Legal Reasoning and Legal Theory Revisited

Legal Reasoning and Legal Theory Revisited Author(s): Fernando Atria Source: Law and Philosophy, Vol.
18, No. 5, Laws, Facts, and Values (Sep., 1999), pp. 537-577 Published by: Springer Stable URL: http://www.jstor.org/stable/3505144 Accessed: 31/08/2010 11:37
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FERNANDOATRIA*
LEGAL REASONING AND LEGAL THEORY REVISITED (AcceptedMay 20, 1999)

ABSTRACT. This article deals with the relationbetween a theory of law and a theory of legal reasoning.Startingfrom a close readingof ChapterVII of H. L. A. Hart's The Conceptof Law, it claims that a theory of law like Hart'srequires a particular theory of legal reasoning,or at least a theory of legal reasoningwith some particularcharacteristics.It then goes on to say that any theory of legal is reasoningthatsatisfiesthose requirements highly implausible,andtries to show thatthis is the reason why not only Hart,but also writerslike Neil MacCormick and JosephRaz have failed to offer a theoryof legal reasoningthat is compatible with legal positivism as a theory of law. They have faced a choice between an explanationof legal reasoning that is incompatiblewith the core of legal positivism or else strangely sceptical, insofar as it severs the link between general rules and particular decisions thatpurport apply them. to KEY WORDS: application of law, appropriateness,clear cases, deductive reasoning,legal positivism, legal reasoning,open texture
When H. L. A. Hartwrote The Conceptof Law, legal reasoningas such was not in the philosophical agenda. Consequently,he later acknowledgedthatin The Conceptof Law he had "saidfar too little aboutthe topic of [...] legal reasoning"(1994, p. 259). This aspect of Hart's book was soon subject to criticism because it appeared to some (most notably, Dworkin 1967) that the implications of Hart's theory for legal reasoning were clearly at odds with what lawyers andjudges saw themselves as doing. What was needed, in to consequence,was a "companion" The Conceptof Law, an examination of the way in which a powerful explanationof the nature of law such as Hart's could furtherthe understanding only of not what the law is, but also of how the law works, or, better, how
* Licenciado en Derecho (Universidadde Chile, 1994); Ph.D. (Universityof Edinburgh,1999); Assistant Professor of Law, Universidadde Talca (Chile). I am indebted to Zenon Bankowski, Neil MacCormick,Kevin Walton, Claudio Michelon and Burkhard Schafer for thoughtfulcriticism of previous versions of this article.They have, of course, no responsibilityfor the mistakesthatremain.
LA Law andPhilosophy 18: 537-577, 1999.
)? 1999 KluwerAcademicPublishers. Printed in the Netherlands.
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people work with the law: a theory of the applicationof the law (i.e. legal reasoning). We are now told that Legal Reasoning and Legal Theorywas supposedto be such a companion(MacCormick 1994, p. xiv). Before consideringthat book, let me explain where the tension between legal reasoningand legal theorylies, and to do so we shall considerH. L. A. Hart's"opentexture"thesis.
HART ON OPEN TEXTURE
For our purposes, a full exposition of Hart's open texturethesis is not needed here: suffice it to say thathe triedto strikea middle way between whathe called "ruleformalism" "rulescepticism",and and that to do this he borrowedfrom F. Waismann(Waismann1951) the idea of open texture.According to the text-book exposition of this thesis, the argumentwas that, since meaning is use, conceptwords cannot have any meaning whatsoever without there being clear instances to which they apply. To be able to recognise those examples as instances of the relevantconcept-word(s)is to know the meaning of the latter. By the same token, however, in many instancesthe applicationof those concept-wordsto some event will not be completely obvious, and disagreementbetween competent users will arise. In these circumstances,failure to use the relevant concept-wordto refer to those events is not evidence of ignorance of theirmeaning (as failurein the clear cases is), since these events are said to be in the penumbraof meaning of the relevantconceptword(s), where different opinions might exist between competent users as to whether or not a particularconcept-wordapplies. To make an often-quotedpassage even more often quoted,
If we are to communicatewith each otherat all, and if, as in the most elementary form of law, we are to express our intentionsthat a certaintype of behaviourbe regulatedby rules, then the generalwords we use [... ] must have some standard instancein which no doubtsarefelt about[their]application. Theremustbe a core of settled meaning,but there will be, as well, a penumbraof debatablecases in which wordsareneitherobviously applicablenor obviouslyruledout (Hart1958, p. 63).
So understood,Hart's is a thesis about the limits of certaintythat general classificatoryterms can have in naturallanguages:"[open textureis] a generalfeature of humanlanguage;uncertaintyat the
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borderlineis the price to be paid for the use of general classifying terms in any form of communicationconcerning matters of fact" (1994, p. 128; my italics). It is an inescapable feature of natural languagesas we know them, andhence is partof the humanpredicament:if we areto communicatewith each otherusing natural(rather than artificial) languages, then it is pointless to strive to achieve complete certainty: there is nothing we can do to exclude open texture,at least insofaras we also want to use generalclassificatory terms:
my view was (and is) that the use of any language containingempiricalclassificatorygeneral terms will, in applyingthem, meet with borderlinecases calling for fresh regulation.This is the featureof languageI called 'open texture'" (Hart, quotedby Bix 1993, p. 24).
On this first reading of it, the open texture thesis is one about language,and only derivativelyaboutthe law. "Opentexture"is not a featureof law but, as Hart explicitly says in the quoted passage, one of naturallanguages. Needless to say, since (or: only because) legal rules are expressed in naturallanguages, the open texture of the latter communicates,so to speak, to the former.Thus it is not surprisingat all to hear from Hart that, for example, "whichever device, precedent or legislation, is chosen for the communication of standards of behaviour, these, however smoothly they work over the great mass of ordinarycases, will, at some point where their applicationis in question, prove indeterminate" (Hart 1994, pp. 127-128). Immediatelyafterpresentingthe notionof open texture,andin an effortto cheer the readerup, Hartexplainsthatuncertainty apparent at the borderline certainlynothingto be afraidof. But in the course is of this consolationthe natureof the open-texturethesis switches: it becomes a thesis no longer aboutone of the inescapablefeaturesof naturallanguages as we know them, but about the convenienceof having open-textured(i.e. not completely certain and predictable) rules. It ceases to be a featureof languageto become one of the law. Of course, there is no reason why you cannot argue that X is the case and then go on to arguethat X is also desirable,which is the usual way in which the relevant passages on The Concept of Law seem to have been read. But Hart did somethingmore: when his arguingaboutthe desirabilityof open texture,and contradicting
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statementsquoted above (and many others) Hart conceded that it is possible, for us now and here, to eliminate the uncertaintyat the borderline,i.e. "to freeze the meaning of the rule so that its general terms must have the same meaningin every case where its applicationis in question"(1994, p. 129). He even explainedto us how:
To secure this we may fasten on certain features present in the plain case and insist that these are both necessary and sufficient to bring anything which has them within the scope of the rule, whateverotherfeaturesit may have or lack, and whatevermay be the social consequencesof applyingthe rule in this way (1994, p. 129).
And if we were to follow his advice,

