Hercules J
In the following, an attempt will be made to argue that there no right answers exist in legal reasoning (the ontological thesis). Therefore, such answers cannot, of course, be detected either (the epistemological and methodological thesis).
Here, some short references to Ronald Dworkin's ideas about the one right answer are necessary for the next critical step. I will not deal with the huge amount of literature concerning Dworkin's theory. The purpose is to restrict the analysis to those elements in Dworkin's thinking that are essential as regards the foundation of DSL. What follows is thus a discussion between Dworkin's arguments and those of my own (Dworkin 1977a, 58, b, 40, 90, 1981, 38; Peczenik 1989, 305; Aarnio 1987, 158). From this point of view, the many discussions I was privileged to have with Neil MacCormick were of irreplaceable importance (Aarnio 1981, 40 n 9).As regards the one right answer, the title of Dworkin's work is very illuminating: Taking Rights Seriously (Dworkin 1981,1977a, 38); the title anticipates his criticism in two directions. On one hand, Dworkin casts a penetrating eye on positivism, which, according to him, only accepts as rights of the individual those that the law (the positivist legal system) grants the individual. On the other hand, his criticism is directed at utilitarian, for instance Benthamite, conceptions: Law must attempt to produce the greatest possible good for the greatest number of people (Aarnio 1981a, 39). According to Dworkin, this gives no safeguard against infringing the rights of the minority since it is possible to maximise want-satisfaction over a whole society without showing equal concern and respect for all its members.
Dworkin divides rights into two groups, institutional and primary (background). Both belong to the category of political rights. A legal right, in turn, is an institutional right that entitles the claimant to a favourable decision from the courts.
For instance, the right of ownership is the right to receive protection from the court against certain infringements. From this point of view, rights, to the individual, are counterparts to the activity - i.e., the wielding of power of the courts. However, the rights belong to the individual almost ex ante. Individuals have rights regardless of whether or not the authorities uphold them. In a way, rights “exist” before the decision. According to Dworkin, this is one of the reasons why rights are to be taken seriously.According to Dworkin, a legal problem must be solved primarily on the basis of what the law states on the matter. If the wording of the law is not clear, the decision is to be given in accordance with the principles of the law. On one hand, the decision-maker must take the demand for equal treatment into consideration: similar cases must be dealt with in a similar fashion. However, in individual cases this principle receives its actual meaning from positive law. Apparently one could say that, for Dworkin, the principles of positive law, which give concrete form to the principle of giving everyone equal concern and respect, form the ultimate base for the decision. Actually, it is precisely this point that is interesting in Dworkin's theory.
Dworkin begins with a case that, in accordance with the traditional terminology, he calls a “hard case”. A typical feature of such a case is that no provision supplies a clear answer to it; the ratio of law to be identified, and court decisions, as well as other interpretative materials, point in different directions. They “pull both ways”. In an example case, A, according to the provision, has right X, B having right Y. Both parties have a right in regard to the other (primary right), and both parties have a right in regard to the authorities (secondary right). In such a situation it is necessary that one is able to justify the decision in the best possible way. In this manner, Dworkin's construction of the problem ties in with the idea of “one right solution”.
It is true that Dworkin does not say that there is one and only one correct solution in every case, but he maintains that one correct solution is possible in principle, and that such a solution exists in most cases. There are situations (“tie judgements”) where the right of the plaintiff can be justified just as well as the right of the defendant. In such a situation it is impossible to say what the right solution to the problem is. But there are also cases where one can clearly justify the idea of the correct solution.
For that justification, one needs a theory of law - let us call it the basic theory. Neil MacCormick has emphasised that it is not a descriptive theory about law, but specifically a theory of law (MacCormick 1978b, 591). For Dworkin, such a theory has a decisive role. As a “soundest theory of law” it makes it possible to understand and see the sense in legal provisions and court decisions as a system that, on one hand, protects the rights of individuals and, on the other hand, takes collective interests into consideration. The basic theory also incorporates the principles that give meaning to the abstract principle of equality. It is specifically through this it is possible to say that the basic theory, and exactly that, justifies legal decisions.
The basic theory does not, however, express principles protecting the right of individuals or goals connected to the collective interests (“policies”), The basic theory gives these an order of priority “by assessing weights to them”, as MacCormick formulates his opinion (MacCormick 1978b, 593). In this way, the basic theory justifies a decision in the best possible way. On the other hand, the basic theory is not a matter that can be discovered, for instance, through intuition or something like that. For Dworkin, the basic theory is always a constructed theory - or more correctly, a theory that can be construed. However, it is still “the best possible”.
Dworkin also argues that the principles of the soundest theory of law are themselves a part of the law, why they also carry legal authority.
