Abstract
Out of the different theoretical proposals involved in setting directives and constructing models for rationally controlling judicial decisions, some proposals pay particular attention to consequentialist arguments. This paper analyses the diverse approaches to consequentialist arguments given by MacCormick’s theory, Wróblewski’s theory and Feteris’s pragma-dialectical theory, with the purpose of, firstly, comparing, at theoretical level, the strengths and weaknesses when arguing by consequences is at stake. For testing the scope of the proposals, the paper will, secondly, use the selected theories in a study of the consequentialist arguments used by a ruling of the Chilean Constitutional Court. The theoretical comparison, together with the outcomes to which the analysis of judicial argumentation leads, will shed light on the capacity and efficacy of these tools in guiding the rational construction and evaluation of judicial reasoning.
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Notes
- 1.
The first two of these problems have to do with the major premise (law), and the others with the minor premise (facts). See MacCormick (1997:65–72, 87–97).
- 2.
Dworkin tackles this problem by saying that consequences-based reasoning denies past judicial and political decisions and displaces the conception of welfare of the community by the judge’s own conception (1986:101; 152ff).
- 3.
- 4.
The argument from consequences has been generally conceptualized as “the argument for accepting the truth (or falsity) of a proposition citing the consequences of accepting that proposition (or of not accepting it)” (Walton 1999:252). This same argument, under the name of “pragmatic argument”, is defined by Perelman as the one that enables to evaluate an act or event in accordance with its favourable or unfavourable consequences (Perelman and Olbrechts-Tyteca 1969:266ff).
- 5.
MacCormick differentiates between the result of a decision – understood as the legal effects that must be applied to a case when the factual and normative requirements prescribed by the rule are met – and its consequences as a factor for deciding (MacCormick 1983:246).
- 6.
Bengoetxea, following MacCormick, distinguishes, in my view, between these two types of consequentialist arguments, even when not with this terminology: (a) those consequences that refer to the possible internal juridical implications of a legal decision, that is, within Law as a legal system; and (b) those consequences that might follow a judicial decision in Law that refer to the results or repercussions (in behavioural terms), for example, consequences in the economy or in Law as a social system or in other systems (Bengoetxea 1993a:256ff). See also the distinction between juridical and behavioural consequences in MacCormick (1983:251). An analogy could also be made with the categories “normative” and “factual” consequences within the trilogy proposed by Wróblewski (1984:151ff).
- 7.
Scholars have also elaborated other classifications that, although interesting, will not be developed here: causal and remote, favourable and unfavourable, foreseeable and certain, particular and systemic. See, for example, Perelman Olbrechts-Tyteca (1969:266ff), Gottlieb (1968:76), and MacCormick (1997:150).
- 8.
These type arguments come from an analysis of a set of rulings of the Spanish Constitutional Court that I did a couple of years ago. Following the order of the text, these rulings are: STC 45/1989, de 20th February; STC 195/1998, 1st October; STC 75/1984, 27th June; STC 37/1981, 16th November; STC 178/2004, 21st October; STC 184/2004, 2nd November.
- 9.
These examples are taken from the study of a set of rulings of the Spanish Constitutional Court mentioned in the previous footnote. Following the order of the text, these rulings are: STC 54/2002, 27th February; STC 13/1992, 6th February; STC 155/2005, 9th June; ATC 135/2004, 20th April.; STC 22/1981, 2nd July.
- 10.
In my view, this is the proposal of Bengoetxea. Some of the common criteria for assessing consequences that he points out are the unity among the parts of the argument, the consistency or absence of contradictions among the elements of the argument, the coherence of the argument with the legal system, and the completeness, that is, that the argument gives account of all its premises. Concerning the different criteria, the parameters of evaluation of legal consequences are: substantive equality, the goals and purposes of the norm or branch of law, institutional values, constitutional principles or general principles of law. Extra-legal consequences, in turn, are assessed through axiological criteria such as economic stability, good international relations, and protection of the social welfare of the society or of a certain group. The problem is, precisely, that with the consequences being hypothetical, there is no possibility of an empirical evaluation when they are used as an argument; instead, their assessment is always made a priori and abstractly, which prevents the rational control of those hypotheses (Bengoetxea 1993b:46ff).
