PROBLEMS OF JUDICIAL REASONING IN CIVIL LAW AND COMMON LAW SYSTEMS: SOME REFLECTIONS ON JULIUS STONE'S APPROACH

by Jerzy Wroblewski 1

IntroductionContemporary legal theory and philosophy of law

expresses a definite tendency towards a multidimensional approach to law and to the legal sciences. Law istreated as a multidimensional complex phenomenon, and the legal sciences are expected to approach the law taking into account its different aspects. This situation metatheoretically is described as multidimensionality, viz. as the approach to law and to the legal sciences combining the logico-semiotical, sociological,psychological and in some conceptions also the axiological dimension. This essay does not attempt to present all theories expressing the multidimensional approach which imply, however, very controversial and difficult problems of the ontological complexity of law, and which influence the epistemology and axiology of law, and the methodology of the legal sciences.

Julius Stone's approach to law is clearly multidimensional. It is so in spite of his reluctance to define the law and treating its definition as a "mnemotechnical device". The multidimensional approach is patent from the conception expressed in his Province and Function of Law with the significant sub-title Law as Logic, Justice and Social Control. This conception is further developed ,in the trilogy Legal System,. and Lawyers' Reasonings, Human Law and-. Human Justice.-- and Social Dimensions of Law~and Justice. One can, thus, in spite of the lack of an explicit discussion of multidimensionality in Stone's work, identify his approach with the general trend towards complexity and multidimehsionality of approach to law which is expressed in so many and so different trends of contemporary legal thought.

In the various theories accepting the complexity of law, the logico-semiotical methods and techniques for its * 2 3

1. University of Lodz, Poland. *2 J. Wroblewski, "Ontology and Epistemology of

Law",(1973) 4 Rivista intern. di filosofia deldiri11 o; idem,"Problems of Ontological Complexity of Law", (1986) 3 Theoria-segunda epoca and lit.cit.

3 J. Stone, Legal System and Lawyers' Reasonings, Stanford, 1964, p. 184 and ch. 5 sec. 6.

4. Sydney, 1946, reprinted 1950, 1961.5. J Stone, Legal System, supra n.36. Stanford, • 19657. Stanford, 1966

study are almost universally taken into account Although the law is not thought of as a set of norms treated exclusively as a linguistic phenomenon, as was the case in Kelsen's normativism, at least a part of this complex phenomenon consists of linguistic expressions which semantically and/or pragmatically are defined as norms.

The study of norms and of legal reasoning is, therefore, a standard part of the multidimensional approach to law, although the role of the issues dealt with on the logico-semiotical level within the whole framework of a theory varies depending on the particular theory, and in this respect there are relevant differences between the various ideas of complexity.

Stone extensively deals with legal reasoning ^nd one book of his trilogy is devoted exclusively to it. His approach to legal reasoning, and especially to the correctness of this reasoning in judicial decision­making, is the recurrent topic of his research, centred mostly on common law judicial decision-making as a result of legal reasoning.

My contention is that some of Stone's ideas concerning common law decision-making can be applied also to judicial reasoning in the statutory/civil law systems, and could be linked with ideas concerning the relevant features of legal language (fuzziness, contextuality) and with the discussion concerning their impact on the approach to legal reasoning.

The growing rapprochement between common law systems and statutory/civil law systems, as far as contemporary comparative law is concerned, is obvious. On the one hand, there is the growing role of statutes within the common law systems linked with the activity of statute­making parliaments and the use of law as an instrument of social control in an interventionist state. On'the other hand, the role of judicial decisions in statutory/civil law systems is acknowledged and taken into account both in the practical functioning of decision-making agencies, in spite ^f the lack of the institutionally binding precedent, and as relevant for the law-maker. It is a

8 About logico-semiotical approach cf. J. Wroblewski,"Justification of Legal Decisions", (1979) 127 Revueintern, de philosophic. repr. in idem. Meaning and Truth in Judicial Decision. 2nd edn, Helsinki 1983* and lit. cit.

