Professional Documents
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ALEKSANDER PECZENIK
1. LEGAL DOGMATICS
Legal dogmatics in Continental European law (scientia iuris, Rechts-
wissenschaft, Rechtsdogmatik, ‘science of law’, legal theory) consists of
professional legal writings, e.g., handbooks, monographs etc., whose task
is to systematize and interpret valid law. Legal dogmatics regards the law
as man-made and historically changing. At the same time, it arranges the
law under over-reaching principles.1 Thus, Savigny, the grand old man of
the German legal dogmatics, stated that legal dogmatics is historical and
philosophical,2 it integrates exegetical and systematical elements.3
1
Savigny 1840, XXXVI: “Ich setze das Wesen der systematischen Methode in die
Erkenntniss und Darstellung des inneren Zusammenhangs oder der Verwandtschaft,
wodurch die einzelnen Rechtsbegriffe und Rechtsregeln zu einer grossen Einheit verbunden
werden. Solche Verwandt-schaften nun sind erstlich oft verborgen, und ihre Entdeckung
wird dann unsre Einsicht bereichern.”
2
Savigny 1993: historical and philosophical (30), philosophical due to its use of the
concept of system (32).
3
Id. 35.
4
Peczenik 1995, 312 ff. Cf. Savigny 1993, 197: Legal dogmatics does not create ac-
complished rules but a method that continually changes the rules.
5
Cf., e.g., Knut Rodhe’s program in Swedish civil law, 1944 and 1971.
6
European 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.
7
Sometimes contrasted with practical legal dogmatics, cf., e.g., Aarnio 1997, 237.
8
E.g., on travaux préparatoires in Sweden or on the decisions of the ECJ in EU.
SCIENTIA IURIS – AN UNSOLVED PHILOSOPHICAL PROBLEM 277
Among general theories of legal dogmatics, one may mention, for example,
the theories of negligence, intent, rebus sic stantibus, loyalty between
parties in contract law, theory of adequate causation, theories of property
in 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 solutions
of hard cases, and is merely regarded as an auxiliary tool for interpretation
of statutes and contracts.9 It is not easy to see what job this tool helps to
perform. The same has been said about the theory of rebus sic stantibus.
Its teleological version made a kind of success in Sweden, yet its author
did characterized it as “a conglomerate of different principles with different
levels of preciseness and unclear relation to each other”.10
This vagueness is not accidental but rather reflects the tension between
the demand of scientific preciseness and the demand of political legitimacy.
Remember that the theories are normative. Were they precise, then they
would result in production of legal rules by scholars. This would be open
to criticism as ‘extra-parliamentary law-making’. On the other hand, the
vagueness of theories provokes the question what they are good for. Let
me now give some examples in a greater detail.
9
Nicander 1995/96, 49.
10
Lehrberg 1989, 277.
278 ALEKSANDER PECZENIK
von Kries points out that we are dealing with a generalizable causation.
The negligence of the coachman was generally apt to bring about such an
accident and to increase the possibility or probability of it. In fact, von Kries
had two ideas; first that an adequate cause is generally apt to bring about
a given kind of a harm and secondly that an adequate cause relevantly
increases the probability of a given kind of a harm. Thus, an unwritten
principle of the law of torts was discovered that stipulates that one has to
compensate a damage only if it has been an ‘adequate’ result of the action
for which one is liable. But when is the causal connection ‘adequate’? The
concept of adequacy has been extensively discussed in the legal research.
Later on, different theories of ‘adequacy’ evolved,11 inter alia, the
following ones: The causal connection between an action and a damage is
adequate if, and only if, any action of this kind is apt to bring about (or
relevantly increases probability of) a damage of this type. The causal
connection between an action and a damage is adequate if, and only if,
this action makes a damage of this type foreseeable for a very cautious
and well-informed person (a cautious expert, a vir optimus). The causal
connection 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 connection
between an action and a damage is adequate if, and only if, this action is a
substantial (important) factor in producing the damage.
