Abstract
The ten frames of legal analysis discerned from an isomorphic theory of law to radical contextualism are meant as an elaboration of Jerzy Wróblewski’s three ideologies of judicial decision-making (i.e. the bound, legal and rational, and free ideologies) and Kaarle Makkonen’s three situations of legal decision-making (i.e. the isomorphic, semantically ambiguous, and unregulated situations). The mutual relations that prevail between the ten frames of legal analysis and the three ideologies or situations of legal decision-making by Wróblewski and Makkonen, respectively, are concisely contrasted. Wróblewski’s legal and rational ideology is further analysed in light of its constituent parts, viz. the prevalent legislative ideology, collective judicial ideology, and a societal conception of law and justice. So far, the analysis has focused on the synchronic models of legal argumentation, with emphasis on the chosen criterion, or a set of converging criteria, on how to construct and read the law in a reasoned manner. Sequential models of legal reasoning, on the other hand, conceive legal reasoning in a diachronic manner, or a chronological process from one type of argument to another. Two sequential models are considered: Neil MacCormick theory of the “three C’s in legal reasoning”, i.e. from text-oriented logical consistency to principled coherence in law and, finally, to the act of evaluating the external consequences of law in society; and the argumentation model suggested by the research group Bielefelder Kreis with reference to the role of the linguistic, systemic, teleological-axiological, and transcategorical arguments in legal reasoning.
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Notes
- 1.
Nine plus one, and not ten, frames of legal analysis, because radical, ad hoc based decisionism denies the impact of any legally qualified criteria in the construction and interpretation of law.
- 2.
Ronald Dworkin’s seminal idea of the role of legal principles with possibly oblique but still legally adequate institutional support and a sense of approval in the community is a “third theory of law” (as coined by J. L. Mackie), since there are elements drawn from legal positivism and natural law philosophy in it.
- 3.
Wróblewski, The Judicial Application of Law, pp. 265–314.
- 4.
Makkonen, Zur Problematik der juridischen Entscheidung, pp. 78–79: “… kann es sich um einen so klaren und allseitig deutlich gestalteten Fall handeln, dass die anzuwendende Rechtsnorm der entscheidenden Instanz ohne weiteres sofort bekannt ist. Zwischen den gegebenen Tatsachen und den im Rechtsnormsatz dargestellten Tatsachen herrscht dann das Verhältnis des Abzubildenden zum Bilde. Wir gebrauchen für eine derartige Lage die Benennung Isomorphiesituation.” (Italics in original.)
- 5.
Makkonen, Zur Problematik der juridischen Entscheidung, p. 78 et seq. In German: Isomorphiesituation, Auslegungssituation, ungeregelte Situation.
- 6.
“Mais, si les tribunaux ne doivent pas être fixes, les jugements doivent l’être à une telle point, qu’ils ne soient jamais qu’un texte précis de la loi. (…) Mais les juges de la nation ne sont, comme nous avont dit, que la bouche qui prononce les paroles de la loi; des êtres inanimés qui n’en peuvent modérer ni la force ni la rigueur.” Montesquieu, L’esprit des lois, pp. 399–404.
- 7.
“Rättskällorna är dessutom relaterade till begreppet ‘juridisk argumentation’. Det går inte att på en och samma gång förkasta alla eller nästan alla av dem och ändå argumentera juridiskt.” Peczenik, Vad är rätt?, p. 226. (Italics in original; translation by the present author.)
- 8.
The part of judicial ideology that deals with the definition and separation of the ratio decidendi of a case from the obiter dicta elements in that case may be called a precedent-ideology. Cf. Siltala, A Theory of Precedent.
- 9.
A concise account of the concept of transnational law is given in Glenn, “A Transnational Concept of Law”, passim.
- 10.
Similar models of argumentation can of course be found in the American literature on jurisprudence, as well. For instance, in Wilson Huhn’s lucid presentation of the topic, Five Types of Legal Argument, the five categories of text, intent, precedent, tradition, and policy are analysed in light of the American experience. Cf. Huhn, Five Types of Legal Argument.
- 11.
Cf. Peczenik, On Law and Reason, pp. 319–371; Aarnio, The Rational as Reasonable, pp. 89–101.
- 12.
Austin, How to Do Things with Words, passim.
- 13.
The institutions/instances dichotomy in institutional theory of law is parallel to the type/token dichotomy in linguistic philosophy.
- 14.
