International Journal for the Semiotics of Law W / IO [1991]

DON'T MENTION THE NORM!

by
KATHARINA SOBOTA

Johannes Gutenberg-Universit~t, Mainz

In modern democracies most people seem to be convinced that law

is a system constituted by explicit norms. This opinion is very comm o n in states, such as Germany, which conceive of themselves from
the beginning as legal e n t i t i e s - where the legislative Lower House
of parliament, the Bundestag, is taken to be the most important institution of the polity, and where patriotic feelings are identified
with a pride in the Constitution (D. Sternberger: "Verfassungs-

patriotismus").
This normative outlook is the everyday-version of a theoretical
conception which is an outgrowth of the spirit of the Enlightenment
and admiration for the successes of science, reflected in the positivistic movement of the late 19th and the early 20th centuries. The
underlying idea of this movement was to discover (or rediscover) a
reasonable system which could regulate human behaviour by means
of a univocal, complete and comprehensive legal system, not dependent on the arbitrary mediation of judgesA
One of the first significant results of this line of thought was a
statute inspired by the Prussian king Friedrich II, who was sympathetic with the French Enlightenment. This code, the Prussian General Code of 1794 (Preu~isches Allgemeines Landrecht), was intended to define every legal relationship in the Prussian countries.
It was to be all-encompassing, reasonable and binding for all time. It
contained at least 19,000 sections, self-confidently crowned with a
general prohibition of judicial interpretation. Ultimately, as contemporaries noted, this supposedly perfect code turned out to be an
unwieldy, and sometimes ridiculous, heap of rules, which was out-

1 Franz Wieaker, Privatrechtsgeschichte der Neuzeit (G6ttingen:

Vandenhoeck & Ruprecht, 1967, 2. ed.), 322ff.

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KATHARINA SOBOTA

dated in its chief parts even before being published.2

This experience should have foreshadowed the dubiousness of an
omni-competent law, which seems to foresee each individual conflict and to organize human communal life as an engineer constructs a
machine. Nevertheless, this ideal became a part of the stock of social delusions. Concurrently, a basic belief developed that legal
decision-making was a process of finding and applying these instrumental norms - - norms which were thought to define and direct the
realm of the " O u g h t " as exactly and logically as the laws of
classical physics once were deemed to direct nature. 3
At the theoretical level, this mixture of rationalism and scientism became the nutrient for all positivistic methodology, and
provided the ideological backdrop for the movement of codification
beginning in the 18th century,4 as well as for the "pure, "5 "logicar '6 or
"analytical"7 schools, which have survived until today.8
A second source for the belief in the hegemony of explicit norms
lies in the unweakened plausibility of syllogisms. The everyday
informal concept of syllogisms that was developed in late antiquity
and the middle ages holds that the norm is a universal attribution
linking two abstract terms. (All As are Bs). A norm of this type is
designed to be the major premise of a syllogism. (All As are Bs; this
C is an A; therefore, this C is a B.)

2 Ibid.. 334. This critique should not conceal that the Prussian General
Code (ALR) had its merits; inter alia it effected a remarkable progress in the
question of the rule of law and legal protection.
3 Cf. Hannah Arendt, Vita Activa (Stuttgart: Kohlhammer, 1960), 44.

4 E.g., the Codex juris Bavarici judicalis of 1753, the Codex Maximilianus
Bavaricus civilis of 1756, the Prussian Gerichts-Ordnung of 1793, the ALR of
1794, the Code Civil of 1804 and the Austrian ABGBof 1811.
5 Hans Kelsen, Reine Rechtslehre (Wien: Franz Deuticke, 1960, 2 ed.).
6 E.g., Ulrich Klug, Juristische Logik (Berlin: Springer, 4th ed., 1982, 1st
ed., 1950); Hans Joachim Koch, Helmut Rfit~mann, Juristische Begrandungslehre. Eine Einflihrung in Grundprobleme der Rechtswissenschafl
(Mfinchen: C.H. Beck, 1982).
7 H.L.A. Hart, The Concept of Law (Oxford: Clarendon Press, 1961).
8 Peter Goodrich, Legal Discourse (New York: MacMillan Press, 1987), 3,
15ff., 33ff.

