Reformulation of the System

Carlos Alchourron and Eugenio Bulygin characterise legal systems as normative systems composed of legal sentences (Alchourron and Bulygin 1971, 21). They use the term “sentence” instead of the notions “norm” and “rule”.

Alchourron and Bulygin sketch a simplified model of a legal system in order to show how the concepts and theories actually operate in legal science. The key notion is reformulation of the system, according to which the system is changed so that the normative consequences of it remain the same as before. The reformulation replaces the original systemic basis by another, deontically equivalent one, nothing more. The reformulated system is simpler, more abstract and more general, which fulfils the demands of the economy of legal thought (Alchourron and Bulygin 1971, 3).

The authors understand “interpretation” as a “determination of the normative consequences” of a set of legal sentences for a certain problem or topic. This means that the task of DSL is to make explicit that which is already hidden in the legal order. This means the same as the construction of a complete system. The construction presupposes the existence of certain elements that are the starting points for the systematisation (Alchourron and Bulygin, 9). These elements are:

1. a problem or a group of problems (a topic) for which the regulation by law is of interest to the lawyer,

2. a set of legal sentences relevant to the topic in question, and

3.

According to Alchourron and Bulygin, the universe of discourse is a set of all states of affairs or situations that define the issues to be decided, for instance, a situation in which a certain person (A) has transferred to another (B) the possession of real estate owned by a third person (C). The universe of cases, in its turn, covers particular cases defined by certain criteria or properties. Depending on whether a given property is present or not, we obtain several combinations of properties.

The universe of actions consists of individual actions being deontically relevant. Signifying the actions with “R”, for example transition of real estate, the obliga­tory character of action R by “0”, prohibition by “Ph” and permission by “P”, the universe of actions can be described with the symbols “OR”, “PhR” and “PR”. In the universe of solutions, a solution correlates to a certain case, giving it a deontic character - e.g., the real estate has to be returned to the proper owner.

The concept of a normative system can now be characterised with these notions. Let P be a set of sentences. Each such ordered pair of sentences (e.g. p and q), of which the latter (q) follows deductively from the former (p) when p is combined with the set of sentences P, constitutes a deductive correlate for P. If in a deductive correlate from P the former element (p) is a case and the latter (q) a solution, the cor­relate is normative. If there is at least one normative correlate among the deductive correlates of P, this set of P sentences has normative consequences.

Following these definitions, a normative system is a set of sentences having at least one normative consequence. Hence a normative system is always deductive, and, when the basic sentences have been chosen, axiomatic too. A solution (Si) may follow deductively from a case (Ci) if, and only if, there is a conditional clause (“If Ci, then Si”) connecting the case to the solution.

Alchourron and Bulygin characterise the constructing (formulation) of the sys­temic basis as a two-phased procedure. First, the set of relevant cases and solutions are defined. Second, solutions are derived deductively for the cases belonging to the universe of cases. Then one has obtained all the (possible) normative consequences of the system.

The systematisation of legal norms is thus equal to the reformulation of the sys­temic basis. The original is replaced with another including concepts (terms) that are of a higher level of abstraction. The clarity and demonstrativeness can thus be improved without altering the substantive contents of the system. The normative consequences of the old and new systems are the same. The systems are identi­cal. Interpreted in this way, the formulation of a system and its reformulation are thoroughly rational activities. The only accepted rules of inference are the rules of logic. The systematising activity in DSL only provides the legal community with a new mode of presentation of the system. The (genuine) modification of the system does not belong to DSL. The formulation of a new systemic basis is the task of the legislator and, in everyday practice, of the judge.

Alchourron and Bulygin introduce an extreme positivist conception of legal sys­tematisation, and, what is more important, of the task of DSL. All sound normative consequences are derived from the premises solely by means of deduction. The authors admit, however, that the systematisation is not a mere mechanical activ­ity. They think that the discovery of the general principles requires “a considerable degree of creative activity”, as does the discovery of the logical or mathematical con­clusion from a given set of sentences as premises. This kind of activity presupposes creative imagination.

