concepts, which is a descriptive one. We can therefore say that the analysis of the law has the following layers: a normative major premise, which determines the higher norm, or the value; a descriptive minor premise; and a normative conclusion. Thus the justification of the law requires the following sources: one that justifies the higher norm; one that justifies the description; and one that justifies the logical deduction, that is, the conclusion.

Now consider the following example:

Acts that are opposed to the value of not risking human life are prohibited.

Driving at more than 70 mph is an act that is opposed the value of not risking human life.

Conclusion: Driving at more than 70 mph is prohibited.

In this example, too, the major premise and the conclusion are normative statements, while the minor premise is a descriptive one. However, the minor premise is not transmitted by the analysis of concepts but rather by experience – that is, the senses, with the aid of abstraction, which tell us that driving at more than 70 mph risks human life.

In ordinary legal proceedings, the major premise is a general datum, i.e., a sentence with the universal quantifier, while the minor premise applies it to a particular person. For example:

All those who steal are liable to three years' imprisonment.

John stole something.

Conclusion: John is liable to three years' imprisonment.

However, we can also imagine a case in which the minor premise is also general:

All those who steal are liable to three years' imprisonment. All politicians steal.

All politicians are liable to three years' imprisonment.

In a case of this sort, the conclusion, too, is a general datum, and therefore a law. This allows it to appear as the major premise of yet another syllogism – for example:

All politicians are liable to three years' imprisonment. John is a politician. Conclusion: John is liable to three years' imprisonment.

However, we must now ask what status a general datum has when it becomes a law. The answer depends, as usual, on the source. If the sources of the law in the system decide that this datum is a law, then it has the status of a law; if not, it has the status of a fact, which must be proven by evidence for each case separately. Law courts also recognize another situation, in which the datum can be a **presumption**. A presumption of fact is a descriptive datum about which one of the sources of the law – generally the legislature – rules that it should be considered like a proven fact. However, most legal systems distinguish between a conclusive (or irrebuttable) presumption and a rebuttable one. If the presumption is conclusive, then it is just as valid as any other law, since the conclusions drawn from it are also conclusive. In contrast, if the presumption is rebuttable, then its main force is that it transfers the burden of proof to those who are trying to defeat it.

Consider another example:

All citizens who are responsible for their actions have legal capacity. All citizens over the age of 18 are responsible for their actions. Conclusion: All citizens over the age of 18 have legal capacity.

The minor (factual) premise is clearly arbitrary. We all know citizens under the age of 18 who are more responsible for their actions than some citizens over the age of 18, and citizens over the age of 18 who are not particularly responsible for their actions. The presumption that the legislature asserts here is conclusive, and they do not even bother to formulate it as a presumption, but draw the conclusion directly and formulate it as a law.

We can therefore state in summary that almost all laws are constructed out of several hidden layers. The datum that appears as the law itself is the "lower" datum in the pyramid of the syllogism, called "the legal rule" in the theory of law. The higher data are the **considerations** that led the legislature to enact the law. These data generally consist of two layers: the major premise, which is normative, and the minor premise, which is factual. At the top of the pyramid are the principles, which are normative data out of which the entire legal system is built.

This brings us to the questions of where the supreme principles of the legal subsystem are drawn from, and what is the origin of the factual data that serve as premises for its "lower" norms, As for the supreme principles, two alternatives are possible: Either they are principles of the cultural system in which the legal subsystem operates, or they are not. If the first alternative is correct, then the principles of the legal subsystem are justified by the principles of the cultural system. If the second alternative is correct, then they have no external justification – in other words, they are arbitrary. However, since the legal subsystem is generally a social phenomenon, such a situation hardly ever occurs, and when it does, it is considered problematic. Thus the supreme principles of the legal subsystem are generally drawn from the values of the broader cultural system. If the cultural system is WRS or one of its branches, then these values are moral ones (I mean moral in the secular-humanistic sense of the word). If the cultural system is a religious one, then these values are religious as well. As a result, in normal situations, the legal subsystem is not and cannot be autarchic, in contrast to Max Weber's postulation.

This is also true for the factual premises upon which laws are based. In the vast majority of cases these factual premises are not determined by the judge as "trier of fact" through a proceeding subject to evidence law, but are accepted by the lawmakers (legislators, judges, commentators) as true on the basis of common conventions. These conventions are accepted not by virtue of the legal subsystem, which does not deal with things of this sort, but because they are data within the general cultural system. As in the case of the principles, this case demonstrates the legal subsystem's dependence on the cultural system to which it belongs. Moreover, even if the legal system can be autarchic in the realm of principles, although this is not a healthy situation, in the realm of factual premises such autarchy is simply impossible. We need to keep this in mind for the next section of this chapter.

From a broader perspective, it would seem that Source Theory leads to normative relativism. A norm that is accepted within a particular system is justified by the basic sources of that system, and no source of any other system can validate or invalidate it. According to these claims, we cannot denounce cannibalism or murder based on "family honor" in cultures where they are accepted.

To be sure, this conclusion is derived from Source Theory in a purely formalist line of argumentation, and can therefore be considered as a normative version of the nihilistic absurdities, which are also derived directly in a similar line of argumentation. The way out of this relativism is likewise similar to the one we used in the case of the nihilistic absurdities – namely, the transition from a formalist to a pragmatist line of argumentation. At first glance it would seem that this does not solve our current problem, since even in the sociological arena, there are ancient cultural systems in which cannibalism and "family honor" murders are valid norms. Indeed, we cannot invalidate the internal justification of these norms within their systems. However, just as we used the **conservative rule** for individuals in our discussion of the absurdities, we can use it here for the society as a whole. The conclusion is not that we should rid ourselves of any basic sources we have because they are particularistic, since such a move would make it impossible for individuals to think at all. Instead, the legal subsystem should stick to its "native" sources, the ones that are at the basis of its cultural system. This system is the one in which it developed historically and in which it can be justified. In contrast to the individual, who may sometimes take a stand of a *non liquet* (and even that is not so appropriate in the normative realm), the society cannot afford a condition of a normative vacuum or undecidedness. Therefore the state, which is the body within which the legal subsystem exists, is not value-neutral, and it is pointless for it to aspire to be so. On the contrary, a state adopts the sources of a particular cultural system with all of its values, and one of its roles is to embody these values in its laws. Consequently, it should not allow other cultural systems that exist within it the freedom to act as they please, unless their values are not opposed to the fundamental values of the state. This does not mean that it should prevent any other system from existing, but it can, and perhaps even should, prevent an alien system that exists within its borders from damaging its most fundamental values. This means that it is the right of a legal system which embraces cannibalism to suppress a legal system that opposes it, if the latter exists within the political borders of the former, and that the people who do not embrace cannibalism should subordinate their norms to it. It is the right of the people who adopt the humanist legal system, which opposes cannibalism, to try to escape the one which embraces it, or even oppose it within the constraints of that system, but as long as they live within the state (or culture) which embraces it, they should accept its authority.

