Practical Argumentation in the Justification of Judicial Decisions
From IVR encyclopedie
I. The justification of judicial decisions and practical argumentation
Judicial decisions are practical decisions about the question how we ought to act in a particular situation. In modern legal theory and legal philosophy therefore the justification of a judicial decision is considered as a form of practical argumentation that has to be in accordance with the standards of practical rationality (Alexy 1978, Habermas 1983, 1991). This poses the question which forms of practical argumentation can constitute a rational justification of a judicial decision.
II. Various forms of practical argumentation in the justification of judicial decisions
In ethics and in practical philosophy two distinct modes of justification of practical decisions can be distinguished that represent the two aspects of practical rationality. The first mode of justification, thedeontological mode of justification, consists in showing that an action can be considered as right in itself or good in itself without referring to any external value. This mode of justification represents the aspect of value rationality. The second mode of justification, the teleological mode of justification, consists in showing that the action brings about a particular consequence or result that is considered as good from the perspective of a postulated goal or purpose (telos). This mode of justification represents the aspect of purpose rationality'.
From a legal philosophical perspective both forms of argumentation may play a role in the rational justification of a judicial decision. However, there are different views with respect to the question which form of argumentation constitutes a necessary (and sometimes sufficient) justification of a judicial decision. Representatives of a moral-deontological tradition argue that argumentation referring to the principles and values underlying the law, forms the decisive element in the justification. Representatives of a teleological-consequentialist approach argue that argumentation based on reasons referring to the goals and purposes of the law forms the decisive element in the justification.
In modern legal theory we see that there is a growing consensus that both forms of practical argumentation, argumentation referring to principles and values and argumentation referring to goals and purposes, constitute a necessary component of the justification of judicial decisions. Authors such as Aarnio 1987, Alexy 1978, MacCormick 1978 consider the application of legal rules as an interpretative activity which implies that the judge has to account for the various considerations that underlie the interpretation process in which he has weighed and balanced possible alternative interpretations in the light of the goals, purposes and values of the legal community. From this perspective a rational justification of a judicial decision should both consist of teleological-consequentialist argumentation referring to goals and purposes and of argumentation from coherence and consistency referring to the principles and values of the legal community. A complete justification of a judicial decision is considered as a complex argumentation that consists of various possible combinations of the different modes of practical argumentation.
In the following two sections I will first discuss the two forms of practical argumentation, teleological-consequentialist argumentation and moral-deontological argumentation that are traditionally distinguished in ethics and practical philosophy. Then, in the fifth section, I will discuss how the two forms of practical argumentation are combined in complex structures of practical legal argumentation in the context of the justification of the application of legal rules.
III. Teleological-consequentialist argumentation
A teleological justification consists in showing that the action brings about a particular desired consequence or result. The 'ought' of the action is based on the consideration that it is a suitable means for realizing a particular goal that is already given. The grounds that constitute the justification consist of an appeal to the effects that would result from (not) performing the proposed course of action in the light of the postulated goal.
Teleological-consequentialist argumentation consists of reasons in which it is shown that action X is justified because it has effects or consequences Y that are good or desirable in the light of a particular goal or purpose (telos) Z such as general safety, community welfare, facilitation of democracy, public health:
|Decision:||Action X ought to be performed|
|because:||Action X leads to consequence Y|
|and:||Consequence Y is good/desirable in the light of goal Z|
In teleological approaches such as pragmatic instrumentalist, utilitarian and consequentialist theories (which are mainly found in the Anglo-Saxon Common-law tradition) this form of argumentation occupies a central role in the justification of judicial decisions. Representatives of these approaches consider legal rules as an instrument for realizing certain legal, social and economic goals. In their opinion, the value and meaning of a legal rule should be established on the basis of the good the rule aims to promote or the evil it seeks to avert. In doing so a judge should aim at making the will of the legislator fully effective by applying and interpreting a legal rule in such a way that the consequences are conducive to realizing the goals and values that form the postulated purpose, the rationale, of the rule.