Every legislative reform is based on legal traditions independent of individuals, including the lawgiver. Traditions are like language, which is presupposed, not an “accepted” totality. One part of the traditions is theories in law, the accepted value codes and ideological assumptions, and the basic legal structures. In this sense, the legislation does not start from nothing, and the social institution forming the focus of the legislation never changes completely. It is only transformed and reproduced. The new legislation either changes, supplements or clarifies the old, nothing more. Hence, behind a legislative act there is a many-shaded group of various elements:

1. Previous pre-systematised legislation as the framework for new legislation. Here, DSL has a special role. The drafters of the legislative reforms normally receive their basic concepts from DSL.

2. Information regarding the existence and/or the details of certain societal phe­nomena, such as the expectations of the consequences of legal reforms, as causal estimates of changes in criminality in relation to certain punishment scales.

3. A theory-like set of propositions like the economic theories (Smith, Keynes, etc.) “behind” the theories of commercial law.

4. Normative and axiological assumptions or ideologies of how things should be in society. It is specifically through such factors that the “quality” of statutes is outlined. A social fact only becomes a defect in society when placed in connec­tion with these factors. Something is wrong in society only in accordance with a certain evaluation. Basic ideologies function, often implicitly, as measures of this kind. Legislation, in its turn, is a way to amend faults, or at least lessen, their significance.

This totality can be called the pre-theory of law (Aarnio 1987, 240). The fac­tors involved in such a pre-theory are not in spurious relation to each other. Instead, they form a preliminary systematised whole that includes a lot of theoretical ele­ments. On the other hand, the pre-systematised totalities are not theories sensu stricto comparable to the scientific ones, although they are “theoretical” enough from the legislative point of view.

In the statutory law system, the results of wielding legislative power are statu­tory texts formulating valid norms. These norms, together with the pre-theoretical system, form the basic system denoted here with SB. This is the system to be formu­lated (constructed) for legal pragmatic purposes using the conceptual tools defined by Alchourron and Bulygin. SB includes the set of formally valid legal norms. From the legislative point of view, SB can also be called an “intended system” because it manifests the pre-theoretical view adopted in law. The task of adjudication is to adapt the intended system to the social situations at issue. DSL, in its turn, not the judiciary, is to formulate the basic system as well as possible. The particular problem is the very concept of identity between the basic system and that which formulates it, say SD (doctrinal systematisation).

One characteristic of the normative system introduced by Alchourron and Bulygin is that it contains all the logical consequences that can be derived from the system. One can, however, hesitate if normative systems as human products actually are capable of containing all their logical consequences. Here, a set of legal norms can be compared to a set of beliefs. It seems to be impossible that people really believe in all that is entailed by their beliefs. The same holds true as far as law is concerned. For instance, the legislators do not prescribe all that is entailed by their directives.

The legal dynamics does not presuppose an idea that the basic system SB must be regarded as a set of norms containing all its logical consequences.

As regards the standard opinion in the philosophy of science, an observational statement is (to a certain extent) theory-laden. In science, a “pure” observation (a brute fact) is impossible. As was mentioned above, theories are like lenses framing all our information about reality. The concept of theory-loadenness concerns DSL as well. Legal order is expressed in ordinary language with all its problems, as is the case of concepts used in DSL. It does not formulate its propositions in the form of logic (if p, so q). The legal dogma concept used to formulate (or reformulate) the legal system qualifies certain social states of affairs as legal ones and defines the limits of legal interpretation.

Yet, at the same time, the theory-loadenness means that every dogmatic system organises legal norms of SB in relation to each other by means of linguistic, not logical, tools. The system must, of course, also fulfil the logical preconditions, but it is, in the last instance, a material (substantial) system. It is impossible to identify the normative content of the basic system without a certain legally relevant conceptual basis.

Further, the “systemic place” of a norm in relation to another norm affects the understanding of the first one. This understanding is not merely a question of formal connections between norms but of the substantive content of the norm. Let us take a closer look at this problem.

The pre-theoretical systematisation (SB) and the doctrinal systematisation (SD) give the systemic framework for lawyers to understand the norms belonging to the legal order. Seen from this point of view, SD is the “scientific” formulation of SB. The notions included in the system SD formulate all the intended consequences of the legal order. The dogmatic systematisation is the theoretical basis making, first, the interpretation possible, and second, giving the substance to law. The interpre­tation of norms belonging to SB has, in turn, a feedback effect. If the system SD does not give satisfactory answers to a question raised in practice, there is a “prac­tical necessity” to change the theoretical background and reformulate the system, which means the change from SD to a system SR. This has a reflection on the interpretations, and so on (Aarnio 1997, 242).

