Abstract
1. Solving a legal problem and deciding a case or a dispute on the basis of law are obviously not the same thing. Let us assume that the jurist is the person who puts legal problems (or puts them to himself) and possibly solves them, and the judge the person before whom cases are brought and disputes presented for decision (= he has to decide) on the basis of law. This means that a legal problem may not have a solution or (the same thing in other words) may have more than one solution; while a case or legal dispute has to have one decision, and one only.
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Reference
See: A. Aamio, R. Alexy, A. Peczenik, “The Foundation of Legal Reasoning,” in Rechtstheorie, 12, 1981, pp. 133–158, 257–279, 423–448; republished under the title Grundlagen der juristischer Argumentation, Berlin, Duncker und Humblot, 1983, pp. 9–87.
This emerges with particular clarity in the works of A. Aamio; see esp. The Rational as Reasonable. A Treatise on Legal Justification, Dordrecht, Reidel, 1987. On the topic of certainty cf. L. Gianformaggio, “Certezza del diritto”, in idem, Studi sulla giustificazione giuridica, Turin, Giappichelli, 1986, pp. 155–169.
Recently rejuvenated by the lively discussions that stances regarding Kelsen’s last and posthumous works aroused. Cf. L. Gianformaggio, In difesa del sillogismo pratico, ovvero alcuni argomenti kelseniani alla prova,Milan Giuffrè, 1987.
But see N. MacCormick, “Universalization and Induction in Law”, paper delivered at the conference Reason in Law,Bologna 1985; L. Gianformaggio, “Modelli di ragionamento giuridico. Modello deduttivo, modello induttivo, modello retorico, e analogia”, in idem, Studi sulla giustificazione…, op. cit.,pp. 33–56, and pp. 131–154.
Cf. N. MacCormick, “Coherence in Legal Justification”, in A. Peczenik, L. Lindahl, B. van Roermund (eds.), Theory of Legal Science,Dordrecht, Reidel, 1984, pp. 235–251; republished with changes, in W. Krawietz, H. Schelsky, G. Winkler, A. Schramm (eds.), Theorie der Normen. Festgabe fur Ota Weinberger zum 65. Geburtstag,Berlin, Duncker and Humblot, 1984, pp. 37–53. Below I shall quote from the second, more elaborate version.
Reiterating what he had said in previous works, MacCormick writes: “I interpret consistency as being satisfied by non-contradiction. A set of propositions is mutually consistent if each can without contradiction be asserted in conjunction with every other and with their conjunction… By contrast, coherence, as I said, is the property of a set of propositions which, taken together, ‘makes sense’ in its entirety.”(op. ult. cit.,p. 38)
the constraint of coherence seems to be treated by lawyers as a relatively weak constraint, perhaps because it determines only what we might call the ‘weak derivability’ of a ruling or decision from the pre-existing law. This contrasts with ‘strong derivability’ where some ruling or decision is deductively derivable from binding rules of the system, in the sense that any other decision would be directly inconsistent with (or contradictory of) some such binding rule“ (op. ult. cit.,p. 47).
Cf. J. Wroblewski, “Legal Syllogism and the Rationality of Judicial Decision”, in Rechtstheorie, 4, 1974, pp. 33–46; and N. MacCormick, Legal Reasoning and Legal Theory, Oxford, Clarendon, 1978.
Cf. R. Alexy, Theorie der juristischen Argumentation. Die Theorie des rationalen Diskurses als Theorie der juristischen Begründung, Frankfurt, Suhrkamp, 1978.
Cf. I. Niiniluoto, “Truth and Legal Norms”, in N. MacCormick, S. Panan, L. Lombardi Vallauri (eds.), “Conditions of Validity and Cognition in Modem Legal Thoughts”, in ARSP, Beiheft n. 25, pp. 168–190.
On coherence as a “legal virtue”, cf. N. Bobbio, “Formalismo giuridico e formalismo etico”, in idem, Studi sulla teoria generale del diritto,Turin, Giappichelli, 1955, pp. 149 ff. On coherence as an instrument of certainty cf. idem, Teoria dell’ordinamento giuridico,Turin, Giappichelli, 1960, pp. 119–124.