- 11.
I borrow this expression from Péter Cserne (2012).
- 12.
By universalisation or universalisability in adjudication legal theorists refer to the fact that the judge that adopts a decision in a particular case has to be ready to give the same solution to all future cases with analogous relevant features. Uniformity in judicial decisions is a requirement also of consistency and coherence of the legal system, at the same time as being an expression of the rule of justice that “requires that those who are essentially similar should be treated alike”. Perelman calls it the rule of formal justice, “because it does not tell us when beings are essentially similar nor how they must be treated” (Perelman 1977:81–82; 1974:28).
- 13.
Some authors have pointed out that universability is a feature of rationality of argumentation according to the great majority of theories of practical reasoning. Wróblewski says that even if the former idea could be debated, universability can be nevertheless understood as a requirement of its legality (1984:160–161).
- 14.
In Wróblewski (1984) he distinguishes five levels of justification.
- 15.
One of the founding texts on pragma-dialectical theory is Van Eemeren, and Grootendorst (1992).
- 16.
In a similar line of argument, Van Eemeren and Grootendorst point out that with instrumental argumentation, as a model of argumentation based on causality relation, the important questions are: “Is the announced effect of the proposed measure really so desirable? Will this effect indeed follow? Or could it be achieved more easily by way of another measure? Does the proposed measure not have any serious negative side-effects?” (1992:102).
- 17.
“If application of rule R in interpretation X1 in the circumstances of the given case C1, C2, . . . Cn leads to Y1, and Y1 is desirable, and if application of rule R in interpretation X2 leads to Y2 and Y2 is undesirable, then application of rule R in interpretation R1 is to be preferred to application of rule R in interpretation X2” (Feteris 2008:490).
- 18.
STC 1710-10-INC, 6th August 2010.
- 19.
The Chilean Health Systems combines, since 1981 reform, a public (National Health Fund or “Fonasa”) and a private system. In 2011, 22% of the Chilean population has private health insurance.
- 20.
STC Rol 558, 5th June 2007, para. 18 y 19. Cited by STC 1710-10-INC, 6th August 2010, cons. 23.
- 21.
Presentation of the President Sebastián Piñera, 20th May 2010, p.37.
- 22.
Presentation of the Association of PHI, 30th April 2010.
- 23.
The latter is argued in the presentations of the governmental health institutions. These possible future consequences were backed by statistical data in the Report “Elimination of the Factors’ Board”, of the Superintendence of Health (30th May 2010).
- 24.
I will like to remark the fact that it could be contended to classify the propositions of letters (a) to (e) and (a) to (c), respectively, as proper arguments referring legal and extra-legal consequences, when they could be qualified as mere considerations that, together with other ones, push the decision in one direction. Therefore, if they are not arguments at all but only generic propositions which are found reasonable or of common sense within the legal practice, it would be problematic to treat them as proper arguments, and as such, to apply to them the theoretical proposals under review. Even assuming this last point of view, i.e., that there are argumentative deficiencies in the way the reasons are constructed, I think that some analysis of those propositions qua arguments is possible.
- 25.
With the consequences being hypothetical, there is no possibility of an empirical evaluation when those consequences are used as an argument, but their assessment is always made a priori and abstractly; empirical data, then, is only useful to give force to the claim to favourable or unfavourable future consequences by comparing with analogous past situation or attempting to predict the magnitude of the impact.
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Carbonell, F. (2013). Reasoning by Consequences: Applying Different Argumentation Structures to the Analysis of Consequentialist Reasoning in Judicial Decisions. In: Dahlman, C., Feteris, E. (eds) Legal Argumentation Theory: Cross-Disciplinary Perspectives. Law and Philosophy Library, vol 102. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-4670-1_1
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