9 Cf. Stone's last book, Precedent and Law.Butterworths, 1985, where the common law issues arediscussed, developing the ideas of Legal System.

10. J Wroblewski, "The Concept and Function ofPrecedent in Statute Law Systems", (1979) VIIArchivum Iuridicum Cracoviense. repr in idem. Meaning. supra n 8

necessary element of legal science's research dealing with the valid law operative in the society.

. Contemporary research on the logico-semiotical level extensively deals with legal language issues and links the fuzziness and contextuality of legal language with the basic features of legal reasoning. The dichotomy of fomalism and ahti-formalisra clearly expressed in the theories and ideologies of legal reasoning and of judicial application of law, historically patent in the opposition of positivism and the free-law movement, actually is linked with the features of the language in which legal reasoning is formulated. And this is ultimately the basis of views concerning the problems of correctness of legal reasoning and the criteria of a right decision.

These introductory observations justify the scope of the present essay. I will deal with three groups of problems:(I) the fuzziness of legal language and legal reasoning;(II) logic and transformation in legal reasoning;(III) the correctness of legal reasoning and the "one right decision" issue.

I. Fuzziness of Legal Language and Judicial Reasoning.The paradigm of legal reasoning is judicial

reasoning, and the language relevant for itscharacterisation is the language in which the rules the judge is expected to apply are expressed. Forstatutory/civil law systems it is the language in which statutory rules applied by the courts are formulated. I make the assumption that the features of this legal language are among the factors determining the features of legal reasoning. Legal language is one of the languages related with law. There are also other languages in question, inter alia the language in which the judicial decisions are formulated (juridicaloperative language), or the language used in legal science (juridical doctrinal language). Instatutory/civil law systems, however, the features of the legal language play the crucial role.

The open question is whether and how the features of this language can be applied to juridical operative language which plays the decisive role in common law. My hypothesis is that there are relevant analogies between them, because Stone's observations concerning common law judicial reasoning are correlated with the features of judicial reasoning in statutory/civil law systems linked with the features of legal language.

Legal language is treate^as a species or "register" of natural, common language. For our purposes it is sufficient to observe that common language inter alia is described according to its syntactic, semantic and pragmatic features, although there are many other ways to deal with this language. '

Legal language, according to the prevailing opinion, has no specific syntactic features in comparison with the natural language; it has, however, some semantic and pragmatic peculiarities. The links between pragmatics and semantics in natural language are very strong, and it is an open question what are the relations between meaning and use for that type of language. Semantics of the language deals with the meaning of its signs, and pragmatics with its uses.

Legal language is created by the law-maker for practical purposes. He aims at channelling human behaviour as a means for achieving his purposes, and has a dilemma to solve. On the one hand, the legal language has to determine with sufficient precision complex organisational structures, or (sometimes highly complicated) patterns of due behaviour. On the other hand, the law-maker is interested in the communicability of his law, i.e. in its being understood by the law- addressees. The former need pushes towards creating an artificially strict and precise language, the latter towards using the natural common language. The law­maker's choice is a compromise differentiated in various areas of legal regulation in particular legal and socio­political contexts.

For the discussion of the fuzziness of legal language it is sufficient to use a referentially conceived semantic approach linked with a typology dividing languages into hard, soft and fuzzy languages, and on this basis to explain the fuzziness of legal language relevant for legal reasoning in judicial decision-making. The typology of hard, soft and fuzzy languages is made by singling out the decidability of the question whether a part of reality x belongs or does not belong to a linguistic class A singled out in the given language as a name or description. Whether this is decidable is determined by the rules of sense of the language in question. 11 * 13

11. E.g. T. Gizbert-Studnicki, "Die Rechtspsprache aus soziolinguistischer Sicht", (1984) 15 Rechtstheorie.and lit. cit. _

12 E.g. G. Ryle, "Use, Usage and Meaning", in G.H.R. Parret (ed.), The Theory of Meaning. Oxford 1978, ch V; W.P. Alson, "Meaning and Use", in ibidem ch. VII.

