SlideShare uma empresa Scribd logo
1 de 8
Baixar para ler offline
Kinds of Theory of Legal Argumentation
By Aleksander Peczenik

1.   General Legal Doctrine
General legal doctrine describes and systematises legal sources and legal argu-
ments. German Juristische Methodenlehre delivers the best examples of it. For ex-
ample, Karl Larenz’s book (1983) has the following structure. Its historical part
includes, among other things, information on Savigny’s views on legal method.
Friedrich Karl von Savigny was the most influential German legal scholar in
XIXth Century. It also gives information about the so-called jurisprudence of
concepts; information about legal theory under influence of positivistic idea of
science; and information about the so-called jurisprudence of interests. Finally, it
includes information about a new legal method, proposed by Larenz, called juris-
prudence of values. The systematic part includes, inter alia, the doctrine of sub-
sumption, that is, the logical relation between general norms of legal statutes and
particular legal decisions. It includes the doctrine of evidence, telling the lawyers
how to evaluate different kinds of evidence presented for the courts. It includes
also the doctrine of interpretation of legal statutes. Finally, it includes a discus-
sion about legal concepts and legal system.
  General legal doctrine also produces self-reflection about goals it serves and
methods it uses, for example about standards of rationality in the law. It also
includes philosophical tools and philosophical insights useful for jurists.
  General legal doctrine is neither purely descriptive nor purely normative. It fits
well Svein Eng’s general theory of the descriptive and the normative element in
legal language and argumentation (Eng 2003, 312 ff). According to Eng, state-
ments about valid law can be understood both as description of existing law and
as normative recommendation as to how to make the law better. There are no
rules at the level of legal language or of legal methodology that may help us de-
termine usual kinds of statements by lawyers as either descriptive or normative.

2.   Relativism and Comparative Studies
The Polish scholar, Jerzy Wróblewski (cf., e.g., 1992) developed a rationalistic
and relativistic meta-theory of interpretation and implementation of legal stat-
utes. This means that he did not construct a theory about interpretation but a
theory about theories of interpretation. He thus formulated theories about the
ideologies of statutory interpretation. He also created a classification of various
actually existing and logically possible methods of statutory interpretation and
indicated their functions. The methods were reworked in the most rational man-
ner. The main analytical tool consisted in a distinction between two kinds inter-
pretative directives. Each method of statutory interpretation was thus character-
ised as a list of first-order directives, for interpretation of statutes, completed
                                         1
Kinds of Legal Argumentation – Draft 2005. © Aleksander Peczenik

with a list of second-order directives, for a choice between competing first-order
ones. The author himself did not endorse any of the methods, but he understood
the point of all of them. Relativism and intellectual liberalism of this kind were
important characteristics of Wróblewski's all works. He was able to find a ra-
tional core of any legal theory, however strange it might appear to others.
   In brief, Wróblewski developed a meta-theory, useful to classify and compare
various theories of law and various theories of legal argumentation, both descrip-
tive and normative. But he did not explicitly formulate his own theory of law, nor
a theory of legal reasoning, neither descriptive (delivering new knowledge of facts
or concepts), nor normative. No doubt, Wróblewski's meta-theory of law was
founded on profound philosophy, but he published no confession of this kind.
   Wróblewski’s method resembles the method of comparative law. No wonder
that he was the main intellectual figure of the project comparing interpretation of
statutes and interpretation of precedents in about ten different countries (cf.
MacCormick and Summers 1991 and 1997). The following argument types are
used in statutory interpretation, at least in the surveyed countries:
   — The argument from ordinary meaning
   — The argument from technical meaning
   — The argument from contextual-harmonization
   — The argument from precedent
   — The argument from analogy
   — The argument from relevant principles of law
   — The argument from history
   — The argument from purpose
   — The argument from substantive reasons
   — The argument from intention. (MacCormick and Summers 1991, 512ff.)

3.   Political Philosophy and Politics applied to Legal Argumentation
Another kind of research, containing both descriptive and normative compo-
nents, exists mostly in the United States. It uses information about legal reason-
ing to construct theories which in part resemble philosophical analysis, in part
political programmes. Ronald Dworkin’s theory is a good example.
  Let us read some fragments of Dworkin’s writings:
      The adjudicative principle of integrity instructs judges to identify legal rights
      and duties, so far as possible, on the assumption that they were all created by
      a single author - the community personified - expressing a coherent concep-
      tion of justice and fairness. […] According to law as integrity, propositions of
      law are true if they figure in or follow from the principles of justice, fairness,
      and procedural due process that provide the best constructive interpretation
      of the community’s legal practice. (Dworkin 1986, 225)




                                              2
Kinds of Legal Argumentation – Draft 2005. © Aleksander Peczenik

Moreover:
       Law as integrity […] holds that people have as legal rights whatever rights are
       sponsored by the principles that provide the best justification of legal practice
       as a whole. (ibid. 152)
Such a theory, appealing as it is, is not beyond doubt. As an example, one can
quote the following leaflet:
       This is an examination of Ronald Dworkin's claim that the true theory of le-
       gal practice is the theory that puts legal practice in its 'best light'. By 'best light'
       Dworkin means a measure of desirability or goodness: the true theory of legal
       practice, says Dworkin, portrays the practice at its most desirable. Now why
       would that be the case? What's between the desirability of a theory and its
       truth? (Raban 2003, 243)
It is not my intention to be entrapped in a dispute with Dworkin’s theory. Let me
merely state that his theory includes notoriously contestable statements about
categorical priority of principles over policies, about equality as the sovereign
value, about pre-existing rights, about the only right answer to all hard legal ques-
tions and so on. Such statements are partly a result of the author’s philosophical
background, partly a useful tool for political debate.
       Another example is William Eskridge’s dynamic theory of statutory interpre-
       tation (Eskridge 1991). His argues that statutory interpretation changes in re-
       sponse to new political alignments, new interpreters, and new ideologies. Ap-
       parently, it is a description. However, he also reveals sympathetic attitude to-
       wards dynamic interpretation of statutes. Moreover, he enters a discussion
       about legitimacy of this style of legal interpretation in the light of different
       “normative theories of jurisprudence” - liberal, legal process, and anti-liberal.
       Finally, he discusses the normative problem which theory of statutory inter-
       pretation best fits the requirements of modern democracy.


4.   Dialectic Approach – Aulis Aarnio
The well-known Scandinavian scholar, Aulis Aarnio has devoted many writings
to legal doctrine (legal dogmatic); cf., e.g., Aarnio 1997. The tasks of legal dog-
matic are interpretation and systematization of legal norms. This task is norma-
tive, in contrast to the explanatory task of sociology. Two basic demands of legal
interpretation are rationality and acceptability. Systematization aims at reformu-
lation of legal norms in an abstract manner, in relation to certain basic concepts.
Systematization is a bearer of legal tradition. According to Aarnio, legal interpre-
tation is a hermeneutic activity justifiable in relation to an audience. Legal audi-
ence is characterized as essentially relativistic, in the sense of admitting the pos-
sibility of disagreement about evaluations. Aarnio contrasts this relativism with
Ronald Dworkin's theory of only right answer to all legal questions. Whereas
Dworkin is bound to commit himself to value-objectivism, Aarnio’s own position
is relativist, but this relativity is also relative, namely relative to the audience.
Aarnio's theory of audience is one of his original contributions to legal theory. He
                                                  3
Kinds of Legal Argumentation – Draft 2005. © Aleksander Peczenik

