Peczenik, A. Scientia Iuris – an Unsolved Philosophical Problem

SCIENTIA IURIS – AN UNSOLVED PHILOSOPHICAL PROBLEM 275

Ethical Theory and Moral Practice 3: 275–304, 2000. © 2000 Kluwer Academic Publishers. Printed in the Netherlands.

ALEKSANDER PECZENIK

SCIENTIA IURIS – AN UNSOLVED PHILOSOPHICAL PROBLEM

ABSTRACT. Legal dogmatics in Continental European law (scientia iuris,Rechtswissenschaft) consists of professional legal writings whose task is to systematizeand interpret valid law. Legal dogmatics pursues knowledge of the existing law, yet inmany cases it leads to a change of the law. Among general theories of legal dogmatics,one may mention the theories of negligence, intent, adequate causation and ownership.The theories produce principles and they also produce defeasible rules. By means ofproduction of general and defeasible theories, legal dogmatics aims at obtaining a systemof law that is both internally coherent and harmonized with its background in moralityand (political) philosophy. Legal dogmatics is necessary in the context of constitutionalconstraints on the majority rule. Only if the courts act on the basis of Reason can they bea legitimate counterpart of the majority rule. And Reason cannot be exhausted by particulardecision making. It also needs a more abstract deliberation, given by expert jurists.However, legal dogmatics has been a target of several kinds of criticism: empirical,morally-political, epistemological, logical, and ontological. The position taken in thisarticle is to answer such criticism by mutually adjusting philosophy and the practices ofthe law.

KEY WORDS: coherence, defeasibility, deliberative democracy, juristic theories, lawand morality, law and philosophy, legal experts, legal research, principles, rules

1. LEGAL DOGMATICS

Legal dogmatics in Continental European law (scientia iuris, Rechts-wissenschaft, Rechtsdogmatik, ‘science of law’, legal theory) consists ofprofessional legal writings, e.g., handbooks, monographs etc., whose taskis to systematize and interpret valid law. Legal dogmatics regards the lawas man-made and historically changing. At the same time, it arranges thelaw under over-reaching principles.1 Thus, Savigny, the grand old man ofthe German legal dogmatics, stated that legal dogmatics is historical andphilosophical,2 it integrates exegetical and systematical elements.3

1Savigny 1840, XXXVI: “Ich setze das Wesen der systematischen Methode in dieErkenntniss und Darstellung des inneren Zusammenhangs oder der Verwandtschaft,wodurch die einzelnen Rechtsbegriffe und Rechtsregeln zu einer grossen Einheit verbundenwerden. Solche Verwandt-schaften nun sind erstlich oft verborgen, und ihre Entdeckungwird dann unsre Einsicht bereichern.”

2Savigny 1993: historical and philosophical (30), philosophical due to its use of theconcept of system (32).

3Id. 35.

ALEKSANDER PECZENIK276

The work of legal dogmatics is almost always value-laden. To be sure,the jurists make a distinction between a cognitive inquiry into the law as itis (de lege lata), and justified recommendations for the lawgiver, de legeferenda. But as every legal scholar knows, the distinction between de legelata and de lege ferenda is not clear-cut. The legal dogmatics is a goodexample of a practice of argumentation, pursuing knowledge of the existinglaw, yet in many cases leading to a change of the law.4

A closer look at legal dogmatics reveals that it consists of severalinterrelated pursuits and levels, such as

• analysis of particular cases; mapping of possible application andviolation of the law; listing and intuitive evaluation of possibleinterpretations of a statute;5 developing technical solutions facilitatingthe obedience of the law and preventing its violation; developingrelevant distinctions between the types of cases;

• systematization of law under abstract concepts and principles, eitheralready formulated by international instruments (such as ECHR)6 ornational legislative or courts, or provided by theoretical legal dogmatics;7

• historical and comparative studies with normative consequences;• general jurisprudence (legal theory) with normative consequences, e.g.,

various theories of statutory interpretation; theories of the internalsystematic of the law etc.; theories about the sources of the law;8

• philosophical theories behind legal dogmatics and jurisprudence; and,finally,

• the use of auxiliary sciences, e.g., psychology behind the treatmentideology in criminal law and sociology behind the deterrence ideology.

Concerning basic philosophical positions behind jurisprudence and moralphilosophy, one can find some use of moral theory, political theory,language theory, logic, epistemology, theory of science and metaphysics.In brief, all kinds of philosophy can be relevant in connection with legaldogmatics.

4Peczenik 1995, 312 ff. Cf. Savigny 1993, 197: Legal dogmatics does not create ac-complished rules but a method that continually changes the rules.

5Cf., e.g., Knut Rodhe’s program in Swedish civil law, 1944 and 1971.6European Convention on Human Rights did already affect legal research in many

countries and subjects, such as freedom of speech, protection of privacy, fair trial, inde-pendence of judiciary etc.

7Sometimes contrasted with practical legal dogmatics, cf., e.g., Aarnio 1997, 237.8E.g., on travaux préparatoires in Sweden or on the decisions of the ECJ in EU.


2. THEORIES IN LEGAL DOGMATICS THE PROBLEM OF VAGUENESS AND

THE PROBLEM OF LEGITIMACY

Among general theories of legal dogmatics, one may mention, for example,the theories of negligence, intent, rebus sic stantibus, loyalty betweenparties in contract law, theory of adequate causation, theories of propertyin private law, theories stating the goal of punishment (treatment,deterrence, retribution etc.).

The main problem of such theories is that they are excessively vague.For example, the so-called loyalty principle in the Swedish contract law,increasingly popular in recent years, does not imply particular solutionsof hard cases, and is merely regarded as an auxiliary tool for interpretationof statutes and contracts.9 It is not easy to see what job this tool helps toperform. The same has been said about the theory of rebus sic stantibus.Its teleological version made a kind of success in Sweden, yet its authordid characterized it as “a conglomerate of different principles with differentlevels of preciseness and unclear relation to each other”.10

This vagueness is not accidental but rather reflects the tension betweenthe demand of scientific preciseness and the demand of political legitimacy.Remember that the theories are normative. Were they precise, then theywould result in production of legal rules by scholars. This would be opento criticism as ‘extra-parliamentary law-making’. On the other hand, thevagueness of theories provokes the question what they are good for. Letme now give some examples in a greater detail.

2.1. Theories on Adequacy in Torts

Since a long time, one is liable in torts in many legal orders for negligentlycausing damage. Yet, a German legal scholar J. von Kries invented about1880 a theory, according to which one is not liable when the causation wasnot ‘adequate’. Consider the following example: A negligent coachmanfalls asleep. The horse takes the wrong turning. The coach is struck bylightning, which kills a passenger. The coachman’s negligence is a causeof the passenger’s death, but the cause is not adequate. It would, however,be adequate in another case, for instance when the chain of causation fromfalling asleep to the passenger’s death does not involve lightning but adriving into a ditch instead. In the latter case – but not in the former –

9Nicander 1995/96, 49.10Lehrberg 1989, 277.


von Kries points out that we are dealing with a generalizable causation.The negligence of the coachman was generally apt to bring about such anaccident and to increase the possibility or probability of it. In fact, von Krieshad two ideas; first that an adequate cause is generally apt to bring abouta given kind of a harm and secondly that an adequate cause relevantlyincreases the probability of a given kind of a harm. Thus, an unwrittenprinciple of the law of torts was discovered that stipulates that one has tocompensate a damage only if it has been an ‘adequate’ result of the actionfor which one is liable. But when is the causal connection ‘adequate’? Theconcept of adequacy has been extensively discussed in the legal research.

