Peczenik, A. Scientia Iuris - An Unsolved Philosophical Problem

SCIENTIA IURIS – AN UNSOLVED PHILOSOPHICAL PROBLEM 275
ALEKSANDER PECZENIK
SCIENTIA IURIS – AN UNSOLVED PHILOSOPHICAL PROBLEM
ABSTRACT. Legal dogmatics in Continental European law (scientia iuris,

Rechtswissenschaft) consists of professional legal writings whose task is to systematize
and interpret valid law. Legal dogmatics pursues knowledge of the existing law, yet in
many cases it leads to a change of the law. Among general theories of legal dogmatics,
one may mention the theories of negligence, intent, adequate causation and ownership.
The theories produce principles and they also produce defeasible rules. By means of
production of general and defeasible theories, legal dogmatics aims at obtaining a system
of law that is both internally coherent and harmonized with its background in morality
and (political) philosophy. Legal dogmatics is necessary in the context of constitutional
constraints on the majority rule. Only if the courts act on the basis of Reason can they be
a legitimate counterpart of the majority rule. And Reason cannot be exhausted by particular
decision making. It also needs a more abstract deliberation, given by expert jurists.
However, legal dogmatics has been a target of several kinds of criticism: empirical,
morally-political, epistemological, logical, and ontological. The position taken in this
article is to answer such criticism by mutually adjusting philosophy and the practices of
the law.
KEY WORDS: coherence, defeasibility, deliberative democracy, juristic theories, law

and morality, law and philosophy, legal experts, legal research, principles, rules
1. LEGAL DOGMATICS
Legal dogmatics in Continental European law (scientia iuris, Rechts-
wissenschaft, Rechtsdogmatik, ‘science of law’, legal theory) consists of
professional legal writings, e.g., handbooks, monographs etc., whose task
is to systematize and interpret valid law. Legal dogmatics regards the law
as man-made and historically changing. At the same time, it arranges the
law under over-reaching principles.1 Thus, Savigny, the grand old man of
the German legal dogmatics, stated that legal dogmatics is historical and
philosophical,2 it integrates exegetical and systematical elements.3
1
Savigny 1840, XXXVI: “Ich setze das Wesen der systematischen Methode in die
Erkenntniss und Darstellung des inneren Zusammenhangs oder der Verwandtschaft,
wodurch die einzelnen Rechtsbegriffe und Rechtsregeln zu einer grossen Einheit verbunden
werden. Solche Verwandt-schaften nun sind erstlich oft verborgen, und ihre Entdeckung
wird dann unsre Einsicht bereichern.”
2
Savigny 1993: historical and philosophical (30), philosophical due to its use of the
concept of system (32).
3
Id. 35.
Ethical Theory and Moral Practice 3: 275–304, 2000.

© 2000 Kluwer Academic Publishers. Printed in the Netherlands.
276 ALEKSANDER PECZENIK
The work of legal dogmatics is almost always value-laden. To be sure,

the jurists make a distinction between a cognitive inquiry into the law as it
is (de lege lata), and justified recommendations for the lawgiver, de lege
ferenda. But as every legal scholar knows, the distinction between de lege
lata and de lege ferenda is not clear-cut. The legal dogmatics is a good
example of a practice of argumentation, pursuing knowledge of the existing
law, yet in many cases leading to a change of the law.4
A closer look at legal dogmatics reveals that it consists of several
interrelated pursuits and levels, such as
• analysis of particular cases; mapping of possible application and

violation of the law; listing and intuitive evaluation of possible
interpretations of a statute;5 developing technical solutions facilitating
the obedience of the law and preventing its violation; developing
relevant distinctions between the types of cases;
• systematization of law under abstract concepts and principles, either
already formulated by international instruments (such as ECHR)6 or
national legislative or courts, or provided by theoretical legal dogmatics;7
• historical and comparative studies with normative consequences;
• general jurisprudence (legal theory) with normative consequences, e.g.,
various theories of statutory interpretation; theories of the internal
systematic of the law etc.; theories about the sources of the law;8
• philosophical theories behind legal dogmatics and jurisprudence; and,
finally,
• the use of auxiliary sciences, e.g., psychology behind the treatment
ideology in criminal law and sociology behind the deterrence ideology.
Concerning basic philosophical positions behind jurisprudence and moral

philosophy, one can find some use of moral theory, political theory,
language theory, logic, epistemology, theory of science and metaphysics.
In brief, all kinds of philosophy can be relevant in connection with legal
dogmatics.
4
Peczenik 1995, 312 ff. Cf. Savigny 1993, 197: Legal dogmatics does not create ac-
complished rules but a method that continually changes the rules.
5
Cf., e.g., Knut Rodhe’s program in Swedish civil law, 1944 and 1971.
6
European Convention on Human Rights did already affect legal research in many
countries and subjects, such as freedom of speech, protection of privacy, fair trial, inde-
pendence of judiciary etc.
7
Sometimes contrasted with practical legal dogmatics, cf., e.g., Aarnio 1997, 237.
8
E.g., on travaux préparatoires in Sweden or on the decisions of the ECJ in EU.
2. THEORIES IN LEGAL DOGMATICS THE PROBLEM OF VAGUENESS AND

THE PROBLEM OF LEGITIMACY
Among general theories of legal dogmatics, one may mention, for example,
the theories of negligence, intent, rebus sic stantibus, loyalty between
parties in contract law, theory of adequate causation, theories of property
in private law, theories stating the goal of punishment (treatment,
deterrence, retribution etc.).
The main problem of such theories is that they are excessively vague.
For example, the so-called loyalty principle in the Swedish contract law,
increasingly popular in recent years, does not imply particular solutions
of hard cases, and is merely regarded as an auxiliary tool for interpretation
of statutes and contracts.9 It is not easy to see what job this tool helps to
perform. The same has been said about the theory of rebus sic stantibus.
Its teleological version made a kind of success in Sweden, yet its author
did characterized it as “a conglomerate of different principles with different
levels of preciseness and unclear relation to each other”.10
This vagueness is not accidental but rather reflects the tension between
the demand of scientific preciseness and the demand of political legitimacy.
Remember that the theories are normative. Were they precise, then they
would result in production of legal rules by scholars. This would be open
to criticism as ‘extra-parliamentary law-making’. On the other hand, the
vagueness of theories provokes the question what they are good for. Let
me now give some examples in a greater detail.
2.1. Theories on Adequacy in Torts

