On Shared Mutual Beliefs
What is essential concerns the intersubjective meaning, or to be exact, what makes shared intersubjective meanings possible (Simmonds 1984, 104). It is what all the individuals belonging to a certain community believe about the world.
This is the view emphasised by Bertrand Williams, for whom the “shared life” is something more than an atomistic individualism (Williams 1985, 104; Sandel 1982, 174). The institutions and institutional facts exist for those individuals because the institutions are based on shared mutual beliefs (Lagerspetz 1995, 9), and further, because those people believing in the institutions also act in accordance with the beliefs. Thus the matter is about a shared consciousness. For this consciousness, it is not enough that individual people happen to believe in a certain thing as “state”, “money” or “legal person”. They also need to know that other community members share this belief. Let us look at the belief and/or attitude X concerning a societal fact Y (p is q).The belief X is shared and mutual in a given community, C, if, and only if
1. every member of community C believes X;
2. every member of community C believes that every other member of C believes X.
The belief X is connected to the actions of the community members (of C) as follows (Lagerspetz 1995, 134). An entity, E, is a conventional fact if, and only if, there is a mutual belief X, and this belief provides a reason for the relevant agents
to realise E. The other reason for action is a general rule (or practice), which is an object of mutual beliefs. In this case, a conventional (individual) fact can be subsumed under such a rule or practice. All this is applicable to law too. Law is, as Lagerspetz points out, an institution comparable to language and money (Lagerspetz 1995, 134).
This does not mean that “normal” reality does not exist.
On the contrary, the tree in front of me does exist perfectly independently of me and of the way in which I interpret what I am looking at. If I call the tree “birch” it moves to be a social fact because, on the basis of our shared mutual beliefs, only a certain type of tree qualifies as a birch. The “brute” fact and the “social” fact thus have an existence of their own.The shared mutual beliefs are always reflexive, and in some sense circular. This does not, however, cause any harm in our communication. We have to accept that the analysis of social reality is necessarily reflexive due to the fact that the social reality is built up on a reflexive network of beliefs and attitudes. No ontological theory whatsoever can change this nature of human and social existence. As social beings, we simply have that kind of ontological structure within us.
One question is still open. As we noticed, the shared mutual beliefs are (at least partial) grounds for the social activity. Why is it so? What forces people to behave in accordance with shared beliefs? According to Eerik Lagerspetz, the reason is the need for co-ordination. In a certain situation it may, in principle, be possible to follow several alternative practices, but all things considered, only one practice is reasonable. In traffic, of course, it would be unthinkable to drive either on the right or the left side of the road. Actually both practices are known in the world. The shared belief that one should drive on the right side is a necessary and sufficient reason to follow that practice in a particular country. Otherwise, people could not coordinate their behaviour and the result would be traffic chaos. As Eerik Lagerspetz puts it, our lives with the shared beliefs and conventions is easier than without them (Lagerspetz 2009, 189).
The conventionalist ontology does not mean that people in a certain community have actually made a “contract” with which they should behave in the future. Such agreements are certainly not historical facts and, for other reasons, they are not necessary either.
Shared mutual beliefs and social conventions result from continuous processes, as the spoken language is a result of development that is as old as the human language in general. Language is not a matter of agreement. Lagerspetz points out, that we can agree with the meaning of a single word but not all meanings are based on agreements because the agreement already presupposes that we have at least some meanings available. Once again: One has to know something in order to ask the name.All this means that people grow up to know the shared beliefs without being necessarily aware of this learning procedure. Sometimes an individual person has an incorrect image of the content of a shared belief and he must learn things through these errors. However, the whole society can never have an incorrect image concerning its own conventional basis. In this very sense, a community as a whole cannot make mistakes as regards the shared beliefs.
As far as DSL is concerned, all this means that the research objects are the mutual beliefs about valid law. There is no simple entity as a legal norm, yet it is still the task of DSL to produce information about it. A valid norm is a social (and conventional) fact based on mutual beliefs in it, or on general norms, which, in their turn, result from mutual beliefs. All in all, DSL is dealing with a set of beliefs, and making them into a coherent whole called justification of an interpretative standpoint.
In this way, the task of DSL, the ontology and epistemology of law, the theory of language and the methodological theory of legal reasoning are nothing but dimensions of the nature, function and societal role of legal research.