DON'T MENTION THE NORM

47

Rhetoricians 9 are sceptical about these intellectual systems.

From their perspective, neither universal attributions nor instrumental rules constitute the main framework of legal discourse. ~
They are only one of various devices which are produced for constructing the artificial, but efficacious reality called law.
Nevertheless, academic discourse t e n d s to identify normative
phenomena with the actualization of instrumental rules. 1~ Moreover, this modern position is reinforced by the power of an ancient
concept, the concept of the syllogism.
In analytical rhetoric, we do not believe in either of these concepts. We do not think that legal practice is governed either by
major premises or by instrumental norms.
We prefer the weaker concept of regularities. "Regularities", as
we understand them, are neither as general nor as permanent as
those of classical physics were supposed to be. They are dynamic
cybernetic formations like the living network of a cell or like seasons, fashions, rituals or behaviour patterns. Regularities are "patterns", not "structures" or "rules" - - "patterns" constructed by an
observer, or constructed by an observing dimension within the system
itself.
Regularities do not direct or control nature and they give no universal description of nature. They are part of all living action, they
organize these actions and they are produced by these actions.
I think that the process of legal decision-making is not governed
by universal norms, but is shaped and constituted by such changeable, self-organized patterns, which are often articulated as rules,
but are really only "regularities".
A c c o r d i n g l y , whoever wants to disclose the basic patterns of
normative communication should examine the rhetoric of judges and
9 Cf. Ottmar Ballweg, "Analytical Rhetoric, Semiotic and Law", in R.
Kevelson (ed.), Law and Semiotics,Vol. I (New York and London: Plenum,
1987), 25-33: "Entwurf einer analytischen Rhetorik", in H. Schanze (ed.),
Rhetorik und Philosophie {M~inchen: Fink, 1989), 223-247.
10 James Boyd White, Heracles' Bow. Essays on the Rhetoric and Poetics
of the Law, (Madison: University of Wisconsin Press, 1985), 29f, 97L
11 j. B. White, ibid., 27; Bernard S. Jackson, Law, Fact and Narrative
Coherence (Merseyside: Deborah Charles Publications, 1988), 3, 89, 106.

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KATHARINA SOBOTA

lawyers 12 rather than the social engineering of our days or the dialectical studies of logicians.
In doing this, one should not ignore the fact that at a certain
level of cultural complexity m a n y discourses became intertwined
with the rhetoric of explicit rules: e.g., Egyptian tax orders, the Ten
Commandments or the Codes of Dracon and Solon. However, these
norms were only a narrow segment of the circle of other normative
formations, such as rituals, customs, parables, emotive signals, or
precedents. Today, with the vast proliferation of statutes, this
quantitative relation has perhaps been reversed. But still, judicial
decision-making is based on nearly the same patterns as in the earliest days of judicial rhetoric.
To work out these rhetorical patterns, it might be useful to analyze the inner form of specific types of legal discourse, such as
pleadings or decisions in German proceedings.
In contrast to jurisprudential interpretations, rhetorical analysis
conceives of a legal text as a concrete technique used by a particular
person in a specific situation. 13 The situation is regarded as an open
system, which is constituted by various influences, whether social,
economic, cultural or biological. The inner form of the speech is regarded as a flexible regularity, rather than as a permanent structure. The method for identifying rhetorical patterns is a rather imperfect, but conscious combination of scientific elements (external
point of view) with the tracing of traditional hermeneutics (internal
point of view).
II
Even though the rhetorical approach proceeds on the assumption
that legal discourse is shaped by regularities and not by instrumental rules or universal attributions, there is no doubt that it is sometimes influenced by the idea of universal and permanent structures.
Legal decisions are often formulated in terms of instrumental norms,
12 For the emphasis on concrete decisions: Jackson, ibid., 98ff., 106ff.
13 Fundamentally about the situative character of law: Theodor Viehweg,
Topik und Jurisprudenz (Mfinchen: C.H. Beck, 1974, 5. Aufl.), Engl. version,
trans. Wayne C. Durham, Topic and Law (Frankfurt/M.: Peter Lang, 1991),
forthcoming.

