Argumentation from Reasonableness in the Justification of Judicial Decisions

Abstract

In legal decision-making reasonableness plays an important role. In the literature, generally speaking, there is a consensus that reasonableness as a norm for judges in the application of law implies that they take into account a combination of different considerations of a normative and factual nature with the aim of reconciling the requirements of abstract formal justice and justice and fairness in the concrete case. Although reasonableness is considered to be an important reason for making an exception to a legal rule, in the legal literature little attention has been paid to the kind of arguments that can constitute a sound justification of such a decision.

The central question I answer in this contribution is what an adequate justification based on argumentation from reasonableness with the function of correcting a legal rule for the concrete case exactly amounts to. My aim is to develop an argumentation model for the rational reconstruction that enables the analyst to make explicit the different considerations underlying a decision that is based on reasonableness so that they can be submitted to rational critique. To do justice to the context-dependency of the concept of reasonableness in the context of legal justification, I will concentrate on the role of reasonableness in a specific domain, civil law in the Netherlands. In civil law in the Netherlands reasonableness plays a central role as a mechanism for the correction of outcomes that would be unacceptable from the perspective of justice in a concrete case.

In this contribution I proceed as follows. First, in (2), I discuss the role of arguments from reasonableness in legal justification: I go into the nature of the argument and I will discuss the content and structure of the complex argumentation underlying a justification based on the correction of a legal rule referring to reasonableness. Then, in (3), I develop an argumentation model for the rational reconstruction of legal arguments from reasonableness. I explain the conditions under which arguments from reasonableness can be correctly used in legal justification. In (4) I concentrate on the role of reasonableness in Dutch Civil Law where it is recognized explicitly as a reason for making an exception. To demonstrate how the argumentation model can be used in the rational reconstruction, in (5) I apply it to an example from Dutch civil law in which this form of argumentation is used. On the basis of an exemplary analysis I explain how the model can be used to establish in what respects argumentation from reasonableness used in this case can be considered as an acceptable contribution to a rational legal discussion.

Appendices

A. The Case of the ‘Unworthy Spouse’

DECISION OF THE COURT OF APPEALS NJ 1989/369, 24-11-1989

• (…)

• 5.13 Since the district court has assumed that Mrs. van Wylick intended with the marriage - that also according to L was a marriage of convenience- a financial benefit for L, the district court has rightly stressed that to the factual situation described in the foregoing the general legal principle is applicable that he, who has deliberately caused the death of someone else, who has favoured him, should not profit from the this favour.

• (…)

• 5.16 In this context it is also important to mention that the aforementioned legal principle is closely related to another legal principle, i.e. that one should not profit form the deliberately caused death of someone else, which principle has among others been expressed in article 885 under 1 book 3 CC. (…)

• 5.17 Application of the mentioned legal principles leads under the aforementioned facts and circumstances to the conclusion that L is not entitled to the benefit that is the consequence of the community of property created by the marriage without a marriage settlement with mrs. van Wylick.

• 5.18 Also an examination of the claims of L in light of the requirements of reasonableness and fairness according to which he is supposed to behave in the community of property that is created by the marriage, as is stated by Brouwers c.s., leads to the conclusion that L should not profit from the marital community of property. In this case the court applies a strict standard because the appeal to reasonableness and fairness is aimed at preventing the claims of L completely. Also when applying such a strict standard the court is of the opinion that the claims of L must be considered as so unreasonable and unfair, in the aforementioned special circumstances of this case and also considered in light of the mentioned general legal principles, that the exertion of the claimed rights must be denied to him completely.

B. Articles from the Dutch Civil Code Applied in the Case of the Unworthy Spouse

• Article 1:100 of the Old Dutch Civil Code

• 1. The spouses have an equal share in this divided community of property, unless a different division is established by means of a marriage settlement (…).

• Article 4.3 of the New Dutch Civil Code (introduced after 1990)

• 1. Legally unworthy to profit from an inheritance are: He who has been condemned irrevocably because he has killed the deceased, he who has tried to kill the deceased or he who has prepared to kill the deceased or has participated in preparing to kill the deceased.

• Article 6:248, 2 of the Dutch Civil Code

An arrangement that is valid between the creditor and the debtor on the basis of the law, a custom or a legal act, does not apply if this is unacceptable from the perspective of the standards of reasonableness and fairness.

• Article 3:12 of the Dutch Civil Code

When establishing what reasonableness and fairness require, generally accepted legal principles, legal convictions that are generally accepted in the Netherlands, and social and personal interests in a particular case, should be taken into account.

C. The Case of the ‘Unworthy Grandson’

• District Court Haarlem, July 24, 2001, nr. 68989

• 5.7 The exceptional situation of this case has not been foreseen by the legislator. But even if it would have been foreseen, this does not exclude that in certain circumstances the judge can appeal to the ‘derogating’ function of reasonableness and fairness if application of the law would lead to an unacceptable result.

• 5.8 The Court is of the opinion that in this case such circumstances obtain. The Court holds that the defendant acts in this special case as inheritor and statutory heir of his grandmother because he has killed his father, the inheritor in the first line.

• (…)

• 5.10 The rules regarding unworthiness in the law of inheritance make explicit the underlying general legal principle to which the decision of the Supreme Court of December 7 1990 also refers, i.e. that someone should not profit form the intentionally caused death of someone else. In the light of this principle the right of the defendant to exercise his right to his legal share of the inheritance on the basis of clause 4:889 of the Dutch Civil Code would, according to the standards of reasonableness and fairness in the circumstances of this concrete case, lead to an unacceptable result.

• 5.11 The Court holds that in the present circumstances it is important also that the testatrix, who had suffered a great deal from what the grandson had done to her, had explicitly stated in her will that she did not want that the grandson would get a share of her inheritance. Although it is true that a testator cannot disinherit someone from his legitimate share to the inheritance, the right to the legitimate share is not absolute. In the present circumstances disobeying the will of the testatrix would conflict with the sense of justice in such a serious way that exertion of this right cannot be accepted.

D. Relevant Articles Used in the Case of the Unworthy Grandson

• Article 4:889 of the Dutch Civil Code (now article 4.12):

• 1. Replacement in the direct downward line takes place infinitively.

  • Article 4:885 of the Dutch Civil Coce (now article 4.3):

The following persons can considered to be unworthy to be an inheritor and can, for this reason be excluded from the inheritance:

• 1. He who has been convicted of killing of trying to kill the deceased;