Later on, different theories of ‘adequacy’ evolved,11 inter alia, thefollowing ones: The causal connection between an action and a damage isadequate if, and only if, any action of this kind is apt to bring about (orrelevantly increases probability of) a damage of this type. The causalconnection between an action and a damage is adequate if, and only if,this action makes a damage of this type foreseeable for a very cautiousand well-informed person (a cautious expert, a vir optimus). The causalconnection between an action and a damage is adequate if, and only if,this action is a not too remote cause of the damage. The causal connectionbetween an action and a damage is adequate if, and only if, this action is asubstantial (important) factor in producing the damage.

Each theory of this kind has been proposed as the general theory ofadequacy, guaranteeing acceptable decision making. But each one, althoughreasonable, is contestable. Moreover, the question how often varioustheories imply different evaluation of adequacy in concrete cases is noteasy to answer. If the theories differ in their normative consequences, thelegal dogmatics acts as a kind of lawmaker. If they do not differ, what istheir competition good for?

A couple of generations ago, the theories of adequacy went out offashion. Several authors tried to replace them with something else, forexample to make liability dependent on ‘the purpose of protection’.12 Butthe new formulations were even less clear than the old ones. The theory ofadequacy thus came back, often with a lesser claim of generality. Thishappened, for instance, in die Lehre von der objektiven Zurechnung13 inGerman Criminal law. The theory covers a certain number of cases, in

11See Peczenik 1979, 153 ff.12See references in Peczenik 1979, 153 ff. See also Andersson 1993.13The most discussed cases are:

• A person wants to kill another with the help of thunderstorm. He sends the ‘victim’ to aforest. The ‘victim’ is killed in the thunderstorm (case group: force of nature).


which a person has committed a crime according to the words of the law,but in which it is according to the majority opinion of law scholars unjustto be punished. German legal research made a systematic survey of suchcases. The level of abstraction of this doctrine is lower than that oftraditional doctrines of adequacy but the level of preciseness is higher.

2.2. Theory of Negligence

Negligence is an important precondition of liability and responsibility invast areas of the law, not the least torts, contracts and criminal law. Sincethe time immemorial, the jurists proposed several principles, maxims andtheories aiming at drawing a demarcation line between what one is andwhat one is not liable for. In part, the demarcation is based on negligence,though there also exists strict liability without negligence and negligencewithout liability, for example in the case of non-adequate results ofnegligent acts, see above. Yet, what is negligence? In its essence, negligenceis a mental attitude for which one is blamed. For example, one knew thatone’s action may bring about the harm but did not care, or one did not knowit but should have known. The classical standard have something to do withnormality: one is blamed for carelessness because a normal person, a bonuspater familias would take more precautions. The estimate of normality inits turn is either based on frequency – what most people do in a certaincontext is not negligent – or on a rather complex net of expectations. Thelatter is difficult to analyze, yet it makes sense to say that one actednegligently though many other people in one’s role act similarly. Forexample, an organizer of a fashionable but extremely risky ‘canyoning’tours in the Alps may be found negligent in spite of the fact that otherorganizers of such things do more or less the same as he did. The standardof normality has its tricky history that cannot be discussed here. An

• A person wants to kill another by infecting with a cold. He shakes hands and infectsthis person with a cold. The ‘victim’ dies (case group: lack of social adequacy).

• A driver crosses red traffic light. 200 meters behind the light, he has an accident inwhich a person is killed (case group: the sense of the norm).

• A person poisons someone with the purpose to kill. Before the victim dies, a thirdperson shoots and kills him (case group: action of a third).

• A person wants to hit another. A third person tries to kill the second by hitting him witha stone on the head. In the last moment, the first interferes. Therefore, the stone hits thevictim’s shoulder, not his head. The victim survives (case group: risk lowering).

• A person shoots someone with the purpose to kill. The victim falls into the river,swims to an island and dies there, not of the shot but because he has no food (case-group: improbability).


interesting thing is, however, that, in the recent times, it has come underattack from two different sides, namely from Richard Posner’s law-and-economics movement and from the welfare-state politics. Thus, one canbe found liable in torts in the cases of negligence in spite of the fact thatwhat one did was quite normal. According to the economic theory, thedefendant’s conduct shall be judged by whether it promotes economicefficiency (‘Learned Hand’s formula’). According to the social securitytheory, the defendant shall be found negligent, if the burden of accidentsis thereby shifted from single individuals and spread over a large population(‘the Deep Pocket Theory’).

The new theories are related to the old one in a very unclear manner.One can try to assimilate them under the old theory of normality. This ispossible because normality can be judged in normative manner, not onlyon the base of frequency. But one can also see the new theories ascompetitors with the old one. This is the case, for instance, when aPosnerian judge hopes to convince others that the law-end-economicapproach is the best one, point and finished. The third way out is to try tomake negligence dependent as a system with rules and meta-rules. Forexample, Christian Dahlman14 distinguishes between three ‘negligence-paradigms’ in torts, accompanied with the following meta-rules: (1) Theclassical negligence paradigm shall be applied in cases, where the defendantis an individual, who has caused the accident in his private life, (2) thelaw-and-economics paradigm shall be applied in cases, where both theplaintiff and the defendant are corporations or government bodies, (3) thedeep pocket paradigm shall be applied in cases, where the plaintiff is andindividual and the defendant is a corporation or a government body.According to Dahlman, the respective rule dominates completely withinits own paradigm. The paradigm’s criterion is developed to promote onlythe objective it serves. Other objectives are not taken account for at all.

2.3. A General Reflection about Adequacy and Negligence

This situation is to some extent similar to the evolution of the theory ofadequacy. Instead of one adequacy, one has now different kinds of casesand adequacy in the classical sense is restricted to one kind. Instead of onenegligence, one has three kinds of cases, and the classical normality-negligence is restricted to one of these.

However, this situation opens the question whether we still need theumbrella-term, covering all the cases of ‘negligence’, according to all three

14Dahlman 2000.


‘paradigms’. Similarly in the case of adequacy, Do we need the umbrella-term ‘adequacy’, covering all the six cases discussed above? If we needthis term, what do we need it for?

2.4. The Right of Ownership

Aulis Aarnio15 has discussed some other examples of such theories, namelytheories about authorization, bills of exchange, the legal position of theheir and right of ownership. Let me say something about the last one.