we shall indeed succeed in settling in advance,but also in the dark,issues which can only reasonablybe settled when they arise and are identified(1994, p. 130; my italics).
If we can indeed succeed in settling in advancethe outer limits of the law, it follows that the explanationof the fact that these limits are uncertainmust be in the reasons why it is not convenientfor us to do so, i.e. in the reasons why these cases "can only reasonably be settled when they arise and are identified".In other words, if we can eliminatethe uncertaintyat the borderline,then it is simply wrong to say thatthe reasonwhy the law is uncertainis because the uncertaintyat the borderlinecannot be eliminated;the reason why the law is uncertainin hard cases is not some inescapablefeature of general classificatoryterms in naturallanguages, but the very differentone that it is unreasonableto try to settle "in advance,but also in the dark"issues we cannotyet identify. Hartexplains that Following this second line of argumentation, he is dealing not with a limitationon the levels of certaintyimposed on human beings by the language they (we) happen to have, but with the very differentissue of strikinga rightbalancebetween two competingsocial needs, i.e.
the need for certainrules [... ] and the need to leave open, for latersettlementby an informed,official choice, issues which can only be properlyappreciatedand settled when they arise in a concretecase (1994, p. 130).
And furthermore, this tension is one that "infact, all systems, in different ways" solve reaching some kind of compromise (ibid.
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Italics added). Open texturethen is not an externallimit language imposes on the levels of certaintyhuman beings can achieve, but the consequence of a normative decision, i.e. a decision about how best to balance the requirementsof certainty with those of appropriateness.1 It is importantto emphasise that, as we have seen, what a hard of (clear) case is varies accordingto each of these interpretations the open-texture thesis. In the firstinterpretation, case will be hard a when the facts are such that they do not fit naturallyand uncontroversiallyone or more of the general classificatoryterms of the relevant rules, i.e. when it is what could be called a "semantic" hardcase (when, e.g. the rule forbidsyou to go into the parkwith a vehicle andyou wantto use a toy car in it). On the second interpretation, however,the point is not uncertaintyat the borderline.As we can "indeed succeed" in having clear and certain rules (regardless of the features of naturallanguages), a case will be hard because what is an issue is not the classificationof particulars in the world, but the very different one of whether or not this case was one of those left "open,for latersettlementby an informed,official choice" even if it is coveredby the semanticmeaningof the rule in question (was the case of the veteran'swanting to use a militarytruck in a memorialin the parksettledwhen the "no vehicles"rule was issued or was it "left open"?).Since the only reason why it makes sense to begin to discuss whetheror not this case is covered is that it could be covered, in this explanationa hardcase in fact presupposesthat in the particulars the world can be classifiedunderthe rule's general classificatoryterms. Bearing these considerationsin mind, we go back to the tension between law and legal reasoning, to the challenge mentioned by MacCormick:a Hartianexplanationof legal reasoning has to be seen to flow from, or at the very least to be consistent with, the centralclaims Hartmade in the "mother" theory.I hope it is not very to controversial say thatone of the centraltenets of Hart'stheory of
1 Some (or: stipulationswill be of use here:(a) I will call "certainty" "predictthe firstof the social needs Hartdistinguishedand (b) "appropriateness" ability") the second; (c) I will talk of "application"when referring to the problem of whetheror not a rule shouldbe appliedto a particular case, and (d) of "meaning" when referringto thatof graspinga rule's meaning.
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law was thatat a conceptuallevel law is independentfrom morality, that is, what the law ought to be is not the same than what the law is.2 These two questionsare, in Hart'sview, not only different,but logically different:it is possible to establishwhat the law is without inquiryinto what the law ought to be; no conclusion aboutwhat the law is follows fromarguments aboutwhatthe law oughtto be. At the same time, Hartsaw thatany theoreticalelucidationof the natureof law must explainwhy and how it is possible for competentlawyers, judges and lay persons to disagree not only about what the law in ought (morally)to be, but also (and much more importantly this aboutwhat the law actuallyis. Now, the explanationof the context) latterkind of disagreementcannotbe groundedupon the existence of disagreementaboutwhat the law ought to be, since if that were the case the law as it is would not be conceptuallydifferentfrom the law as it ought to be (thatis, it cannotbe the case that we disagree about what the law is because we disagree what the law ought to be, if these two questionsare conceptuallydifferent).Hence we got Hart'sopen texturethesis. The importanceof this thesis is that it performedthe role of thus supplyinga morallyneutralexplanationof legal disagreement, allowing us to explain disagreementaboutwhat the law is in a way thatwas not parasiticalon disagreement aboutwhatthe law oughtto be. This was, therefore,the explanation(at least the kindof explanation) requiredby Hart'stheoreticalassumptions,if his theory was to have any consistency.But Hartnoticed (or so I claimed) thatthe idea of open texture,importantas it might be, did not explain the whole of the fact of legal disagreement when looked at from a legal i.e. clarificationof the meaning of words is reasoning-perspective, not always the kind of informationthat would be useful to lawyers andjudges and lay persons when they are discussing what the law
2 There is some discussion as to the precise content of what is sometimes
called "the separabilitythesis" (see, among others,FtiBer1996; Coleman 1996). would not affect some versionsof This has to be kept in mind, since my argument the thesis. ConsiderShiner's(admittedly"crude") version:"theexistence of law is one thing and its meritor demeritanother" (Shiner1992). I do believe (along with most positivists, naturallawyers, and realists of differentdenominations)that in this sense the thesis is true.I think,however,thatI can bypassthis debatebecause in any plausible readingthat thesis must mean, for legal positivists, that the fact thatthe law ought to be differentis not enough to establishthatit is different.
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is in concrete cases. Hartrealised that in many of these cases what x was discussed was not whether a particular was an instance of a general X, but ratherwhether or not a particular(otherwise clear and unambiguous)rule was, in a legal sense, meant to be applied to the facts that configuredsome concrete case. Hence he offered, in the same pages of The Conceptof Law, a second explanationof the fact of legal disagreement,one based on the claim that there is a built-in tension in law between (what I called) predictabilityand appropriateness. Now, it is in my view a crucial point that the legal theoryimplicationsof this second explanationare at odds with the central claim of Hart'sbook identifiedabove. In the firstexplanation,what made a case hard was a "value-free"feature, i.e. the open texture of the relevant words. This is why Hart was free to say that in clear cases the applicationof rules does not require the decision maker to exercise a "freshjudgement"(1994, p. 135). From the universe of cases courts will have to solve from now on, some of them are (or will eventuallybe) markedby the fact thatthey belong to the penumbraof meaning of the relevantwords; the identification of those cases as hardwill not imply, therefore,that evaluative ideas about what the law ought to be will be smuggled in at the moment of ascertainingwhat the law is. When the "mark" open of texture is discovered the court will have reached the outer limits of the law: it can then discuss about what the law will be after the court'sdecision, in the light of whatthe law shouldbe, only because there is no law on the matter.Notice that nothing guaranteesthat this will be uncontroversial. Therecan be disagreementon whether skateboardsand push-chairsare "core" or "penumbra" instances of the word "vehicle".That is to say, I think Raz is correct when he says (Raz 1985, p. 218) that it is false "thatall factual matters are non-controversial" that "all moral propositionsare controand versial".What is importanthere is not that accordingto the open texture thesis the applicationof the law is non-controversial, but thatany legal disagreementwill not be moralbutfactual (or verbal, or conceptual)disagreement:are push-chairsand skateboards, a as matteroffact, vehicles? The second explanation(legal disagreementas the consequence of the tension between predictabilityand appropriateness) does not
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work so nicely, though it representsmore faithfully the reality of that singles a case out as hardis legal reasoning.In it, the "mark" an evaluativefeature:the case is (will be) markedas hardif predictability's requirementsare overriddenby those of appropriateness, i.e. if the solutionofferedby the rule is inappropriate enoughfor the demandof predictabilityto be defeated in the case. Notice that, in this view, to "discover"the "mark" that would allow us to classify a case as clear or hardis to exercise a "freshjudgement",as it is to answerthe questionof how pressingthe inappropriateness a norm of ought to be for the demandfor predictabilityto be overridden,the answerof which will dependon the relativeimportance those values are takento have. Fromthis standpoint questionof what the law the is cannotbe differentiated from thatof what the law ought to be. In other words,for the court the question "is this prama vehicle?"is linked to the question "oughtthis pram be considereda vehicle?" (considerthe commonjudicial way of posing this kind of problems: "should skateboardsbe considered as vehicles for the purpose of this law?").3 If this is correct,there is no way in which we can say that there is a logical distinctionbetween these two questions.To see why, it seems useful to divide Hart'sview on hardcases up into two parts: one that contains a test about what makes a hard case hard, and anotherthat explains what is going on once a case is recognised as such. We have seen thattwo answerscan be foundin TheConceptof Lawfor the firstproblem,the test thatmakesa case hard.The answer to the second problemis that in hard cases there is no settled law, hence the courtshave to exercise discretion.Now I believe (though I will not argue for this here)4 that the first, non-moraltest for the firstproblem,i.e. the open texturethesis understood a thesis about as rather thanaboutthe law,has to be rejected,andsomething language and alongthe lines of the tensionbetweenpredictability appropriate3 The fact that Harthimself sometimes (e.g.: 1967, p. 106) phrasedthe question in these terms(as one of ascertaining whethera particular is an instanceof x a generalX for the purposeof a given law) shows thathe failed to notice thathe was offering two explanations.If his open texturethesis (understoodas a thesis aboutlanguage)is true,then therearecore instancesthatarerecognisableas such regardlessof the purposeof any law: see Schauer1991, p. 212ff. 4 See my "Gamesand the Law: Two Models of Institution"in ARSP (July 1999).
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ness must be placed there instead. If we then retain the original second part,i.e. the claim that in hardcases courtshave discretion, the incompatibilitybetween what we would then get and the core of Hart'sphilosophy of law (as identifiedabove) is evident:In this modified version, Hart'sview on hardcases would be: (i) a case is hardwhen the applicationof the (prima facie) law is deemed objectionable (i.e. when the primafacie solutionis such thatthe demand for appropriateness strongerthan the demandfor certainty);(ii) is when a case is hard,the law is unsettled,and the courtshave discretion. In short:when the applicationof an otherwiseclear legal rule to a case thatbelongs, so to speak, to its core of meaningproduces an objectionableresult, it is the law that there is no law on the subject. What the law is for the case depends upon what the law (i.e. the balance between predictabilityand appropriateness) ought to be for the case. When the (primafacie) law ought to be different, itis different.lex iniustanon est lex! Now, is this "ought"a moral "ought"?It might appearthat the answeris obviously yes: the point is why is predictability important, As andwhy shouldwe care aboutappropriateness. Raz has claimed, they cannot but be moral, since "thereis no otherjustificationfor the use of an autonomousbody of considerationsby the courts" (Raz 1993, p. 318). But we should be careful here. Hart is indeed careful not to talk of these values as moral values, at least in The Conceptof Law. And in "Positivismand the separationof law and morals"he is explicit in denying that this is a moral ought: "we shouldrememberthatthe baffledpoisonermay say, 'I oughtto have given her a second dose' " (Hart 1958, p. 70). Hartalso points out that "underthe Nazi regime men were sentencedby courtsfor criticism of the regime. Here the choice of sentence might be guided exclusively by considerationof what was needed to maintainthe state'styrannyeffectively"(ibid.). So Hartbelieved that the solutionto the conflict between approcan priatenessand predictability be based upon purelyinstrumental But considerations. the obvious questionis, what arethese considerfor. ations instrumental In the poisoner'scase, they are instrumental to achieve a goal previouslyand independentlygiven, i.e. to kill the to woman. In Nazi Germany,they "might"have been instrumental
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the independentlygiven goal of maintainingthe state's repressive apparatus. That the goal is previously given means, obviously, that there cannot be an instrumental "ought" before the goal has been specified. Therefore, when the applicationof the law is at issue, that goal cannot be something like "to follow the law", since the court is tryingto establishwhat the law is for the case (it would be equivalentto saying that the goal for the poisoner is to administer the poison, a goal that is useless as a guidance for the problemof how muchpoison "ought"to be administered). The important point is, how can the courtestablishwhat the goal is? Notice that the answer is not to be found in anotherrule of the system,because of the same reasonwhy Hartarguedthat"canonsof could not succeed in eliminatinguncertainty(1994, interpretation" p. 126): because those rules would also be subjectedto the problem. Still, is this a moral "ought"?I hope we can see now that we do not need a positive answer to this question (positive though I think the correct answer is). Hart's answer to the rule-scepticwas to claim that the applicationof rules to a majorityof cases does not call for "freshjudgement",with the obvious implicationthat the decision-makerdid not have discretionto solve those ("core") cases. But this is an answer that works only if the first version of the open texturethesis is accepted,since only this version does not make the characterisation a case as clear or harddependant of upon the very kind of judgementthat is supposedto be absentfrom one kind of cases. In the second version, however,since the distinction itself is basedon such a judgement,Hartis left with no answerto the or the rule-sceptic.Howevercontroversial uncontroversial decision to characterise case as "clear" "hard" a or it is a judgement mightbe, for the makingof which the courthas discretion.5