### **How judgments are made**

Our discussion of the structure of legal norms also has some ramifications for the distinction between formalistic and non-formalistic (or value-oriented) legal systems (I am now using the term "formalism" in a legal-theoretic sense, in contrast to the way I used it above, which was in contrast to pragmatism). This is not a dichotomy but rather a continuum that can be formulated as follows: The more the legislators try to formulate the rules in more general terms, the less formalistic they are, and vice versa (Brown 2008).

It has been claimed that, in general, traditional normative systems tend to be more formalistic, while modern legal systems tend to be less so (Wigmore 1981, Volume IX, §2405; Barak 2005, 30). To paraphrase Hobsbawm (1989: 4), the increase of non-formalistic interpretations of traditional formalistic norms demonstrates that they have become weaker. This is true only for traditional systems because formalism is one of the typical features of such systems, at least in their external appearance.

Law theorists have pointed out that the justifications for the formalistic approach are the law's certainty and predictability. However, the formalistic approach in traditional systems actually has quite a different origin. In the nonformalistic approach it is necessary to make a deduction from a major and a minor premise to obtain a normative conclusion. This procedure is carried out by human beings – commentators or judges. The traditional approach places less trust in human beings in general, and their individual sources in particular. It embodies the tacit assumption that it is better for the system's basic sources to carry out the deductive procedure themselves, and not leave it to the people who happen to be around at some particular time. Traditional systems therefore tend to use presumptions extensively, and this is what actually leads to their formalistic character.

As we concluded, the principles of a legal system are those of the cultural system in which it developed. Consequently, a radical non-formalistic approach cannot merely use the principles of the legal subsystem itself, but must attempt to go beyond them to the principles of the larger cultural system. Thus, although a Weberian separation between the legal subsystem and the cultural system does indeed reflect the formalist approach to legislation, it does not necessarily guarantee that the legal subsystem has no gaps. On the contrary, sometimes a legal system that tries to detach itself from the larger cultural system is less successful in coping with gaps, as it has abandoned a source that might have filled them in, while a non-formalist system might be more successful in that regard (as will be discussed further below). Actually, it is the formalist systems that have greater difficulty in removing their gaps. We may conclude, then, that the undetachable link between the values of the legal subsystem and those of the larger cultural system supports the non-formalist tendency to make use of the latter, at least in cases of normative gaps.

Part of the judicial process is the determination of the minor premise – the facts. The legal branch that determines how facts are decided in the legal process is evidence law. The laws of evidence determine which data should be considered "facts" and be presented in the legal proceedings, and which should not. From the viewpoint of Source Theory, the laws of evidence are a prototypical model of compartmentalization, as they are used to determine which of the existing data are admissible or inadmissible by the law, which is a source in the legal subsystem. Other sources are then applied to the admissible data – mainly the basic cognitive tools of the presiding judges.

The rejection of inadmissible data is a prototypical example of compartmentalization that is not based on a contradiction between data from different sources. The presentation of contradictory data, such as contrasting testimonies, is not prohibited. On the contrary, such data are often an important layer in the construction of the decision about the facts. The reasons for rejecting evidence are generally flaws in the way the evidence was gathered, such as "fruit of the poisonous tree" (in legal systems in which this rule prevails) or fact-based presumptions about the unreliability of the sources from which they were transmitted, as in the rule against hearsay.

Incidentally, in most legal systems, when a judge is faced with a question involving a law from a foreign legal system – especially if this law applies to the litigated case in virtue of the rules of private international law – the content of the law is considered a question of fact. It is decided according to the testimony of an expert witness, whose opinion is considered evidence of fact. Such witnesses are examined and cross-examined about their testimony in the same way as any other witnesses. This rule of evidence, although reasonable in and of itself, raises serious philosophical questions about the very distinction between law and fact. When a judge decides a case within her legal subsystem, isn't she determining a fact about the legal situation of this subsystem, just as the expert witness does in connection with a foreign legal system? It seems to me that this might actually be a correct description of the matter.

To return to the main issue, as soon as a judge is presented with an assortment of admissible data, she is faced with the problem that some of these data may be contradictory. Since all of them are admissible, they all belong to the system, and so her job is to decide among them. Most legal systems have few if any decision rules, so the decision must be made with the judge's discretion, which means her own sources. Since the legal subsystem does not provide any sources of this type, the judge's sources should be, once again, the basic sources of the cultural system to which she belongs, which the legal subsystem is also part of. This sort of decision, which is critical for the results of the proceedings, is thus based on the sources of the cultural system rather than any "autarchic" sources of the legal subsystem. Once the judge has come to a decision on the basis of these sources, the facts that were determined according to them are considered to have been proven.

At this stage we come to an issue that philosophers of law have dealt with more than any other – the application of the law to these proven facts. The legal-theoretic literature generally distinguishes between "easy cases" and "hard cases" in this regard. In terms of Source Theory, one could say that easy cases are those where the connection between the factual data and the legal data is established by the simple application of the power of judgment (*Urteilskraft*), using *modus ponens –* that is, when the facts clearly establish a special case of the antecedent of the general rule. In contrast, hard cases are those where there is no such match, and applying the rule to the facts requires interpretation, so that the judge or the commentator has to use additional sources and a more complex process of deduction. According to Hart (1961, Chapter 7), at this stage the judge is faced with an "open texture" where she has to use her judicial discretion. Since this discretion is free, whatever decision the judge makes is valid, and as soon as she makes the decision it becomes part of the law. According to Dworkin (1978, Chapter 2; 1985, Chapter 5), at this stage the judge must consider the principles of the legal system, which are an inseparable part of it, and try to find the proper balance among them. Dworkin claims that there is only one balance that is correct within the system, and if the judge fails to find it, her decision does not become part of the law.

We can reformulate this controversy in terms of Source Theory. Hart claims that judicial discretion is virtually free, but since "no man is an island", and even judges are part of the cultural system in which the law operates, judges normally make use of considerations that are derived from sources in this cultural system. Dworkin claims that judges must remain within the limits of the legal subsystem, but even he admits that its principles are those of "morality" (Dworkin 1978, Chapter 2) – that is, the principles are drawn from the cultural system (he uses the term "morality" because he is referring to WRS). Moreover, since, as we have seen, the legal subsystem's principles are almost always based on the values of the cultural system to which it belongs, there is practically no difference between them on the issue of the sources used by the judges. This lack of difference is extended to other areas by some of Hart's followers, who explicitly claim that even the judicial discretion have "sources" – such as the system's fundamental moral values, public opinion, and the judges' personal tendencies, all closely linked to the judge's cultural system – so that they are not absolutely free, as Hart seems to be claiming. In light of this analysis, the Hart-Dworkin controversy seems to be greatly diminished.

However, we still need to consider one aspect of this controversy that has remained open – whether every legal question has only one right answer (as the question is often formulated in the literature). Here, too, it seems that Source Theory can help us by greatly simplifying the discussion. Since we have concluded that judges must consider their cultural system's sources, we must distinguish between two levels of this system – the real one and the ideal one. We have shown above that the sources of the ideal system transmit data that are necessarily compatible (though not always accessible). Thus there cannot be two incompatible right answers to the same question within one ideal system. The real system, in contrast, is much less perfect. It embodies the aspiration to attain the purity of the ideal system, but the full achievement of this aspiration is utopian, and even its partial achievement is at best occasional. Therefore, Dworkin, who claims that there is one right answer to any legal question, is right on the ideal plane, but on the real plane it is not always possible to achieve one such answer, and so the law must recognize a range of possible answers as long as all of them are within the "zone of legitimacy" of the system (in the formulation of Barak 1989: 12).