Each theory of this kind has been proposed as the general theory of
adequacy, guaranteeing acceptable decision making. But each one, although
reasonable, is contestable. Moreover, the question how often various
theories imply different evaluation of adequacy in concrete cases is not
easy to answer. If the theories differ in their normative consequences, the
legal dogmatics acts as a kind of lawmaker. If they do not differ, what is
their competition good for?
A couple of generations ago, the theories of adequacy went out of
fashion. Several authors tried to replace them with something else, for
example to make liability dependent on ‘the purpose of protection’.12 But
the new formulations were even less clear than the old ones. The theory of
adequacy thus came back, often with a lesser claim of generality. This
happened, for instance, in die Lehre von der objektiven Zurechnung13 in
German Criminal law. The theory covers a certain number of cases, in
11
See Peczenik 1979, 153 ff.
12
See references in Peczenik 1979, 153 ff. See also Andersson 1993.
13
The most discussed cases are:
• A person wants to kill another with the help of thunderstorm. He sends the ‘victim’ to a
forest. The ‘victim’ is killed in the thunderstorm (case group: force of nature).
SCIENTIA IURIS – AN UNSOLVED PHILOSOPHICAL PROBLEM 279
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 unjust
to be punished. German legal research made a systematic survey of such
cases. The level of abstraction of this doctrine is lower than that of
traditional doctrines of adequacy but the level of preciseness is higher.
• A person wants to kill another by infecting with a cold. He shakes hands and infects
this 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 in
which 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 third
person 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 with
a stone on the head. In the last moment, the first interferes. Therefore, the stone hits the
victim’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).
280 ALEKSANDER PECZENIK
interesting thing is, however, that, in the recent times, it has come under
attack from two different sides, namely from Richard Posner’s law-and-
economics movement and from the welfare-state politics. Thus, one can
be found liable in torts in the cases of negligence in spite of the fact that
what one did was quite normal. According to the economic theory, the
defendant’s conduct shall be judged by whether it promotes economic
efficiency (‘Learned Hand’s formula’). According to the social security
theory, the defendant shall be found negligent, if the burden of accidents
is 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 is
possible because normality can be judged in normative manner, not only
on the base of frequency. But one can also see the new theories as
competitors with the old one. This is the case, for instance, when a
Posnerian judge hopes to convince others that the law-end-economic
approach is the best one, point and finished. The third way out is to try to
make negligence dependent as a system with rules and meta-rules. For
example, Christian Dahlman14 distinguishes between three ‘negligence-
paradigms’ in torts, accompanied with the following meta-rules: (1) The
classical negligence paradigm shall be applied in cases, where the defendant
is an individual, who has caused the accident in his private life, (2) the
law-and-economics paradigm shall be applied in cases, where both the
plaintiff and the defendant are corporations or government bodies, (3) the
deep pocket paradigm shall be applied in cases, where the plaintiff is and
individual and the defendant is a corporation or a government body.
According to Dahlman, the respective rule dominates completely within
its own paradigm. The paradigm’s criterion is developed to promote only
the objective it serves. Other objectives are not taken account for at all.
14
Dahlman 2000.
SCIENTIA IURIS – AN UNSOLVED PHILOSOPHICAL PROBLEM 281
15
Aarnio 1997, 256 ff.
16
Ross 1958, 170 ff. Earlier by Wedberg 1951, 246 ff.
282 ALEKSANDER PECZENIK
17
The 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 jurist
Torp (information from Lars Björne).
18
Aarnio 1997, 272–273.
19
This was recognized by Ross, 1958, 170 ff.
SCIENTIA IURIS – AN UNSOLVED PHILOSOPHICAL PROBLEM 283
The last point is the central one. In spite of all analytical progress, we
apparently still need the umbrella concept of ownership. Yet, what we really
need 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 facilitates
discussion? Recent research gives reasons for optimism. A sophisticated
model of the required kind has been in fact elaborated by Lars Lindahl.21
What remains to be done is epistemological, ontological and methodological
reflection utilizing this model.