has all his scholarly life aimed at understanding legal reasoning in the context of
society. He sees legal interpretation, legal institutions and human actions, as parts
of overarching totality. In brief, Aarnio has been inspired by the great philoso-
pher, Ludwig Wittgenstein. Aarnio has summarised this inspiration, as follows
(1997, 123-125):
        At least the following ideas seem to be interwoven in the Wittgensteinian
       way of thinking.
          (1) Practical legal discourse (praxis), in this very connection, the interpreta-
       tion of legal texts, is on the whole hermeneutic by nature. […]
          (3) Legal dogmatical interpretation is an activity. […] Meaning is not con-
       cealed in language and to be picked out from there. It is constructed, although
       not freely constructed, in the creative process of the interpreter. […]
          (5) […] A legal philosopher, […] is not to try and set norms as to how law-
       yers or scholars […] should act. The practical life cannot be dictated from the
       chamber of a philosopher. […] Yet, the task of a legal philosopher is a recon-
       structivist one. He tries to recover the implicit features of our language and be-
       haviour making them explicit, i.e. visible so that the language-games become
       understandable. […]
         (6) […] Lawyers try to clarify the content of the ideal normative world. Yet,
       legal thinking in this respect is horizontal, to use the expression of Hintikka
       […]. This leads us to a problem that has been extensively considered in the
       legal theory of the recent years, the concept of coherence.


5.   The Theory of the Present Author
My own theory has been influenced by Jerzy Wróblewski, Aulis Aarnio, Robert
Alexy (cf., e.g., Aarnio, Alexy and Peczenik 1981), and later by Jaap Hage (Hage
1997 and Hage-Peczenik 2000 and 2001). I have always focused on coherent
reconstruction of legal reasoning, using more profound philosophy only as a tool
that helps understand how the lawyers think. Among writings delivering such
philosophical tools, let me mention Berlin 1998 on value pluralism; Copp 1995
on socially centred morality; Haack 2003 on foundherentism in epistemology;
Lehrer 1997 on coherentism in epistemology; Smith 1994 on platitudes in moral
theory; and Swanton 1992 on wide reflective equilibrium. Recently, I have also
been deeply impressed by the following words:
       The conscientious philosopher has no alternative but to proceed systemati-
       cally. […] The fully adequate development of any philosophical position has
       to take into view the holistic issue of how its own deliberations fit into the lar-
       ger scheme of things. (Rescher 2001, 43)
The reconstruction of legal reasoning includes philosophical reflections. The
central point is that almost all legal thinking is defeasible, outweighable and justi-
fiable by recourse to coherence. Legal doctrine is the most elaborated form of
legal thinking. My latest book (Peczenik 2004) deals extensively with legal doc-
trine. Though jurists developing legal doctrine aim at generality, whatever they


                                               4
Kinds of Legal Argumentation – Draft 2005. © Aleksander Peczenik

say is open to counterexamples which originate from weighing of moral consid-
erations.
   When stating that it is the case, my theory is descriptive, not normative. But it
is also normatively recommended by the author as legally correct. In other words,
my theory not only describes legal doctrine but, being partly descriptive, partly
normative, itself belongs to general legal doctrine.
   In my opinion, binding norms are always social, in part inherent in the law and
legal practice, in part developed in the society in informal manner. Behind this
society-centred theory of normativity, there is a sceptical meta-theory. Being a
sceptic, I doubt any metaphysics, any moral theory, any epistemology, and I also
doubt any anti-metaphysical theory, any moral nihilism and any deconstruction
of knowledge. But even a sceptic must live, and this implies believing in some
things, though defeasibly. Nothing is certain, but inner normativity of the law
appears to me as less uncertain than normativity grounded on moral theories
which quarrel with each other.
   My theory is in agreement with Susan Haack’s general theory of knowledge.
Susan Haack’s theory tells us that knowledge is a coherent system linked to expe-
riential evidence. Justification is like solving crossword puzzles. Experiential evi-
dence is like clues to such puzzles. (Cf. Haack 2000 and 2003).
   Some years ago, assuming that legal doctrine is in part descriptive and in part
normative, I have written about legal data (Peczenik 1989, 143-144). The data
are so to say “input” of knowledge. Both the letter of the law, the description of
politically relevant facts and the judgments of justice are such data for legal re-
searchers. Legal researchers should try to arrange them into a coherent system of
beliefs and preferences.
   Instead of coherence, moral philosophers talk often about reflective equilib-
rium. Reflective equilibrium in legal knowledge must be constrained by experien-
tial evidence, but it is also constrained by other factors.
   John Rawls has characterized reflective equilibrium in the particular context of
his theory in the following manner:
       By going back and forth, sometimes altering the conditions of the contractual
       circumstances, at others withdrawing our judgments [...] I assume that even-
       tually we shall find a description of the initial situation that both expresses
       reasonable conditions and yields principles which match our considered
       judgments duly pruned and adjusted. (Rawls 1971, 20)
In my opinion, the idea of reflective equilibrium in legal justification requires
some modifications. This equilibrium is not free. It is equilibrium of a peculiar
kind, namely
      wide,
      constrained,
      segmented and,
      around commonly accepted platitudes.


                                             5
Kinds of Legal Argumentation – Draft 2005. © Aleksander Peczenik

Simple reflective equilibrium is too narrow for the legal doctrine. We need a
wider equilibrium. Concerning wide reflective equilibrium in morality:
        A wide reflective equilibrium is a coherent triple of sets of beliefs held by a
       particular person; namely, (a) a set of particular moral judgments; (b) a set of
       moral principles; and (c) a set of relevant background theories, which may in-
       clude both moral and nonmoral theories. […] The agent may work back and
       forth, revising his initial considered judgments, moral principles, and back-
       ground theories, to arrive at an equilibrium point that consists of the triple
       (a), (b), and (c). (Daniels 1985, 121; cf. Swanton 1992, 11ff.)
Another deviation of legal doctrine from the simple idea of reflective equilibrium
is this. A legal scholar is not entirely free to adjust principles and judgments to
each other but he must do it within the framework imposed by the law. Finally,
wide and constrained reflective equilibrium in legal doctrine is segmented. Each
juristic theory should according to its own standards be coherent for itself, inter-
nally. However, the theories have different scopes. Some are relatively narrow,
such as the theory of adequate causation in the law of torts. Others cover a whole
branch of law, such as private law. At the same time, there exists a total unifying
structure for the legal doctrine as a whole, and at the end the total system of ac-
ceptances, reasonings and preferences relevant for the law. Legal doctrine aims
not only at internal equilibrium of legal system, but also at equilibrium with
background knowledge of society and philosophy. The law is linked normatively
to morality or politics.
   Reflective equilibrium in legal doctrine is arranged around commonly accepted
platitudes, not around precise ideas. The importance of platitudes for human
thinking cannot be overestimated. It is obvious both in science and in morality.
Especially, Michael Smith (1994, 39ff.) stated that the following platitudes are
“surrounding our moral concepts.” Some indicate that moral judgement is espe-
cially practical. There are also platitudes that give support to our idea of the ob-
jectivity of moral judgement. Others tell us about the relation between the moral
and the natural. Yet others deal with substance of morality, namely concern and
respect for a person, etc. Some platitudes concern procedures, for instance reflec-
tive equilibrium.
   All those constraints on reflective equilibrium in the law are ultimately justifi-
able by recourse to a total system of acceptances and preferences (cf. Hage 2004,
100). It its turn, this total system is constrained by experiential evidence, in a
manner explained above on the basis of Susan Haack’s theory.
   This theory is complex but it has a simple point. The theory recognises that
the lawyers’ reasoning must stay within the limits outlined by the political sys-
tem. On the other hand, it also recognises that the lawyers in general and the
legal researchers in particular may and should re-work the law in the most ra-
tional manner. Only by following the requirements of rationality, legal reasoning
can achieve both harmony and justice. Only in this way, it may promote social
stability which is a necessary condition of progress and economic growth.