Since a long time, one is liable in torts in many legal orders for negligently
causing damage. Yet, a German legal scholar J. von Kries invented about
1880 a theory, according to which one is not liable when the causation was
not ‘adequate’. Consider the following example: A negligent coachman
falls asleep. The horse takes the wrong turning. The coach is struck by
lightning, which kills a passenger. The coachman’s negligence is a cause
of the passenger’s death, but the cause is not adequate. It would, however,
be adequate in another case, for instance when the chain of causation from
falling asleep to the passenger’s death does not involve lightning but a
driving into a ditch instead. In the latter case – but not in the former –
9
Nicander 1995/96, 49.
10
Lehrberg 1989, 277.
von Kries points out that we are dealing with a generalizable causation.
The negligence of the coachman was generally apt to bring about such an
accident and to increase the possibility or probability of it. In fact, von Kries
had two ideas; first that an adequate cause is generally apt to bring about
a given kind of a harm and secondly that an adequate cause relevantly
increases the probability of a given kind of a harm. Thus, an unwritten
principle of the law of torts was discovered that stipulates that one has to
compensate a damage only if it has been an ‘adequate’ result of the action
for which one is liable. But when is the causal connection ‘adequate’? The
concept of adequacy has been extensively discussed in the legal research.
Later on, different theories of ‘adequacy’ evolved,11 inter alia, the
following ones: The causal connection between an action and a damage is
adequate if, and only if, any action of this kind is apt to bring about (or
relevantly increases probability of) a damage of this type. The causal
connection between an action and a damage is adequate if, and only if,
this action makes a damage of this type foreseeable for a very cautious
and well-informed person (a cautious expert, a vir optimus). The causal
connection between an action and a damage is adequate if, and only if,
this action is a not too remote cause of the damage. The causal connection
between an action and a damage is adequate if, and only if, this action is a
substantial (important) factor in producing the damage.
Each theory of this kind has been proposed as the general theory of
adequacy, guaranteeing acceptable decision making. But each one, although
reasonable, is contestable. Moreover, the question how often various
theories imply different evaluation of adequacy in concrete cases is not
easy to answer. If the theories differ in their normative consequences, the
legal dogmatics acts as a kind of lawmaker. If they do not differ, what is
their competition good for?
A couple of generations ago, the theories of adequacy went out of
fashion. Several authors tried to replace them with something else, for
example to make liability dependent on ‘the purpose of protection’.12 But
the new formulations were even less clear than the old ones. The theory of
adequacy thus came back, often with a lesser claim of generality. This
happened, for instance, in die Lehre von der objektiven Zurechnung13 in
German Criminal law. The theory covers a certain number of cases, in
11
See Peczenik 1979, 153 ff.
12
See references in Peczenik 1979, 153 ff. See also Andersson 1993.
13
The most discussed cases are:
• A person wants to kill another with the help of thunderstorm. He sends the ‘victim’ to a
forest. The ‘victim’ is killed in the thunderstorm (case group: force of nature).
which a person has committed a crime according to the words of the law,
but in which it is according to the majority opinion of law scholars unjust
to be punished. German legal research made a systematic survey of such
cases. The level of abstraction of this doctrine is lower than that of
traditional doctrines of adequacy but the level of preciseness is higher.
2.2. Theory of Negligence

Negligence is an important precondition of liability and responsibility in
vast areas of the law, not the least torts, contracts and criminal law. Since
the time immemorial, the jurists proposed several principles, maxims and
theories aiming at drawing a demarcation line between what one is and
what one is not liable for. In part, the demarcation is based on negligence,
though there also exists strict liability without negligence and negligence
without liability, for example in the case of non-adequate results of
negligent acts, see above. Yet, what is negligence? In its essence, negligence
is a mental attitude for which one is blamed. For example, one knew that
one’s action may bring about the harm but did not care, or one did not know
it but should have known. The classical standard have something to do with
normality: one is blamed for carelessness because a normal person, a bonus
pater familias would take more precautions. The estimate of normality in
its turn is either based on frequency – what most people do in a certain
context is not negligent – or on a rather complex net of expectations. The
latter is difficult to analyze, yet it makes sense to say that one acted
negligently though many other people in one’s role act similarly. For
example, an organizer of a fashionable but extremely risky ‘canyoning’
tours in the Alps may be found negligent in spite of the fact that other
organizers of such things do more or less the same as he did. The standard
of normality has its tricky history that cannot be discussed here. An
• A person wants to kill another by infecting with a cold. He shakes hands and infects
this person with a cold. The ‘victim’ dies (case group: lack of social adequacy).
• A driver crosses red traffic light. 200 meters behind the light, he has an accident in
which a person is killed (case group: the sense of the norm).
• A person poisons someone with the purpose to kill. Before the victim dies, a third
person shoots and kills him (case group: action of a third).
• A person wants to hit another. A third person tries to kill the second by hitting him with
a stone on the head. In the last moment, the first interferes. Therefore, the stone hits the
victim’s shoulder, not his head. The victim survives (case group: risk lowering).
• A person shoots someone with the purpose to kill. The victim falls into the river,
swims to an island and dies there, not of the shot but because he has no food (case-
group: improbability).
interesting thing is, however, that, in the recent times, it has come under
attack from two different sides, namely from Richard Posner’s law-and-
economics movement and from the welfare-state politics. Thus, one can
be found liable in torts in the cases of negligence in spite of the fact that
what one did was quite normal. According to the economic theory, the
defendant’s conduct shall be judged by whether it promotes economic
efficiency (‘Learned Hand’s formula’). According to the social security
theory, the defendant shall be found negligent, if the burden of accidents
is thereby shifted from single individuals and spread over a large population
(‘the Deep Pocket Theory’).
The new theories are related to the old one in a very unclear manner.
One can try to assimilate them under the old theory of normality. This is
possible because normality can be judged in normative manner, not only
on the base of frequency. But one can also see the new theories as
competitors with the old one. This is the case, for instance, when a
Posnerian judge hopes to convince others that the law-end-economic
approach is the best one, point and finished. The third way out is to try to
make negligence dependent as a system with rules and meta-rules. For
example, Christian Dahlman14 distinguishes between three ‘negligence-
paradigms’ in torts, accompanied with the following meta-rules: (1) The
classical negligence paradigm shall be applied in cases, where the defendant
is an individual, who has caused the accident in his private life, (2) the
law-and-economics paradigm shall be applied in cases, where both the
plaintiff and the defendant are corporations or government bodies, (3) the
deep pocket paradigm shall be applied in cases, where the plaintiff is and
individual and the defendant is a corporation or a government body.
According to Dahlman, the respective rule dominates completely within
its own paradigm. The paradigm’s criterion is developed to promote only
the objective it serves. Other objectives are not taken account for at all.
2.3. A General Reflection about Adequacy and Negligence

This situation is to some extent similar to the evolution of the theory of
adequacy. Instead of one adequacy, one has now different kinds of cases
and adequacy in the classical sense is restricted to one kind. Instead of one
negligence, one has three kinds of cases, and the classical normality-
negligence is restricted to one of these.
However, this situation opens the question whether we still need the
umbrella-term, covering all the cases of ‘negligence’, according to all three
14
Dahlman 2000.
‘paradigms’. Similarly in the case of adequacy, Do we need the umbrella-

term ‘adequacy’, covering all the six cases discussed above? If we need
this term, what do we need it for?
2.4. The Right of Ownership

Aulis Aarnio15 has discussed some other examples of such theories, namely
theories about authorization, bills of exchange, the legal position of the
heir and right of ownership. Let me say something about the last one.
Under a long period, legal dogmatics utilized the traditional theory (T1),
according to which the right of ownership is, in principle, an unlimited
power of the owner over the object. At a certain moment, all the aspects of
ownership could belong to one and only one physical or juridical person.
Even if several persons were co-owners of the same thing, each had all the
aspects of ownership, albeit with regard to a part of the thing only, identified
either physically or ideally, e.g. in percent. A sale thus resulted in an
instantaneous transfer of ownership as a totality: first the seller and then
the buyer was a full owner. This traditional view has, however, met
difficulties in exceptional situations. This is the case, for example, when
the assignment of chattels is supplemented with a (suspensive) condition
or clause, according to which the ownership rights will not be transferred
to the assignee fully until after some later act or event. Then, there is an
interim period in the relationship between the assigner and the assignee.
The assigner no longer has full rights of ownership, but neither has the
assignee received full fights. For that reason, certain auxiliary theories have
had to be adopted in addition to the traditional theory of ownership. Thus,
the situation in the interim period has been characterized a potential right,
an expectative right or a conditional right of ownership.
According to the newer ‘analytic’ theory of ownership (T2), formulated,
among others, by Alf Ross,16 ‘ownership’ is an ‘intermediate’ concept,
related to two clusters of norms, the first determining conditions of
becoming an owner, the second prescribing legal consequences of being
an owner. If A bought the property or if he inherited it or if he received it
as a gift, then he owns the property. If he owns the property then he may
use it and he can sell it and he can start a legal action against a person
interfering with his use of it. The change of ownership is not, as the theory
T1, understood as an instantaneous event affecting all ownership rights,
15
Aarnio 1997, 256 ff.
16
Ross 1958, 170 ff. Earlier by Wedberg 1951, 246 ff.
but as a series of events which is composed of many stages. The change in