5 We could go furtherinto this point, though for the argumentpresentedin this article that is quite unnecessary.Hart's claim that the "ought"in question in instrumental achievingsome (independently mightbe an instrumental "ought", given) goal seems to leave him ratherclose to Dworkin:since what the goal is and how best to achieve it will determinehow the balancebetween predictability and appropriateness to be solved in the particular has case, whatthe law is for this case will dependon the identificationof that goal, and the chosen goal will have an impactupon the contentof the rules (rememberthat we cannotknow whether
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In brief, the fact that the law ought to be different sometimes makes it be different.In order to refer to what Hart called "fresh judgement" without giving the impression that too much argumentativeweight is placed upon its being a moral problem,I will use broaderexpressions, like Hart's quoted "freshjudgement",or "evaluative judgement"and the like. The tension between legal theory and legal reasoning is explained,at least in part,by a differencein perspectivebetween the two: when buildinga legal theory,what is at the centre of attention is a set of questionslike "whatis the law?""whenare we entitledto say thata legal system is valid (exists)?""howcan we know whether a particular is partof this or that(or of any at all) legal system?" rule (see Raz 1980, p. If, for a useful typology of the questions a legal theory must answer to be a "complete"legal theory). At this level it is hardto deny the differencebetween the law that is and the law that ought to be. The mere fact thatmany people can sensibly think the law of theirlandto be unjust,thatis, differentfrom whatit ought ideally to be, shows thatthereis such a distinction. But when the focus of the enquiryis shifted to legal reasoning, this clear difference is upset. It is still possible to apply a law that is differentfrom the law that ought to be, and many times judges decide one thing while at the same time they think that a different decision ought to have been but for the content of the applicable law.6 But we have seen that in order to apply the law, the judge has to decide how best to balance the values of predictabilityand in appropriateness the instant case. The obvious fact that judges are sometimes compelled to decide a case in a mannerthey think is not (morally) the best shows that the law does indeed pre-empt some substantiveissues that would otherwise be promptedby the case. But the equally obvious fact that a law does not exclude all the substantiveconsiderations(e.g. the considerationthat the man
the case is clear or harduntil we have solved this tension). This seems a different concept (see Dworkin 1986, p. 46ff). way of saying thatthe law is an interpretive 6 Hence the italicised last at the end of the paragraph eight paragraphs phrase back was, in a way, a rhetoricalexcess. But it was only exaggerated,not plainly false: sometimes laws that produce unfair or unjust results when applied to a particularcase are not laws for that case, and that suffices to put in question of the separabilitythesis, accordingto which from the fact that a legal solution is morallyobjectionableit does not follow thatit is legally mistaken.
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who shed blood in the streetsof Bologna was a barber,and that he was shavinga customer),even when it primafacie appearsto do so (Thus, for example, the Bolognese statutesaid that the words had to be taken literally,without interpretation: the case in Pufensee dorf 1688: 5.12.8, pp. 802-803 [547]) shows that there is more to the ascertainingof what the law is than getting the meaningright. And it is somewhatironic that Harthimself gave such an accurate descriptionof what this something else is, that is, the solution of a tension between the values of predictabilityof judicial decisions and their appropriateness the particularcase at hand. To repeat: to what the law is for the case cannot be known before deciding how the competitionbetween predictability appropriateness and ought to be resolved. One could, I suppose,insist on the idea thatthis is not a problem, and to do so one would have to arguethatan answerto the question "what is law"? does not have any consequences for an answer to thatof "whatis the law for this case?".If it could be arguedthatan answerto the firstquestiondoes not imply an answerto the second, this article'sargument would be conceptuallymistaken.And indeed, it has been claimed that "it has been a central presupposition[of that analytical jurisprudence] thereis a clear distinctionbetween the philosophicalquestion, "Whatis law?" and the lawyer's question, "Whatis the law for this or thatmatter?" (Marmor1995, p. v). Now, there is an obvious sense in which these are two different questions,i.e. in the same way that the question "Whatis cancer?" is differentfrom the question"Does this personhave cancer?".But this is not to say that an answerto the first questiondoes not imply (at least partof) an answerto the second, in the same way in which the answer to the first of Marmor'squestions implies (at least part of) an answerto the second (indeed,to say thatx has consequences for y assumes the existence of a [more or less] "cleardistinction" betweenx andy). One could claim, however, that the relation is not that close. ConsiderHans Kelsen's position:
This determination[of a lower-level norm by a higher-levelnorm] however, is
never complete [... ]. Even a meticulously detailed command must leave a number
of determinations those carryingit out. If official A ordersofficial B to arrest to subjectC, B must use his discretionto decide when where and how he will carry out the warrantto arrest C; and these decisions depend upon external circum-
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stances that A has not foreseen and, for the most part, cannot foresee (Kelsen 1934, p. 78). That a judicial decision is based on a statutemeans in truthsimply that the decision stays within the frame the statute represents,means simply that the decision is one of the individualnorms possible within the frame of the general norm, not that it is the only individualnorm possible (Kelsen 1934, p. 80. The passage remainsunalteredin the second edition of ThePure Theoryof Law).
One could understandKelsen here as saying that the Pure Theory of Law will never be able to answer "the lawyer's question"if that questionis "When,where and how shouldB arrestC?".But this is not to say thatthe answerto the firstquestionis not an answerto the second:in Kelsen's example,a completeanswerto the firstquestion (somethinglike "a legal system is the set of all the laws enactedby the exercise of powers conferred,directlyor indirectly,by one basic norm")7implies an answer to the second ("for this case, the law is that C should be arrestedby B, though the law does not specify precisely where, when or how"). It is not clear to me whether Marmor was claiming that for the analyticjurisprudence two questionswere differentin the sense that an answer to one did not imply an answer to the second, or only thatthey were different,withoutany furtherclaim. In the latter sense, he is surelyrightbut it would not be an objectionto my main argumentin this article;in the former,it would indeed be an objection but (I would claim) it would not be true as regards"analytic nor jurisprudence" would it be correctin its own terms.
DEDUCTIVE REASONING, CLEAR CASES AND LEGAL ARGUMENTATION
The challenge for a complete Hartian (-like) theory of law (that is, a Hartian(-like) theory of law and legal reasoning) is, then, to harmonisethese two perspectives,that of legal reasoning and that of legal theory.I want to considernow in some detail what is probably the most sophisticatedattemptto meet this challenge, i.e. Neil MacCormick's Legal Reasoningand Legal Theory.
7 This is Raz's version of what he calls Kelsen's "criterionof identity"(see Raz 1980, p. 95; and Kelsen 1934, p. 59ff).
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That MacCormick'sis an attemptto meet this challenge is clear from the new foreword of the paperbackedition, where he says that "the analyticalpositivist approachto legal theory espoused by Hartis open to challenge, and has been challenged, for an alleged inability to give a satisfactory account of legal reasoning, espeThis cially reasoning-in-adjudication. book took up that challenge" I (MacCormick1994, p. xiv). In particular, take his argumentation the role of deductive reasoning in law as constituting concerning the best available analysis of clear cases in the traditionof legal positivism. This is the reason why, before consideringMacCormick'sargument,it is necessaryto addressthe issue of syllogistic (or deductive) reasoningin HerbertHart'stheory of law. Harthimself sometimes showed little sympathy for the idea that legal decisions can be he reachedin a deductivemanner: arguedthat"logicis silent on how to classify particulars" (Hart 1958, p. 67). Commentingupon this and relatedpassages from Hart'swork,Marmorclaims thatnothing could be fartherfrom Hart'smind than the idea of the application of a rule to a clear case being a matter of logic or analyticity.8 Defending Hart, Marmorhas claimed that "it is easily discernible that whatever it is that connects a rule to its applicationcannot consist of logic [... ]"9 and he then argues,
as Hart put it, "logic is silent on how to classify particulars" it is precisely but this classificationto which his distinctionbetween core and penumbrapertains. In otherwords,we mustkeep separatewhatmightbe called "rule-rule" "ruleand world"relations;logic [... ]10 pertain[s]only to the former,not to the later kind of relation(Marmor 1994, p. 128).
And he concludes by saying that "neitherHartnor any other legal positivist must subscribeto the view that the applicationof legal rules is a matterof logical inference"(ibid., at 128).
8 As we shall see, MacCormickdoes not mention the idea that the judicial syllogism is analytic.Of course it is, but this is not to say that it is "analyticity" (or "logic")whatconnects a rule to its application.I will arguethatwhatconnects a rule to its applicationis logic plus the distinctionbetween core and penumbra. For this reason,I will follow MacCormickin not discussingthis at all in termsof analyticity. 9 omitted. Following the previousnote, "andanalyticity" 10 "And omitted. analyticity"
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Marmoris rightwhen he claims thatthe distinctionbetween core and penumbrais not a matterof logic, but let us ask the question: importantfor Hart?"And the answer "why is the core/penumbra is: because, in addition to the existence of a core and penumbra of meaning for most (all) concepts, Hart claimed (at least in the of traditionalinterpretation the open texturethesis) that a state of affairsconstitutesa clear legal case when in some of its descriptions it is encompassedby the core meaningof some applicablerule, and hardotherwise.It is with this furtherclaim thata space for logic and deductivereasoningappears:to put it in Marmor'sterms, once the of relationrule-worldhas been settled, once the particulars the case have been recognised to be in the core of meaning of the relevant words, then all that is left is to performa syllogism.11This is so because when the relation "rule-world" been establishedthen has a relation between rule-rule has to be established, i.e. a relation between a generalrule (like "it shall be a misdemeanour, punishable fine of ?5, to sleep in any railway station")and a particular one by ("the defendantshould pay ?5") has to be established.Logic does not answer the question of whether a Cadillac is a vehicle; this is somethingthatfollows from the very meaningof "vehicle",in such a way thatnot to see this is to show plain ignoranceof English. But once thatquestionis answered,logic (in the positivistview) mustbe able to answerthe questionof whetherthatCadillacis to be allowed in the park.12
significantdifferencein the way in which logical languageis used and lawyers:for the latter"syllogism","deduction" "logic"are, and by logicians while for the latterthey arequite different(however broadlyspeaking,synonyms, related)things. See Kneale and Kneale (1962). I will follow the lawyers' usage. 12 To see thatMarmor'sclaim thatHartdoes not "subscribe the view thatthe to of legal rules is a matterof logical inference"(Marmor1994, p. 128) application is simply false all one needs to do is to read the passages in which Harttalked abouthardcases, in orderto see what is theirimplicationfor clear cases: "human inventionand natural variants processescontinuallythrowup such ["penumbral"] on the familiar ["core"],and if we are to say that these ranges offacts do or do not fall under existing rules, then the classifier must make a decision which is not dictated to him [... ]" (Hart 1958, p. 63); "If a penumbraof uncertainty must surround legal rules, then their applicationto specific cases in the penumbral all area cannot be a matterof logical deduction, and so deductive reasoning [... ] cannot serve as a model for whatjudges, or indeed anyone, should do in bringing 11 Thereis a
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A Theoryof Legal Argumentation a Theoryof Legal Reasoning? or Neil MacCormickbegan his Legal Reasoning and Legal Theory
of witha forceful for argument theimportance syllogistic reasoning in law,thatis, for the idea thatmodus in alonecan render, ponens Withthisclaimhe faced somecases,fullyjustified legaldecisions. thechallenge those(he didnotgive references thispoint)who of at wouldliketo denythis:
If this denial [of the possibility of legal reasoningbeing deductive] is intended in the strictestsense, implying that legal reasoningis never, or cannot ever be, false. It is solely deductivein form,thenthe denialis manifestlyanddemonstrably sometimespossible to show conclusively that a given decision is legally justified by means of a purelydeductiveargument(1994, p. 19).
The importanceof this claim shouldbe by now evident.If it can be shown that in some cases at least legal reasoningcan be solely and
to in strictlydeductive form,thenall thatwill remain be doneis to do in chapter of his book)the 3 tries specify(as MacCormick to Oncewe know andlimitsof deductive reasoning. presuppositions wouldbe freeto saythatthose and thesepresuppositions limits,we fail casesin whichsomeof thosepresuppositions (orthosecasesthat arebeyondsuchlimits)arehardcases, wherethereis no difficulty of at all to acceptthatthe question whatthe law is for the case (or better: be) canbe linkedto thatof whatthelaw oughtto be for will if it. This is the reasonwhy MacCormick's argument, successful, of couldbe usedto defenda positivist theory lawlike Hart's. with some detailit Beforeexamining MacCormick's argument wouldpay,I believe,to pausefora whileon whatprecisely is that it was is whenhe saysthattheDanielsdecision MacCormick claiming in manner. justified a deductive thesis is open to an This is important becauseMacCormick's that interpretation wouldmakeit trivial.Indeed,we shall see that his MacCormick himselfsometimes seemsto understand argument in thisway. of Fora start, consider Robert Alexy'stheory legalinterpretation
as set out in his A Theoryof Legal Argumentation (1989). In it, he
particularcases under general rules. In this area men cannot live by deduction alone"(ibid., at 64; all the italics here are mine).
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from "external" begins by distinguishingwhat he calls "internal" justification:

Legal discoursesareconcernedwith thejustificationof a specialcase of normative statements,namelythose which expresslegal judgments.Two aspectsof justification can be distinguished:internaljustificationand externaljustification.Internal justificationis concernedwith the question of whetheran opinion follows logically fromthe premissesadducedas justifying it; The correctnessof the premisses is the subject-matter the externaljustification(Alexy 1989, p. 221). of
For Alexy, the problemof internaljustificationis that of deductive reasoning: "problems associated with internal justification have been widely discussed underthe heading 'legal syllogism'" (Alexy 1989, p. 220). Now the importantpoint here is that no decision is fully justified if it has not been externally and internallyjustified. For the externaljustification,non-deductivereasoningis typically needed. Once the premisses have been (externally)justified (using whatever criteria is used to justify premisses: consequential reasoning, purposive interpretation,authority reasons, etc), then it is possible to say that the decision is fully justified if it follows in a formally valid mannerfrom those (externally)justified premisses.13 Notice that for Alexy (unlike MacCormick)the requirementof thejustificationbeing deductivehas nothingat all to do with the fact of the case in which it occurs being clear or hard. The difference will usually lie on the fact that the (external)justification of the premisses will normally be more controversialin hard cases than in clear ones; but however controversialthe externaljustification of the premisses is, once they have been justified, then the internal justificationtakes over in the same way for one case or the other. aimed at Thus, in the context of a theory of legal argumentation, establishing"how fully to justify a legal judgement"(Alexy 1989, p. 2), deductivereasoningis to be used in every case.
Example: In Hart's case of the electrically propelled toy car and the "no vehicles in the park"rule, the premise "a toy car is a vehicle" would have to be justified accordingto the requirements externaljustification.But once that of question is settled, all that is left is to deduce from the statement(thusjustified) "this toy car is a vehicle" and the rule "no vehicles in the park",the conclusion thatthis toy car is not allowed into the park. 13
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We can now see how MacCormick'sthesis can be trivialisedby takingit to meanonly thata formof deductivereasoningis somehow for important legal reasoning.In any case syllogistic reasoningcan play a part. To see this imagine the motherof all hard cases, then settle (accordingto your moralor legal intuitions)the controversial aspects of it and on you go! You are now ready to solve the case with "syllogisticreasoningplaying a role". These arethe reasonswhy I believe this is not a correctinterpretation of MacCormick'sclaim. But if this interpretation incorrect, is To thenhow are we to understand MacCormick's argument? answer this questionwe can turnto JosephRaz's distinctionbetween what he calls the "narrow" the "wide"versions of the sources thesis and (Raz 1985, pp. 214-215). The wide sources thesis "claimsthat the truthor falsity of [pure and applied] legal statementsdepends on social facts which can be establishedwithoutresortto moral argument"(Raz 1985, p. 214). In these cases, all that is needed to solve the case is to find the applicablerule(s), and establishthe relevant facts, while the narrowsources thesis is silent concerningapplied claim, as his analysis legal statements.I believe thatMacCormick's of Daniels makes clear, is precisely that sometimesthe justification of a legal decisioncan be purelyandwholly deductivein form,andit can be presentedas a syllogism which featuresas majorpremisses only legal rules (and as minor premisses only statementsof fact): "all of the majorpremisses involved in the argument[in Daniels], not all of which were expressly stated, are rules of law for which can contemporary authority be cited"(MacCormick1994, p. 29) or, as he claimsjust a couple of pages below,
It will be observed that in the above analysis of the argumenteach stage in the argumentis a valid hypothetical argumentthe premisses of which are either statementsof propositionsof law which at the materialtime were true for legal purposes,or findingsof fact which are also for legal purposestakento be true,or intermediate conclusionsderivedfrom such premisses(MacCormick1994, p. 32; my italics).
Thus MacCormick'sargumentis not one aboutwhat makes a legal justificationa good and completeone, as Alexy's was, but aboutthe existence of some cases that can be solved in a deductivemanner using as premisses only statementsof propositionsof law and find-
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ings of fact. About,I believe we could now say, the truthof the wide, and not only the narrow,version of the sourcesthesis.14 Actually, later in the book MacCormickseems to acknowledge that in the first sense (judicial syllogism as internaljustification) "moments"of deductivereasoningexist even in hard cases, which are characterised the fact that "deduction comes in only afterthe by of the argument,settling a ruling in law, has been interestingpart carriedout"(MacCormick1994, p. 197). In Alexy's terms,the internaljustificationstartsoff only afterthe externaljustificationhas taken place, since only after the external justification (what MacCormickat 197 calls "settling a ruling in law") the major premisses to be used by the internal justification will be found. MacCormick's claim in chapter 2 of Legal Reasoning and Legal Theory,then, amountsto saying that in some cases no externaljustificationis needed beyond that provided by whathe calls "thefundamental "thoushalt judicial commandment": not controvertestablishedand binding rules of law" (MacCormick 1994, p. 195). These are the cases that in jurisprudential jargon are called "clear"cases, the cases that Hartdistinguishedon the basis that in them, rules can be applied without courts being required to make what he called "a fresh judgment"(Hart 1994, p. 135): I take "withoutthe need for freshjudgement"to mean here "without premisses needing external justification (beyond MacCormick's judicial commandment)".15 This mightseem an instanceof labouringthe obvious, andindeed I thinkit is. My only justificationfor it is thatMacCormickhimself sometimes equivocatesbetween the trivial (deductionhas a role to play in legal justification) and the important(some cases can be decided following a strictly syllogistic line of reasoning) claims. I
To go back to Hart'sexample (supra,n. 13): if I want to drivewith my FIAT Regattathroughthe parkin orderto enjoy the view while I am driving(or to save a couple of minutes from my journey,etc), it would still be true that, in Alexy's termsthe premise"thisFIATRegattais a vehicle"calls for (external) justification. But the whole point of Hart's distinctionbetween core and penumbrawas that any challenge to the statement:"thisFIATRegatta... etc" would be regardedas lack of masteryof the word "vehicle",to clarify which only conceptualor verbal considerations(if any) are useful. 15 For the meaning I am ascribingto the phrase "freshjudgement"see supra, at 7.
14
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will come back to this point lateron in this article(infraat 18f), but for the time being suffice it to comparethe two following statements by MacCormick:
[S]ome people have denied that legal reasoning is ever strictly deductive. If this denial is intended in the strictest sense, implying that legal reasoning is never, or cannot ever be, solely deductive in form, then the denial is manifestly and demonstrablyfalse. It is sometimes possible to show conclusively that a given legal decision is legally justified by means of a purely deductiveargument (MacCormick1994, p. 19, my italics). [D]eductivereasoningfrom rules cannot be a self-sufficient,self-supporting, mode of legal justification. It is always encapsulatedin a web of anteriorand ulteriorprinciplesand values, even thougha purelypragmaticview would reveal manysituationsandcases in which no one thinksit worththe troubleto go beyond the rules for practicalpurposes(MacCormick1994, p. xiii, my italics).
Daniels v Tarbard We are now ready to examine MacCormick'sexample of a case in which a purely syllogistic justificationof the decision is possible. His example was Daniels and Daniels v R. White & Sons and Tarbard (1938 4 All ER 258). Though MacCormickhas made this case famous, it seems appropriate give a brief descriptionof its to facts:Mr Daniels boughta bottle of lemonade(R White'slemonade) in the defendant's(i.e. Mrs Tarbard's) pub.He took the bottlehome, where he and Mrs Daniels drankfrom it. As a consequence, they both became ill, because (as was proven later) the lemonade was with carbolic acid. Mr and Mrs Daniels sued heavily contaminated the owner of the pub and the lemonade's manufacturer. While the latter was absolved from liability, the former was held liable and orderedto pay damagesto the (first)plaintiff.MacCormick'sclaim is thatthe court'sdecision follows in a deductivemannerfrom these facts plus the legal rules as they were in 1938. could As a matterof fact (of logic, rather), however,MacCormick not have shown that the court's reasoning in Daniels was strictly deductive without using the relationshipof material implication, "D". "D" is used instead of "if in any case ...then ..." (1994, p. 29).16 But legal rules do not rule for all cases, even if their