The praxis is thus the “test” of the formulation of SD. The conceptual network has to be socially useful - i.e., its capacity to solve legal problems must be rich enough for the present social needs. If SD is not satisfactory in this regard, it must be replaced by another one, SR. However, the solutions given in SR differ from those given in SD. The system reformulation (SD->SR) is thus not a perfectly deductive operation in the way Alchourron and Bulygin have maintained. The DSL system does not only raise the level of abstraction, or something similar. The notions of the system, as those of SD and SR, are theory-laden, and the formulation necessarily changes the view of legal norms.

The benefit of such a reformulation is, for example, that it makes the system simpler. There are fewer basic terms; their scope is larger; etc. Thus the system is not only more abstract but also more general. The new set of notions opens a way to pose new questions, and these, in turn, make it possible to give new kinds of answers - that is, interpretations to legal norms. Let us look at the problem by means of an example.

There are two DSL systems (reformulations of SD), SR1 and SR2, and no iden­tity between SR1 and SR2 prevails. This is due to the fact that they use different conceptual apparatus. One cannot pose in SR1 problems known under the system SR2 as the new reformulation of SD. The answers cannot then be identical either. The system SR2 thematises the norms belonging to the basic system in such a way that new concepts are introduced and conditions are thus created for the formulation of new sorts of questions. In this way, little by little, SR2 transforms the previous system SD into a form that would not be possible on the basis of SR1.

In actual practice, the systematisations are “intertwined” with each other in such a way that it may be difficult to clearly distinguish which systematisation is prevalent in any particular context. The changes take place stepwise, and, depending on the number of common terms and their relevance, different systematisations may even “coexist” over lengthy periods since they supply “equally viable” answers to some problems.

Summing up, if this is true, as I believe, Alchourron and Bulygin are not right as far the DSL systematisation is concerned. The basic system SB and the formulation of it, SD, are not identical as far as the normative content is concerned. They are two contextually different ways of understanding the legal order. The same holds true with regard to the reformulation, say SR2. The reformulated system, of neces­sity, also receives different content to that of the basic system (SB). This is so because every operation to define the solutions given in a certain system presup­poses a conceptual network. The solutions are defined “through” legal concepts; a mere deductive inference is impossible. One has to know the content of the legal system, and that knowledge is only possible by means of notions proper for the legal purposes.

As to the relationship between systematisation and interpretation, the most important point is that the basic function of interpretation - i.e., the identification of the normative and factual dimensions of the juridical problem - naturally takes place within the cognitive context provided by the currently adopted systematisa­tion. Systematisation alone is not sufficient for the purpose of finding out which particular norm a typical case at hand falls under, but systematisation does provide the indispensable theoretical context for this juridical problem solving.

On the other hand, interpretation itself is the “knowledge manufacturing” pro­cess in legal dogmatic research, which proceeds by way of employing theories in law. Answers to questions such as the question of why, in given circumstances, replacement systematisations of a particular type were adopted to the exclusion of other given alternatives can only be obtained if the larger epistemic context of the emergence of different juridical theories is investigated.

As the theoretical part of DSL, the legal system is a product of a cognitive activity organising the elements of legal order into a certain relationship with each other, whereas the interpretation is the practical function of legal research. Carlos Alchorron maintained that in the end, the dynamics of the legal order are produced by the practical lawyers (Alchourron 1986,83). This is not the whole truth, although, besides the legislator, the judge - and especially the judges of the Supreme Court - is an important “creator” of the legal order.

As is the case in science in general, the practical and the theoretical elements of DSL are intertwined with each other. The systematisation of (legal) norms cannot be carried out regardless of the (detailed) substantive knowledge of the norms, and vice versa. In regard to the change and dynamics of legal knowledge in general, the legal system gives a framework for legal interpretation, and, on the other hand, every interpretation must be realised within a certain systemic frame. The product of this joint activity (systematisation vs. interpretation) is the legal system, which gives the necessary conceptual framework for every interpretative approach. In this way, DSL take part in the societal dynamics as do the judges and the legislator.

In the next chapter the final conclusions will be drawn with regard to the role of systematisation and that of the theories in law. They have a key role as far as the changes in DSL are concerned, and these changes based on system reformulation articulate, in their turn, the status of DSL in the societal dynamics (Alchourron 1986, 85).