IV. Moral-deontological argumentation
A deontological justification of a judicial decision consists in showing that an action can be considered as right in itself or good in itself without referring to any external value. The 'ought' of the action is justified by a norm that is considered intrinsically good on the basis of the moral values of a legal community. The grounds that constitute the justification consist in an appeal to a universal norm (a rule, principle or value) that specifies the rationale for (not) carrying out the proposed course of action and the statement that this norm is defined by and depends upon universal moral values that are considered as intrinsically good. On this view, the rationality of the justification is not based on instrumental considerations which involve consideration of consequences in relation to goals to decide whether it is right or wrong to apply a legal norm in a concrete case. For its justification the law refers to a moral value such as justice, a value that is absolute and cannot be derived from another moral judgment.
Deontological argumentation consists of moral or rightness reasons in which it is shown that action X is justified by appealing to some social, legal or moral standard or norm, a rule, principle or value such as justice, fairness, equality, procedural due process, that is considered as intrinsically good or right:
|Decision:||Action X ought to be performed|
|because:||Action X is in accordance with norm Y|
|and:||Norm Y is morally good|
In deontological approaches, such as Kantian and neo-kantian philosophies of law (which are mainly found in the German continental law tradition) the argument that a rule or principle of the valid legal order can be considered as morally good constitutes a rational ground in a legal justification. On this view, the rationality of the justification is based on the consideration that the law is defined by and depends upon moral values.
V. Combinations of the two modes of practical argumentation in complex structures of argumentation
In modern legal theory and legal philosophy the leading opinion is that in order to justify the application of a legal rule, the judge must show that the application of the proposed interpretation of the law 'makes sense in the world and in the context of the legal system'. He must show that it makes sense in the world by appealing to the effects or consequences of application of the rule in the concrete situation and in hypothetical similar future situations. It must make sense in the context of the legal system by showing that the decision is consistent and coherent with the principles and values underlying the legal system. This implies that in 'hard cases' in which the application of a legal rule in a concrete case is disputed and a judge must justify the interpretation of the legal rule, often both kinds of argumentation, teleological-consequentialist argumentation referring to the consequences in relation to the underlying purposes and goals as well as ethical-deontological argumentation from coherence and consistency referring to underlying principles and values, are necessary for a complete justification and may depend on each other.
In their international research project on the use of the methods of legal interpretation in various countries MacCormick and Summers (1991) address the role of the forms of practical argumentation in the justification of the interpretation of a statutory rule. From this project it emerges that both forms of argumentation play an important role and may be dependent on each other.
Ethical-deontological arguments are used in situations in which the ordinary or technical meaning does not offer a clear or satisfying solution and where the judge looks for a solution that is justifiable from the perspective of the law as a coherent system. By identifying the deeper principles and values embodied in the rules of the legal system the judge tries to maintain the coherence of the system in such a way that it secures a relatively ordered and structured scheme of political, social and human values. The forms of argumentation used in this context are argumentation from analogy, argumentum e contrario, argumentum a fortiori, argumentation based on legal and moral principles and values, arguments from reasonableness and fairness and justice.
Teleological-consequentialist arguments are used in situations in which the judge has to go beyond the ordinary and technical meaning of the statute and has to reconstruct the underlying purpose or rationale that forms an evaluative ground for considering possible interpretations of a statute. The purpose or rationale forms the ground for deciding whether a particular interpretation would be favorable or unfavorable to realize the postulated purpose. The forms of argumentation used in this context are teleological argumentation, policy argumentation, consequentialist argumentation, and reductio ad absurdum.
On the basis of the foregoing it can be said that both forms of argumentation play a role in the justification of a judicial decision. The question which form of argumentation constitutes the ‘decisive’ or ultimate’ argument, implying that it is used to justify the choice between rival interpretations, depends on the context in which the justification takes place. The justification of the interpretation of legal rules may consist in complex structures of argumentation and the way in which the two forms of argumentation are combined and depend on each other is related to the discussion context. Depending on the discussion context, moral-deontological argumentation or teleological-consequentialist argumentation may form the argument that is used to make a decisive choice between the rival interpretations.
An example of a context in which moral-deontological argumentation functions as an ultimate argument is the following. In a discussion about the correct interpretation of a legal rule both sides may differ with respect to whether the consequences of application of the rule in the proposed interpretation are desirable or undesirable. In this context, the statement that the consequences of a particular interpretation are desirable or undesirable implies a value judgment attached to these consequences which must, if challenged, be defended. The defense may consist of reasons specifying the goals, principles and values in the light of which the consequences can be considered as desirable or undesirable. In this way, arguments based on the consistency and coherence with the legal system, that is, with its underlying principles and values, constitute a justification for the evaluation of the consequences as desirable or undesirable. In this context ethical-deontological arguments are the ultimate arguments in the justification of a judicial decision.