16 MacCormick probablydoes not mean materialimplicationin its technical
sense. In symbolic logic, (p D q) "is trueif "not-por q" is true.But "not-por q" is
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language may induce one to think they do. They do not rule "in all cases, if... then ... ", but "if in normalcases ... then ... ". This controversialagainstMacCormick, point should not be particularly who has always believed that legal rules rule for "normal" cases, the establishingwhat is to be "presumptively" case (MacCormick MacCormick 1974: 71; see also MacCormick1995). Furthermore, explicitly rejects in his book the move made by some authors,of explaining defeasibility on the basis of moral disagreementabout the issue of whether or not the law should (moral "should")be applied. He thinks that in those kinds of cases what is at issue is not whetherthere are moral reasons to breakthe law, but what the law actuallyis:
[A] positivisticdescriptionof the system as it operatescannot answera particular kind of questionwhich may be raisedinternallyto a legal system: the questionas it mightbe raisedfor a judge in a hardcase: "Whyoughtwe to treatevery decision in accordancewith a rule valid by our criteria of validity as being sufficiently justified? and that is a question which can be, and from time to time is, raised [...]. For my partI should be reluctantto treatsuch questionsas being non legal as simplybecause of a definitionalfiat[...]. To treatsuch arguments ideologicalbut-not-legal(which is what Kelsen and, in effect, Hartdo) on a priori grounds seems to me unsatisfactory" (MacCormick1994, p. 63; only the fourthitalics are mine).
as To put it in the wordsused above:if rules areunderstood referring to normalcases, then they simply cannotbe appliedwithouthaving previouslyestablishedthat the case is normal. It is still possible to say (with Kelsen and Hart) that as a matter of law all cases are normal (or, what amounts to the same thing, that legal rules are, accordingto the law, to be appliedto all, insteadof normal,cases), but this implies a definitionalfiat that begs the question: the fiat
truein any one of the following cases: (1) p is trueand q is true;(2) p is false and q is true;(3) p is false and q is false [... S]o long as p is false, no matterwhatq is, "pimplies q" is true;and so long as q is true,no matterwhatp is, "qis impliedby p" is true (Cohen and Nagel 1934, p. 127). This is because "materialimplication is the name we give to the fact that one of a pair of propositionshappensto be false or else the otherhappensto be true"(ibid. at 128). But MacCormickwants to say, I believe, that (p D q) means something else, to wit, that because of p then q. MacCormickmentions this problem, and claims that "nothingturns on that"(MacCormick1994, p. 28n). I take him to be offering an stipulationof the meaningof "D", so thatit means "if in any case p, then (because of p) q" (notice the important in any case"). "if
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of saying that according to the law legal rules are to be applied to all cases (or that according to the law all cases are normal), however absurd the result might turn out to be. Only after this fiat will the decision not to apply the law because of these absurd one. outcomesbecome an "ideological-but-not-legal" MacCormick is reluctantto endorse this solution, and hence he is committedto claim that, as a matterof law (and not as a matterof ideology or morals) legal rules apply to normalcases (indeed, this is the view thatMacCormick presentlyendorses:cf. MacCormick1974, 1995). But if MacCormickaccepts that laws are to be understoodas referringto normal, instead of all, cases, then it is difficult to see how can he claim that that the decision in Daniels was strictly and liable "withsome regret, solely deductive.Lewis J held Mrs Tarbard who is a perfectly innobecause it is ratherhardon Mrs. Tarbard, cent person in the matter"(cit. in MacCormick 1994, p. 21). He for thoughtthe applicationof the law to be inappropriate the case. It is easy to see why: Lewis J assumedthat in a civil liability case it is normally the case that if the defendantis "a perfectly innocent person in the matter" judgement should not be passed against him or her. In other words, the "innocence"of the defendant is usually a relevantsubstantiveconsideration.Because in the court's the understanding rules excluded this consideration,their application to this particularcase producedsome inappropriateness: they demandedjudgement to be passed against a "perfectly innocent was not, in Lewis J's view, person". But this inappropriateness importantenough for the need for predictabilityto be waived.17 In other words, he took the rules as being formal enough to of trump the inappropriateness finding against a "perfectlyinnocent"party,this considerationnot being strongenough to make the case "abnormal". This "freshjudgement"was, for Kelsen and Hart (as MacCormicksays) not requiredby the law: it was "ideologicalbut-not-legal".But MacCormicksensibly rejects this position as based upon a definitional fiat that effectively begs the question.
It must be borne in mind that I have legislated above (at n. 1) the meaning of "predictability", such a way thatit encompassesall the values that standfor in a formalisticapplicationof a legal rule. Predictabilityin its non-stipulated sense is normallythe most important them (hence the stipulation),but it need not be of the only one.
17
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Hence, for MacCormickthis "freshjudgement"is legal, i.e. what the law is for the case cannot be known before it is made. Therefore MacCormick'ssyllogism will not be formally valid unless it is stated as a premise. This can clearly be seen when attentionis translation the court'sdecision into logical of paid to MacCormick's notation: (16) If a seller has broken a condition of a contract which he was requiredto fulfil, the buyer is entitled to recover damages from him equivalent to the loss directly and naturallyresultingto him from the seller's breach of the condition; In the instantcase, the seller has brokena conditionof the contractwhich she was requiredto fulfil; .'. In the instant case, the buyer is entitled to recover damages from her equivalent to the loss directly and naturallyresultingto him from the seller's breach of the condition(MacCormick1994, pp. 31-32).18
(15) (17)
This is translatedas (the left column is MacCormick's,while the of rightone containsmy translation MacCormick'slogical notation back to English, according to his stipulationson pp. 23 and 28f, which I will use thereafter): (16) (15) (17) y Dz y .'. z. (16) In any case, ifythenz; (15) In the instantcase, y; (17) Thereforein the instantcase z
MacCormickis clearly correct in claiming that (17) follows from (16) and (15). But the point is that (16) is not a correct description of the law as it was at the time, and we have already seen
18 MacCormick's complete syllogism is considerablylonger (cf. 1994, p. 30ff). The objection I am presentingnow could, however, be directed against any of its parts, therefore it is enough for me to quote a section of the reasoning. It is also worth noticing that though MacCormicknow believes that a judicial syllogism like Daniels's should be representedusing predicateratherthan propositionallogic, I have retained MacCormick'soriginal representationof it (see MacCormick1994, p. xv; MacCormick'schange of mind was promptedby White 1979).
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that MacCormickelsewhere in the book (and in other writings, most notably, 1974, 1995) agrees with this. If we correct (16) by the introducing idea of "normalcases", we would get (16') (15) (17) In normalcases, if y, then z; In the instantcase, y; Thereforein the instantcase, z.
And this is not a valid deductive argument:to be one it needs a furtherpremise: (18) The instantcase is a normalcase
MacCormick'spreferredoption (that legal rules establish what is to "presumptively" be the case) makes this problem even more noticeable.For consider: z; (16") If y, then presumptively (15) In the instantcase, y; (17) Thereforein the instantcase, z. Again, (17) does not follow. Whatdoes follow is z. (17") Thereforein the instantcase, presumptively But (17") does not, of course,justify a legal decision. It does not tell anybodywhat the law is for the instantcase: it only states what the law "presumptively" is. What MacCormickcalls "the pragmaticsof law" (1994, p. xiii; 1995) would not be of much use here. "Arule thatends with 'unless ...' is still a rule", of course, but it cannot be applied unless the is exceptionalcircumstance not present.The rule mightbe such that the "default" position is that the exception does not exist, but even in this case the justification would, from a logical point of view, be incomplete (i.e. invalid)if this circumstanceis not asserted.For consider,
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(16'") (15'") (17'")
In any case, if y, then z, unless the court is satisfiedof