13. For the fuzziness issue cf J Wroblewski, "Fuzziness of Legal System", in Essays in Honor of K. Makkonen, (XVI Oikeustiede Jurispridentia), 1983,and lit cit .

A hajrd language is defined as a language in which for'“each x it is true either that x belongs to A or that it does not belong to A In a soft language, for each x it is not true that either "x belongs to A" is true or that its negation is true. A fuzzy language is defined by stating that for some x the conditions defining a hard language are fulfilled, but for some x the conditions defining a soft language are fulfilled.

Natural, common language is a fuzzy language. For any x there are, therefore, three possibilities. There are some x used in situational contexts where linguistically it is certain that x belongs to A (positive core reference). There are some x for which there is no doubt that x does not belong to A (negative core reference). There are some x for which one cannot decide whether x belong to A or does not belong to A (semantic penumbra). (I exclude the syntactic fuzziness of the natural common language, because it is not necessary for the present argument.)

Legal language is also a fuzzy language. This is clearly seen in the practical use of this language in judicial decision-making. It is sufficient to single out easy and hard cases in reference to the problems of legal operative interpretation, i.e. interpretation in the process of the application of law. In easy cases an interpretative doubt does not arise because the facts of the case belong either to the positive or to the negative semantic core, taking into account the linguistic, systemic and functional context.

The hard cases deal with the penumbra zone. The judge, even with the best linguistic competence, cannotdecide the problem of the "proper .meaning" of A inreference to x using only linguistic directives of sense. In this situation of doubt and linguistic undecidability x belongs to the sphere of vagueness or "hedge" of A. The doubts (and this is peculiar for legal interpretation) can be based not only on the features of the legal language itself, when it uses vague or evaluative terms (e.g. due process of law, fairness, good faith), but also because the direct linguistic meaning leads to contradiction or incoherence in the legal system, or to decisions which are thought of as unjust, instrumentally wrong or simply bad or wrong.

Stone did not use the analysis of fuzziness of legal language or of the language of precedent decisions. I think, however, that his analysis of illusory and/or indeterminate reference and of several kinds of competing references etc., are characteristic for the penumbra zone - 14

14. J Wroblewski, "Legal Language and Legal Interpretation", (1985) 4 Law and Philosophy.

II. Legal Reasoning: Logic and TransformationDealing with legal reasoning it is of the highest

importance to single out the context of discovery and the context; of justification. Notwithstanding a discussion whether the oppos^L±ion of these two contexts is relevant for all problems, it seems'that it is important to keep these contexts separate in dealing with any legal reasoning, and especially with judicial reasoning.

Legal reasoning in the context of discovery concerns the process of reaching a decision, or the heuresis of legal decision. There are empirical psychical data to be gathered, described and explained on a psychological and/or sociological level of inquiry. Legal reasoning in the context of justification deals with arguments used to support a judicial decision. In our culture it is expected that judicial decision is a justified, or at least justifiable, decision, i.e. supported by proper arguments. The nature of these arguments and of justificatory of a decision one is interested in arguments as reasons of decision, not in the psychology or sociology of decision-making. Justification deals with logical sensu largo issues but not with psychological or sociological ones. In the following I will deal with legal reasoning in the context of justification.

There is a controversy concerning the logical nature of legal reasoning. The controversy is partly due to the lack of clarity of the term "logic” and "legalreasoning", and is also connected with the controversial choices of the ideology of judicial decision-making. There are controversies concerning the use of the terms "logic", "formal logic" and "non-formal logic". Although eventually one has to decide the issue by aterminological convention, there is at stake a deep background of the ideas of rationality and its scope in relation to practical and/or legal discourse. The discussion between the "formalist" and "anti-formalist" logic is linked with the controversies which are terminological, or decided in either descriptive or evaluative fashion in a chosen language.

Moreover, from a metatheoretical point of view, the term "legal logic" covers three types of logic, which I name "logic of justification", "logic of heuresis" and "systemic logic". The first deals with justificatory 15 1615. E.g. J. Wolenski, "Context of discovery, context of

justification and analysis of judicial decision­making", in A. Peczenik & J. Usitale (eds), Reasoning on Legal Reasoning. Vammala, 1979.