                                              6
Kinds of Legal Argumentation – Draft 2005. © Aleksander Peczenik

References
Aarnio, Aulis. 1997. Reason and Authority. A Treatise on the Dynamic Para-
   digm of Legal Dogmatics. Aldershot: Dartmouth.
Aarnio, Aulis, Robert Alexy, and Aleksander Peczenik. 1981. The Foundation of
   Legal Reasoning. Rechtstheorie 2: 133–58; 3: 257–79 and 4: 423–48.
Berlin, Isaiah. 1998. On Value Pluralism. New York Review of Books, Vol XLV,
   Number 8. http://www.cs.utexas.edu/users/vl/notes/berlin.html
Copp, David. 1995. Morality, Normativity & Society. Oxford: Oxford University
   Press.
Daniels, Norman. 1985. Two Approaches to Theory Acceptance in Ethics. In
   Morality, Reason and Truth. Ed. David Copp and David Zimmerman, 120–40.
   Ottawa: Rowman and Allenheld.
Dworkin, Ronald. 1986. Laws' Empire. London: Fontana.
Eng, Svein. 2003. Analysis of Dis/agreement – with particular reference to Law
   and Legal Theory. Dordrecht: Kluwer.
Eskridge, William N. 1991. Dynamic Statutory Interpretation. Harvard University
   Press.
Haack, Susan. 2003. Defending Science – within reason. Armherst, New York: Pro-
   metheus Books.
Hage, J. C. 1997. Reasoning with Rules. Dordrecht: Kluwer.
         . 2004. Law and Coherence. Ratio Juris, Volume 17 Number 1: 87-105.
Hage, J.C., and Aleksander Peczenik. 2000. Law, Morals and Defeasibility. Ratio
   Juris, Volume 13 Number 3: 305-25.
Hage, J.C., and Aleksander Peczenik. 2001. Legal Internalism. In: The Legal
   Ought. Ed. Pierluigi Chiassoni, 141-70. Turin: Giappichelli.
Larenz, Karl. 1983. Methodenlehre der Rechtswissenschaft. 5th ed. Berlin: Springer.
Lehrer, Keith. 1990. Theory of Knowledge. London: Routledge.
      . 1997. Self-Trust. A Study of Reason, Knowledge, and Autonomy.
  Oxford: Clarendon.
MacCormick, D. Neil, and Robert S Summers, eds. 1991. Interpreting Statutes. A
  Comparative Study Aldershot: Dartmouth.
       , eds. 1997. Interpreting Precedents. A Comparative Study. Aldershot:
   Dartmouth.
Peczenik, Aleksander. 1989. On Law and Reason. Dordrecht: Kluwer.
       . 2004. Scientia Juris. Treatise in Philosophy of Law, Vol. 4. Dordrecht:
   Kluwer



                                        7
Kinds of Legal Argumentation – Draft 2005. © Aleksander Peczenik

Raban, Ofer. 2003. Dworkin's 'Best Light' Requirement and the Proper Method-
   ology of Legal Theory, Oxford Journal of Legal Studies, Volume 23, Issue 2, June
   2003: pp. 243-264.
Rawls, John. 1971. A Theory of Justice. Oxford: Oxford University Press.
Rescher, Nicholas. 2001. Philosophical Reasoning. A Study in the Methodology
   of Philosophizing. Malden, Mass.: Blackwell.
Smith, Michael. 1994. The Moral Problem. Oxford: Blackwell.
Swanton, Christine. 1992. Freedom: A Coherence Theory. Indianapolis, Ind.: Hack-
   ett.
Wróblewski Jerzy. 1992. The Judicial Application of Law. Ed. Zenon Bankowski
   and Neil MacCormick. Dordrecht: Kluwer.




                                        8

Mais conteúdo relacionado

Mais procurados

Introduction to english jurisprudence (1)
Introduction to english jurisprudence (1)Introduction to english jurisprudence (1)
Introduction to english jurisprudence (1)AQSA SHAHID
 
topic : Analytical school (jurisprudence)
 topic : Analytical school (jurisprudence) topic : Analytical school (jurisprudence)
topic : Analytical school (jurisprudence)bivekchaudhary4
 
Jurisprudence introduction .
Jurisprudence   introduction .Jurisprudence   introduction .
Jurisprudence introduction .Sunishtha Moghe
 
What is the Psychoanalysis of Law
What is the Psychoanalysis of LawWhat is the Psychoanalysis of Law
What is the Psychoanalysis of Lawiosrjce
 
Jurisprudence (chapter 1 9) 1st year online LLB YUDE
Jurisprudence (chapter 1 9) 1st year online LLB YUDEJurisprudence (chapter 1 9) 1st year online LLB YUDE
Jurisprudence (chapter 1 9) 1st year online LLB YUDENay Aung
 
Need of positivist school of law
Need of  positivist school of lawNeed of  positivist school of law
Need of positivist school of lawSanjog Bhattarai
 
A conspectus of jurisprudence 2021
A conspectus of jurisprudence 2021 A conspectus of jurisprudence 2021
A conspectus of jurisprudence 2021 ArvindNathTripathi
 
Basics of Natural school of Jurisprudence
Basics of Natural school of JurisprudenceBasics of Natural school of Jurisprudence
Basics of Natural school of Jurisprudenceanjalidixit21
 
Nature of Legal Doctrine: Axiomatic, Logical and Normative Discipline
Nature of Legal Doctrine: Axiomatic, Logical and Normative Discipline Nature of Legal Doctrine: Axiomatic, Logical and Normative Discipline
Nature of Legal Doctrine: Axiomatic, Logical and Normative Discipline Preeti Sikder
 
Introduction to Jurisprudence
Introduction to JurisprudenceIntroduction to Jurisprudence
Introduction to Jurisprudencecarolineelias239
 
The historical and anthropological school of jurisprudence
The historical and anthropological school of jurisprudenceThe historical and anthropological school of jurisprudence
The historical and anthropological school of jurisprudenceAsst. Prof. (Dr.) Shahab
 
LLB LAW NOTES ON JURISPRUDENCE LEGAL THEORY
LLB LAW NOTES ON JURISPRUDENCE LEGAL THEORY LLB LAW NOTES ON JURISPRUDENCE LEGAL THEORY
LLB LAW NOTES ON JURISPRUDENCE LEGAL THEORY Kanoon Ke Rakhwale India
 
Ll.b i j1 u 3 schools of jurisprudence
Ll.b i j1 u 3 schools of jurisprudenceLl.b i j1 u 3 schools of jurisprudence
Ll.b i j1 u 3 schools of jurisprudenceRai University
 

Mais procurados (20)

Kelson pure theory
Kelson pure theoryKelson pure theory
Kelson pure theory
 
The long revolution or the road not taken...? John Dewey and the Realists
The long revolution or the road not taken...?  John Dewey and the RealistsThe long revolution or the road not taken...?  John Dewey and the Realists
The long revolution or the road not taken...? John Dewey and the Realists
 
Introduction to english jurisprudence (1)
Introduction to english jurisprudence (1)Introduction to english jurisprudence (1)
Introduction to english jurisprudence (1)
 
topic : Analytical school (jurisprudence)
 topic : Analytical school (jurisprudence) topic : Analytical school (jurisprudence)
topic : Analytical school (jurisprudence)
 
Jurisprudence introduction .
Jurisprudence   introduction .Jurisprudence   introduction .
Jurisprudence introduction .
 