Dworkin himself seems to admit the ideal of nature of his "one right answer". Even if that answer remains unattainable, its existence is important to him as a tool for criticizing judicial decisions in "hard cases". In Hart's theory, where such cases create an "open texture", the judge seems to be free to decide, and any decision he makes will become the law, and will thus become "right". Thus, while in Dworkin's theory the existence of "one right answer" allows for criticism of the judge's decision, in Hart's theory its absence prevents any such criticism. This, indeed, is one of the arguments raised against Hart's theory. We can now support this argument by Source Theory. Only in a situation where there is a fixed system with agreed-upon basic sources can there be criticism or debate about judicial discretion (or anything else), since, as we have seen above, there can only be debates on the basis of common sources.

In many ways, the relation between law and morality in the normative sphere is quite similar to the relation between science and metaphysics in the descriptive sphere. On the ideal, utopian plane, in both disciplines, data should go from the basic to the derivative, or (to use Hegel's terms) from the abstract to the concrete. On the utopian plane, we know the basic moral principles, we know the correct formulae for how they should be balanced, and from those we safely derive the rules of law. Similarly, in the descriptive realm, we know the principles of reality, and they form the basis of any particular science that covers this or another part of reality. However, neither moral philosophers nor metaphysicians have reached the evident truths, and, given the society's urgent need for more everyday truths, the law has given up the quest for the solid rock for the norms and science has given up the quest for the solid rock for the facts. Neither lawyers nor scientists seek absolute truths, but rather something that will work. They have thus ignored the basic questions, taken some less basic premises for granted (usually without much awareness), and built their disciplines upon them. Indeed, in this sense both law and science are disciplines of despair.

To be sure, this despair has never occurred in reality, because in the development of human cultures, people did not even try to go from the abstract to the concrete but rather the other way around. The persons who established the law or the sciences took their underlying principles for granted, usually without even being aware of them. Only after concrete norms or facts were established did philosophers come and try to uncover the principles underlying them, whether in order to reaffirm them or in order to re-examine them. These lawyers and scientists often showed little interest in the discussions of those intellectuals who tried to explain the foundations of their daily work. However, the more their disciplines developed, the more they returned to the basic questions that they had originally sought to avoid. And so, from time to time they have had to deal with the principles that underlie their disciplines. They had to cope with philosophical questions, often without philosophers' professional tools

We can now return to the discussion we started previously, where we defined "formalism" and "non-formalism" in legislation, and discuss the two concepts as they relate to judicial decisions and legal interpretation. Hart defined "formalism" according to his theoretical model, as a situation in which a judge does not recognize the existence of a "penumbra" and decides according to the existing rules, even if they do not really apply to the facts at hand. He defined the opposite approach, which he called "rule-skepticism", as a situation in which the judge does not recognize the rules and decides according to his own discretion, even when the rules fully apply to the facts at hand (Hart 1961, Chapter 7). In terms of Source Theory, Hart's model can be reformulated as follows: The formalist uses only the lower sources of the legal subsystem, while the rule-skeptic uses the basic sources of his own personal system and, to an even greater extent, those of his cultural system, which overlap with the higher sources of the legal subsystem (these seem to be the main sources of his discretion). This model is quite similar to our distinction between the formalist and non-formalist approaches to the nature of the legal subsystem itself, as discussed above. In the spirit of that discussion, we might say that formalism and non-formalism are not necessarily connected with the issue of the core versus the penumbra. Rather, we can now return, with greater support, to the model we suggested instead. Formalism is an approach that tends to use mainly the less general norms, while non-formalism tends to use the "higher" factual and normative layers they reflect, especially those of the legal subsystem itself, but also those of the cultural system as a whole. The distinction between the two approaches is not dichotomous, but rather ranges over a continuum.

In the epistemological realm, we argued that difference in the identity of the sources or the division of labor between them is not only a difference in *thoughts* but also a more fundamental difference in *ways of thinking*. Now we can similarly say that in the legal realm, the difference between the formalists and the non-formalists is not only in their substantive thoughts about the law and the facts, but is also a difference between two distinct legal ways of thinking (which Source Theory calls sources or source models). Indeed, it seems to me that this insight also agrees with the intuitions of experienced jurists.

We have so far examined the relations between two systems (Chapter Five) and the relations between a subsystem and a mother system (Chapter Six). We will now examine the functioning of another type of subsystem within the larger system, i.e. language (Chapter Seven).

### CHAPTER SEVEN

# **Source Theory and the Philosophy of Language**

#### **Language as a subsystem**

Language is a compartmentalized subsystem within every culture. Large traditions may often include a few or even many languages as subsystems. It should be noted, however, that language is a peculiar type of subsystem. In the previous chapter we examined law, which is a typical subsystem: Western legal systems are transmitted by the sources of WRS, Jewish law by the sources of the system of Judaism, Christian law from those of Christianity, Muslim law from those of Islam, etc. Not so is the case with language. The sources of languages are neither the basic cognitive tools nor any holy scripture. Consequently, Western languages are not particularly more rational than others, and the languages used by the monotheist religions are not particularly "religious". In this sense, the characterization of language as subsystem is rather problematic, and I definitely do not wish to cover up this difficulty. The reason for which I still consider language as a type of subsystem is because it develops within a **culture**, and cultures, at least in some aspect of their existence, can be described as **cultural systems** in the sense attached to this term in this book. In this context, the languages are built through data transmitted by the agents who operate those cultural systems.

In all the natural languages, the primary source of this subsystem is the cumulative factor which we called "the cultural community" and named h. By saying this, I am not necessarily committing myself to Wittgenstein's private language argument (Wittgenstein 1953, §§244–271), which argues that such a language is impossible. Rather, I am contending that if such a language is possible, it requires a separate and different analysis. The following analysis relates to natural languages which clearly all exist as subsystems within multi-personal

#### **How to cite this book chapter:**

Brown, B 2017 *Thoughts and Ways of Thinking: Source Theory and Its Applications.* Pp. 119–136. London: Ubiquity Press. DOI: https://doi.org/10.5334/bbh.h. License: CC-BY 4.0

cultures. The subsystem of language should be considered as a compartmentalized one because it has a very limited role of determining the **meaning** relations among different types of data, usually auditory or visual, in the larger system. The former are words or collections of words ("expressions") and the latter are objects or designata. The relation between them – meaning – has been the focus of many debates, some stressing its representational function, and others its emotive and activating one. Some philosophers have claimed that a word has a meaning only if it denotes a particular object in the "external" world, while others contend that some words (e.g. prepositions) do not have such referents, and acquire their meaning only through use, often in the context of larger units such as sentences. Some claim that a word's context is often crucial for understanding its meaning. In any case, meaning is a relation in which verbal objects (words, expressions, sentences) are attached to objects in the world ("things", "states of things"), and – which is more important for us – it is source h that almost always determines which words will mean what. Source h is also responsible for any changes in this linkage.

