Majority Principle

Thus the acceptance of more than one possible and “equally good” answer is theo­retically even necessary. First, the moderate value relativist view, represented in this contribution, departs from the assumption that there are right answers in legal order ex ante.

If A and B form the majority of an ideal audience compared to C, the disagree­ment concerning the solutions is the same as above (Aarnio 1997, 227). Due to the basic assumption, this legal community is rational as to its nature: Every member of an ideal audience

a. commits to the claim to correctness and

b. accepts the standards of D-rationality;

c. accepts the idea of social co-operation and

d. the principle that the social co-operation presupposes predictability.

The list is only a summary in which the first two points include all the precon­ditions of the discourse ethics, whereas the other two concern the social dimension, or the life world in the sense analysed by Charles Taylor. If these commitments are accepted, they are, at the same time, arguments for a further standpoint: Every hard case should have one answer. This does not mean, however, that such an answer is the “only right one”; it is the “best possible one” in the ideal community on the criteria (a)-(d). “The best possible”, in turn, means that the majority of the audience can agree with each other about this answer, and do not do so by lot.

Because the majority principle also has a real side - that is, a commitment to a certain value system - it is elastic and makes the dynamic development of ideas in society possible. The value system can change so that in some situations the dissenting minority opinion will obtain the support of the majority. This is so due to the changes in the value code. The audience, after having reconsidered the matter, is then convinced about the unreasonableness of the former majority opinion.

The majority principle itself is a model - that is, an ideal. In an actual social situation, the majority opinion does not necessarily - maybe ever - come about on mere rational reasons. The argumentation may involve authoritative features and, in that way, even persuasion, although the argumentation is believed to be rational. In an organised society, the strengthening of the rule-of-law is a natural goal. As a model, the majority principle has an important role in this development.

This principle is also in accordance with the interests of each rational human being pursuing his own interest. Robert Alexy formulates a similar idea from his own point of view, reminding us that it is a fundamental question of whether or not we accept our discursive possibilities (Alexy 1989, 121). As Alexy points out, this is a question of whether we want to see ourselves as discursive beings, and that is a decision about who we are (Alexy 2004a, 24, 2009b, 21). As was pointed out before, that is why the theory of rational discourse and the majority principle are useful tools, even if they cannot be attained in actual legal life.

Understood in this way, rational acceptability is a regulative principle for legal interpretation. The goal of every legal scholar and every decision-maker is to reach the maximal rational acceptability for his standpoint in the (legal) commu­nity. In other words, legal interpretation must always fulfil the criterion of rational discourse, and - at the same time - produce reasonable results.

In this sense, rational acceptability has the same general role in legal reasoning as the concept of truth has in the (natural) sciences. It is an ideal for DSL. This ideal cannot actually be reached, but it can be approximated. The more the criteria of rational acceptability are fulfilled, the more satisfactory is the reasoning. In other words, the genuine social relevancy of legal reasoning is dependent on its degree of rational acceptability.

Taking the previous analysis as the point of departure, the following regulative principle (RP) could be suggested as a summary of this contribution (Aarnio 1987, 231).

RP: Try to reach such a solution and such a justification in a hard case situation that the majority of the rationally reasoning members of a legal community may accept your standpoint and your justification.

The regulative principle is a relative to Dworkin's idea of Hercules J. According to Dworkin, the best possible legal theory justifies the claim that every judge can and should try to get as close to Herculean competence as he can. Still, there is a radical difference between this Dworkinian principle and RP. Due to the possi­ble disagreement concerning the values, the regulative principle does not guarantee unanimity in hard cases. On the other hand, the relevance of RP is not based on per­suasive arguments alone, or on mere formal authority, but on the rational strength of the justification, as well as agreement with certain basic values. Every statement must, also in the case of basic values, be reasoned, as far as it is possible.

An interpretation that fulfils both criteria - rationality and maximal agreement with values - also maximally satisfies the expectation of legal certainty in that soci­ety. And furthermore, the standpoint has the maximal legitimacy in that society. Thus RP is not a manifestation of the “Besser-Wisser” ideology, and it does not give any authority to proclaim: I am right. Instead, RP tries:

1. to invite the interpreter (scholar or judge) to follow the standards of rational discourse, and

2.

One may remark here that if all the members of the ideal legal community accept the majority principle, and, being rational, try to follow the regulative principle, what prevents the emergence of a circle? If they all try to find a solution that would be acceptable to the majority, would there be any majority opinion if the opinion of every member is dependent on the opinion of the majority?

This remark does not hit the point of the majority principle. It is per definitionem impossible that the opinion of every member is dependent on the majority opinion. The majority comes into existence in an ideal community due to the disagreement with the basic values. This means that there are two or more independent opinions as regards the value code, because the final choice of the basic values cannot be reasoned rationally. It is not only final, it is also a mere choice.

The acceptability by the majority of an ideal community is the most that the judge or the scholar can try to reach in his reasoning. This kind of ideal acceptability gives a guideline for reasoning, but, at the same time, it is the most objective measure for criticism too. Finally, acceptability as a goal of legal reasoning is “enough” for human beings. Why? Simply, therefore, that by following the regulative principle, people's expectations of legal certainty can be maximised. In this regard, the regu­lative principle is one of the basic guarantees of a Rule-of-Law State (Rechtsstaat), unlike the assumption of “one right answer”, which does not help in this at all. It does not fulfil our societal needs, and does not serve as tools for a lawyer trying to attain the maximal acceptability. What we really need in society is not a mysterious one right answer but a rational justification of decisions, as well as a certain type of regulative principle for legal reasoning.

As a matter of fact, we are searching for the philosophical grounds of DSL in the wrong direction if we attempt to construct it solely on the basis of cognitive theories.

The ideology of legal certainty does not assume the adoption of a cognitive value theory. For the well-functioning management of our common legal matters in soci­ety, it is necessary, and also sufficient, that we reach a representative consensus on the value system that is the basis of the legal order. The representative consensus on the value system here means that people have come to terms concerning the contents of two or more different moral standpoints. In other words, the values are relative to the moral codes at issue but there is common ground on which to reach a compromise between different codes.

This has important consequences as regards the research strategy that is to be followed in DSL. If the strategy is based on the Kelsenian model concerning the formal validity of legal norms, one is close to the idea that DSL merely has the task of describing the proper alternative interpretations. On the other hand, the model of legal realism emphasises the predictive aspect of legal science. In the present study, the third alternative has been emphasised. The concept of legal validity is connected to legal certainty, and, furthermore, to the concept of rational acceptability.

As to the research strategy, this means that the rational justification of inter­pretations has the key role. Justification, furthermore, is necessary for the sound functioning of society. Anyone can make a decision in a hard case situation, if one has certain basic information about the legal order in question. The result, as such, however, is of no importance at all. It may be right or wrong, good or bad, depending upon the criteria of evaluation.

If we try to criticise the decision as far as its legitimacy is concerned, the problem turns out to be of quite another character. In that case, we need reasons. The same holds true in DSL: the interpretation that functions without any reasons whatever is only based on authority. Yet this kind of interpretation does not satisfy the deepest expectations that are present in a democracy. The whole concept of democracy, and sound social life too, presupposes the means to evaluate interpretative standpoints concerning the legal order in a critical sense. Hence the concepts of legal certainty, rational acceptability and justification belong closely together. They also build up a totality in which justification is a necessary tool with which to realise the other elements of the whole totality. This is why one part of the whole cannot be removed without breaking the whole.