16. For general discussion cf J. Wroblewski, "Logique juridique et theorie de 11 argumentation de Chaim Perelman", in G Haarscher & L. Ingber (eds), Justice et argumentation, Bruxelles 1986 and lit cit

reasoning, the second with reasoning as an instrument of decision-making, and the third with relations between norms (rules) in a legal system or with their elements.

The ideological aspect of the controversies in question concerns the problem whether judicial decisions ought to be in some sense logical or not, which implies a definite relation of the decision to the applied rule and presupposes an idea of the proper functions of a judge, thought of in terms of the relation between application and creation of law by the judge, and an institutional position of the court. Ideological standpoints influence theoretical and terminological options, and the ways of describing realities of judicial heuristic and justificatory reasoning.

Without discussing these controversial issues of legal logic I restrict my observations to justificatory reasoning. There is a variety of judicial decisions singled out in^the theoretical analysis of judicial decision-making. From the point of view of legal procedure a "decision" means a "final decision", i.e. a decision disposing of the case in a given instance. But this final decision is a result of preceding "partial judicial decisions" which justify it.

The partial decisions in question are decisions of validity, decisions of interpretation, decisions of evidence, decisions of the choice of consequences, and one could add also a "meta-decisions of sources". I can neither describe nor analyse the justifications of these decisions presented in their normal formulas in the present essay.

The common features of these justifications are their presuppositions and the general schema of justification. The rule-presuppositions1 concern the fuzziness of legal language, some properties of legal rules and of the legal system. There are further fact- presuppositions dealing with the existence and characteristics of nature, society, and human beings. Last but not least there are value-presuppositions dealing with the role of values in justification and some characteristics of their sets which are thought of as legal axiology. These presuppositions are implied in justifications made in practice and/or reconstructed according to theoretical models of a justified decision.

The general formula of a justified judicial decision is presented in the following scheme: * 18

17 J. Wroblewski, "Paradigms of Justifying Legal Decisions", in A. Peczenik et al (eds), Theory of Legal Science. D. Reidel, 1984.

18. J Wroblewski, "Presuppositions of Legal Reasoning", in E Bulygin et al (eds), Man, Law and Modern Forms of Life. D Reidel, 1985

194

Decisionrules of justificatory reasoning____

axiological]*. premisses

.values in law/ legal axiologyothervalues

ideological

19There are five levels of justification. JjL, deals with the coherence between the premisses accepted by the decision-maker and the decision (internal justitication). J2 deals with the acceptability of the premisses of the decision, i.e. with the soundness of the epistemic and of the axiological premisses from the point of view of the controlling agency. J3_ deals with acceptability of the rules of justificatory reasoning used by the decision­maker according to the paradigms accepted by the controlling agency. J2 and J3 are the elements of external justiciation of the decision, and are institutionally used when the judicial decision is controlled e.g. by appeal, revision, cassation etc. J4 deals with the presuppositions of internal and external justification, and the basic groups of these presuppositions were mentioned above. J5 deals with the basic choices which cannot be further justified within a given discourse, but are given and could be, eventually, explained by e.g. shared "forms of life". J4 and J5 are the object of scientific and/or philosophical reflection but do not function on the institutional level of the operation of law.

Justificatory reasoning 2gould be treated as a pars :oto of legal reasoning. This is why the analysis

of justificatory reasoning is so relevant, and why legal reasoning is treated from the point of view of the context of discovery. There are two main models of justificatory reasoning linked with the formalist and non-formalist controversy, viz. the deductive model and19" J. Wroblewski, "Livelli di giustificazione delle

decision! giuridiche", in L. Gianformaggio & E. Lecaldano (eds), Etica e diritto. Roma-Bari, 1986.