What is the Psychoanalysis of Law
What is the Psychoanalysis of LawWhat is the Psychoanalysis of Law
What is the Psychoanalysis of Law
 
Jurisprudence (chapter 1 9) 1st year online LLB YUDE
Jurisprudence (chapter 1 9) 1st year online LLB YUDEJurisprudence (chapter 1 9) 1st year online LLB YUDE
Jurisprudence (chapter 1 9) 1st year online LLB YUDE
 
Need of positivist school of law
Need of  positivist school of lawNeed of  positivist school of law
Need of positivist school of law
 
Jurisprudence - Exam Notes
Jurisprudence - Exam NotesJurisprudence - Exam Notes
Jurisprudence - Exam Notes
 
A conspectus of jurisprudence 2021
A conspectus of jurisprudence 2021 A conspectus of jurisprudence 2021
A conspectus of jurisprudence 2021
 
Basics of Natural school of Jurisprudence
Basics of Natural school of JurisprudenceBasics of Natural school of Jurisprudence
Basics of Natural school of Jurisprudence
 
Nature of Legal Doctrine: Axiomatic, Logical and Normative Discipline
Nature of Legal Doctrine: Axiomatic, Logical and Normative Discipline Nature of Legal Doctrine: Axiomatic, Logical and Normative Discipline
Nature of Legal Doctrine: Axiomatic, Logical and Normative Discipline
 
Introduction to Jurisprudence
Introduction to JurisprudenceIntroduction to Jurisprudence
Introduction to Jurisprudence
 
Jurisprudence
JurisprudenceJurisprudence
Jurisprudence
 
Presentation
PresentationPresentation
Presentation
 
The historical and anthropological school of jurisprudence
The historical and anthropological school of jurisprudenceThe historical and anthropological school of jurisprudence
The historical and anthropological school of jurisprudence
 
LLB LAW NOTES ON JURISPRUDENCE LEGAL THEORY
LLB LAW NOTES ON JURISPRUDENCE LEGAL THEORY LLB LAW NOTES ON JURISPRUDENCE LEGAL THEORY
LLB LAW NOTES ON JURISPRUDENCE LEGAL THEORY
 
JURISPRUDENCE
JURISPRUDENCEJURISPRUDENCE
JURISPRUDENCE
 
Ll.b i j1 u 3 schools of jurisprudence
Ll.b i j1 u 3 schools of jurisprudenceLl.b i j1 u 3 schools of jurisprudence
Ll.b i j1 u 3 schools of jurisprudence
 
Austin theory in jurisprudence.
Austin theory in jurisprudence.Austin theory in jurisprudence.
Austin theory in jurisprudence.
 

Semelhante a Kinds Of Theory Of Legal Argumentation

1933_Meaning Defn Utility and Scope Jurisprudence.docx
1933_Meaning Defn Utility and Scope Jurisprudence.docx1933_Meaning Defn Utility and Scope Jurisprudence.docx
1933_Meaning Defn Utility and Scope Jurisprudence.docxashish371330
 
JURISPRUDENCE FOR BS POLITICAL SCIENCE STUDENTS
JURISPRUDENCE FOR BS POLITICAL SCIENCE STUDENTSJURISPRUDENCE FOR BS POLITICAL SCIENCE STUDENTS
JURISPRUDENCE FOR BS POLITICAL SCIENCE STUDENTSdrshahiryar
 
Legal terminology in translation practice: dictionaries, googling or discussi...
Legal terminology in translation practice: dictionaries, googling or discussi...Legal terminology in translation practice: dictionaries, googling or discussi...
Legal terminology in translation practice: dictionaries, googling or discussi...Lucja Biel
 
Karl N. Llewellyn 0503 Intro
Karl N. Llewellyn 0503 IntroKarl N. Llewellyn 0503 Intro
Karl N. Llewellyn 0503 Intro中鶴 林
 
Nature functions and_classification_of_law
Nature functions and_classification_of_lawNature functions and_classification_of_law
Nature functions and_classification_of_lawJaseme_Otoyo
 
Pierre
PierrePierre
Pierremurist
 
Debate on the Quality of Judicial Decisions (from Theory to Practice)
Debate on the Quality of Judicial Decisions (from Theory to Practice)Debate on the Quality of Judicial Decisions (from Theory to Practice)
Debate on the Quality of Judicial Decisions (from Theory to Practice)AJHSSR Journal
 
nature &scope of juris new-2.pptx
nature &scope of juris new-2.pptxnature &scope of juris new-2.pptx
nature &scope of juris new-2.pptxbeejalahuja1
 
Philosophy of Law. Eighth Edition 1952. By Giorgio Del Vecchio..pdf
Philosophy of Law. Eighth Edition 1952. By Giorgio Del Vecchio..pdfPhilosophy of Law. Eighth Edition 1952. By Giorgio Del Vecchio..pdf
Philosophy of Law. Eighth Edition 1952. By Giorgio Del Vecchio..pdfCarmenBeatriz14
 
Hunt 1986 theory of critical legal studies
Hunt 1986 theory of critical legal studiesHunt 1986 theory of critical legal studies
Hunt 1986 theory of critical legal studiesNaqiuddin Nazrin
 
Jurisprudence 1.pptx
Jurisprudence 1.pptxJurisprudence 1.pptx
Jurisprudence 1.pptxChinJoy1
 
judicial process interpretivism drowin theory
judicial process interpretivism drowin theoryjudicial process interpretivism drowin theory
judicial process interpretivism drowin theoryindujhaa6
 
ARTICLESAPPELLATE JUDGES AND PHILOSOPHICAL THEORIESJUDI.docx
ARTICLESAPPELLATE JUDGES AND PHILOSOPHICAL THEORIESJUDI.docxARTICLESAPPELLATE JUDGES AND PHILOSOPHICAL THEORIESJUDI.docx
ARTICLESAPPELLATE JUDGES AND PHILOSOPHICAL THEORIESJUDI.docxfestockton
 
Tamanaha
TamanahaTamanaha
TamanahaFAROUQ
 
Natural law and value oriented juris.
Natural law and value oriented juris.Natural law and value oriented juris.
Natural law and value oriented juris.Harmani Singh Jolly
 

Semelhante a Kinds Of Theory Of Legal Argumentation (20)

1933_Meaning Defn Utility and Scope Jurisprudence.docx
1933_Meaning Defn Utility and Scope Jurisprudence.docx1933_Meaning Defn Utility and Scope Jurisprudence.docx
1933_Meaning Defn Utility and Scope Jurisprudence.docx
 
JURISPRUDENCE FOR BS POLITICAL SCIENCE STUDENTS
JURISPRUDENCE FOR BS POLITICAL SCIENCE STUDENTSJURISPRUDENCE FOR BS POLITICAL SCIENCE STUDENTS
JURISPRUDENCE FOR BS POLITICAL SCIENCE STUDENTS
 
Legal terminology in translation practice: dictionaries, googling or discussi...
Legal terminology in translation practice: dictionaries, googling or discussi...Legal terminology in translation practice: dictionaries, googling or discussi...
Legal terminology in translation practice: dictionaries, googling or discussi...
 