This caution is justified by one possible interpretation of the passage cited in Note 8 above, which might possibly be understood in the sense of identifying consistency and strong derivability It is, in short, not entirely clear whether MacCormick distinguishes between deductiveness and mere non-contradictoriness.
Cf. Note 13 above.
According to the meaning of ‘legal formalism’, “most frequent in polemic usage, hence better known” (M. Bobbio, “Formalismo giuridico”, idem, Giusnaturalismo e positivismo giuridico Milan, Comunità, 1965, p. 93).
On the notion of “field of argument” cf. S. Toulmin, The Uses of Argument,London, Cambridge Univ. Press, 1958.
If I understand it rightly, the use made by Riccardo Guastini of the term “implicit norm” ignores this difference. Cf. R. Guastini, Lezioni sul linguaggio giuridico,Turin, Giappichelli, 1985, p. 134: “an implicit norm is accepted within a normative system if it can be derived — through some logical, semi-logical or pseudo-logical procedure — from norms already accepted… Supplementing the law is the activity of manipulating a whole made up of provisions and or explicit norms, so as to derive (other) implicit norms that allow lacunae to be filled”. It seems to me that merely by definition, i.e. given the meaning of terms that can be derived from their use, it may be said that there is in the text a lacuna to be filled wherever what is being sought is not implicit in the text. The theories of “textual co-operation” and of the “reader as textual strategy” do not deny but in fact presuppose that there is a meaning in speaking of “fidelity” to the text, however complicated this concept may be: otherwise there would be no meaning to distinguishing different levels of textual co-operation. Cf. U. Eco, Lector in fabula,Milan, Bompiani, 1979, p. 79: “The text does not trouble to say that they are married to each other,but no reasonable reader will doubt this. The author knew that the text could allow itself that piece of laziness on the basis of an extremely hyper-codified stylistic rule. If the author had wished to say they were married to different people he would have got round the effect of that rule by using redundant expressions.” But citations might be multiplied.
Cf. H. Kelsen, Reine Rechtslehre, Vienna, Deuticke, 1960, Chap. VIII.
Cf. R. Alexy, Theorie…, op. cit.,p. 224: “Wer ein Argument eingeführt hat, ist nur bei einem Gegenargument zu weiteren Argumenten verpflichtet”.
A relationship might possibly be set up between my notion of (minimum and maximum) “gap” and the notion of “jump”, theorized by Aleksander Peczenik. The minimum gap would be the jump,once rendered deductive through the addition of an appropriate role of inference accepted as a topos by the hearers. The maximum gap would instead be transformation as such.
As in the case of “derived obligation”. Cf. C.E. Alchourron and E. Bulygin, “The Expressive Conception of Norms”, in R. Hilpinen (ed.), New Studies in Deontic Logic,Dordrecht, Reidel, 1981, pp. 102–103 “… the notion of derived obligation is related to the notion of implicit command… If a person commands something, he also commands all the consequences of what he has explicitly commanded (even if he is not aware of them). For instance, if a teacher commands that all his pupils should leave the class-room, he also implicitly commands that John (who is one of the pupils) should leave the class-room, even if he is not aware of the fact that John is there”.
Cf. H. Kelsen, Allgemeine Theorie der Normen,Vienna, Manzsche Verlag und Universitätsbuchhandlung, 1979, p. 201. Kelsen adduces as example the two norms (1) “People ought not to cause one another harm” and (2) “People ought not to slander one another”, and writes: “The general norm (2) is in fact implied in general norm (1), and can be made explicit through interpretation… norm (2) does not lay down anything not already laid down in norm (1)” (my italics).
Cf. M.S. Giannini, L’interpretazione dell’atto amministrativo e la teoria generale dell’interpretazione,Milan, Giuffrè, 1939, p. 87: “Supplementation is the operation of seeking a legal proposition in order to complete an insufficiently formulated or manifested intent… This is the fundamental difference from interpretation, which consists in understanding the legal scope of an intent.”