In this process, source h works almost completely independently of all the other sources of the system. This is clear because the great majority of links between words and the world are arbitrary. There is nothing "doggish" in the sound of the syllable "dog" or in the view of the three letters d-o-g. This arbitrariness applies to all of the systems: there is nothing "rational" in this link in WRS, just as there is nothing "religious" in this link in MRS. Even onomatopoeias – rare phenomena anyway – do not provide sufficient reasons for the naming of their objects, both because different sounds could be attached to those objects with equally convincing "reasons" and because they do not work in the case of written words. There might be some rationality in the rule that an adjective related to a noun appears in proximity to that noun, but there is no particular rationale in putting it right after the noun, as in Latin, or right before it, as in English, or sometimes before and sometimes after, as in French. These three languages are all subsystems within cultures that all heavily contributed to the development of WRS. In short, languages are based on arbitrary rules embraced by the community. This makes language a form of convention, in the sense attached to this term by Lewis (1969) and Marmor (2009). The subsystem of language therefore works independently of the other sources of the system and is compartmentalized to its limited role. The fulfillment of this role, however, is crucial for the proper functioning of the cultural system as a living system, since any living system consists of testimonies, which are transmitted in a language.

The fact that a certain word has a meaning relation to a certain object, or the fact that a certain expression (or sentence) means that such and such action is required or expected of the listener will be called **meaning data**. Except for very rare cases, meaning data reflect the meaning relations determined by h. Meaning data are usually transmitted by secondary sources: In early childhood, our parents teach us the meanings of words, and in later stages our teachers and books assume this function. The media and other means of public communication also play a role in this process.

There is something unique in the subsystem of language: Most of our secondary sources use language to transmit the data of the primary sources. In the earliest stages of language learning, this cannot work, since the child does not have even the most basic vocabulary. "One needs pincers to make pincers" (*Tzevat bitzevat 'asuyah*), as the Mishnah says (M. Avot 5, 6). The exact way in which this process takes place is the business of developmental psychologists, who indeed give it much attention, and will not be addressed here. What is important for our discussion is the fact that such non-linguistic testimony data can and do exist.

The philosophy of language has become one of the major areas of modern philosophy. I intend to discuss only a few of the issues that have been raised in this area. I claim that philosophers of language have created an atmosphere of mystification about the relation between words and the objects they denote. I believe that Source Theory can help eliminate this mystification with its claim that objects, as well as the words denoting them and the sentences referring to them, are all the results of the same act: transmission of data by sources. Different sources transmit the data, while witnesses – generally from the system user's community – transmit the words that refer to them. Since language is part of every cultural system, the fact that a certain word pertains to a certain object is a datum about the way the cultural community uses the word.

On the basis of these claims I intend to propose a semantic theory for words and sentences, but I begin the discussion with the issue of naming individual objects, partly because I want to start out with an existing theory that is somewhat similar to Source Theory. This is Kripke's naming theory, which I use as a basis for discussing other aspects of language.

#### **Naming individual objects**

The issue of how to determine the identity of objects was raised by some important philosophers, but was brought to attention of many mainly by Saul Kripke in his lectures, which later became his book, *Naming and Necessity*. Kripke discusses only the identity of individual objects, but his theory is applicable, *mutatis mutandis*, to general terms as well (Kripke also expanded his theory to "natural kinds"). Kripke presents two main theories. The first one, whose ancestors are Frege (1952a, b) and Russell (1956), considers names a shortened form of definite descriptions – that is, the collection of general properties attributed to an object. If these properties change (which raises the question of what properties are at issue), then the object loses its identity. Kripke presents the theory's problems at length, finally rejecting it. Instead he proposes another theory, which was originated by Mill but developed mainly by Kripke himself, and has come to be known as the "causal-historical theory". He formulates the essential points of his theory as follows:

Someone, let's say, a baby, is born; his parents call him by a certain name. They talk about him to their friends. Other people meet him. Through various sorts of talk the name is spread from link to link as if by a chain. A speaker who is on the far end of this chain, who has heard about, say, Richard Feynman, in the marketplace or elsewhere, may be referring to Richard Feynman even though he can't remember from whom he first heard of Feynman or from whom he ever heard of Feynman. He knows that Feynman was a famous physicist. A certain passage of communication reaching ultimately to the man himself does reach the speaker. He then is referring to Feynman even though he can't identify him uniquely. He doesn't know what a Feynman diagram is, he doesn't know what the Feynman theory of pair production and annihilation is. Not only that: he'd have trouble distinguishing between Gell-Mann and Feynman. So he doesn't have to know these things, but, instead, a chain of communication going back to Feynman himself has been established by virtue of his membership in a community which passed the name on from link to link, not by a ceremony that he makes in private in his study: "By 'Feynman' I shall mean the man who did such and such and such and such."

… A rough statement of a theory might be the following: An initial "baptism" takes place. Here the object may be named by ostension, or the reference of the name may be fixed by a description. When the name is "passed from link to link," the receiver of the name must, I think, intend when he learns it to use it with the same reference as the man from whom he heard it (Kripke 1980: 91–92, 96).

Kripke does not offer a theoretical or symbolic development of this "chain of communication", but it is clear that Source Theory, as well as the Source Calculus underlying it, fits Kripke's theory very closely. In source-theoretic terms, each of the "links" Kripke mentions is a source of the testimony type, which is adopted, like all testimony, in a mediated manner (that is, the basic cognitive tools transmit the property, in this case of being named so-and-so). The "community" that Kripke mentions, of which the individual under discussion is a member, is precisely our cultural community, which we denote by h. The source model of this subsystem also includes a hierarchy rule, which states that if the datum at stake is of the type of naming datum (that is, data transmitting the name attached to an object), then h has supremacy over all other sources in the system. Thus system users believe that the name of any object is the one that was transmitted to them by their cultural community.

However, Kripke comes to some very far-reaching conclusions – namely, that the name of an object is its rigid designator, which fixes its identity in all possible worlds. It seems to me that Kripke is mistaken here, and I will try to show why. To make the ideas concrete, I will present a simple, prosaic episode based on Kripke's description, and then try to deduce its implications.

A baby is born. His parents have not yet named him. Actually, they are not sure about the name they want to give him. In the meantime, they call him "the baby" – a "name" given to billions of newborns in similar conditions. They can recognize him easily in the hospital and can recount quite a few facts about him: when he was born, to whom, at what weight, how he looks ("just like his grandmother!" of course), what his health condition is, and the like. Furthermore, they can report these data for each and every day of "the baby"'s young life.

Now let's analyze what has happened here. In Kripke's terms the "baptism" stage occurred when the young parents decided on the baby's name. At this point, David acquired a name and this name, according to Kripke, is his rigid designator in all possible worlds. In terms of Source Theory, on the other hand, there were several stages to this process. At the first stage, right after the baby's birth, the new parents' senses (together with some other basic cognitive tools) transmitted data about the baby: the fact that he was born to this particular woman, the time and place of that birth, his weight at birth, his external properties, his health condition (as reported by the doctors and nurses), and the like. They also identified him as their first/second/third… child. In the following days, they received more data about his development and other data that could help them recognize him. Only at a later stage did they give him an official name.

