On the Ideological Element of the Rossian Theory
The focus of the doctrinal study of law is always on the judge's commitment to follow a certain norm. This is a different matter to “the activity of the courts” since, according to Ross, the court is an institution and it is inaccurate to say that the institution “commits to a shared ideology”.
In the Rossian theory, the judge, and only the judge, is the key actor, and what the scholar is doing is to predict the judge's further commitments.Ross does not make a rigid difference between the predictions of the doctrinal study of law and legal-political estimations (sententia ferenda). This is due to the fact that future social events are never strictly determined. Each prediction might also affect the future, shaping it. To a certain degree, the prediction might thus also be self-fulfilling.
Notwithstanding the above difficulties, an assertion A presented in the doctrinal of law is as follows:
A: The norm N (for example, §28 of the law on bills of exchange) is currently valid law.
Independent of the linguistic formulation of A, its meaning content can be reformulated in the form of a prediction:
A1: If proceedings are instituted in a court so that the facts and circumstances fulfil the essential requirements of 28§ of the law on bills of exchange, it follows that the norm expressed by 28§ of the law on bills of exchange will form the decisive foundation of the court’s decision in the case (integrerende bestanddel af dombegrundelsen), and all this on the precondition that there are no factors between the prediction and the decision that change the foundations of the prediction A (Ross 1958, 55).
The prediction A1 can be taken as accurate (anses for sand) if, and only if, there are good reasons to estimate that the prediction will be realised in the activity of the judge. Still, it must be emphasised that the “truth value” of sentence A1 does not depend on whether the evidence of the fact can be estimated well enough in a certain case.
The predictive nature of sentence A1 does not depend on procedural evidence but on the prognosis of whether a certain norm will be included in the judge's reasoning or not - that is, whether a norm will be applied in the given circumstances.The prediction always concerns the normative ideology internalised by the judge. The norm is valid in a certain legal order if, and only if, it is a part of that judicial ideology. Further, the assertion A1 about the validity of a norm is true if, and only if, the norm is part of a binding judicial ideology.
In one sense, Ross' thoughts prove to be quite problematic. First, he thinks that the probability by which the assertion A1 proves to be accurate also defines the validity of norm N. From this, necessarily it follows that norm N can never be either valid or invalid. It is only valid with a certain probability that changes on a scale of (nearly) 1-0. Ross himself points out that the validity depends on the varying degree of probability concerning the predictions of the future behaviour of the judges (Ross 1958, 47).
For its part, the degree of probability depends on the experience material (erfaringsmateriale; in Danish) on which the prediction is based. Ross calls this material legal-source-material (retsskilderne; in Danish). Therefore, a prediction deals with the probability of a certain norm belonging to the judicial ideology shaped by the sources of law. As this is the case, there appear to be problems in two different dimensions. First, it seems to be impossible to apply a probabilistic model to the treatment of this kind of material. Legal-source-material (or judicial ideology) does not normally give one the chance to estimate probability quantitatively (for example, as a numerical prediction: a probability of 75%). There are no quantitative measures for the predictor to use. Thus the prediction must be based on a qualitative analysis.
Therefore, it seems to me that the “probability” is more about a kind of “credibility” or “arguability” - that is, about how well founded justification of the future activity of courts one is able to form.
“Arguability” is something other than a mathematical-theoretical “probability” based on statistics, other quantitative data or on the use of empirical observations. This is connected to the fact that “predictions” of the doctrinal study of law - unlike the predictions of science, for example - are based on data, the ontological status of which is problematic. This can be seen as one ponders the way a norm, a court decision or a custom “exists”. These data are ontologically difficult in the same way as the “existence” of language. They are partly dependent on the subject and on his or her interests.It is obvious that the perceptions concerning the scientific predictions (meter readings, pictures on an electron microscope, etc.) also need interpretation, but the difference to the “perceptions” that support legal predictions is clear. As the interpreter of his “perceptions”, one engaged in the doctrinal study of law also belongs to the community that has produced the interpreted data in the first instance. This person evaluates the data from an internal viewpoint, and is not an objective observer in the same sense as a physicist observing the readings on a meter or other technical equipment. A lawyer has already learned the language where and in relation to which the interpretation is produced.
This can be called the epistemic internal viewpoint. In a sense, it is key to both the criticism of Ross and the theory of argumentation represented in this contribution. The “epistemic internal” viewpoint combines the intellectual approaches of the scholar and the judge toward law - for example, toward sources of law and their way of use. The scholar not only understands but also accepts the same source material as is used by the judge. The difference between these two lies in the fact that the scholar does not commit to the judicial ideology in exactly the same way as the judge. For the judge, the source material is the motivational basis on which to solve the case.
The scholar does not solve anything, but he does recommend certain solutions to certain typical cases, and this presupposes a commitment to the judicial ideology at his disposal.Without an adequately shared (common) epistemic viewpoint, the scholar and the judge will not reach an agreement on the content of law, and in extreme situations might not even understand the language the other uses. This adequate and shared (common) viewpoint also separates the legal scholar and the judge from an epistemic external viewpoint represented by, for instance, a sociologist following an empirical method. For his investigation, the sociologist needs certain internal information in order to understand the judicial game. Depending on the purpose of his research, he may also accept certain legal material as his basis as well as a set of rules and principles guiding legal reasoning. However, the empirical sociologist never commits himself to the judicial ideology. His method is descriptive and explanatory, not interpretative - as is the method of a legal scholar.
On the other hand, the scholars, the legal scholar as well as the sociologist, and the judge have an organisationally different position in relation to law. Only the judge is “inside” the organisation of jurisdiction. He uses the power, which is why his position can be called organisationally internal in order to make a distinction from the organisationally external viewpoint of the scholars.