Under a long period, legal dogmatics utilized the traditional theory (T1),according to which the right of ownership is, in principle, an unlimitedpower of the owner over the object. At a certain moment, all the aspects ofownership could belong to one and only one physical or juridical person.Even if several persons were co-owners of the same thing, each had all theaspects of ownership, albeit with regard to a part of the thing only, identifiedeither physically or ideally, e.g. in percent. A sale thus resulted in aninstantaneous transfer of ownership as a totality: first the seller and thenthe buyer was a full owner. This traditional view has, however, metdifficulties in exceptional situations. This is the case, for example, whenthe assignment of chattels is supplemented with a (suspensive) conditionor clause, according to which the ownership rights will not be transferredto the assignee fully until after some later act or event. Then, there is aninterim period in the relationship between the assigner and the assignee.The assigner no longer has full rights of ownership, but neither has theassignee received full fights. For that reason, certain auxiliary theories havehad to be adopted in addition to the traditional theory of ownership. Thus,the situation in the interim period has been characterized a potential right,an expectative right or a conditional right of ownership.

According to the newer ‘analytic’ theory of ownership (T2), formulated,among others, by Alf Ross,16 ‘ownership’ is an ‘intermediate’ concept,related to two clusters of norms, the first determining conditions ofbecoming an owner, the second prescribing legal consequences of beingan owner. If A bought the property or if he inherited it or if he received itas a gift, then he owns the property. If he owns the property then he mayuse it and he can sell it and he can start a legal action against a personinterfering with his use of it. The change of ownership is not, as the theoryT1, understood as an instantaneous event affecting all ownership rights,

15Aarnio 1997, 256 ff.16Ross 1958, 170 ff. Earlier by Wedberg 1951, 246 ff.


but as a series of events which is composed of many stages. The change inthe components of the legal position of the owner may occur independently.One can now interpret transfer of ownership as a process, extended in time,in which one person successively acquires more and more aspects ofownership.17 At a certain moment, a buyer can thus already be owners inone respect, while other aspects of ownership still are ascribed to the seller.Aarnio’s comment is that “the conceptual equipment of T2 makes itpossible to achieve a more detailed analysis of relevant problems than thecorresponding equipment of T1. This means, more detailed questions, andfurther, more detailed and richer answers. On the basis of this fact, it seemsalso to be well-founded to claim that the change from TI to T2 has been anexpression of scientific progress”.18

This example elucidates different problems:

• T2 has another philosophical background than T1. According to T1,ownership was conceived as indivisible unity, not unlike substance. T2,on the other hand, was affected by reductionist ontology of, amongothers, Alf Ross, that did not recognize immaterial entities like this.

• T2 dissociated itself from any thought that the very concept ofownership may have normative consequences. The normative contentof the law should, according to T2, be regulated by the lawgiver, notby means of conceptual speculations performed in legal dogmatics.

• T2 encourages the creation (in legislation or in legal practice) of legalsituations where the rights traditionally belonging to the owner arespread among many subjects. This may be used by the state to take oversome aspects of ownership and thus to interfere in private economy.

• Yet, though T2 appears to be more sophisticated than T1, it would be agreat mistake to simply reduce ownership to its components, that is, tosimple Hohfeldian rights of the owner. By using a terminology thatallows not only for these simple rights but also for the complex conceptof ownership one gains a tool of presentation, facilitating concisedescription of the law.19 One also gains a tool for political debates. Itmakes sense, for instance, to ask whether legislative restrictions of theright of disposition of real estate property in some countries do notmean something like expropriation. One can also compensate some

17The idea, too, was developed by Ross. In some aspects even by Zitting 1959, 227 ff.In fact, even earlier by a decision of a Finnish court in the 1880’s and the Finnish juristTorp (information from Lars Björne).

18Aarnio 1997, 272–273.19This was recognized by Ross, 1958, 170 ff.


restrictions in one aspect of ownership with generosity in another one.For example, a house owner may still be regarded as an owner, despitehard restrictions of his right to re-build or rent a house, if he can freelysell the house. This means that the idea of ownership as a single unitwith aspects linked to each other – almost abandoned by the analyticallyminded jurists – is on its way back.20

The last point is the central one. In spite of all analytical progress, weapparently still need the umbrella concept of ownership. Yet, what we reallyneed it for? Surely, it facilitates discussion. But is it only a rhetorical tool,or can one make a logical model, showing in what manner it facilitatesdiscussion? Recent research gives reasons for optimism. A sophisticatedmodel of the required kind has been in fact elaborated by Lars Lindahl.21

What remains to be done is epistemological, ontological and methodologicalreflection utilizing this model.

2.5. General Theories of Legal Method

Theory of the Sources of the Law As regards general theories of legalmethod, one may mention standard German works on juristic method,22

ambitious theories such as Conceptual Jurisprudence,23 Jurisprudence ofInterests,24 teleological theories25 or meta-theories such as Wróblewski’stheories about ideologies of statutory interpretation.26

One can also mention the Nordic theory of the sources of the law.Torstein Eckhoff27 has elaborated its classical formulation, according towhich there exist a number of ‘source factors’ that are ‘harmonized’ in thelegal practice, inter alia the texts of statutes, travaux préparatoires, thepurpose of the statutes, judicial practice, administrative practice, custom,works in legal dogmatics and so called ‘real considerations’. Eckhoff’swork was very influential in Scandinavian legal theory and in Norwegianpublic law, albeit perhaps less influential in Norwegian private law. Thepresent author has attempted to formulate the underlying structure of this

20See also Simmonds 1998, 195 ff. about the return of Will and Interest Theory afterHohfeld.

21Lindahl 2000.22E.g., Larenz 1983.23Cf., e.g. id. 19 ff. on Puchta.24Cf., e.g. id. 43 ff. on Ihering.25Cf., e.g., Ekelöf 1958.26Wróblewski 1992, 265 ff.271993.


theory. In his view, the sources of the law are ‘authority reasons’.28 Thisexcludes Eckhoff’s “real considerations” from the list of the sources. Then,the sources of the law are divided into three categories, namely such thata person who performs legal argumentation must, should or may profferas authority reasons.

Thus, in many states in European Continent, the following can be said.

• All courts and authorities must use applicable statutes and otherregulations in the justification of their decisions.29 The expression ‘otherregulations’ refers, for example, to general rules issued by theGovernment on the basis of statutory authorization.

• When performing legal reasoning, one should use precedents and – insome countries – legislative preparatory materials as authority reasons,if any are applicable.30

• When performing legal reasoning, one may use inter alia the followingmaterial.

3 Some custom (so far it does not constitute a must – or should – sourceof the law);

3 writings in legal dogmatics;3 foreign law, unless it is incompatible with some overriding reasons, such

as the so-called ordre public.

Of course, this enumeration is by far not exhaustive.31 Moreover, one canelaborate more complex classifications of the sources of law. But onlyvague definitions of the ‘must-sources’, ‘should-sources’ and ‘may-sources’ of the law are universally acceptable. Precise interpretation ofthese concepts varies from one legal order to another, from one part of alegal order to another and from one time to another. Different people cansuggest different precise interpretations, serving different purposes etc.

The following comments elucidate the complex meaning of ‘must’,‘should’ and ‘may’. First of all, the ‘must-sources’ are formally binding;the ‘should-sources’ are not. Second, an important property of legal normsbinding de iure (i.e., those that must, not merely should be regarded as legalauthority reasons) is their necessity for legal argumentation. In Continental

28The term has been used by Summers1978, 707 ff. in a somewhat different way.29The problem of the direct effect of the EU law is left out of considerations here.30One should also use international conventions, underlying the applicable national

legislation, together with preparatory materials and other interpretatory data concerningthese conventions (cf. Pålsson 1986, 19 ff.).

