Chapter 4 Lawyer's Dilemma
Robert Alexy emphasises that the single most essential feature of law is its dual nature (Alexy 2008, 288). The law belongs to the realm of facts as well as that of ideals. The core of its real nature is coercion or force.
The judge has both the power and obligation to decide the case. However, the power machinery has to follow the principles of legal certainty and efficiency, because they are the central elements in people's well justified expectation of legal certainty (Alexy 2008, 291). As Robert Alexy puts it, the essential element of law's ideal dimension is the claim to correctness, which, in my terms, refers to legal certainty and efficiency.The claim to correctness is not reduced to just that. It reveals another essential feature of law - that is, the non-positivist thesis: there is not only a contingent but a necessary connection between law and morals. Legal validity or legal correctness on the one hand, and moral merits and demerits or moral correctness and incorrectness on the other, are necessarily intertwined with each other (Alexy 2001, 374). As we will see later on, this connection can be summarised by Gustaf Radbruch’s famous formula: extreme justice is not law (Radbruch, 7; Alexy 2001, 374, 2002b, 3, 2004a, 22, 175, 2011, 18).
As far as the nature of law is concerned, a third dimension, metaphysics, has still to be added. Notwithstanding the lost reputation of metaphysics among the (extreme) positivists, it has an essential role in the characterisation of law. Robert Alexy summarises that role as follows: “It is impossible to justify human rights without using concepts like that of autonomy and that of person” (Alexy 2004a, 24). Without an autonomous person, there is no law, and no morals either. These two entities do not belong to the physical world as “brute facts”. The notion of “dignity” was used by Immanuel Kant in a close connection with the problem of human being (Garzon Valdes 2006, 231; Hoerster, 1983, 1).
Even though the metaphysical point of view is essential for understanding law, it is not dealt with in more detail in this study. In what follows, the primary focus will only be on the ideal dimension, in which the nature of the (legal) truth as well as the relationship between law and morality take centre stage.
According to the traditional definition, DSL produces knowledge of legal norms and systematises them. In the social division of labour between different sciences, the task has mainly belonged to DSL in the systems of codified law. This is not a coincidence. The task follows from the societal interest of knowledge (Habermas 1989, passim.; Pietarinen 2002, 63). In every society there is a need to know the content of the legal order. This kind of knowledge is required of judges, civil servants and attorneys, as well as laymen. Were DSL to no longer satisfy this interest, some other institution or actor would in all likelihood quickly appear to claim the task. This interest of knowledge does not disappear from society by, for instance, redefining the task of DSL, even though such attempts have been made. An example of this is legal realism, dealt in more detail below. The American as well as the Scandinavian version of realism did accept the interest of legal knowledge but both held that “genuine” knowledge could not be reached by the “unscientific” methods of DSL.
On this basis, the functions of a theoretical study include the analysis of what is required on justification from DSL for it to fulfil the criteria of controllability (Aarnio 1987, 24). Taking this problem seriously, a set of other questions wait for an answer. Exactly those answers reveal, at least roughly, the internal structure as well as the goals of this study. The list is as follows:
(1a) Can the property of true/false be attributed to an interpretation in DSL? If this is possible, what are the criteria of truth/falsehood?
(2a) If it is problematic or (even) impossible to use the notion of truth, is there some analogous notion to truth in DSL?
(3a) Is it possible (in hard cases) to know something about the content of the legal order?
(4a) If it is problematic or (even) impossible to speak of knowledge in connection with DSL, is it possible to use an analogous concept?
(1b) What methods does legal dogmatics use in establishing truth/falsehood?
(2b) What methods are available in establishing such a “truth”?
(3b) What method is to be used in obtaining knowledge?
(4b) Is there some method for finding such “analogous” knowledge?
All these questions leave a great deal unsaid.
