Acceptance and Acceptability
The only right answer presupposes criteria covering both of the competing standpoints. In regard to those criteria, a choice can easily be made. However, it is still possible to ask, as Neil MacCormick did, whether the meta-criteria are the only right ones, and so on.
Therefore, it seems to be useful to draw a distinction between the acceptance of and the acceptability of the final result.A certain solution may have extensive support in legal community for a variety of reasons, and may thus be widely accepted and effective. Efficacy is, however, not necessarily the same as producing the “right” solution, nor is an “effective” interpretation necessarily acceptable in the ideal legal community consisting of individuals who share the standards of rational reasoning. The theory of rational discourse is a model for, and not a description of, the actual reasoning (Soeteman 1989).
In this regard, the purpose of the model is to formulate the criteria of the “best possible justification” instead of one right answer. “The best possible justification” is, in its turn, an ideal justification - that is, a standard that can be used as a guideline in practical DSL. As we have seen, the function of the DSL is, besides the recommendations as regards certain statutory interpretations, also to criticise the prevailing ways of thinking, whether they were produced by the DSL itself or, for instance, by the courts.
In Perelmanian terms, the theoretical model presupposes an ideal audience, where the acceptance is given by idealised persons who not only share the standards of rationality but who also have (to some extent) a coherent value code. Actually, there are three different dimensions or perspectives to the same problem: Hercules J, the ideal audience and, seen from a justificatory point of view, the reasoning with all things considered. All three dimensions characterise the idea of why and how it is possible to receive a convincing conclusion in legal disputes.
Let us, however, continue with the notion of ideal audience. It is not a universal one. Those who accept the criteria of rational discourse may also disagree with the basic interests, especially with intrinsic values. That is the main difference between my view and that of Dworkin and Perelman. It is possible that there is more than one ideal audience as it is possible to identify two or more Hercules judges.
The principles of moderate conventionalist value relativism mean that even people considering matters rationally may (in principle) have differing conceptions of the basic values. The ideal legal community measuring the acceptability is thus not necessarily internally homogeneous. It may include groups with different opinions on good and bad, right and wrong. Thus the members of a certain ideal audience may have different interests, which is why they may prima facie disagree with the interpretation. However, by committing to the claim to correctness and sharing a value system that consists of family-resemblant value standards, they are necessarily willing to co-operate. If they do not do that, they are either not bound to the claim to correctness or their value system does not make a compromise possible, but if both preconditions are fulfilled, they are able to transcend their different interests and agree with each other (Aarnio 1989c, 416). Things being so, there may still be another ideal audience (A2), the members of which accept the standards of rationality and agree with a certain value-code that differs from the one accepted by the other audience.
In the actually existing legal communities, neither the claim to correctness nor the family resemblance of value systems comes true. We are and always will be human beings. Even the best of our aspirations to be rational remain half-finished. As far as the theory of acceptability is concerned, the legal community at issue is indeed an ideal one and only that. The yardstick of acceptability is rational discourse, which is the theoretical reason why the Habernasian principles of discourse ethics, Alexy's ideal dimension of law and Searle's ideal speech situation are necessary tools to understand the foundations of law and legal reasoning. They are ideals, but they are not theoretically empty.
They give standards for optimal human discourse, and, as such, are yardsticks for actual discourse too. In this very sense, the theoretical preconditions of rational discourse are like the model of meter in Paris, which Wittgenstein used as a reference to certainty.Still, in cases where the disagreement is tolerated, a problem arises: In what kind of an ideal community can acceptability be pursued in the first place? Here, the so- called majority principle finds its place (Aarnio, 1989c, 421). This principle means that if the majority of an ideal audience is ready to accept, let us say, the solution S1 from two possibles, this solution is the “best possible” one for the moment. This does not mean that the members of an ideal audience “vote” for S1 or against S2. The majority simply gives the largest possible acceptance for solution S1. From the societal point of view, the other solution, S2, is like a minority proposal, “weaker” than S1.
Yet, it can be asked whether the majority principle, even when thus restricted, is not too severe with the minority opinion (Aarnio 1997, 225). As far as I can see, this is not the case. This majority has nothing to do with the majority principle of a political democracy, as can be seen in the following:
1. First, the model only deals with legal reasoning in an ideal speech situation. The protection of the minority would have significance in a factual legal community - that is, in an audience where all kinds of power constellations play some role, whereas in an ideal community the use of power is not a problem. This follows from the very concept of the ideal speech situation. The participants are supposed to be free.
2. As regards the basic rules and principles of the rational discourse, all relevant reasons are taken into account. Thus the minority opinion is also part of the reasoning.
3. Because all members of an ideal audience commit to the standards of D-rationality, they all must necessarily accept the majority principle as well.
This acceptance is based on the very concept of rationality. A rational person may ask: Which would be the competitive principle if the majority principle were not accepted? It seems to me that a decision would be reached by lot.4. The last-mentioned issue is connected to another one: Why not be satisfied with two (or more) equally well-founded and thus rationally acceptable solutions, e.g. with S1 and S2? Why is it necessary to commit to the majority principle at all?
In his regard, a few additional arguments have to be taken into account. The social co-operation presupposes that people can agree with certain solutions. This can be illustrated as follows. If the legal community consists of only two members, A and B, who both have abilities of Hercules J., and a permanent disagreement between the viewpoints prevails, this disagreement causes uncertainty about what is right and what is wrong. There are also two equal candidates for the “right” solution, S1 and S2. In this case, the authorities need a final solution for the execution.
However, this final solution does not decide the tension between A an B. No one can say whether the final solution is right or not. It is only one of the well-founded alternatives. Because there is no majority in the community, the problem of the majority principle cannot be raised either. The choice between S1 and S2 can only be made by lot, or by a fair compromise (consensus) made by A and B as regards the final solution (e.g. on S1). As we have seen, the fair compromise does not result from a mere rational discourse. That discourse only makes the compromise possible. The other criteria are based on value systems and their family resemblance.