External Justification

In this regard, Wroblewski deals with different substantive decisional models of the judicial application of law. This kind of model treats the final decision as an application of the rules of the substantive law.

(1) The determination of the validity and acceptability of the relevant rule of substantive law (identification of the institutional support);

(2) The determination of the meaning of a rule in a manner precise enough for its use in deciding the case (statutory interpretation);

(3) The acceptance of the facts of the case as proven and their description in the language of the applied rule of substantive law (proof of evidence);

(4) The subsumption of the facts of the case under the applied rule of substantive law;

(5) The determination of the legal consequences of the proven facts according to the applied rule;

(6) The formulation of the final decision of the judicial application of law (Wroblewski 1992, 31).

It is easy to see that this model includes a lot of other elements apart from the syllogistic premises and the conclusion. The elements (1)-(3) in particular con­cern reasoning outside the syllogistic inference. In this regard, Aleksander Peczenik points out, the hard case situations involve a transformation from the grounds to the interpretation according to certain rules of interpretation and to a given set of values, but the transformation is not a logical inference but a non-deductive “jump” from the arguments to the conclusion, and this “jump”, as Peczenik calls it, is governed by the standards of rational discourse (Peczenik 1989,295; cfr Habermas 1989, 65).

According to Peczenik, there are, taken all together, four types of “jumps”: (1) the jump into the law, and (2) the jump inside the law, which, in turn, may be either (2a) a legal source-establishing jump or (2b) a legal interpretative jump.

The external justification can also be characterised as a form of a contextually suf­ficient one. It is contextually sufficient because it only deals with material that is accepted as legal. The interpreter does ask why this type of sources of law must, should or can be used; or why these rules of interpretation are to be followed. He simply justifies the interpretation in the same way as jurists usually put forward their arguments. The interpreter makes his moves within the given legal framework following the rules of D-rationality.

However, the interpretation also has to fulfil certain criteria of material right­ness - i.e., acceptability in the legal community in question. Interpretations must be based on D-rational discourse but, in addition to that, the result of the discourse must be reasonable. Providing these conditions are satisfied, the result is rationally acceptable in the community. It is both rational and reasonable.

The concept of rational acceptability is an ideal model for legal reasoning. Nevertheless, the reconstruction itself is not an arbitrary one; it is not only a stipula- tive or lexical definition of what the term “rational” means, or what it should mean. The deep justification for D-rationality cannot be based merely on empirical facts either. The idea is not to claim that people are rational in this sense in their everyday lives, or that people will, at some later stage of their development, be rational in their needs and thinking. People simply are, in many respects, human beings that are provided with a lot of irrational features.

We are here faced with the meta-level question of the justification of justification itself. In other words, we have to construct the deep justification of legal reasoning. The deep justification points out that legal reasoning is part of the broader complex of human experience, and that it has the same relevant characteristics as that total­ity has.

One way to justify the legal justification is to reconstruct its social, cultural and philosophical background factors. Here, the basic elements of the argumentation theory find their proper place as well. By means of these elements we can argue why contextually sufficient legal justification is possible, and why it is a necessary condition for a well functioning society too.

The notion of rationality is not, however, a contingent historical or social mat­ter. Instead, the justification of rationality is transcendental as to its character. This transcendentality cannot be justified if the notion of justification is understood in the sense mentioned above. The concept of rationality is a given property of the human culture. Our form of life is simply constructed in a certain way. Let us assume that all interpretations presented by A are totally inconsequent and non-coherent in every respect. What do we think about A? We are inclined to say that either A is crazy, or that he belongs to a culture unknown to us. It is impossible for us to understand that kind of person. A consequent and coherent way of thinking is rooted so deeply in our culture that we use it as a measure when evaluating other peoples' behaviour.

In this sense, freedom, consistency and coherency are necessary elements of rational behaviour. They belong to the basis of human communication that is an essential element in our form of life. Our social lives and our human communicative interaction will only function providing these preconditions are satisfied. Referring to these features, it seems to be correct to say that the reconstruction of rationality makes explicit the role and the significance of freedom, consistency and coherence hidden in the common linguistic usage of the modern minded people - that is, of us.

By means of this ideal, we get measures to weigh the legitimacy of legal inter­pretations as well as possibilities to criticise the results of the interpretative work of DSL. The criteria for this criticism are the following:

(1) Every sound dialogue presupposes the common language of both parts. They have to commit to the same intersubjective meanings. If this is not true, the whole basis for understanding - and also for acceptance and acceptability - will be destroyed. In addition to this very ground for discourse, certain other and more specific preconditions must be listed.

(2) The procedure of justification has to be D-rational in the sense described above. It is only then that the interpreter can avoid arbitrariness.

(3) The justification procedure must follow the established rules of legal interpre­tation. Partially by means of these rules, the interpreter has a chance to pick out the legally possible alternatives from a set of semantically possible ones.

(4) As regards the contents of the decision reached, the doctrine of the sources of law has the key role in the legal justification. Each interpretation must be justified with reference to at least one authoritative source of the law. In the systems of written law - as on the Continent - the most important source of the law is the law (text) itself. Yet, depending on the doctrine of the sources of law, the number and quality of the sources can vary from one culture and from one period of time to another. The interpretation, however, is only legal if it is in accordance with the established catalogue of the sources of law.

(5) In most hard cases the use of the sources of law is not enough to produce rational acceptability in the legal community. In many respects, the interpreter has to refer to certain empirical evidence - e.g., to social facts at a certain moment - and, what is important, to a certain set of values.

The heart of DSL justification lies in a mixture of legal, empirical and moral arguments. This mixture cannot be avoided in hard case situations. The interpreter always has to find a balanced combination of these distinct elements. Especially in this respect, it seems to be well-founded to speak about the reasonableness of the interpretation. The matter is not only so that moral reasons may have the role of a source of the law in general. As we will see later on, this is usually the case only when a certain moral argument is needed to be added to a set of legal arguments. Most often, moral reasons (evaluations) are used as criteria to define the applica­bility of the rules of legal interpretation. For instance, it is sometimes necessary for someone to make a choice as to whether to apply the model of analogy or not, and, if he decides to make use of it, he has to refer to certain evaluations in defining the reasons for similarity between the two or more cases.