In this short video lesson, , part of the Legal Fundamentals Explained (LFE) series, Tiago Rodrigues Barboza (University of Lisbon) explores the relationship between truth, objectivity, and legal statements. He examines how the concept of truth relates to legal discourse and raises the central question: what is the relationship between truth and legal statements in the context of law?
Below, you can find the full transcription corresponding to this video lesson*.
Tiago Rodrigues Barboza
Hello, my name is Tiago Barboza. I’m a guest lecturer at the Lisbon School of Law. In this video, I’ll be exploring the relationship between truth, objectivity, and legal statements.
The relationship between truth and law can be explored in many different ways, and of course, we won’t be able to cover them all in a short video like this. So, I will focus on a more specific question: What is the relationship between truth and legal statements?
By legal statements, I mean sentences like, “In Italy, the death penalty is legally prohibited,” or “In Spain, same-sex marriage is legally permitted.” These are statements that tell us something about the legal status of certain actions, always in reference to a specific legal system.
Legal statements play a central role in both legal practice and legal knowledge. At the end of the day, what judges, lawyers, and even citizens want to understand is: What can I do? What am I allowed or required to do under the law? That understanding is always communicated through legal statements.
This brings us to a big, important question: What makes a legal statement true or false?
Even this narrower question is still too broad to fully answer in just a few minutes. So my goal here is not to offer a definitive solution. Instead, I want to highlight the key questions, challenges, and complexities we need to keep in mind when dealing with this issue.
Before we go any further, it is important to clarify what we mean by legal statements in this context.
First, it’s important to highlight that legal statements can appear at different levels of abstraction – from broad and general to very specific. Besides this, it’s useful to distinguish between pure legal statements and applicative legal statements.
Pure legal statements don’t refer to any particular case. For instance, the statement “The Portuguese Constitution protects freedom of expression.” This kind of statement tells us something about the content or presence of a general norm in the legal system.
Applicative legal statements, on the other hand, refer to a specific action or situation. For example, “Publishing an unauthorized biography is permitted by the Portuguese Constitution.” Here, we are saying that a particular type of action has a specific legal status under a certain norm.
In short, the first kind of statement tells us what the law says, while the second tells us how and if the law applies to a concrete case.
This distinction is important because, as we will see later, the conditions that make each type of statement true or false are not the same.
For this presentation, we will focus on the truth conditions of applicative legal statements.
Before we go further, two important distinctions should be added in reference to applicative legal statements.
First, we need to distinguish between internal and external applicability.
A norm is internally applicable when a particular case instantiates the general case described in the norm. For example, if a municipal regulation states that vehicles are not allowed in the park, and someone says bicycles are prohibited in the park based on that general rule, they’re making a statement of internal applicability. As you can see, internal applicability is the same as classical subsumption.
However, there are situations where a norm is internally applicable but cannot be used to decide the case. Think of norms that are inapplicable due to being invalid or temporarily suspended. In such cases, even if the norm is internally applicable, it cannot legally be applied.
This is where Moruzzi and Navarro introduce the concept of external applicability. External applicability refers to the legal duty to apply a norm, often imposed on a specific category of legal actors, typically judges.
This distinction is crucial because for a decision to be justified, the norm that supports it must be both internally and externally applicable. If a judge applies a norm that isn’t externally applicable – like one not yet in force – the decision lacks proper justification. The same applies if the norm isn’t internally applicable – for example, using the norm “no vehicles in the park” to prohibit a child from entering the park with a toy car.
A final distinction is worth mentioning. A judge might be required to apply two different norms to the same case. That is, two different norms can be both internally and externally applicable to the same case – a situation that is quite common, for instance, in constitutional law, especially involving fundamental rights.
Let’s return to our earlier example. Suppose it’s true that, based on freedom of expression, John has the right to publish an unauthorized biography. But it might also be true that, based on the right to privacy, John is prohibited from publishing it. Both norms are internally and externally applicable.
This leads us to distinguish between prima facie and strict applicability.