Now suppose that the young parents had not given him his name a week after he was born, but had kept learning more and more data about him. In this case, all these data would be ascribed to "the baby". His identity as the person initially recognized through such-and-such features could therefore be fixed without naming him (in fact, Kripke himself gave an excellent example of this sort of case, as "the man who corrupted Hadleyburg" [ibid, p. 24], but did not confront it with the theory he himself presented later on). Even when they would eventually give him his name, this datum would not be different in its logical status from all the other data that they had accumulated along the way. Even if, for some reason, they one day decided to change his name and call him Jonathan, the fact that he was named David a week after his birth would remain one of the data in his biography. This would not change anything about the identity of the child, because it was fixed before any name was given to him, and without any connection to it.

According to a story that I once heard (I cannot vouch for its truth, but even if it's imaginary it could well have happened), Yemenite Jews used to believe that when the Angel of Death goes out on his lethal journey, he identifies intended victims by their name (apparently they had read *Naming and Necessity*...). Therefore a family which had suffered several cases of infant deaths would avoid giving the newborn a name, calling him simply "Al-Walad" ("the boy"), so that the Angel of Death would have trouble identifying him. When the boy was eight days old, he had to be circumcised according to Jewish law, and the circumcision is customarily accompanied by naming the child (this is the Jewish equivalent of baptism). When the ritual circumcisor asked the parents what to name the child, they said "Al-Walad", and this became his name. In such a case, does the child not have an identity? If we say that the circumcision ceremony established that his name was Al-Walad, then we can ask what his status was until the eighth day. Did he not have an identity before that? During that first week, would it not have been possible to ask what would have happened to him in other possible worlds? Would a definite description such as "the youngest son of the Tzan'ani family" not have established his identity sufficiently? Kripke's theory seems too rigid in light of these questions. All this shows us that there are two different types of "baptism". The first one is the person's first acquaintance with the object, when the latter is transmitted to the former as a datum and becomes a part of his/her individual system. The second is the one that Kripke discussed, that is, the data that transmits the name of the object, which represents its identity from the standpoint of the cultural system.

In this way, the problem of identity is solved almost automatically. The philosophical literature is full of sentences of the sort of "Samuel Clemens is Mark Twain". In general, such sentences are presented to demonstrate the impossibility of substituting identical objects for one another, since the sentence in the example is different from the sentence "Mark Twain is Mark Twain". While the first sentence tells us something new, the second one is a mere tautology. One of the solutions suggested for this problem makes use of Frege's distinction between sense and reference, claiming that the identity is one of reference but not of sense. Although Frege's distinction is indeed an important one, Source Theory eliminates the problem from the outset. In Source Theory the name "Samuel Clemens" is essentially an abbreviation of "the object that sources a, b, and c (his parents, the registrar of births, and his early acquaintances, for example) called 'Samuel Clemens'", while "Mark Twain" is an abbreviation of "the object that sources d, e, and f (he himself, his publisher and the community of bibliophiles, for example) called 'Mark Twain'". The identity sentence thus tells us something new because it does not involve two identical data. Moreover, even when the identifications come from the same sources, as is the case with Frege's famous sentence "The morning star is the evening star", different transmissions are involved.

Let us take one step further. Although naming an object is an accepted social practice in all the societies we know about, it is definitely a culture-dependent pattern and not a necessity. We can imagine another possible world, or even merely another society, in which people do not have names but are identified by their occupations and places of residence, and are enumerated in order of age if there is more than one person with the same occupation in the same place. For example, one person might be the oldest carpenter in Pinsk, while another might be the second oldest shoemaker in Minsk. Children who have not yet acquired an occupation are identified in this world according to their parents and their order of birth, so that one child might be the oldest son of the oldest carpenter in Pinsk, while another might be the youngest daughter of the school principal in Minsk. Even if this system is more complicated than giving a person a short, simple name, it is still possible.

How would questions of the sort posed by Kripke be answered in this world? We could ask whether the oldest carpenter in Pinsk would be the same person if he had not been a carpenter, or whether he would be the same person if he was the youngest carpenter in Pinsk. The answer to these questions would be definitely "Yes", because in a society of this type it would be obvious that the term "the oldest carpenter in Pinsk" is intended only to determine the person's identity (as the person who is known as the oldest carpenter in Pinsk in the real world) but not to determine his necessary qualities. Even though the term functions as a sort of name, it is undoubtedly a definite description. Would anyone claim that under such conditions the person's identity is not fixed? In general, since we have come to the conclusion that the very act of naming is a socio-cultural act, how could metaphysical issues of necessity and possibility depend on it?

The concepts of objects (I will refer mainly to individual objects) that we have in our minds are constantly changing. Let us focus for the moment on a particular person – myself, in the example – and imagine that all the details that were transmitted to me about the object are preserved in their entirety. In such a situation, at every stage, the concept includes more and more data that have accumulated about this object. These data have two aspects: external and internal. In the above example, the parents' concept of the baby at t1 is different from their concept of him at t2, after they acquired more data about him. At each stage at which some source is operating in regard to the object under discussion, my concept of that object becomes richer. This concept is therefore continually growing.

We all know, however, that this is not what happens in real life. The main reason for this is that things are forgotten. In real life we do not always remember from what source we received each datum, or when, where, and in what circumstances we obtained it. At some point, the identity of the object in my mind is "Someone/thing about which my reliable sources transmitted to me such and such data". A "reliable source" for this purpose is one that has been adopted by my cultural community, whether directly or indirectly. In the case under discussion, these reliable sources seem to belong to my individual system – my senses, my understanding, and the evidence I obtained through these sources – but the reason I believe the data provided by these sources is the fact that they serve as basic sources of my cultural system, as long as there are no other data that contradict them.

If any particular datum belonging to that concept is rejected, it is because another datum has been added to the mind from a source that is considered more reliable. If I read in the newspaper that my neighbor, who I had believed until then to be named Mark Jones, was convicted in court of being a conman whose real name is John Smith, then the concept of this object in my mind becomes "the person about whom reliable sources transmitted to me that he has properties A-B-C, but the newspaper transmits that the court transmits that he does not have property C (the possessor of the name 'Mark Jones') but rather property D". Here the system acts in an even more complicated way. Now I do not remember which reliable sources transmitted properties A-B-C, but I do remember the degree of reliability that I ascribed to them – high enough so that I would believe their data, but not high enough to continue to believe them when a source with greater status in the hierarchy (the court, as transmitted through the mediation of the newspaper and received by my basic cognitive tools) rejects these data. I thus give the court (as transmitted through the mediation of the newspaper and my basic cognitive tools) a higher position in my source model than the forgotten sources due to which I believed property C in the first place. However, my greater trust in this source is not only a result of my personal source model, it is also accepted in the source model of the general cultural system to which I belong. In general, I tend to forget the sources that transmitted data to me when I can assume that they were transmitted by h. System users therefore take it as a rebuttable presumption that the data transmitted by h belong to the cultural system and were received from its adopted sources. Therefore they are considered atemporally and impersonally "accepted". As soon as a particular datum is considered as if it had been transmitted by h, the speaking self no longer has to remember from whom or when it was actually received, and so he tends to forget this. This determination of identity, however, does not stem from any metaphysical importance of h, but only from its high position in the hierarchy of sources of my personal system, and its importance to my practical life. If, for example, I held a personal source model where h did not have a high position in its hierarchy, or did not belong to it at all, then the object would presumably obtain its identity in some other way. Mark Jones, for example, would be identified as "the neighbor across the hall", which is an important datum in my practical life. We may call this process "tagging".