the components of the legal position of the owner may occur independently.
One can now interpret transfer of ownership as a process, extended in time,
in which one person successively acquires more and more aspects of
ownership.17 At a certain moment, a buyer can thus already be owners in
one respect, while other aspects of ownership still are ascribed to the seller.
Aarnio’s comment is that “the conceptual equipment of T2 makes it
possible to achieve a more detailed analysis of relevant problems than the
corresponding equipment of T1. This means, more detailed questions, and
further, more detailed and richer answers. On the basis of this fact, it seems
also to be well-founded to claim that the change from TI to T2 has been an
expression of scientific progress”.18
This example elucidates different problems:
• T2 has another philosophical background than T1. According to T1,

ownership was conceived as indivisible unity, not unlike substance. T2,
on the other hand, was affected by reductionist ontology of, among
others, Alf Ross, that did not recognize immaterial entities like this.
• T2 dissociated itself from any thought that the very concept of
ownership may have normative consequences. The normative content
of the law should, according to T2, be regulated by the lawgiver, not
by means of conceptual speculations performed in legal dogmatics.
• T2 encourages the creation (in legislation or in legal practice) of legal
situations where the rights traditionally belonging to the owner are
spread among many subjects. This may be used by the state to take over
some aspects of ownership and thus to interfere in private economy.
• Yet, though T2 appears to be more sophisticated than T1, it would be a
great mistake to simply reduce ownership to its components, that is, to
simple Hohfeldian rights of the owner. By using a terminology that
allows not only for these simple rights but also for the complex concept
of ownership one gains a tool of presentation, facilitating concise
description of the law.19 One also gains a tool for political debates. It
makes sense, for instance, to ask whether legislative restrictions of the
right of disposition of real estate property in some countries do not
mean something like expropriation. One can also compensate some
17
The idea, too, was developed by Ross. In some aspects even by Zitting 1959, 227 ff.
In fact, even earlier by a decision of a Finnish court in the 1880’s and the Finnish jurist
Torp (information from Lars Björne).
18
Aarnio 1997, 272–273.
19
This was recognized by Ross, 1958, 170 ff.
restrictions in one aspect of ownership with generosity in another one.

For example, a house owner may still be regarded as an owner, despite
hard restrictions of his right to re-build or rent a house, if he can freely
sell the house. This means that the idea of ownership as a single unit
with aspects linked to each other – almost abandoned by the analytically
minded jurists – is on its way back.20
The last point is the central one. In spite of all analytical progress, we
apparently still need the umbrella concept of ownership. Yet, what we really
need it for? Surely, it facilitates discussion. But is it only a rhetorical tool,
or can one make a logical model, showing in what manner it facilitates
discussion? Recent research gives reasons for optimism. A sophisticated
model of the required kind has been in fact elaborated by Lars Lindahl.21
What remains to be done is epistemological, ontological and methodological
reflection utilizing this model.
2.5. General Theories of Legal Method

Theory of the Sources of the Law As regards general theories of legal
method, one may mention standard German works on juristic method,22
ambitious theories such as Conceptual Jurisprudence,23 Jurisprudence of
Interests,24 teleological theories25 or meta-theories such as Wróblewski’s
theories about ideologies of statutory interpretation.26
One can also mention the Nordic theory of the sources of the law.
Torstein Eckhoff27 has elaborated its classical formulation, according to
which there exist a number of ‘source factors’ that are ‘harmonized’ in the
legal practice, inter alia the texts of statutes, travaux préparatoires, the
purpose of the statutes, judicial practice, administrative practice, custom,
works in legal dogmatics and so called ‘real considerations’. Eckhoff’s
work was very influential in Scandinavian legal theory and in Norwegian
public law, albeit perhaps less influential in Norwegian private law. The
present author has attempted to formulate the underlying structure of this
20
See also Simmonds 1998, 195 ff. about the return of Will and Interest Theory after
Hohfeld.
21
Lindahl 2000.
22
E.g., Larenz 1983.
23
Cf., e.g. id. 19 ff. on Puchta.
24
Cf., e.g. id. 43 ff. on Ihering.
25
Cf., e.g., Ekelöf 1958.
26
Wróblewski 1992, 265 ff.
27
1993.
theory. In his view, the sources of the law are ‘authority reasons’.28 This
excludes Eckhoff’s “real considerations” from the list of the sources. Then,
the sources of the law are divided into three categories, namely such that
a person who performs legal argumentation must, should or may proffer
as authority reasons.
Thus, in many states in European Continent, the following can be said.
• All courts and authorities must use applicable statutes and other
regulations in the justification of their decisions.29 The expression ‘other
regulations’ refers, for example, to general rules issued by the
Government on the basis of statutory authorization.
• When performing legal reasoning, one should use precedents and – in
some countries – legislative preparatory materials as authority reasons,
if any are applicable.30
• When performing legal reasoning, one may use inter alia the following
material.
Some custom (so far it does not constitute a must – or should – source
of the law);
writings in legal dogmatics;
foreign law, unless it is incompatible with some overriding reasons, such
as the so-called ordre public.
Of course, this enumeration is by far not exhaustive.31 Moreover, one can

elaborate more complex classifications of the sources of law. But only
vague definitions of the ‘must-sources’, ‘should-sources’ and ‘may-
sources’ of the law are universally acceptable. Precise interpretation of
these concepts varies from one legal order to another, from one part of a
legal order to another and from one time to another. Different people can
suggest different precise interpretations, serving different purposes etc.
The following comments elucidate the complex meaning of ‘must’,
‘should’ and ‘may’. First of all, the ‘must-sources’ are formally binding;
the ‘should-sources’ are not. Second, an important property of legal norms
binding de iure (i.e., those that must, not merely should be regarded as legal
authority reasons) is their necessity for legal argumentation. In Continental
28
The term has been used by Summers1978, 707 ff. in a somewhat different way.
29
The problem of the direct effect of the EU law is left out of considerations here.
30
One should also use international conventions, underlying the applicable national
legislation, together with preparatory materials and other interpretatory data concerning
these conventions (cf. Pålsson 1986, 19 ff.).
31
See Peczenik 1989, 313 ff.
legal systems, only legislation and custom are argumentatively necessary

in the following sense: One can derive legal consequences from many
mutually independent sets of premises. But regardless which alternative
one chooses, a statutory provision or a custom must at least indirectly
support the consequence. A conclusion without any support whatsoever
(material or procedural) from a statute or a custom is, by definition, not
legal.32 Third, the ‘must-sources’ are more important than the ‘should-
sources’ which are more important than the ‘may-sources’. One way to
make this hierarchy of importance precise is what follows.
• The more important sources are stronger reasons than the less important
ones.
• Reasons strong enough to justify disregarding a less important source
may be weaker than those required to justify disregarding a more
important one.
• If a more important source is incompatible with a less important one,
e.g. if a statute is incompatible with a view expressed in legislative
preparatory materials, the former has a prima facie priority. One thus
ought to apply the more important source, not the less important one,
unless sufficiently strong reasons support the opposite conclusion.
• Many cumulated weak reasons often take priority over fewer strong ones.
• Whoever wishes to reverse the priority order has a burden of reasoning.
One may also point out that the consequences of disregarding the
‘should-sources’ are usually milder then consequences of disregarding
‘must-sources’.
A comparison of this theory with Eckhoff’s reveals the following important