31See Peczenik 1989, 313 ff.


legal systems, only legislation and custom are argumentatively necessaryin the following sense: One can derive legal consequences from manymutually independent sets of premises. But regardless which alternativeone chooses, a statutory provision or a custom must at least indirectlysupport the consequence. A conclusion without any support whatsoever(material or procedural) from a statute or a custom is, by definition, notlegal.32 Third, the ‘must-sources’ are more important than the ‘should-sources’ which are more important than the ‘may-sources’. One way tomake this hierarchy of importance precise is what follows.

• The more important sources are stronger reasons than the less importantones.

• Reasons strong enough to justify disregarding a less important sourcemay be weaker than those required to justify disregarding a moreimportant one.

• If a more important source is incompatible with a less important one,e.g. if a statute is incompatible with a view expressed in legislativepreparatory materials, the former has a prima facie priority. One thusought to apply the more important source, not the less important one,unless sufficiently strong reasons support the opposite conclusion.

• Many cumulated weak reasons often take priority over fewer strong ones.• Whoever wishes to reverse the priority order has a burden of reasoning.

One may also point out that the consequences of disregarding the‘should-sources’ are usually milder then consequences of disregarding‘must-sources’.

A comparison of this theory with Eckhoff’s reveals the following importantdifference. Eckhoff’s theory is an enumeration of arguments used in legalreasoning. Programmatically, it is extremely cautious in establishing anypriority order between the sources. The present author’s theory, on the otherhand, does establish a defeasible priority order. For example, statutes gobefore precedents, yet good reasons exist that can defeat this priority order.A non-defeasible priority order would distort legal practice. In general,juristic theories about the sources of the law oscillate between efforts tointroduce a non-defeasible priority order, and to deny that any priority order

32Statutes and custom thus had a special position in the classical Continental theory ofthe sources of law in 19th Century. They had the power to create rights and duties ofprivate persons; they also determined the limits of legal argumentation (cf. Malt 1992,55 ff.). The classical theory also recognized a number of secondary sources of the law(argumentative auxiliary tools) such as “the nature of the things”, legal practice, travauxpréparatoires and foreign law (id. 52).


is possible. This leads us back to the main problem. What is the use ofdefeasible priority orders? Are they not a mere façade, concealing the factthat x comes before y – unless not?

2.6. Law and Economics

Let me add something about another, at least equally general theory.Richard Posner33 has elaborated a theory, according to which the functionof the law is to maximize wealth in economic sense, revealed on themarketplace.34 Posner’s assignment principle says that entitlements shouldbe conferred to that party who would have purchased it had the transactioncosts not made it irrational for him to do so.35 This theory claims to beapplicable to all parts of the law. It also advises the lawgiver and the courtsas to the choice between different kinds of legal regulation. For example,the lawgiver can deter a factory from polluting a river by establishingpunishment, by making the polluter to pay damages, by assigning a pricefor ‘rights to pollute’ etc. The choice is right if it maximizes wealth.

The theory has an underpinning in moral philosophy. However, Posnerchanged his mind as regards what underpinning. From an initial utilitariandefense of wealth-maximizing policies, he turned to a consent-basedapproach, and then to a pragmatist position.36

The utilitarian underpinning is obvious but insufficient. Utilitarianiststhink that the main moral principle is to maximize utility, Posner thinksthat the main principle for the law is to maximize wealth. Isn’t wealthutility? Alas, the converse does not hold: there are some utilities differentfrom wealth in Posner’s sense. For instance friendship and family is animportant utility for any normal person, it makes her happy and fulfillsher preferences. However, friendship etc. eludes Posner, since one cannotsell one’s friends on the market place.

The consent underpinning of the theory may be summarized as follows:All individuals will in choices involving uncertainty attempt to maximizetheir expected wealth. Thus, wealth ought to be maximized. However, “if

33Cf. Posner 1990 passim. Posner has been inspired by the Nobel prize winner RonaldH. Coase.

34“The ‘wealth’ in ‘wealth maximization’ refers to the sum of all tangible and intangi-ble goods and services, weighted by prices of two sorts: offer prices (what people arewilling to pay for goods they do not already own); and asking prices (what people de-mand to sell what they do own)”, Posner 1990, 356.

35Spector 1997, 360.36Id.359. Posner used a utilitarian (i.e., consequentialist) strategy to justify the instrumen-

tal value of wealth in 1979. He turned to a consent-based approach (i.e., Kantian) in 1980.


we grant that it seems plausible that some individuals prior to theenforcement of a judicial principle can identify themselves as losers bythe enforcement of the principle, then it is impossible to assume unanimousconsent”.37 Simply speaking, the losers would not agree to the socialcontract binding them to Posner’s theory.

Hence the pragmatic turn of Posner’s theory: “We look around the worldand see that in general people who live in societies in which markets areallowed to function more or less freely not only are wealthier than peoplein other societies but have moral political rights, more liberty and dignity,are more content (as evidenced, for example, by their being less prone toemigrate) – so that wealth maximization may be the most direct route to avariety of moral ends”.38 Posner calls this pragmatic justification of wealthmaximization. It is not easy to understand what the term ‘pragmatic’precisely means in this context.39 Let me present here Horacio Spector’sinterpretation: “Suppose a society has certain shared ends and there iswidespread agreement that a certain policy will further those ends. Invokingthose ends is in an intelligible sense a way of justifying the policy. However,it is not a case of ethical justification, for resorting to the ends does notnecessarily assume that they are morally valid. All that is claimed is that,as a matter of fact, society pursues such and such ends, and that the policyis conducive to the promotion of those ends.”40 Spector continues: “SupposePosner claims that market institutions and human rights are now favoredby people in modern societies, and that this is the reason why they areworth of support. In a preference-satisfaction normative theory, marketinstitutions and human rights are justifiable insofar as they can satisfyhuman preferences. . . . By the same token, market institutions would bejustifiable as institutional settings where human preferences are maximallysatisfied . . . I am not sure whether this view can be attributed to Posner.But if it can, his entire position is no different from preference-basedutilitarianism”.41 If so is the case, Posner’s theory cannot any longerproclaim itself universally applicable, but only applicable to goods thatare in the market.42 Furthermore, it is a pragmatic matter what is and what

37Reidhav 1998, 112 ff., concluding, as follows: “It has been suggested that Posner’stheory is contractarian as well as utilitilitarian but as we have seen in this chapter and inthe light of previous chapters it is neither” (115).

38Posner 1990, 382. Cf. Posner 1995, 1–25.39Posner (1995, 1–25) provided an extensive elucidation but no clear concept.40Spector 1997, 366.41Spector 1997, 368.42Spector 1997, 369.


is not in the market. Consequently, the question to what problemsPosner’s theory is rightly applicable and to what not must be answeredby a complex mixture of consequentialist, non-consequentialist, andmajoritarian considerations. Thus, the scope of the wealth-maximizingprinciple must be confined to those areas of the law where basic valuessuch as autonomy, life, health, and physical integrity are not directly involved.By contrast, if the good is not in the market, it is incommensurable withthe theory.