w;
In the instantcase, y; Thereforein the instantcase, z.
Again, (17"') fails to follow. For the argumentto be formallyvalid, a premiselike the following is needed: (19) w has not been proven (or: "the court has not been satisfiedof w").
Following Hart, we have already seen that "w" here stands for of a fresh judgement to the effect that the inappropriateness the applicationof the rule to the particularcase is importantenough to for the demandfor predictability be waived. As a premise,therefore, (19) is neither a rule of law nor a statementof fact, but an evaluativejudgement:"in this case the result offered by the rule is or not inappropriate, at least not to a significantextent". In other even in as clear a case as Daniels and even assuming that words, the court has the obligation to apply the law, no decision can be reached in a syllogistic mannerusing only rules of law and statements of fact as premisses. The fact thatthe absence of w need not be argued, importantas it is from a pragmaticpoint of view (no externaljustificationis needed to regardit as absent)is immaterial from a logical point of view.19 In short, the only way in which MacCormick's claim could succeed is assuming the definitionalfiat he (rightly, in my view) rejectsin chapter3.
19 Cf. MacCormick 1994, 29, where MacCormick rightly points out that p. to the premisses stated by Lewis J a furtherone should be added, one "which is so trivially obvious that its omission from the express statementsof Lewis J is scarcely surprising- namely that the transactiondescribedin (i) above was intendedby each of the partiesto be a purchaseby Mr.D. FromMrs. T. and a sale by her to him".Maybe the premisethatstatesthe normalityof the instantcase (or thatthe presumptionin favourof the solution offered by the rule accordingto its meaning is not defeated in the instantcase) is equally trivially obvious in many cases, but as MacCormick recognises the fact thata premiseis "triviallyobvious" for does not meanthatit is not required the formalvalidityof the inference,though it might very well mean thatthe courtis justifiedin not statingit.
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Now, it could be arguedthatI have missed the point, thatthe fact case at hand is one that the rule should be appliedto the particular of the presuppositions(and it thus constitutesa limit) of deductive justification.In Legal Reasoning and Legal Theory,MacCormick of says thatone of the presuppositions legal reasoningis that
every judge has in virtue of his office a duty to apply each and every one of those rules which are "rulesof law" wheneverit is relevantand applicableto any case broughtbefore him. And that formulationreveals a second presupposition, withoutwhich the term"duty" would lack identifiable reference:thatit is possible for the judge to identify all those rules which are "rules of law" (MacCormick 1994, p. 54).
Hence, the counter-objectionwould continue, if it is doubted whetherthe rule should be applied to this particular case, then we are going beyond one of the limits of deductive reasoning, while MacCormick'sthesis was meant for those cases in which those presuppositionsare satisfied. But this cannot be an answer to my claim, since I am assumingthatthe court objectionto MacCormick's has to applythe law; what I am contestingis thatin findingwhat the law is for the case, the court will necessarily have to assume that if the case is "normal" rules like those in Daniels are to be applied as they were in that case. This, again, could be used to defend MacCormick'sposition only if one were to adoptthe solution that MacCormickis reluctantto adopt,i.e. if one were to claim that the rule applies to all cases as a matterof law, howeverjustified (from an "ideological-but-not-legal" point of view) the court might be in not applying it to the particularcase. Only given that assumption MacCormickcould say that the process of finding a solution is (or can in some cases be) deductive:given the relevantrules as they were in 1938, and the facts of Daniels as they were provenin court, the conclusioncould be reachedin a deductivemanner. the same By token, however,he would have to say that given Pufendorf'sreport of the Bolognese law (and the facts as he told them), we could reach the conclusionthatthe barberhad to be punishedin the same deductivemanner. Whatwe would addin the lattercase wouldbe an to argument the effect thatpunishingthe "ideological-but-not-legal" barberis too absurdfor the courtto do it. MacCormick'sargument cannot succeed without this a priori distinctionbetween the legal andthe ideological, a distinctionthathe himself thinksis unjustified.
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Since MacCormickhimself rejects this distinctionwe need not discuss it here.20What interestsme here is to point out the incompatibility of MacCormick'slegal theory with his account of legal We reasoning.21 know thatLegal Reasoning and Legal Theorywas meant to be a Hartianexplanation of legal reasoning. Hence, it had to claim that some cases were in a Hartiansense clear, that is, their outcome could be determinedaccordingto the rules alone (that is the gist of Hart's criticism of rule-scepticism). If those cases are completely determinedby the rules, it must be possible to reconstruct justificationof a solutionto them accordingto the the deductivemodel. Thatis to say: if it is the case that
the life of the law consists to a very large extent in the guidanceboth of officials and private individuals by determinaterules which, unlike the applicationsof variablestandards, not requirefrom them a freshjudgementfrom case to case do (Hart1994, p. 135)
then in those cases the court's decision can be representedin a syllogistic way, in which the only presuppositionneeded (along with statementsof fact and of legal rules) is that the law ought to be applied, in which no premise containinga "freshjudgement"is needed for the formal validity of the inference. This is the significance of MacCormick'sargumentin Chapter2 of Legal Reasoning and Legal Theoryas an analysis of clear cases accordingto Hart. But in the following chapters,in which he undertookto build up a theory of legal reasoning, he was driven to positions which are incompatiblewith the claims of the (legal) theory. Thus, when discussingthe issue of clear and hardcases, he starts by noticing that "in truth there is no clear dividing line between clear cases and hard cases" (MacCormick1994, p. 197). There is a spectrumof cases, ranging from the hardestto the clearest, and
20 See my "Gamesand the Law"cit. supraat n. 4. 21 I am legal theoryas it can be found in Legal referringhere to MacCormick's Reasoning and Legal Theory.His position is nowadaysdifferent:"[I] no longer accept nearly as much of his [i.e. Hart's] theses about law as I did in 1978" (1994, p. xv). My own comments aboutLegal Reasoning and Legal Theoryare not to be seen as a criticismof MacCormick'slegal theory,since (I would claim) his later work can accommodatemost of the claims made here, but about the tension between the perspectivesof legal theory and legal reasoning, a tension thatpermeateshis argumentas originallypresentedin 1978.
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acrossthatspectrum"it could neverbe judged more thanvaguely at doubtscould become significantenough what point"interpretative court to have discretion.Now instead of offering (like Hart for the a with his open texture thesis in its first interpretation) value-free test to distinguisha clear from a hardcase, he finds the explanation cases in "differat of this uncertainty the divide between clear/hard in the dominantstyle of differentperiodsin the historyof legal ences systems"(1994, p. 198). Lateron we are told that"whenwe talk of differencesbetween judicial styles [... ] what we are talking about is or includes the degree of readiness which a judge manifests to that [i.e. permitthatpresumption the presumption "obviousmeaning to shouldbe preferred"] be overridden" (1994, p. 207). In this view, how pressing the absurdityof the result produced case shouldbe for the by the applicationof the rule to the particular in judge to permitthe presumption favourof the obvious meaningof the wordsto be overridden not somethingthe rule can settle;it is a is and problemgeneratedby the conflictingdemandsof predictability a case cannotbe decidedbeforedecidingwhetherit appropriateness; will be treatedas a "normal" case (and given - and excluding- this decision a deductivejustificationcould be reconstructed) as one or in which substantive considerationsshow thatthe case is abnormal, thatis, is one in which the presumption must be overridden. To emphasise:if what makes a case clear ratherthan hard (and vice-versa)is ajudgmentaboutthe rightbalancebetweentwo values (i.e. a freshjudgment),then at least some (I would say: all, but all I to need for the argument standis to say "some")hardcases are hard because they ought to be so. The only reason,I submit,why MacCormick thinkshe can claim both that the decision in clear cases can be justified in a syllogistic manner (using as premisses only statementsof fact and of legal rules) and thatrules apply only to normalcases (or thatthey establish only what is to be "presumptively" case) is that he (as we the betweenthe two differentclaims identified alreadysaw) equivocates above concerning what we could call the "deductiveelement" in legal reasoning. MacCormick'sargumentwas originally presentedagainst those who held the thesis that "legal reasoning is [n]ever strictly deductive"(1994, p. 19). We are told thatif this denial "is intended
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in the strictest sense, implying that legal reasoning is never, or cannot ever be, solely deductive in form, then the denial is manifestly and demonstrablyfalse. It is sometimes possible to show conclusively that a given decision is legally justified by means of a purely deductive argument"(1994, p. 19). Later in the book, however, chapter 2 was supposed to have been directed against "thosewho deny that deductivelogic is relevantto the justification of legal decisions" (1994, p. 45), and in the new forewordto the 1994 paperbackedition the argumenthas definitely changed:now denials by learned persons that it is presented against "recurrent the law allows scope for deductivereasoning,or even logic at all" (1994, p. ix). In the same piece MacCormickseems to reject his own claim that "it is sometimes possible to show conclusively that a given decision is legally justified by means of a purely deductive when he now claims that"deductive reasoningfromrules argument" cannot be a self-sufficient,self-supporting,mode of legal justification. It is always encapsulatedin a web of anteriorand ulterior reasoning from principles and values [...]" (1994, p. xiii; all the are italics in this paragraph mine). In my opinion, the quotations from the new foreword reflect MacCormick's present view of the "centrality of deductive in reasoningfor legal reasoning"andthey have to be understood the light of Alexy's distinctionbetween externaland internaljustification. So understood,the claim refers to the possibility of translating a given decision in syllogistic terms as being usually the clearest and safest way to check whetheror not the decision was fully justified, whetheror not issues requiringexternaljustificationhad arisen (and if they had, whetheror not they were settled accordingto the of requirements the externaljustification). in this sense chapter 2 does not answer the challenge to But legal positivism it was designed to answer. If it is to provide an answer,it has to be taken as meaning that sometimes it is possible for legal decisions to be fully justified througha syllogistic chain of reasoningthat uses only statementsof fact and of legal rules as premisses. Only in this sense the thesis would imply, if correct,the rejection of the argumentpresentedup to now. Only in this sense could it help Hart to show that in some cases no fresh judgement is needed for courts and officials to apply the rules. But for this
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to argument work,an a priori distinctionhas to be madebetweenthe and the ideological. Since MacCormickis unwilling to make legal this ad hoc distinction,the argumentfails to prove that sometimes and legal decisions can be "purely" "solely"deductivein form.
The reasonsfor consideringin some detailMacCormick's argument were, as statedabove, not only concernedwith the intrinsicvalue of it; it also helps us illustratethe contemporary predicamentof legal theory: dependingupon the perspectiveadopted at the beginning, one can reach, following naturaland plausible steps, incompatible conclusions. When MacCormickadopted the perspective of legal theory, that is, the perspective of an enterprisedirected to understandingwhat law is, when a legal system exists and the like, he was drivento the Hartianview that sometimesrules are there, so to speak, and can sometimesbe "straightforwardly" applied. When he adopted the perspective of legal reasoning, that is to say, one that tries to understandhow the law is applied (to my knowledge, his book is still one of the few, not to say the only one, self-avowedly positivist work in which the discussion of decisions given in actual cases plays a crucialmethodologicalrole) he could not live up to that: the conclusions for legal reasoning that would follow from the "legaltheory"thesis arejust too implausible,too ad hoc. I wantto claim thatthis is not a problemof MacCormick'salone. This problemappearsin one way or anotherin the work of many of the most sophisticatedauthorswritingtoday on legal theory.I want to end this article by showing that this is also the case concerning the place of legal reasoningin JosephRaz's recentwork.
LEGAL REASONING, RULES AND SOURCES
Contraryto what one could guess, Raz believes that "commitment to the sources thesis does not commit one to formalism or to the autonomyof legal reasoning"(Raz 1993, p. 317).22
Raz here means by 'formalism" the thesis that "the art of legislation, and more generally law-making, is that of moral reasoning. But legal reasoning is
22
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In 1985, however, Raz presentedan argumentthat could easily lead one to believe thatthe sourcesthesis impliedindeed some form of autonomyfor legal reasoning.There Raz distinguishedbetween of two interpretations the sourcesthesis:
Let us distinguish between what source-basedlaw states explicitly and what it establishes by implication. If a statute in country A says that income earned abroadby a citizen is liable to income tax in A, then it only implicitly establishes that I am liable to such tax. For my liability is not stated by the statutebut is inferredfromit (and some otherpremises).Similarly,if earningsabroadare taxed at a differentratefrom earningsat home, the fact thatthe proceedsof exportsales are subjectto the home rate is implied ratherthan stated.It is inferredfrom this statuteand otherlegal rules on the location of varioustransactions. The two examplesdifferin thatthe statementthatI am liable to tax at a certain rateis an appliedlegal statementdependingfor its truthon both law andfact. The statementthatexportearningsare taxed at a certainrate is a purelegal statement, depending for its truth on law only (i.e. on acts of legislation and other lawmaking facts). The sources thesis as stated at the beginning can bear a narrow or a wide interpretation. narrowthesis concernsthe truthconditionsof pure The statementsonly. Pure legal statementsare those which state the content of legal the law, i.e. of legal rules, principles,doctrines,etc. The wide thesis concernsthe truthconditionsof all legal statements,including applied ones. It claims that the truthor falsity of legal statementsdependson social facts which can be established withoutresortto moral argument(1985, pp. 214-215).
Using Raz's language, legal reasoning is reasoning about which appliedlegal statementsare true (or valid). Underthe narrowinterpretation, therefore, the sources thesis is silent concerning legal reasoning, since it is silent concerning applied legal statements. Since in 1993 we find him categorically saying that the sources thesis does not commit one to the autonomyof legal reasoning,we would be forced to understand as an endorsement the narrow, that of of as opposed to the wide, interpretation the sourcesthesis. But actually, for Raz the wide and the narrow versions of the sources thesis stand together, at least if moral facts are not contingent:
All the argumentsso far concern the narrowsources thesis only. Nothing was said aboutits applicationto appliedlegal statements.I tend to feel that it applies to them as well, since they are legal statementswhose truthvalue depends on reasoning about the law as it is. As such it is free from any infection by moral reasoning.One can reason morallyaboutlegal reasoningbut not in it, not as part of it" (Raz 1993, p. 314).
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contingentfacts as well as on law. If one assumes thatcontingentfacts cannotbe moralfacts, then the sourcesthesis applies here as well. Thatis, what is required is the assumptionthat what makes it contingentlytrue that a person acted fairly on a particular occasion is not the standardof fairness, which is not contingent, but the "brute fact"thathe performeda certainaction describablein value-neutral ways. If such an assumptionis sustainablein all cases, then the sources thesis holds regardingappliedlegal statementsas well (1985, p. 218).
In brief:the narrowversion,togetherwith the claim thatmoralfacts are not contingent, imply the wide version and the wide version implies the autonomy of legal reasoning. Since Raz wants to say today that the sources thesis does not imply the autonomyof legal reasoning it would seem as if he owes us an explanationof how moralfacts are contingent. I believe, in fact, that the narrowversion cannot fulfil the role Raz expected the sources thesis to fulfil. Indeed, what are we to make of Raz's statement(1985, p. 218) that "all the argumentsso far concern the narrow sources thesis only"? The "argumentsso far"were advancedto claim that only if the law complies with the sources thesis can it have authority.The reason for this was that authority-capacity requiredthe two non-moralfeaturesof authoritative directives,and thatthey in turnrequiredthe sources thesis. Let directivescan us focus uponthe second feature,i.e. thatauthoritative be identifiedand their content ascertainedwithoutusing evaluative directivewas considerations(the first one was that an authoritative to reflect someone's view on the balance of applicable supposed The answeris: because reasons).Why was this conditionrequired? if it were not met the would-be directive would fail to be able to fulfil its function,and subjectswould fail to be able to be benefited by the existence of the authority:the subjects "can benefit by [the authority's]decisions only if they can establishtheir existence and contentin ways which do not dependon raisingthe very same issues is which the authority thereto settle"(Raz 1985, p. 203). Only if this directivebe able condition is met would an allegedly authoritative to comply with the normaljustificationthesis. But at the end of the so article we are told that the "arguments far"concern the narrow version only, with the obvious implication that authority-capacity
requires only the narrow sources thesis. This means that the argu-
even ment turnsout to be that the law can have authority-capacity if the wide sources thesis is untenable,that is, even if subjectscan
569
neverget any "appliedlegal statement" withoutraisingall the moral considerationsthat were pre-emptedby the authoritative directive, even if the authorityis fully legitimate. In other words: if we accept Raz's claim that "all the arguments presented [in the first four sections of 'Authority, Law and concern the narrowsources thesis only" the authoritaMorality'] tive natureof law ceases to be an argumentfor the sources thesis. For consider:Raz claims that "a decision is serviceable only if it can be identifiedby means otherthanthe considerationsthe weight and outcome of which it was meant to settle" (Raz 1985, p. 203). Serviceable for what? For the parties to be able to act upon the decision rather than their own judgement. But to be serviceable in these terms what is requiredis the wide sources thesis, i.e. that is (providedthatthe authority legitimate),subjectscan stop thinking directiveand aboutthe substantive problembehindthe authoritative If simply do as it commands.23 this cannotbe done no authoritative directivecan ever comply with the normaljustificationthesis. But the distinction between the narrow and the wide interpretations of the source thesis was not mentionedby Raz in 1993. Is Raz's "TheAutonomyof Legal Reasoning"a rejectionof it? We are not given an answerto this question. InsteadRaz offers two differentreasons why legal reasoning is not autonomousfrom moral reasoning:the first has to do with the fact that, "if our sole concern is to work out what ought to be done in orderto obey the intentions,purposesor goals of the law-makers, we will often find ourselves faced with conflictingdirectives"(Raz 1993, p. 315). In this case, a choice is necessary, and the choice cannot be guided by source-basedconsiderations.It follows that they have to be moral considerations.24But this in turn is not argumentfor the compatiblewith the thrustof the authority-based
23 NB: the argumentis silent regardingwhat shouldthe subjectsdo. It does not
claim thatthey shouldfollow the authoritative directive,only thatif thatwere the case it would be possible for them to do it. If it is possible for subjectsto comply with the directives,then this implies (at least following Raz's theoryof authority) that it is possible for them to take them as protectedreasons, i.e. as reasons for action that also exclude otherconflictingreasons. 24 Raz claims thatnon source-based cannotbutbe moralconsidconsiderations erations,"forthere is no otherjustificationfor the use of an autonomousbody of considerationsby the courts"(Raz 1993, p. 318). Thereforethe question of the
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was thatif the authoritative sourcesthesis. Recall thatthe argument directives claim legitimate authority,it follows that they can have it If authority. they can have authority, follows thatthey mustposses one the non-moralconditionsfor havingauthority, of which was that the subjects must be capable of establishingthe directives' "existence and content in ways which do not depend on raising the vary is sameissues which the authority thereto settle"(Raz 1985, p. 203). But now Raz seems to be claimingthatwhen applyingsource-based materialour "sole concern"is not to applythe directivesthus recognised, but to decide "what ought to be done in order to obey the Raz seems to be intentions,purposes,or goals of the law-makers". claiming that our sole concern should be that of second-guessing the authority,going beyond the meaning of the directive to check whetheror not thatmeaningis a correctreflectionof the authority's "intentions,goals and purposes".But we should not second-guess if the authority, the sourcesthesis is true.25 Let me pause for a while on the meaning of the "should"that appearedin the last sentence. Since we are consideringwhetheror not legal reasoning is autonomousfrom moral reasoning,it seems here to understand "should" its moralsense. Last this in appropriate last paragraph's sentence, so understood,assumesthatthe authority is legitimate. Needless to say, in many situations this will not be the case. Sometimes the authoritywill be a de facto authorityand courts will have no reason at all to follow its directives.But this is immaterial to the discussion of the autonomyof legal reasoning, since,
autonomyof legal reasoningcan only be the questionof its autonomyfrom moral reasoning. 25 Raz could claim here that I missed the point, which is the fact that the law of conflictingvalues [... ] due to the fact that [it] is a product displays "plurality of human activity"(Raz 1993, p. 315n). But consider a case like Fuller's men sleeping in the station (see Fuller 1958). Here it might well be the case that thereis a "plurality conflictingvalues"(select the pair of your choice: predictof ability againstappropriateness, keepingrailwaystationsclean againstfairness,or but the fact is, the source-basedmaterialdoes offer a solution: fine whatever), the first man and acquit the second. The problem created by the "pluralityof conflictingvalues"will only be seen by the courtif the courtdoes precisely what it is not supposedto do, i.e. if it "raisesthe very same issues which the authority is thereto settle"(cf. Raz 1985, p. 203). No conflictis evidentif the courtfollows the law as identifiedaccordingto the sourcesthesis.
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from Raz's point of view, this is a moral question ("how,all things considered,should the courts decide the case?"), which is different from the legal question ("how, according to law, should cases be decided?").The fact that courts sometimes have the moral duty to authoritative directivesdoes not show anythingaboutlegal disregard since thatis a questionaboutwhetheror not the law ought reasoning, to be applied,while legal reasoningdeals with the questionof what is the law for the case (Raz 1993, p. 312). If this is the only way in which moralreasoningand legal reasoningare connected,the latter could still be autonomousfrom the former. But Raz wants to deny this, since he wants to claim that "legal reasoning is an instance of moral reasoning".Thereforehe has to show why legal reasoningis moralreasoning,even when the question of whether or not the law should (morally) be applied is not taken into account.To do this he distinguishesbetween "reasoning about the law" and "reasoningaccording to law". The first (i.e. aboutthe law") "is governedby the sourcesthesis"(Raz "reasoning 1993, p. 316), hence if we restrictour view to it an autonomousform of legal reasoningwill appear.But we should not leave the second aspect of legal reasoning, i.e. "reasoningaccordingto law" aside, and once we pay attentionto it, Raz tells us, we shall realise that moralreasoning"(Raz 1993, it is "quitecommonly straightforward p. 317). Thatreasoningaccordingto law is differentfrom reasoning aboutthe law is shown by thatfact that
The law itself quite commonly directs the courts to apply extralegal considerations. Italian law may direct the courts to apply Europeancommunity law, or international law, or Chineselaw to a case [... ]. In all these cases legal reasoning, understoodto mean reasoningaccordingto law, involves much more thanmerely establishingthe law (Raz 1993, p. 317).
This might be so, but that does not show that legal reasoning is a form of moralreasoning.The most it could show is thatItalianlegal reasoningis a form of Europeanlegal reasoning(not thatthis makes any sense). So let us consider whetherlegal referencesto morality ratherthanto Chinese law would fare betterfor Raz. Wouldthe fact thathere andtherea legal systemmay containreferencesto morality show thatlegal reasoningis a form of moralreasoning? I hope the answer to this question is evident: insofar as particularrules makereferencesto morality,then "reasoning accordingto
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law" is more than "reasoningabout the law". But this argumentis not enough to prove that "legal reasoning is an instance of moral reasoning"any more that the fact that sometimes engineers should consider aesthetic considerationsmakes engineering-reasoning an instanceof aestheticreasoning. In brief, Raz does not want to draw the implications of his legal theory for legal reasoning.He tries to show that the sources thesis does not commit one to the thesis of the autonomyof legal reasoning,and to say so he has to make space for somethingto be left afterthe existence and contentof the source-basedmaterialhas been established.In the end, he can only come up with the small space providedby the fact thatsometimesthe law instructscourtsto and applyextralegalconsiderations he offers this as a groundfor the grandthesis that legal reasoningis moral reasoning.My argument all along has been that this latterclaim is indeed true, and because this is the case anythinglike the sourcesthesis cannotbut be false. To make this point clearer,let me consider a more recent effort by Raz to show thatthe sourcesthesis does not commit one to what In (in 1993) he called "formalism". "On the Nature of Law" (Raz 1996) he triedto defend his legal positivism againstthe chargethat it misrepresents legal reasoning.The "standard objection",he says, to it when its implicationsfor legal reasoningare drawn,is that
would we not expect two clearly separate stages in legal reasoning: an stage anda (purely)moralone? Firstone would establishwhat interpretive-factual laid down law says on the issue at hand, and then either it does authoritatively not provide a determinatedisposition of the issue, or if one wants to determine whetherthe way it disposes of the issue is morally acceptable,one would move to the second purelymoralstage in the argument. fact we do not find thatlegal In divides in that way. Legal reasoningdisplays a continuitythroughall reasoning its stages (Raz 1996, p. 19).26
To show how this objection actually reinforces ratherthan refutes his
views on the natureof law, Raz invites us to considerinterpretation

