On the Notion of Rationality
The notion of rational (legal) reasoning is in need of a lot of specifications. Let us start with certain ideas by Max Weber (Weber 1972, 396, 505). For him, the modern state, the capitalist economy and formal law represent the rationalisation of Western society.
Magic and the allure of mysticism have been set aside to make room for science and the scientific world-view. Music, the arts and architecture have also had their share from the development of rationality. The change has also meant that the different areas of culture have separated from each other. A typical example of this is the separation of law from morals.Max Weber made a distinction between two typical cases of rationality: goalrationality and value-rationality. An action is goal-rational if, and only if, it is based on instrumental weighing. If the means are adequate for the set of goals, the action in question is rational. For the actor, objective reality and society are only preconditions or means for action. The key word in goal-rationality is efficiency. The action is solely measured on the efficiency of the means created to further the goals. It is common in these cases that the means begin to define the goals. The goals served by the chosen means are those that are seen as good and worthy of promotion. On the other hand, goal-rational actions are not entirely free, not even in ideal circumstances. The selection of means is restricted by several external factors. Man cannot do everything he might want to. The restrictions can be characteristic of negative liberty - i.e., physical (laws of nature), human (lack of skill), social (political strengths) or legal (valid law).
Value-rational action is based on the actor's conscious belief that the behaviour is valuable, regardless of the consequences. The actor does not weigh his act in relation to the goals but deliberates on its worth in itself.
This requires the existence of a specific system of values. The action is either good or bad in relation to this system, which may be religious by its nature, to mention just one example.The actions may also be irrational. Weber sees that this is the case when actions are based on feelings or attitudes (affective behaviour). For example, a person gets angry at the words of another person he sees as unjust and takes revenge. Action solely based on tradition is also irrational. It is “blind”, not deliberating on the relationship between the means and the end or weighing the value of the action regardless of its consequences.
For Weber, the rationality of modern law is formal. Law is a servant to certain goals worthy of promotion in society. In this sense, law has only instrumental value, being a means to achieve certain ends. Once it has acquired the regulated form, law is, in principle, a complete system of rules, and its meanings are produced with the help of logical reasoning and one in which a specific case can be brought under the law with a simple operation of subsumption. The theoretical tool of this kind of reasoning is, as we saw before, the syllogism. As such, Weber's model has no room for the modern DSL, which requires the selection between several meaning alternatives. Like Hans Kelsen's “pure theory of law”, the Weberian legal thought only produces meaning alternatives, nothing more.
For Weber, the recently strengthened tendency for modern law to seek materially acceptable results instead of or alongside formally correct ones represents a distortion of the rationality of law. The process by which law becomes more material breaks the systematic nature of law and the formal rationality characteristic to it.
Max Weber's conception of law and its rationality is narrow, and corresponds to the (legal) positivist thinking. Weber's model has no room for practical discourse. For this reason, his notion of rationality cannot be applied as the background to a modern theory of argumentation.
Instead of the Weberian model, the theory of communicative actions introduced by Jürgen Habermas forms a firm basis for the further analysis of legal interpretation (Habermas 1981, 11, 571, 1973, 220, 1990, 303). The goal and purpose of a communicative action is to reach a mutual understanding, at least a consensus. For this reason, communicative action is not goal-rational in a Weberian sense. Language and communication are used for no other reason than to convince the parties to a dialogue of the standpoint being disputed. The final result is accepted on the basis of the arguments, and of nothing else.
Genuine mutual understanding can only be reached in a free discourse. That is why the three dimensions of freedom (liberty), and especially the Skinnerian version of it discussed in Chapter 9, are exactly at the core of legal reasoning. Any kind of persuasion, manipulation and conscious deception must be excluded because it is only in the free discourse where the weight of argument finds its place.
Habermas sets still one additional requirement for rational reasoning. He calls it the principle of discourse ethics, according to which, the principle of generalisation, or, in other terms, the principle of universality, has a similar role in the field of law and morals as the principle of induction in the empirical sciences. Only such legal or moral norm, the consequences of which every individual within the norm’s sphere of influence could accept as being in the best interest in the party’s own terms, is valid (Tuori 1989, 125). In short: valid norms concern the common interest. In Habermas’ opinion, the principle of discourse ethics makes it possible to reach unanimity on what is right and wrong in practical discourse concerning norms in the area of law and morality.
As far as I see, a discourse that utilises the rules of discourse ethics, guarantees everyone the possibility of taking part in the rational discourse, and, by means of this discourse, to reach a fair compromise.
In this sense, rational discourse produces the playing field. A fair compromise is at hand when the interests in question are shared to such a degree that even their partial realisation is beneficial for all. In other words, the compromise is worth accepting even if the benefits are scaled down. All this presupposes some further criteria to be fulfilled:(1) Everyone who is capable enough has the right to take part in the speech situation.
(2) Everyone has the right to contest any claim presented in the discourse, as well as the right to present any possible counterclaim.
(3) No one can be prevented from taking part in the discourse through internal or external coercion, or from presenting criticism within it (Alexy 1989, 177).
These are not only arbitrarily set requirements or qualifiers for theoretical and practical discourse. An ideal speech situation cannot be realised at all if any one of these requirements is not heeded. Thus the preconditions (1)—(3) are the necessary criteria for an ideal speech situation. At the same time, these criteria set the foundation for what rational discourse conceptually is.
At the heart of these criteria are two related notions introduced by John Rawls: the idea of equal respect and the idea of fair terms of cooperation. As Martha Nussbaum emphasises, “one might add to these two the closely related notion of human dignity” (Nussbaum 2011, 2). Nussbaum refers to “A Theory of Justice” (1971), where Rawls writes that each person possesses an inviolability founded on justice that even the welfare of society as a whole cannot override. These three notions are, in their turn, connected to a fourth: stability. Rawls thinks that a society cannot remain stable over time if individuals or groups are treated with deficient respect. Although Rawls’ focus is on political theory, respect, fair terms of cooperation, human dignity and stability also show a dimension of the ideal speech situation. The most important here is fair cooperation.
A detailed analysis of the relationship between the ideal speech situation and the Rawlsian idea of the foundation of political liberalism is not included in the present study. I only refer to what Martha Nussbaum has written (Nussbaum 2011, 2). On the other hand, the discursive model still needs some essential additional comments. Being rational, the free parties are - at least tacitly - ready to accept certain basic requirements for rational communication:
(1) In the case of objective reality, the claim must be true (Wahr).
(2) The claim to correctness (Richtigheit) concerns norms and the validity of normative statements. In this regard,
(3) the requirement of sincerity (Wahrhaftig) cannot be tested in the discourse in the same way as truthfulness and rightness. To put it simply, sincerity becomes evident in cases where a person behaves in harmony with the thoughts, emotions and hopes he otherwise expresses.
Robert Alexy speaks about correctness, although he also emphasises that the sentence “X ought to be done” corresponds to the fact that X ought to be done (Alexy 2009a, 275; cfr Alexy 1989, 104, 177 n 3). This definition of “legal truth” does not appear to be convincing, and it will not be discussed in more detail here. Instead, the correctness is understood here as a norm's general validity reached through reasoning.