The main problem concerns the notion of truth. As we will see later on, legal norms do not exist in any sense of the Tarskian concept of truth. The correspondence required by Tarski is of no use as regards legal norms. A statement presented by DSL cannot be compared with reality in any manner familiar from the empirical sciences (cfr. Sintonen 1981, 77). Thus, the truth produced by DSL is “softer” by nature. It could rather be called (well- reasoned) certainty. DSL presents norm recommendations, the strength of which depends on the credibility of the recommendations. The certainty, in its turn, is closely connected with coherence. From this, it follows that the central methodology of DSL is not inductive or deductive but rational discursive. The method is legal argumentation, which produces a coherent network of reasons to support recommendations.On this basis, the cornerstones of the theory of DSL can be found in three pairs of notions. They also describe the carrying themes of this study:
a. The existence vs. validity of norms (ontological question);
b. The knowledge vs. other type of certainty (epistemological question), which is closely connected with the notion of truth;
c. The deductive or inductive vs. discursive method (methodological question).
All these themes are connected with the well-known problem of one right answer, which has played an important role in the history of legal thought. The present study is, to a large extent, a criticism of such doctrines.
Still a couple of comments are important. First, the rational discourse is only possible within a certain framework, which can be called the preconditions of communicative rationality. The most central of those preconditions is freedom (liberty). This not only concerns positive and negative freedom but also the so-called third form of liberty introduced by Quentin Skinner. This notion reminds us of those criteria used in J.R. Searle's theory of speech acts as well as the Habermasian principles of discourse ethics.
One cannot avoid dealing with these problems if the focus is on the rationality of legal reasoning.Second, legal scholars, as well as the judge, are necessarily “prisoners of the language”. This is so because their task is to work (mainly) with linguistic expressions. The subject matter of reasoning, as well as the arguments, are language, such as the norm formulations given by the legislator, sentences formulated by the Supreme Court or the scholar's recommendations. The interpretations based on this material are, in their turn, articulated in language. Thus the scholar and the judge have to work within a “circle of language”.
This is the reason why the theoretical tool used to analyse DSL in this study is the Wittgensteinian philosophy of language. From the Wittgensteinian perspective, the doctrinal interpretation - more correctly, the justification of interpretative statements - can be understood as a particular language-game. The interpretation standpoint finds its proper place, or, using Wittgenstein's words, “its home”, as part of a language-game, and inversely, if the standpoint is detached from this game, the proposition will lose its meaningfulness.
Wittgenstein levels extremely sharp criticism at attempts to create a so-called improved language - that is, a language where the defects of natural language have been remedied and which, for instance, is representable in a formally exhaustive manner. Wittgenstein thinks that the language of everyday practice is complete in itself. The task for us is only to find out how this language functions.
An old phrase says: Legal thought is not mathematics. That is the reason why the language-games of DSL must be taken as complete. They have to be analysed in their natural contexts - that is, in the context of the living language. This does not mean that it is not possible to reconstruct interpretation games that elucidate the structure and function of the natural DSL games. The reason for that is a simple one.
Language is such a complicated whole that we cannot get hold of it if we try to find the common features of all language-games in a single analysis. As Wittgenstein says: Language is veiled by a fog that prevents us from seeing the details.To unveil the way everyday DSL language functions, we must restrict our study to dealing with language forms that are a great deal simpler than normal language. The most fruitful way of doing this is to construct language models that are deliberately simplified. These language-games are like examples that, by virtue of their own representativeness, show us the things that are characteristic of DSL language. That is our task later in this contribution.
As we will see later on, DSL argumentation can be characterised as the combined interplay of pro- and contra-arguments. To phrase this in hermeneutic terms: Interpretation involves the problem of the relationships that prevail between sentences, a problem that is capable of being treated with help from the basic notions of whole, part and hermeneutic circle. This is not to say that “The law is as it is read”. This sort of scholarly arbitrariness does not correspond with the actual state of affairs. DSL is not a chaos of individual opinions. In order to avoid the chaos we have to accept something as certain in order to know something else must already be certain. For this reason, Wittgenstein’s view of knowledge and certainty will be taken up.