DON'T MENTION THE NORM

49

factual premises, normative syllogistic conclusions, and so on.

1. The first domain of such formulation is the field of modern
legislation. In this field the concept of mechanical, instrumental
rules is the underlying idea of legislative activity. Of course,
statutes do not function like the rules of classical mechanics or the
program of a computer, but sometimes this idea is reflected in a
strictly regulated area of social reality. Examples of what I have in
mind might be: military service, traffic regulations in Switzerland,
but not necessarily in Rome or Paris.
2. The second domain in which universal norms seem to appear
is the rhetoric of reasoning, especially the rhetoric of lawyers and
judges. In this domain we sense the force and pervasiveness of syllo-

gisuls.
As I will attempt to show in what follows, the concept of syllogism is not merely an illusion. It is an illusion, but an illusion with
very powerful effects. It is one of the strongest underlying ideas of
western thought and legal decision-making, and as such it moulds
legal discourse, sometimes to such an extent that it is confused with
reality itself - - as if legal reasoning were syllogistic.
What is the difference between the academic theory of the normative syllogism and the rhetorical approach referring to the influence of the idea of the normative syllogism?
From the rhetorical point of view, the syllogism is not a method
of deciding, but a style of presenting the legal decision.
The syllogism is a rhetorical form, and not a substantive, or objective order.
The difference between the academic view of the syllogism and
its practical use can be illustrated w h e n one looks at the major
premise of the alleged syllogisms in legal texts.
Academic theories postulate the verbaIisation of the underlying
premises. Academics tend to believe either in an overly philosophical concept of syllogism or in a positivistic concept of instrumental principles or in a mixture of both. In any event, they ask
their students to explicate norms from which they pretend to derive
their decision. They ask y o u n g jurists to mention the norm. This
tendency reflects a belief in the principles of rationality, transparence and the spirit of Enlightenment.
As I want to demonstrate, a good judge in an extensively codified
legal system never indulges in citing the major premises of most of

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KATHARINA SOBOTA

the syllogisms he pretends to be the basis for his decision.

M y hypothesis is that in legal systems which are extensively
codified a judge never verbalizes any major premise. In legal systems
with a lower degree of codification the judge often explicates one or
two premises of the ten, twenty or fifty he is alluding to.
Accordingly, academic advice to make all norms explicit is very
counterproductive.
Thus, if one wants to support legal culture, it w o u l d be very
paradoxical to opt for the verbalisation of norms. Conversely, if one
wants to confuse the students and upset the legal system, the most
devious approach would be to require all the jurists to state all the
norms they imagine they are using. As a rhetorician, I don't want to
assess pedagogical aims - - I simply want to explain rhetorical consequences.
To give an example of the counterproductive power of norm-explication, we can examine a very typical passage from a decision,
which also shows the scheme of the "reasons for the decision",
which is usually employed by German trial courts (text A). 14
As background it should be noted that the German Civil Code,
i.e. the B6rgerliches Gesetzbuch (BGB), contains a series of rules
concerning the negotiorum gestio (in German, "'Gesch~ftsfiihrung ohne
Auftrag"; which can perhaps be translated as "implied agency"), is
One of these sections ( 683 BGB) provides that "Whoever conducts
a n o t h e r ' s affairs without authority to do so, acting in accordance
with the interest and intention of the person concerned, is entitled to
claim compensation for his expenses", e.g.: for the amount he spent
for calling the firemen and requesting them to extinguish the fire at
his neighbour's house.
The representative passage we will use as an example reads as
follows:

Text A: "(1) The action is well founded. (2) The plaintiff is entitled to
claim 10,000 DM as compensation for his expenses. (3) The facts as
proved in the proceedings comply with the requirements of Section 683
of the German Civil Code ("BGB"). (4) In particular, the court had to
recognize that the plaintiff is an agent who conducted the affairs of the
defendant."
14 Of course the translation is imperfect, but I hope that the rhetorical
schemes will be satisfactorily conveyed.
15 Gesch/ifts~hrung ohne Auftrag, ~677ff. BGB.