incidentallyairs some doubtsas to what he sees as the tacit assumption of this objection:"I believe that this point is overstated,and that legal reasoning is not all of a kind"(at 19). The objection,however,does not need to assume that "legal reasoningis all of a kind".Indeed, I believe (thoughI cannot defend this point here) thatinsofaras he defendsthe wide sourcesthesis it is Raz, andnot the objector,who would be committedto the doubtfulthesis that legal reasoningis all of a kind. But I will not pursuethis issue. 26 Raz
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of in the arts.A good interpretation a play or of a piano sonatais, he that an interpretation combines traditionwith innovationin tells us, the right way, and because of this reason there cannot be a general A defies generalisation. theory "innovation theory of interpretation: of originality,in the sense we are considering, is self-defeating" (Raz 1996, p. 20). What the objection points to, says Raz, is that a theoryof legal reasoningwould be requiredto explainhow best to combine "thetwo aspects of legal reasoning.On the one hand legal standards, reasoning aims to establish the content of authoritative on the otherhand, it aims to supplementthem, and often to modify them, in the light of moral considerations" (Raz 1996, p. 19). But how this combinationshould be achievedis not somethingthat any theorycan answer,hence the fact thatpositivismcannotoffer a such a "self-defeating" theorydoes not show it to be a defective theoryof law. Let us go along with Raz's thesis thattherecannotbe a theoryof and because "tradition" "originality" defy generalisainterpretation tion. Before he can use this argumentto supportlegal positivism, however, he has to show why "originality"is importantin legal reasoning. Instead of explaining this, however, he shows how this is is the case when what is being interpreted a piano sonataor a play and then immediately(and rathersurprisingly) claims "henceits he in law" (Raz 1996, p. 20).27 I do [i.e. interpretation's] importance not want to express here an opinion on the subject of the similaribut ties and differencesbetween artisticand legal interpretation, it cannotgo unnoticedthat,fromRaz's point of view thereis a crucial difference:law has authority.Thatthe law has authority implies, we must remember,for Raz that
courts will not entertainmoral argumentabout the desirability of regardinga certainfact (e.g. a previous enactment)as a reason for a certain action but will once the existence of the relevant fact has been established through morallyof says: "The same is true of interpretations plays or paragraph of other literaryworks. A work can be understoodand (in the case of a play) performedas a celebrationof the naturalworld, or as a utopian reflections on social ideals. Or it can be seen as an explorationof the rift between generations Here again, different, or alternativelyas a crisis of adolescence and immaturity. can even contrastinginterpretations be consistentwith the original.Interpretation and is the activity which combines reproduction creativity.Hence its importance in law" (Raz 1996, p. 20). 27 The whole
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neutralargument hold it to be a reasonwhich they are boundto apply (Raz 1980, p. 214).
And this in turnmustmean,if anything,thatcourtsarenot supposed to "combineoriginalitywith tradition" when they are applyingthe law, they are simply supposedto identify the existence and content of the directives and then apply them. In short, Raz's claim that legal reasoning has two dimensions can help him only if he begs the whole issue, which is precisely that the sources thesis does not allow for legal reasoningto display those two dimensions. Raz Indeed,why shouldlegal reasoningbe interpretive? answers:
The explanation in the authoritative lies natureof law:Whentryingto establishthe legal statusof an action, we need to ascertainwhetherany of the authoritatively bindingrules and doctrinesbearon it andif so how. Thatmeansestablishingwhat has been done by the authorities,what decisions they have taken and what they mean"(Raz 1996, p. 19).
But, unless Raz wants to claim that ascertainingthe meaning of an authoritativedirective (or its existence as such) is impossible without consideringthe moral reasons it purportsto adjudicate(in which case that authoritativedirective would paradoxically lack the "authority-capacity"), mere fact that legal reasoning is about identifyingthe existence and ascertainingthe content of authoritative directives does not imply that legal reasoning must have two aspects. If we rememberthe importanceRaz placed on the nonmoral conditions for authoritycapacity (see Raz 1985) I suppose we could be temptedto say thatprecisely because legal reasoningis directivesthere are and what they mean it about what authoritative cannotbe moralreasoning. Towardsthe end of the articlewe are remindedthat
the prominenceof interpretive reasoningin legal reasoningresults from the fact that in law the two aspects of legal reasoning, that is establishing the content of authoritativelyendorsed legal standardsand establishing the (other) moral considerationswhich bear on the issue, are inextricableinterwoven(Raz 1996, p. 22).
But were not these "other" considerations pre-empted the authorby laid down directives? Had we not been told before (in itatively Practical Reason and Norms)thatfrom the legal point of view legal "all rules are standards of which the primaryorgans[i.e. courts]are
575
bound to act on to the exclusion of all other conflicting reasons" (Raz 1992, p. 143, my italics)? If the sources thesis is correct, legal reasoning cannot display these two aspects,becauselegal rules wouldpre-emptall the considerationsthatwould constitutethe second aspect.It can, of coursebe the case that once the content and existence of those directiveshas been establishedthe differentquestionof whetheror not they ought but (morally)to be appliedcan be entertained, this could not be legal reasoning:it would be moralreasoningsimpliciter.And here we go back to the objectionRaz tried to answer.He thoughtthathe could answerthe objectionsimplyby pointingout thatno theorycan solve the problemof how best to combine traditionand innovation.But if I am correct, he has to explain why does legal reasoning displays those two aspects to begin with. Respondingto an objectionraised by GeraldPostema (Postema 1996), Raz has recently made another importantconcession to defend the sources thesis and to deny that it implies some form of for "autonomy" legal reasoning:he now "reject[s]any thesis of the autonomyof legal reasoning,at least if thatincludes anythingmore thanreasoningto the conclusion that the contentof the law is suchand-such [... N]o such reasoningcan by itself supportany judicial decision in common-lawcountries"since there courts can resortto a numberof "devicesto ensurethatthe law as appliedto the case is not unjust"(at 4). Here the wide version of the sources thesis seems to be clearly abandoned. this concession has anotherimportant But consequence. to Raz, "by the sources thesis courts have discretion According when requiredto apply moral considerations"(Raz 1979, p. 75). Hence what we are effectively being told here is thatcourts(at least in "commonlaw countries")is that courts always have discretion. One wondershow can this fit with Raz's own theoryof authority. Indeed,when presentingthattheory,in TheMoralityof Freedom, Raz did answer an objection that seems similar to the point under discussionhere. The objectionclaimedthat"inevery case authoritaor tive directivescan be overridden disregarded they deviatemuch if fromthe reasonsthey aremeantto reflect".This could be one way of describingthe positionof commonlawjudges accordingto Raz. But in TheMoralityof FreedomRaz saw thatsuch a concession "defeats
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the pre-emptionthesis since it requiresevery person in every case to consider the merits of the case before he can decide to accept an authoritative thus denying that authoritative direcinstruction", tives "can serve the mediatingrole assigned to them above" (Raz 1986, p. 61). In this way Raz might be able to defend the sources thesis, but at the cost of giving up his theory of authority.And if the theory of authorityis given up, there seems to be little reason not to confine the sources thesis to an updatedversion of Ihering's
Begriffshimmel.28
REFERENCES and Translated Neil MacCormick by Alexy, R., A Theoryof LegalArgumentation. RuthAdler (Oxford:ClarendonPress, 1989). Bankowski,Z., Ian White and Ulrike Hahn,Informaticsand the Foundationsof Kluwer, 1995). Legal Reasoning(Dordrecht: Cohen, M. R. and E. Nagel, An Introductionto Logic and Scientific Method (London:Routledgeand KeganPaul, 1934). and Coleman,J., "Authority Reason",in George,ed. (1996). Dworkin,R., "Is Law a System of Rules?"(1967), in Summers,ed. (1968). Dworkin,R., Law's Empire(London:Fontana,1986). Flew, A., ed., Logic and Language(Oxford:Basil Blackwell, 1951). Fuller,L., "Positivismand Fidelity to Law: A Reply to ProfessorHart",Harvard Law Review71 (1958): 630-672. Fii3er,K., "Farewellto Legal Positivism",in George,ed. (1996). George,R., ed., TheAutonomoyof Law (Oxford:ClarendonPress, 1996). Between Law andMorals"(1958), Hart,H. L. A., "PositivismandThe Separation in Hart(1983). Hart,H. L. A., "Ihering'sHeaven of Conceptsand Modem AnalyticalJurisprudence"(1970), in Hart(1983). and Press, Hart,H. L. A., Essays in Jurisprudence Philosophy(Oxford:Clarendon 1983). Hart,H. L. A., The Conceptof Law (Oxford:ClarendonPress, 1994). (1900). Ihering,R., Scherzund Ernst in der Jurisprudenz Kelsen, H., Introductionto the Problems of Legal Theory (Oxford: Clarendon Press, 1934). Press, Kneale,W. and M. Kneale, TheDevelopmentof Logic (Oxford:Clarendon 1962). MacCormick,N., "Law as InstitutionalFact", in MacCormickand Weinberger (1986). 28 Ihering1900; see Hart 1970.
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MacCormick,N., Legal Reasoning and Legal Theory(Oxford:ClarendonPress, 1994). MacCormick,N., "Defeasibility in Law and Logic", in Bankowski et al., eds. (1995). An MacCormick,N. and 0. Weinberger, InstitutionalTheoryof Law (Dordrecht: Kluwer, 1986). and Marmor,A., Interpretation Legal Theory(Oxford:ClarendonPress, 1994). A, Marmor, ed., Law and Interpretation (Oxford:ClarendonPress, 1995). Patterson,D. M., ed., Wittgensteinand Legal Theory (Boulder, Co: Westview Press, 1992). Postema, G. J., "Law's Autonomy and Public PracticalReason",in George, ed. (1996). Press, Pufendorf,S., TheJureNaturaeet GentiumLibri Octo (Oxford,Clarendon 1934 (1688)). Raz, J., TheAuthorityof Law (Oxford:ClarendonPress, 1979). Raz, J., The Conceptof a Legal System(Oxford:ClarendonPress, 1980). Law and Morality"(1985), in Raz (1994). Raz, J., "Authority, TheMoralityof Freedom(Oxford:ClarendonPress, 1986). Raz, J., Raz, J., Practical Reason and Norms (Princeton:Princeton University Press, 1992). Raz, J., "Onthe Autonomyof Legal Reasoning"(1993), in Raz (1994). Raz, J., Ethics in the Public Domain (Oxford:ClarendonPress, 1994). Raz, J., "On the Nature of Law", Archivfur Rechts- und Sozialphilosophie82 (1996), pp. 1-25. Schauer,F., Playing by the Rules (Oxford:ClarendonPress, 1991). Shiner,R. A., "TheAcceptanceof a Legal System",in Patterson,ed. (1992). Summers,R. S., ed., Essays in Legal Philosophy(Oxford:Blackwell, 1968). in Waismann,F, "Verifiablity", Flew, ed. (1951). Neil MacCormick's White, P., "Review(of Legal Reasoningand Legal Theory)", 78 (1979), pp. 737-742. MichiganLaw Review Facultyof Law Universidadde Talca P.O.Box 747 Talca Chile (E-mail:fatria@pehueuche.utalca.cl)

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Legal Reasoning and Legal Theory Revisited Author(s): Fernando Atria Source: Law and Philosophy, Vol.

LEGAL REASONING AND LEGAL THEORY REVISITED (AcceptedMay 20, 1999)

)? 1999 KluwerAcademicPublishers. Printed in the Netherlands.

And if we were to follow his advice,

DEDUCTIVE REASONING, CLEAR CASES AND LEGAL ARGUMENTATION

from "external" begins by distinguishingwhat he calls "internal" justification:

(16'") (15'") (17'")

In any case, if y, then z, unless the court is satisfiedof

In the instantcase, y; Thereforein the instantcase, z.

To show how this objection actually reinforces ratherthan refutes his

views on the natureof law, Raz invites us to considerinterpretation

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