This is how things are in people's personal systems, but they are a little different in a cultural system. Here h is necessarily a critically important source by virtue of the fact that a cultural system is a broad collective system. I know very well that I cannot always call Mark Jones "my neighbor" when I am talking to other people, so his name is important here. In the cultural communities in which most of us live, a person's name is the most useful means of identifying him – as well as for fixing his reference – since it belongs to the public sphere that is common to everyone. Since h is the source with the highest position in the hierarchy for identifying objects in that sphere, the point where h transmits a means of identification becomes the crucial point for fixing the object's reference. In this system we can therefore consider the moment when we are told a person's name to be the moment of his "baptism", at least within our personal systems. Nevertheless, even this fixing of the object's reference is not absolute. For example, we might find out that the name by which the person is known is not his real name (as in the case of Jones-Smith), or the person can change his name or adopt a pen name that is better known than his real name. In cases of this sort, as in one's personal system, the name will be redetermined on the basis of the new datum if the source transmitting it is more important than the one that transmitted the previous name. Nevertheless, the final step of the "baptism" is always completed by h's transmission of the datum. These are thus cases of a second "baptism", and more than two are also possible. In fact, these are all acts of tagging, while the word "baptism" is proper only for one of them – the act of naming. The very fact that there can be more than one "baptism" teaches us that none of them really serves as a rigid designator, in the strict sense of the word. The important point is that the later "baptism" is always based upon an earlier one, so that the first one remains the datum that properly fixes the object's reference for the future. But the first "baptism" is the individual person's acquaintance with the object, and so it fixes its identity only for the individual system, so, here again, it cannot serve as a rigid designator in the strict sense of the word. John Smith's parents came to know him when he was born at the hospital, his childhood friends became acquainted with him at school or in the neighborhood, his friends from work know him as an adult and first met him at their common workplace; I know him as my neighbor and first met him when he moved into the apartment across the hall; and so on. All of these persons have, therefore, a different "first baptism" of Smith according to different "baptismal properties". The only power of the object's name is derived from the fact that a person's name is more or less common to most of the community: At some stage we understand that many people know Smith, each of them by different "baptismal properties", but we allow ourselves to assume that all of them call him John Smith. This makes his name the most convenient property for identification, and that is what usually gives the naming the power of a second baptism. But this is just a fact on the communicative ("Gricean", if you will) level, stripped of any metaphysical aspect, and certainly not anything that turns it into a rigid designator in the strong sense of the word.

When people become famous through their penname or underground name, and these names become better known than their original ones (Molière, Max Stirner, Lewis Carroll, Mark Twain, O. Henry, Lenin, Stalin and George Orwell, to name just a few), we may consider the act of attaching these names as a third "baptism", no less powerful than the second. Furthermore, where famous people are concerned, their identity may be determined partly by their achievements, if these are considered by h to be their especially well-known qualities. Kripke raises this possibility in an example he presents concerning Gödel's identity, suggesting that it was established as "the man to whom the incompleteness of arithmetic is commonly attributed" (Kripke 1980: 88). Although he offers some reservations about this suggestion, he does conclude that it is possible, under the condition that the source h (in our terms) is not the factor that fixes Gödel's reference, but rather Gödel's parents, or whoever was first to transmit the datum of his name, somewhere back in an early link of the chain. Personally, I do not see any problem fixing a person's reference on the basis of the present situation, in which the chain of transmission has ended and the transmission of a datum by h which attributes an identifying property to Gödel leads to a new "baptism". This, too, should be recognized as a "third baptism" of a different type. This is just an example. We can imagine more complicated examples of "third baptisms", or fourth ones, or more.

I will summarize my conclusions up to this point as follows:

that person may also serve to replace his original name. In all these cases the object's reference is fixed in virtue of the fact that these data are transmitted by h and are the ones the system considers important for publicly identifying the object.

This theory may be more complex and less elegant than Kripke's, but it seems more convincing. Aside from the fact that it solves some problems evoked by Kripke's theory and improves some parts of it, it also places other parts of the theory in a broader philosophical context – that of Source Theory.

The suggested theory of reference determination gives us a better understanding of why we tend to forget the data about the procedural (or "external") aspects of the transmission (the exact source, the time, the place, the circumstances) that determined the object's identity: These data are suppressed by the later "baptism". In parallel, the data about the procedural aspects of the new "baptism" are also quite often forgotten because they are perceived as atemporal and impersonal, since the new "baptism" involves the object's reference in the broader community system, as described above. From this point on, the object's rigid designator is therefore "the object to which source h ascribes such-and-such properties". Even if I later reject one or all of these properties because of data received from truth sources with greater authority in my hierarchy of sources – such as my personal sources – the objects' most rigid designator will remain "the object to which h ascribes such-and-such properties". But this designator is not absolutely rigid either. It will remain in place until another designator, more powerful than it, performs another "baptism".

In light of these remarks, it would be advisable to remove the aura of mystification from the act of naming, especially as it appears in Kripke's theory. From a source-theoretical standpoint, the act of naming is merely an ordinary act of attributing a property to an object by virtue of a datum transmitted by a source, and is thus no different from any other such attribution. What gives it its status as a rigid designator is its capacity to survive in our minds for a long time, which is derived from considerations of importance based mainly on personal and social convenience. Since fixing an object's reference is basically a psychological rather than a logical process, it is hard to see it as making any substantial contribution to the modal discussion of trans-world identity, or to any other metaphysical discussion.

#### **The meanings of words in language**

Nowadays many thinkers agree that the issue of meaning occupied philosophers in the last century out of all proportion to its true philosophical importance. And if that were not enough, this occupation produced a considerable number of scholastic discussions that would not have shamed the most meticulous medieval philosophers (such discussions, quite ironically, often include terms that are meaningless according to their own authors' criteria). However, there is indeed a real problem at the basis of this issue which is worth discussing. We will begin with the issue of naming individuals, as discussed in the previous section, after a few preliminary remarks.

Frege and his followers distinguished between the meaning (reference) of a word and the meaning of a sentence. Frege claimed that the meaning of a word is the object it denotes, while the meaning of a sentence is its truth value (Frege 1952b). In light of our discussion in Appendix I this statement is nonsensical, since we have shown that the difference between a word (or a phrase that is not a sentence) and a sentence is present only in the "psychological" aspects that involve the speaker's hypotheses about the hearer's knowledge and the like. In our view there is thus no place for such a distinction, and so we will discuss the meaning of a **datum,** whatever its linguistic form might be.