DON'T MENTION THE NORM

51

Reading this text, a jurist with semiotic interest can discover a

hir,,t - - or a reference - - to one acknowledged norm: Section 683 BGB.
What is noteworthy here is that the text does not quote the entire
text of this norm; it only quotes fragments ("affairs", "'compensation
for expenses"). What is even more interesting, however, is that if we
are participants in the legal discourse - - participating observers - we feel that the text implies many other references to many other
normative constructs.
What are these constructs like? In m y opinion, it is simply nonsensical and destructive to make these implied normative constructs
explicit. But just for scientific fun (and to prove m y hypothesis) I
shall try to list some of the norms which seem to be implied by the
foregoing passage - - although this would be impossible in ordinary
life.

1. If a plaintiff is entitled to claim what he claims his action is

well founded. [This premise seems to be implied b y sentence
number 1 and 2 of text A].

2. If the facts as proved comply with the requirement of Section 683

BGB, the plaintiff is entitled to claim compensation for his expenses. [This must be the premise that connects sentence 2 and 3.]

3. If the facts comply with the requirement of a norm, the norm is

applicable.
4. If facts exist, they can be a precondition for the application of a
norm.
5.

[The wording of Section 683 BGB:] Whoever conducts another's

affairs without authority to do so, acting in accordance with the
interest and intention of the person concerned, is entitled to
claim compensation for his expenses.

6. If the plaintiff is an agent who conducts another's affairs, one

fact exists which complies with one of the requirements of
Section 683 BGB.
7. If a fact exists which complies with the most problematic requirement of Section 683 BGB, all facts comply with the requirements of Section 683 BGB. [This is alluded b y sentence 3: "In
particular...']

8. If a fact exists, the court has to recognize the existence of this

fact. [Sentence 2 and 3.]
9. [Possibly:] If a judge is qualified, he is able to recognize facts.

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KATHARINA SOBOTA

If we examine other legal texts, we are struck by the same tendency. Sometimes, I6 the reasoning is not so compressed and therefore
contains less extensive normative references. Nevertheless, it seems
to be a widespread pattern not to mention the norm, i.e. the implied
major premise of an alleged syllogism. 17 What is verbalized is the
minor premise (e.g.: "The plaintiff is entitled to claim 10,000 DM" or
"The facts comply with the requirement of Section 683 BGB") and
sometimes the conclusion (e.g.: "The action is well founded"). Are
there any reasons for this?
A first possible explanation is that the norms, which seem to be
implied, are so self-evident that it would be futile to mention them.
For example, it goes without saying that "an entitlement can found a
legal action" (text A, norm 1); likewise, it is superfluous to cite
Section 683 BGB, since everybody is able to look it up in the Civil
Code (A, norm 5).
What we can in any event note is that a rhetorical text like a
judgement contains m a n y allusions to syllogisms, but does not actually contain any complete and explicit syllogism.
What is it then that gives one the feeling of completeness and
logical coherence? I suggest that this is the effect of a specific
grammatical construction and modality of a sentence, often linked
with words like "thus", "so", "therefore", etc., and with textual or
contextual hints to the realm of general propositions.
So, normative syllogisms in legal texts appear, if at all, in fragments and intimations. Mostly their major premises and their conclusions are concealed.
Aristotle called this special type of argumentation an "enthymerne". 18 Enthymemes are a m o n g other things characterized by
leaving out terms of the referenced syllogism. Normally these
16 Especially within the rhetoric of the Federal Constitution Court (Bundesverfassungsgericht ).
17 Katharina Sobota, Sachlichkeit, Rhetorische Kunst der Juristen
(Frankfurt/M.: Peter Lang, 1990), 47ff.
18 Aristoteles, Rhetoric 1.1.3.2 (1354 a), 1.2.10. (1356 b), 1.2.13 (1357 a),
II.21.15 (1395 b), cL also: 1.11.1. (1356 b) and III.17.8.1. (1418 a); Jfirgen Sprute,
Die Enthymemtheorie der aristotelischen Rhetorik, (G6ttingen:
Vandenhoeck & Ruprecht, 1982), 130f., 32; Arthur B. Miller and John D.
Bee, "Enthymemes: Body and Soul", Philosophy and Rhetorik 5/4 (1972),
202-214.