If Spector interpretation is right, the conclusion must be that Posner’stheory, despite its exaggerated claims, is just one of many theories of legaldogmatics, helping us to understand and normatively improve some (notall!) parts of the law. But then the question occurs, What part of the law isthe theory of law and economics applicable to? It seems that the limits ofits application are as vague as the other theories discussed above. Is aprecise theory with a vague range of application better than a vague theory?Better for what?

3. DEFEASIBILITY IN LEGAL DOGMATICS

To discuss the point and function of such theories, we must say somethingabout the place of legal rules in legal argumentation. At first, let us makedistinction between decisive and contributing reasons.43 Decisivereasons determine their conclusions. If a decisive reason for a con-clusion obtains, the conclusion must also obtain. Some decisive reasonsdetermine their conclusion without any possibility of an exception.Other decisive reasons are, however, defeasible. In other words, thepossibility that such a reason is defeated cannot be excluded in advance.A decisive-and-defeasible reasons determine their consequences innormal circumstances, but do not determine their consequences if thecircumstances are not normal.

Contributing reasons, on the contrary, do not ever determine theirconsequences by themselves. There can be contributing reasons that pleadfor and against a particular conclusion. It is the set of all contributingreasons concerning a particular conclusion, both the reasons pro and con,

43The concept of a ‘reason’ may be defined in many ways. What is important is that areason is a fact, or a belief in a fact. The following definition appeals to the psychologi-cal relation of holding one belief on the basis of another: “A belief P is a reason for aperson S to believe Q if and only if it is logically possible for S to become justified inbelieving Q by believing it on the basis of P” (Pollock 1986, 36).


that determines whether the conclusion holds. One can also say thatcontributive reasons are pro tanto reasons.44

We will now distinguish between rules and principles.45 Once we knowthat a certain provision is a principle, or that a certain practice or deliberationexpresses a principle, we know that it is a contributing reason, not a decisivereason. Principles have a dimension of weight and reasons based on principlesneed to be weighed against reasons based on colliding principles, if thereare any. All use of principles in legal reasoning is for weighing. A lawyer isnot supposed to just follow a principle. He is supposed to confront with itand to weigh it against other principles relevant for the case. Rules aredifferent. The different logical roles of rules and principles can be accountedfor by assuming that rules exclude the application of principles, rather thanby saying that rules outweigh principles.46 If the application of a rule excludesthe application of a principle, there is no need for weighing anymore, becausethe principle does not generate a reason in this particular case. In other words,if the facts of a case satisfy the conditions of a rule, so that this rule isapplicable to this case, an exception is raised to all principles that mightidentify facts of the case as reasons. Cases that have applicable rules are inprinciple not judged on the basis of principles.

Another way to approach the same issue is to state that legal rulesgenerate decisive reasons for legal conclusions. Assume now that we knowthat a certain legal provision is a rule, or that a certain practice expressesa rule. Once we know that it is a rule, we can say that it is a decisive reason,not a merely contributing reason. The facts of a case that make a ruleapplicable form, if the rule is applied, a decisive reason for the rule’sconclusion. Such a decisive reason needs not to be balanced against otherreasons anymore. If contributing reasons collide with it, the decisive reasonwins by definition, so there is no need for weighing.

44Kagan “distinguishes between ‘prima facie’ reasons (reasons ‘at first sight’) andreasons ‘pro tanto’ (‘insofar’). Kagan suggests that certain considerations may appear tobe reasons for a decision or a judgment at first sight, so to speak, but then turn out to beirrelevant when other aspects of the situation have been taken into consideration . . . Aprima facie reason can be undercut, so to speak, by other aspects of the situation, andthen drop out of sight altogether. It is different with pro tanto reasons. . . . Such reasonsare never undercut, even though they may be outweighed in some cases by reasons to thecontrary, if the latter are stronger . . . The idea of weighing reasons seems natural for thepro tanto reasons, but it is not appropriate for the prima facie reasons that aren’t protanto” (Rabinowicz 1998, 21. Cf. Kagan 1989, 17 and Peczenik 1998, 57).

45In a way that is closely related to the opinions of both Dworkin (1977) and Alexy(inter alia 1985 and 2000).

46See Raz 1975, Schauer 1991, and Hage 1997.


Yet, rules admit exceptions. In other words, legal rules are defeasiblereasons for legal conclusions. Exceptions to the rule exclude its application.If there is an exception to a rule in a concrete case, the rule is not appliedto that case. There are at least three kinds of reasons to make an exception:

• Some exceptions are explicitly formulated in the law.• Other exceptions are implied by logical contradictions in the law. If

two rules with logically incompatible conclusions are applicable in thesense that their conditions are satisfied, there must be an exception toat least one of them.

• Another reason to make an exception is when there are other reasonsnot to apply the rule, which outweigh the applicability of the rule as areason for application. In such a case, there is a balancing of reasonsfor and against application of a rule. If the outcome of this balancing isthat the rule must be applied, then the conclusion of the rule followsindefeasibly. However, if the outcome is that the rule ought not to beapplied, an exception to the rule is raised, with the effect that itsconclusion does not follow.

The logical distinction between rules and principles does not answer thequestion whether some rule-like entity in the law is a rule or a principle.In the real world, the use of legal provisions varies. In most cases, legalprovisions are applied if their conditions are satisfied and they generatedecisive reasons. With hindsight, such cases may be called routine ones(‘easy’ ones). Once a case is identified as a routine case, no values and nochoices are necessary to solve it. A decision in such a case follows froman established legal rule together with the description of the case.Sometimes, however, there are major objections against treating legalprovisions as ‘hard’ rules. Then one is prepared to make an exception. Suchcases are with hindsight called ‘hard’ ones. There are also hard casesresulting from interpretation problems. In hard cases, almost all legalprovisions can be defeated on the basis of weighing contributive reasonsfor and against their application. Then the logical behavior of legal provisionsresembles more that of principles than that of rules. A hard case requires aweighing that can justify a deviation from the wording of the law.47 Thesolution of a hard case follows from a set of statements consisting of thelegal rule in question, interpreted literally or adjusted, the description of thecase and a reasonable (though not indubitable) additional premise. Such an

47To be sure, routine cases, too, involve values and choices, but these are commonlyshared and uncontroversial.


addition can consist of a norm- or value-statement. Thus, the use of rulesvaries between routine cases and ‘hard’ cases. The everyday use of rules isnot to weigh them. Weighing rules is not an everyday defeasibility, but hard-case defeasibility. For a lawyer has a good reason to ask questions about theweight of rules first when these are very objectionable.48

Once we understand that legal rules, though decisive reasons, aredefeasible, we understand the point of theories in legal dogmatics. Thetheories produce principles and they also produce defeasible rules. In otherwords, legal dogmatics may produce ‘subsidiary’ general rules, from whichthe statutory rules are exceptions. In classical Continental systems, suchgeneral rules are often produced by general theories, such as those discussedabove.49