An example of a context in which teleological-consequentialist argumentation functions as an ultimate argument is the following. In a discussion about the correct interpretation of a legal rule both sides may propose different interpretations of a legal rule that can both be justified on the basis of coherence with a legal principle. If both interpretations can be justified on the basis of arguments from coherence and consistency, it will be necessary to justify the final choice by referring to the consequences of both interpretations and showing which interpretation has the most desirable consequences in the light of the purpose of the rule. The complex argumentation underlying the justification can be considered as a weighing of two alternative and conflicting interpretations where one interpretation is outweighed from the perspective of the undesirability of its consequences in light of the goal the rule is intended to accomplish. In this context teleological-consequentialist arguments are the decisive arguments for choosing the alternative that does not yield undesirable consequences.
These examples of different discussion contexts show that the fact that one form of argumentation constitutes the so-called ‘decisive’ argument does not imply that it is the only argument that counts or that it is the crucial element in the justification. It shows that both forms of argumentation constitute a necessary element of a rational justification and that they are mutually dependent. That a form of argumentation is decisive only implies that it is the argument that is used in choosing between two or more alternative interpretations that are based on the other form of argumentation.
In a rational justification of a judicial decision two different forms of practical argumentation play an important role: moral-deontological argumentation and teleological-consequentialist argumentation. Representatives of different approaches of legal argumentation agree that both forms of argumentation play a role in the justification of legal decisions and may be dependent on each other.
A. Aarnio (1987). The rational as reasonable. A treatise of legal justification. Dordrecht etc.: Reidel.
An important theoretical study into the rationality of legal justification.
R. Alexy (1989). A theory of legal argumentation. The theory of rational discourse as theory of legal justification. Oxford: Clarendon Press. (Translation of Theorie der juristischen Argumentation. Die theorie des rationalen Diskurses als Theorie der juristischen Begründung. Frankfurt a.M.: Suhrkamp, 1978).
An important theoretical study into the theory of legal argumentation as a specific form of general practical argumentation.
J. Habermas (1990), Moral Consciousness and Communicative action. Cambridge (Mass): The MIT Press. (Translation of Moralbesusstsein und kommunikatives Handeln, 1983)
Classical study of the rationality of moral discourse.
J. Habermas (1996). Between Facts and Norms. Contributions to a Discourse Theory of Law and Democracy. Cambridge, Mass.: The MIT Press. (Translation of: Faktizizät und Geltung. Beiträge zur Diskurstheorie des Rechts und des demokratischen Rechtsstaats. Frankfurt a.M.: Suhrkamp by W. Rehg, 1991).
Most recent work by Habermas on the rationality of moral discourse in law and democracy.
N. MacCormick (1978). Legal reasoning and legal theory. Oxford: Clarendon Press.
An important theoretical study of legal justification and legal reasoning.
N. MacCormick and R.S. Summers (1991). Interpreting statutes. A comparative study. Aldershot etc.: Dartmouth.
An important contribution to the comparative study of traditions of legal interpretation and legal reasoning in different countries.
A. Peczenik (1989). On law and reason. Dordrecht etc.: Kluwer.
An important theoretical study of legal interpretation and legal reasoning.
R.S. Summers (1978). 'Two types of substantive reasons: The core of a theory of Common-Law justification',Cornell Law Review, 63, pp. 707-788.
An introductory article on the forms of legal reasoning in the Common-Law.
J. Wróblewski (1991). The judicial application of law. Edited by Z. Bankowski and N. MacCormick. Dordrecht: Kluwer.
Collection of articles by Wroblewski on the application of legal rules
Analogy, Argumentation in the Law, Argumentation based on legal principles (Kloosterhuis), Coherence and justice, Consequentialist argumentation/reasoning, Hard cases, Moral and political duty (Sampol), Methods of (statutory) interpretation, Law and Defeasibility (Hage), Principles and rules, Teleological arguments in the law, Weighing and balancing in the law,