DON'T MENTION THE NORM

53

omitted t e r m s refer to things w h i c h are obvious. The a d v a n t a g e of

this t e c h n i q u e lies in a v o i d i n g b o r i n g repetitions a n d the t e d i o u s
p r o p a g a n d a of trivial truths.
The essence of this first point is t h u s that jurists often conceal
their norms, simply because norms are obvious truisms.
I d o not think that this explanation is the m a i n point; I believe
that judges d o not m e n t i o n norms, because it w o u l d be embarrassing
and dysfunctional to verbalize the alleged premises.
This can b e seen v e r y well in a decision of the highest G e r m a n
F e d e r a l C o u r t (BGH NJW 61,359)2 c o n c e r n i n g i m p l i e d a g e n c y
(negotiorum gestio, ~ 8 3 BGB) as well. T h e c i r c u m s t a n c e s of this
case w e r e rather brutal. The l o w e r court stated the facts as follows:
One night at about one o'clock, the plaintiff heard a cry for help from a
ruin in the neighbourhood. As it was proved later, a psychopath was
beating a woman with a hammer. The plaintiff rushed into the decayed
house and tried to help the victim. Fortunately, he was ultimately
successful and was able to save the woman, but in the course of doing
so, he was injured and could not work for a certain time. Being selfemployed, he was interested in obtaining compensation for his lost
earnings. As neither the psychopath nor the woman had any money,
he addressed his claim to the health insurance fund of the victim. ~9
The insurance company refused to pay and argued that the facts did
not justify a claim under Section 683 BGB. Saving the injured woman
was not in the insurance company's interest. If the plaintiff had not
helped the victim, she would have been killed; being dead, she would
have burdened the insurance with fewer expenses.
The Federal C o u r t f o u n d for the plaintiff. Discussing the defend a n t ' s objections it said, inter alia:

Text B: "(1) Conducting the affair (i.e. helping Mrs. B.) was according to
the defendant's interest. (2) This results from a single reason: The
plaintiff intended by his action to get the injured woman as quickly as
possible to medical treatment; and offering medical treatment was the
defendant's concern. (3) It is irrelevant whether or not the plaintiff's
action entailed a cost advantage in favour of the insurance company.
(4) An "interest" within the meaning of Section 683 does not necessarily
imply an economic interest. (5) Therefore, it does not matter whether
or not the action of the plaintiff actually helped to reduce complications
during the healing process, or actually accelerated the cure, and thus
economized medical treatment. (6) Likewise the court dismissed the
19 Strictly speaking: the company's health insurance fund, to which the
woman's husband belonged.

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KATHARINA SOBOTA
the strange objection that the insurance company would have a cost
advantage without the interference of the plaintiff."

If we consider the norms that are implicit in the foregoing passage, those that one would identify are neither repetitions of the
explicit text, nor truisms.

1. If it is an insurance company's concern to offer medical treatment

it is also its concern to get an injured person as quickly as possible
to medical treatment.
2. If a plaintiffs action intended to get an injured person as quickly
as possible to medical treatment, he is acting in accordance with
the interest of the health insurance company concerned.
(a) [More abstractly:] If an involuntary principal (that is the
i n s u r a n c e c o m p a n y ) is concerned with a certain affair,
conducting this affair is in accordance with its interest.
[questionable equation of "concern" with "interest"].
(b) [In connection with sentence 3 and 4 of text B:] If a health

insurance company is concerned with a certain affair,

conducting this affair is an action in accordance with its
interest, whether or not this entails a cost advantage in the
insurance company's favour.
(1) ... whether or not the action helps to reduce complications during the healing process.
(2) ... whether or not the action helps to accelerate the
cure.

(3) ... whether or not the action economizes medical treatment.

