Granö-loeng

Aulis Aarnio
Professor, Dr., Dr. hc. mult
Universities of Helsinki and Tampere

 

ON LEGAL REASONING

1. The judge as well as the legal scholar are prisoners of the language. The subject matter they are working with is language, for instance, the text of law, travaux preparatoires (drafts of the law) and precedents. All what they are saying about this subject matter is expressed in (legal) language, and so forth. Both the reasoning and the final result are language and nothing more. The business of the lawyer is linguistic in nature.

2. That is the reason why legal science belongs to the family of human sciences (Geisteswissenschaften) more than to the empirical sciences (Naturwissenschaften).
The task of the scholar is to intrepret the legal texts, to understand them. That is why the ”truth” produced by legal scholar is not of the empirical type. There is no correspondence between the legal propositions formulated by the scholar and the societal ”reality”, because legal norms (rules and/or principles) do not exist in the same manner as, for instance, physical objects. Norms are only valid so that they belong to a system of norms called legal order.

The scholar as well as the judge are able to say something more or less well founded about the legal order, but it is impossible to test the ”truthfulness” their sentences as e.g. empirical sociology can do. The ”truth” of legal science is of coherential not correspondential type, and here we find the special core of all legal reasoning in the post-industrial modern societies.

3. What is, then, the real nature of legal reasoning? In order to answer to that question one has to keep separate several perspectives, at least the following ones:

3.1. Legal reasoning can serve either the finding of the solution (context of discovery) or legitimation of it (context of justification). The modern argumentation theory concernes mainly to elaborate the last mentioned one. It is justificatory as to its nature.

3.2. From the structural point of view, the justificatory legal reasoning is a dialogue. There are two participants in it: The interpreter, e.g. the scholar, and the audience, the person or persons to whom the interpretation is directed.

3.2. The goal of the dialogue is to convince the other part (audience) as far as the the acceptabilty of the solution is concerned.

3.3. The means to convince to the counterpart are pro & contra legal arguments. They have the same role as the pieces of the chess game have.

3.4. How to use the arguments is defined by the norms of legal reasoning. There are two types of them: The norms of the general rational discourse and the standards of legal reasong (analogy, e contrario etc). By the way, the norms of legal reasoning can be compared to the constitutive and regulative norms of the chess.

4. The valid arguments or reasons (materials) are usually called the sources of law. In a very important sense, legal reasoning is just the skill to use the sources of law. Thus, the doctrine of the sources of law belongs to the very core of all practical legal thinking, for instance, of the daily work of a judge.

5. One question is still open: Is it so that in every (hard) legal case there is one right answer? This is the idea represented by Ronald Dworking. His key notion is Hercules J, a judge who knows everything, who in omnipotent, who has unlimited time availabl, and who is capable to change perfectly the role with his/her counterpart. This kind of ideal judge is able, so goes the Dworkinian argument, to find one right answer also in all of the so- called hard cases. If there is a gap in the system of legal rules, the result can be found referring to the general principles. The last
mentioned group of legal norms covers like an umbrella also the gaps of the the given (positive) legal order.

The majority of the European legal theorists, strictly at least in the theory of argumentation, does not acccept the Dworkinian theory. The author of this paper will formulate in the presentation some further arguments in favour of the continental European main stream.