20 J. Wroblewski, "Towards Foundations of Judicial Reasoning", in W. Karwietz & R. Alexy (eds), Metatherle 1uristischer Argumentation, Berlin, 1983. Taking judicial reasoning as paradigmatic leaves out, however, the differences between legal reasoning in legal doctrine, cf. eg A. Aarnie, R Alexy, & A. Peczenik, "The Foundation of Legal Reasoning", (1981) 12 Rechtstheorie; A Aarnie, On Legal Reasoning, Turku, 1977, part III

the transformation model The formal deductive model of justificatory reasoning treats the rules of justification as a deduction This implies the applicability of proper logical calculi to judicial justificatory reasoning. Taking into account the varieties of judicial decisions it is patent that the reasoning in question is highly complex. One can search for a combination of aletic logic, modal logic, deontic logic, and of logic of norms, if any. There are more or less sophisticated combinations of various sytems of formal logic, but it seems highly doubtful whether hie et nunc one can find a formal logical calculus which would satisfy the needs of legal justificatory reasoning in its whole complexity.

But the thesis of the applicability of formal calculi to justificatory reasoning, making it deductive, had and in part still has some protagonists. Begriffsiurisprudenz, various forms of positivistic mechanical jurisprudence coupled with the ideology of the bound judicial decision, are obvious examples. On the levels of theory and ideology this approach has been criticised by Stone as ’’legal formalism" (Legal System ch. 6 sections 6-8). It seems that the crucial argument is the role of the choice of the premisses and not the rules of the justificatory reasoning which are in practice simple, though logically problematic.

The role of premisses, and especially of axiological premisses of justificatory reasoning, has been stressed by the protagonists of non-formal logic. The rising interest in this kind of logic applied to legal discourse has attracted the attention of Stone (Legal System ch. 8 section 7). In the 1960s there were two such trends of non-formal logic, viz. the "new rhetoric" or "theory of argumentation", and the "legal topics". It seems that the ideas of Perelman's "School of Brussels", i.e. the new rhetorics have had the greater influence. It is so partly because of the organised activity of the Centre de recherches de Logioue of Brussels, and in part because of its extensive interdisciplinary research deeply involved in the practice of judicial decision-making. This theory stressed the role of evaluative choices in decision­making and connected the argumentative nature of reasoning with the persuasiveness of legal discourse for a determined audience, and its role in reaching a consensus.

The non-formal logic does not solve, however, all relevant issues. There is an open question regarding the rules, if any, governing the reasoning, provided that it * 2221 E g. N. MacCormick, Legal Reasoning and Legal

Theory. Oxford, 1978, ch. II,III.22. Cf. "e.g. the collections of 0. Ballweg & T-H.

Seibert (eds), Rhetorische Rechtstheorie. Freiburg- Munchen 1982; Justice et argumentation, supra n.16; M Meyer (ed), De la metaphysique a la rhetorique. Bruxelles 1986, and lit.cit

reduced to mere persuasion And there is a of complete relativisation of these persuasive with respect to various audiences, which can

be linked with the deeply rooted expectation of rationality and connected with the striving for the just and the reasonable. The construction of the world audience as the way to solve these problems raises serious difficulties. ,

is not danger effects hardly

But non-formal logic, while rejecting the deductive model, sees the possibility of presenting justificatory reasoning in a deductive form if and when an adequate set of premisses is given. It seems, however, that this non- formal logic is more interested in the logic of heuresis than in that of justification. Judicial reasoning is also described as a iyxn-deductive transformation of premisses into conclusion. A transformation of p to q occurs if and only if: (a) a value (truth, justice etc.) of p is the sufficient reason for the value (truth, justice etc.) of q: (b) p does not entail deductively q. The transformation could be changed into deductive reasoning by the addition of new non-analytical premisses or changing existing premisses.

Transformation is, thus, a way of describing judicial justificatory reasoning, especially in the case of penumbra issues due to the fuzziness of the legal language^ . In this case q as a determination of the meaning of p cannot be deduced from the meaning the interpreted p has, because by definition this is a perumbral case, where additional premisses are needed to justify the interpretative decision in a deductive form. The additional premisses in question are brought in by the factors of the context in which the rule is used taking into account th^_ideology of interpretation and/or of application of law.