20
See also Simmonds 1998, 195 ff. about the return of Will and Interest Theory after
Hohfeld.
21
Lindahl 2000.
22
E.g., Larenz 1983.
23
Cf., e.g. id. 19 ff. on Puchta.
24
Cf., e.g. id. 43 ff. on Ihering.
25
Cf., e.g., Ekelöf 1958.
26
Wróblewski 1992, 265 ff.
27
1993.
284 ALEKSANDER PECZENIK
theory. In his view, the sources of the law are ‘authority reasons’.28 This
excludes Eckhoff’s “real considerations” from the list of the sources. Then,
the sources of the law are divided into three categories, namely such that
a person who performs legal argumentation must, should or may proffer
as authority reasons.
Thus, in many states in European Continent, the following can be said.
• All courts and authorities must use applicable statutes and other
regulations in the justification of their decisions.29 The expression ‘other
regulations’ refers, for example, to general rules issued by the
Government on the basis of statutory authorization.
• When performing legal reasoning, one should use precedents and – in
some countries – legislative preparatory materials as authority reasons,
if any are applicable.30
• When performing legal reasoning, one may use inter alia the following
material.
Some custom (so far it does not constitute a must – or should – source
of the law);
writings in legal dogmatics;
foreign law, unless it is incompatible with some overriding reasons, such
as the so-called ordre public.
28
The term has been used by Summers1978, 707 ff. in a somewhat different way.
29
The problem of the direct effect of the EU law is left out of considerations here.
30
One should also use international conventions, underlying the applicable national
legislation, together with preparatory materials and other interpretatory data concerning
these conventions (cf. Pålsson 1986, 19 ff.).
31
See Peczenik 1989, 313 ff.
SCIENTIA IURIS – AN UNSOLVED PHILOSOPHICAL PROBLEM 285
• The more important sources are stronger reasons than the less important
ones.
• Reasons strong enough to justify disregarding a less important source
may be weaker than those required to justify disregarding a more
important 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 legislative
preparatory materials, the former has a prima facie priority. One thus
ought 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’.
32
Statutes and custom thus had a special position in the classical Continental theory of
the sources of law in 19th Century. They had the power to create rights and duties of
private 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, travaux
préparatoires and foreign law (id. 52).
286 ALEKSANDER PECZENIK
is possible. This leads us back to the main problem. What is the use of
defeasible priority orders? Are they not a mere façade, concealing the fact
that x comes before y – unless not?
33
Cf. Posner 1990 passim. Posner has been inspired by the Nobel prize winner Ronald
H. 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 are
willing 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.
35
Spector 1997, 360.
36
Id.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.
SCIENTIA IURIS – AN UNSOLVED PHILOSOPHICAL PROBLEM 287
37
Reidhav 1998, 112 ff., concluding, as follows: “It has been suggested that Posner’s
theory is contractarian as well as utilitilitarian but as we have seen in this chapter and in
the light of previous chapters it is neither” (115).
38
Posner 1990, 382. Cf. Posner 1995, 1–25.
39
Posner (1995, 1–25) provided an extensive elucidation but no clear concept.
40
Spector 1997, 366.
41
Spector 1997, 368.
42
Spector 1997, 369.
288 ALEKSANDER PECZENIK
To discuss the point and function of such theories, we must say something
about the place of legal rules in legal argumentation. At first, let us make
distinction between decisive and contributing reasons. 43 Decisive
reasons determine their conclusions. If a decisive reason for a con-
clusion obtains, the conclusion must also obtain. Some decisive reasons
determine their conclusion without any possibility of an exception.
Other decisive reasons are, however, defeasible. In other words, the
possibility that such a reason is defeated cannot be excluded in advance.
A decisive-and-defeasible reasons determine their consequences in
normal circumstances, but do not determine their consequences if the
circumstances are not normal.