Cf. M. Bobbio, Teoria dell’ordinamento giuridico, op. cit.,pp. 74–82 on the various meanings of “legal system”. In particular, compare the first meaning (deductive system) and the third (exclusion of incompatibilities), in connection with which Bobbio writes: “Note that saying that norms must be compatible does not mean that they imply each other, i.e. constitute a perfect deductive system. In this third sense of system, the legal system is not a deductive system, as it is in the first sense: it is a system in a less pregnant sense, if you will a negative sense, i.e. an order that excludes the incompatibility of its individual parts.”
Cf. F. Camelutti, Teoria generale del diritto,Rome, Foro italiano ed., 1940, pp. 144155.
Cf. J. Falk, Die Analogie im Recht. Eine Studie zur neueren Rechtsgeschichte, Mainz, 1906; and N. Bobbio, L’analogia nella logica del diritto, Turin, Artigianelli, 1938.
Cf. R. Dworkin, Law’s Empire, London,Fontana Press, 1986, chaps. 6 and 7.
It is significant in this connection that MacCormick does not find important differences between procedure by analogy and recourse to general principles of law: cf. N. MacCormick, Legal Reasoning…, op. cit.,chap. VII.
Cf. G. Zaccaria, L’ermeneutica,paper presented to the XVI Congresso Nazionale di Filosofia del diritto, Padova, 1986, to be published shortly.
Cf. L. Gianformaggio, Analogia, op. cit. By contrast, Bobbio does reconstruct legal analogy according to the Aristotelian schema of the paradigm in L’analogia…, op. cit.
See particularly, N. MacCormick, II.L.A. Hart, London, Arnold, 1981.
On this see the essay by G. Zaccaria elsewhere in this book.
Cf. the hermeneutic doctrine of Besser-Verstehen,according to which the interpreter may be able to understand the text better than the author, and the law may be klüger than the legislator.
Cf. N. Bobbio, Teoria dell’ordinamento…, op. cit.,chaps. IH and IV.
This great importance attributed, implicitly or explicitly, to consensus brings contemporary theories of legal justification very close to the approaches of topic and rhetoric. One need mention only how much Alexy owes to Habermas, and how much Aarnio owes to Perelman. Cf. also G. Haarscher, “Perelman and Habermas”, in Law and Philosophy,V, 1986 3, pp. 331–342.
Cf. note 11 above.
Cf. F. Cordero, Tre studi sulla prova,Milan, Giuffrè, 1963, pp. 6–7: “even in the infinitesimal time of perception, syllogistic moves are made on which belief in the messages taken in through the senses is based”. Cf. also C.S. Peirce, Collected Papers,5.182–5.185, on “abduction in perceptive judgments”.
Cf. A. Giuliani, Il concetto di prova. Contributo alla logica giuridica,Milan, Giuffrè, 1961, eds. on the rhetorical theory of the sign “as instrument for extending our awareness beyond what is an object of observation and of sensation” (p. 37). On the various meanings that the term “proof’ takes on in law and in legal discourse, cf. J. Wroblewski, Proof in Law,paper presented at the III International Convention on Legal Semiotics, Messina, 1987, in press.
Cf. C.S. Peirce, op. cit., 2. 248–9.
Informally, and incorrectly, “for a ‘fact’ cannot be proved a posteriori,but only experimented or found at the moment it happens. What is proved… is… the truth or otherwise of an affirmation.” (G. Ubertis, Fatto e valore nel sistema probatorio penale,Milan Giuffrè, 1979, p. 91).
The whole system of evidence is based on deduction from a known fact to an unknown fact through experience“ (P. Saraceno, La decisione sul fatto incerto nel processo penale,Padua, 1940, p. 74). But discussion is openas to whether the same concept of ”experience“, and hence of ”true premise“, can in the same way cover both scientific laws and the so-called ”maxims of experience“ (see below).
Cf. M. Taruffo, Studi sulla rilevanza della prova, Padua, Cedam, 1970, pp. 209–210.