Judicial reasoning is, thus, strictly related to justification. The practically most relevant is an internal and external justification. Internaljustification is a necessary but not a sufficient condition of expected justification, because it deals only with the coherence of the decision. External justification, however, deals with the acceptance of the premisses and rules of justificatory reasoning, and 23 * 2523 A. Aarnie, R. Alexy, & A. Peczenik, supra n 20;

A. Peczenik, The Basis of Legal Justification, Lund,1983.

24. A. Peczenik & J. Wrbblewski, "Fuzziness and Transformation: Towards Explaining Legal Reasoning",(1985) Theoria part 1; c.f. J. Wroblewski, "Towards Foundations-, supra n.20.

25 J. Wroblewski, "L ’ interpretation en droit: theorieet ideologie", (1972) XVII Archives de philosophie du droit; Idem. "Ideologie de 1'application judiciaire du droit", (1978) 25 Osterreichische Zeitschrift fur offentliches Recht.

197

contr accor pr emi logic their

ols their acceptability in a given legal discours ding to the paradigms of knowledge (epistemi sses), of axiology (axiological premisses), and o sensu largo (rules of justificatory reasoning an use).

ecfd

Practically, the most controversial among the factors the external justification refers to are the axiological premisses forming the ideological background of justification. These involve evaluative choices regarding the directives justifying the judicial decision, and often in the ways of using them. In modern times there are three types of ideology of the judicial application of law, viz. the ideology of the bound judicial decision, the ideology of the free judicial decision, and that of the legal and rational judicial decision. The last type is widely accepted in the present legal culture. This ideology accepts the legality and rationality of the decision as supreme values Legality means that the decision should be made according to valid rules of law, and rationality meansthat it should be i.e. internally and

internally and externally externally justified.

rational

It seems that Professor Stone's approach to judicial reasoning can be linked to the ideology of the legal and rational judicial decision. He argues for a rational decision linked with logic which is not reduced to a formal logic, but he also sees the limitations of non- formal logic. He is against the irrationalist fallacy. It seems that he also argues for a legality conceived within the idea of the rule of law as understood and discussed in common law systems and their doctrine.

But even accepting the ideology of the legal and rational judicial decision there is the problem of its correctness: what are the criteria (if any) of a good orcorrect justification as symptomatic for the correct or right decision? '

III. Correctness of Legal Reasoning and Rightness of DecisionThe problem of a right decision is the classical

issue of legal philosophy. There are, diachronically and synchronically,'various criteria of rightness in various legal cultures and particular societies. Rightness has been identified with justice, equity, fairness etc. Metatheoretically, a right decision is an externally justified (rational) decision according to the accepted axiology. The analysis of these issues can be dealt with using the data discussed in Stone's work, especially Human Law and Human Justice and its dependence on social factors, in Social Dimensions of Law and Justice. I cannot, however, deal with these issues in the present essay

198

The rightness of the decision, provided the legal reasoning is correct, depends on true epistemic premisses and right axiological premisses, i e based on values neither rejected nor indifferent in the axiology of the controlling agency, but on the values the agency prefers and uses in the external justification. The' twomentioned volumes by Stone give ample material forcomparison of various axiologies and of the factors they depend on.

It can be discussed whether an incorrect decision could be a right decision. According to the ideology of the legal and rational judicial decision, this case would only be possible, if at all, by pure chance. A right decision, in principle, should be a correct one, if by correctness one understands the proper choice and use of the rules of justificatory reasoning accepted by thecontrolling agency. Incorrect legal justificatoryreasoning is, thus, in principle an obstacle to therightness of the decision.