Things being so, a crucial question comes up: What are the underpinning criteria of their being a part of law? They cannot be of this kind only because they are a part of the soundest theory of law. An answer like this easily leads to a vicious circle.Let us begin with the criticism brought up by Neil MacCormick. The idea behind Dworkin's “best possible” theory is explained through recourse to an idea of a superhuman judge, “Hercules J”, who, with his semi-godlike qualities, is able to create a theory that brings together the different elements of a legal system. McCormick summarises the Dworkinian idea as follows:
No one can be a Hercules, but the very fact that we can intelligibly postulate such a being justifies the claim that every judge can and should try to get as close to Hercules' competence as he can (MacCormick 1978a, 594).
As a matter of fact, compared to a “human” judge, Hercules J really is omniscient, he has an unlimited time at his disposal, his information about the case and about the relevant arguments is unlimited, he is capable of making even the most difficult choices (omnipotent) and is also dispassionate. Further, Hercules J. is perfectly disinterested, and what is important for the impartiality, he is capable, without limitation, of changing roles with others. Hence Hercules J. is an ideal person, a metaphor or illustration exemplifying the ideal speech situation introduced by John Searle. That is why Hercules J is capable of making the “best possible” legal decisions.
That kind of “Super Hercules” would be like a Platonian tyrant who dictates the right solutions to people. Such a tyrant is impossible in the legal world. Hercules J. more resembles Plato's Philosopher, who only guarantees the framework of unanimous decisions or of fair compromises between the members of the legal community at issue.
This is partially due to the fact that Hercules J. cannot be merely a rational automaton, or a machine that only deals with the available arguments according to an expert system, like a computer.
In the case of Hercules J, the reasoning must be based on coherent arguments. The coherence, in its turn, presupposes several criteria, which must be weighed in relation to each other. However, there is no way of balancing the final reasons objectively because the “best” balance must be the “most coherent” one. As Neil MacCormick has noticed, this, in its turn, presupposes a meta level - i.e., a “Super Hercules J.” actor capable of solving the conflicts between those two under ordinates, etc. - ad infinitum (MacCormick 1978a, 593).All things considered, one can raise a question: Is a single right solution in each hard case really possible? I very much doubt it. The target of my criticism turns to the notion of “disinterested”. The qualification is one of those that make the judge out to be a Hercules, something more than a human being. Yet, is this kind of superhuman actor really necessary as regards the theoretical basis of legal reasoning?
To begin with, in Hercules J's case, the interpretation is also a creative procedure constantly producing new paths of reasoning, and if the creative procedure leans on just intuition, no one can evaluate the results, not even another Hercules J. Hercules J. himself is not only a rational but also a creative being in the substantial sense of the term.
Here, my view seems to get some support from the ideas of Robert Alexy. He qualifies human rights as moral rights. The moral character of those rights, however, does not prevent their transformation into positive law. From this point of view, human rights are “legalised” moral rights. The key problem concerns the preconditions and qualifications of rational discourse. As Alexy puts it, the discursive capabilities of the decision-maker must be connected with an interest in making use of them in real life. Alexy calls this interest simply “interest in (or claim to) correctness” (Alexy 1989, 104). This very interest, as with any interest, is connected with decisions, and, as Alexy emphasises, these decisions concern the fundamental question of whether or not we accept our discursive possibilities.
As far as I see, the Dworkinian Hercules J has to accept the interest in correctness. But this does not result in Hercules J being perfectly independent of material interest. He is committed to promoting the “best possible interests”. Let us accept this. Then, what about two Hercules Js, both of them being rational? Are they also capable of objectively solving genuine axiological problems? If they do, they must use intuition for this purpose, which leads to a strange situation: either of the Hercules cannot know the reasons on which the other party's intuition is based. Intuition is per definitionem only based on “internal reasons”, “direct seeing”, or the like. The final choices in this legal reasoning are not only dependent on the rationality of the reasoning procedure but on unreasoned interests too. The final choice of (evaluative) premises results from “inside” the weighing and balancing.
Let us now recall an ordinary decision-making situation once again. Person A's justification for the solution to a legal problem includes a standpoint on an intrinsic value. Person B represents another, incommensurable standpoint. Then, there is no common measure to compare the standpoints, and thus there are no right answers and none of the answers is generally the best possible. All of them are right only regarding given criteria. The situation is comparable with the following example: this piece of art is beautiful due to the criteria x.
Mere rationality does not, as a matter of fact, guarantee the material content of the decision. Rationality is connected to the process of discourse, and concerns the legal framework of decisions. The interpretative discourse has to fulfil the requirements of D-rationality, but, in addition to that, the final result itself has to meet the material preconditions of legal certainty. It has to be in accordance with the law and justice. This ideal model simply produces the “best possible” justification connecting the solution to the legal order in an acceptable way.