Woodman art
Woodman artWoodman art
Woodman art
 
Ife Journal - 16
Ife Journal - 16Ife Journal - 16
Ife Journal - 16
 
Karl N. Llewellyn 0503 Intro
Karl N. Llewellyn 0503 IntroKarl N. Llewellyn 0503 Intro
Karl N. Llewellyn 0503 Intro
 
Nature functions and_classification_of_law
Nature functions and_classification_of_lawNature functions and_classification_of_law
Nature functions and_classification_of_law
 
Habermas law and morality
Habermas law and moralityHabermas law and morality
Habermas law and morality
 
Pierre
PierrePierre
Pierre
 
Debate on the Quality of Judicial Decisions (from Theory to Practice)
Debate on the Quality of Judicial Decisions (from Theory to Practice)Debate on the Quality of Judicial Decisions (from Theory to Practice)
Debate on the Quality of Judicial Decisions (from Theory to Practice)
 
nature &scope of juris new-2.pptx
nature &scope of juris new-2.pptxnature &scope of juris new-2.pptx
nature &scope of juris new-2.pptx
 
Philosophy of Law. Eighth Edition 1952. By Giorgio Del Vecchio..pdf
Philosophy of Law. Eighth Edition 1952. By Giorgio Del Vecchio..pdfPhilosophy of Law. Eighth Edition 1952. By Giorgio Del Vecchio..pdf
Philosophy of Law. Eighth Edition 1952. By Giorgio Del Vecchio..pdf
 
Hunt 1986 theory of critical legal studies
Hunt 1986 theory of critical legal studiesHunt 1986 theory of critical legal studies
Hunt 1986 theory of critical legal studies
 
Jurisprudence 1.pptx
Jurisprudence 1.pptxJurisprudence 1.pptx
Jurisprudence 1.pptx
 
judicial process interpretivism drowin theory
judicial process interpretivism drowin theoryjudicial process interpretivism drowin theory
judicial process interpretivism drowin theory
 
ARTICLESAPPELLATE JUDGES AND PHILOSOPHICAL THEORIESJUDI.docx
ARTICLESAPPELLATE JUDGES AND PHILOSOPHICAL THEORIESJUDI.docxARTICLESAPPELLATE JUDGES AND PHILOSOPHICAL THEORIESJUDI.docx
ARTICLESAPPELLATE JUDGES AND PHILOSOPHICAL THEORIESJUDI.docx
 
Jurisprudence.pdf
Jurisprudence.pdfJurisprudence.pdf
Jurisprudence.pdf
 
Tamanaha
TamanahaTamanaha
Tamanaha
 
Natural law and value oriented juris.
Natural law and value oriented juris.Natural law and value oriented juris.
Natural law and value oriented juris.
 
The Comparative Constitutional Law Enterprise
The Comparative Constitutional Law EnterpriseThe Comparative Constitutional Law Enterprise
The Comparative Constitutional Law Enterprise
 

Mais de legalwebsite

Scientific And Legal Perspectives On Science Generated For Regulatory Activities
Scientific And Legal Perspectives On Science Generated For Regulatory ActivitiesScientific And Legal Perspectives On Science Generated For Regulatory Activities
Scientific And Legal Perspectives On Science Generated For Regulatory Activitieslegalwebsite
 
Rule Legal Services, General Counsel, And Miscellaneous Claims Service Organi...
Rule Legal Services, General Counsel, And Miscellaneous Claims Service Organi...Rule Legal Services, General Counsel, And Miscellaneous Claims Service Organi...
Rule Legal Services, General Counsel, And Miscellaneous Claims Service Organi...legalwebsite
 
Oracle V Sap Legal Complaint Lawsuit
Oracle V Sap Legal Complaint LawsuitOracle V Sap Legal Complaint Lawsuit
Oracle V Sap Legal Complaint Lawsuitlegalwebsite
 
Notice Grant And Cooperative Agreement Awards Civil Legal Services To Eligibl...
Notice Grant And Cooperative Agreement Awards Civil Legal Services To Eligibl...Notice Grant And Cooperative Agreement Awards Civil Legal Services To Eligibl...
Notice Grant And Cooperative Agreement Awards Civil Legal Services To Eligibl...legalwebsite
 
Libraries And Legal Research By Lance M Werner Libraries And
Libraries And Legal Research By Lance M Werner Libraries AndLibraries And Legal Research By Lance M Werner Libraries And
Libraries And Legal Research By Lance M Werner Libraries Andlegalwebsite
 
Introduction To The Symposium On Legal Externships 2 Learning ...
Introduction To The Symposium On Legal Externships 2  Learning ...Introduction To The Symposium On Legal Externships 2  Learning ...
Introduction To The Symposium On Legal Externships 2 Learning ...legalwebsite
 
Introduction To The Symposium On Legal Externships 2 Learning ... 1
Introduction To The Symposium On Legal Externships 2  Learning ... 1Introduction To The Symposium On Legal Externships 2  Learning ... 1
Introduction To The Symposium On Legal Externships 2 Learning ... 1legalwebsite
 
Information Inflation Can The Legal System Adapt
Information Inflation Can The Legal System AdaptInformation Inflation Can The Legal System Adapt
Information Inflation Can The Legal System Adaptlegalwebsite
 
Court Of Appeals Upholds Gander Mountain Legal Victory
Court Of Appeals Upholds Gander Mountain Legal VictoryCourt Of Appeals Upholds Gander Mountain Legal Victory
Court Of Appeals Upholds Gander Mountain Legal Victorylegalwebsite
 
Copy Of Acme Legal Contract
Copy Of Acme Legal ContractCopy Of Acme Legal Contract
Copy Of Acme Legal Contractlegalwebsite
 
Adams The Legalized Crime Of Banking And A Constitutional Remedy (1958)
Adams   The Legalized Crime Of Banking And A Constitutional Remedy (1958)Adams   The Legalized Crime Of Banking And A Constitutional Remedy (1958)
Adams The Legalized Crime Of Banking And A Constitutional Remedy (1958)legalwebsite
 
Activating Legal Protections For Archaeological Remains
Activating Legal Protections For Archaeological RemainsActivating Legal Protections For Archaeological Remains
Activating Legal Protections For Archaeological Remainslegalwebsite
 
Abortion Decisions And The Duty To Screen Clinical, Ethical, And Legal Implic...
Abortion Decisions And The Duty To Screen Clinical, Ethical, And Legal Implic...Abortion Decisions And The Duty To Screen Clinical, Ethical, And Legal Implic...
Abortion Decisions And The Duty To Screen Clinical, Ethical, And Legal Implic...legalwebsite
 
537 Legal Questions About The Income Tax Code
537 Legal Questions About The Income Tax Code537 Legal Questions About The Income Tax Code
537 Legal Questions About The Income Tax Codelegalwebsite
 
The Future Of Civil Legal Aid In The United States
The Future Of Civil Legal Aid In The United StatesThe Future Of Civil Legal Aid In The United States
The Future Of Civil Legal Aid In The United Stateslegalwebsite
 
The Legal Rdf Ontology A Generic Model For Legal Documents
The Legal Rdf Ontology A Generic Model For Legal DocumentsThe Legal Rdf Ontology A Generic Model For Legal Documents
The Legal Rdf Ontology A Generic Model For Legal Documentslegalwebsite
 
Summary Of The Report Of The Senate Legal And Constitutional
Summary Of The Report Of The Senate Legal And ConstitutionalSummary Of The Report Of The Senate Legal And Constitutional
Summary Of The Report Of The Senate Legal And Constitutionallegalwebsite
 
Seeking A Legal Name Change For A Legal Name Change
Seeking A Legal Name Change For A Legal Name ChangeSeeking A Legal Name Change For A Legal Name Change
Seeking A Legal Name Change For A Legal Name Changelegalwebsite
 
Report On The Legal Program To Board Of Directors And
Report On The Legal Program To Board Of Directors AndReport On The Legal Program To Board Of Directors And
Report On The Legal Program To Board Of Directors Andlegalwebsite
 
Private International Legal Research An Introduction.
Private International Legal Research An Introduction.Private International Legal Research An Introduction.
Private International Legal Research An Introduction.legalwebsite
 

Mais de legalwebsite (20)

Scientific And Legal Perspectives On Science Generated For Regulatory Activities
Scientific And Legal Perspectives On Science Generated For Regulatory ActivitiesScientific And Legal Perspectives On Science Generated For Regulatory Activities
Scientific And Legal Perspectives On Science Generated For Regulatory Activities
 
Rule Legal Services, General Counsel, And Miscellaneous Claims Service Organi...
Rule Legal Services, General Counsel, And Miscellaneous Claims Service Organi...Rule Legal Services, General Counsel, And Miscellaneous Claims Service Organi...
Rule Legal Services, General Counsel, And Miscellaneous Claims Service Organi...
 