3. If a qualified judge interprets the meaning of Section 683 BGB,

he will consider that the " i n t e r e s t " within the meaning of
Section 683 does not necessarily imply an economic one. [See
sentence 4 of text B].

4. If an objection sounds strange, the court will dismiss it.

5. If an insurance company is concerned with offering medical
treatment, its main interest ought not to be economical but
therapeutical, although it clearly claims the contrary.
6. [Abstract version:] If something ought to be it is the case.
7. If a health insurance company objects that the death of a person
would be a cost advantage, it argues in a strange way.

DON'T MENTION THE NORM

55

None of these assessments is trivial. Even Norm 4 ("If an objection sounds strange the court will dismiss it") is not "self-evident",
because the "strange sound" of an argument does not itself give a judge
a reason to reject it.
In addition to this, none of the implied sentences is a commonplace. Most of them do not reach a high level of abstraction; they
keep in touch with the concrete circumstances. However, there is no
doubt that the court implies "general rules" (see the general attribution in sentence 4: "The 'Interest' within the meaning of Section 683
BGB does not necessarily imply an economic one"). Furthermore, none
of the referenced norms is part of legal doctrine. On the contrary,
some are rather dubious - - not only from the viewpoint of jurisprudence but also from the perspective of daily rationality.
For example, if one looks at Norm number 2, one sees that it appears in six versions; this reflects the redundancy in sentence 2 to 5.
In norm number 2 a), supported by norm 5, one can discover the
equation of "concern" with "interest". However, 683 BGB emphazises the difference between these notions: something can be your
"concern" (e.g., cutting your hair), but nor your "interest"; if you want
to have a beard and a mad hairdresser shaves it off, it is not in your
"interest", and you d o n ' t appreciate having to pay for it. 2 In this
case, the judges used the equation of concern with interest, to bridge
the greater difference between affair and interest.
Affair [i.e.: to arrange medical treatment] = concern [i.e.: duty to offer
medical treatment = to get the injured woman as quickly as possible to
medical treatment] = Interest [i.e.: the insurance company's interest,
including economical interests] (see Norms B, number 2-2e).
This implication contradicts not only the defendant's strict intention but also the traditional legal definition of the t e r m
"Interest" which normally involves a benefit.
Not less questionable than norms 2 and 5 are norms 4 and 7, which
rely on a mere emotional reaction ("strange" feeling). Another striking predication is articulated in norm number 6: The equation of
Ought and Is. This attribution seems to be a very pervasive and yet

20 German jurisprudence has redeemed itself in more recent doctrinal

developments, which have worked out a basis for resolving the case that
was more consistent with the norms of the Civil Code; cf. Dieter Medicus,
Bfirgerliches Recht (K61n: Carl Heymanns, 1989, 14th ed.), 247.

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KATHARINA SOBOTA

very well hidden premise.

H o w e v e r , in spite of all the hidden contradictions, the implication of all these premises provides a plausible result. The argument
is not coherent in relationship to the civil law. But it is plausible in
relationship to the situation, to our feelings m particularly because
of our indignation at the insurance company's position.
III
What can one conclude from of all this? I suggest the following
answer: In daily legal rhetoric it is typical of norms that they only
exist within a sphere of intimation or implication. This realm lies
somewhere in between the realm of verbal explication and the realm
of total silence.
Realm of silence
Realm of implication
Realm of verbal explication
The realm of implication is characterized b y a relatively cer-

tain form and a relatively uncertain content.

It has much in common with the "Narrative Structures" as contemplated b y Bernard Jackson, 21 although in m y view the term
"narrative" could some times lead in the wrong direction, insofar as a
narrative is usually something being told - - something being made
explicit - - whereas for the most part, the coherence of normimplications, as more generally the entire realm of implication, is
grounded chiefly on silence.
Rather than attempting to give a complete definition of normative implications, I think it makes more sense to sketch the
functionality of tacit norms. Let me list some of the advantages of
this approach:
(i) First advantage. If judges and lawyers do not verbalize the
21 Cf. Jackson, supra n.11, at 101ff, who concentrates on patterns which he
calls "narrative", but which include also non-verbalized schemes (such as
"sympathy with defrauded elderly maidens"), 104.

