Permitted Sources

This category includes different types of practical arguments as well as legal princi­ples. Historical arguments can either function as part of the consequential reasoning explained below, or as a source of information concerning the background to the statute (legislative history), or the development of the statute itself.

Consequential Inference

The consequential inference is a pattern of legal thought used in both the adjudi­cation and DSL. Actually, it is the model of thought in all such cases where the ordinary sources of law do not give sufficient justificatory support to the decision. A typical subgroup of this model is the teleological reasoning: The decision is jus­tified because it ensures the furthering of the state of affairs, and this state of affairs is the best or, at least, most acceptable goal to be reached. As was referred to before, Robert S. Summers calls this argument form goal reasoning. A special, and also often criticised, consequentalist model was developed by Per OlofEkelof. He called his doctrine teleological legal interpretation. Its core was in finding a well-justified goal (telos) for the statute at issue, and to adjust the interpretation of the statute in accordance with this telos (Ekelof 1958, 84; Peczenik 1989, 409).

The consequential discourse analysed below is closer to Summers' goal reason­ing than to the theory of Ekelof. The key part of consequential deliberation is in the comparison of more than one consequence with each other. The final choice between the consequences is a value-based order of preference as regards the “good­ness” of the consequences.

The consequential deliberation always concerns interpretation in a relatively open situation. For instance, the interpreter has two interpretative alternatives (L1 and L2) for a statute L. The alternatives are the results of the previous use of the sources of law, such as from the statutes, the intention of the legislator, and from precedents. These sources have fixed the framework of legally possible interpreta­tions as far as the statute is concerned. However, the primacy of L1 and L2 can no longer be derived from the DS doctrine. The reason may be that there are two contradictory precedents, and no other even weakly binding source of law. In this situation, one might invoke the consequences of the interpretations - that is, C1 and C2 (Aarnio 1987, 132).

The consequences can be general or individual, and are usually based on social or economical interests. For this reason, the process could also be characterised as the weighing of interests. The consequences can be systemic, in which case they concern contradictions caused by a specific interpretation elsewhere in the same system. The consequential deliberation leads to the evaluation of the legal system in the given area, and thus returns to the so-called systemic reasoning. Sometimes the consequences are extra-systemic, such as of the ethico-moral or sociological type. In such cases, the reasoning may lean on fundamental or human rights or on certain sociological data.

If there are enough justificatory reasons for C1 and C2 to be the consequences of L1 and L2, then C1 and C2 have to be compared with each other and one of them has to be positioned as primary. This is where the weighing of interest appears in practice in, for example, cases concerning the interests of the buyer and seller or the individual and the general government. The comparison cannot be value-neutral, which is why the consequential reasoning is a good example of value-based legal argumentation, as are also analogy and reasoning e contrario.

Let us assume that the consequence C2 gains primacy in comparison to C1. In this case, the reasoning proceeds as “feedback”: Due to the consequence C2, the interpretation L2 should be defended with better reasons than L1. The chain of arguments has thus become to the end, and the reasoning is concluded. However, let us still recall some general views.