4. THE POINT OF LEGAL DOGMATICS: COHERENCE

By means of production of general and defeasible theories, legal dogmaticsaims at obtaining coherent picture of the law. It aims at presenting the lawas a net of principles, rules, meta-rules and exceptions, at different levelsof abstraction, connected by support relations. The argumentation used inorder to achieve coherence involves not only description and logic but alsoevaluative (normative) steps. For example, arguments based on statutoryanalogy, argument e contrario, goal reasoning in the law etc. are certainlynot purely descriptive. The choice of approach in legal dogmatics is alsobased on normative standpoints, even if the chosen approach itself claimsto be ‘value-free’, for instance evaluations are necessary to opt for the law-and-economics approach. The evaluative reasoning steps are justifiable by

48In this context, one may answer the question asked by Wlodek Rabinowicz (1998):“Can Rules Be Weighed? According to Peczenik, the process of weighing reasons iscentral for justification. Ideally, every reason can and should be weighed against otherreasons. Applied to law, legal judgments are arrived to by such a process of weighingwhere what is weighed are not just values and principles but also legal rules.” He con-trasts my position with Dworkin’s, characterized, as follows: “There is no room for weigh-ing a valid rule against other considerations. Certainly, the interpretation of a rule mightinvolve some process of weighingþ But when a particular interpretation has been deter-mined, there is no room anymore for weighing the rule against other considerations,according to Dworkin. If it is valid, the answer it supplies must be accepted. It would beinteresting to know why Peczenik rejects this position”. Now, we do not reject the differ-ence between rules and principles. But we do say that both rules and principles are defea-sible, and that the defeat is a result of weighing.

49Legal dogmatics may also produce exceptions to statutory rules but this is less inter-esting in the present context.


reasons, ultimately by moral reasons. Thus, the system of law as it ispresented in legal dogmatics should not only be internally coherent, butshould also be harmonized with its background in the form of moralityand (political) philosophy.

What is coherence, then? Jan Wolenski incorporates the idea ofcoherence into so called classical definition of knowledge. “According tothis definition, knowledge consists in true justified belief. More explicitly,the phrase ‘X knows that A’ . . . is equivalent to the conjunction of the threefollowing conditions (a) X believes that A, (b) A is true, and (c) X’s beliefis (correctly) justified . . . Where can coherence enter into the classicaldefinition of knowledge? The condition (c) is the only suitable place. Thus,we can combine the classical theory of knowledge with a coherence theoryof justification”.50

The main point of theories of coherence is epistemological.51 What isthe relation between the coherent system of beliefs and truth? We mustdeal with the ‘isolation objection’: cannot a coherent system of beliefs befalse, isolated from the world? This objection has two versions, let me callthem local and total. The local version is a simple misunderstanding. Itfeeds on highly coherent but false fiction novels and moral prejudices.Cannot one, for instance, agree with Joseph Raz52 that the “racist’s beliefin the untruthworthiness of members of a certain race, bred on prejudice,is not justified even if it coheres best with all the racist’s other (mostlyracist) beliefs”? No, one cannot. For all the other racist’s beliefs cannot bemostly racist. Views concerning human races are only a small part of thetotal belief system of any person, including Adolf Hitler. In order to functionin this world, any person must have beliefs about physical phenomena,geographic locations, animals, plants, food, language and so on. A prejudicecan be internally coherent, but it does not matter if it does not cohere withother part of a person’s total worldview.53

In this way we arrive at the total version. Here we approach the mostprofound problem of coherentist justification, that is, its circularity. Ifnothing is an unshakable foundation of knowledge and everything maybe doubted, I need reasons for reasons for reasons . . . etc. To avoid an

50Wolenski 1998, 31.51Cf. Peczenik 1998b passim on epistemological problems concerning coherence in

the law.52Raz 1994, 284.53By the way, Raz himself writes that “coherence theory . . . must relate to the totality

of one’s views”; 1994, 286.


infinite regress, a coherentist must accept circularity. Indeed, a coherentsystem of acceptances and preferences is like a network of argumentativecircles, mostly quite big ones. Metaphorically, a chain of arguments,sooner or later, bites its own tail, and thus may be represented as a circle.In such a chain, p1 supports p2, p2 supports p3 etc. . . . and pn supports p1.‘Support’ is only explicable as a reasonable support: p2 follows from p1

together with another premise, say r1. This premise r1 is reasonable, whichimplies that it is a member of another such circle. This circularity makesit impossible to logically prove that coherence renders truth. The “claimthat justification depends on coherence is not intended as an argumentto prove to a skeptic that we are truthworthy. It is the claim that ourjustification for what we accept depends on a system of acceptancecontaining general claims about our competence and truthworthiness.When there is an adequate match between acceptance and reality,coherence converts to knowledge”.54

To understand coherentism, one must keep in mind that neitherskepticism in general nor this isolation objection in particular has privilegedstatus, compared with other beliefs. It is merely a competitor of otherbeliefs. If someone says that my personally justified, coherent system ofacceptances and preferences is not ‘objectively’ justified, he has to winthe competition with my system.55 Consequently, if I want to argue that Iam justified in accepting or preferring x, I must appeal to my system ofacceptances and preferences at that time. And if the skeptic wants toconvince me that I am wrong, the appeal to my acceptance system at thattime is again all he can make. If what the skeptic accepts is less reasonable56

than the objection, he loses. The loss means that the acceptance in questionis defeated.

Let me now change the perspective: The question to deal with here isno longer, Can an individual achieve knowledge (and thus access to truth)by recourse to reasonability in the light of the background system ofacceptances and preferences? but: What circumstances indicate that this

54Lehrer 1989, 275. ‘Knowledge’ is an epistemic concept. It is not logically equiva-lent to any combination of natural (non-epistemic) concepts. “Coherence is the gluewhich bonds the natural world, as we conceive of it, to the world of epistemic value, aswe conceive of that. The glue of coherence requires matching surfaces of acceptance andtruth to hold fast, but it does not bond across possible words” (Lehrer 1997, 76).

55Cf. Lehrer 1990, 176 ff.56Another thing is that no reasonable definition of ‘reasonable’ exists. That is why

Lehrer has taken reasonableness as a primitive concept (id. 1990, 127).


test of reasonability has been passed? Alexy and Peczenik57 have developedsome criteria (or rules of thumb) of coherence of a theory. The word ‘theory’is used here in a broad sense, covering both descriptive, for exampleempirical theories, and normative or evaluative theories (norm systems orvalue systems). The more the statements belonging to a given theoryapproximate a perfect supportive structure, the more coherent the theory.Ceteris paribus, the degree of coherence of a theory depends on suchcircumstances as how great a number of supported statements belong toit; how long chains of reasons belong to it; how many chains of reasonssupport one and the same conclusion; how great number of general conceptsbelong to it; how high the degree of generality of these concepts is; howgreat number of cases it covers; and how great number of fields of life itcovers. The degree of coherence is determined by weighing and balancingof the criteria. For example, the supportive chain of reasons may beparticularly long when one uses less general concepts, and shrinksubstantially when the concepts applied become more general. In such acase, one must perform a complicated act of weighing in order to answerthe question which theory is more coherent, the more general one, or theone containing the longer chain of reasons.