DON'T MENTION THE NORM

57

alleged major premises, they can conceal the inconsistency of the

whole normative system (for example, the Civil Code or C o m m o n
Sense). An example of the inconsistency of normative systems is the
conflict between the command, "Thou shalt not kill!" and the norm
"Defend your country!"
On the contrary, if judges verbalized the norms that are implicit
in their judgements, they would evoke flagrant contradictions to at
least five types of requirements: (1) classical logic; 22 (2) legal
s y s t e m a t i z a t i o n ; (3) the right to equal treatment; (4) positivistic
legality; and finally (5), they would reveal the naivety of our basic
beliefs, such as:
that facts exist (text A, norms 4, 7-9); that the court is able to recognize
facts and meanings (A 8 and 9, B 3); that norms are applicable (A 3 and
4); that facts can comply with the requirements of a norm (A 2 and 3);
that legal texts have a meaning (B 3); that whatever ought to be, is (136).
(ii) Second advantage: An orator can change the alleged meaning of the norm and adapt it from situation to situation. This is the
reason w h y in legal systems with a lower degree of codification
judges tend to verbalize and explicate at least some of their
premises: they compile and create these premises within the particular situation. The legal system is so complex and unmethodical
that no one is able to compare the multitude of potential sources of
law. Because there is no mechanical w a y to identify a fixed set of
applicable premises, the selection of premises themselves cannot be
subjected to system-wide "neutral" criticism. The result is that it is
possible to invoke a n y premise that seems appropriate to the
particular situation.
(iii) Third advantage: tacit norms can be a link between the
archaic world of emotive, non-verbalized regularities and the
verbalized rationality of the classical occident. They are janusfaced. On the one hand, they appear as an abstract rule; on the
other hand, they work as a reference to a concrete regularity. As
regards our text B, I want to mention two of these regularities, which
one can call "underlying social valuations".
The first one could be described as the "priority of humanity over

22 _. and of course also modern symbolic logic, although no ordinary

lawyer would attempt to present normal legal arguments using symbolic
logic.

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KATHARINA SOBOTA

mere pecuniary interests". To reward someone for helping another

person, and to reject the financial interests of a business entity, is not
an explicit doctrinal norm, but the ephemeral emotions of a certain
court in a particular case. It cannot be a general rule, because it runs
counter to other principles of the Civil Code. It provides the background only in this case, in this s i t u a t i o n - perhaps only because
the insurance company m a d e the mistake of revealing its materialistic intentions. I think the insurance company's plight constitutes a
good example of the destructive consequences of explicating underlying maxims.
The second underlying valuation is sympathy for the pattern of
male behaviour implicit in defending women who cry for help. Most
of us unconsciously approve of this behaviour, but in these days of
women's rights nobody dares to verbalize it.
The appropriate version of this old-fashioned custom, which
does not offend against the right to equal treatment, would be:
"Whoever defends another person against criminal conduct, acts in a
manner that deserves to be rewarded." In the hammer-case this
would mean: the plaintiff m a y d e m a n d compensation for his expenses. Fortunately, at least from the perspective of a jurist working
in a system with a strong sense of precise rules such as the German
system, the judges did not articulate such a norm. Some years later, a
Regional Appeal Court (OLG Karlsruhe, VersR 77, 936) had to decide another case in which a man risked his life and health not to
save a woman crying for help, but to assist a bank. There the criminal conduct involved was a bank robbery. The man was a customer of
the bank who saw that a robbery was underway and jumped on the
robber from behind, viewing himself as an implied agent acting on
behalf of the bank. As the bank itself had ordered its employees not
to risk their lives in the event of a bank robbery where only m o n e y
was at stake, the heroic efforts of the customer seemed a little
excessive and did not evoke the same degree of natural sympathy as
the man helping the crying woman. Because the highest Federal
Court did not make a binding general rule in the h a m m e r case, the
Regional Court could more easily support its view that the "hero"
was merely someone who had overreacted under the circumstances.
A common law court might have had less difficulty in this situation,
because the common law judge is more accustomed to adapting norms
to fit particular cases. The price of such comfort, however, is that

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59

the alleged norms multiply and become diffuse.