difference. Eckhoff’s theory is an enumeration of arguments used in legal
reasoning. Programmatically, it is extremely cautious in establishing any
priority order between the sources. The present author’s theory, on the other
hand, does establish a defeasible priority order. For example, statutes go
before precedents, yet good reasons exist that can defeat this priority order.
A non-defeasible priority order would distort legal practice. In general,
juristic theories about the sources of the law oscillate between efforts to
introduce a non-defeasible priority order, and to deny that any priority order
32
Statutes and custom thus had a special position in the classical Continental theory of
the sources of law in 19th Century. They had the power to create rights and duties of
private persons; they also determined the limits of legal argumentation (cf. Malt 1992,
55 ff.). The classical theory also recognized a number of secondary sources of the law
(argumentative auxiliary tools) such as “the nature of the things”, legal practice, travaux
préparatoires and foreign law (id. 52).
is possible. This leads us back to the main problem. What is the use of
defeasible priority orders? Are they not a mere façade, concealing the fact
that x comes before y – unless not?
2.6. Law and Economics

Let me add something about another, at least equally general theory.
Richard Posner33 has elaborated a theory, according to which the function
of the law is to maximize wealth in economic sense, revealed on the
marketplace.34 Posner’s assignment principle says that entitlements should
be conferred to that party who would have purchased it had the transaction
costs not made it irrational for him to do so.35 This theory claims to be
applicable to all parts of the law. It also advises the lawgiver and the courts
as to the choice between different kinds of legal regulation. For example,
the lawgiver can deter a factory from polluting a river by establishing
punishment, by making the polluter to pay damages, by assigning a price
for ‘rights to pollute’ etc. The choice is right if it maximizes wealth.
The theory has an underpinning in moral philosophy. However, Posner
changed his mind as regards what underpinning. From an initial utilitarian
defense of wealth-maximizing policies, he turned to a consent-based
approach, and then to a pragmatist position.36
The utilitarian underpinning is obvious but insufficient. Utilitarianists
think that the main moral principle is to maximize utility, Posner thinks
that the main principle for the law is to maximize wealth. Isn’t wealth
utility? Alas, the converse does not hold: there are some utilities different
from wealth in Posner’s sense. For instance friendship and family is an
important utility for any normal person, it makes her happy and fulfills
her preferences. However, friendship etc. eludes Posner, since one cannot
sell one’s friends on the market place.
The consent underpinning of the theory may be summarized as follows:
All individuals will in choices involving uncertainty attempt to maximize
their expected wealth. Thus, wealth ought to be maximized. However, “if
33
Cf. Posner 1990 passim. Posner has been inspired by the Nobel prize winner Ronald
H. Coase.
34
“The ‘wealth’ in ‘wealth maximization’ refers to the sum of all tangible and intangi-
ble goods and services, weighted by prices of two sorts: offer prices (what people are
willing to pay for goods they do not already own); and asking prices (what people de-
mand to sell what they do own)”, Posner 1990, 356.
35
Spector 1997, 360.
36
Id.359. Posner used a utilitarian (i.e., consequentialist) strategy to justify the instrumen-
tal value of wealth in 1979. He turned to a consent-based approach (i.e., Kantian) in 1980.
we grant that it seems plausible that some individuals prior to the

enforcement of a judicial principle can identify themselves as losers by
the enforcement of the principle, then it is impossible to assume unanimous
consent”.37 Simply speaking, the losers would not agree to the social
contract binding them to Posner’s theory.
Hence the pragmatic turn of Posner’s theory: “We look around the world
and see that in general people who live in societies in which markets are
allowed to function more or less freely not only are wealthier than people
in other societies but have moral political rights, more liberty and dignity,
are more content (as evidenced, for example, by their being less prone to
emigrate) – so that wealth maximization may be the most direct route to a
variety of moral ends”.38 Posner calls this pragmatic justification of wealth
maximization. It is not easy to understand what the term ‘pragmatic’
precisely means in this context.39 Let me present here Horacio Spector’s
interpretation: “Suppose a society has certain shared ends and there is
widespread agreement that a certain policy will further those ends. Invoking
those ends is in an intelligible sense a way of justifying the policy. However,
it is not a case of ethical justification, for resorting to the ends does not
necessarily assume that they are morally valid. All that is claimed is that,
as a matter of fact, society pursues such and such ends, and that the policy
is conducive to the promotion of those ends.”40 Spector continues: “Suppose
Posner claims that market institutions and human rights are now favored
by people in modern societies, and that this is the reason why they are
worth of support. In a preference-satisfaction normative theory, market
institutions and human rights are justifiable insofar as they can satisfy
human preferences. . . . By the same token, market institutions would be
justifiable as institutional settings where human preferences are maximally
satisfied . . . I am not sure whether this view can be attributed to Posner.
But if it can, his entire position is no different from preference-based
utilitarianism”.41 If so is the case, Posner’s theory cannot any longer
proclaim itself universally applicable, but only applicable to goods that
are in the market.42 Furthermore, it is a pragmatic matter what is and what
37
Reidhav 1998, 112 ff., concluding, as follows: “It has been suggested that Posner’s
theory is contractarian as well as utilitilitarian but as we have seen in this chapter and in
the light of previous chapters it is neither” (115).
38
Posner 1990, 382. Cf. Posner 1995, 1–25.
39
Posner (1995, 1–25) provided an extensive elucidation but no clear concept.
40
Spector 1997, 366.
41
Spector 1997, 368.
42
Spector 1997, 369.
is not in the market. Consequently, the question to what problems