The late Neil MacCormick’s main works in jurisprudence include Legal Reasoning and Legal Theory (1978), Questioning Sovereignty: Law, State, and Nation in the European Commonwealth (1999), Rhetoric and the Rule of Law: A Theory of Legal Reasoning (2005), Institutions of Law: An Essay in Legal Theory (2007), and Practical Reason in Law and Morality (2008). The four books mentioned last make up the series Law, State, and Practical Reason. In addition, MacCormick was a member of the research group Bielefelder Kreis that produced two first-rate contributions to the topics of comparative legal argumentation theory: Interpreting Statutes: A Comparative Study and Interpreting Precedents: A Comparative Study. I have very warm personal recollections of Sir Neil from October 1998, when he acted as the official opponent at the public defence of my doctoral dissertation, A Theory of Precedent, and from August 2006, when he was the honorary guest at my post-graduate seminar, devoted to his legal philosophy under the title Post-Sovereign Nations, Rhetorics, and the Rule of Law – A Seminar on Neil MacCormick’s Institutional Philosophy of Law.
- 15.
A concise summary of MacCormick’s early account of legal reasoning is in MacCormick, Legal Reasoning and Legal Theory, pp. 250–251. Cf. his later summary: “The conclusive or clinching point of argument when a case still stands open after such testing for consistency and coherence is an argument about consequences …” MacCormick, Rhetoric and the Rule of Law, p. 104. (Italics added.)
- 16.
MacCormick, Legal Reasoning and Legal Theory, pp. 64, 106.
- 17.
MacCormick, Legal Reasoning and Legal Theory, pp. 117–120 (with the coin metaphor is on p. 120); cf. Summers, “Two Types of Substantive Reasons: The Core of a Theory of Common-Law Justification”, passim.
- 18.
In Institutions of Law, MacCormick takes a critical stance vis-à-vis legal positivism à la Kelsen and Hart, and labels his own thinking as a post-positivist philosophy of law. MacCormick, Institutions of Law, p. 279: “It is perhaps most sensible to say that this book presents an institutional theory of law, and that this theory draws inspiration both from some strands of thought previously advanced by self-proclaimed ‘legal positivists’ and from others derived from ‘natural law’ theorizing. It is post-positivist, if not anti-positivist.”
- 19.
In Rhetoric and the Rule of Law, pp. 49–77 (“Defending Deductivism”), MacCormick defends the challenging idea that the deductive, syllogistic model of reasoning defines the inherent structure of law, even if the express justification of the decision were given in less formal terms. As a consequence, a legal decision can always be transformed into an instance of syllogistic reasoning, if the relation between the norm and fact premises and the outcome of such reasoning is questioned, which defines the “deeper” logic of reasoning in the Western legal systems.
- 20.
I had the privilege of acting as the secretary of the Bielefelder Kreis in two of its meetings, first in Bologna and Florence, Italy, and then in Tampere, Finland, in the mid-1990s, when the book Interpreting Precedent was being drafted. The standard of legal scholarship was exceptionally high in the group, with Jerzy Wróblewski (in sessions during the 1980s) usually acting as the “master of legal analytics”, summarizing the discussion so far conducted from time to time, and Neil MacCormick and Robert S. Summers, as the two chairmen of the group, keeping the discussion on the right track, i.e. the current point of issue. Legal comparative issues were mainly taken care of by Michele Taruffo, the Italian legal comparatist, while all the other members of the Bielefelder Kreis were professionals in analytical jurisprudence and legal argumentation theory. – The description of the role held by Jerzy Wróblewski in the meetings of the Bielefelder Kreis in the 1980s is based on what Aulis Aarnio, himself a member of the group, once told me.
- 21.
Since over 10 years have passed since the publication of the latest work of the group and since some of the key members of group are now deceased, i.e. Jerzy Wróblewski (†1990), Aleksander Peczenik (†2005) and Neil MacCormick (†2009), and since the group has not been called in for the preparation of some new project, we may – regrettably – have to look upon the Bielefelder Kreis as a historical phenomenon nowadays.
- 22.
The division of legal source material, and of arguments derived from them, in the two books by the Bielefelder Kreis is adopted from Aleksander Peczenik’s model where such material is divided into the three categories of must-sources, should-sources, and may-sources.
- 23.
MacCormick and Summers, eds., Interpreting Statutes, pp. 512–525. – In his summary account of the results attained by the Bielefelder Kreis, MacCormick, though he briefly mentions it (on p. 125), yet bypasses the transcategorical argument in the further elaboration of the thematics. Cf. MacCormick, Rhetoric and the Rule of Law, p. 124 et seq. Summarizingly on the prima facie sequence of arguments, MacCormick and Summers, Interpreting Statutes, pp. 530–532.
- 24.
On the argument from intention, MacCormick and Summers, eds., Interpreting Statutes, pp. 522–525.
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Siltala, R. (2011). Intermission. In: Law, Truth, and Reason. Law and Philosophy Library, vol 97. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-1872-2_12
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