Frege, Russell and others established a theory of reference, which claims that the meaning of a word (or a name) is an object in the real world (Frege was more moderate on this issue, in his distinction between "sense" and "reference"). Russell claimed that the discussion was about objects that could be empirically known, and accused anyone who did not agree with him of lacking "a robust sense of reality" Russell 1920: 170). Aside from the problem that this philosophical trend involves a blurring of the boundaries between meaning and truth, it cannot hold from the standpoint of Source Theory. Source Theory does not recognize any principled superiority of the senses over other sources. If we accept the basic notions of the reference theory, the test should be not the relations between the word and the sense datum, but rather the relations between the word and a datum transmitted by any of the basic sources of the system in question. Just as Source Theory does not have a concept of pure truth but only "truth in a system", so it does not have a concept of pure meaning, but only "meaning in a (cultural) system".

The main opposition to the Russell and Frege's theories of reference is the later Wittgenstein's "meaning as use" theory (Wittgenstein 1953). In this view, meaning as external object is not workable, at least not as the only test, because there are many words which do not denote external objects. The meaning of a word is the way it is used in language, which is a "way of life" rather than a mental state, and is determined by following social rules, just as one follows the rules of a game. Wittgenstein also claims that the meanings of words in language are not fixed.

If we reformulate the controversy in terms of Source Theory, we find that it is limited to some very fine points, and may even disappear completely. The only assumption we need here is that language is a subsystem of the cultural system, activated by the individual. Russell bases meaning on truth, and truth is itself determined by the system's sources, so that the meaning of a word (as well as that of a sentence) is the object transmitted by the basic sources of the very same system. As with what was said above regarding proper names, this meaning is created by the fact that someone, some time in the past, determined that a particular object should have a particular name, and this meaning is transmitted from one speaker to another until it becomes the property of the community – which is the source h. When a person is born into a cultural system, he receives the meaning of the word from the sources who teach it to him, i.e., who transmit to him its meaning according to h. Since h is composed of many speakers, and many additional data about the object were added to the original data over the years, while some of the original data may have been forgotten, their meaning in spoken language is not fixed. Russell was very much aware of this, and the logical positivists even more so.

 The data transmitted by h do not necessarily determine meaning, but rather methods of use. And when they do determine meaning, this meaning is not fixed.

Since Russell too is aware that objects are not fixed in natural language, it turns out that the only difference between Russell and Wittgenstein, in terms of Source Theory, is the question of whether h determines meaning through establishing a connection between a word and an object or through establishing the way a word is used without any necessary connection with an object.

It seems that the later Wittgenstein ignored Frege's remarks about the nature of concepts. In Frege's view, concepts are not the product of language; they are associated with the "physics" rather than the "psychology" of things. Accordingly, concepts are the general boundaries according to which various individual objects in the world are divided, and since objects are divided into such groups in actuality – without any connection to the way they are perceived – then these boundaries are "real". Language, conversely, is the expression of the human aspiration to create words suitable for the everyday needs of most of its speakers. Sometimes words embody the aspiration to reach the utopian, pure, sharp boundaries of the concepts, but sometimes they do not; and even when they do embody this aspiration, it is obviously pointless: If every attempt to define a word analytically makes use of more general words, and so on, then how can the most general words be defined? Plato tried to answer this question by looking for the "primary elements" (Plato 1997, p. 223, [Theaetetus, Steph. p. 201] ) or the "most important (i.e. supreme) kinds" (Plato 1997, p. 275, 277 [Sophist, Steph. p. 253c, 254d]) of reality, which he took to be undefinable. But if the only way to understand words precisely is by analytic definition, those "primary" undefineable terms cannot be understood; and if they cannot be understood, neither can all the terms that are defined by them; thus, in a *reductio ad absurdum*, nothing is understandable (compare Wittgenstein 1953: 46). However, the linguistic difficulty in defining the primary elements or even understanding them in *language* does not negate the claim of Plato and his followers that the *world* is indeed divided in this basic way, whether or not we are able to express it in words.

Moreover, even if we give up the quest for "primary elements", we know that every general concept reflects a division of the world. If we imagine the world as the totality of all objects, it is possible to divide it in a variety of ways. Each division into two leaves us with some objects on one side of the boundary and other objects on the other side, whatever that boundary might be. Our ability to discover the line where the "boundary" lies – that is, the borders of the concept as opposed to what is not inside these borders – may be limited, but it is this aspiration that underlies the philosophical and scientific aspiration for exactness. Indeed, this very attempt may sometimes change the contours of the boundary, and there are also additional factors, especially cultural processes that affect natural language, that constantly change this contour, but none of this necessitates the conclusion that such a contour does not exist.

Wittgenstein's claim thus does not undermine the view of the world as divisible into primary kinds, secondary kinds, and so on, but only raises the question of the degree of fit between the this non-verbal metaphysical division and the division of concepts expressed by words in language. Natural language is indeed very dynamic, but this dynamic is closely connected with the state of our knowledge about the objects that language is supposed to represent. Furthermore, as mentioned previously, our concepts about the objects in our minds also change constantly. The fact that they are nonetheless relatively fixed does not mean that they determine absolute boundaries in some metaphysical sense, but only the conventions that are accepted by the cultural community at a particular time. Frege, Russell and the logical positivists can also agree with this. The main difference between them and the later Wittgenstein is on the question of how far we can rid ourselves of natural language and create a "scientific language" that better represents the conceptual division (which is actually metaphysical, even though some of the philosophers under discussion would not use that term). However, the naïve vision of creating a pure scientific language no longer fires the imagination of philosophers. It seems to me that at the present time it is enough to say that scientific language tries to refine the concepts of natural language as much as possible and make them as close as possible to a metaphysical conceptualization, but this process is endless, with a goal that is largely utopian.

In many areas of life the advancement of knowledge leads to changes in our concepts about objects, and thus the changes in the meanings of words reflect our increasing ability to define their boundaries precisely. Clearly, for example, the definition of gold according to Mendeleev's periodic table allows us to understand the concept of gold more precisely (within WRS). Even people who do not know this definition know, for example, that "fools' gold" is not gold, and that they have to beware of fakes, as long as they are members of this cultural system to one degree or another. In such cases, we can assume that the historical process has occurred largely the way Kripke described it. We can imagine that primitive people came upon a bright yellow metal and called it "gold". In Kripke's terms, this was its baptism. It is entirely possible that this metal was not even gold, but rather platinum or fools' gold, but the baptism took place anyway. (Indeed, Kripkean baptism does not necessarily have to be based on a *true* description of the object named! – compare Gettier 1963). Later generations discovered some of its chemical and physical properties and distinguished among different types of bright yellow metals, culminating in Mendeleev's definitive characterization. At present, no one knows which metal was called "gold" at the dawn of history, and very few (mainly historians of science) know which metals were called "gold" at different points in the development of science. The word "gold" in our language reflects the latest developments of science that have come to the notice of h.

This is even more true when we consider what Searle and others call "institutional facts" (in contrast to "brute facts" such as the nature of gold). In these cases, h is often not a source that presumes to transmit an outside fact, but the very creator of that fact. In this respect, the fact that a bachelor is an unmarried man is even more secure than the fact that gold is a metal: The latter required a long scientific development to be validated, while the latter was an unshakeable truth ever since h coined the term "bachelor".