Posner’s theory is rightly applicable and to what not must be answered
by a complex mixture of consequentialist, non-consequentialist, and
majoritarian considerations. Thus, the scope of the wealth-maximizing
principle must be confined to those areas of the law where basic values
such as autonomy, life, health, and physical integrity are not directly involved.
By contrast, if the good is not in the market, it is incommensurable with
the theory.
If Spector interpretation is right, the conclusion must be that Posner’s
theory, despite its exaggerated claims, is just one of many theories of legal
dogmatics, helping us to understand and normatively improve some (not
all!) parts of the law. But then the question occurs, What part of the law is
the theory of law and economics applicable to? It seems that the limits of
its application are as vague as the other theories discussed above. Is a
precise theory with a vague range of application better than a vague theory?
Better for what?
3. DEFEASIBILITY IN LEGAL DOGMATICS
To discuss the point and function of such theories, we must say something
about the place of legal rules in legal argumentation. At first, let us make
distinction between decisive and contributing reasons. 43 Decisive
reasons determine their conclusions. If a decisive reason for a con-
clusion obtains, the conclusion must also obtain. Some decisive reasons
determine their conclusion without any possibility of an exception.
Other decisive reasons are, however, defeasible. In other words, the
possibility that such a reason is defeated cannot be excluded in advance.
A decisive-and-defeasible reasons determine their consequences in
normal circumstances, but do not determine their consequences if the
circumstances are not normal.
Contributing reasons, on the contrary, do not ever determine their
consequences by themselves. There can be contributing reasons that plead
for and against a particular conclusion. It is the set of all contributing
reasons concerning a particular conclusion, both the reasons pro and con,
43
The concept of a ‘reason’ may be defined in many ways. What is important is that a
reason is a fact, or a belief in a fact. The following definition appeals to the psychologi-
cal relation of holding one belief on the basis of another: “A belief P is a reason for a
person S to believe Q if and only if it is logically possible for S to become justified in
believing Q by believing it on the basis of P” (Pollock 1986, 36).
that determines whether the conclusion holds. One can also say that
contributive reasons are pro tanto reasons.44
We will now distinguish between rules and principles.45 Once we know
that a certain provision is a principle, or that a certain practice or deliberation
expresses a principle, we know that it is a contributing reason, not a decisive
reason. Principles have a dimension of weight and reasons based on principles
need to be weighed against reasons based on colliding principles, if there
are any. All use of principles in legal reasoning is for weighing. A lawyer is
not supposed to just follow a principle. He is supposed to confront with it
and to weigh it against other principles relevant for the case. Rules are
different. The different logical roles of rules and principles can be accounted
for by assuming that rules exclude the application of principles, rather than
by saying that rules outweigh principles.46 If the application of a rule excludes
the application of a principle, there is no need for weighing anymore, because
the principle does not generate a reason in this particular case. In other words,
if the facts of a case satisfy the conditions of a rule, so that this rule is
applicable to this case, an exception is raised to all principles that might
identify facts of the case as reasons. Cases that have applicable rules are in
principle not judged on the basis of principles.
Another way to approach the same issue is to state that legal rules
generate decisive reasons for legal conclusions. Assume now that we know
that a certain legal provision is a rule, or that a certain practice expresses
a rule. Once we know that it is a rule, we can say that it is a decisive reason,
not a merely contributing reason. The facts of a case that make a rule
applicable form, if the rule is applied, a decisive reason for the rule’s
conclusion. Such a decisive reason needs not to be balanced against other
reasons anymore. If contributing reasons collide with it, the decisive reason
wins by definition, so there is no need for weighing.
44
Kagan “distinguishes between ‘prima facie’ reasons (reasons ‘at first sight’) and
reasons ‘pro tanto’ (‘insofar’). Kagan suggests that certain considerations may appear to
be reasons for a decision or a judgment at first sight, so to speak, but then turn out to be
irrelevant when other aspects of the situation have been taken into consideration . . . A
prima facie reason can be undercut, so to speak, by other aspects of the situation, and
then drop out of sight altogether. It is different with pro tanto reasons. . . . Such reasons
are never undercut, even though they may be outweighed in some cases by reasons to the
contrary, if the latter are stronger . . . The idea of weighing reasons seems natural for the
pro tanto reasons, but it is not appropriate for the prima facie reasons that aren’t pro
tanto” (Rabinowicz 1998, 21. Cf. Kagan 1989, 17 and Peczenik 1998, 57).
45
In a way that is closely related to the opinions of both Dworkin (1977) and Alexy
(inter alia 1985 and 2000).
46
See Raz 1975, Schauer 1991, and Hage 1997.
Yet, rules admit exceptions. In other words, legal rules are defeasible
reasons for legal conclusions. Exceptions to the rule exclude its application.
If there is an exception to a rule in a concrete case, the rule is not applied
to that case. There are at least three kinds of reasons to make an exception:
• Some exceptions are explicitly formulated in the law.

• Other exceptions are implied by logical contradictions in the law. If
two rules with logically incompatible conclusions are applicable in the
sense that their conditions are satisfied, there must be an exception to
at least one of them.
• Another reason to make an exception is when there are other reasons
not to apply the rule, which outweigh the applicability of the rule as a
reason for application. In such a case, there is a balancing of reasons
for and against application of a rule. If the outcome of this balancing is
that the rule must be applied, then the conclusion of the rule follows
indefeasibly. However, if the outcome is that the rule ought not to be
applied, an exception to the rule is raised, with the effect that its
conclusion does not follow.
The logical distinction between rules and principles does not answer the
question whether some rule-like entity in the law is a rule or a principle.
In the real world, the use of legal provisions varies. In most cases, legal
provisions are applied if their conditions are satisfied and they generate
decisive reasons. With hindsight, such cases may be called routine ones
(‘easy’ ones). Once a case is identified as a routine case, no values and no
choices are necessary to solve it. A decision in such a case follows from
an established legal rule together with the description of the case.
Sometimes, however, there are major objections against treating legal
provisions as ‘hard’ rules. Then one is prepared to make an exception. Such
cases are with hindsight called ‘hard’ ones. There are also hard cases
resulting from interpretation problems. In hard cases, almost all legal
provisions can be defeated on the basis of weighing contributive reasons
for and against their application. Then the logical behavior of legal provisions
resembles more that of principles than that of rules. A hard case requires a
weighing that can justify a deviation from the wording of the law.47 The
solution of a hard case follows from a set of statements consisting of the
legal rule in question, interpreted literally or adjusted, the description of the
case and a reasonable (though not indubitable) additional premise. Such an
47
To be sure, routine cases, too, involve values and choices, but these are commonly
shared and uncontroversial.
addition can consist of a norm- or value-statement. Thus, the use of rules

varies between routine cases and ‘hard’ cases. The everyday use of rules is
not to weigh them. Weighing rules is not an everyday defeasibility, but hard-
case defeasibility. For a lawyer has a good reason to ask questions about the
weight of rules first when these are very objectionable.48
Once we understand that legal rules, though decisive reasons, are
defeasible, we understand the point of theories in legal dogmatics. The
theories produce principles and they also produce defeasible rules. In other
words, legal dogmatics may produce ‘subsidiary’ general rules, from which
the statutory rules are exceptions. In classical Continental systems, such
general rules are often produced by general theories, such as those discussed
above.49
4. THE POINT OF LEGAL DOGMATICS: COHERENCE
By means of production of general and defeasible theories, legal dogmatics

aims at obtaining coherent picture of the law. It aims at presenting the law
as a net of principles, rules, meta-rules and exceptions, at different levels
of abstraction, connected by support relations. The argumentation used in
order to achieve coherence involves not only description and logic but also
evaluative (normative) steps. For example, arguments based on statutory
analogy, argument e contrario, goal reasoning in the law etc. are certainly
not purely descriptive. The choice of approach in legal dogmatics is also
based on normative standpoints, even if the chosen approach itself claims
to be ‘value-free’, for instance evaluations are necessary to opt for the law-
and-economics approach. The evaluative reasoning steps are justifiable by
48
In this context, one may answer the question asked by Wlodek Rabinowicz (1998):
“Can Rules Be Weighed? According to Peczenik, the process of weighing reasons is
central for justification. Ideally, every reason can and should be weighed against other
reasons. Applied to law, legal judgments are arrived to by such a process of weighing
where what is weighed are not just values and principles but also legal rules.” He con-
trasts my position with Dworkin’s, characterized, as follows: “There is no room for weigh-
ing a valid rule against other considerations. Certainly, the interpretation of a rule might
involve some process of weighingþ But when a particular interpretation has been deter-
mined, there is no room anymore for weighing the rule against other considerations,
according to Dworkin. If it is valid, the answer it supplies must be accepted. It would be
interesting to know why Peczenik rejects this position”. Now, we do not reject the differ-
ence between rules and principles. But we do say that both rules and principles are defea-
sible, and that the defeat is a result of weighing.
49
Legal dogmatics may also produce exceptions to statutory rules but this is less inter-
esting in the present context.
reasons, ultimately by moral reasons. Thus, the system of law as it is