Oracle V Sap Legal Complaint Lawsuit
Oracle V Sap Legal Complaint LawsuitOracle V Sap Legal Complaint Lawsuit
Oracle V Sap Legal Complaint Lawsuit
 
Notice Grant And Cooperative Agreement Awards Civil Legal Services To Eligibl...
Notice Grant And Cooperative Agreement Awards Civil Legal Services To Eligibl...Notice Grant And Cooperative Agreement Awards Civil Legal Services To Eligibl...
Notice Grant And Cooperative Agreement Awards Civil Legal Services To Eligibl...
 
Libraries And Legal Research By Lance M Werner Libraries And
Libraries And Legal Research By Lance M Werner Libraries AndLibraries And Legal Research By Lance M Werner Libraries And
Libraries And Legal Research By Lance M Werner Libraries And
 
Introduction To The Symposium On Legal Externships 2 Learning ...
Introduction To The Symposium On Legal Externships 2  Learning ...Introduction To The Symposium On Legal Externships 2  Learning ...
Introduction To The Symposium On Legal Externships 2 Learning ...
 
Introduction To The Symposium On Legal Externships 2 Learning ... 1
Introduction To The Symposium On Legal Externships 2  Learning ... 1Introduction To The Symposium On Legal Externships 2  Learning ... 1
Introduction To The Symposium On Legal Externships 2 Learning ... 1
 
Information Inflation Can The Legal System Adapt
Information Inflation Can The Legal System AdaptInformation Inflation Can The Legal System Adapt
Information Inflation Can The Legal System Adapt
 
Court Of Appeals Upholds Gander Mountain Legal Victory
Court Of Appeals Upholds Gander Mountain Legal VictoryCourt Of Appeals Upholds Gander Mountain Legal Victory
Court Of Appeals Upholds Gander Mountain Legal Victory
 
Copy Of Acme Legal Contract
Copy Of Acme Legal ContractCopy Of Acme Legal Contract
Copy Of Acme Legal Contract
 
Adams The Legalized Crime Of Banking And A Constitutional Remedy (1958)
Adams   The Legalized Crime Of Banking And A Constitutional Remedy (1958)Adams   The Legalized Crime Of Banking And A Constitutional Remedy (1958)
Adams The Legalized Crime Of Banking And A Constitutional Remedy (1958)
 
Activating Legal Protections For Archaeological Remains
Activating Legal Protections For Archaeological RemainsActivating Legal Protections For Archaeological Remains
Activating Legal Protections For Archaeological Remains
 
Abortion Decisions And The Duty To Screen Clinical, Ethical, And Legal Implic...
Abortion Decisions And The Duty To Screen Clinical, Ethical, And Legal Implic...Abortion Decisions And The Duty To Screen Clinical, Ethical, And Legal Implic...
Abortion Decisions And The Duty To Screen Clinical, Ethical, And Legal Implic...
 
537 Legal Questions About The Income Tax Code
537 Legal Questions About The Income Tax Code537 Legal Questions About The Income Tax Code
537 Legal Questions About The Income Tax Code
 
The Future Of Civil Legal Aid In The United States
The Future Of Civil Legal Aid In The United StatesThe Future Of Civil Legal Aid In The United States
The Future Of Civil Legal Aid In The United States
 
The Legal Rdf Ontology A Generic Model For Legal Documents
The Legal Rdf Ontology A Generic Model For Legal DocumentsThe Legal Rdf Ontology A Generic Model For Legal Documents
The Legal Rdf Ontology A Generic Model For Legal Documents
 
Summary Of The Report Of The Senate Legal And Constitutional
Summary Of The Report Of The Senate Legal And ConstitutionalSummary Of The Report Of The Senate Legal And Constitutional
Summary Of The Report Of The Senate Legal And Constitutional
 
Seeking A Legal Name Change For A Legal Name Change
Seeking A Legal Name Change For A Legal Name ChangeSeeking A Legal Name Change For A Legal Name Change
Seeking A Legal Name Change For A Legal Name Change
 
Report On The Legal Program To Board Of Directors And
Report On The Legal Program To Board Of Directors AndReport On The Legal Program To Board Of Directors And
Report On The Legal Program To Board Of Directors And
 
Private International Legal Research An Introduction.
Private International Legal Research An Introduction.Private International Legal Research An Introduction.
Private International Legal Research An Introduction.
 

