Kaarlo Tuori, Ratio and Voluntas: The Tension Between Reason and Will in Law, Farnham: Ashgate, 2011, xxii+343 pp, hb £70.00.
| DOI | http://doi.org/10.1111/1468-2230.12028_3 |
| Date | 01 May 2013 |
| Author | Jan Komárek |
| Published date | 01 May 2013 |
Kaarlo Tuori,Ratio and Voluntas: The Tension Between Reason and Will in
Law, Farnham: Ashgate, 2011, xxii+343 pp, hb £70.00.
Kaarlo Tuori’s Ratio and Voluntas can be read as a contribution to several fields:
first, to legal theory and philosophy, where the conceptual framework builds
on Tuori’s previous work on ‘critical legal positivism’ (K. Tuori, Critical Legal
Positivism (Aldershot: Ashgate 2002); second, to the history of legal thought in
the Western legal tradition, as the author explores debates on the concept and
nature of law in England, the United States and Germany over the last three
centuries. This aspect is closely linked to an effective use of sociology in an
examination of the role of legal science in maintaining and cultivating law’s
deeper structures, which is the underlying theme of the book. And finally, Ratio
and Voluntas should interest constitutional theorists, since it examines the notion
of Rechtstaat and the possibility of legitimate adjudication by constitutional courts
today. The richness comes at a price, however. The book sometimes loses focus
and it is not always easy to connect its various themes and lines of thought into
the unifying narrative suggested by the book’s subtitle: ‘the tension between
reason and will in law’.
In the introduction, Tuori summarises his earlier work on ‘critical legal
positivism’, which provides the theoretical background for the present book. In
Tuori’s view, law is both a symbolic-normative and social phenomenon. These
two sides continuously interact with each other: legal practices (legislative law
making, adjudication and legal science) produce and reproduce the legal order
and provide it with ontological foundations. This process, which Tuori calls
‘sedimentation’, is multi-layered. There is a surface level, consisting of positive
law, and a sub-surface one, formed by legal-cultural elements, such as general
legal concepts, legal doctrines, patterns of argumentation etc. The relationship
between the two is recursive: as much as the sub-surface level is enriched by the
interventions of legal actors on the surface level, so these interventions are
informed by legal actors’ pre-understandings formed at the sub-surface level. The
modern law’s ratio, which is located on the sub-surface level, therefore disciplines
‘the free reign of the law’s voluntas’ (xi) – the volitional legal practices.
Importantly, Tuori does not tie ratio or voluntas to a particular institution or
legal actor. For him (echoing Habermas’s discourse theory of law and democ-
racy), there are different forms of reason, which inform all legal practices (albeit
in different ways). The legislator therefore uses instrumental reason, which is no
less ‘rational’ than moral or ethical reason, which prevails in discourses that we
usually relate to courts. The major part of the book is concerned with attempting
to identify the place of the law’s ratio and to examine how (and by whom) it has
been maintained and cultivated in different legal systems in different periods.
The exploration begins with a study of legal science’s ambiguous position
between ‘true’ (paradigmatically natural) sciences, and other legal practices, of
which legal science is part. Tuori describes the ‘imposed normativity’ of legal
science, which – contrary to other disciplines – must give up on reflexivity: the
possibility of questioning the very presuppositions of the discipline in the interest
of getting truth. ‘Legal scholarship’s principal objective is not to procure true
prescriptions or explanations of extra-legal reality’ (15); to be a legal science, it
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© 2013 The Authors. The Modern Law Review © 2013 The Modern Law Review Limited.
646 (2013) 76(3) MLR 639–648
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