It is worth thinking again about the conclusion of H. Levy-Bruhl’s book, La preuve judiciaire. Etude de sociologie juridique,Paris, Rivière, 1964. This book, which takes as its main theme the difference between legal proof and scientific proof, since “la preuve judiciaire a pour objet de faire obtenir par l’intéressé la ratification, l’homologation de la collectivité… on comprendra que la recherche de la vérité passe au second plan” (p. 29), concludes with the following words: “Il y a lieu toutefois d’observer — et cette remarque est assez réconfortante — qu’à examiner le problème dans son ensemble et dans une perspective historique, la preuve judiciaire se rapproche progressivement de la preuve scientifique, et qu’ainsi le nombre des cas d’injustice ou d’erreurs, qui sont particulièrement cruelles et graves, parce que le groupe social les a corroborées tend à diminuer. Mais il n’est guère permis d’espérer qu’elles disparaissent jamais.” (p. 152).
On the idea of the “normal” and the related opposition between praesumptio and probatio,and the opposition between subjective probability and objective probability, cf. A. Giuliani, Il concetto di prova… op. cit.,pp. 65–69 ff.
Under what the text says, incorporation of scientific laws into the category of “maxims of experience” (on which see above), advocated by G. Bellavista - G. Tranchini, Lezioni di diritto processuale penale,IX ed., Milan, Giuffrè, 1984, p. 309, seems highly disputable. For a decidedly opposite view, in my opinion highly justifiable, see G. Umbertis, Fatto e valore… op. cit.,p. 68, note 74.
The terminology in Italian legal theory and case law is unfortunately not totally consistent. Sometimes what I here call ‘prova proof ’ is called ‘prova indiziaria evidential proof ’ and what I call ‘indizio evidence ’ is called ’elemento indiziante indicative elementi’ (cf. App. Napoli, 15 September 1986, in “La giustizia penale”, 1987, part II, col. 488); sometimes what I here call ‘prova’ is called ‘prova piena full proof ’ and what I call ‘indizio evidence ’ is called ‘prova indiziaria evidential proof’ (cf. B. Bellavista, “Indizi”, in Enc. Dir.,vol. XXI, Milan, Giuffrè, 1971, p. 228). Despite all the terminological confusion, the conceptual distinction remains, it would seem, fairly precise.
Cf. R.B. Braithwaite, Scientific Explanation. A Study of the Function of Theory, Probability and Law in Science, London, Cambridge Univ. Press, 1953 (Italian trans. Milan, Feltrinelli, 1966, p. 28 ).
See note 19 above.
Legal semiotics rejects so-called intuitive ‘truths’ or those revealed by oracles or acquired through means alien to the prevailing epistemology… All that counts are experiences that jibe with the scientific canon, for as long as it lasts (it would be naive to suppose, given that progress is continuous, that the irrationalistic flood had been exhausted in the past).“ (F. Cordero, Guida alla procedura penale, Turin, UTET, 1986, pp. 320–321 ).
For the historian, cf. C.B. Joynt - N. Rescher, “The Problem of Uniqueness in History”, in History and Theory, I, 1961, p. 154; for the judge, cf. F. Stella, Leggi scientifici e spiegazione causale nel diritto penale, Milan, Giuffrè, 1975, p. 153.
See Part H above, Sections 6, 7 and 8.
See Part II above, Section 4.
I would emphasize that the figures presented in these pages of the jurist, judge and detective in no way claim to correspond exactly to specific social roles: in different social and legal systems, in fact, their respective competencies may vary, even a great deal. In these pages I proceed by assumptions (cf. Part I. Section 1), abstracting from historical and social peculiarities and allowing myself to be guided primarily by epistemological considerations.
Cf. G. Ubertis, Fatto e valore…, op. cit.,p.56.
Charles S. Peirce, Collected Papers,5.197: “what is a good abduction? Or what should an explanatory hypothesis be like in order to be acceptable as a hypothesis? Clearly, it must explain the facts… what is the purpose of an explanatory hypothesis? Its purpose is to be subjected to the test of experience, so as thereby to arrive at elimination of the unexpected and at the formation of a habit of positive expectation that will not be disappointed”.