presented in legal dogmatics should not only be internally coherent, but
should also be harmonized with its background in the form of morality
and (political) philosophy.
What is coherence, then? Jan Wolenski incorporates the idea of
coherence into so called classical definition of knowledge. “According to
this definition, knowledge consists in true justified belief. More explicitly,
the phrase ‘X knows that A’ . . . is equivalent to the conjunction of the three
following conditions (a) X believes that A, (b) A is true, and (c) X’s belief
is (correctly) justified . . . Where can coherence enter into the classical
definition of knowledge? The condition (c) is the only suitable place. Thus,
we can combine the classical theory of knowledge with a coherence theory
of justification”.50
The main point of theories of coherence is epistemological.51 What is
the relation between the coherent system of beliefs and truth? We must
deal with the ‘isolation objection’: cannot a coherent system of beliefs be
false, isolated from the world? This objection has two versions, let me call
them local and total. The local version is a simple misunderstanding. It
feeds on highly coherent but false fiction novels and moral prejudices.
Cannot one, for instance, agree with Joseph Raz52 that the “racist’s belief
in the untruthworthiness of members of a certain race, bred on prejudice,
is not justified even if it coheres best with all the racist’s other (mostly
racist) beliefs”? No, one cannot. For all the other racist’s beliefs cannot be
mostly racist. Views concerning human races are only a small part of the
total belief system of any person, including Adolf Hitler. In order to function
in this world, any person must have beliefs about physical phenomena,
geographic locations, animals, plants, food, language and so on. A prejudice
can be internally coherent, but it does not matter if it does not cohere with
other part of a person’s total worldview.53
In this way we arrive at the total version. Here we approach the most
profound problem of coherentist justification, that is, its circularity. If
nothing is an unshakable foundation of knowledge and everything may
be doubted, I need reasons for reasons for reasons . . . etc. To avoid an
50
Wolenski 1998, 31.
51
Cf. Peczenik 1998b passim on epistemological problems concerning coherence in
the law.
52
Raz 1994, 284.
53
By the way, Raz himself writes that “coherence theory . . . must relate to the totality
of one’s views”; 1994, 286.
infinite regress, a coherentist must accept circularity. Indeed, a coherent

system of acceptances and preferences is like a network of argumentative
circles, mostly quite big ones. Metaphorically, a chain of arguments,
sooner or later, bites its own tail, and thus may be represented as a circle.
In such a chain, p1 supports p2, p2 supports p3 etc. . . . and pn supports p1.
‘Support’ is only explicable as a reasonable support: p2 follows from p1
together with another premise, say r1. This premise r1 is reasonable, which
implies that it is a member of another such circle. This circularity makes
it impossible to logically prove that coherence renders truth. The “claim
that justification depends on coherence is not intended as an argument
to prove to a skeptic that we are truthworthy. It is the claim that our
justification for what we accept depends on a system of acceptance
containing general claims about our competence and truthworthiness.
When there is an adequate match between acceptance and reality,
coherence converts to knowledge”.54
To understand coherentism, one must keep in mind that neither
skepticism in general nor this isolation objection in particular has privileged
status, compared with other beliefs. It is merely a competitor of other
beliefs. If someone says that my personally justified, coherent system of
acceptances and preferences is not ‘objectively’ justified, he has to win
the competition with my system.55 Consequently, if I want to argue that I
am justified in accepting or preferring x, I must appeal to my system of
acceptances and preferences at that time. And if the skeptic wants to
convince me that I am wrong, the appeal to my acceptance system at that
time is again all he can make. If what the skeptic accepts is less reasonable56
than the objection, he loses. The loss means that the acceptance in question
is defeated.
Let me now change the perspective: The question to deal with here is
no longer, Can an individual achieve knowledge (and thus access to truth)
by recourse to reasonability in the light of the background system of
acceptances and preferences? but: What circumstances indicate that this
54
Lehrer 1989, 275. ‘Knowledge’ is an epistemic concept. It is not logically equiva-
lent to any combination of natural (non-epistemic) concepts. “Coherence is the glue
which bonds the natural world, as we conceive of it, to the world of epistemic value, as
we conceive of that. The glue of coherence requires matching surfaces of acceptance and
truth to hold fast, but it does not bond across possible words” (Lehrer 1997, 76).
55
Cf. Lehrer 1990, 176 ff.
56
Another thing is that no reasonable definition of ‘reasonable’ exists. That is why
Lehrer has taken reasonableness as a primitive concept (id. 1990, 127).
test of reasonability has been passed? Alexy and Peczenik57 have developed
some criteria (or rules of thumb) of coherence of a theory. The word ‘theory’
is used here in a broad sense, covering both descriptive, for example
empirical theories, and normative or evaluative theories (norm systems or
value systems). The more the statements belonging to a given theory
approximate a perfect supportive structure, the more coherent the theory.
Ceteris paribus, the degree of coherence of a theory depends on such
circumstances as how great a number of supported statements belong to
it; how long chains of reasons belong to it; how many chains of reasons
support one and the same conclusion; how great number of general concepts
belong to it; how high the degree of generality of these concepts is; how
great number of cases it covers; and how great number of fields of life it
covers. The degree of coherence is determined by weighing and balancing
of the criteria. For example, the supportive chain of reasons may be
particularly long when one uses less general concepts, and shrink
substantially when the concepts applied become more general. In such a
case, one must perform a complicated act of weighing in order to answer
the question which theory is more coherent, the more general one, or the
one containing the longer chain of reasons.
Back to theories in legal dogmatics. Ceteris paribus, the degree of
justification of such a theory is higher, the better it fulfills the criteria of
coherence. Ultimately, the theory is justified, if it fits the total system of
one’s acceptances and preferences, as long as this system has not been
corrected by subsequent information and subsequent intervention of other
people. In other words, theories about negligence, adequate causation,
ownership etc. are justified as long they fit one’s general and particular
views about the law, morality and society, together with one’s views about
justifiability, reality and other philosophical topics. This fit is perhaps
not quantifiable58 but human beings have resources, making it possible
to judge on such things.
5. CRITICISM AGAINST LEGAL DOGMATICS. AN OUTLINE OF ANTI-

CRITICISM
However, generations of critics repeatedly attacked legal dogmatics.

Indeed, criticism has been directed against all legal argumentation, both
57
Alexy and Peczenik 1990 cf. also some additions in Peczenik 1989, 158 ff.
58
Arne Schütt (Berlin) made this point in oral communication.
in legal practice and in legal dogmatics. Legal argumentation has been

sometimes regarded as a mere façade, concealing the fact that the lawyers
execute power. Let us restrict the discussion to legal dogmatics. It has
been a target of several kinds of criticism: empirical, morally-political
epistemological, logical, and ontological.
The following classification of philosophical positions is helpful. The
positions are arranged in triangles. The left corner of the triangle points at
positions oriented towards the limits of rational reconstruction, seen in the
perspective of an ideal individual observer. The right corner of the triangle
points at positions oriented towards the (abstract) description of social
phenomena. The five triangles refer to legal philosophy, moral philosophy,
epistemology, ontology and logic sensu largo.
Morally-Political Problems 1:
The source of normativity in the law
Reason Information about
of an individual,e.g., society, e.g.
Rationalist Legal Positivism,
Natural law Historical School
No objective normativity at all, e.g.

Hägerström’s Legal Realism
Morally-Political Problems 2:
The source of normativity in morality

of an individual, e.g. society, e.g.
Kantian Constructivism, Communitarianism
Hare’s utilitarianism
No objective normativity at all, e.g.