Kinds Of Theory Of Legal Argumentation

  • 1. Kinds of Theory of Legal Argumentation By Aleksander Peczenik 1. General Legal Doctrine General legal doctrine describes and systematises legal sources and legal argu- ments. German Juristische Methodenlehre delivers the best examples of it. For ex- ample, Karl Larenz’s book (1983) has the following structure. Its historical part includes, among other things, information on Savigny’s views on legal method. Friedrich Karl von Savigny was the most influential German legal scholar in XIXth Century. It also gives information about the so-called jurisprudence of concepts; information about legal theory under influence of positivistic idea of science; and information about the so-called jurisprudence of interests. Finally, it includes information about a new legal method, proposed by Larenz, called juris- prudence of values. The systematic part includes, inter alia, the doctrine of sub- sumption, that is, the logical relation between general norms of legal statutes and particular legal decisions. It includes the doctrine of evidence, telling the lawyers how to evaluate different kinds of evidence presented for the courts. It includes also the doctrine of interpretation of legal statutes. Finally, it includes a discus- sion about legal concepts and legal system. General legal doctrine also produces self-reflection about goals it serves and methods it uses, for example about standards of rationality in the law. It also includes philosophical tools and philosophical insights useful for jurists. General legal doctrine is neither purely descriptive nor purely normative. It fits well Svein Eng’s general theory of the descriptive and the normative element in legal language and argumentation (Eng 2003, 312 ff). According to Eng, state- ments about valid law can be understood both as description of existing law and as normative recommendation as to how to make the law better. There are no rules at the level of legal language or of legal methodology that may help us de- termine usual kinds of statements by lawyers as either descriptive or normative. 2. Relativism and Comparative Studies The Polish scholar, Jerzy Wróblewski (cf., e.g., 1992) developed a rationalistic and relativistic meta-theory of interpretation and implementation of legal stat- utes. This means that he did not construct a theory about interpretation but a theory about theories of interpretation. He thus formulated theories about the ideologies of statutory interpretation. He also created a classification of various actually existing and logically possible methods of statutory interpretation and indicated their functions. The methods were reworked in the most rational man- ner. The main analytical tool consisted in a distinction between two kinds inter- pretative directives. Each method of statutory interpretation was thus character- ised as a list of first-order directives, for interpretation of statutes, completed 1
  • 2. Kinds of Legal Argumentation – Draft 2005. © Aleksander Peczenik with a list of second-order directives, for a choice between competing first-order ones. The author himself did not endorse any of the methods, but he understood the point of all of them. Relativism and intellectual liberalism of this kind were important characteristics of Wróblewski's all works. He was able to find a ra- tional core of any legal theory, however strange it might appear to others. In brief, Wróblewski developed a meta-theory, useful to classify and compare various theories of law and various theories of legal argumentation, both descrip- tive and normative. But he did not explicitly formulate his own theory of law, nor a theory of legal reasoning, neither descriptive (delivering new knowledge of facts or concepts), nor normative. No doubt, Wróblewski's meta-theory of law was founded on profound philosophy, but he published no confession of this kind. Wróblewski’s method resembles the method of comparative law. No wonder that he was the main intellectual figure of the project comparing interpretation of statutes and interpretation of precedents in about ten different countries (cf. MacCormick and Summers 1991 and 1997). The following argument types are used in statutory interpretation, at least in the surveyed countries: — The argument from ordinary meaning — The argument from technical meaning — The argument from contextual-harmonization — The argument from precedent — The argument from analogy — The argument from relevant principles of law — The argument from history — The argument from purpose — The argument from substantive reasons — The argument from intention. (MacCormick and Summers 1991, 512ff.) 3. Political Philosophy and Politics applied to Legal Argumentation Another kind of research, containing both descriptive and normative compo- nents, exists mostly in the United States. It uses information about legal reason- ing to construct theories which in part resemble philosophical analysis, in part political programmes. Ronald Dworkin’s theory is a good example. Let us read some fragments of Dworkin’s writings: The adjudicative principle of integrity instructs judges to identify legal rights and duties, so far as possible, on the assumption that they were all created by a single author - the community personified - expressing a coherent concep- tion of justice and fairness. […] According to law as integrity, propositions of law are true if they figure in or follow from the principles of justice, fairness, and procedural due process that provide the best constructive interpretation of the community’s legal practice. (Dworkin 1986, 225) 2
  • 3. Kinds of Legal Argumentation – Draft 2005. © Aleksander Peczenik Moreover: Law as integrity […] holds that people have as legal rights whatever rights are sponsored by the principles that provide the best justification of legal practice as a whole. (ibid. 152) Such a theory, appealing as it is, is not beyond doubt. As an example, one can quote the following leaflet: This is an examination of Ronald Dworkin's claim that the true theory of le- gal practice is the theory that puts legal practice in its 'best light'. By 'best light' Dworkin means a measure of desirability or goodness: the true theory of legal practice, says Dworkin, portrays the practice at its most desirable. Now why would that be the case? What's between the desirability of a theory and its truth? (Raban 2003, 243) It is not my intention to be entrapped in a dispute with Dworkin’s theory. Let me merely state that his theory includes notoriously contestable statements about categorical priority of principles over policies, about equality as the sovereign value, about pre-existing rights, about the only right answer to all hard legal ques- tions and so on. Such statements are partly a result of the author’s philosophical background, partly a useful tool for political debate. Another example is William Eskridge’s dynamic theory of statutory interpre- tation (Eskridge 1991). His argues that statutory interpretation changes in re- sponse to new political alignments, new interpreters, and new ideologies. Ap- parently, it is a description. However, he also reveals sympathetic attitude to- wards dynamic interpretation of statutes. Moreover, he enters a discussion about legitimacy of this style of legal interpretation in the light of different “normative theories of jurisprudence” - liberal, legal process, and anti-liberal. Finally, he discusses the normative problem which theory of statutory inter- pretation best fits the requirements of modern democracy. 4. Dialectic Approach – Aulis Aarnio The well-known Scandinavian scholar, Aulis Aarnio has devoted many writings to legal doctrine (legal dogmatic); cf., e.g., Aarnio 1997. The tasks of legal dog- matic are interpretation and systematization of legal norms. This task is norma- tive, in contrast to the explanatory task of sociology. Two basic demands of legal interpretation are rationality and acceptability. Systematization aims at reformu- lation of legal norms in an abstract manner, in relation to certain basic concepts. Systematization is a bearer of legal tradition. According to Aarnio, legal interpre- tation is a hermeneutic activity justifiable in relation to an audience. Legal audi- ence is characterized as essentially relativistic, in the sense of admitting the pos- sibility of disagreement about evaluations. Aarnio contrasts this relativism with Ronald Dworkin's theory of only right answer to all legal questions. Whereas Dworkin is bound to commit himself to value-objectivism, Aarnio’s own position is relativist, but this relativity is also relative, namely relative to the audience. Aarnio's theory of audience is one of his original contributions to legal theory. He 3
  • 4. Kinds of Legal Argumentation – Draft 2005. © Aleksander Peczenik has all his scholarly life aimed at understanding legal reasoning in the context of society. He sees legal interpretation, legal institutions and human actions, as parts of overarching totality. In brief, Aarnio has been inspired by the great philoso- pher, Ludwig Wittgenstein. Aarnio has summarised this inspiration, as follows (1997, 123-125): At least the following ideas seem to be interwoven in the Wittgensteinian way of thinking. (1) Practical legal discourse (praxis), in this very connection, the interpreta- tion of legal texts, is on the whole hermeneutic by nature. […] (3) Legal dogmatical interpretation is an activity. […] Meaning is not con- cealed in language and to be picked out from there. It is constructed, although not freely constructed, in the creative process of the interpreter. […] (5) […] A legal philosopher, […] is not to try and set norms as to how law- yers or scholars […] should act. The practical life cannot be dictated from the chamber of a philosopher. […] Yet, the task of a legal philosopher is a recon- structivist one. He tries to recover the implicit features of our language and be- haviour making them explicit, i.e. visible so that the language-games become understandable. […] (6) […] Lawyers try to clarify the content of the ideal normative world. Yet, legal thinking in this respect is horizontal, to use the expression of Hintikka […]. This leads us to a problem that has been extensively considered in the legal theory of the recent years, the concept of coherence. 5. The Theory of the Present Author My own theory has been influenced by Jerzy Wróblewski, Aulis Aarnio, Robert Alexy (cf., e.g., Aarnio, Alexy and Peczenik 1981), and later by Jaap Hage (Hage 1997 and Hage-Peczenik 2000 and 2001). I have always focused on coherent reconstruction of legal reasoning, using more profound philosophy only as a tool that helps understand how the lawyers think. Among writings delivering such philosophical tools, let me mention Berlin 1998 on value pluralism; Copp 1995 on socially centred morality; Haack 2003 on foundherentism in epistemology; Lehrer 1997 on coherentism in epistemology; Smith 1994 on platitudes in moral theory; and Swanton 1992 on wide reflective equilibrium. Recently, I have also been deeply impressed by the following words: The conscientious philosopher has no alternative but to proceed systemati- cally. […] The fully adequate development of any philosophical position has to take into view the holistic issue of how its own deliberations fit into the lar- ger scheme of things. (Rescher 2001, 43) The reconstruction of legal reasoning includes philosophical reflections. The central point is that almost all legal thinking is defeasible, outweighable and justi- fiable by recourse to coherence. Legal doctrine is the most elaborated form of legal thinking. My latest book (Peczenik 2004) deals extensively with legal doc- trine. Though jurists developing legal doctrine aim at generality, whatever they 4