Cf. the texts cited in note 5 above.
Long before I classified abduction among inferences, it had already been recognized by logicians that the operation of adopting an explanatory hypothesis (and it is in this operation that abduction consists) has to be made subject to certain conditions.“ (Charles S. Peirce, op. cit.,5.189).
Accordingly, the following affirmation seems to me disputable: “The policeman is a solver of riddles, not an interpreter of obscurities. His abductive art must, then, be that of the enigmatographer, not hermeneutics.” (M.A. Bonfantini - G. Pronti, “To Guess or not to Guess”, in U. Eco - T.A. Sebeok, Il segno dei tre. Holmes, Dupin, Peirce, Milan, Bompiani, 1983, p. 148 ).
Cf. F. Stein, Das private Wissen des Richters, Leipzig, 1983.
Cf. G. Bellavista, “Indizi”, op. cit.
Cf. V. Manzini, Trattato di diritto processuale penale italiano, vol. III, Turin, UTET, 1956, p. 418.
It is therefore hard to understand what is meant by “the constant refusal to confound evidence with conjecture” (see G. Bellavista, “Indizi”, op. cit., p. 229). The passage becomes capable of disturbing interpretations if it is linked to what is written a few lines above: “… the ineluctable need not to leave unpunished crimes that elude full, direct proof” (op. cit.,p. 228).
More significant than all the other additions is, from my viewpoint, the last one, namely the addition of the paragraph closing the second version of the article, which I repeat here in extenso: “Finally, however, although there are these parallels and connections between our two sorts of coherence, there remains an important difference. Narrative coherence has to do with the truth or probable truth of conclusions of fact. Coherence here justifies beliefs about a world whose existence is independent of our beliefs about it. But, as Ota Weinberger has so often and so convincingly shown, there is no analogous reason for believing in some sort of ultimate, objective, humanly-independent truth of the matter in the normative sphere. Coherence is always a matter of rationality, but not always a matter of truth.” (N. MacCormick, Coherence in Legal Justification,op. cit., p. 53).
Cf. Max Weber, Wirtschaft und Gesellschaft, vol. I, I. 1.
Cf. M. Nobili, Il principio del libero convincimento del giudice, Milan, Giuffrè, 1974.
For the “liberal” resumption of this ancient idea on the threshold of the contemporary epoch, see C.A. Helvetius, De l’Homme (1770), Section IX chap. XII: “C’est à la contradiction, par conséquent à la liberté de la presse, que les sciences physiques doivent leur perfection… Ce que je dis du physique est applicable au moral et au politique. Veut-on en ce genre s’assurer de la vérité de ses opinions? II faut les promulguer. C’est à la pierre de touche de la contradiction qu’il faut les éprouver.”
See Z. Bankowski s article in this collection. I wish however to stress that the case of Rex v Smith, adduced as example and discussed very summarily by MacCormick in his article on coherence, the case of the “Brides in the Bath”, is much cited by common-law
Cf. J. Habermas, “Wahrheitstheorien”, in H. Fahrenbach (ed.), Wirklichkeit and Reflexion, Pfullingen, 1973, pp. 211–265.
The extent to which the system of proof in the English-speaking world is dependent on the topical rhetorical conception of trial and proof has frequently been pointed out. Cf. A. Giuliani, Il concetto di prova…, op. cit.,pp. 189–200.
U. Eco, “Corna, zoccoli, scarpe. Alcune ipotesi su tre tipi di abduzione”, in U. Eco - T.A Sebeok, l segno dei tre…, op. cit.,p. 261.
Cf. N. MacCormick, “The limits of Rationality in Legal Reasoning”, in Rechtstheorie, Beiheft 8, 1985, p. 161.
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Gianformaggio, L. (1990). Legal Certainty, Coherence and Consensus: Variations on a Theme by Maccormick. In: Nerhot, P. (eds) Law, Interpretation and Reality. Law and Philosophy Library, vol 11. Springer, Dordrecht. https://doi.org/10.1007/978-94-015-7875-2_18
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