Non-cognitivism Hägerström’s value nihilism
Epistemological Problems:
The sources of knowledge

of an individual,e.g. society, e.g.
Foundationalism, Conventionalism
Coherentism
No objective knowledge at all,

Epistemological skepticism
Logical Problems:
Valid reasonings
Logically necessary, Actually

deductivism performed in the
society, including
defeasibility
(and induction)
No objectively valid reasonings,

logical skepticism
Ontological Problems:
Reality
Simple, e.g., Complex: including

physicalist supervenience of
reductionism social entities on
brute entities
No objective knowledge at all,

Ontological skepticism
In order to comment the triangles, let us start with skepticism. Skeptics

are taken seriously in the law and in morality. Epistemological skeptics
seem to be rather strange, but this species is by far not extinct. Ontological
skeptics are more exotic, to find them one perhaps needs a journey to
Ancient Greece. Logical skeptics do not deserve much attention.
Practical people, among them lawyers, emphasize society, because all
practically useful information comes from it. Philosophers emphasize often
the individual, who in his own system must find reasons for his reliance
on society. Thus, lawyers tend to be attracted to legal positivism, historical
school, epistemological conventionalism, the view that social entities really
exist, and reliance on defeasible reasoning. At least, they are thus attracted
before they start reflecting philosophically. Upon reflection, a lawyer can
take any philosophical position whatever.
This observation actualizes the problem of conflicting perspectives on
the law. At least three perspectives are interesting in this context. The first
one is the perspective of judges and officials. They are interested in the
question how to decide cases. In doing this, they are usually inclined to
follow legally established rules, and not to reason at a high level of
abstraction.59 The second is the perspective of legal dogmatics. It picks up
questions from the first perspective (the judge’s ‘how should I decide?’)
and extends them, makes them more profound, as profound as possible
without losing normativity. Hence, legal dogmatics needs bridges to
normative, moral and political, philosophy. A passage to another – perhaps
even more profound – philosophical perspective, emphasizing ontological
doubts about legal and moral norms, is not correct in the context of legal
dogmatics because ontologically minded philosophers are usually not
inclined to solve normative questions at all, instead they tend to dissolve
them.60 Yet, this ontological perspective is quite convincing in its own
context. This observation leaves a philosopher of law with the following
choice:
• He can opt for the profound ontological perspective, thus undermining

justification of legal dogmatics.
59
Joseph Raz’s theory of rules as exclusionary reasons, combined with his theory of
‘detached’ legal statements made by law teachers and lawyers, can be taken as a mani-
festo of this perspective. According to Raz (1979, 153–154), “a detached legal statement
is a statement of law, of what legal rights or duties people have, not a statement about
their beliefs, attitudes, or actions, about the law. Yet a detached normative statement does
not carry the full normative force of an ordinary normative statement. Its utterance does
not commit the speaker to the normative view it expresses”.
60
Hägerström, Schlick etc.
• He can accept perspectivism as his meta-philosophy, thus stating that

legal dogmatics is justifiable on its own terms, though perhaps
unjustifiable in another – more profound – perspective.
• He can state that the perspective of legal dogmatics is the true one.
The position taken in this article regards all kinds of skepticism as

fallacious. Moreover, it takes the positions on the left side of the triangles
as ideals, and the positions on the right side of the triangles as mere
approximation. That is, the theory anticipated here is natural-law, utilitarian,
coherentist, reductionist and deductivist at the idealized, ultimate level
but historicist, communitarian, conventionalist (Kuhn, Popper), non-
reductionist and admitting defeasibility at the approximation-level.61 For
example, in ontology, one must be a physicalist on the level of ultimate
individual reason, but a conventionalist supporter of supervenience at the
practical level. I must omit here complex interrelations between the
positions on the left side, that is, on the level of ultimate individual reason.
One brief remark is, however, proper. Namely, the question occurs, Is it
possible to maintain a theory that is both natural law and reductionist? Since
the question concerns the ultimate level of reason, only a super-human
intelligence could answer it without doubt. However, I find it plausible to
think that human nature – to be described in terms of advanced science
beyond our present knowledge – causes normal human beings to endorse
objective values that determine the best and thus binding morality and the
best and thus binding law.62 This vision is reductionist in the causal sense:
the content of value-statement is causally determined by the facts described
in this future science.63
It seems that this philosophical mix facilitates understanding of the
traditional (Western) legal practice and legal scholarship. The point is to
adapt philosophical choices to the practices of the law. This is all right,
since philosophy is nothing more than a generalization of knowledge about
61
The approximation-level may be conceived according to R.M. Hare’s ideas about
the ‘prole’: 1981, 44 ff.
62
This is plausible for the reason of coherence. It seems to be the only way to avoid the
insuperable gap between theoretical reason and practical reason, the first finding causes
and the second beyond causality. For obvious reason, this subject cannot be discussed
here.
63
To avoid excessive descriptions of what only the future intelligences could know, I
do not try to say anything about whether this vision is reductionist in a stronger sense,
stipulating that the meaning-content of value statements can be defined as equivalent to
meaning-content of physical statements of future science.
various segments of the world.64 Legal practices are an important segment

of the world.
In sum: The life program of the present author is to mutually adjust
philosophy to the practices of the law, not to force the latter into a chosen
philosophical position. Such a mutual adaptation of law and philosophy
can make legal argumentation a bit more sophisticated, but it will probably
not produce revolutionary changes in the law. Neither is it probable that
experience of legal dogmatics will justify revolutionary changes in
philosophy. But it can reinforce the ongoing trend to make philosophical
analysis more open for defeasible argumentation. The idea of defeasibility
has been recently used both in the context of artificial intelligence research
and in epistemology.65 A law theorist who welcomes this fact can give
examples from his own experience.
But a big part of this program still waits for elaboration. Until the job is
done, legal dogmatics remains a source of unsolved philosophical
problems.
6. CONSEQUENCES FOR POLITICAL PHILOSOPHY
I have argued that the system of law as presented in legal dogmatics, should
not only be internally coherent, but should also be harmonized with its
background in the form of morality and (political) philosophy. Since this
process of harmonizing is governed by the idea of coherence, it can be
represented as a reflective equilibrium. This observation actualizes the
relation of the theory presented here to other theories of a similar kind, for
instance to Habermas’s theory.
Let me begin with stating the main difference of approach. Legal
dogmatics has mostly been concerned with the problem of legal knowledge.
In other words, a fruitful philosophical extension of legal dogmatics is
epistemological. Yet, today, the emphasis is often elsewhere. The presently
dominating philosophers of law – such Rawls, Dworkin, Habermas, Raz
etc. – focus rather on political legitimacy than on epistemology.
An influential idea in political philosophy is that of deliberative
democracy. If democracy is to work properly, the majority rule and rights
must be completed with a deliberation procedure, allowing for more
detailed and historically changeable justifiable standards.66
64
Cf. Castañeda 1980 passim.
65
Cf., e.g., Prakken and Sartor 1997.
66
Cf. Cohen 1989, 146–147.
A clear-cut theory of deliberative democracy would be a procedural one:

Whatever results from free, reasoned, equal and consensus-oriented
deliberation would be defined as just and right. Thus, according to Jürgen
Habermas’s discourse principle, norms of conduct are valid if and only if
those possibly affected by them could accept these norms as participants
in an ideal rational discourse. Rational discourse about public matters can
only be achieved within the framework of the law. In this framework, the
principle of rational discourse becomes the principle of democracy.
According to this principle, legal norms may claim legitimate validity only
if all legal consociates would accept them in a perfect discursive procedure
of law-making.67 In Habermas’s ‘postmetaphysical thinking’,68 the same
applies to basic rights. These are no longer grounded in religion or
metaphysics but in the political process as such, and ultimately in rational
discourse.69 Since the agreement of all legal consociates is a ‘discursively
purified’ and, therefore, rational act of self-government, no valid norm can
violate a basic right.
Habermas thus believes that a perfectly rational procedure of del-
iberation must render substantively correct results. However, this theory
is open to objections.
• Cannot the perfect discursive procedure lead to unjust and un-

reasonable results, for instance because the participants are nasty
or stupid? Or can the discourse be so perfect that it automatically
corrects the results of nastiness and stupidity? We simply do not
know it.
• Moreover, Habermas’s procedural theory is ‘a total idealization’.70
As such, it is almost empty. Even if it could tell us that the results of
the perfect discourse must be correct, we do not know – and cannot
know –what the final content the conclusions of perfect debate would
have.
• Neither can we know whether a result of the perfect discourse is final
or not. Nothing precludes the discourse from going on indefinitely.
But human beings are neither perfect nor eternal.
67
See Habermas 1992, 135 ff. On criticism of Habermas’s principle of democracy see,
for example, Alexy 1994, 227–238; cf. also Peczenik 1995, 69–71, 523.
68
See Habermas, 1992, 83, 87, 127.
69
Consequently, in Habermas’s catalogue of rights, priority is given to basic political
rights (guaranteeing the democratic process), see id.155, 320, 529.
70
Alexy 1994.
In brief, the purely procedural theory of democracy can at best give us an

unreachable ideal to approximate, but not a standard to judge actual
differences of opinion.
Consequently, Amy Gutmann and Dennis Thompson have developed a
theory of deliberative democracy in which procedural principles are
supplemented with substantive ones and discussed from the second-order
perspective.71 All those principles express, in various forms, the idea of
reciprocity.72 In spite of this substantive addition, this theory resembles
Habermas’s one in an important respect. It is a second-order theory,
formulating the ultimate goal of deliberation, but unable to tell us much
about the substantive results of it.
No doubt, the idea of deliberative democracy is plausible. It must,
however, be adjusted to the heritage of legal dogmatics. I agree with
Gutman and Thompson that there are some provisional principles of
rational discourse, some provisional principles of democratic procedure
and some provisional substantive principles, moral and political. They give
us an idea of the goal of the political process but not much information
about its correct outcome. If we wish such information, we must rely on
the tradition of legal principles, as formulated by the courts and legal
research.
To facilitate democratic deliberation, we need both strong courts and
strong legal dogmatics. The necessity of strong courts is eminently
plausible. In many countries, the courts check and balance the elected
legislative through material review of constitutionality. But why legal
dogmatics? Because the courts left alone – without aid of legal research –
would tend to focus on particular cases to be decided. They would have
difficulties to reach the level of abstraction necessary for optimal coherence
of the law. If limitation and change of the constitutional constraints of
majority rule is left to courts alone, the risk of arbitrariness would not be
eliminated. On the other hand, the courts that have access to the scientia
iuris, can base their opinions on more elaborated value system. With the
71
Gutmann and Thompson 2000, 163. Cf. id. 167: “The principles of deliberative de-
mocracy are distinctive in two significant respects: they are morally provisional (subject
to change through further moral argument); and they are politically provisional (subject
to change through further political argument”.
72
Id. 167: “Reciprocity suggests the aim of seeking agreement on the basis of princi-
ples that can be justifiable to others who share the aim of reaching reasonable agree-
ment” But “reciprocity is not a principle from which justice is derived, but rather one
that governs the ongoing process by which the conditions and content of justice are
determined in specific cases”.
aid of legal dogmatics, the courts can regard the law as ratio scripta, not
as a mere product of the will of the politicians.
This insight is not new. In Rome, Emperor August gave a few out-
standing jurists authority to answer difficult legal questions, ius publicae
respondendi ex auctoritate principis. In middle ages, communis opinio
doctorum was an important source of the law. Most institutions of
continental private law have been originally drafted by legal researchers.
What is new is the insight that legal research is necessary in the context
of constitutional constraints on the majority rule. For the majority cannot
constrain itself. It must be balanced by something else. If this ‘something
else’ are the courts, the problem of legitimacy is almost impossible to solve.
Surely, popular majority and its representation have greater legitimacy than
the courts. Only if the courts act on the basis of Reason they can be a
legitimate counterpart of the majority rule. And Reason cannot be exhausted
by particular decision making. It also needs a more abstract deliberation,
given by expert jurists.
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SCIENTIA IURIS – AN UNSOLVED PHILOSOPHICAL PROBLEM 275

SCIENTIA IURIS – AN UNSOLVED PHILOSOPHICAL PROBLEM

ABSTRACT. Legal dogmatics in Continental European law (scientia iuris,

KEY WORDS: coherence, defeasibility, deliberative democracy, juristic theories, law

Ethical Theory and Moral Practice 3: 275–304, 2000.

The work of legal dogmatics is almost always value-laden. To be sure,

• analysis of particular cases; mapping of possible application and

Concerning basic philosophical positions behind jurisprudence and moral

2. THEORIES IN LEGAL DOGMATICS THE PROBLEM OF VAGUENESS AND

2.1. Theories on Adequacy in Torts

2.2. Theory of Negligence

2.3. A General Reflection about Adequacy and Negligence

‘paradigms’. Similarly in the case of adequacy, Do we need the umbrella-

2.4. The Right of Ownership

but as a series of events which is composed of many stages. The change in

• T2 has another philosophical background than T1. According to T1,

restrictions in one aspect of ownership with generosity in another one.

2.5. General Theories of Legal Method

Of course, this enumeration is by far not exhaustive.31 Moreover, one can

legal systems, only legislation and custom are argumentatively necessary

A comparison of this theory with Eckhoff’s reveals the following important

2.6. Law and Economics

we grant that it seems plausible that some individuals prior to the

is not in the market. Consequently, the question to what problems

3. DEFEASIBILITY IN LEGAL DOGMATICS

• Some exceptions are explicitly formulated in the law.

addition can consist of a norm- or value-statement. Thus, the use of rules

4. THE POINT OF LEGAL DOGMATICS: COHERENCE

By means of production of general and defeasible theories, legal dogmatics

reasons, ultimately by moral reasons. Thus, the system of law as it is

infinite regress, a coherentist must accept circularity. Indeed, a coherent

5. CRITICISM AGAINST LEGAL DOGMATICS. AN OUTLINE OF ANTI-

However, generations of critics repeatedly attacked legal dogmatics.

in legal practice and in legal dogmatics. Legal argumentation has been

No objective normativity at all, e.g.

Reason Information about

No objective normativity at all, e.g.

Reason Information about

No objective knowledge at all,

Logically necessary, Actually

No objectively valid reasonings,

Simple, e.g., Complex: including

No objective knowledge at all,

In order to comment the triangles, let us start with skepticism. Skeptics

• He can opt for the profound ontological perspective, thus undermining

• He can accept perspectivism as his meta-philosophy, thus stating that

The position taken in this article regards all kinds of skepticism as

various segments of the world.64 Legal practices are an important segment

6. CONSEQUENCES FOR POLITICAL PHILOSOPHY

A clear-cut theory of deliberative democracy would be a procedural one:

• Cannot the perfect discursive procedure lead to unjust and un-

In brief, the purely procedural theory of democracy can at best give us an

Making in Law and in Life. Oxford: Clarendon Press, 1991.

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