Back to theories in legal dogmatics. Ceteris paribus, the degree ofjustification of such a theory is higher, the better it fulfills the criteria ofcoherence. Ultimately, the theory is justified, if it fits the total system ofone’s acceptances and preferences, as long as this system has not beencorrected by subsequent information and subsequent intervention of otherpeople. In other words, theories about negligence, adequate causation,ownership etc. are justified as long they fit one’s general and particularviews about the law, morality and society, together with one’s views aboutjustifiability, reality and other philosophical topics. This fit is perhapsnot quantifiable58 but human beings have resources, making it possibleto judge on such things.

5. CRITICISM AGAINST LEGAL DOGMATICS. AN OUTLINE OF ANTI-CRITICISM

However, generations of critics repeatedly attacked legal dogmatics.Indeed, criticism has been directed against all legal argumentation, both

57Alexy and Peczenik 1990 cf. also some additions in Peczenik 1989, 158 ff.58Arne Schütt (Berlin) made this point in oral communication.


in legal practice and in legal dogmatics. Legal argumentation has beensometimes regarded as a mere façade, concealing the fact that the lawyersexecute power. Let us restrict the discussion to legal dogmatics. It hasbeen a target of several kinds of criticism: empirical, morally-politicalepistemological, logical, and ontological.

The following classification of philosophical positions is helpful. Thepositions are arranged in triangles. The left corner of the triangle points atpositions oriented towards the limits of rational reconstruction, seen in theperspective of an ideal individual observer. The right corner of the trianglepoints at positions oriented towards the (abstract) description of socialphenomena. The five triangles refer to legal philosophy, moral philosophy,epistemology, ontology and logic sensu largo.

Morally-Political Problems 1:The source of normativity in the law

Reason Information aboutof an individual,e.g., society, e.g.Rationalist Legal Positivism,Natural law Historical School

No objective normativity at all, e.g.Hägerström’s Legal Realism

Morally-Political Problems 2:The source of normativity in morality

Reason Information aboutof an individual, e.g. society, e.g.Kantian Constructivism, CommunitarianismHare’s utilitarianism

No objective normativity at all, e.g.Non-cognitivism Hägerström’s value nihilism


Epistemological Problems:The sources of knowledge

Reason Information aboutof an individual,e.g. society, e.g.Foundationalism, ConventionalismCoherentism

No objective knowledge at all,Epistemological skepticism

Logical Problems:Valid reasonings

Logically necessary, Actuallydeductivism performed in the

society, includingdefeasibility(and induction)

No objectively valid reasonings,logical skepticism

Ontological Problems:Reality

Simple, e.g., Complex: includingphysicalist supervenience ofreductionism social entities on

brute entities

No objective knowledge at all,Ontological skepticism


In order to comment the triangles, let us start with skepticism. Skepticsare taken seriously in the law and in morality. Epistemological skepticsseem to be rather strange, but this species is by far not extinct. Ontologicalskeptics are more exotic, to find them one perhaps needs a journey toAncient Greece. Logical skeptics do not deserve much attention.

Practical people, among them lawyers, emphasize society, because allpractically useful information comes from it. Philosophers emphasize oftenthe individual, who in his own system must find reasons for his relianceon society. Thus, lawyers tend to be attracted to legal positivism, historicalschool, epistemological conventionalism, the view that social entities reallyexist, and reliance on defeasible reasoning. At least, they are thus attractedbefore they start reflecting philosophically. Upon reflection, a lawyer cantake any philosophical position whatever.

This observation actualizes the problem of conflicting perspectives onthe law. At least three perspectives are interesting in this context. The firstone is the perspective of judges and officials. They are interested in thequestion how to decide cases. In doing this, they are usually inclined tofollow legally established rules, and not to reason at a high level ofabstraction.59 The second is the perspective of legal dogmatics. It picks upquestions from the first perspective (the judge’s ‘how should I decide?’)and extends them, makes them more profound, as profound as possiblewithout losing normativity. Hence, legal dogmatics needs bridges tonormative, moral and political, philosophy. A passage to another – perhapseven more profound – philosophical perspective, emphasizing ontologicaldoubts about legal and moral norms, is not correct in the context of legaldogmatics because ontologically minded philosophers are usually notinclined to solve normative questions at all, instead they tend to dissolvethem.60 Yet, this ontological perspective is quite convincing in its owncontext. This observation leaves a philosopher of law with the followingchoice:

• He can opt for the profound ontological perspective, thus underminingjustification of legal dogmatics.

59Joseph Raz’s theory of rules as exclusionary reasons, combined with his theory of‘detached’ legal statements made by law teachers and lawyers, can be taken as a mani-festo of this perspective. According to Raz (1979, 153–154), “a detached legal statementis a statement of law, of what legal rights or duties people have, not a statement abouttheir beliefs, attitudes, or actions, about the law. Yet a detached normative statement doesnot carry the full normative force of an ordinary normative statement. Its utterance doesnot commit the speaker to the normative view it expresses”.

60Hägerström, Schlick etc.


• He can accept perspectivism as his meta-philosophy, thus stating thatlegal dogmatics is justifiable on its own terms, though perhapsunjustifiable in another – more profound – perspective.

• He can state that the perspective of legal dogmatics is the true one.

The position taken in this article regards all kinds of skepticism asfallacious. Moreover, it takes the positions on the left side of the trianglesas ideals, and the positions on the right side of the triangles as mereapproximation. That is, the theory anticipated here is natural-law, utilitarian,coherentist, reductionist and deductivist at the idealized, ultimate levelbut historicist, communitarian, conventionalist (Kuhn, Popper), non-reductionist and admitting defeasibility at the approximation-level.61 Forexample, in ontology, one must be a physicalist on the level of ultimateindividual reason, but a conventionalist supporter of supervenience at thepractical level. I must omit here complex interrelations between thepositions on the left side, that is, on the level of ultimate individual reason.One brief remark is, however, proper. Namely, the question occurs, Is itpossible to maintain a theory that is both natural law and reductionist? Sincethe question concerns the ultimate level of reason, only a super-humanintelligence could answer it without doubt. However, I find it plausible tothink that human nature – to be described in terms of advanced sciencebeyond our present knowledge – causes normal human beings to endorseobjective values that determine the best and thus binding morality and thebest and thus binding law.62 This vision is reductionist in the causal sense:the content of value-statement is causally determined by the facts describedin this future science.63

It seems that this philosophical mix facilitates understanding of thetraditional (Western) legal practice and legal scholarship. The point is toadapt philosophical choices to the practices of the law. This is all right,since philosophy is nothing more than a generalization of knowledge about

61The approximation-level may be conceived according to R.M. Hare’s ideas aboutthe ‘prole’: 1981, 44 ff.

62This is plausible for the reason of coherence. It seems to be the only way to avoid theinsuperable gap between theoretical reason and practical reason, the first finding causesand the second beyond causality. For obvious reason, this subject cannot be discussedhere.

63To avoid excessive descriptions of what only the future intelligences could know, Ido not try to say anything about whether this vision is reductionist in a stronger sense,stipulating that the meaning-content of value statements can be defined as equivalent tomeaning-content of physical statements of future science.


various segments of the world.64 Legal practices are an important segmentof the world.