What are the criteria of the correctness of judicial reasoning explicitly stated in or implied by Stone's approach to legal reasoning? A- reconstruction of his arguments shows that the basic role belongs to the principle of non-contradiction and to its application in the conscious choice and use of the "legal categories", understood as the major premisses of judicial reasoning

The role of the principle of non-contradiction (Legal System ch. 7 section 19) is evident,justificatory reasoning which is contradictory is always incorrect, both when the error occurs in inference of the decision from its premisses (the decision is notinternally justified) or when the premisses areincorrectly inferred from their own premisses (one of the cases when the decision is not externally justified) or even if the premisses are internally inconsistent, which can happen as far as axiological premisses are concerned The last mentioned case presents several difficult and complicated problems because of the possible conflicts of values taken into account, and the practical compromises the decision-maker accepts.

Incorrectness in judicial reasoning is dealt with in detail in Professor Stone's writings concerning the cases which in the present essay are connected with the fuzziness of legal language. I think that without using the conception of fuzziness explicitly, Stone deals with its impact on common judicial reasoning. He deals with the cases of various faulty references, which strictly correspond with the semantic referential conception of fuzziness described above.

It is not possible to present in detail the criticisms of judicial reasoning presented by Stone in his Legal System or, later, in his work on precedent I

would like, therefore, to give some examples using the former of the cited works. The error consisting in using categories of indeterminate reference (Legal System ch 7 section 11) singles out, inter alia the concepts of causation (p. 345), of the reasonable man (p. 346) and of the prudent man (p. 349). All of these are typical fuzzy terms where the zone of penumbra depends on the contexts of their use strongly coloured by the relevant axiology. The discussion of categories of concealed multiple reference (Legal System ch. 7 section 5), in the role of facts in law (Legal System p. 342) deals with the fuzziness of the term "fact*1 in legal discourse if facts are thought of as something definite and separated from law One can demonstrate that in law some facts are determined in an evaluative, negative and relational way and, therefore, the term "fact" at least in these cases is fuzzy. Last but not least, the existence of various versions of reference within a single category leading to opposed results (Legal System, ch. 7 sections 7-10) is the standard case of fuzziness when the choice of the meaning determines the results depending on what choice is made. The common law concept of ratio decidendi (Legal System, ch. 7 section 12) combines the fuzziness of the term with a rather differentiated theoretical underpinning strictly linked with the practical issue of justifying a common law judicial decision.

There is also the case of categories of "meaningless reference" (Legal System ch. 7 section 4) which can be interpreted as the use of a premiss not justifying the decision or when there is "no possible meaning" which would justify it (ibid. p. 241). The idea is clear if interpreted as the lack of the relation of inference between premisses and decision. It is problematic, however, whether this is always the case with the burden of proof, used as an example of this incorrectness.

Judicial reasoning can be presented as a set of transformations or even in deductive maaner. But there are various "games of justification" whiciu can be presented also as forms of practical reasoning. I have in mind the theoretical reconstruction of justification of judicial decisions, because its form in practice depends on the accepted style of decision-writing and, in some systems, on normative regulation of their content.

Stone criticises the traditional simple syllogism as the form of judicial reasoning, pointing out that there 26 27 *26. J Wroblewski, "Facts in Law", (1973) 2 Archiv fur

Rechts- und Sozialphilosophie. *.....27. A. Aarnie, On Legal Reasoning, supra n.20, ch. II.2;

J Wroblewski, "Games of explanation,' andjustification of judicial decisions and their theoretical and ideological background", in Reasoning on Legal Reasoning, supra n 15.

28 R Alexy, Theorie der juristischen Argumentation. Frankfurt am Main 1978

are inherent non-syllogistic elements (Legal System, ch. 7 section 18) His ideas are confirmed by an analysis of the judicial application of law in statutory/civil law systems: a justification of a judicial decision could be, under some conditions, presented as a syllogism,, but it is a rather complex syllogism, far more complicated than the traditional scheme of a major premiss (a rule), minor premiss (statement concerning the facts2qof the case) and conclusion as the (final) decision. y The normative basis of the final decision implies a decision of validity and a decision of interpretation and both should be justified by proper arguments. The factualbasis of the final decision is a decision of evidence supported by various ^arguments and has a rathercomplicated structure. The conclusion, treatedtraditionally as the determination of the legalconsequences of the proven facts of the case according to the applied legal rules, is justified by directives of the choice of consequences, and could be treated as one of the premisses of the final judicial decision.