Contributing reasons, on the contrary, do not ever determine their
consequences by themselves. There can be contributing reasons that plead
for and against a particular conclusion. It is the set of all contributing
reasons concerning a particular conclusion, both the reasons pro and con,
43
The concept of a ‘reason’ may be defined in many ways. What is important is that a
reason 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 a
person S to believe Q if and only if it is logically possible for S to become justified in
believing Q by believing it on the basis of P” (Pollock 1986, 36).
SCIENTIA IURIS – AN UNSOLVED PHILOSOPHICAL PROBLEM 289
that determines whether the conclusion holds. One can also say that
contributive reasons are pro tanto reasons.44
We will now distinguish between rules and principles.45 Once we know
that a certain provision is a principle, or that a certain practice or deliberation
expresses a principle, we know that it is a contributing reason, not a decisive
reason. Principles have a dimension of weight and reasons based on principles
need to be weighed against reasons based on colliding principles, if there
are any. All use of principles in legal reasoning is for weighing. A lawyer is
not supposed to just follow a principle. He is supposed to confront with it
and to weigh it against other principles relevant for the case. Rules are
different. The different logical roles of rules and principles can be accounted
for by assuming that rules exclude the application of principles, rather than
by saying that rules outweigh principles.46 If the application of a rule excludes
the application of a principle, there is no need for weighing anymore, because
the 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 is
applicable to this case, an exception is raised to all principles that might
identify facts of the case as reasons. Cases that have applicable rules are in
principle not judged on the basis of principles.
Another way to approach the same issue is to state that legal rules
generate decisive reasons for legal conclusions. Assume now that we know
that a certain legal provision is a rule, or that a certain practice expresses
a 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 rule
applicable form, if the rule is applied, a decisive reason for the rule’s
conclusion. Such a decisive reason needs not to be balanced against other
reasons anymore. If contributing reasons collide with it, the decisive reason
wins by definition, so there is no need for weighing.
44
Kagan “distinguishes between ‘prima facie’ reasons (reasons ‘at first sight’) and
reasons ‘pro tanto’ (‘insofar’). Kagan suggests that certain considerations may appear to
be reasons for a decision or a judgment at first sight, so to speak, but then turn out to be
irrelevant when other aspects of the situation have been taken into consideration . . . A
prima facie reason can be undercut, so to speak, by other aspects of the situation, and
then drop out of sight altogether. It is different with pro tanto reasons. . . . Such reasons
are never undercut, even though they may be outweighed in some cases by reasons to the
contrary, if the latter are stronger . . . The idea of weighing reasons seems natural for the
pro tanto reasons, but it is not appropriate for the prima facie reasons that aren’t pro
tanto” (Rabinowicz 1998, 21. Cf. Kagan 1989, 17 and Peczenik 1998, 57).
45
In a way that is closely related to the opinions of both Dworkin (1977) and Alexy
(inter alia 1985 and 2000).
46
See Raz 1975, Schauer 1991, and Hage 1997.
290 ALEKSANDER PECZENIK
Yet, rules admit exceptions. In other words, legal rules are defeasible
reasons 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 applied
to that case. There are at least three kinds of reasons to make an exception:
The logical distinction between rules and principles does not answer the
question 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, legal
provisions are applied if their conditions are satisfied and they generate
decisive reasons. With hindsight, such cases may be called routine ones
(‘easy’ ones). Once a case is identified as a routine case, no values and no
choices are necessary to solve it. A decision in such a case follows from
an established legal rule together with the description of the case.