In other areas of life we do not even try to reach such precision. For example, the fruits and vegetables that existed a hundred years ago were quite different from the ones with the same names today – now they are grown differently, which changes their taste and shape. Moreover, in the course of the centuries, new species of fruits and vegetables have been developed, with very different shapes and tastes, thus expanding the boundaries of the concept of each fruit or vegetable. We continue, however, to use the same names for them, since the process of change has been gradual and they are used in more or less the same way that they were used in the past. If a historian wants to know what the meaning of "tomato" was in an early twentieth-century text, he would have to find out the boundaries of the concept at that time through the use of evidence, but most language speakers are not the least bit interested in this topic. (To be sure, the meanings of linguistic expressions can sometimes change through deliberate manipulation; such changes are discussed below in Appendix IV.)

It is noteworthy that discussions parallel to those in the philosophy of language have also taken place in the philosophy of law. Here it was Hart (1961, Chapter 7) who noticed, more than any of his predecessors, that the legal terms used by legislators seem to have two circles of meaning: the hard circle, which he called the "core", and the soft circle, which he called the "penumbra". In the core, any speaker of the language can determine which objects fall under a legal term, while terms in the penumbra are subject to uncertainty. This area thus has an "open texture", where interpretation is required. This, says Hart, is where judicial discretion has to be involved. Several scholars (especially Bix 1996; Marmor 2005) have noticed the connection between this view and that of Wittgenstein, but even in Hart's theory the core area is supposed to be determined not by pure metaphysical concepts, but rather by the accepted use of natural language. Hart did not discuss Wittgenstein's philosophy, but his theory offers some perhaps unintended answers to some of the questions Wittgenstein presented. Hart showed that the fact that linguistic expressions have a penumbra makes their borders less rigid, but does not annihilate them altogether. The fact that gray exists does not negate the existence of black and white; there is black, there is white, and there is also a gray area between them (this idea is largely the theoretical basis of fuzzy logic). Similarly, the fact that the boundaries are constantly moving does not negate the fact that they exist, since the boundaries at t3 were created by expanding or contracting the boundaries at t2, which for their part were created by expanding or contracting the boundaries at t1, and so on. In other words, it is the gradual historical evolution that determines the continuum of meaning of linguistic expressions, even though times change.

This leads to the same conclusion as that presented above. The later Wittgenstein was right in stating that the boundaries of linguistic expressions are not always clear, and even those that are clear are constantly changing, so words do not have fixed, eternal meanings. On many issues, however, everyday language does not aspire to any fixed meaning, and all we need is what is accepted at a given moment in our cultural system. In areas that are not philosophical or scientific, we do not aspire to precision, but only to effective use. When I go to the store to buy tomatoes, I am not interested in any pure – philosophical or scientific – concept of tomatoes, but only in an ingredient for salads. Even here, as mentioned above, the boundary has not shifted on the level of pure concepts. There is a pure concept of a tomato of the old sort, such that the tomatoes of the new sort are outside its boundaries; and there is a broader pure concept of tomatoes that includes both the old and the new sort. These have always been part of the extension of the concept, even before they actually existed. Natural language does not represent the world of pure concepts, but only the constant aspiration to represent them, and even this is true only in the areas in which people aspire to precision, such as philosophy and the sciences. Of course, this is not in Wittgenstein's line, but neither is it in Frege's: Frege spoke of "objective" concepts existing in the external world, and so could consider them pure and rigid; Wittgenstein spoke about concepts as created by language, and therefore saw them as vague and unstable.

As I suggested above, Source Theory helps us to eliminate most of this alleged controversy: for both Frege and the later Wittgenstein, concepts are ways of dividing the world, and there are numerous possible ways of doing so. The question is whether there is a single "right" way, and whether this way is attainable, in view of the fact that we acquire our concepts through our "deficient" ordinary language. Source Theory reminds us that all of our data, whether those of metaphysics and logic or those of language, whether "right" or "deficient", come from sources. The right data for the division of the world are those that are transmitted by the basic sources of the ideal system of the activator concerned – in the case of Western philosophers like Frege and Wittgenstein this is the source mechanism of WRS – and the deficient ones are those transmitted by other sources, in our case by h, insofar as h is not subordinate to the source mechanism of WRS. These sources are parts of the source model of the real system under discussion. The gap between Fregean concepts and Wittgensteinean concepts is just another manifestation of the gap between the real system and the ideal system that is almost taken for granted by Source Theory.

Philosophers and scientists try to use language to represent the world. Since Wittgenstein showed that many linguistic expressions do not play such a role, but are rather action rules for language users, we may take one of the following views: either these expressions somehow help us create the representations, or they do not. If they do, they are parts of the mechanism of representation even though they are not themselves representations; if they do not, then we should try to exclude them in disciplines that strive for precision. The problems involved in this striving for precision do not necessitate the defeatist conclusions of some philosophers (e.g., Rorty 1979), but only imply that we need to increase our efforts to figure out how to achieve precision in spite of the problems.

In the discussion above I addressed only semantic aspects of language, but the gist of my arguments applies, *mutatis mutandis*, to its syntactic and even pragmatic aspects as well. This issue deserves a more extensive discussion, which should be undertaken elsewhere, so I will only name a few points: The laws of syntax are data. They are transmitted to us explicitly only during late childhood and adolescence, in grammar classes at school, for example, but we begin to acquire them at much earlier stages. The sources that transmit them to us are not much different from those who transmit semantic relations, i.e., the community of the speakers of the language, especially those in our close environment. Even if the rules are not formulated explicitly by these sources, as they are presented to us in grammar classes and books, they are nevertheless parts of the content of what is said to us.

This is one of many examples of the fact that the term "transmission" does not refer only to plain and explicit conveyance of the contents but also to other forms, which are more complex and implicit. Even pragmatics, a discipline that explores the more fluid aspects of human language, has been shown in recent scholarship to be based on rules and compositionality which are transmitted in everyday speech. In both realms – syntax and pragmatics – it should be remembered that (unlike what Wittgenstein's *Investigations* implies) language rules are also kinds of objects, and we identify and acquire them through learning processes that are not far different from those through which we acquire data about word-object relations.

This discussion is not intended to decide controversies in the philosophy of language, but only to show how to apply Source Theory to these problems. Let us now try to formulate our conclusions in terms of Source Theory. The system of pure concepts is the ideal system of a cultural system. The world can be divided up in numberless ways, but the division that system users aspire to achieve is the one transmitted to them by the sources of their cultural system (in the case of WRS, the basic cognitive tools). In contrast, the division reflected by natural language belongs to that cultural system's real system, for which h is the principal source. The aspiration to achieve the ideal system is thus the one discussed above – that is, the attempt to bring the real system closer to the ideal one.

Moreover, Source Theory provides a simple explanation for the question of how meaning is possible at all. Since everything takes place within the same system, it is the same system that transmits both the data and the way that other data – linguistic expressions – should be used to represent them, as well as how other linguistic expressions should be used as aids in the act of representation. Linguistic representation is thus no longer mysterious, as it is merely the encounter between the data of sources within the same system, which is possible due to the obvious fact that the sources in a system influence one another mutually.

# CHAPTER EIGHT

# **Summary and Perspective**