A final thought: legal discourse depends on a technique which
makes its possible to create the illusion of certainty in a realm of uncertainty. One of the main tools for bridging the contrast between
certainty and uncertainty is the use of hidden premises that move
within the realm of implication.
This is overlooked on the one hand by the positivistic approach,
which tends to overemphasize the illusion of certainty, and mistakes it for reality, and on the other hand by most of the sceptical
approaches, which tend to overemphasize uncertainty and neglect
the value of creating the illusion of certainty, including among other
things the actual trust-generating effects of such constructs.
A discipline such as rhetoric has a long tradition of accepting
contradictions, especially the contradictions within human nature.
Rhetoric has no prejudice against recognizing that human life consists in large measure of deception and self-deception. 23 It attempts,
rather, to look these realities in the face and to analyze how such
deceptions are used, which techniques they employ, and under what
conditions they have good or bad results. Accordingly, it does not
share the view of Enlightenment rationalism, that all reasons must
be uncovered and verbalized at any price. Rhetoric cannot determine
where the boundaries between verbalization, hidden implications,
and mere silence lie. The question of explicitness must be decided in
the concrete situation. In this regard - - and here the concept of
Bernard Jackson is to be fully accepted - - there remains nothing but
to hope for the personal integrity of each individual. 24
Finally, one could remember that norms alluded to by legal
rhetoric 25 belong to a special type of norms which one should not
confound with the type of norms discussed by logicians or advanced
by classical physics or promulgated by legislators, following the
model of sciences. Norms used within the process of adjudication are

23 F. Nietzsche, "Ober Wahrheit und Lfige im au~rmoralischen Sinne

1", in G. Colli und M. Montinari, eds., Die Geburt der Trag6die.
Unzeitgem~e Betrachtungen. Nachgelassene Schriften 1870-1873.
Kritische Studienausgabe (Mfinchen und Berlin/New York: de Gruyter,
1988, 2. Aufl.), 873ff.
24 Jackson, supra n.11, at 5, 189, 193.
25 ... and other forms of rationalizing discourses.

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KATHARINA SOBOTA

mostly allusions, sometimes pregnant with social knowledge, but

sometimes also reduced to a general attribution, which may be filled
with unexpressable feelings, casual value assessments, and casual
actualizations of traditional evaluation-patterns.
As regards the different functions of implicit norms, one could
gather that tacit references are an indication of social confidence in
non-verbal regularities. No one discusses what he takes to be selfevident; nobody seeks for the verbalization of his everyday behaviour patterns; and nobody asks for a universal and explicit
scheme of a plausible valuation. On the contrary, whenever a norm
is made explicit, we become aware of a rhetorical trick, or an effort
to direct people in a mechanical, non-discursive way.
However, no law professor gives the advice: "Do not mention the
norm". Perhaps they act in this way because they believe in a concept of law which is rather abstract and follows the traditional
viewpoint of Rationalism, Enlightenment and Positivism. They ignore the silence and openness of juristic normativity and they close
their eyes to the rhetorical character of law and to the conditions of
its embedding. On the other hand, during their activities as judges,
lawyers or academic consultants, they intuitively comply with the
rhetorical patterns which are denied by their theoretical constructs.
The result is a life of unwitting contradictions. They think that
they name norms, but they do not; they think that they apply
syllogisms, but they use enthymemes; they think that they follow
rationality, but they are the ones who originally produce rationality by acting in a rhetorical way.
One could guess that this juristic ignorance widens the horizon
for normative notions: it is much easier to generate the illusion of a
syllogistic norm-application, if one needs not articulate one's major
premises. Likewise, the existence of a normative system is much
easier to pretend, if one needs not list the elements of the system
claimed.
In view of this tendency, the paradoxical interplay of verbalized and unarticulated conceptions appears to be the result of a
highly functional naivety, which supports social organizing by
means of concealing its fundamental devices. As long as the stages of
legal acting are furnished with this duplicitous ground, people will
feel the rule of norms.