In sum: The life program of the present author is to mutually adjustphilosophy to the practices of the law, not to force the latter into a chosenphilosophical position. Such a mutual adaptation of law and philosophycan make legal argumentation a bit more sophisticated, but it will probablynot produce revolutionary changes in the law. Neither is it probable thatexperience of legal dogmatics will justify revolutionary changes inphilosophy. But it can reinforce the ongoing trend to make philosophicalanalysis more open for defeasible argumentation. The idea of defeasibilityhas been recently used both in the context of artificial intelligence researchand in epistemology.65 A law theorist who welcomes this fact can giveexamples from his own experience.

But a big part of this program still waits for elaboration. Until the job isdone, legal dogmatics remains a source of unsolved philosophicalproblems.

6. CONSEQUENCES FOR POLITICAL PHILOSOPHY

I have argued that the system of law as presented in legal dogmatics, shouldnot only be internally coherent, but should also be harmonized with itsbackground in the form of morality and (political) philosophy. Since thisprocess of harmonizing is governed by the idea of coherence, it can berepresented as a reflective equilibrium. This observation actualizes therelation of the theory presented here to other theories of a similar kind, forinstance to Habermas’s theory.

Let me begin with stating the main difference of approach. Legaldogmatics has mostly been concerned with the problem of legal knowledge.In other words, a fruitful philosophical extension of legal dogmatics isepistemological. Yet, today, the emphasis is often elsewhere. The presentlydominating philosophers of law – such Rawls, Dworkin, Habermas, Razetc. – focus rather on political legitimacy than on epistemology.

An influential idea in political philosophy is that of deliberativedemocracy. If democracy is to work properly, the majority rule and rightsmust be completed with a deliberation procedure, allowing for moredetailed and historically changeable justifiable standards.66

64Cf. Castañeda 1980 passim.65Cf., e.g., Prakken and Sartor 1997.66Cf. Cohen 1989, 146–147.


A clear-cut theory of deliberative democracy would be a procedural one:Whatever results from free, reasoned, equal and consensus-orienteddeliberation would be defined as just and right. Thus, according to JürgenHabermas’s discourse principle, norms of conduct are valid if and only ifthose possibly affected by them could accept these norms as participantsin an ideal rational discourse. Rational discourse about public matters canonly be achieved within the framework of the law. In this framework, theprinciple of rational discourse becomes the principle of democracy.According to this principle, legal norms may claim legitimate validity onlyif all legal consociates would accept them in a perfect discursive procedureof law-making.67 In Habermas’s ‘postmetaphysical thinking’,68 the sameapplies to basic rights. These are no longer grounded in religion ormetaphysics but in the political process as such, and ultimately in rationaldiscourse.69 Since the agreement of all legal consociates is a ‘discursivelypurified’ and, therefore, rational act of self-government, no valid norm canviolate a basic right.

Habermas thus believes that a perfectly rational procedure of del-iberation must render substantively correct results. However, this theoryis open to objections.

• Cannot the perfect discursive procedure lead to unjust and un-reasonable results, for instance because the participants are nastyor stupid? Or can the discourse be so perfect that it automaticallycorrects the results of nastiness and stupidity? We simply do notknow it.

• Moreover, Habermas’s procedural theory is ‘a total idealization’.70

As such, it is almost empty. Even if it could tell us that the results ofthe perfect discourse must be correct, we do not know – and cannotknow –what the final content the conclusions of perfect debate wouldhave.

• Neither can we know whether a result of the perfect discourse is finalor not. Nothing precludes the discourse from going on indefinitely.But human beings are neither perfect nor eternal.

67See Habermas 1992, 135 ff. On criticism of Habermas’s principle of democracy see,for example, Alexy 1994, 227–238; cf. also Peczenik 1995, 69–71, 523.

68See Habermas, 1992, 83, 87, 127.69Consequently, in Habermas’s catalogue of rights, priority is given to basic political

rights (guaranteeing the democratic process), see id.155, 320, 529.70Alexy 1994.


In brief, the purely procedural theory of democracy can at best give us anunreachable ideal to approximate, but not a standard to judge actualdifferences of opinion.

Consequently, Amy Gutmann and Dennis Thompson have developed atheory of deliberative democracy in which procedural principles aresupplemented with substantive ones and discussed from the second-orderperspective.71 All those principles express, in various forms, the idea ofreciprocity.72 In spite of this substantive addition, this theory resemblesHabermas’s one in an important respect. It is a second-order theory,formulating the ultimate goal of deliberation, but unable to tell us muchabout the substantive results of it.

No doubt, the idea of deliberative democracy is plausible. It must,however, be adjusted to the heritage of legal dogmatics. I agree withGutman and Thompson that there are some provisional principles ofrational discourse, some provisional principles of democratic procedureand some provisional substantive principles, moral and political. They giveus an idea of the goal of the political process but not much informationabout its correct outcome. If we wish such information, we must rely onthe tradition of legal principles, as formulated by the courts and legalresearch.

To facilitate democratic deliberation, we need both strong courts andstrong legal dogmatics. The necessity of strong courts is eminentlyplausible. In many countries, the courts check and balance the electedlegislative through material review of constitutionality. But why legaldogmatics? Because the courts left alone – without aid of legal research –would tend to focus on particular cases to be decided. They would havedifficulties to reach the level of abstraction necessary for optimal coherenceof the law. If limitation and change of the constitutional constraints ofmajority rule is left to courts alone, the risk of arbitrariness would not beeliminated. On the other hand, the courts that have access to the scientiaiuris, can base their opinions on more elaborated value system. With the

71Gutmann and Thompson 2000, 163. Cf. id. 167: “The principles of deliberative de-mocracy are distinctive in two significant respects: they are morally provisional (subjectto change through further moral argument); and they are politically provisional (subjectto change through further political argument”.

72Id. 167: “Reciprocity suggests the aim of seeking agreement on the basis of princi-ples that can be justifiable to others who share the aim of reaching reasonable agree-ment” But “reciprocity is not a principle from which justice is derived, but rather onethat governs the ongoing process by which the conditions and content of justice aredetermined in specific cases”.


aid of legal dogmatics, the courts can regard the law as ratio scripta, notas a mere product of the will of the politicians.

This insight is not new. In Rome, Emperor August gave a few out-standing jurists authority to answer difficult legal questions, ius publicaerespondendi ex auctoritate principis. In middle ages, communis opiniodoctorum was an important source of the law. Most institutions ofcontinental private law have been originally drafted by legal researchers.

What is new is the insight that legal research is necessary in the contextof constitutional constraints on the majority rule. For the majority cannotconstrain itself. It must be balanced by something else. If this ‘somethingelse’ are the courts, the problem of legitimacy is almost impossible to solve.Surely, popular majority and its representation have greater legitimacy thanthe courts. Only if the courts act on the basis of Reason they can be alegitimate counterpart of the majority rule. And Reason cannot be exhaustedby particular decision making. It also needs a more abstract deliberation,given by expert jurists.

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Peczenik, A. Scientia Iuris – an Unsolved Philosophical Problem