The complex syllogism could be used as the basis of controlling the correctness of the judicial decision and verifying its rationality, but it has a complex logicalstructure in which one has to take into account variousevaluative elements.

The existence of evaluative elements in legal reasoning is highly significant in the logic of heuresis and in the logic of justification. It is an argument against the conception of mechanical judicial reasoning, but at the same time opens the way for many kinds of irrationalist fallacy linked with the necessity of judicial choices and the scope of judicial discretion. This is one of the most controversial issues in the theory of judicial decision-making.

This essay does not attempt to presentv Professor Stone’s ideas dealing with the problem of judicial law­making and the role of appellate courts, and the working of the whole system of precedent analysed in his last book Precedent and Law . Two basic ideas, however,, have to be stressed. Firstly, Julius Stone is aware of the fact of jq^icial elaboration of law, which ought to be reasonable and in the light of this he discusses the scope of the creativ^ess of this decision contrasted with "legisputation". Secondly, Stone, stressing the * 30 31 32 33 * *29 J. Wr6blewski, "Legal Syllogism and Rationality of

Judicial Decision-Making", (1974) 1 Rechtstheorie.30. J. Wroblewski, "Paradigms", supra n. 17.31. J. Wroblewski, "La preuve en droit: axiologie,

logique et argumentation", in Ch. Perelman & P.Feriers (eds), La Preuve en droit. Bruxelles, 1981.

32. Social Dimensions. ch. 14 sections 11,1233. Legal System, ch. 7 section 1734 Ibid, p 353. "Legisputation"

expression.is J J Cohen’s

necessity of judicial choices, argues for a conscious use of judicial^cLiscretion, neither hidden under spurious arguments nor going beyond necessary judicial restraint.

It seems to me that the problem of creativene'ss of judicial decisions to some extent is different in common law systems and in statutory'/civil law systems in so far as it concerns the institutional position of the judge and expectations constituting his role within the system. These factors do not, however, hinder the formulation of the same question concerning the way the judge uses and/or should use the decisional leeways, and whether and to what extent he ’'creates" the law. To answer these questions, however, it is necessary to specify the meaning of "creativity" in question which intuitively implies some "normative novelty". There are various conceptual theoretical constructions of creativeness, but without their sufficiently precise determination one can hardly discuss the creativity issue.

If creativity is implied by (evaluative) choice then judicial decision-making is creative at least in the meaning that it is not determined by the applied pre­existing rules treated as binding the judge. If, however, these choices are thought of as determined, then judicial discretion could be contested at the cost of accepting a rather loose notion of a legal system (as a system of rules) and by assuming the existence of one right decision. This idea is assumed by law, but it is highly problematic in legal theory. °

Without discussing here these important and very controversial issues, I think the existence of judicial choices is a fact, that these choices are not strictly determined by valid legal rules, and that, therefore, there is - at least in hard cases - more than one decision which could be properly justified as legal and rational. This stimulates the creation of institutional controlling mechanisms which ex auctoritate make a final choice This institutional solution is needed to guarantee the value of legal certainty when it cannot be implemented without making authoritative choices. And it holds both for common law systems and the statutory/civil law systems as well. * 37 38

35. Social Dimensions, ch. 14 section 1036. Ibid. ch. 14 section 737 J Wroblewski, "Decision judiciaire: 1 ’ application

ou la creation du droit", (1968)11/12 Scientio.38 R Dworkin, Taking Rights Seriously. London, 1977,

ch 7 For discussion cf A Peczenik, "Is There Always a Right Answer to a Legal Question?" in Essays. supra n 13

Concluding RemarksStone’s approach

only to common law statutory/civil law located within the reasoning with the language, and thisThis convergence is a result of approach to law treated not only complex phenomenon.

to legal reasoning is relevant not systems but caa be applied to

systems. This approach can be framework of ideas linking legal

contexuality and fuzziness of legal confirms' several of Stone’s ideas

the multidimensional as logic, but as a