Prima facie applicability refers to the initial, provisional duty to apply a norm.
Strict applicability refers to the duty that remains after resolving conflicts between norms.
So in this section, we introduce two key distinctions:
- The distinction between internal and external applicability, meaning we can have applicative legal statements that refer to either.
- The distinction between prima facie and strict applicability, meaning we can also have applicative statements that refer to one or the other.
These distinctions are essential for at least two reasons:
First, and this seems clear, a statement about internal applicability has different truth conditions than one about external applicability. The same goes for prima facie and strict applicability.
Second, they show us that studying truth in legal statements means analyzing the truth conditions of each specific type of statement.
Just as importantly, they help us recognize that, in concrete cases, what really matters is the truth of statements about the strict applicability of a norm. In other words, to justify a court ruling, for example, a judge must rely on the norm that is strictly applicable to the case at hand.
At this point, it should be clear that an applicative statement about the strict applicability of a norm is the final outcome of several distinct stages of analysis. Let’s break down some of those steps: vs –
- We have to identify the legal sources – this usually means identifying legal texts or norm formulations.
- We must interpret those texts. Through interpretation, we extract the actual legal norms the texts express.
- We need to test internal applicability. This means asking whether the case at hand falls under the generic case described by the norm. For example, is a bicycle considered a vehicle under the rule prohibiting vehicles in parks?
- We test external applicability. This involves determining whether the legal actor – for example, the judge – has the duty to apply that norm.
- Finally, we check for any conflicting norms. Is there another norm that applies to the same case and overrides the first one?
Let’s say a rule prohibits bicycles in parks. But what if a doctor rides a bike into the park to help someone having a heart attack? In that case, a health protection norm might defeat the traffic rule. The decision maker would need to resolve this conflict before deciding which norm is strictly applicable.
These steps are not always clearly laid out in legal opinions, but they offer an analytic framework for understanding what is required to determine whether a norm is strictly applicable to a case.
The central question still remains: How do we know whether an applicative statement about the strict applicability of a norm is true or false?
Interestingly, the deeper issue might not be truth itself, but rather objectivity.
As I use it here, objectivity refers to the nature of the truth conditions of a statement. In that sense, something can be true without being objective. For instance, the statement “I prefer apple pie to ice cream” can be true, but it’s true because of a subjective mental state – my personal preference or taste.
So the question is: Are the truth conditions of applicative legal statements, especially those about strict applicability, subjective or objective?
Let’s explore four different views on this spectrum:
- Radical subjectivism: According to this view, a legal statement is true or false depending entirely on someone’s preferences, beliefs, or desires. There are no objective facts that determine the truth of applicative legal statements – it’s all a matter of personal or institutional will.
- Radical objectivism: At the opposite end, this view holds that every normative statement has a truth value grounded in an objective fact. For example, if the question is whether sleep deprivation qualifies as cruel treatment, there must be a fact of the matter that makes this statement true or false, regardless of what anyone thinks or feels.
- Consensus-based theories: This view falls somewhere in the middle. It says that an applicative legal statement is true if it reflects general agreement within a certain group. Of course, opinions differ about which group should count – judges, citizens, experts – and how broad the agreement needs to be.
- Ideal deliberation theories: This view holds that a legal statement is true if it would be accepted by people under ideal conditions of reasoning and deliberation. It’s not just about current agreement – it’s about what would emerge if the group were fully informed, impartial, and rational.
So, more than proof itself, it seems that the central debate becomes this: Are the truth conditions of applicative legal statements grounded in objective facts, or do they ultimately depend on subjective beliefs, attitudes, or mental states?
That question remains open. But I hope this presentation offers a useful starting point for thinking more deeply about this rich and complex topic.
Thank you for watching.
(*some minor grammatical and changes have been introduced in order to make the reading more fluid, but in no way altering the content or the format of each speaker’s interventions).
The LFE video series is powered by the EU Horizon Twinning project “Advancing Cooperation on The Foundations of Law – ALF” (project no. 101079177). This project is financed by the European Union.