Sometimes, however, there are major objections against treating legal
provisions as ‘hard’ rules. Then one is prepared to make an exception. Such
cases are with hindsight called ‘hard’ ones. There are also hard cases
resulting from interpretation problems. In hard cases, almost all legal
provisions can be defeated on the basis of weighing contributive reasons
for and against their application. Then the logical behavior of legal provisions
resembles more that of principles than that of rules. A hard case requires a
weighing that can justify a deviation from the wording of the law.47 The
solution of a hard case follows from a set of statements consisting of the
legal rule in question, interpreted literally or adjusted, the description of the
case and a reasonable (though not indubitable) additional premise. Such an
47
To be sure, routine cases, too, involve values and choices, but these are commonly
shared and uncontroversial.
SCIENTIA IURIS – AN UNSOLVED PHILOSOPHICAL PROBLEM 291
48
In this context, one may answer the question asked by Wlodek Rabinowicz (1998):
“Can Rules Be Weighed? According to Peczenik, the process of weighing reasons is
central for justification. Ideally, every reason can and should be weighed against other
reasons. Applied to law, legal judgments are arrived to by such a process of weighing
where 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 might
involve 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 be
interesting 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.
49
Legal dogmatics may also produce exceptions to statutory rules but this is less inter-
esting in the present context.
292 ALEKSANDER PECZENIK
50
Wolenski 1998, 31.
51
Cf. Peczenik 1998b passim on epistemological problems concerning coherence in
the law.
52
Raz 1994, 284.
53
By the way, Raz himself writes that “coherence theory . . . must relate to the totality
of one’s views”; 1994, 286.
SCIENTIA IURIS – AN UNSOLVED PHILOSOPHICAL PROBLEM 293
54
Lehrer 1989, 275. ‘Knowledge’ is an epistemic concept. It is not logically equiva-
lent to any combination of natural (non-epistemic) concepts. “Coherence is the glue
which bonds the natural world, as we conceive of it, to the world of epistemic value, as
we conceive of that. The glue of coherence requires matching surfaces of acceptance and
truth to hold fast, but it does not bond across possible words” (Lehrer 1997, 76).
55
Cf. Lehrer 1990, 176 ff.
56
Another thing is that no reasonable definition of ‘reasonable’ exists. That is why
Lehrer has taken reasonableness as a primitive concept (id. 1990, 127).
294 ALEKSANDER PECZENIK
test of reasonability has been passed? Alexy and Peczenik57 have developed
some criteria (or rules of thumb) of coherence of a theory. The word ‘theory’
is used here in a broad sense, covering both descriptive, for example
empirical theories, and normative or evaluative theories (norm systems or
value systems). The more the statements belonging to a given theory
approximate a perfect supportive structure, the more coherent the theory.
Ceteris paribus, the degree of coherence of a theory depends on such
circumstances as how great a number of supported statements belong to
it; how long chains of reasons belong to it; how many chains of reasons
support one and the same conclusion; how great number of general concepts
belong to it; how high the degree of generality of these concepts is; how
great number of cases it covers; and how great number of fields of life it
covers. The degree of coherence is determined by weighing and balancing
of the criteria. For example, the supportive chain of reasons may be
particularly long when one uses less general concepts, and shrink
substantially when the concepts applied become more general. In such a
case, one must perform a complicated act of weighing in order to answer
the question which theory is more coherent, the more general one, or the
one containing the longer chain of reasons.
Back to theories in legal dogmatics. Ceteris paribus, the degree of
justification of such a theory is higher, the better it fulfills the criteria of
coherence. Ultimately, the theory is justified, if it fits the total system of
one’s acceptances and preferences, as long as this system has not been
corrected by subsequent information and subsequent intervention of other
people. In other words, theories about negligence, adequate causation,
ownership etc. are justified as long they fit one’s general and particular
views about the law, morality and society, together with one’s views about
justifiability, reality and other philosophical topics. This fit is perhaps
not quantifiable58 but human beings have resources, making it possible
to judge on such things.
57
Alexy and Peczenik 1990 cf. also some additions in Peczenik 1989, 158 ff.
58
Arne Schütt (Berlin) made this point in oral communication.
SCIENTIA IURIS – AN UNSOLVED PHILOSOPHICAL PROBLEM 295
Morally-Political Problems 1:
The source of normativity in the law
Reason Information about
of an individual,e.g., society, e.g.