  • 5. Kinds of Legal Argumentation – Draft 2005. © Aleksander Peczenik say is open to counterexamples which originate from weighing of moral consid- erations. When stating that it is the case, my theory is descriptive, not normative. But it is also normatively recommended by the author as legally correct. In other words, my theory not only describes legal doctrine but, being partly descriptive, partly normative, itself belongs to general legal doctrine. In my opinion, binding norms are always social, in part inherent in the law and legal practice, in part developed in the society in informal manner. Behind this society-centred theory of normativity, there is a sceptical meta-theory. Being a sceptic, I doubt any metaphysics, any moral theory, any epistemology, and I also doubt any anti-metaphysical theory, any moral nihilism and any deconstruction of knowledge. But even a sceptic must live, and this implies believing in some things, though defeasibly. Nothing is certain, but inner normativity of the law appears to me as less uncertain than normativity grounded on moral theories which quarrel with each other. My theory is in agreement with Susan Haack’s general theory of knowledge. Susan Haack’s theory tells us that knowledge is a coherent system linked to expe- riential evidence. Justification is like solving crossword puzzles. Experiential evi- dence is like clues to such puzzles. (Cf. Haack 2000 and 2003). Some years ago, assuming that legal doctrine is in part descriptive and in part normative, I have written about legal data (Peczenik 1989, 143-144). The data are so to say “input” of knowledge. Both the letter of the law, the description of politically relevant facts and the judgments of justice are such data for legal re- searchers. Legal researchers should try to arrange them into a coherent system of beliefs and preferences. Instead of coherence, moral philosophers talk often about reflective equilib- rium. Reflective equilibrium in legal knowledge must be constrained by experien- tial evidence, but it is also constrained by other factors. John Rawls has characterized reflective equilibrium in the particular context of his theory in the following manner: By going back and forth, sometimes altering the conditions of the contractual circumstances, at others withdrawing our judgments [...] I assume that even- tually we shall find a description of the initial situation that both expresses reasonable conditions and yields principles which match our considered judgments duly pruned and adjusted. (Rawls 1971, 20) In my opinion, the idea of reflective equilibrium in legal justification requires some modifications. This equilibrium is not free. It is equilibrium of a peculiar kind, namely wide, constrained, segmented and, around commonly accepted platitudes. 5
  • 6. Kinds of Legal Argumentation – Draft 2005. © Aleksander Peczenik Simple reflective equilibrium is too narrow for the legal doctrine. We need a wider equilibrium. Concerning wide reflective equilibrium in morality: A wide reflective equilibrium is a coherent triple of sets of beliefs held by a particular person; namely, (a) a set of particular moral judgments; (b) a set of moral principles; and (c) a set of relevant background theories, which may in- clude both moral and nonmoral theories. […] The agent may work back and forth, revising his initial considered judgments, moral principles, and back- ground theories, to arrive at an equilibrium point that consists of the triple (a), (b), and (c). (Daniels 1985, 121; cf. Swanton 1992, 11ff.) Another deviation of legal doctrine from the simple idea of reflective equilibrium is this. A legal scholar is not entirely free to adjust principles and judgments to each other but he must do it within the framework imposed by the law. Finally, wide and constrained reflective equilibrium in legal doctrine is segmented. Each juristic theory should according to its own standards be coherent for itself, inter- nally. However, the theories have different scopes. Some are relatively narrow, such as the theory of adequate causation in the law of torts. Others cover a whole branch of law, such as private law. At the same time, there exists a total unifying structure for the legal doctrine as a whole, and at the end the total system of ac- ceptances, reasonings and preferences relevant for the law. Legal doctrine aims not only at internal equilibrium of legal system, but also at equilibrium with background knowledge of society and philosophy. The law is linked normatively to morality or politics. Reflective equilibrium in legal doctrine is arranged around commonly accepted platitudes, not around precise ideas. The importance of platitudes for human thinking cannot be overestimated. It is obvious both in science and in morality. Especially, Michael Smith (1994, 39ff.) stated that the following platitudes are “surrounding our moral concepts.” Some indicate that moral judgement is espe- cially practical. There are also platitudes that give support to our idea of the ob- jectivity of moral judgement. Others tell us about the relation between the moral and the natural. Yet others deal with substance of morality, namely concern and respect for a person, etc. Some platitudes concern procedures, for instance reflec- tive equilibrium. All those constraints on reflective equilibrium in the law are ultimately justifi- able by recourse to a total system of acceptances and preferences (cf. Hage 2004, 100). It its turn, this total system is constrained by experiential evidence, in a manner explained above on the basis of Susan Haack’s theory. This theory is complex but it has a simple point. The theory recognises that the lawyers’ reasoning must stay within the limits outlined by the political sys- tem. On the other hand, it also recognises that the lawyers in general and the legal researchers in particular may and should re-work the law in the most ra- tional manner. Only by following the requirements of rationality, legal reasoning can achieve both harmony and justice. Only in this way, it may promote social stability which is a necessary condition of progress and economic growth. 6
  • 7. Kinds of Legal Argumentation – Draft 2005. © Aleksander Peczenik References Aarnio, Aulis. 1997. Reason and Authority. A Treatise on the Dynamic Para- digm of Legal Dogmatics. Aldershot: Dartmouth. Aarnio, Aulis, Robert Alexy, and Aleksander Peczenik. 1981. The Foundation of Legal Reasoning. Rechtstheorie 2: 133–58; 3: 257–79 and 4: 423–48. Berlin, Isaiah. 1998. On Value Pluralism. New York Review of Books, Vol XLV, Number 8. http://www.cs.utexas.edu/users/vl/notes/berlin.html Copp, David. 1995. Morality, Normativity & Society. Oxford: Oxford University Press. Daniels, Norman. 1985. Two Approaches to Theory Acceptance in Ethics. In Morality, Reason and Truth. Ed. David Copp and David Zimmerman, 120–40. Ottawa: Rowman and Allenheld. Dworkin, Ronald. 1986. Laws' Empire. London: Fontana. Eng, Svein. 2003. Analysis of Dis/agreement – with particular reference to Law and Legal Theory. Dordrecht: Kluwer. Eskridge, William N. 1991. Dynamic Statutory Interpretation. Harvard University Press. Haack, Susan. 2003. Defending Science – within reason. Armherst, New York: Pro- metheus Books. Hage, J. C. 1997. Reasoning with Rules. Dordrecht: Kluwer. . 2004. Law and Coherence. Ratio Juris, Volume 17 Number 1: 87-105. Hage, J.C., and Aleksander Peczenik. 2000. Law, Morals and Defeasibility. Ratio Juris, Volume 13 Number 3: 305-25. Hage, J.C., and Aleksander Peczenik. 2001. Legal Internalism. In: The Legal Ought. Ed. Pierluigi Chiassoni, 141-70. Turin: Giappichelli. Larenz, Karl. 1983. Methodenlehre der Rechtswissenschaft. 5th ed. Berlin: Springer. Lehrer, Keith. 1990. Theory of Knowledge. London: Routledge. . 1997. Self-Trust. A Study of Reason, Knowledge, and Autonomy. Oxford: Clarendon. MacCormick, D. Neil, and Robert S Summers, eds. 1991. Interpreting Statutes. A Comparative Study Aldershot: Dartmouth. , eds. 1997. Interpreting Precedents. A Comparative Study. Aldershot: Dartmouth. Peczenik, Aleksander. 1989. On Law and Reason. Dordrecht: Kluwer. . 2004. Scientia Juris. Treatise in Philosophy of Law, Vol. 4. Dordrecht: Kluwer 7
  • 8. Kinds of Legal Argumentation – Draft 2005. © Aleksander Peczenik Raban, Ofer. 2003. Dworkin's 'Best Light' Requirement and the Proper Method- ology of Legal Theory, Oxford Journal of Legal Studies, Volume 23, Issue 2, June 2003: pp. 243-264. Rawls, John. 1971. A Theory of Justice. Oxford: Oxford University Press. Rescher, Nicholas. 2001. Philosophical Reasoning. A Study in the Methodology of Philosophizing. Malden, Mass.: Blackwell. Smith, Michael. 1994. The Moral Problem. Oxford: Blackwell. Swanton, Christine. 1992. Freedom: A Coherence Theory. Indianapolis, Ind.: Hack- ett. Wróblewski Jerzy. 1992. The Judicial Application of Law. Ed. Zenon Bankowski and Neil MacCormick. Dordrecht: Kluwer. 8