Rationalist Legal Positivism,
Natural law Historical School
Morally-Political Problems 2:
The source of normativity in morality
Epistemological Problems:
The sources of knowledge
Logical Problems:
Valid reasonings
Ontological Problems:
Reality
59
Joseph 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 statement
is a statement of law, of what legal rights or duties people have, not a statement about
their beliefs, attitudes, or actions, about the law. Yet a detached normative statement does
not carry the full normative force of an ordinary normative statement. Its utterance does
not commit the speaker to the normative view it expresses”.
60
Hägerström, Schlick etc.
298 ALEKSANDER PECZENIK
61
The approximation-level may be conceived according to R.M. Hare’s ideas about
the ‘prole’: 1981, 44 ff.
62
This is plausible for the reason of coherence. It seems to be the only way to avoid the
insuperable gap between theoretical reason and practical reason, the first finding causes
and the second beyond causality. For obvious reason, this subject cannot be discussed
here.
63
To avoid excessive descriptions of what only the future intelligences could know, I
do 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 to
meaning-content of physical statements of future science.
SCIENTIA IURIS – AN UNSOLVED PHILOSOPHICAL PROBLEM 299
I have argued that the system of law as presented in legal dogmatics, should
not only be internally coherent, but should also be harmonized with its
background in the form of morality and (political) philosophy. Since this
process of harmonizing is governed by the idea of coherence, it can be
represented as a reflective equilibrium. This observation actualizes the
relation of the theory presented here to other theories of a similar kind, for
instance to Habermas’s theory.
Let me begin with stating the main difference of approach. Legal
dogmatics has mostly been concerned with the problem of legal knowledge.
In other words, a fruitful philosophical extension of legal dogmatics is
epistemological. Yet, today, the emphasis is often elsewhere. The presently
dominating philosophers of law – such Rawls, Dworkin, Habermas, Raz
etc. – focus rather on political legitimacy than on epistemology.
An influential idea in political philosophy is that of deliberative
democracy. If democracy is to work properly, the majority rule and rights
must be completed with a deliberation procedure, allowing for more
detailed and historically changeable justifiable standards.66
64
Cf. Castañeda 1980 passim.
65
Cf., e.g., Prakken and Sartor 1997.
66
Cf. Cohen 1989, 146–147.
300 ALEKSANDER PECZENIK
67
See 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.
68
See Habermas, 1992, 83, 87, 127.
69
Consequently, in Habermas’s catalogue of rights, priority is given to basic political
rights (guaranteeing the democratic process), see id.155, 320, 529.
70
Alexy 1994.
SCIENTIA IURIS – AN UNSOLVED PHILOSOPHICAL PROBLEM 301
71
Gutmann and Thompson 2000, 163. Cf. id. 167: “The principles of deliberative de-
mocracy are distinctive in two significant respects: they are morally provisional (subject
to change through further moral argument); and they are politically provisional (subject
to change through further political argument”.
72
Id. 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 one
that governs the ongoing process by which the conditions and content of justice are
determined in specific cases”.
302 ALEKSANDER PECZENIK
aid of legal dogmatics, the courts can regard the law as ratio scripta, not
as 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 publicae
respondendi ex auctoritate principis. In middle ages, communis opinio
doctorum was an important source of the law. Most institutions of
continental private law have been originally drafted by legal researchers.
What is new is the insight that legal research is necessary in the context
of constitutional constraints on the majority rule. For the majority cannot
constrain itself. It must be balanced by something else. If this ‘something
else’ are the courts, the problem of legitimacy is almost impossible to solve.
Surely, popular majority and its representation have greater legitimacy than
the courts. Only if the courts act on the basis of Reason they can be a
legitimate counterpart of the majority rule. And Reason cannot be exhausted
by particular decision making. It also needs a more abstract deliberation,
given by expert jurists.
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